Opinion
No. CV04 400 13 93
June 6, 2006
MEMORANDUM OF DECISION
The plaintiff, SL Realty, LLC, appeals the decision of the defendant, the Windsor Zoning Board of Appeals, (the board), to uphold a cease and desist order issued by the Windsor zoning enforcement officer, Stephen Dupre, (ZEO), with respect to property located at 20 Windsor Avenue in the town of Windsor. The parties have filed briefs and argument was heard by this court on March 30, 2006. The court has reviewed the testimony and evidence contained in the entire record, including tapes of the two board hearings (ROR, Item 19), and has considered the parties' briefs and oral arguments. For the reasons stated below, the appeal is dismissed.
The plaintiff is the alleged owner of the property which is the subject of this appeal located at 20 Windsor Avenue, Windsor, Connecticut. The board is the municipal agency within the town of Windsor designed to hear and decide appeals from decisions of the Windsor ZEO pursuant to General Statutes § 8-7.
General Statutes § 8-7 states, "The concurring vote of four members of the zoning board of appeals shall be necessary to reverse any order, requirement or decision of the official charged with the enforcement of the zoning regulations or to decide in favor of the applicant any matter upon which it is required to pass under any bylaw, ordinance, rule or regulation or to vary the application of the zoning bylaw, ordinance, rule or regulation. An appeal may be taken to the zoning board of appeals by any person aggrieved or by any officer, department, board or bureau of any municipality aggrieved and shall be taken within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days, by filing with the zoning commission or the officer from whom the appeal has been taken and with said board a notice of appeal specifying the grounds thereof. Such appeal period shall commence for an aggrieved person at the earliest of the following: (1) Upon receipt of the order, requirement or decision from which such person may appeal, (2) upon the publication of a notice in accordance with subsection (f) of section 8-3, or (3) upon actual or constructive notice of such order, requirement or decision. The officer from whom the appeal has been taken shall forthwith transmit to said board all the papers constituting the record upon which the action appealed from was taken. An appeal shall not stay any such order, requirement or decision which prohibits further construction or expansion of a use in violation of such zoning regulations except to such extent that the board grants a stay thereof. An appeal from any other order, requirement or decision shall stay all proceedings in the action appealed from unless the zoning commission or the officer from whom the appeal has been taken certifies to the zoning board of appeals after the notice of appeal has been filed that by reason of facts stated in the certificate a stay would cause imminent peril to life or property, in which case proceedings shall not be stayed, except by a restraining order which may be granted by a court of record on application, on notice to the zoning commission or the officer from whom the appeal has been taken and on due cause shown. The board shall hold a public hearing on such appeal in accordance with the provisions of section 8-7d. Such board may reverse or affirm wholly or partly or may modify any order, requirement or decision appealed from and shall make such order, requirement or decision as in its opinion should be made in the premises and shall have all the powers of the officer from whom the appeal has been taken but only in accordance with the provisions of this section. Whenever a zoning board of appeals grants or denies any special exception or variance in the zoning regulations applicable to any property or sustains or reverses wholly or partly any order, requirement or decision appealed from, it shall state upon its records the reason for its decision and the zoning bylaw, ordinance or regulation which is varied in its application or to which an exception is granted and, when a variance is granted, describe specifically the exceptional difficulty or unusual hardship on which its decision is based. Notice of the decision of the board shall be published in a newspaper having a substantial circulation in the municipality and addressed by certified mail to any person who appeals to the board, by its secretary or clerk, under his signature in any written, printed, typewritten or stamped form, within fifteen days after such decision has been rendered. In any case in which such notice is not published within such fifteen-day period, the person who requested or applied for such special exception or variance or took such appeal may provide for the publication of such notice within ten days thereafter. Such exception or variance shall become effective upon the filing of a copy thereof (A) in the office of the town, city or borough clerk, as the case may be, but, in the case of a district, in the offices of both the district clerk and the town clerk of the town in which such district is located, and (B) in the land records of the town in which the affected premises are located, in accordance with the provisions of section 8-3d."
I JURISDICTION
Appeals from a decision of a zoning board may be taken to the superior court. General Statutes § 8-8(b). "Appeals to courts from administrative agencies exist only under statutory authority . . . A statutory right to appeal must be taken advantage of only by strict compliance with the statutory provisions by which it is created . . . Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal." (Citations omitted; internal quotations marks omitted.) Office of Consumer Counsel v. Department of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995). CT Page 10544
A. Aggrievement
Aggrievement is a jurisdictional question and a prerequisite to maintaining an appeal. Winchester Woods Associates v. Planning and Zoning Commission, 249 Conn. 303, 307, 592 A.2d 953 (1991); Dibonaventure v. Zoning Board of Appeals, 24 Conn.App. 369, 373, 588 A.2d 244 (1991). "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.) Connecticut Resources Recovery Authority v. Planning Zoning Commission, 225 Conn. 731, 739, n. 12, 626 A.2d 705 (1993). At a court hearing on January 31, 2006, and again at a hearing on March 30, 2006, the attorney for the board stipulated to the fact that at all relevant times, the plaintiff, SL Realty, LLC, was the owner of real property and improvements thereon located at 20 Windsor Avenue, Windsor, Connecticut ("property"). (T., 1/31/06, p. 3.) In addition, the board, in paragraph 1 of its answer to the plaintiff's complaint, admits to the allegations in paragraph 1, which state, "At all relevant times hereto, the plaintiff, SL Realty, LLC, was the owner of real property located at 20 Windsor Avenue, Windsor, Connecticut." Therefore, the ownership of the property is undisputed. The owner of the property which forms the subject matter of the application is always aggrieved. Bossert v. Norwalk, 157 Conn. 279, 285, 253 A.2d 39 (1968); Ziegler v. Thomaston, 43 Conn.Sup. 373, 376, 654 A.2d 392, 395 (1994). The court therefore finds that the plaintiff is aggrieved by the decision of the board.B. Notice
By cease and desist order dated May 5, 2004, (ROR, Item 7), the town of Windsor ZEO directed the plaintiff to discontinue certain activities at the property and to conform the property to an approved site plan. The cease and desist order stated that the plaintiff was in violation of Section 2.4.15(O) of the Windsor zoning regulations by continuing the following activities on the property without a special use permit: (1) storage and sale of used automobiles; (2) operation of an auto detailing business; (3) parking of commercial vehicles which exceed the maximum allowed gross vehicle weight for a B2 zone; and (4) failure to maintain landscaping as required by a site plan. On May 12, 2004, the commission directed that unless something occurred in response to the cease and desist order, the ZEO should bring the complaint to superior court.
