Opinion
No. CV 04-0104469
September 14, 2005
MEMORANDUM OF DECISION
The plaintiffs, Tylerville Home Center, Inc., d/b/a Alan's Small Engine Service Fireworks (Tylerville), Karin Blaschik, Alan Blaschik, Lori Maggi, and Lawrence Maggi, Jr., appeal from the decision of the defendant, the zoning board of appeals of the town of Haddam (board), denying their appeal and modifying the decision of the zoning enforcement officer (officer), who issued a cease and desist order for the removal of a display trailer parked in the front yard set back of 112 Bridge Road, Haddam, Connecticut.
The plaintiffs allege the following facts. The plaintiff, Tylerville, is a business located and operated at 112 Bridge Road, Haddam, Connecticut. The plaintiffs, the Blaschiks, are the record owners of real property located at 112 Bridge Road, Haddam, Connecticut, and are co-owners of Tylerville. The plaintiffs, the Maggis, also are co-owners of Tylerville. The property involved in the appeal of the cease and desist order is located in a C-1 commercial zone.
On March 18, 2004, the officer issued a cease and desist order, effective March 24, 2004, to the plaintiff, Alan Blaschik. The order stated: "[a] display trailer has been parked on the above property [112 Bridge Road, Haddam, CT] in a location which was not included in the site plan review approval issued by the Planning and Zoning Commission on 7/6/00 and encroaches in the front-yard set-back." (Internal quotation marks omitted.) (Return of Record [ROR], Cease and Desist Order.) The order further required Alan Blaschik to remove the display from his property.
On April 1, 2004, the plaintiffs appealed the order to the board. The board held a public hearing on the matter on April 26, 2004. On that date, the board voted to "modify the decision of the Zoning Enforcement Officer, to read — move `Display Trailer' (Structure) Vehicle, Display object from front, side and rear setbacks." Thereafter, the plaintiffs appealed from the board's decision to the Superior Court, and the appeal was tried to this court on June 23, 2005.
General Statutes § 8-8 governs appeals from a zoning board of appeals to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). "Aggrievement is an issue of fact . . . and credibility is for the trier of the facts." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
General Statutes § 8-8(a)(1) provides, in pertinent part, that an "[a]ggrieved person includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." (Internal quotation marks omitted.) In the present appeal, the plaintiffs allege they are aggrieved because they own the property that is the subject of this appeal. (Appeal, ¶ 13.) At the time of trial, the parties stipulated to facts from which the court could find aggrievement. Accordingly, the court finds that the plaintiffs are aggrieved.
General Statutes § 8-8(b) provides, in part, that an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." Section 8-8(f)(1) further provides that "[f]or any appeal taken before October 1, 2004, process shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality."
A legal notice of the board's decision concerning the cease and desist order was published in The Middletown Press on April 28, 2004. (ROR, Affidavit of Publication.) The plaintiffs commenced this appeal on May 12, 2004 by service of process upon the chairman of the board and the town clerk for the town of Haddam. Therefore, the plaintiffs made timely service of process upon the proper parties.
"In reviewing the actions of a zoning board of appeals [the court notes] that such a board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994). "The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). The court's only role is to search the record to determine whether the board's conclusion was reasonably supported by the record, but not to attempt to weigh the evidence or determine issues of fact. Farrington v. Zoning Board of Appeals, 177 Conn. 186, 190, 413 A.2d 817 (1979).
"Generally, it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply." (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 697, 784 A.2d 354 (2001). The court must decide whether the regulation was "correctly interpreted" by the zoning board of appeals and applied with reasonable discretion to the facts. Id. The issue is only whether the board's decision was arrived at "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).
The plaintiffs appeal on the ground that the board acted illegally, arbitrarily and in abuse of its discretion. Specifically, the plaintiffs allege that (1) the board exceeded its statutory powers; (2) the board failed to sustain an appeal of a cease and desist order for conduct which conforms to the board's regulations; (3) the board failed to assign a proper reason or any reason for its action in denying the appeal; (4) the board deified the appeal of the cease and desist order based on factors not contained in the regulations; (5) the board denied the appeal of a cease and desist order based on an improper interpretation of the regulations; and (6) the board's denial of the appeal of the cease and desist order "resulted in no significant public benefit, was oppressive to the plaintiff property owners and business owners, and constituted selective enforcement of the regulations" and, therefore, was a "denial of equal protection." (Appeal, ¶ 14 a-f.)
DISCUSSION
The dispositive issue in this appeal is whether the board correctly concluded that the trailer is a "structure" as defined by the zoning regulations of the town of Haddam. The plaintiffs contend that the term "display trailer" is not defined in the regulations, and that a reasonable interpretation of the definition of "trailer" does not apply to the plaintiffs' vehicle. Rather, the plaintiffs argue that the trailer is a commercial motor vehicle, as defined by the regulations and the state statute, and as supported by a motor vehicle registration.
The defendant counters that the board correctly concluded that the trailer is a structure. It argues that the trailer is a structure by definition and by the manner in which the plaintiffs use it, namely, to display their merchandise for sale. The trailer, therefore, is a structure or building that encroaches on the building line. The trailer, the defendant claims, is not a commercial motor vehicle because it is not parked in a parking space and does not have a commercial registration. The defendant argues that the registration certificate the plaintiffs submitted to the board is not for a commercial vehicle, but rather is a license plate marker registration used on a trailer to transport it from one location to another.
The board did not formally state the reasons for its decision and, therefore, the court must search the record to determine if there is a legally sufficient basis for the board's decision. "Where a zoning board of appeals does not formally state the reasons for its decision . . . the trial court must search the record for a basis for the board's decision." Bloom v. Zoning Board of Appeals, supra, 233 Conn. 208.
