Opinion
No. UWY CV 99 0152455S
March 26, 2009
MEMORANDUM OF DECISION
I BACKSTORY
On April 17, 2000, the plaintiff, Phoenix Soil, LLC ("Phoenix Soil"), appealed from May 17, 1999 decision of the defendant, the Zoning Board of Appeals of the City of Waterbury (alternately "Board" and "ZBA"), denying the plaintiff's appeal of a Cease and Desist Order ("Order"). The Order, issued on March 26, 1999, by Vincent Viggiano, the Zoning Enforcement Officer of the City of Waterbury, states that the height of the smokestack at 130 Freight Street, Waterbury, Connecticut (the "Premises") is in excess of the height limit allowed in the Industrial General Zone ("I.G. Zone") under Sections 4.65(a) and 1.75 of the Zoning Ordinance of the City of Waterbury (the "Ordinance"), and Sections 159.095(E)(1) and 159.037 of the Code of the City of Waterbury (the "Code").
Phoenix Soil operates a soil remediation facility. Subsequent to the establishment of Phoenix Soil, Inc. ("PSI") in 1993, the Connecticut Department of Environmental Protection ("DEP") Bureau of Air Management issued an air permit on June 30, 1993, allowing PSI to construct and temporarily operate a smokestack on the Premises. The duration of the permit was for one year from the date of issuance. Based on that permit, PSI operated Low Temperature Thermal Desorption ("LTTD") equipment for the purpose of burning nonhazardous contaminated soil. At the time of issuance of that permit, the height of the smokestack located on the Premises was 65.8 feet. Upon completion of stack testing, PSI was to apply for a final permit to replace the temporary permit. The administrative decision on the final permit was delayed, and the DEP and PSI entered into Consent Order No. 1397, which allowed PSI to continue to operate, for more than a year, under the temporary permit. The time limit of Consent Order No. 1397 was extended several times through letters to PSI.
For the backstory on the relationship between PSI and Phoenix Soil, see the memorandum of decision dated March 26, 2009, in Waterbury v. Phoenix Soil, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 98 0146037.
For more details regarding Consent Order No. 1397 and the various letters extending the time limit of Consent Order No. 1397, see the memorandum of decision dated March 26, 2009, in Waterbury v. Phoenix Soil, LLC, Superior Court, supra, Docket No. CV 98 0146037.
Since the issuance of Consent Order No. 1397 in 1994, PSI and later Phoenix Soil have pursued a final air permit, which was eventually granted on March, 23, 1999. This air permit was a five-year permit. During that administrative process, Phoenix Soil learned that its boundary survey was incorrect and that its property line was closer to the smokestack than it originally thought. Accordingly, Phoenix Soil needed to increase the height of the smokestack to comply with air quality regulations. When Phoenix Soil, acting through David Green, its Managing Member, went to the Building Department of the City of Waterbury ("Building Department") in 1996 to obtain a Building Permit, Salvatore M. Corbo of the Building Department advised Mr. Green that while no Building Permit was required to raise the height of the smokestack, a Mechanical Permit had to be obtained. The Mechanical Permit, which was issued by Waterbury on May 1, 1996, authorized Phoenix Soil to extend the existing smokestack to a height shown on the plans and specifications submitted with the permit application. Thereafter, also in 1996, Phoenix Soil finished the extension of the smokestack, raising it to a height of 115 feet pursuant to the Mechanical Permit issued by Waterbury.
From 1996 until March 31, 1998, Phoenix Soil operated the smokestack at the height of 115 feet under Consent Order No. 1397, just as it had operated the smokestack at the height of 65.8 feet under the first temporary air permit and Consent Order No. 1397 from 1993 through 1996. Deborah Green, the DEP Hearing Officer, made a favorable recommendation in March of 1998, facilitating the final air permit to be issued within a week. Because of the expectation of the imminent issuance of the final air permit, Consent Order No. 1397 was allowed to expire. Contrary to this expectation, the Deputy Commissioner of the DEP remanded the matter for further hearing. Subsequently, operations were suspended for approximately a year until March 23, 1999, when the final air permit was eventually obtained by Phoenix Soil.
On March 26, 1999, shortly after the issuance of the final air permit, which was to be valid for five years, Viggiano, in his capacity as the Zoning Enforcement Officer of the City of Waterbury, issued the Order pursuant to General Statutes § 8-12. This Order sought a mandatory temporary injunction to stop Phoenix Soil from operating the smokestack on the Premises and to require it to take down the smokestack (the "Injunction Action"). Phoenix Soil responded by appealing to the ZBA on April 12, 1999. The appeal caused a stay of the Order pursuant to General Statutes § 8-7.
