Opinion
No. CV 03-0092010
March 1, 2005
MEMORANDUM OF DECISION STATEMENT OF APPEAL
The plaintiff, Nuno Vieira, appeals from the decision of the defendant, the Thomaston zoning board of appeals (ZBA). The ZBA denied Vieira's appeal from a removal order issued by the Thomaston zoning enforcement officer (ZEO), regarding the removal of 1,150 cubic yards of fill material from Vieira's property.
BACKGROUND
On September 4, 2003, the ZEO issued a removal order to Vieira, ordering the removal of fill material in excess of 250 cubic yards which was deposited to the rear of Vieira's residence located at 131 Humiston Circle, Thomaston. (ROR Item 1.) The removal order advised Vieira that, according to calculations provided by the town's engineer, the amount of fill material to be removed should be 1,150 cubic yards. (ROR, Item 1.) Vieira submitted an application to the ZBA on October 3, 2003, appealing the ZEO's removal order and requesting a variance from the zoning regulations. (ROR, Item 3.) On November 18, 2003, the ZBA conducted a public hearing to consider Vieira's application. (ROR, Item 34.) Vieira, his counsel, Attorney Matthew Woermer, and Vieira's engineering witness from R.J. Desrosiers Associates were all absent from the hearing. (ROR, Item 34, p. 1.) The ZBA denied Vieira's request for a continuance and moved forward with the hearing (ROR, Items 34 and 37.) After the hearing, the ZBA voted unanimously "not to change, modify or overrule" the ruling of the ZEO. (ROR, Items 36 and 37.) The ZBA failed to discuss the variance and failed to issue any ruling on the variance. (ROR, Items 34, 36 and 37.) Vieira then commenced this appeal by service of process on the named defendants, the ZBA and the town clerk (collectively, the ZBA).
The ZEO also issued a cease and desist order, dated July 15, 2002, concerning any further filling or other work activity. (ROR, Item 9.) On February 18, 2003 the ZBA held a public hearing on Vieira's appeal from that order. (ROR, Item 33.) The ZBA lacked jurisdiction to decide the matter, however, because Vieira failed to appeal to the ZBA within the time frame allowable by General Statutes § 8-7. (ROR, Item 33, pp. 15-16.)
Vieira commenced this appeal on December 4, 2003. (Marshal's Return.) According to the ZBA, on May 5, 2004, the planning and zoning commission granted Vieira a special permit, although not at the current fill elevation, and therefore, Vieira continues this appeal to keep all the fill in place. (ZBA's brief, p. 3.) There is nothing in the record evidencing the special permit or indicating the fill level authorized by the permit.
See footnote 5, infra.
Vieira's counsel first requested a continuance via facsimile to the ZEO at noon on the day of the scheduled hearing. (ROR, Item 5.) Attorney Woermer explained the reasons for his unavailability: a school board issue and a deposition for a trust. The request failed to mention that Vieira and the engineering witness were also unavailable to attend the public hearing. Additionally, Attorney Woermer sent his neighbor, Attorney Rozbicki, to appear at the hearing to request the continuance in person. (ROR, Item 34, p. 1.)
JURISDICTION
General Statutes § 8-8 governs an appeal taken from a decision of a zoning board of appeals. "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.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial courts jurisdiction over the subject matter of a plaintiff's appeal." (Internal quotation marks omitted.) Stauton v. Planning and Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004).
An owner of the subject property is aggrieved by the actions of the ZBA and entitled to bring an appeal. Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 704, 780 A.2d 1 (2001). Vieira alleges that he is the record owner of the property known as 131 Humiston Circle, Thomaston, Connecticut. (Complaint, ¶ 1.) Additionally, at the time of trial, this court found that Vieira is the owner of the property and is, therefore, statutorily aggrieved by the ZBA's decision.
Timeliness and Service of Process
General Statutes § 8-8(b) provides in relevant part: "The 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." Subsection (f)(1) further provides that "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."
