Opinion
KNLCV156023972S
11-15-2016
Clifford Slater v. Town of Preston Zoning Board of Appeals
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Susan B. Handy, J.
I. STATEMENT OF THE APPEAL
The plaintiff, Clifford Slater, appeals from the decision of the Town of Preston Zoning Board of Appeals (ZBA) to deny his appeal from the Zoning Enforcement Officer's (ZEO) refusal to issue him a zoning compliance letter that was necessary to obtain a corresponding building permit that would allow for the installation of a deck, awning, and sunroom as accessories to his camper, located on lot no. 398, Strawberry Park, 42 Pierce Road, Preston, Connecticut.
II. FACTUAL AND PROCEDURAL BACKGROUND
Most of the facts are not in dispute and are as follows. The plaintiff owned lot no. 398 in a recreational campground named Strawberry Park. On April 14, 2014, Strawberry Park Properties, LLC, on the plaintiff's behalf, applied for a building permit to install a new deck, hard awning, and a Durabuilt sunroom as an accessory to the plaintiff's camper. That permit was issued on June 30, 2014. (Return of Record [ROR], Ex. 1.) The paperwork for the sunroom, which was submitted with Mr. Slater's application, described the addition as a portable and noninvasive system. (ROR, Ex. 3, pp. 11-13.) Sometime subsequent to that date, the plaintiff proceeded to construct the deck described in the permit, but did not comply with the requirements of the permit as to the sunroom. The plaintiff did not construct a Durabuilt sunroom as provided for in the permit, but instead erected a stick built sunroom.
On July 30, 2014, the town's building official sent the plaintiff a letter stating that she had declined to inspect the deck and sunroom as the construction was not in compliance with the building permit that had been issued. (ROR, Ex. 3, p. 14.) On August 20, 2014, the ZEO issued a cease and desist order, which stated that Mr. Slater was in violation of § § 2.3 and 2.3.5 of the Preston Zoning Regulations as follows: " [Section] 2.3 you are erecting and enlarging said structure without a zoning permit; your permit was denied. [Section] 2.3.5 your addition does not comply with regulation 15.11.13, which states campsites may be occupied by a tent or camper unit, but not by any permanent TYPE of building." (ROR, Ex. 2.) The plaintiff appealed this cease and desist order to the ZBA, which was received on September 10, 2014. (ROR, Ex. 3.) This first appeal was docketed on the ZBA's agenda for November 10, 2014. After extensive discussion on the record with an opportunity for all parties to be heard, the hearing was continued until the December meeting to give the plaintiff an opportunity to file an amended permit application. (ROR, Ex. 24, p. 89.)
It should be noted that on July 10, 2014, the plaintiff filed an amended permit application seeking to add a bathroom to the sunporch, which was denied on July 14, 2014, by the town's building official and is not the subject of this appeal. (ROR, Ex. 3, p. 15.)
The plaintiff filed an amended and revised application for a residential zoning permit and a building permit, dated November 11, 2014, which described the work as " installation of new deck, hard awning and sunroom . . . addition as accessory to park model/campground use." (ROR, Ex. 4, pp. 3-4.) The new application did not describe the construction materials of the sunroom. That zoning permit application was denied by the ZEO on December 3, 2014. (ROR, Ex. 5.) Based on the ZEO's denial of the zoning permit, the building permit application was denied by the town's building official on December 4, 2014. (ROR, Ex. 6.) The ZEO's denial of the zoning permit was appealed to the defendant ZBA by letter dated December 11, 2014. (ROR, Ex. 7.)
Letters were exchanged between the town's building official and Mr. Slater between November 20, 2014 and November 25, 2014, regarding an incomplete building permit application. (ROR, Ex. 8 and 9.) That is not the subject of this appeal, despite that some information in the defendant's response is part of the defendant's argument on appeal. Rather the ZEO's denial of the zoning permit forms the basis of the plaintiff's appeal to this court.