Section 2.4.15O of the section on "Special Uses" of the Windsor zoning regulations, entitled "Changes in Existing Gasoline Filling Station Uses" states, "Any change that significantly increases the intensity of existing uses or involves the addition of a use to any existing gasoline filling station shall be considered a special use. (1) In considering such proposed changes the Commission shall take into account: (a) the need for such uses in the Town of Windsor; (b) the size, geometry and location of the site; (c) traffic on streets in the surrounding area and the impact on traffic by the proposed uses(s); (d) compatibility with surrounding development; (e) site and building design and signage changes; (f) any other applicable provision under the Special Use section considered relevant to the public convenience and the protection of the public health, safety and welfare. (2) For existing gasoline filling stations which currently operate with a Repairer's License (not to include a Limited Repairer's License), as defined in Section 14-51 of the Connecticut General Statutes, the Commission may allow the sale of no more than six used cars provided that: (a) no body work or painting takes place on the premises; (b) used cars are displayed in approved parking spaces, which shall be provided at a ratio of one space per used car, in addition to any other required parking spaces; (c) the Commission shall establish a time limit on this use, not to exceed two years."
However, before the ZEO took any action, the plaintiff appealed the issuance of the cease and desist order by letter dated May 17, 2004 to the board. (ROR, Item 8.) The board scheduled a public hearing on the applicant's appeal for June 16, 2004. General Statutes §§ 8-7 and 8-7d require the board to publish notice of its public hearing in a newspaper of general circulation at least twice, at specific intervals prior to the public hearing. This required notice was accomplished on June 4, 2004 and June 11, 2004 in the Hartford Courant. (ROR, Items 1(a), 1(b).)
General Statutes § 8-7 sets forth the requirements for public notice of ZBA hearings on applications for a variance. The plaintiff does not take issue with the public notice given for the initial hearing on June 16, 2004, and indeed, the record reflects that notice was given in the newspaper in accordance with the statute.
The board consists of five members and three alternates with a quorum being four members per Section 5.3 of the bylaws. (ROR, Item 17, p. 3.) Only four members of the board were present on June 16, 2004. Although this comprised a quorum, the plaintiff, pursuant to General Statutes § 8-7, would have had to persuade all four members present to reverse the decision of the ZEO.
The minutes of the June 16, 2004 meeting reflect that the public hearings scheduled for that meeting were called to order. (ROR, Item 14, pp. 1-3.) All applicants and members of the public present were advised by Commissioner Shay, the acting chairwoman, that a unanimous vote to approve or disapprove would be required that evening, and that anyone who chose not to go forward could reappear the following month. Commissioner Cowan then read the procedures for presentation of an application. He then queried the audience for any questions regarding the procedures which were read. Hearing no comments, Commissioner Shay, according to the minutes, declared the hearings proceed. (ROR, Item 14, p. 2.) The first application to be called for the public hearing to proceed was the plaintiff's appeal of the cease and desist order, (Application #04-10). The plaintiff's attorney stated that although he was ready to go forward, he preferred to postpone to the next meeting, or to a special meeting if the board was willing to hold one before the next regularly scheduled meeting. He indicated he would prefer to have five members present at the next regular meeting or earlier if a special meeting could be convened. He then raised another procedural issue, requesting that the ZEO provide him with copies of materials the ZEO intended to rely upon prior to the next regularly scheduled meeting so the plaintiff would have "fair notice" of what was relied upon for the cease and desist order. The ZEO, who was present, indicated he would present any documents upon which he relied prior to the next meeting. Plaintiff's attorney asked that the ZEO call him when those documents were ready so he could pick them up. Although the minutes note no response to that inquiry by the ZEO, the tape recording of the June 16 session reflects that he said he would contact plaintiff's attorney. (ROR, Item 19, 6/16/04 Hearing, Tape 1.) The board then proceeded to take up other hearings that evening. During its business session, when the board members present were advised by the ZEO that he was unavailable for the next regular scheduled meeting of July 21, 2004, they tentatively scheduled a special meeting for July 14, 2004 so long as notice could be accomplished. (ROR, Item 19, 6/16/04 Hearing, Tape 2.)
This is the procedure for commencement of hearings set forth in Section 6.3 of the board's by-laws. (ROR, Item 17, pp. 4-5).
The minutes reflect that at the July 14 hearing, plaintiff's counsel indicated he left the June 16 meeting prior to the business session of June 16. (ROR, Item 15, p. 2.)
Subsequently, the board published a notice on June 22, 2004 in the Hartford Courant that noted that the plaintiff's appeal was postponed at applicant's request to a special meeting on July 14, 2004. (ROR, Item 2(a).) Notice of this meeting also was posted in the office of the town clerk and on the public notice board more than 24 hours prior to the meeting. (ROR, Item 2(b); Item 19, 7/14/04 Hearing, Tape 1; Item 15, p. 5.) This special meeting was scheduled to honor the request of plaintiff's attorney on June 16 for a meeting as soon as possible. On July 14, 2004, the plaintiff appeared through counsel and raised an issue as to the adequacy of the notice for this special meeting. Commissioner Shay indicated that she mistakenly used the word "postponed" at the earlier meeting but the hearing on June 16 had been opened and recessed to July 14 at the applicant's request. In opening the hearing of July 14, Shay stated this was a recessed meeting. After some discussion with its counsel, the board decided it could proceed and that republishing the notice of the special meeting two times, in accordance with General Statutes §§ 8-7 and 8-7d, was not necessary. The plaintiff declined an invitation to reschedule the meeting. (ROR, Item 15, pp. 1-3.)