While Phoenix Soil was appealing the Order to the ZBA, the City of Waterbury brought an Injunction Action on April 20, 1999, Waterbury v. Phoenix Soil, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 99 0152370, seeking an enforcement of the issued Order. Subsequently, while this Injunction Action was pending, Phoenix Soil's appeal was denied by the ZBA, and in accordance with administrative procedure, Phoenix Soil commenced the administrative appeal proceeding that is the subject of the memorandum of decision before this court. On May 20, 1999, the court, Holzberg, J., stayed the proceedings in this matter pending then Judge Vertefeuille's ruling in the Injunction Action.
On June 4, 1999, Judge Vertefeuille ruled in favor of Phoenix Soil, holding that the height limit of a structure erected on a building relies on the height of the tallest building permitted in the I.G. Zone, regardless of the building's principal use to which the structure is attached. The court, Vertefeuille, J., held that according to Section 4.65 of the Ordinance and Section 159.095(E)(1) of the Code, all buildings are allowed to be erected to a height of 80 feet, except for corporate industrial offices or general industrial offices, where the maximum building height is 100 feet. In addition, the court, Vertefeuille, J., stated that as per Section 159.037 of the Code, no structure shall be in excess by more than fifteen feet above "the height limits of the district." (Emphasis in original.) Waterbury v. Phoenix Soil, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 99 0152370 (June 4, 1999, Vertefeuille, J.). Judge Vertefeuille concluded that the use of the plural in reference to "the height limit" was a clear acknowledgement of the fact that the I.G. Zone may have more than one height limit; but there was "no attempt in this zoning regulation to restrict the applicable height limit to any one of the height limits within the district." Id. Judge Vertefeuille found that "[i]n the absence of such language, any of the height limits within the zoning district can be used as the height limit from which the 15 feet is to be measured." Id. Judge Vertefeuille's memorandum of decision also indicated a concern about the practical effect of a denial of such an interpretation: If "the smokestack height of Phoenix Soil would be limited to 95 feet — 5 feet below the maximum building height for the district . . . effluent from the smokestack could readily enter windows or other ventilation systems of nearby buildings"; (emphasis in original) id.; which contain industrial offices, which are allowed to be 100 feet in height. Therefore, Judge Vertefeuille concluded that the benchmark height for the smokestack should be 100 feet, which was the maximum building height limit in the I.G. Zone. Judge Vertefeuille interpreted Section 159.095 of the Code to allow the smokestack to rise to 15 feet above 100 feet. The smokestack has been operating on the Premises through the date of this current memorandum of decision.
II DISCUSSION A Jurisdiction
General Statutes § 8-8(b) provides in relevant part: "[A]ny person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located." General Statutes § 8-10 provides: "The provisions of sections 8-8 and 8-9 shall apply to appeals from zoning boards of appeals, zoning commissions or other final zoning authority of any municipality whether or not such municipality has adopted the provisions of this chapter and whether or not the charter of such municipality or the special act establishing zoning in such municipality contains a provision giving a right of appeal from zoning boards of appeals or zoning commissions and any provision of any special act, inconsistent with the provisions of said sections, is repealed." "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
B Aggrievement
"It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39. "Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 702, 780 A.2d 1 (2001).
In the present appeal, there is no dispute that Phoenix Soil leases the property where the smokestack is located; it therefore has standing to pursue this appeal.
C Standard of Review
A zoning board of appeals is endowed with liberal discretion, and on appeal from a decision by a zoning board of appeals, the Superior Court's scope of review is limited to determining whether the board's actions were "unreasonable, arbitrary or illegal." Schwartz v. Planning Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). The purpose of trial court review "is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board's] findings . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . ." (Internal quotation marks omitted.) Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, 568, 785 A.2d 601 (2001). "When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision." Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). "More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons." Stancuna v. Zoning Board of Appeals, supra, 568.