The appeal of the denial of the plaintiff's amended zoning application commenced on December 8, 2014. (ROR, Ex. 25.) At that time, the plaintiff's September 10, 2014 appeal from the August 20, 2014 cease and desist order issued by the ZEO was still pending and was tabled. (ROR, Ex. 25, pp. 49-53.) The hearing on the ZEO's denial of the amended zoning application was continued to January 12, 2015. (ROR, Ex. 26.) At that meeting, the plaintiff's September 10, 2014 appeal was unanimously denied as the ZBA members felt that Mr. Slater neither obtained a zoning permit nor a building permit allowing for what was actually built. (ROR, Ex. 26, pp. 2-4.) The ZBA also scheduled a public hearing on the plaintiff's second appeal for February 9, 2015. (ROR, Ex. 26, pp. 4-7.) At the March 9, 2015 ZBA meeting, the ZBA accommodated the plaintiff's counsel's request that the matter be continued. (ROR, Ex. 27, pp. 4-5.) At the April 13, 2015 ZBA hearing, the plaintiff's appeal was denied, with three members voting to approve the plaintiff's appeal and one abstention. (ROR, Ex. 28, pp. 52-54.) Notice of the ZBA's decision was published on April 23, 2015, in the Norwich Bulletin . (ROR, Ex. 31.)
It is from this denial that the plaintiff now appeals. A court hearing was held on the appeal, which was commenced on August 24, 2016, and completed on September 7, 2016. All parties were present and had the opportunity to be heard. On October 4, 2016, the court communicated with counsel via telephone conference, at which time the court requested that the record be amended to include the publication of the ZBA's decision at the April 13, 2015 hearing. That document was added to the record on that same date. (ROR, Ex. 31.)
III. LAW AND DISCUSSION
A. AGGRIEVEMENT
" [P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007). " Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." (Internal quotation marks omitted.) Id., 400. It is well established that a party may be aggrieved for purposes of an appeal by virtue of a person's status as a property owner. Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 671, 899 A.2d 26 (2006). See also Bossert Corp. v. Norwalk, 157 Conn. 279, 285, 253 A.2d 39 (1968). A plaintiff may prove aggrievement by testimony at trial; Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or " by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
At a hearing before this court on September 7, 2016, the plaintiff testified that he executed a conditional sales agreement with Strawberry Park Management LLC, a common interest community located in Preston, Connecticut, for lot no. 398 on October 19, 2013. (Pl.'s Ex. 1.) That agreement was subject to payment of the deposit and balance; (Pl.'s Ex. 2); as well as payment of the association dues, all of which the plaintiff has paid. (Pl.'s Ex. 3, 4.) Accordingly, the court finds that the plaintiff is aggrieved.
B. TIMELINESS OF THE APPEAL
Pursuant to General Statutes § 8-8(b), an " appeal shall be commenced by service of process in accordance with subsections (f) and (g) within fifteen days from the date that notice of the decision was published as required by the general statutes." Section 8-8(f) provides in relevant part: " Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows: . . . (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57." General Statutes § 52-57(b) provides that " [p]rocess in civil actions against the following described classes of defendants shall be served as follows: . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
Notice of the ZBA's decision was published in the Norwich Bulletin, a newspaper of general circulation in the town of Preston, on April 23, 2015. (ROR, Ex. 31.) The plaintiff commenced this appeal on May 5, 2015, twelve days from the date of publication and within the fifteen-day statutory mandate, by service of process upon the ZBA on that same date, by in-hand service on the Preston Town Clerk, by leaving two copies of the appeal with said clerk. (Marshal's Return, Docket Entry No. 100.32.) Accordingly, the court finds that the service of process was proper and timely and that the court has subject matter jurisdiction over this appeal.
C. SCOPE OF REVIEW
" The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations . . . It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Citations omitted; internal quotation marks omitted.) R& R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).
