Opinion
MMXCV146012582S
01-08-2016
Jacqueline S. Williams et al. v. Middletown Zoning Board of Appeals et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Barbara M. Quinn, Judge Trial Referee.
The plaintiffs, John W. and Jacqueline S. Williams, own property located in Middletown, Connecticut within 100 feet of property owned by defendants Keith A., Linda M. and Jason Blakeslee. The Blakeslees operate a business located on their property, which is located in a residential zone. They claim it is a preexisting non-conforming use, but the local zoning enforcement officer, " ZEO, " issued a cease and desist order and the Blakeslee defendants appealed to the Middletown Zoning Board of Appeals, " ZBA."
The plaintiffs raise two central issues in this appeal: (1) whether the ZBA's reconsideration of their initial vote to deny the appeal to the ZBA was without good cause shown and based on the same information as the ZBA had before; (2) whether the participation of and voting of non-seated ZBA alternates upon reconsideration was not authorized and therefore the vote may not stand.
The plaintiffs argue that this appeal must be dismissed, and the action of the ZEO sustained. The Blakeslee defendants claim that the last action taken by the ZBA remains valid, as under any combination of votes, regardless of which alternates would have been properly seated, the motion would have passed, overturning the action of the ZEO. The defendant ZBA argues that the matter should be returned to it to reconvene a hearing concerning this matter, in order to seat alternates properly and take its vote. For the reasons set forth in detail below, the court agrees with the Blakeslee defendants and sustains the action taken by the ZBA in its vote of September 4, 2014, and therefore dismisses this appeal to the Superior Court.
I. Jurisdiction and Aggrievement
In order to maintain their appeal, the plaintiffs must first demonstrate that they are aggrieved by the decision of the ZBA. Aggrievement is jurisdictional, and a prerequisite for maintaining an appeal. Winchester Woods Assn. v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991); Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 507, 242 A.2d 705 (1968). It is without contest that the plaintiffs own property located within 100 feet of that of the Blakeslees. The court finds that the plaintiffs are statutorily aggrieved by the decision of the ZBA. See Connecticut General Statutes § 8-8(a)(1). Thus, the court has jurisdiction to hear this appeal.
II. Facts
The Blakeslee defendants have operated a bio-fuel wood pellet sales business on the property known as 141 Atkins Street, Middletown, Connecticut for some considerable time, claiming their business predates the zoning regulations now in force in residential districts in which their property is located. This appeal was occasioned by a cease and desist order issued on March 10, 2014, by the ZEO, ordering the Blakeslee defendants to cease operating their bio-fuel business. The Blakeslee defendants appealed to the ZBA on March 28, 2014, asserting that a similar business operated on the property starting in 1951, and therefore their business is a legal, non-conforming use.
ROR, A-5, Blakeslee Application to the ZBA, historical facts of business operation including all relevant deeds.
On June 4, 2014, a public hearing on the Blakeslees' appeal was conducted at which the ZBA heard evidence and took testimony. Apparently, in the winter of 2013-2014, the commercial sellers of bio-fuel ran out of their supply and referred some of their customers to the Blakeslee business. There was one complaint to the ZEO about the operation of the business, which occasioned the cease and desist order. Testimony was taken about the business, its history and operation. Members of the public spoke both for and against the appeal. Next, the public hearing was closed and the matter continued to August 7, 2014.
A. Hearing of August 7, 2014 and Vote to Reconsider
At the hearing, the matter was taken up by the ZBA members and two alternates. Alternate Russo recused herself due to a perceived conflict. After some discussion, a motion to overturn the ZEO's order was made. Commissioner Kovach voted against the motion as he was concerned about the date the business had started to operate. Because there were only three commissioners and one alternate voting and the vote was not unanimous, with one commissioner opposing the motion, the motion failed. Connecticut General Statutes § 8-7 requires four affirmative votes to overturn a decision of a ZEO. Immediately after the failed vote, the Chairwoman Resnisky made a motion to reconsider the vote, which was approved unanimously and therefore carried. Due to the motion for reconsideration, no notice of the ZBA's decision of August 7, 2014 was issued or published.
ROR, T-1, Transcript of Hearing of August 7, 2014.
ROR, ROR, T-1, Transcript of Hearing of August 7, 2014, p. 17.