D Municipal Estoppel
The plaintiff maintains that Waterbury is estopped from claiming that the height of its smokestack is improper. When Phoenix Soil attempted to obtain a Building Permit to raise its smokestack, the Building Department advised it that while no Building Permit was required, a Mechanical Permit had to be obtained. Phoenix Soil did in fact obtain the Mechanical Permit. Following the Building Department's advice, Phoenix Soil, with the Mechanical Permit only, proceeded to heighten the smokestack. Phoenix Soil contends that because the Building Department was responsible for the issuance of Building and other permits required by Ordinance and Code, it was proper for it to follow the information provided by the Building Department. Phoenix Soil further argues that the Building Department should not be allowed to posit that a Building Permit was indeed required. The defendant counters that the plaintiff's municipal estoppel claim must fail because 1) the plaintiff's appeal did not mention the issue of municipal estoppel either before the Board or in its complaint in the current action before this court; 2) it is not a role of a zoning board of appeals to consider matters such as equitable estoppel; and 3) no special circumstances exist to justify the invocation of municipal estoppel in this case, and the plaintiff has failed to plead the underlying elements necessary to support this claim. This court concludes that Waterbury is estopped from negating the prior acts of its agent.
"[I]n general, estoppel may not be invoked against the government or a public agency functioning in its governmental capacity." (Internal quotation marks omitted.) Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 353, 365 A.2d 1093 (1976). However, the general rule is qualified, and municipal estoppel may be invoked by the court where the aggrieved party establishes the following essential elements: "(1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief; (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents. Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 247, 662 A.2d 1179 (1995). See also Zotta v. Burns, 8 Conn.App. 169, 175-76, 511 A.2d 373 (1986) (same); Greenwich v. Kristoff, 2 Conn.App. 515, 522-23, 481 A.2d 77, cert. denied, 194 Conn. 807, 483 A.2d 275 (1984) (same). The courts have consistently held that the general rule applicable to the invocation of the doctrine of estoppel against municipalities should be limited and invoked "(1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the zoning or building regulations." (Citations omitted.) Dupuis v. Submarine Base Credit Union, Inc., supra, 354. See also Gelinas v. West Hartford, 225 Conn. 575, 590, 626 A.2d 259 (1993); Zoning Commission v. Lescynski, 188 Conn. 724, 731-32, 453 A.2d 1144 (1982); T. Tondro, Connecticut Land Use Regulation, (2d Ed. 1992) p. 586-88. "A claim of municipal estoppel is, therefore, inherently fact bound." Collins Group, Inc. v. Zoning Board of Appeals, 78 Conn.App. 561, 576, 827 A.2d 764 (2003). Because municipal estoppel should be invoked only with great caution, our case law clearly imposes a substantial burden of proof on the party who seeks to do so. Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 636, 646 A.2d 772 (1994); West Hartford v. Rechel, 190 Conn. 114, 122, 459 A.2d 1015 (1983).
In its brief, Phoenix Soil elaborates on each of the Bauer elements upon which this court may invoke municipal estoppel. First, when Corbo of the Building Department advised David Green, the Managing Member of Phoenix Soil, that no Building Permit was required, he was within the scope of his employment. The court concludes that Corbo must have intended, or at a minimum foreseen, that David Green would believe that Corbo's interpretation and knowledge of the building regulations was correct and that David Green would act on that belief. From David Green's perspective, Corbo was a representative employee of the Building Department, which Department was responsible to interpret the building regulations. Furthermore, Corbo did not refer David Green to any other authority for further inquiry about the building regulations. Based on this fact, Corbo acted as if he was the proper authority from whom David Green needed to seek guidance.
Second, David Green exercised, in good faith, due diligence to ascertain the truth. Furthermore he had no convenient alternative means of acquiring that knowledge. He went to the Building Department in person to report his plan to extend the smokestack and to inquire as to what permit he needed in order to do the extension. As advised, Phoenix Soil applied for a Mechanical Permit instead of a Building Permit. David Green did not know or have any reasons to believe that Corbo misinterpreted an Ordinance or Code of Waterbury or that Corbo might not be a proper representative of Waterbury. Contrary to the factual pattern of the present case, the landfill owner in the Bauer case knew that the town zoning commission was considering enacting a height limitation when it sought approval for its gas cogeneration system and that construction of the system was to occur after the enactment of the height limitation and during the pendency of its administrative appeal. Bauer v. Waste Management of Connecticut, Inc., supra, 234 Conn. 245-46. The landfill owner, nonetheless, never informed the town zoning enforcement officer that its gas cogeneration system plans were based on the landfill's ability to expand beyond the potential new height limitation. Id. The landfill owner's bad faith conduct provided the Bauer court with the main reason to hold that the town zoning enforcement officer's prior approval of the landfill owner's plans to construct a gas cogeneration system did not estop her from enforcing the landfill height limitation. Id.