The court cannot substitute its discretion for the liberal discretion which the legislature has conferred on zoning boards of appeal. Gordon v. Zoning Board, 145 Conn. 597, 604, 145 A.2d 746 (1958). The court may, however, grant relief when it can be shown that the zoning board acted arbitrarily or illegally and consequently, has abused its authority. Id. The plaintiff has the burden of proving that the defendant zoning board acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988). If the zoning board has failed to state on the record the reasons for its decision, the court must search the record to discover if sufficient reasons exist to support the decision appealed from. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988). " If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Citations omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004). This applies where the agency has rendered a formal, official collective statement of reasons for its action. Protect Hamden/North Haven From Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 544, 600 A.2d 757 (1991). " In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record." Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-60, 916 A.2d 5 (2007). " [T]he decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . ." (Internal quotation marks omitted.) Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547, 684 A.2d 735 (1996).
D. THE ISSUES
1. THE WOOD CONSTRUCTED SUNROOM
As previously noted, the ZEO declined to issue a zoning permit to the plaintiff, having determined that the sunroom that he constructed was permanent in nature, and consequently in violation of the town's zoning regulations. (ROR, Ex. 5.) Since a zoning board's review of an action by a zoning enforcement officer or zoning commission is de novo, a reviewing trial court should focus on the ruling of the zoning board and the record before it, rather than any action taken by a zoning enforcement officer or zoning commission. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 90-91, 626 A.2d 744 (1993).
The plaintiff argues that the wood constructed sunroom is not a violation of § 15.11.13 of the town's zoning regulations, which provides the following: " Camp sites may be occupied by a tent or camper unit, but not by any permanent type of building." (ROR, Ex. 29, p. 91.) The defendant counters that since the plaintiff's sunroom is made of wood and nails, unlike a Durabuilt sunroom, it is not easily moveable, and thus, is permanent in nature, and as a result, violates the town's zoning regulations.
" Building" is defined in the regulations as follows: " Any structure having a roof and intended for the shelter, housing or enclosure of person, animals, poultry or materials." (ROR, Ex. 29, p. 116.) The regulations do not, however, define the term " permanent." Consequently, the term shall be construed according to its usual and natural meaning. Stone Krete Construction, Inc. v. Eder, 280 Conn. 672, 677-78, 911 A.2d 300 (2006). " To ascertain the commonly approved usage of a word, we look to the dictionary definition of the term." Avery v. Medina, 151 Conn.App. 433, 442, 94 A.3d 1241 (2014). " [W]hether . . . a term is ambiguous turns on whether it has varying definitions in common parlance." Remillard v. Remillard, 297 Conn. 345, 355, 999 A.2d 713 (2010). " The words used in zoning ordinances are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms." Coppola v. Zoning Board of Appeals, 23 Conn.App. 636, 641, 583 A.2d 650 (1990). The court is not bound by the legal interpretation of the ordinance by the town. See Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152-53, 543 A.2d 1339 (1988). Both parties use various texts to define the word " permanent, " and those alternate definitions do not vary greatly. Ballentine's Law Dictionary (3d Ed. 1969) defines " permanent" as " [t]o continue indefinitely"; while Black's Law Dictionary (4th Ed. Revised) construes " permanent" as " fixed or intended to be fixed . . . not temporary or transient." Webster's Third New International Dictionary (2002) defines the word as " without fundamental or marked change; not subject to fluctuation or alteration, fixed or intended to be fixed; lasting; stable."
Both the plaintiff and the defendant cite Avery v. Medina, supra, 151 Conn.App. 433. The plaintiff claims that Avery is distinguishable from the case before the court, while the defendant ZBA claims that Avery supports its position. The relevant part of Avery dealt with a stone wall that had been constructed bordering the homeowner's property. The wall was about 200 feet by 100 feet in length, 3 feet high, had two large, 6-foot-high stone pillars, a large wooden fence attached to one of the pillars, and a 1.5-foot fence attached to the top of the wall. Id., 446-47. Many of the rocks used in constructing the wall were quite large. Id., 447. The wall was determined to be " large, heavy, and immobile" --and " even if the [trial] court did not credit the evidence . . . that the wall had a concrete core, gravity would affix this wall, with its pillars and fencing, to the ground." Id. The property owners clearly intended that the wall remain " firmly in the same place where it was erected and [not be] moved or relocated on a seasonal basis." (Internal quotation marks omitted.) Id.