B. Reconsideration of ZBA Action of August 7, 2014 on September 4, 2014
The ZBA reconvened on September 4, 2014, to reconsider its failure to overturn the action of the ZEO on August 7, 2014. It is admitted that the proper procedure for seating alternates that evening was not followed. Nonetheless, despite the failure to seat the alternates properly, the alternate who had abstained on August 7, 2014, indicated she had been mistaken about her conflict. The two other alternates and a commissioner then made statements in favor of overturning the ZEO's order. Commissioner Kovach then reiterated his concerns about the length of time the business had been in operation, although he had earlier expressed his support of overturning the cease and desist order. A motion was then made to approve the appeal and overturn the cease and desist order. Alternate Russo abstained, Commissioner Kovach voted against the motion, and three other commissioners and two alternate ZBA members voted in favor of the motion, and therefore it carried then with a vote of five to one. Notice of the decision was duly published on September 11, 2014 and this appeal ensued.
ROR, T-2, Transcript of Hearing of September 4, 2014, p. 1.
ROR, T-2, Transcript of Hearing of September 4, 2014, pp. 13-15.
ROR, T-2, Transcript of Hearing of September 4, 2014, p. 22.
ROR, S-12.
C. The Non-Conforming Preexisting Use of the Blakeslee Defendants' Property
In this appeal, no party challenges the underlying and implied determination by the ZBA that the use made by the Blakeslee defendants of their property is in fact a preexisting non-conforming use. From the record, the court finds that the business is a preexisting nonconforming use. The Blakeslee defendants have a vested property right in the continued use of that business. Application of the ZEO's cease and desist order could be viewed as depriving them of their constitutionally protected right without just compensation. See Lampasona v. Planning and Zoning Commission of North Stonington, 6 Conn.App. 237, 239, 504 A.2d 554 (1986). Such matters are, however, not directly before this court. The issues on appeal are all claims concerning the procedural errors made by the ZBA and the legal consequences of those errors.
III. Discussion
A. Standard of Review
" Where a zoning board of appeals does not formally state the reasons for its decision, the [reviewing] court must search the record for a basis for the board's decision." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995). " 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." (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 51 n.8, 808 A.2d 1107 (2002). " [E]vidence 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 ." (Emphasis added; internal quotation marks omitted). Pelliccione v. Planning & Zoning Commission, 64 Conn.App. 320, 327, 780 A.2d 185, cert. denied, 258 Conn. 915, 782 A.2d, 1245 (2001). On the basis of our courts' articulated standards and the record of the ZBA, the court finds that the use made of the Blakeslee defendants of their property is an preexisting, nonconforming use and is therefore entitled to legal protection.
B. Good Cause Shown and the Intervening Important Rights of Others
One of the plaintiffs' primary arguments in this appeal concerns itself with the right of the ZBA to reconsider its action of August 7, 2014, thus, before proceeding to the next procedural irregularity, the court will address the impact of unanimous vote to reconsider the matter. The plaintiffs argue that Sharp v. Zoning Board of Appeals, 43 Conn.App. 512, 524, 684 A.2d 713 (1996), requires that good cause be shown to reconsider the vote taken, even though the action to reconsider was taken in a timely fashion. The plaintiffs do not believe that the ZBA has demonstrated good cause.
The court will review the record for evidence in support of good cause that exists in the record. Sharp does not provide any detailed guidance as to the nature of the facts which might demonstrate good cause, for the court in that case found that no good cause was demonstrated. The Sharp court does state that there would be good cause for a ZBA " to correct matters that were overlooked and were capable of speedy resolution." Sharp v. Zoning Board of Appeals, supra, 43 Conn.App. 516. In addition, Sharp quoted law established in St. Patrick's Church v. Daniels, 113 Conn. 132, 154 A. 343 (1931), which states that:
[I]t appears to be well established that a zoning board of appeals or adjustment should not ordinarily be permitted to review its own decisions and revoke action once duly taken. Otherwise there would be no finality to the proceeding; the result would be subject to change at the whim of members or due to the effect of influence exerted upon them, or other undesirable elements tending to uncertainty and impermanence . . . However, the power to reopen should not be interpreted with too much refinement, nor should it be hedged about with technicalities, if, in the meantime, no rights have arisen which would be injured . . . Great difficulty might be experienced by a hard and fast rule of law denying permission to rehear and modify [the board's] rulings; that is to say, in correcting matters which were overlooked and were of slight materiality, but which were capable of speedy and practical correction . . . without prejudice to the rights of any one . . . But the power to reconsider is not an arbitrary one and its exercise should be granted only when there is justification and good cause. (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 137-38.
