Opinion
No. CV-09-4009161
July 20, 2010
MEMORANDUM OF DECISION
I. Statement of the Appeal
By their amended complaint, David A. Peikes and Constantine Sklavounos (hereinafter the plaintiffs) appealed from the action of the Zoning Board of Appeals of the Town of Waterford (hereinafter the ZBA) denying the appeal from the actions of Michael Glidden, the zoning official (hereinafter the ZO) of the Town of Waterford concerning real property owned by Frank L. Picardi (hereinafter the defendant).
II. Jurisdiction
General Statutes § 8-8(b) governs appeals from the decisions of zoning boards of appeals to the Superior Court. "The statutory right of appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 21 Conn. 78, 82 (1989).
a. Aggrievement
"Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of plaintiff's appeal . . . In order to have standing to bring an administrative appeal, a person must be aggrieved." (Citations omitted; internal quotation marks omitted.) Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 664 (2006). Two broad yet distinct categories of aggrievement exist, classical and statutory. The standard for statutory aggrievement in zoning appeals is set forth in General Statutes § 8-8a(1), which provides in relevant part; aggrieved person includes any person owning land that abuts or is within a radius of 100 feet of any portion of the land involved in the decision of the board.
In their amended complaint, plaintiffs allege that they are aggrieved by decision of the ZBA because they own land abutting the land involved in the decision. The evidence indicates that both plaintiffs own real property on East Wharf Road in the Town of Waterford, which abuts property which was the subject of the appeal before the Board.
From such evidence, the court finds that plaintiffs are aggrieved by the decision of the Board and have standing to proceed with this appeal.
b. Timeliness and Service of Process
Pursuant to General Statutes § 8-8(b) "an appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within 15 days from the date the notice of the decision was published as required by the General Statutes . . ." Notice of the decision which is the subject of this appeal was published in the New London Day on December 11, 2008. This action was commenced by service of process on the Board and the defendant on December 23, 2008.
It is therefore found that service of process was properly made and such action was commenced within the time allowed by statute.
III. Scope of Review
In considering the issues raised in this appeal, the scope of judicial review is limited. Horn v. Zoning Board of Appeals, 18 Conn.App. 674, 676 (1989). The authority of the court is limited by Section 8-8 to a review of the proceedings before the ZBA. The function of the court in such a review is to determine whether the ZBA acted fairly or on valid reasons with the proper motives. Willard v. Zoning Board of Appeals, 152 Conn. 247, 248-49 (1964). The court is limited to determining whether the record reasonably supports the conclusions reached by the ZBA. Burnham v. Planning and Zoning Commission, 189 Conn. 261, 265 (1983). The court cannot substitute its discretion for the liberal discretion confirmed by the legislature on the ZBA. The court is limited to granting relief only when it can be shown that the ZBA acted arbitrarily or illegally and consequently has abused its authority. Gordon v. Zoning Board, 145 Conn. 597, 604 (1958). The burden rests with the plaintiffs to prove the impropriety of the ZBA's actions. Burnham, supra, 189 Conn. 266.
It is not the function of the court to rehear the matter or question wisdom of the defendant ZBA in taking the action which it did. The court is limited to determining whether or not the ZBA's action can be supported under the law.
The ZBA is authorized to decide appeals from the decisions and rulings of the ZO under the provisions of Connecticut General Statutes § 8-6(1) and Section 27.3 of the Waterford Zoning Regulations. In an appeal from the action of a ZO to a ZBA, a court reviewing the decision of the ZBA must focus not on the decision of the ZO but on the decision of the ZBA and the record before the ZBA. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82 (1993).
In deciding such appeals concerning the interpretation of the zoning regulations as applied to a particular piece of property, the ZBA acts in a quasi-judicial capacity. The ZBA has the authority to interpret the Town's zoning regulations and decide whether they apply in a given situation. Stern v. Zoning Board of Appeals, 140 Conn. 241, 245 (1953). On appeal, the court is required to decide whether the ZBA properly interpreted the regulations and applied them to the facts of the case. Danseyar v. Zoning Board of Appeals, 164 Conn. 325, 327 (1973). In reviewing the ZBA's decision, the credibility of witnesses and the determination of factual issues are matters within the province of the agency. Stankiewicz v. Zoning Board of Appeals, 15 Conn.App. 729, 732 (1988).
The plaintiffs have the burden of proving that the defendant ZBA acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1998).
Where, as here, the ZBA failed to state on the record the reasons for its decision, the court must search the record to discover if sufficient reasons exist to support the decision appealed from. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369 (1988).