In contrast to Avery, the plaintiff argues that the sunroom here is much smaller in size, could easily be removed, and is not fixed to the camper, but rather to a deck, which itself is not affixed to the ground. The defendant ZBA argues that, like Avery, a structure does not need to be affixed to the ground to be permanent. " [O]bjects need not be embedded in the ground to be deemed physically attached to the land." Historic District Commission v. Hall, 282 Conn. 672, 683, 923 A.2d 726 (2007). " There also can be no doubt that gravity may serve the similar purpose of 'affixing' a very heavy object to the land . . ." Id., 681. Like Avery, the ZBA argues that despite the fact that the sunroom is affixed to a deck that is not affixed to the land, a wooden structure comprised of wood and nails is permanent in nature and not mobile.
The Avery court applied the following standard: " [T]he appropriate analytical approach to the question [of whether a structure is permanent] . . . is a fact specific one . . . [A] court, in considering whether a given structure is permanent in nature, should evaluate a variety of factors, including--but not limited to--the structure's size, weight, durability, stability and mobility." Avery v. Medina, supra, 151 Conn.App. 444. According to the plaintiff's testimony, the wood constructed sunroom can be removed. (ROR, Ex. 24, pp. 34, 35, 38.) Unlike the stone wall in Avery, which due to its sheer size and weight was intended to be permanent, this sunroom, built as an accessory to a camper in a recreational campground on a deck that itself is not permanent in nature, cannot logically be deemed to be permanent simply because of the wooden materials with which it was built. While it is true that a Durabuilt sunroom attached with screws may be easier to remove and reattach, there is no reason that a wooden sunroom could not also be removed, albeit with a bit more effort. It is difficult for this court to conclude that a sunroom--attached to a deck that is not permanent--is permanent in nature because of its wooden makeup.
In the case of Zirensky v. Carnegie Hill Capital Asset Management, LLC, 139 Conn.App. 706, 708-09, 58 A.3d 284 (2012), the defendant erected a playscape partially upon an area of land over which the plaintiff had an easement, the terms of which prohibited construction of any permanent structure erected in the easement area. That structure consisted of swings, slides, ladders, and towers, with a base unit weight of 1759 pounds, was 48.5 feet long, 22.5 feet wide and 14.5 feet high, and was described as rivaling the size and play activities of park and school commercial playgrounds. Id., 710, 719 n. 15. The plaintiff sued the defendant for the erection of the playscape in violation of the terms of the easement. The issue before the court was whether the structure was permanent in nature. Id., 719. The defendants argued that it was not permanent because it was not affixed to the land. Id., 721 n.7. Again, the court conducted a fact specific analytical approach to this question--looking at " the structure's size, weight, durability, stability and mobility." Id., 720. " Only after weighing such factors may a court render a factual finding as to whether the structure at issue is a permanent one." Id. The trial court concluded that the significant size and weight of the " Monster Double Whammy" play system and the fact that it had firmly remained in the same place where it was erected made it a permanent structure in violation of the terms of the easement, and the Appellate Court upheld such conclusion. Id., 721. The structure was billed by the manufacturer as " built like a tank" and came with a lifetime guarantee. Id., 720-21.
Conducting the same fact specific analytical approach to this case as was done in Avery and Zirensky, the court relies on the following. The sunroom is made of wood. It is built as an accessory use to a camper in a recreational campground. The sunroom is attached to a wooden deck. The deck is not attached to the ground. While the court concedes that a structure does not have to be affixed to the ground to be permanent, the sunroom here is not of such a size or weight so as to render it immobile like the wall described in Avery or the playscape in Zirensky . Those two structures were built with the intent that they would remain permanently fixed where placed. The plaintiff testified during the many hearings on this matter that he could remove the sunroom by cutting it in pieces and taking it down. " My room--you take a Dura-Bilt room, you gotta unscrew the--take the roof off and everything else to pull the unit away. My room is not attached to the trailer. The only thing attached to my trailer is the plywood with about 25 screws. If I pulled the rubber roofing back, took 25 screws out, I could move my trailer." (ROR, Ex. 24, p. 54.) While this may be less practical then unscrewing metal sheets from a Durabuilt sunroom, it does not render the wooden sunroom immobile.