Because the decision to reconsider in the present case was approved unanimously immediately after the vote to sustain the appeal failed, the court concludes and finds that no prejudice had yet occurred to the rights of others. The court's conclusion is further buttressed by the fact that no notice of the board's vote on the motion to sustain the appeal was sent to the Blakeslees or published in a newspaper of general circulation, as is required for final decisions of the ZBA. See Connecticut General Statutes § 8-7.
Additional facts are necessary for resolution of the issue of whether good cause has been shown. That review begins with the concerns expressed by Commissioner Kovach before the vote was taken. He apparently was in agreement with the appeal, but still had questions and wanted proof that the business was operational in 1983, when the Blakeslees acquired the property. Such information was already in the record, in the facts contained in the Blakeslees' application, and in the testimony taken in the June 2014 hearing. Nonetheless, it is the case that the accuracy of the information was of slight materiality and was overlooked in the records, and also could have been quickly ascertained, as set forth in St. Patrick's Church Corp., supra . After the vote to sustain the appeal before the ZBA was taken and after it failed to carry, Attorney Wilson, counsel for the Blakeslees, stated that he could provide the ZBA with the information if the ZBA reconsidered its vote. The court can infer from the next action taken, that the ZBA believed that such information was needed and required for the ZBA to be able to take appropriate action. Immediately thereafter, Chairwoman Resnisky moved to reconsider the vote, and it was approved unanimously.
ROR, T-1, Transcript of the hearing of August 7, 2014, p. 5.
ROR, id., pp. 15-16.
The plaintiffs wish to measure the facts supporting a determination of " good cause" at the time of the reconsideration, when, due to further lack of follow-up not the fault of any action of the ZBA members or alternates, no new information was provided. The court does not agree. After careful review of the case law, the court finds that the measuring point from which " good cause" is to be determined is the point in time when the vote to reconsider is taken, not the actual reconsideration itself. At the hearing of the August 7, 2014, the court finds that " good cause" to reconsider the vote just taken was established.
The plaintiffs nonetheless rely on Sharp for the proposition that the ZBA could not reconsider its vote of August 7, 2014. They, as noted, argue that there was no good cause shown, but also believe that the ZBA is without power to reconsider its decision. The court begins its analysis with Judge Lavery's succinct statement of the issue before the Appellate Court in Sharp, supra, 43 Conn.App. 519: " [t]he dispositive issue in this appeal is when and under what circumstances can a zoning board of appeals open and reconsider a final decision that has been published ." (Emphasis added.) In this appeal before the court, the ZBA decision of August 7, 2014, was never published, as the vote to reconsider was taken immediately after it concluded. The court finds it was not final because of that crucial fact. In that important respect, Sharp is inapposite on its facts to this case.
The plaintiffs point to Robert Fuller's treatise for support of that the vote was final. But the section quoted states that: " [I]t is unresolved whether a land use agency can open and reconsider a decision after it has been made but before publication of the notice of the decision ." (Emphasis added.). See R. Fuller, 9 Connecticut Practice Review, Land Use Law and Practice, (4th Ed. 2015) § 21.1, p. 632. This court suggests that the matter does not remain unresolved, in view of the holding in Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 236 A.2d 96 (1967). In Toffolon, several votes were taken on an appeal from a ZEO's decision, and the court held that these votes on several different dates were but one session of the ZBA over several dates. It noted that:
" We are not concerned here with a situation in which a board has duly taken final action on a matter and thereafter has entertained an application for a rehearing . . . The rule in such situations is that, unless some right of a third person intervenes, all deliberative bodies had a right to reconsider their proceedings during a session as often as they think proper, when not otherwise provided by law, and it is the final result only which is to be regarded as the thing done." (Emphasis added.), Id., 565.