Section 10.2 of the board's by-laws requires "notice of any special meeting shall be posted in the Town Clerk's office not less than twenty-four hours prior to the commencement of such meeting." (ROR, Item 17, p. 7.)
As one of its grounds for appeal, the plaintiff asserts "the special meeting of July 14, 2004 was improperly or inadequately noticed." (Appeal, ¶ 8g.)
The approved minutes of the June 16th meeting, (ROR, Item 14, pp. 2-3), reference the discussion that occurred on that date under the topic "PUBLIC HEARINGS #04-10:20 Windsor Avenue — Section 2.4.15.O 2) Appeal of Cease and Desist Order — Used Car Sales." It is clear from the record that all the board members believed they had opened the hearing and continued it at the plaintiff's request. As noted herein above, although the board members used the word "postpone" rather than "recess," the June 16 minutes state:
Commissioner Cowan read procedures for presentation of an application. He then queried the audience for any questions regarding the procedures which were read. Hearing no comments, Commissioner Shay declared the hearing proceed. (ROR, Item 14, p. 2.)
"The burden of proving that the notice was defective rests on the persons asserting its insufficiency." Nazarko v. Zoning Commission, 50 Conn.App. 517, 520, 717 A.2d 853, cert. denied 247 Conn. 941, 723 A.2d 318 (1990).
Compliance with a prescribed notice requirement is a prerequisite to a valid action by a zoning commission, and failure to give proper notice constitutes a fatal jurisdictional defect. See Wright v. Zoning Board of Appeals of the Town of New Fairfield, 174 Conn. 488, 491, 391 A.2d 146 (1978); Maher v. Town Planning Zoning Commission, 154 Conn. 420, 425, 226 A.2d 397 (1967). Because a notice of a public hearing is designed to safeguard the public's opportunity to participate, an appellant's voluntary participation in the hearing held by the board neither cured the jurisdictional defect; Schwartz v. Hamden, 168 Conn. 8, 15, 357 A.2d 488 (1975); nor does that participation stop him from raising it after the adverse board decision. Slagle v. Zoning Board of Appeals, 144 Conn. 690, 693, 137 A.2d 542 (1957); Koepke v. Zoning Board of Appeals, 223 Conn. 171, 176-77, 610 A.2d 1301 (1992).
The board published notice of the July 14 public hearing in the office of the town clerk and once in the Hartford Courant.
The plaintiff contends that the board's failure to notice the continuation in the same manner it noticed the first hearing of June 16 deprived the agency of jurisdiction. However, § 8-7 of the General Statutes, which provides the requirement for noticing a public hearing, is silent with respect to notice of a continuation of that public hearing. Any reading of the notice statute, whether it be careful or perfunctory, does not disclose any requirement of additional notice when a public hearing is continued to a subsequent date. Although our Supreme and Appellate Courts have failed to address this issue, courts of our state have held that the statute does not require additional notice publication for continued hearings. "The notice provisions of that section apply only to the initial public hearing and do not apply to the continuation thereof." Carlson v. Fire District Committee and Zoning Commission of Watertown, Superior Court, judicial district of Waterbury, Docket No. CV 99-0254545S (February 5, 2002, Moraghan, J.T.R.) ( 31 Conn. L. Rptr. 355). See also Roncari Industries v. Planning and Zoning Commission, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 02-0812881S (January 13, 2005, Beach, J.) ( 38 Conn. L. Rptr. 568). Notice is adequate if it fairly and sufficiently apprises those who may be affected by it of the nature and character of the action proposed, to make possible intelligent preparation for participation in the hearing. Kleinsmith v. Planning Zoning Commission, 157 Conn. 303, 310, 254 A.2d 486 (1968); Passero v. Zoning Commission, 155 Conn. 511, 514, 235 A.2d 660 (1967), cert. denied, 390 U.S. 1004, 88 S.Ct. 1248, 20 L.Ed.2d 104.
At no time did the plaintiff claim that it was prejudiced in any way by the claimed lack of notice and its attorney declined the invitation to reschedule the July 14, 2004 hearing. In fact, rather than make the plaintiff wait until the next regularly scheduled meeting, a special hearing was convened to accommodate it. The properly noticed June 16 public hearing was opened, there was discussion on the record not only of a postponement but also of an evidentiary issue, and the hearing was recessed until July 14. The plaintiff was fully heard at the June 16 and July 14 hearings. Lay volunteers on zoning boards and commissions are not held to language which would always satisfy the meticulous requirements of legal experts. DeMars v. Zoning Commission, 142 Conn. 580, 115 A.2d 653 (1955).
Although the failure to give the notice required by statute is a defect that affects the jurisdiction of the court, the court is satisfied that the notice requirements of 8-7d of the General Statutes have been satisfied and that no published notice of the continuance of the public hearing was necessary or mandated. See Wright v. Zoning Board of Appeals, 174 Conn. 488, 391 A.2d 146 (1978); Koskoff v. Planning Zoning Commission, 27 Conn.App. 443, 607 A.2d 1146 (1992). The court finds that the July 14, 2004 proceeding was not a new hearing on the plaintiff's appeal from the ZEO, but a continuance of the initial hearing that took place on June 16, 2004, which was not completed and therefore recessed on that date. "Requiring new newspaper publication of notice for a hearing that is continued beyond the original date would place an undue burden on local boards and commissions which as a general practice meet during the evening hours of the work week. There are many conceivable and appropriate reasons for a zoning board of appeals not to complete a hearing on a matter in a single weekday evening. If each continuation of a hearing imposed the necessity of a new newspaper publication schedule, it would severely constrain the scheduling of new dates and slow down the process." See Carberry v. Zoning Board of Appeals, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 00-0176706 (October 16, 2001, Adams, J.) ( 30 Conn. L. Rptr. 537).