Finally, there are no legitimate reasons on the record to support any reliance on the ZEO's determination not to issue a zoning permit in this matter. The ZEO relies on a " silent regulation, " not found in the town's zoning regulations, but rather a rule established because " [i]t's been done like that for years"; (ROR, Ex. 24, p. 13); and was previously imposed by Strawberry Park itself. (ROR, Ex. 28, p. 14.) The ZEO's decision seems to rest solely on this: sunrooms in Strawberry Park have always been Durabuilt, and therefore, the only acceptable sunroom the plaintiff can build must also be Durabuilt. Evidence uncovered during the hearing revealed that this conclusion is derived from Strawberry Park's former owner's relationship with the Durabuilt manufacturer, who provided the former owner with what is akin to a " financial kickback" for every Durabuilt sunroom ordered for campers in Strawberry Park. (ROR, Ex. 10; Ex. 28, p. 14.) In a written communication from the park, the current manager, Eduard Mayer, wrote the following: " In fact, we approve the custom built addition constructed out of wood, like Mr. Slater's, so long as it is in compliance with the necessary zoning provisions . . . In summary, the Park approves Mr. Slater's wood constructed addition as an addition to his Park Unit . . ." (ROR, Ex. 10.) It appears that the " silent regulation" that the ZEO relied on and the ZBA affirmed is a non-existent park rule. The ZEO's only other analysis was through her statement at the hearing: " anything constructed that's constructed with wood frame cannot be easily taken apart and reassembled, period." (ROR, Ex. 25, pp. 13-14.) The ZEO's position was intractable:
[The Plaintiff's Counsel]: And they'd be in violation because--
[Zoning Enforcement Officer]: They're permanent.
[The Plaintiff's Counsel]:--they're a permanent type of building because they're made out of wood?
[Zoning Enforcement Officer]: Yes.(ROR, Ex. 25, p. 45.)
The court has searched the record and can find no reasons why the ZBA voted to uphold the ZEO's position denying the plaintiff a zoning permit, which in turn caused the denial of the necessary building permit. In fact, in the deliberations phase of the hearing, the following short colloquy took place:
As previously noted, the vote in this matter was three in favor of sustaining the plaintiff's appeal and one abstention. The abstention came from the chairman of the ZBA, and the court can find nothing in the record, save the reasoning of the ZEO, to formulate the chairman's abstention. Without the four necessary votes, the plaintiff's appeal failed.
THE CHAIRMAN: Old business. ZBA 2015-001. Clifford Slater appeal of ZEO decision. Does somebody want to make a motion? Is there some discussion you want to have before you even make a motion?
BOARD MEMBER MORALES: I'm new to this, so I don't know what it is we're supposed to ask at this time, so I'll just--I'll allow someone else to take the lead on this.
THE CHAIRMAN: Okay.
BOARD MEMBER MORALES: Is this when we make decisions on these requests?
THE CHAIRMAN: Yeah. Now is the decision time, although we could put it off to the next meeting if you want to, but I don't think the facts are going to change. I would just as soon get on with it.
BOARD MEMBER MORALES: On ZBA 2015-001, I approve it. I'm in favor of it. If you're looking for my opinion, that's my opinion.
THE RECORDER: Is that a motion?
THE CHAIRMAN: Yeah, want to make a motion to that effect?
BOARD MEMBER MORALES: Yeah, I make a motion to approve it, yes.
THE CHAIRMAN: Okay.
BOARD MEMBER MORAN: I'll second it.
THE CHAIRMAN: Okay. Any discussion? Okay, then we'll vote. All in favor?
BOARD MEMBER MORALES: Aye.
BOARD MEMBER MORAN: Aye.
BOARD MEMBER BOWLES: Aye.
THE CHAIRMAN: Opposed? Abstained?
THE RECORDER: John, you abstained. Okay.