In the case before the court, no rights of third parties intervened after the failed vote on August 7, 2014, to sustain the plaintiffs' appeal. The court has found that action was not final, as there was no notice of the ZBA's action given nor publication of the vote taken. The record establishes that the vote to reconsider was approved unanimously only a short time after that first vote at the same hearing. The court also has found that good cause was shown for that vote and thus further finds, as in Toffolon, that the hearing on August 7, 2014, was just part of one hearing on the issue and that the matter was concluded on September 4, 2014. The court holds that the vote of August 7, 2014, which failed to sustain the Blakeslee defendants' appeal to the ZBA, was rendered inoperative and rescinded by the immediately following and unanimous vote to reconsider.
The cases on which the plaintiffs rely, despite the broad language quoted, are all cases in which the underlying dispositive vote was taken and notice and publication took place, or the short statutory time for such notice and publication expired or would shortly have expired before the vote for consideration was taken. In each such case, rights of others intervened or no good cause was shown. Those cases are Sharp v. Zoning Board of Appeals, supra, 43 Conn.App. 524, (where notice of the decision was published and final); Dugas v. Zoning & Planning Comm'n, Superior Court, judicial district of Hartford, Docket No. CV-00-0800032 (June 4, 2001, Maloney, J.) (good cause was not shown, there was no procedural error and only the same issues were reviewed when the re-vote was taken, no formal separate vote to reconsider was taken before the actual reconsideration); Kinney v. Inland Wetlands & Watercourses Commission, Superior Court, judicial district of Hartford, Docket. No. CV-00-0599209 (March 28, 2001, Maloney, J.) (where defendant had received notice of the first action of the commission, before reconsideration, the time for appeal had elapsed, and no good cause was shown). The court finds that these cases are not dispositive of the appeal before the court, due to the differences in the crucial underlying facts and their legal consequences.
C. Impact of Improper Vote of September 4, 2014
The parties agree that the vote taken on September 4, 2014, on the issue of sustaining the appeal was procedurally improper. The issues raised on appeal concern themselves with the legal consequences of the improprieties that occurred. Our courts have held that not all procedural violations invalidate a ZBA's decision. As noted in the case of Strain v. Mims, 123 Conn. 275, 283, 193 A. 754 (1937): " [w]e are not disposed too rigorously to apply technical rules to the action of administrative boards and commissions." Such concepts were more recently applied in D'Amato v. Planning & Zoning Commission, Superior Court, judicial district of Windham, Docket No. CV-07-4005848-S, (November 5, 2008, Booth, J.). This policy takes into account the fact that ZBA members are volunteers, serving their communities, not necessarily well versed in legal particularities of their duties. Such policies also seek to validate their actions where permissible and appropriate. Board of Appeals, 106 Conn.App. 602, 607-08, 942 A.2d 511 (2008), cert. denied, 289 Conn. 901, 957 A.2d 871 (2008), as well as other cases, which speak of harmless error. A major consideration in support of these articulated policies is the underlying issue that the Blakeslee defendants have a constitutionally protected, vested property right in their business, which has not been challenged in this appeal. Keeping these general principles in mind, the facts established are that on September 4, 2014, all alternate ZBA members participated in the discussions and deliberations before the vote was taken, none were apparently properly seated prior to the start of that activity.
(1) Participation of the Unseated Alternates in the Deliberations
The plaintiffs claim error as unseated alternates deliberated before the vote of September 4, 2014. The impact of an unseated alternate's participation in the deliberations concerning a matter after the close of the public hearing was examined in detail in Komondy v. Zoning Board of Appeals, 127 Conn.App. 669, 16 A.3d 741 (2011). The Komondy court examined the statutory framework concerning alternates and their participation in zoning hearings. It held that the statutory language precludes the participation of an unseated alternate in the board's deliberations, but it found that such a determination was not the end of the inquiry, and went on to examine whether " that impropriety mandates a reversal" of action taken. Komondy v. Zoning Board of Appeals, supra, 686 held that " the proper measure to evaluate the participation of an unseated alternate in a board's deliberations is an inquiry into whether the participation resulted in material prejudice to the applicant." Id., 689. Again, additional facts are necessary to resolve this issue.
At the hearing of September 4, 2014, there was lengthy discussion as to why the additional information sought at the previous hearing, concerning the length of time the Blakeslees' business had been in operation, was not available to the ZBA. At that hearing, four commissioners were present and Commissioner Reil was absent, indicating that one alternate should have been seated prior to the deliberations. It is admitted that none were so seated at that time.