IV. Facts
The record indicates that, in response to letters from the plaintiffs to the Waterford Planning Director, on April 8, 2008, the ZO sent a letter to defendant. The letter stated in pertinent part:
It has been brought to the attention to this office that a land split has occurred between 15 West Street and 10 East Street without proper approval. It is the opinion of this office that 15 West Street should have been conveyed with 10 East Street.
Subsequently, the ZO caused an abatement order to be delivered to defendant on May 22, 2008. The order informed defendant that property owned or under his control at 15 West Street was in violation of § 24.3.2 of the Waterford Zoning Regulations. The defendant was ordered to "please submit a plan for conformance for the illegal lot split between 15 West Street and 10 East Street." This corrective action was to be taken on or before June 12, 2008, or the Town would take enforcement measures without further notice.
After the issuance of the abatement order, there was correspondence between the ZO and defendant's attorney. The next official act by the ZO was to send a letter, dated October 9, 2008, to defendant's attorney. This letter was characterized by the ZO as an appealable cease and desist order issued pursuant to Connecticut General Statutes § 8-7. The attorney was advised that if he disagreed with the order, he must file an appeal to the ZBA within 15 days.
Section 27.3 of the Waterford Zoning Regulations provided that appeals to the ZBA from an officer charged with enforcement of the zoning regulations must be filed within 15 days from the date the ruling was officially issued.
Attached to the ZO's letter was a copy of the abatement order of May 20, 2008. The letter repeated the claim that defendant had created an illegal split of 15 West Street and 10 East Street and, as a result of such violation, a $500 fine was levied against defendant pursuant to Connecticut General Statutes § 8-25. Defendant was also ordered to submit a plan detailing how the parcels were to be reunited to conform to the present zoning and subdivision regulations. The letter also contained the history of the lot transfers.
On October 28, 2008, defendant appealed the cease and desist order of October 9, 2008 to the ZBA under the provisions of § 8-6(1) of the General Statutes and § 27.3 of the Zoning Regulations.
In paragraph 10 of the appeal, plaintiff stated "§ 24.32 of the zoning regulations does not apply for many reasons including but not limited to the exception set forth in § 24.3.3 of the regulations." In his appeal, the defendant requested the ZBA to "sustain the appeal from the order of the Zoning Office and to find that 15 West Street is a nonconforming buildable lot pursuant to the zoning regulations."
The ZBA scheduled defendant's appeal for a public hearing on December 4, 2008.
Evidence submitted at the public hearing indicates that on April 16, 1974, defendant acquired by warranty deed from Ralph V. and Donna C. Scott, Lots Numbers 70, 71, 72 and 73 on a plan of Mago Point.
Evidence at the public hearing indicates also that on the same date, defendant acquired by warranty deed of George L. Trebert two tracts of land. The first tract contained Lots 65 and 66 on the Mago Point plan. The second tract included Lots 67, 68 and 69 on the Mago Point layout.
The Mago Point plan was a development of the Titus and Bishop Land Co., Inc. The plan, dated April 1923, described numerous lots with 25-foot frontage. Streets were also shown on the map including East Street and West Street. The Mago Point development does not conform to the zoning or subdivision regulations and has never been approved or accepted by the town.
Lots 70, 71, 72 and 73 front on East Street, while Lots 64, 65, 66, 67, 68 and 69 front on West Street. On the Mago Point plan, both of these streets are parallel.
An aerial photo of the area obtained from the tax assessor's office shows East Street as a dead end paved street. The paved portion of West Street, as shown on the aerial photo, does not appear to have been extended as far as East Street and is in effect a paper street.
By warranty deed dated July 17, 1981, defendant conveyed to John M. Carpino, Lots 70, 71, 72 and 73 fronting on East Street. Defendant retained title to the remaining lots fronting on West Street.
The conveyance to Carpino constituted the illegal split as claimed by the ZO.
At the conclusion of the public hearing, the ZBA discussed the issues raised and a motion was made to uphold the decision of the ZO. The motion was defeated by a majority vote. The ZBA was clear that its vote was, in effect, to rescind the cease and desist order and the $500 fine. The ZBA was clear that its vote did not constitute a finding that plaintiff's remaining land was a buildable lot.
Since the ZBA did not formally state the reasons for its decision on the record, the Court must search the record to discover if the decision is supported by substantial evidence in the record.
Additional facts will be stated as necessary.
V. Analysis
In their appeal from the decision of the ZBA, plaintiffs have raised a number of claims which may be summarized as follows:
(1) The ZBA abused its discretion when it improperly and arbitrarily interpreted the zoning regulations and its finding of fact was erroneous, unreasonable and arbitrary.
(2) The chairman of the ZBA showed bias and predetermination.
Defendant has also raised claims of estoppel and taking without just compensation.
(1)
Although defendant's property was made up of small lots laid out by the Mago Point Development, the parties and the tax assessor have treated the property in question as two lots, one known as 10 East Street and the other known as 15 West Street.