C. Timeliness and Service of Process
On July 14, 2004, the board voted to sustain and uphold the ZEO's cease and desist order by a unanimous vote of 5-0-0. Legal notice of the board's decision was published in the Hartford Courant on July 23, 2004. (ROR, Item 16.) The plaintiff filed his appeal in a timely manner. The plaintiff does not contest the publication of that notice, and this court finds that notice of the board's decision was sufficient pursuant to General Statutes § 8-7, which requires notice be published in a newspaper having substantial circulation in the municipality. General Statutes § 8-8(b) requires that an appeal from a decision of a zoning board "shall be commenced by service of process [on the chairperson of the board and the clerk of the municipality] within fifteen days from the date the notice of the decision was published . . ." See General Statutes §§ 8-8(b), (e) and (f). The appeal was timely served on the appropriate parties, the municipal clerk and the chair and acting chairpersons of the board on August 3, 2004.
Consequently, since the court has found that the plaintiff is aggrieved, that all notices were properly given, and this appeal was timely filed and served on the proper parties, this court has jurisdiction.
III Additional Factual and Procedural Background
The record reveals the following facts:
On March 14, 2000 the Town of Windsor Planning and Zoning commission (commission), citing Section 2.4.15O of the zoning regulations, unanimously approved a special use for the property for the sale of no more than four used cars at any give time, with the conditions that the cars offered to the public shall be located at the south side or the property along Sunset Street and parking spaces shall be delineated on the property. (ROR, Items 4(a), 4(b).) As of March 14, 2000, sales of gasoline were occurring on the property, although there was some question as to whether this was its primary use. Id. Although this approval had no express time limit contained in it, Section 2.4.15O(2) requires that a time limit on a special use to sell up to six used cars shall not exceed two years. On June 10, 2003, the commission, acting upon plaintiff's application, reapproved the special use for used car sales subject to different conditions. (ROR, Items 6(a), 6(b).) On that date, there was a motion before the commission to reapprove the special use at the property for used cars sales "under zoning regulation Section 2.4.150," subject to the following conditions: 1) six-month time limit; 2) applicant must make diligent efforts to regain an agreement from a gasoline company to dispense gasoline at the site within six months; 3) applicant must submit a site plan within six months; 4) no more than six cars for sale on the site at any time; 5) resolution of excess truck parking; 6) applicant shall submit a special use application for auto detailing by July 29, 2003 to be scheduled for public hearing in September. This motion passed unanimously. (ROR, Item 6(a).) On October 14, December 9, 2003 and January 13, 2004, the public hearing for special use reapproval for the property was recessed and continued. Id. On December 9, 2003, when the six-month limit ordered on June 10, 2003, was about to expire, the plaintiff requested a 65-day extension, which the commission granted. Id. On February 10, 2004, the commission directed that the two special use applications for the property, used car sales and auto detailing, would be withdrawn without prejudice as requested by the plaintiff with the understanding that the applicant would come back to the commission with a text amendment proposal. Id. On April 12, 2004, the commission directed that the ZEO proceed with enforcement procedures right away and report back to the commission. Id. The record of actions by the commission ends with the fact that the property did not have any existing extensions or reapprovals for a special use to sell or detail automobiles, which became the basis for a cease and desist order. There was never any approval to detail automobiles, and the only approval to sell used cars, approved subject to certain conditions on June 10, 2003, expired upon withdrawal of the two special applications by the plaintiff on February 10, 2004 (and would have expired, absent the withdrawal, on February 13, 2004). The cease and desist order was issued by the ZEO on May 5, 2004, as a result of the commission's directive of April 12, 2004.
Section 2.4.3 states, "Where an existing use which is allowed only as a Special Use is proposed to be extended or substantially altered in a manner that in any way changes the character or intensity of the use, such proposed extension or substantial change or alteration will be treated as a Special Use under this section. Any Special Use that is changed to another Special Use shall require a new application and a public hearing."
There is nothing in the record that supports the ZEO's testimony that the commission took other actions between March 14, 2000 and June 10, 2003. (ROR, Item 15, p. 11.)
The plaintiff appealed from the issuance of the cease and desist order to the board. The initial hearing scheduled for June 16, 2004 was recessed and continued to July 14, 2004. The July 14 hearing commenced with a discussion as to whether or not the ZEO had relayed to members of the board a copy of the site plan for the property and 29 photographs, purportedly evidence of the continuing violations after the issuance of the cease and desist order. The plaintiff objected to the board's consideration of these items as evidence, claiming they had not been submitted to the board "forthwith," as required by General Statutes § 8-7, as part of the record transmitted to the board reflecting what the ZEO relied on in issuing the cease and desist order. He further noted that he had not been supplied with copies of either the site plan or the photographs prior to the meeting, and that he had requested this information at the meeting on June 16. (ROR, Item 14, pp. 2-3.) The only approved site plan for the property, approved in 1970, was marked as an exhibit (ROR, Item 3) and placed on a display board by the ZEO. The relevance of the site plan was to show one of the violations mentioned in the cease and desist order, namely, that the operator or operators of business or businesses on the property were parking vehicles in areas where plantings were supposed to be. The 29 photographs taken after the issuance of the cease and desist order on May 5, 2004, (ROR, Items 11-13), and a letter to the ZEO from the town planning and zoning commission (ROR, Item 10), were marked as additional exhibits over the objection of the plaintiff.
After some extensive discussion, plaintiff's attorney was advised that if he felt prejudiced by not having had the materials to review prior to that night, he could make that known during his presentation and the board would rule whether to allow him or the board extra time prior to making a decision. Subsequently, the ZEO testified at the urging of the chairwoman that he personally viewed all of the violations he cited in the cease and desist order. He stated that he visually examined the location where plantings were supposed to be in accordance with the site plan and observed cars parked there instead. (ROR, Item 15, pp. 15, 25-27.) He later testified that he viewed cars for sale on the property on more than one occasion, witnessed an actual closing on a car sale by the business owner, Mr. Leite, and observed the storing of commercial vehicles — oil trucks belonging to another business — on one occasion prior to the date he issued the cease and desist order. (ROR, Item 15, pp. 15, 27-30.) It is therefore a fair assumption that the board did not rely exclusively on the ZEO's photographs, which he indicated he presented to show that the violations which were the subject of the cease and desist order were still ongoing after the date of its issuance on May 5, 2004. The plaintiff presented no witnesses at the hearing, but did submit exhibits into evidence. During the hearing, the ZEO and Jason Blanchard, the assistant town planner, both testified that the plaintiff did not have a gasoline filling station operating on the property, which it needed to be allowed a special permit under zoning regulation Section 2.4.15O. (ROR, Item 15, pp. 13, 15, 23.)