The ZBA published its decision in the Republican American on November 26, 2003. (ROR, Item 36.) On December 4, 2003, this appeal was commenced by serving a true and attested copy of the summons, administrative appeal complaint and citation in the hands of Catherine Dupont, Thomaston town clerk, and at the usual place of abode of Peter Fuller, Chairman, Thomaston board of appeals. (Marshal's Return.) Accordingly, Vieira effectuated timely and proper service on the defendants.
SCOPE OF REVIEW
"[F]ollowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board." Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82, 626 A.2d 744 (1993). "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.) RP Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61(2001).
"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." (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 454, 853 A.2d 511 (2004). In the present case, the ZBA failed to state on the record its reasons for denying Vieira's appeal of the ZEO's order. (ROR, Items 34, 36 and 37.) The court, therefore, must search the record to determine whether there is a basis for the ZBA's decision. Furthermore, as discussed infra in Section IV, the ZBA failed to address Vieira's application for a variance, neither discussing it at the hearing nor ruling on the request. (ROR, Items 34, 36 and 37.)
After searching the record, the court finds that in order to uphold the ZEO's order to remove 1,150 cubic yards of fill material, the ZBA must have found that Vieira was in violation of § 18.5 of the Thomaston zoning regulations, in that he deposited over 250 cubic yards of fill. (ROR, Item 34, p. 1.) Having determined that the ZBA denied Vieira's appeal from the ZEO's order because he was in violation of § 18.5 to the extent that approximately 1,150 cubic yards of fill material were required to be removed, the court must now decide "whether there is substantial evidence in the record supporting the board's denial of Vieira's application on those grounds." (Emphasis added.) Municipal Funding, LLC v. Zoning Board of Appeals, supra, 270 Conn. 454.
Thomaston Zoning Regulations § 18.5 provides: "Zoning Permit Required
a. The Zoning Enforcement Officer may grant a permit for alterations in excess of two hundred and fifty (250) cubic yards per year but not more than one thousand (1,000) cubic yards per year from anyone (1) lot . . .
b. Zoning Permits shall not be required for any activity of less than two hundred and fifty (250) cubic yards per year on any one (1) lot.
(Emphasis added.) (Revised to 8/4/99) (ROR, Item 38, p. 78.)
New regulations were adopted on 2/5/03, reducing the allowable level of fill without a permit to 100 cubic yards. The new regulations, however, retain the per year limiting language. (ROR, Item 39, p. 56.)
"This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . [I]t must be enough 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 . . . The substantial evidence rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration. (Internal quotation marks omitted.) Horace v. Zoning Board of Appeals, 85 Conn.App. 162, 170, 855 A.2d 1044 (2004).
DISCUSSION
On November 26, 2003, the ZBA published legal notice of its decision, which stated that "the Thomaston ZBA denied a request for a continuance on an application from Nuno Vieira of 131 Humiston Circle. The Board also voted not to reverse the ruling of the Zoning Enforcement Officer." (ROR, Item 36.) The record is devoid of a formal, official, collective reason for the ZBA's decision to uphold the ZEO's order to remove fill, dated September 4, 2003. (ROR, Items 34 and 36.) In a letter from the ZEO to Vieira's attorney, dated November 20, 2003, the ZBA stated its reasons for denying Vieira's request for a continuance, but again, gave no formal reason for upholding the ZEO's removal order. (ROR, Item 37.)
The reasons for denying the continuance were: "(1) the Board was well aware of the current condition of the property based upon a previous application and hearing held on January 21, 2003 and continued to February 25, 2003; (2) Mr. Vieira was not present at the November 18, 2003, hearing to respond to questions as he was at the previous hearings; (3) other interested parties from the neighborhood were present at the hearing to give testimony and (4) the applicant's engineers were not present at the hearing with documentation or a site plan to dispute the calculations from the Town Engineer." (ROR, Item 37.) The January and February hearing dates were in regards to Vieira's untimely appeal of the ZEO's cease and desist order of July 15, 2002.