THE CHAIRMAN: I think that means it doesn't pass. Is that correct?(ROR, Ex. 28, pp. 52-54.)
Since this was the plaintiff's appeal from the ZEO's refusal to issue a zoning permit that would have enabled the plaintiff to procure a building permit for the wooden sunroom, the court must assume that " I approve it. I'm in favor of it." means the motion is to sustain the plaintiff's appeal and reverse the ZEO's decision.
" John" is John Moulson, the chairman. (ROR, Ex. 28, p. 1.)
This was the entire extent of the ZBA's deliberations on the plaintiff's appeal. As is evident, there were no reasons placed on the record regarding each respective board member's decision, and this court, as is required in such situation, has searched the record for some basis to support those decisions. See Grillo v. Zoning Board of Appeals, supra, 369. The court is unable to find any reasons in the record apart from the discussion regarding the ZEO's reliance on a " silent regulation" and her conclusion that wood is permanent in nature. " [A] reviewing trial court should focus on the ruling of the zoning board and the record before it, rather than any action taken by a zoning enforcement officer or zoning commission." Brady v. Zoning Board of Appeals, Superior Court, judicial district of Bridgeport, Docket No. CV12-6028607-5 (August 13, 2013, Gilardi, J.T.R.) (56 Conn.L.Rptr. 762, 764, ) (2013), citing Caserta v. Zoning Board of Appeals, supra, 90-91. The court has searched the record and is unable to find that a sufficient reason exists to support the denial of the plaintiff's appeal. Without a legitimate reason in the record, this court must conclude that the ZBA's vote that upheld the denial of the plaintiff's zoning permit application by the ZEO, who had unfairly construed the meaning of the word " permanent" in the zoning regulations to exclude anything that is not Durabuilt even though that is not stated in the regulations, was both unreasonable and arbitrary.
Despite this court's ruling on the ZBA's action, which effectively resolves the plaintiff's appeal, there were two other issues raised that the court feels merits brief discussion.
2. THE CHAIRMAN'S ABSTENTION
The vote on this matter was three in favor of the plaintiff's application and one abstention. An abstention cannot be considered as a concurring vote. Green Falls Associates, LLC v. Zoning Board of Appeals, 138 Conn.App. 481, 490-91, 53 A.3d 273 (2012). On April 23, 2015, at the hearing at which occurred the vote on the plaintiff's appeal, only four members of the ZBA were present for roll call. (ROR, Ex. 18, pg. 1; Ex. 28, pp. 1-2.) General Statutes § 8-7 provides in relevant part: " 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 . . ."
The plaintiff argues that he should have been advised by the ZBA at the time the roll was taken that only four members were present and that he would need all four votes in his favor to sustain his appeal. The plaintiff further argues that he should have been advised that his hearing could be continued until another date when the full five-member board was present. This court is not aware of any precedent, nor has the plaintiff provided any authority, which imposes an affirmative duty on a zoning board of appeals to advise an applicant/appellant of his or her rights in this regard.
This case is similar to the matter of Green Falls Associates, LLC v. Zoning Board of Appeals, supra, 138 Conn.App. 481, which the plaintiff in the present case tried to distinguish, but which this court finds to be on point. In Green Falls, four members of the board were present to hear the plaintiff's appeal. Id., 485. As here, at the time of the vote, three members voted in favor of the application and one abstained, resulting in a denial of the plaintiff's claim. Id. The plaintiff claimed the abstention rendered the vote invalid under § 8-7. Id., 488. The Appellate Court disagreed, and explained as follows: " The plaintiff was entitled to the full deliberation of its application by at least four of the members of the defendant, but not to a specific outcome or voting ratio by the defendant . . . By proceeding with the hearing, the plaintiff accepted the defendant's procedures and cannot now complain that if it had been apprised of the defendant's rules and procedures, it would have proceeded differently . . . The plaintiff accepted the possibility of any combination of voting outcomes when it proceeded with its application before the defendant." (Citation omitted.) Id., 489-90. So too did the plaintiff in this case not once raise, at the hearing, the issue of a four-member panel. The plaintiff is, therefore, foreclosed from raising it now as a basis to sustain his appeal.