Following the hearing, the board voted unanimously, 5-0-0, to dismiss the plaintiff's appeal.
On August 6, 2004, after timely service of process, the plaintiff filed this appeal pursuant to General Statutes § 8-8(b), claiming, in paragraph 8, that the board acted illegally, arbitrarily and outside the scope of its authority in denying the plaintiff's appeal in that (a) the board denied the appeal despite the fact that the regulations cited by the ZEO in the cease and desist order do not apply to the plaintiff or its property in abuse of its discretion; (b) the board in denying the appeal acted beyond the scope of the powers set forth in General Statutes § 8-6 and the zoning regulations; (c) the board denied the appeal without any valid reason supported by the record in violation of General Statutes § 8-7 and the Windsor zoning regulations; (d) the board was improperly and unduly influenced by statements, testimony and/or evidence which were outside the record or which should not have been part of the record; (e) one or more members of the board predetermined the merits of the appeal thereby denying the plaintiff a full, fair hearing; (f) the record upon which the board relied as transmitted to the board did not support the finding of the board; (g) the special meeting of July 14, 2004 was improperly or inadequately noticed; (h) the cease and desist order did not adequately identify the property location where the alleged violations occurred; (i) the cease and desist order did not adequately and/or properly identify the "site plan" referred to therein, and therefore it was impossible for the plaintiff to comply with the order; (j) the principal use of the property is a legal, nonconforming use and the storage of automobiles and auto detailing are legally permitted accessory uses to the principal use; (k) the Town of Windsor, acting through the board, is estopped from enforcing the applicable zoning regulations as a result of approving the plaintiff's used car sales permit as submitted to the State of Connecticut Department of Motor Vehicles; (l) the board relied upon information and/or photographs relating to the property which purportedly showed the condition of the property after the cease and desist order was issued; (m) the Windsor Planning and Zoning Commission approved a special use permit for the sale of used automobiles on the property on or about March 14, 2000 without any restriction and/or condition on said approval limiting the time on said use; and (n) the plaintiff is entitled to sell no more than four used automobiles at any given time at the property pursuant to a special use permit under Section 2.4.15(O)(1) of the Windsor zoning regulations. On February 22, 2005, the board filed its answer.
IV Standard of Review
An appeal from an action of a zoning enforcement officer is taken to the zoning board of appeals, which hears and decides the matter de novo. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 88-89, 626 A.2d 744 (1993). Thereafter, a court, in deciding the appeal of the board's decision, must focus on the board's decision and the record before the board. Id., 80. "[T]he same test as applied for judicial review of a special permit or variance would apply to appeals from the zoning board of appeals on its review of the action of the zoning enforcement officer." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (1999) § 33.7, p. 171. "[U]pon appeal, the trial court reviews the record before the [board] to determine whether it has acted fairly or with proper motives or upon valid reasons . . ." (Internal quotation marks omitted.) Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991). When the decision of an administrative agency is challenged, "[t]he burden of proof is on the plaintiff to demonstrate that the board acted improperly." Id. "In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its decision will not be disturbed unless it is found to be unreasonable, arbitrary or illegal." Id. "In appeals from administrative zoning decisions . . . the decisions will be invalidated . . . if they were not supported by `substantial' evidence in that record The substantial evidence standard requires enough evidence to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." (Internal quotation marks omitted.) Kaufman v. Zoning Commission, 232 Conn. 122, 151, 653 A.2d 798 (1995). "The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached . . . The action of the [board] should be sustained if even one of the stated reasons is sufficient to support it." (Citations omitted; internal quotation marks omitted.) Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 697, 628 A.2d 1277 (1993).
V Discussion
In its brief, the plaintiff does not address all of the issues raised in its appeal. The plaintiff has briefed the following issues: (1) whether the public hearing of July 14, 2004 was properly noticed; (2) whether the board considered evidence which was improperly made part of the record upon which the ZEO based his decision, specifically the 1970 site plan, a memorandum from the town planner and photographs; (3) whether the plaintiff had a valid approval from the town for the sale of used cars at the property, and therefore the cease and desist order which notes plaintiff was operating without a special permit for this particular use is not supported by the evidence; and (4) whether the cease and desist order was impermissibly vague in that it failed to allege the specific subsection of the regulation which was allegedly violated and failed to identify the site plan to which the plaintiff allegedly failed to adhere. The court, liberally construing the allegations in the appeal filed on August 6, 2004, finds the issues briefed encompass only the following sections of the claims set forth in plaintiff's paragraph 8: (a), (b), (c), (f), (g), (I), (l), (m) and (n).
As the Supreme Court held in State v. Colon, 272 Conn. 106, 154, fn. 19, 864 A.2d 666 (2004), "Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." Thus, the court will consider only those issues raised in the appeal complaint that have been adequately briefed.
The claim that the notice of the July 14, 2004 hearing was improperly noticed was addressed in Section B of Part I of this decision.
