Opinion
Nos. CV 04-4000850, CV 05-4005886
September 8, 2006
MEMORANDUM OF DECISION
Background
This is an appeal from a denial of an application for a coastal site plan for an addition to an existing house, owned by David Rose and located in Westport, Connecticut in a flood zone in coastal waters.
The Westport Planning and Zoning Commission issued a resolution of denial which contained findings and eleven reasons for denying the application. #1, Return of Record (ROR). A timely appeal followed to the Superior Court. Also, the plaintiff appealed to the Zoning Board of Appeals. When the Zoning Board of Appeals upheld the decision of the Zoning Enforcement Office to revoke both the zoning permit and certification of zoning compliance, an appeal to the Superior Court followed. The plaintiff claims aggrievement in both appeals to the Superior Court.
At a hearing on April 26, 2006, the court heard argument and determined that the plaintiff had established aggrievement in both cases. Also, at that first hearing, the court denied the plaintiff's Motion to Allow Additional Evidence at Trial, dated December 22, 2004, and August 4, 2005. The hearing was continued until August 16, 2006 for further concluding arguments by counsel for the parties. The court has reviewed all the briefs of the parties in both files and the return of record.
Aggrievement
The plaintiff, David Rose, is the owner of the property involved in the application and the applicant to the Commission for approval of the Coastal Area Management Site Plan. He is also the owner of the property affected by the revocation of the zoning permit and the certificate of zoning compliance. The plaintiff is aggrieved by the Planning and Zoning Commission's decision denying the application and by the Zoning Board of Appeals' decision upholding the Zoning Enforcement Office. Standing has been established. Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); Rogers v. Zoning Board of Appeals, 154 Conn. 484, 488, 227 A.2d 91 (1967).
Law
The role of the Superior Court in an appeal from the Land Use Commission is to review the record to determine whether the zoning authority acted properly in the exercise of its functions and not to substitute its judgment for the judgment of the zoning authority. DeMaria v. Planning Zoning Commission, 159 Conn. 534, 540, 271 A.2d 105 (1970). It is well settled in Connecticut that the decisions of zoning authorities are afforded great deference, and they are to be overruled only when it is found that the authority had not acted fairly, with proper motive and upon valid reason. McMahan v. Board of Zoning Appeals, 140 Conn. 433, 438, 101 A.2d 284 (1953). The Court may only grant relief on appeal if it finds that the local zoning authority acted illegally, arbitrarily or in an abuse of its discretion. Raybestos-Manhattan, Inc. v. Planning and Zoning Commission, 186 Conn. 466, 470, 442 A.2d 65 (1982). An administrative appeal to the court does not require or permit the court to review evidence de novo or to substitute its findings and conclusions for the decision of the zoning authority. Verney v. Planning and Zoning Board of Appeals, 151 Conn. 578, 580, 200 A.2d 714 (1964).
On appeal from a zoning authority's action, the plaintiff has the burden of proving that the authority acted improperly. Bora v. Zoning Board of Appeals, 161 Conn. 297, 300, 288 A.2d 89 (1971). If the zoning authority's decision is reasonably supported by the evidence in the record, the reviewing court is not able to disturb that decision on appeal. Bora v. Zoning Board of Appeals, supra, 161 Conn. at 299-300.
The interpretation of land use regulations is a question of law and the trial court is not bound by the legal interpretation of the zoning regulations by the zoning commission. Northeast Parking, Inc. v. Planning and Zoning Commission, 47 Conn.App. 284, 293, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998).
A zoning regulatory board can revoke an issued permit or certificate provided such revocation can not be continued as an arbitrary or illegal act. Caserta v. Zoning Board of Appeals of the City of Milford, 219 Conn. 352, 362, 593 A.2d 118 (1991).