Vieira appeals the ZBA's decision on five grounds: 1) that the ZBA denied him a fair hearing to which he is entitled under due process; 2) denied him his right to counsel; 3) wrongfully upheld an erroneous decision; 4) acted illegally, in abuse of its discretion, arbitrarily and capriciously; and 5) acted without sufficient evidence presented to justify its action. (Complaint, ¶ 10(1-5.) For reasons discussed, infra, the court finds it unnecessary to address Vieira's constitutional claims of denial of due process and right to counsel with regards to the ZBA's denial of a continuance.
Vieira chose to brief the remaining three grounds as one overarching issue: "Did the ZBA act arbitrarily, illegally and/or unfairly in sustaining the ZEO's removal order dated September 4, 2003?" (Vieira's brief, p. 6.) Vieira argues estoppel, lack of substantial evidence and the ZBA's lack of a decision on the variance application. The court will address each of these claims.
I. Constitutional Claims
Vieira claims that the ZBA's denial of a continuance denied him both the fair hearing required under due process and his right to an attorney. (Complaint, ¶ 10.) "As a general rule, the court should adhere to the standard policy of resolving constitutional claims only when essential to the determination of the appeal. The court should not entertain constitutional questions in advance of the strictest necessity." Casey v. Stonington Planning and Zoning Commission, Superior Court, judicial district of New London, Docket No. 553909 (March 23, 2001, Purtill, J.T.R.)
The court finds it need not consider the constitutional claims because the case can be decided on non-constitutional grounds.
II. Municipal Estoppel
Vieira argues that the town should be estopped from enforcing the regulations because Vieira relied on letters from the ZEO as to the amount of fill he was legally permitted to deposit on his property. (Vieira's brief, p. 6.) In a letter to Vieira, dated October 3, 2001, the ZEO wrote: "Please be advised that there are no specific requirements for depositing clean fill on a residential property." (ROR, Item 7.) In a second letter, dated May 13, 2002, the ZEO advised Vieira that § 18.4 of the regulations required a special permit application and approval if the total amount of fill exceeded 1,000 cubic yards. (ROR, Item 8.)
Thomaston Zoning Regulations § 18.4 provides: "Special Permit Required. A Special Permit shall be required for any activity or operation which exceeds one thousand (1,000) cubic yards per year from any one (1) lot . . ." (Revised to 8/4/99) (ROR, Item 38, p. 78.)
The latest regulations reduced the amount of fill permitted without a special permit to 250 cubic yards per year. See Thomaston Zoning Regulations § 18.3. (Revised to 2/5/03.)
In response, the ZBA argues that Vieira has failed to satisfy the requirements of equitable estoppel. (ZBA's brief, p. 12.) The ZBA offers evidence that Vieira had been depositing fill in his yard since 1997. (ROR, Item 27.) The ZBA argues, therefore, that Vieira could have been neither induced by the ZEO's letters, nor relied detrimentally upon the ZEO's advisement. The court is not persuaded by the ZBA's argument, that Vieira could not have been induced to deposit fill in the amounts explicitly permitted by the ZEO in his letters. The court, nevertheless, agrees that Vieira has not proven facts required to sustain a municipal estoppel claim.
A February 24, 2003 letter from contractor Ed Atchison states that he had been dumping clean fill at Vieira's residence from 1997 through 2000. (ROR, Item 27.)
"[I]n order for a court to invoke municipal estoppel, the aggrieved party must establish that: (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief; (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents." Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 247, 662 A.2d 1179 (1995).
Based on the record, the court finds that Vieira has provided no evidence that by the enforcement of the removal order he would sustain a substantial loss for the purposes of municipal estoppel. In Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 639-40, 646 A.2d 772 (1994), the court discussed the elements of municipal estoppel and defined what constituted a substantial loss. The court emphasized that the "concept of substantial loss" involves a great "economic loss" and indicated that such a loss must be alleged and proven. Id., 639. In that case the court observed that the defendants had "offered no evidence of any out of pocket investment, such as a capital investment in equipment, a building, or real property, that would be lost if the town zoning regulation were enforced." Id., 640. Vieira, therefore, failed to prove facts necessary for a municipal estoppel claim. Because Vieira failed to prove a substantial loss, the court finds it unnecessary to address the remaining elements of municipal estoppel.