A. Claim That The Board Improperly Considered Certain Evidence
In cases where a decision of a ZEO is appealed to a zoning board of appeals under General Statutes § 8-7, the ZEO must forthwith transmit to the board all documents constituting the record upon which the cease and desist order was taken. Prior to the June 16 hearing, the ZEO transmitted no record to the board. The plaintiff raised this issue before the Board on June 16. At that point, the ZEO agreed he would supply the plaintiff some of the documents he relied upon in issuing the cease and desist order. However, prior to the hearing on July 14, 2004, the ZEO had not provided the plaintiff or the board with the site plan which he claimed had been violated in the cease and desist order or a number of photographs he had taken of the property. At the beginning of the July 14 hearing, the ZEO submitted the site plan and other items to the board, including 29 photographs and a memorandum from the assistant town planner dated May 13, 2004 which were created after the issuance of the cease and desist order. The acting chair of the board, after admitting these items, indicated the board would decide what weight to give them. (ROR, Item 15, p. 11.) Plaintiff claims its due process rights were violated in that the ZEO failed to provide it or the board with the information which formed the basis for his decision in a timely fashion. Whether or not the board received the ZEO's record prior to the hearing does not appear to be a valid reason to sustain the plaintiff's appeal, and the plaintiff cites no authority that has so held. The statute requires a transmittal of the evidence that supports the decision of the ZEO to the board, not to the individual members of the board. To accept the plaintiff's interpretation of the statute, any time there is an appeal of a ZEO's decision, he would have to make copies of all the documents upon which he relied and mail or hand deliver them to all of the members and alternates in advance of the hearing without knowing which members will be seated at the hearing to constitute the board. This would be administratively burdensome and not legally necessary. Furthermore, as the defendant board points out, this practice would actually deprive the plaintiff of the opportunity to be heard and object to evidence before it is reviewed by the board, as all the members present already would have seen it.
Section 6.3 of the board's by-laws provides, "The strict rules of evidence will not apply to these hearings and any type of evidence will be admissible." (ROR, Item 17, p. 5.) The principal procedural limitations on the board's hearing in any matter are that "there must be due notice of the hearing, and at the hearing, no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary or to be fairly advised of the facts upon which the board is asked to act." Caserta v. Zoning Board of Appeals, supra, 226 Conn. 90. On June 16, 2004, the plaintiff's attorney specifically requested to see the photographs and the site plan, which dated back to 1970, before the rescheduled hearing, and the ZEO, in the presence of the board, indicated he would provide them to the attorney. He did not. However, plaintiff's attorney was sent some documents, (ROR, Item 15, p. 6), and he could have contacted the ZEO prior to the hearing to preview or obtain copies of the additional items he had specifically sought at the June 16 hearing. The site plan was the only plan ever approved for the property and was available as a matter of public record. The memorandum from the assistant town planner, the plaintiff claims, was "particularly prejudicial" in that the ZEO indicated he issued the cease and desist order at the direction of the commission. (ROR, Item 15, p. 5.) The court fails to see how this particular memorandum could have influenced the board when the board was advised that the commission previously ordered the ZEO to take enforcement action on April 12, 2004. (ROR, Item 6(a).) All the May 13, 2004 memorandum indicates is that the commission is aware that the cease and desist order had issued, and encourages the ZEO to "continue with the enforcement process." (ROR, Item 6(a).)
Moreover, on July 16, 2004, the plaintiff was offered an additional opportunity to continue the hearing if it felt it had additional evidence to offer in light of the evidence it claimed was presented without fair apprisal. The plaintiff elected to go forward. In light of the circumstances, the court does not find the plaintiff was denied due process of law as a result of the board's consideration of the site plan, the town planner's memorandum or the 29 photographs. Proceedings before a zoning board of appeals are informal. A board is not bound by the strict rules of evidence. It may even act upon facts which are know to it even though they are not produced at the hearing. "The only requirement is that the conduct of the hearing shall not violate the fundamentals of natural justice." Parsons v. Board of Zoning Appeals, 140 Conn. 290, 292-93, 99 A.2d 149 (1953). Due process of law requires that the parties involved have an opportunity to know the facts upon which the board is asked to act, to cross examine witnesses and to offer rebuttal evidence. Pizzola v. Planning Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974).
Between the date of the issuance of the cease and desist order, May 5, 2004, and the public hearing on July 14, there was considerable time for the plaintiff to seek clarification and amplification of the order, which it did not request. Plaintiff also had ample opportunity to be heard, to submit evidence, to question witnesses and to offer rebuttal evidence "It is generally a simple matter to obtain a copy of an approved site plan on file in a land use office." Coyle Realty v. Hamden Zoning Board of Appeals, Superior Court, judicial district of New Haven at New Haven, Docket No. CV99-0424018 (June 26, 2000, Downey, J.). Both the ZEO and Blanchard responded to a number of questions from the board. The plaintiff was provided ample opportunity to cross-examine the ZEO, who testified as to his visual observations of the violations at the property prior to his issuance of the cease and desist order. The plaintiff also had opportunity to pose questions to the assistant town planner, Blanchard. The plaintiff also was allowed to submit additional evidence of its own.
Our Supreme Court has "recognized a common-law right to fundamental fairness in administrative hearings. The only requirement . . . is that the conduct of the hearing shall not violate the fundamentals of natural justice . . . Fundamentals of natural justice require that there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary . . ." (Citations omitted; internal quotation marks omitted.) Grimes v. Conservation Commission, 243 Conn. 266, 273-74, 703 A.2d 101 (1997). "[T]he use of improper evidence requires a remand only if a party has affirmatively shown substantial prejudice . . ." Connecticut Natural Gas Corporation v. Public Utilities Control Authority, 183 Conn. 128, 139, 439 A.2d 282 (1981); Eleven High Street v. Zoning Board of Appeals Town of Suffield, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 00 0800065 (November 30, 2001, Maloney, J.). The plaintiff declined to take advantage of the considerable latitude offered to it by the board, and presented little evidence of its own in support of its appeal from the cease and desist order, primarily because it was relying on procedural and legal issues, rather than facts. The court does not find that the board's consideration of the objected to evidentiary items substantially prejudiced the plaintiff.
B. Claim That The Cease and Desist Order Was Vague and Confusing
The plaintiff claims the cease and desist order cited "inapplicable" regulations and did not describe the site plan fully. It argues that the wrong subsection of a particular regulation, Section 2.4.15O, was applied.
Plaintiff did not brief the claim that the cease and desist order failed to adequately describe the property.