ROR, T-2, Transcript of the Hearing of September 4, 2014.
Next, when the deliberations began, unseated alternate Russo spoke, as the plaintiffs indicate " passionately" about why the ZBA should sustain the appeal. Next, both Commissioner Pehota and unseated alternate Stefurak spoke in favor of sustaining the appeal. Next, Chairwoman Resnisky also indicated her approval of such action. Commissioner Kovach then stated his concerns about actual proof of the ongoing use of the non-conforming business operated by the Blakeslee defendants, as he had in the August 7, 2014 hearing. Just before the vote was taken, unseated alternate DeFrancesco indicated that he had enough information to act on the appeal. The vote then was taken. In accordance with the dictates of Komondy, the court must examine whether the comments of the admittedly unseated alternates prejudiced the proceeding in any material way against the applicants before the ZBA, the Blakeslees.
ROR, T-2, Transcript of the Hearing of September 4, 2014, pp. 13-14.
ROR, T-2, Transcript of the Hearing of September 4, 2014, pp. 15-17 for the members' comments in the order in which they were made.
ROR, T-2, Transcript of the Hearing of September 4, 2014, p. 20.
It is immediately apparent that the comments did not prejudice the proceedings, as they were all comments in favor of the Blakeslee defendants' appeal from the enforcement of the cease and desist order. The court concludes that the participation of unseated alternates Russo, Stefurak, and DeFrancesco did not taint the deliberations impermissibly and their participation was thus harmless error. The court finds that such action in this case was therefore not illegal, improper, or in abuse of the discretion vested in the ZBA.
(2) The Vote Actually Taken
Having determined that the failure to seat an alternate at the commencement of the deliberations was harmless error, the court now turns to further facts established in the transcript. At the close of the deliberations, Commissioner Kovach inquired as to those entitled to vote. Chairwoman Resnisky designated alternate DeFrancesco, Commissioner Pehota, herself, alternate Stefurak, Commissioner Kovach, and Commissioner Pulino as those entitled to vote. Thus, three commission members and two alternates voted in favor of sustaining the appeal. Alternate Russo, who had abstained at the hearing in August, did not vote, at the chairwoman's directive. Alternate Russo, nonetheless, had indicated her support of sustaining the appeal after indicating that her perceived conflict at the earlier hearing had been addressed. The Blakeslee defendants are accurate in stating that, regardless of which alternate had been seated, the outcome of the vote would have been the same--in favor of sustaining the appeal. The court concludes that the failure to follow proper procedures in designating an alternate to act in Commissioner Reil's absence was also harmless error. Observation of the exact procedural requirements would not have altered the outcome, and therefore the court finds that no party's rights were prejudiced by the failure to strictly conform to the procedures established.
ROR, T-2, Transcript of the Hearing of September 4, 2014, p. 21.
(3) The Implied Designation and Seating of an Alternate ZBA Member
A close reading of the transcript of this hearing permits a second ground on which the vote of September 4, 2014 can be sustained, as well as a second ground of support for the procedures utilized. The chairwoman's designation of those who could vote can be seen as belatedly and impliedly designating an alternate to sit without the procedural niceties being openly stated, such as, " I designate you as an alternate to sit." Under that view, three commissioners voted in favor of sustaining the appeal, one against, and the one first seated alternate, alternate DeFrancesco, also voted in favor. The vote carried by the required number voting in its favor. Connecticut General Statues § 8-7. The designation of alternate Stefurak to vote after the designation of alternate DeFrancesco was merely surplus, of no import and harmless, since he was also in favor of sustaining the appeal. This last procedural irregularity had no impact on the outcome of the vote. Last, but not least, as stated in much quoted zoning case on a different issue: " [T]he law does not require the doing of a useless thing." Corsino v. Grover, 148 Conn. 299, 308, 170 A.2d 267 (1961). To now remand the matter back to the ZBA for additional action, when the facts of this case demonstrate that the procedural irregularities were harmless error, would be to require the doing of an unnecessary act. The court declines to so act.
ORDER
For all the foregoing reasons, the court sustains the actions taken of the Middletown Zoning Board of Appeals in approving the Blakeslee defendants' appeal from the order of the ZEO. The court therefore dismisses this appeal.