In this case, the board was required to determine the reasonableness of the decision of the zoning enforcement officer. In applying the regulations, the board was acting administratively in a quasi-judicial capacity. Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 514, 264 A.2d 552 (1969). It became the duty of the board to decide, within prescribed limits and consistent with the exercise of a legal discretion, whether the regulation defining "structure" applied to the situation and the manner of its application. Connecticut Sand Stone Corp. v. Zoning Board of Appeals, 150 Conn. 439, 442, 190 A.2d 594 (1963).
"The regulation is a local legislative enactment, and in its interpretation [the court seeks] to discern the intent of the legislative body as manifested in the words of the regulation . . . Since zoning regulations are in derogation of common law property fights, however, the regulation cannot be construed beyond the fair import of its language to include or exclude by implication that which is not clearly within its express terms . . . The words employed by the local legislative body are to be interpreted in accordance with their natural and usual meaning . . . and any interpretation that would torture the ordinary meaning of the words to create ambiguity will be rejected . . . Common sense must be used in construing the regulation, and [the court assumes] that a rational and reasonable result was intended by the local legislative body." (Citations omitted.) Spero v. Zoning Board of Appeals, supra, 217 Conn. 441.
Here, the record supports the board's determination that the plaintiffs' trailer is a structure as defined by § 3 of the zoning regulations, and, therefore, violated the site plan. Section 3 of the Haddam zoning regulations defines "Structure," as "[a] walled and roofed building that is principally above ground, a manufactured home, a gas or liquid storage tank, or other man-made facilities or infrastructure. Anything constructed or which is located on, above or beneath the ground, except driveways, sidewalks, parking areas, curbing and fences which are less than six (6) feet high, including anything located on, above or beneath the water which is not primarily utilized or intended for navigation." (ROR, Regulations, § 3.) Section 3 further defines "Building" as "[a]ny structure having a roof supported by columns or by walls and intended for the shelter, housing or enclosure of persons, animals or chattel." (ROR, Regulations, § 3.) Here, the trailer is eight feet wide, twenty feet long and is located eight feet from the plaintiffs' building. (ROR, Map.) The trailer is situated over several parking spaces in front of the building. (ROR, Map.)
In determining that the trailer was a structure, the board also considered the manner in which the plaintiffs use the trailer. In their brief, the plaintiffs represent that they take the vehicle to exhibits and shows and "the rest of the time the plaintiffs park the vehicle in the front parking lot of their business and commonly leave open the sides of the vehicle to reveal the wood burning stoves inside for view by the general public." (Plaintiffs' Brief, p. 2.) At the public hearing, the town planner, speaking for "the [p]lanning [z]oning [c]ommission's approach to the situation," observed that "it's [an] extension of the retail capacity of the site . . . [I]t extends the use into the parking lot." (ROR, 4/26/04 Public Hearing, pp. 12-13.) The planner continued "[i]t's basically an extension of the square footage of the building, it's an advertisement . . ." (ROR, 4/26/04 Public Hearing, p. 13.)
The plaintiffs' argument that the definition of "structure" is so vague that it is an improper delegation of authority to the planning and zoning commission lacks merit. "Every intendment is to be made in favor of the validity of the ordinance, and it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt." (Internal quotation marks omitted.) Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 195, 779 A.2d 134 (2001). The plaintiffs bear the burden of showing that the regulations complained of are unconstitutionally vague or impermissibly vague as applied to the facts of the particular case. Barberino Realty Development Corp. v. Planning Zoning Commission, 222 Conn. 607, 620, 610 A.2d 1205 (1992). In this case, the plaintiffs have not met their burden. The regulations are clear and provide sufficient standards for the commission to fulfill its obligations. The term "structure" is defined in § 3 of the regulations. The use of the word "anything" in that regulation does not render the regulations impermissibly vague because the regulations set forth the requirements for a "structure" and a "building."
The record also supports the board's conclusion that the location of the trailer violates the site plan. "A site plan is a plan filed with a zoning commission or other municipal agency or official to determine the conformity of a proposed building, use or structure with specific provisions of the zoning regulations. It is a physical plan showing the layout and design of a proposed use, including structures, parking areas and open space and their relation to adjacent uses and roads, and containing the information required by the zoning regulations for that use." (Internal quotation marks omitted.) CRRA v. Planning Zoning Commission, 46 Conn.App. 566, 570, 700 A.2d 67, cert. denied, 243 Conn. 935, 702 A.2d 640 (1997). Here, the site plan was approved by the planning and zoning commission on July 6, 2000. The site plan shows six parking spaces for customers located in front of the building. (ROR, Site Plan.) As stated earlier, the trailer occupies several of the parking spaces, rather than one space. A review of the record reveals that the board did not act arbitrarily, illegally or unreasonably when it determined that the plaintiffs' trailer violated the site plan.
For the foregoing reasons, this court finds that the board's decision to modify the cease and desist order of the zoning enforcement officer in requiring the plaintiffs to remove the display trailer in violation of an approved site plan is supported by the record. This court finds that the board correctly interpreted the relevant sections of the zoning regulations and applied them with reasonable discretion to the facts. See Irwin v. Planning Zoning Commission, 244 Conn. 619, 627-28, 711 A.2d 675 (1998). The plaintiffs have failed to meet their burden of proof in demonstrating that the board acted improperly. See Spero v. Zoning Board of Appeals, supra, 217 Conn. 440.
The plaintiffs' appeal is dismissed.
Kevin G. Dubay, Judge