First, there was only one approved site plan in existence and it doesn't appear that the plaintiff was misled into believing that some other property, if any, it might have owned in the town was the subject of the order. As noted earlier, it would not have been difficult for the plaintiff to obtain a copy of the referenced site plan prior to the hearing. The apparent lack of precision in the cease and desist order is a bit disconcerting to the court. Two of the four violations, although referenced as violations of § 2.4.15O of the zoning regulations, actually have nothing to do with the special use permit regulation. However, the plaintiff has not addressed the issue of the alleged violation involving the parking of commercial vehicles, presumably because it indicated at the July 14 hearing that that particular violation had been remedied; the commercial trucks had been moved somewhere else. (ROR, Item 15, p. 30.) Plaintiff also has not addressed the issue of the alleged site plan violation that cars were being parked where there were supposed to be plantings, which plaintiff admitted was not hard to remedy. (ROR, Item 15, p. 29.) The one claim the plaintiff addresses, that the cease and desist order was inaccurate in stating that the plaintiff was engaging in used car sales without a special permit in violation of the zoning regulations, is addressed in the discussion below.
C. Claim That the Plaintiff Had A Valid Special Permit to Sell Used Cars On the Property
As noted earlier, the plaintiff did not brief its claim in paragraph 8(j) of its appeal that the auto detailing business on the property, cited in the cease and desist order as the second violation, was operating legally as an accessory use. In fact, its attorney advised the board at the July 14 hearing that this operation was "in the process . . . of being removed from the premises." (ROR, Item 15, p. 32.)
General Statutes § 8-2 explicitly enables the use of a special exception or special permit, as it is interchangeably known. "A special [permit] allows a property owner to use his property in a manner expressly permitted by local zoning regulations . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values . . . An application for a special permit seeks permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district . . . When a special permit is issued, the affected property may be allowed an exception to the underlying zoning regulations, but it continues to be governed in the same manner as provided in the overall comprehensive plan . . ." Smith Bros. Woodland Management, LLC v. Planning Zoning Commission, 88 Conn.App. 79, 82-83, 868 A.2d 749 (2005).
The plaintiff argues that it had a valid special permit to sell no more than four used cars on its property because the commission, on March 14, 2000, issued it a special permit under subsection (1) of zoning regulation Section 2.4.15O, and that subsection contains no time restriction. Thus, it maintains that although the commission granted it a temporary special use in 2003 for the sale of six used cars under subsection (2) of the same regulation, when the plaintiff withdrew its application for the sale of six cars in February of 2004, the March 14, 2000 special permit for four cars remained in effect. Plaintiff claims the 2000 special permit never expired and was never superseded by the 2003 permit.
The board argues that which subsection of Section 2.4.15O applies to whichever permit existed as of the date of the issuance of the cease and desist order on May 5, 2004 is irrelevant. The real crux of the violation, the board maintains, is not the number of used cars the plaintiff had for sale at any one time, but that both subsections (1) and (2) of the zoning regulations require there be an active gasoline filling station on the property, and the plaintiff had no active gasoline filling station on the date the cease and desist order was issued by the ZEO. In fact, it had not sold gasoline for quite some time on the property, in derogation of the zoning regulations. Prior to the issuance of the cease and desist order, the plaintiff had been endeavoring to resolve issues with the town and was attempting to submit a new site plan and also actively seeking a new arrangement with an oil company so it could resume selling gasoline on the site. (ROR, Item 15, pp. 12-13.) Clearly, the board argues, the plaintiff knew it had to have the ongoing sale of gasoline occurring on its premises in order to continue with any other activities allowed for gasoline stations as special uses pursuant to Section 2.4.15O of the zoning regulations, regardless of the subsection under which any special permit was issued. The board claims the plaintiff also was aware that there may have been a need to seek approval of a new site plan in light of the additional activities it was proposing to operate on the site. For about 8 months, the plaintiff had been granted extensions of its 2003 special permit in order to bring itself back into compliance with the regulation. Its lack of conformity, the board argues, was obviously known to the plaintiff's principals.
The lack of conformity also should have been obvious to the town planning and zoning commission, which despite the lack of any gasoline sales at all, permitted the plaintiff to sell up to 6 used cars under certain conditions from 2003 to 2004. This time-limited permission, first granted on June 10, 2003, and subsequent extension, granted on December 9, 2003, appear to have been illegal. Allowing a use by special permit which the regulations do not permit is illegal. WATR, Inc. v. Zoning Board of Appeals, 158 Conn. 196, 200, 201, 257 A.2d 818 (1969). The agency issuing a special permit does not have the authority to ignore or vary limitations on special permits contained in the regulations. Gregorio v. Zoning Board of Appeals, 155 Conn. 422, 429, 232 A.2d 330 (1967) (separation distance between gasoline filling stations prevented special permit). R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1999), § 22.17, pp. 507-8. In addition, the commission added conditions unauthorized by the regulation itself, and not warranted to "protect the public health, safety, convenience and property values," by allowing the continuation of the auto detailing business. See General Statutes § 8-2.
The board, at the conclusion of the July 14 hearing, unanimously voted to uphold the cease and desist order. The board did not formally state any reasons for its decision. The trial court must therefore search the record for reasons supporting the board's decision. Connecticut Resources Recovery Authority v. Planning and Zoning Commission, 225 Conn. 731, 743, 626 A.2d 705 (1993). A search of the record reveals substantial evidence to conclude that the March 14, 2000 special use permit had expired and the time-limited special use sought by the plaintiff and granted by the planning and zoning commission on June 10, 2003, expired in February of 2004, leaving the plaintiff with no special use permit whatsoever. (ROR, Item 15, pp. 14, 41.) The ZEO and the assistant town planner consistently testified that the issuance of the cease and desist order was not because the plaintiff was violating a valid special use permit, but because it was operating without one. (ROR, Item 15, pp. 13, 17.)