III. Substantial Evidence CT Page 3777
Vieira next argues that the engineering survey conducted at the request of the ZEO "did not identify how much fill was deposited in any year as per Section 18.5." (Vieira's brief, p. 7.) Vieira farther argues that the survey resulted in a "conditional opinion" in which the town's engineer stated: "We conducted this survey after the fill was in place, and we did not have the benefit of an existing topographic survey to aid us in our calculations." (Vieira's brief, p. 7.) Vieira points out that the town engineer "failed or refused to provide the calculations and data to support their opinion" that there was approximately 1,400 or more cubic yards of fill deposited on Vieira's property. (Vieira's brief, p. 7.)
The ZBA responds that "[a]s to the issue of the amount of fill material deposited on Vieira's property, the board was within its right to believe the town engineer's calculations and to disregard Vieira's engineer's estimate." ZBA's brief, p. 13.)
Whether the ZBA was permitted to believe the town's engineer and disregard Vieira's engineer is not the issue. The dispositive issue is whether there was substantial evidence before the ZBA that Vieira had violated § 185 of the regulations to the extent that the ZBA upheld the removal order of 1,150 cubic yards of fill material from Vieira's property. It is clear from the record that the ZEO relied on the town's engineer's calculations. In a letter dated July 8, 2003, the ZEO states: "Since I am not an engineer the only viable alternative was to call in Robert Oley from Land Tech Consultants to transit the site and give me an estimate of the amount of fill material. I was shocked when the estimate came back at 1,400 cubic yards. I immediately issued a cease and desist order. Mr. Vieira did comply with my order." (ROR, Item 29.)
"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. The trial court [has] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal." (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 697, 784 A.2d 354 (2001).
"In interpreting a zoning [regulation], the question is the intention of the legislative body as found from the words employed in the [regulation] . . . The words [employed] are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their express terms . . . The language of the [regulation] is construed so that no clause or provision is considered superfluous, void or insignificant . . . Common sense must be used in construing the regulation, and [the court] assume[s] that a rational and reasonable result was intended by the local legislative body." (Citation omitted; internal quotation marks omitted.) Munroe v. Zoning Board of Appeals, 75 Conn.App. 796, 804, 818 A.2d 72 (2003).
Section 18.5 of the Thomaston zoning regulations includes the time limitation of "per year." (Emphasis added.) (ROR, Item 38, p. 78.) The language of the regulation is plain and unambiguous. In order to find that Vieira violated § 18.5 to the extent he is being required to remove 1,150 cubic yards of fill, Vieira must have deposited 1,400 cubic yards, the amount calculated by the town's engineer, in a given year. The term "year" is not defined in the regulations. (ROR, Item 38.) The court finds instructive the meaning given to "year" in General Statutes § 1-1(I); the word "year" shall mean "a calendar year," unless otherwise expressed. The natural and plain meaning in this context is that "per year" means "per calendar year." The town's engineer, Robert B. Olay, PE of Land-Tech Consultants, concluded that "it is our opinion that there has been deposited in the backyard approximately 1,400 cubic yards or more of fill." (ROR, Item 11.) Nowhere in the record is there evidence as to how much fill had been deposited per year. Even if the court were to defer to the ZBA's giving more weight to Land-Tech's calculations, based upon the record, the court is unable to conclude that there was substantial evidence before the ZBA for it to determine that Vieira had deposited 1,400 cubic yards of fill per year. Accordingly, the court sustains Vieira's appeal of the ZBA's decision upholding the ZEO's removal order of 1,150 cubic yards of fill.