Prior to June 1, 2004, Connecticut General Statutes § 8-26a(b) protected previously approved, filed and recorded subdivision plans, since the statute allowed prospective protection and restricted a town's present ability to regulate land use after the town has approved a plan. Poirier v. Zoning Board of Appeals, 75 Conn.App. 289, 815 A.2d 716, cert. denied, 263 Conn. 912, 821 A.2d 766 (2003). Effective June 1, 2004 an amendment to § 8-26a(b) continued the protection for construction on vacant lots in a subdivision plan so that the lots did not have to conform to changes in the zoning regulations, but provided that if the property was improved and a building permit was issued and a foundation was completed, that the property would have to conform to changes in the zoning regulations which occurred after the lot became an improved lot.
Subject matter jurisdiction cannot be waived and when it is found that the Court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action. Practice Book, § 10-33.
Waiver is the intentional relinquishment of a known right. It is not necessary that a waiver be made in express terms. It may be inferred from the declarations and conduct of the party if it is reasonable to do so. Cutlip v. Connecticut Motor Vehicles Commissioner, 168 Conn. 94, 96, 357 A.2d 918 (1975).
Discussion
The plaintiff has raised the issue of the jurisdiction of the Commission and Board, and the Court to address the power of the municipality to decide as it did against the plaintiff. The argument presented is that the parties have made a mutual mistake since there is ample evidence to show that the plaintiff's property and house are beyond the 200-foot mean high water mark. Consequently, the plaintiff argues that certain exemptions apply, specifically section 31-10.6 of the Zoning Regulations and section 22a-109(b)(4) of the Connecticut General Statutes, which exempt property located over 200 feet from the mean high water mark. In other words, the plaintiff argues the exemption provisions prohibit the Boards from enforcing certain regulations and also prohibits the Courts from enforcing the Boards' decisions.
While there is a suggestion that there are maps on the record which prove the plaintiff's claim as to the mean high water mark, the plaintiff, in effect, conceded that the evidence was not so clear since the plaintiff sought to introduce a surveyor's map highlighting this issue in its Motions to Allow Additional Evidence at Trial (December 28, 2004 and August 4, 2005). The record is not clear as to allow this Court to determine the mean high water mark. Unfortunately, this court cannot act as a fact finder reviewing evidence de novo. Verney v. Planning Zoning Board of Appeals, supra, 151 Conn. 580.
It is noted that the record reveals that the plaintiff's representatives conceded that the subject property is within the Coastal Zone and that a Coastal Site Plan Application was filed (p. 10 of plaintiff's brief, 3/18/05, CV-04-4000850).
Also, the two prior applications have accepted the concept of a coastal site plan (p. 3 of Plaintiff's Brief, 3/18/05, CV-04-4000850).
The Town did not agree as to the plaintiff's calculations of the mean high water mark.
It is possible that there has been a mutual mistake made by the applicant and the town commission and board. It could also be argued that there has been a waiver of the right to contest, given the conduct of the applicant and the Town and by statements of counsel at the hearing before this court. See Cutlip v. Connecticut Motor Vehicles Commissioner, 168 Conn. 96. But subject matter jurisdiction cannot be waived. P.B. § 10-33.
The conduct of the applicant in regard to denying access of town inspections onto the property is troublesome, and may be an example of conduct concealing non-compliance with town zoning regulations. But rather than addressing that topic as well as other legal topics, including, interplay of the Poirer case and a later statutory amendment to section 8-26, the court believes it is appropriate to send this case back to the Planning and Zoning Commission to reopen the hearing for further receipt of evidence as to the mean high water mark. If the parties cannot agree on an engineer/surveyor to make such a determination, they can return to this court and the court will appoint someone to make the determination.
All other decisions as to other legal issues will be reserved pending the determination of the mean high water mark, which, in turn, will determine the applicability of certain exemptions, which may negate the need for further court action.
The selection by the parties of a surveyor/engineer must take place within 15 days of publication of this Order.
Conclusion
This matter is remanded to the Planning and Zoning Commission with instructions to reopen its hearing for further receipt of evidence relating to the mean high water mark. There is no need for the Zoning Board of Appeals to reopen its hearing at this time. Once the record is amended to address the issue of the mean high water mark, the court can, thereafter, address any issues that remain, if any.
So Ordered.