At the time defendant conveyed the property at 10 East Street to Carpino on July 17, 1981, both lots together and separate did not conform to the existing zoning regulations and would be considered as nonconforming lots as defined by § 24.3 of the zoning regulations. When defendant acquired the property at 10 East Street, there was a house located on the property. Defendant resided in this house until 1981 when he moved to Florida. An above-ground swimming pool was also located on the property.
The property at 15 West Street was acquired by defendant on the same date as the East Street property. There was evidence that a residential structure, one and a-half stories in height, was located on this property with running water, a bathroom and sink. Beds were located on the second floor. It does not appear that anyone was living in the property at the time defendant acquired it and there was no evidence that anyone subsequently occupied the structure. The evidence indicated that this structure was not in good condition and could have been used by defendant and Mr. Carpino for storage. When defendant returned from Florida, he learned that the building had been removed without his consent or knowledge.
Although the ZBA failed to state the reasons for its decision on the record, it is obvious that the ZBA predicated its decision on a finding that there had not been a merger of the two lots owned by defendant.
It is plaintiffs position that there was, in fact, a merger of the two lots and that the order of the ZO was proper and should have been upheld by the ZBA. It is also argued that the ZBA abused its discretion in not so doing.
"Merger of adjacent lots occurs in two situations: (1) in the absence of a merger provision where the parties intend to treat multiple lots as a single lot; and (2) by operation of law where the zoning regulations contain a merger provision for nonconforming contiguous lots." R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (3rd Edition) 2007 (§ 53:6 P246).
a.
For a merger to occur at common law, the same party must own both properties. "Contiguous land owned by the same person does not necessarily constitute a single lot. A merger can occur, however, if the owner of contiguous parcels of land intends to form one tract. The owner's intent may be inferred from his conduct with respect to the land and the use which he makes of it. Intent is an inference of fact and is not reviewable unless it was one which the trier could not reasonably make. (Citations, internal quotation marks omitted.)" Iannucci v. Zoning Board of Appeals, 25 Conn.App. 85, 89 (1991).
At the public hearing, there was conflicting evidence as to whether defendant's conduct in the use of the two lots indicated an intent that they be merged into a single lot. There was evidence, however, to support the decision of the ZBA.
Defendant acquired the lots by deeds from separate grantors. At the time of purchase, both lots had residential structures. Although the building on the West Street lot was not in pristine condition, presumably it could have been improved. The lots were treated as separate by the tax assessor and thus separately taxed. Although it is not conclusive, this fact would justify an impression by the defendant that, at least for tax purposes, the Town was considering the property as two separate lots. Although there was some auxiliary use made of the building on the smaller lot for storage, there was no construction across lot lines and the swimming pool was located solely on the East Street lot.
The clearest evidence that defendant never intended to merge the lots was the conveyance of the East Street property to Carpino while defendant retained title to the West Street lot.
Although plaintiffs argue that in reaching its decision, the ZBA relied on faulty evidence, the credibility of witnesses and the determination of factual issues are within the province of the ZBA. Stankiewicz v. Zoning Board of Appeals, 15 Conn.App., supra, 732. The conclusion underlying the ZBA's decision that defendant did not intentionally merge the lots is supported by substantial evidence in the record.
b.
Although a conclusion that defendant did not intend to merge the two lots has not been proven to be an abuse of discretion by the ZBA. A merger may occur when the zoning regulations contain a merger provision for nonconforming contiguous lots. At all times relevant to these proceedings, the Waterford Zoning Regulations contained the following provisions:
24.3.2. If two or more contiguous lots or combinations of lots or portions of lots in single ownership are of record at the time of passage of these regulations, or any amendment thereto, and if all or part of such lots do not meet the requirements for lot frontage, width, or area as established by these regulations, or any amendment thereto, the land involved shall be considered to be an undivided lot for the purpose of these regulations, except as provided in § 24.3.3 herein. No portion of said undivided lot shall be used or sold as a building lot which does not meet lot frontage, width of said undivided lot shall be used or sold as a building lot which does not meet lot frontage, width and area requirements established within these regulations, nor shall any division of a lot be made which leaves any remaining lot with frontage, width or area below the requirements stated within these regulations.
24.3.3. Where two or more lots or combinations of lots or portions of lots with continuous frontage are in single ownership as described in § 24.3.2 herein and a lawfully erected building containing a primary use is located on a conforming lot and in no case shall any lot be so created or maintained which is nonconforming in area, width or frontage.
In issuing both the abatement order of May 22, 2008 and the cease and desist order of October 9, 2008, the ZO expressed his conclusion that a merger had occurred because of the provisions of § 24.3.2. In his appeal to the ZBA, defendant claimed that § 24.3.2 did not apply to his situation because of the provisions of § 24.3.3. The ZBA in its brief also presented this argument.