IV. Variance Application
Vieira argues that the "ZBA did not even address the requested variance submitted with the appeal of the ZEO and as such have denied him due process of a public hearing." (Vieira's brief, p. 8.) The ZBA argues that "a decision by the board to deny the variance can be inferred under the facts of the case." (ZBA's brief, p. 15.) In support of its argument, the ZBA relies on Merlo v. Planning Zoning Commission, 196 Conn. 676, 683, 495 A.2d 268 (1995). Merlo is distinguishable from the present case. In Merlo, the planning and zoning commission held a public hearing on a plaintiff's submitted subdivision plan. Id., 679. At the hearing, the commission considered the plan, discussed stipulations for approval of the plan, then the majority voted against the plan with the stipulations. Id. The court determined that "the majority vote against the application as modified by the stipulations contained in the motion, which appear to have been added in order to overcome objections raised by some commission members, indicates that the original subdivision plan would also have failed to receive sufficient votes for approval." Id., 683. Thus, in Merlo, the commission had considered the plan, indicated it would not pass without some modification, then rejected the plan with those modifications. The logical inference to be drawn was that the unmodified plan was rejected. The ZBA argues that the same type of inference may be drawn from its upholding the ZEO's order. The court is not persuaded by the ZBA's argument for the following reasons.
The record shows that Vieira, in his application to appeal the ZEO's decision, requested that if the ZBA determined that he exceeded the limits of § 18.5 that he be granted a variance from the zoning regulations. (ROR, Item 3.) The record also reveals that the ZBA failed to discuss or rule on the variance. (ROR, Item 34.) The ZBA published a notice advertising the November 18, 2003 hearing that mentioned only Vieira's appeal from the ZEO's decision and failed to mention the application for a variance. (ROR, Item 4.) "Compliance with prescribed notice requirements is a prerequisite to a valid action by a zoning board of appeals and failure to give proper notice constitutes a jurisdictional defect . . . The notice requirement ensures that all affected parties will be advised of their opportunity to be heard and informed of the relief sought by the applicant." (Citation omitted; internal quotation marks omitted.) Miniter v. Zoning Board of Appeals, 34 Conn.App. 552, 555, 642 A.2d 67 (1994). "[T]here is a distinct legal difference between a variance and an appeal. The issue before the board on the [ZEO's] denial would involve the question of whether the [ZEO] had properly applied the zoning regulations. See General Statutes § 8-6(1). The issue on the variance would be whether the [applicant] had established a hardship to support the request for the variance. General Statutes § 8-6(3)." Id. Because of the fundamental difference between these issues, it is submitted that an inference that an applicant has not shown hardship necessary for a variance may not be drawn from a determination that the enforcement officer properly applied zoning regulations. Furthermore, because of the distinct legal difference between a variance and an appeal, the public notice was legally deficient.
The legal notice read as follows: "On Tuesday, November 18, 2003, the Thomaston ZBA will hold a hearing . . . on an appeal from Nuno Vieira of 131 Humiston Circle to change the ruling of the Zoning Enforcement Officer. On September 4, 2003, the ZEO ordered the removal of 1,150 cubic yards of fill material that was deposited in the rear yard during the fall of 2001 pursuant to Section 18.5 of the Zoning Regulations, as may be amended." (Emphasis added.) (ROR, Item 4.)
Consistent with Miniter, the court would ordinarily remand the case to the ZBA for a properly noticed hearing and determination on the merits of the variance application. See Miniter v. Zoning Board of Appeals, supra, 34 Conn.App. 557. In the present case, however, because Vieira requested a variance only if the ZBA determined he was in violation of § 185, the sustaining of Vieira's appeal as to the ZEO's removal order renders a hearing and determination on the variance unnecessary.
CONCLUSION
The court finds that since there is not substantial evidence to support the ZBA's upholding of the ZEO's removal order based on a violation of § 18.5 of the Thomaston zoning regulations, the ZBA acted illegally, arbitrarily, and in abuse of its discretion. The court sustains Yieira's appeal from the decision of the ZBA.
Brunetti, J.