Third, the record reveals that David Green changed his position in reliance on the instruction of Corbo and completed the extension of the smokestack without a Building Permit. The sole purpose of David Green going to the Building Department was to acquire the permit he thought he required to extend Phoenix Soil's smokestack. The Mechanical Permit issued by Waterbury authorized Phoenix Soil to extend the existing smokestack to a height of 115 feet that was shown on the plans. This Mechanical Permit specifically indicated that no Building Permit was required. Therefore, it was reasonable for Green to conclude that a Building Permit was not necessary.
Fourth, if the City of Waterbury were permitted to negate the prior acts of its agent, Corbo, the Building Department employee, Phoenix Soil would be subjected to a substantial loss. Showing a substantial loss is an essential part of the burden of proof imposed upon the aggrieved party. In Dornfried, the Connecticut Supreme Court dealt with the issue of "what constitutes a substantial loss for purposes of municipal estoppel." (Emphasis added.) Cortese v. Planning Zoning Board of Appeals, 274 Conn. 411, 419, 876 A.2d 540 (2005), quoting Dornfried v. October Twenty-Four, Inc., supra, 230 Conn. 639-40. Although the Dornfried court did not provide a specific level of monetary loss, it pointed out that where the allegedly aggrieved party had offered no evidence of any out-of-pocket investment, such as a capital investment in equipment, a building, or real property, that party had failed to establish that it suffered a substantial loss for purposes of municipal estoppel. Cortese v. Planning Zoning Board of Appeals, supra, 419. The Dornfried court noted that the concept of substantial loss had been developed by the Illinois courts in Cities Service Oil Co. v. Des Plaines, 21 Ill. 2d 157, 161, 171 N.E.2d 605 (1961), so that an aggrieved party seeking the invocation of municipal estoppel had to establish that it had made "significant economic investments in improvements to property that would have been rendered useless or had to be destroyed if municipal estoppel had not been invoked." (Emphasis added.) Cortese v. Planning Zoning Board of Appeals, supra, 419-20. If the City of Waterbury is not estopped in the present case from negating its prior acts, Phoenix Soil would have to take down the smokestack and lose all the out-of-pocket investment it spent on its extension and would be forced to stop all thermal treatment/soil remediation operations.
In sum, an authorized agent of the municipality, the City of Waterbury, made statements intended to lead David Green, and by extension, Phoenix Soil, to believe that no Building Permit was required; David Green, without any prior information or knowledge regarding the relevant building requirements, exercised, in good faith, due diligence to learn the rules governing smokestack extensions; and in reliance on the information that David Green gained from the municipality's agent, he changed his position by obtaining a Mechanical Permit only. Permitting the municipality to negate the acts of its agent would cause the aggrieved party to sustain a substantial economic loss, which includes a demolition of the smokestack.
The counterarguments raised by Waterbury are without merit. First, Waterbury argues that as Phoenix Soil did not previously raise the issue of estoppel when it was before the Board, it cannot seek Superior Court review of the issue as part of the administrative appeal. In principle, in an administrative appeal from a zoning board, the Superior Court's scope of review is confined to determining whether the board's actions were "unreasonable, arbitrary or illegal." Schwartz v. Planning Zoning Commission, supra, 208 Conn. 152. A zoning board of appeals, however, lacks equity jurisdiction and would be unable to decide an issue such as equitable estoppel. MacDonald v. Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV 02 0561714 (February 25, 2003, Purtill, J.T.R.). In Bianco v. Darien, 157 Conn. 548, 554-55, 254 A.2d 898 (1969), the Supreme Court articulated that "equitable claims, such as estoppel, should be decided by a court of law rather than a zoning board of appeals composed of laypersons." Collins Group, Inc. v. Zoning Board of Appeals, supra, 78 Conn.App. 581.
III CONCLUSION
This court concludes that the present case is a classic example of when the invocation of municipal estoppel is proper. In its complaint, Phoenix Soil successfully established the facts which are necessary for the court to invoke the doctrine of municipal estoppel. The doctrine requires Waterbury to be estopped from negating the prior acts of its agent.
The test to determine whether the court should invoke the doctrine of municipal estoppel comprehensively balances the aggrievement imposed on the private business against the value of impartial enforcement by an enforcement agency of the zoning ordinances or city codes. The plaintiff's appeal satisfies all the necessary elements for the court to invoke municipal estoppel, and Waterbury's counterarguments do not overcome the persuasiveness of the factual evidence.
For the foregoing reasons, this court renders judgment in favor of the plaintiff, Phoenix Soil. The court hereby reverses the Board's decision sustaining the enforcement of the Cease and Desist Order issued by the City of Waterbury.