Section 24.3.2 covers contiguous lots in single ownership but provides that § 24.3.3 is an exception to its provisions. This section covers lots with "a lawfully erected building containing a primary use."
In construing the regulations, the fundamental objective of the court is to give effect to the apparent intent of the zoning authority that promulgated the regulations. Felician Sisters of St. Francis of Connecticut v. Historic District Commission, 284 Conn. 838, 847 (2008).
A review of both §§ 24.3.2 and 24.3.3 indicates an intent to treat the merger of lots with defined existing buildings under § 24.3.3 and lots without such structures under § 24.3.2. Under this interpretation, § 24.3.3 could be found to cover defendant's two lots. There is no question but that from the time defendant acquired the lots up to and beyond the date of sale to Carpino on July 17, 1981, a lawfully erected building containing a primary residential use existed on the East Street lot. The evidence with respect to the West Street lot is less certain. However, the record contains evidence that there was a lawfully erected building on the lot at the time defendant acquired it and that the building was there at the time of the conveyance to Carpino. There was evidence that the building contained a primary residential use at the time defendant acquired the lot. As previously noted, the one and one-half floor building had running water, a bathroom, a sink and beds on the upper floor. Although this building was in disarray at the time the lots were split, it existed and the evidence indicates that its primary use could be found to be residential.
As between the two sections, it is more likely that § 24.3.3 was intended to apply to defendant's situation where both lots had lawfully erected buildings rather than § 24.3.2 which appears to be limited lots without such buildings.
When § 24.3.3 is applied to defendant's situation, it must be found that a merger of the lots did not occur. For merger to occur under § 24.3.3, the lots must have "continuous frontage." In the unusual situation here, the lots did not have continuous frontage. The larger lot fronted on East Street. The smaller lot did not enjoy such frontage, but as laid out, frontage on West Street, a paper street.
It must be found that in deciding as it must have done in its decision the ZBA did not abuse its discretion in finding that a merger of defendant's lots did not occur by operation of law under the zoning regulations.
(2)
In their brief, plaintiffs, for the first time, claim that the chairman of the ZBA showed bias and predetermination. They argue that because of this, his votes should be disregarded by the court. It is their claim that this would result in the ZBA upholding the actions of the ZO.
This claim was not pleaded in the amended complaint and is therefore not properly before the court. "It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of (its) complaint . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise . . ." Trumbull v. Palmer, 104 Conn.App. 498, 502 (2007).
Plaintiffs base their claim on statements made by Mr. Geer at the public hearing and during the ZBA's deliberations.
During the public hearing, Mr. Geer questioned what the ZBA was doing when the claimed illegal split occurred in 1981. His concern was understandable since the hearing was being held over seven years after the date of the alleged violation. The situation was explained to Mr. Geer by the Town attorney. The other statements were made during the ZBA's deliberations after the public hearing and all of the evidence had been heard.
"It is presumed that members of administrative boards acting in an adjudicative capacity are unbiased. The party who contends that an adjudicator is biased bears the burden of proving the disqualifying interest." (Internal citations omitted.) Jutkowitz v. Department of Health Services, 220 Conn. 86, 100 (1991). Here, plaintiff has failed to establish bias or prejudgment on the part of the chairman of the ZBA.
CT Page 14982
(3)
Inasmuch as the above decisions are dispositive of the case, defendants' claims of estoppel and taking without just compensation need not be considered.VI. Conclusion
In this matter, the court searched the record to determine if sufficient reasons exist to support the decision of the ZBA to overturn the action of the ZO. The record confirms that the facts underlying the action of the ZBA are supported by substantial evidence in the record. The ZBA properly interpreted the zoning regulations and correctly applied them to the facts of the case. This is particularly true since the zoning regulations are in derogation of the common law property rights of the defendant. Dowling v. Zoning Board of Appeals, 187 Conn. 689, 694 (1992).
It is noted that the efficacy of the cease and desist order of October 9, 2008, has not been addressed by any party to this action. The cease and desist order does not order defendant to cease and desist from anything. It orders defendant to submit a plan detailing how the parcels of land conveyed years before could be reunited to conform to the present subdivision regulations. The ZO's authority to issue such an order does not appear to have been questioned. The cease and desist order also levies a $500 fine on defendant under authority of Connecticut General Statutes § 8-25, which allows such fines for illegal subdivisions. A subdivision is defined by § 1.3.1 of the Waterford Subdivision Regulations as the "division of a tract or parcel of land into three or more parcels or lots . . . Here, defendant split one lot.
Accordingly, the action of the ZBA is affirmed and plaintiff's appeal is dismissed.