3. THE PLANNING AND ZONING COMMISSION MEMORANDUM
The plaintiff argues that Chairman Moulson considered evidence outside the record, specifically, a letter from the Planning and Zoning Commission that the chairman referenced in comments at the December 8, 2014 hearing. (ROR, Ex. 25 pp. 49-51.) That letter was never made a part of the ZBA record. The letter became part of this court's expanded record at a later date. (ROR, Ex. 30.) The memorandum reiterates the zoning regulations at issue, § § 15.11.13 and 15.11.20. At the end of the memorandum is written the following: " The Commission's next task will be to update the Zoning Regulations. The review of Section 15.11 Recreational Campgrounds will be a priority." (ROR, Ex. 30.)
The plaintiff claims that it was this memorandum reviewed by Chairman Moulson that caused him to abstain from voting on the plaintiff's appeal. While the court concedes that it should have been made part of the record on December 8, 2014, there does not appear to be anything in the memorandum which could be construed as prejudicial to the plaintiff. There is no interpretation offered for the subject at hand, i.e., whether a wood constructed deck is " permanent." Additionally, there is nothing in the memorandum indicating how any board member should vote on the plaintiff's appeal. While it is true that the memorandum states that it will be reviewing the zoning regulations, including the specific regulation regarding recreational campgrounds, there is no suggestion as to how a particular part of that regulation should apply to the case before the ZBA.
Subsequent to the taking of his appeal, the plaintiff filed a motion for authorization to take discovery in an administrative appeal. (Docket Entry No. 113.) That motion was granted by the court. (Docket Entry No. 113.01.) At the corresponding deposition, held on March 3, 2016, the following exchange occurred between the plaintiff's counsel and the ZBA Chairman, John Moulson, as to his knowledge of the memorandum and its contents:
Q: Outside of the regular meeting of the zoning board of appeals following any of Mr. Slater's hearings, did you seek the advice or assistance of anyone in regard to the decisions that had to be made regarding Mr. Slater's appeals?
A: No.
Q: Did you want to seek the assistance of anyone?
A: No.(Pl.'s Br., Ex. A, p. 19, Docket Entry No. 117.)
Later in the inquiry, the chairman indicated he had no recollection as to whether he had even read the memorandum, either at or after the December 8, 2014 public hearing. (Pl.'s Br., Ex. A, pp. 22-23, Docket Entry No. 117.) And even assuming, arguendo, that the ZBA Chairman did read the memorandum, there is nothing in the text of the memorandum that might have prejudiced the plaintiff. Such ex parte communication, therefore, does not render the ZBA's action arbitrary. See Troiano v. Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. CV-89-0290240-S, (May 16, 1990, Blue, J.).
In sum, while this court has conceded that the memorandum should have been made a part of the ZBA's record when it was first mentioned at the December 8, 2014 hearing, there is no evidence that it not having been made a part of the record in any way hampered the plaintiff in putting on his case. There is no evidence that the memorandum unfairly influenced the ZBA Chairman's ultimate abstention on the appeal.
IV. CONCLUSION
For the foregoing reasons, the court sustains the plaintiff's appeal.
Despite this decision in the plaintiff's favor, the court feels it would be remiss in not pointing out its dismay with the plaintiff's course of action in this matter. The property manager at Strawberry Park had applied for and been issued on the plaintiff's behalf a permit to construct a Durabuilt sunroom as an accessory to his camper. Ignoring the terms of that permit, the plaintiff built a wooden sunroom. This resulted in the issuance of a cease and desist order and the first appeal, which was later denied by the ZBA. If the plaintiff's intent was to construct a wooden sunroom from the outset, his application should have reflected the same. The plaintiff denies that he was trying to be deceitful and that is why he filed the amended application subject of this appeal. (ROR, Ex. 26, p. 6.) The record reflects that the plaintiff is a professional contractor and as such would have been aware of the construction requirements of the initial permit.