Accordingly, the cease and desist order was accurate. It cited the plaintiff for operating its used car sales without a special permit. The board's argument that the cease and desist order should be upheld because the plaintiff violated the special permit ordinance by not having an operating gasoline filling station on the premises, an underlying requirement to the granting of a special use permit to sell used cars under Section 2.4.15.O, as "[a]ny Special Use permitted [under Section 2.4.15] shall comply with all applicable requirements of this section and with any other requirements specifically imposed in connection with the specific Special Use," is inapplicable. Moreover, the Windsor zoning regulations provide for a different procedure to rescind a special permit in Section 2.4.9, which states, "Failure to comply with any imposed condition or safeguard shall constitute a violation of these Regulations. If a condition or safeguard is not complied with within three months after a notice of noncompliance by the Zoning Enforcement Officer, the Special Use may be rescinded by the commission after a public hearing." If the board had relied on the fact that there was no gasoline filling station being operated, despite the existence of a valid special permit to sell used cars, the appropriate procedure for noncompliance with the requirements or conditions of a special use permit would not have been followed.
The plaintiff maintains that the board relied on or misinterpreted the regulation cited by the ZEO, and applied the wrong subsection of the regulation to the situation.
A zoning board of appeals has the authority to interpret the town's zoning ordinance and decide whether it applies in a given situation. Molic v. Zoning Board of Appeals of Town of Redding, supra, 18 Conn.App. 165. Although the court, on appeal, is not bound by the board's interpretation, the question is whether the zoning board of appeals correctly interpreted the ordinance and applied it with reasonable discretion to the facts. Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590, 593 (1991); Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560, 236 A.2d 96 (1967). In interpreting a zoning regulation, a court applies the same principles of construction as are applied to a statute. Smith Bros. Woodland Management, LLC v. Planning Zoning Commission, supra, 88 Conn.App. 86; Raymond v. Zoning Board of Appeals, 76 Conn.App. 222, 234, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003). When interpreting the ordinance, the court must attempt to discern the intent of the legislative body as shown by the words of the regulation, applying common sense and assuming that a rational and reasonable result was intended. Spero v. Zoning Board of Appeals, supra, 217 Conn. 441.
The plaintiff argues that the authorization for the sale of up to four used cars was pursuant to subsection (1), not subsection (2) of the zoning regulation, Section 2.4.15O. However, subsection (1) describes no specific uses. It merely states what factors the commission is to consider in granting changes to existing gasoline filling stations uses. Subsection (2) of the regulation, however, specifically addresses the allowance of used cars sales permits for up to six cars for sale at a gasoline station at any given time. This clearly and unambiguously encompasses any number of cars for sale less than six, including the four the plaintiff was permitted to have in 2000. The plaintiff's reliance on its lack of a repairer's license as not implicating subsection (2) is not convincing, since the commission ignored not only that specific requirement of the regulation, but at least one other, the lack of any existing gasoline sales, in granting the plaintiff special permits. In fact, as discussed previously in footnote 8 of this decision, the fact that the plaintiff never had a repairer's license may have rendered even the initial 2000 permit, the one the plaintiff maintains is still in effect, illegal.
In interpreting a zoning regulation or other local legislative enactment, the court must look for the expressed intent of the legislative body in the language it used to manifest that intent. If it is clear and unambiguous on its face, the court looks no further. Planning Zoning Commission v. Gilbert, 208 Conn. 696, 705, 546 A.2d 823 (1988). The language of zoning regulations will be construed so that no clause is deemed superfluous, void or insignificant. Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 594, 601, 539 A.2d 101 (1988). When construing a zoning regulation, the primary goal of the court is to ascertain and give effect to the intent of the local legislative body as expressed in the regulation as a whole. The court is not to engage in a microscopic examination of the regulations in an attempt to uncover technical infirmities and render the regulations ineffective. Id.; Silver Lane Pickle Co., v. Zoning Board of Appeals, 143 Conn. 316, 319, 122 A.2d 218 (1956).
It is a basic tenet of statutory construction that a more specific provision governs over one that is more general. "Where there are two provisions in a statute, one of which is general and designed to apply to cases generally, and the other is particular and relates to only one case or subject within the scope of a general provision, then the particular provision must prevail . . ." (Citations omitted.) Kelley v. Dewey, 111 Conn. 281, 292, 149 A. 840 (1930); see also Greenwich v. Connecticut Transportation Authority, 166 Conn. 337, 341, 348 A.2d 596 (1974).
A search of the record convinces the court that the board agreed with the position of its ZEO and the town planner that no special permit for the property existed as of May 5, 2004, the date the cease and desist order was issued. The board's determination that subsection (2) of the regulation, Section 2.4.15O, is applicable to this case is supported by substantial evidence in the record and a plain reading of the regulation. Since subsection (2) contemplates special permits approved for existing gasoline stations for the sale of up to six used cars, it is that subsection which applies to permitting the sale of any number of used cars by an existing gasoline station, from one up to six. The board's conclusion was not unreasonable, arbitrary or illegal.
On the basis of the evidence submitted and a reasonable interpretation of the applicable regulation to the facts, the board found that the 2000 special permit had a two-year time limitation on it, which had expired, prompting the plaintiff to seek a reapproval. Subsequently, when the plaintiff withdrew his application for reapproval and sought no further extensions in 2004, it was appropriate for the board to make the determination that the plaintiff was thereafter engaging in the sale of used cars without a special permit.
"Zoning boards of appeal are entrusted with the function of deciding, within prescribed limits and consistent with the exercise of a legal discretion, whether a regulation applies to a given situation, and the manner of its application." Molic v. Zoning Board of Appeals of the Town of Redding, supra, 18 Conn.App. 165; Connecticut Sand Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442, 190 A.2d 594 (1963). "In discharging this responsibility, a board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal." Id.
Conclusion CT Page 10564
The plaintiff has not met its burden of demonstrating that the board acted improperly in deciding to sustain the cease and desist order. See Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988). The decision of the board was not unreasonable, arbitrary and illegal because the plaintiff had no valid special use permit to sell used cars on is property in accordance with the applicable zoning regulation, Section 2.14.5O. The court finds the board correctly interpreted its regulations and appropriately applied them with reasonable discretion to facts supported by substantial evidence in the record. See New London v. Zoning Board of Appeals, 29 Conn.App. 402, 405, 615 A.2d 1054 (1992).For the foregoing reasons, the appeal is dismissed and the decision of the board is sustained.