Summary
In Borreski v. Zoning Commission, 2006 WL 574179, 40 Conn. L. Rptr. 755, the owner of neighboring land appealed from a decision of a town zoning commission approving a semi-permanent events tent proposed by marina, since it was not an accessory use to marina, and the court agreed; the court also upheld the appeal from the Zoning Commission's approval since the marina's application for coastal site plan approval was deemed denied.
Summary of this case from Woodland Cemetery Association v. Zoning Board of Appeals of StamfordOpinion
No. CV 04 4000054 S
February 24, 2006
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiff, Eleanor LaPlace, appeals a decision by the defendant, the Old Saybrook Zoning Commission, finding that the events tent proposed by the defendant, Island Cove Marina, LLC, constitutes an accessory use to a marina.
Originally, there were ten plaintiffs: Frank Borreski, William Brink, Pat Brink, Gary Brink, Victor Dellaripa, Sondra Dellaripa, Andrew Helander, Eleanor LaPlace, Kathryn Reddington and Darlene Ziobron. Nine of the plaintiffs withdrew at trial.
II BACKGROUND
The defendant, Island Cove Marina, LLC (Island Cove), owns approximately 4.65 acres of land located at the intersection of Fourth Avenue and Sunrise Avenue in the town of Old Saybrook. (Return of Record [ROR], Exhibit 57.) Island Cove operates a marina at the property. (ROR, Exhibit 2.) The property is zoned marine commercial (MC). (ROR, Exhibit 2.) The marina is a permitted use pursuant to Article III, § 35.1.3 of the Old Saybrook zoning regulations, which provides that "[a] dock, wharf, slip basin, or similar landing facility for pleasure boats" constitutes a permitted use in the zone. (ROR, Exhibit 66, p. 35-1.) The marina consists of two buildings, a garage, a gazebo, a river overlook, a concrete pad, eighty-eight (88) slips and four (4) mornings. (ROR, Exhibit 57.) There are one hundred and thirty-five (135) parking spaces at the marina. (ROR, Exhibit 57.)
The property consists of Lots 28, 29, 30, 33 and 34 on Map 59. (ROR, Exhibit 57; ROR Exhibit, 69.)
On April 5, 2004, Island Cove applied for a certificate of zoning compliance; (ROR, Exhibit 1); a site plan approval; (ROR, Exhibit 2); and a coastal site plan approval; (ROR, Exhibit 4); for the seasonal use of a semi-permanent special events tent to be erected on the pre-existing concrete pad at the marina; (ROR, Exhibit 1). The zoning commission discussed the site plan application at three public meetings that were held on April 19, 2004, May 17, 2004 and June 7, 2004. (ROR, Exhibits 61-63.) On June 7, 2004, the zoning commission held deliberations concerning the site plan and approved Island Cove's application subject to certain conditions. (ROR, Exhibit 65.) The conditions and modifications are contained in the zoning commission's "Motion for Approval" and include such restrictions as limiting the number of events to nine per calendar year. (ROR, Exhibit 58.) On June 16, 2004, the zoning commission published notice in the Hartford Courant stating that the commission approved Island Cove's site plan review application. (ROR, Exhibit 59.) On June 30, 2004, the plaintiff appealed the zoning commission's approval.
III AGGRIEVEMENT
"Two broad yet distinct categories of aggrievement exist, classical and statutory." (Internal quotation marks omitted.) Lewis v. Planning Zoning Commission, 275 Conn. 383, 391 (2005). "Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Id. General Statutes § 8-8(a)(1) provides, in relevant part, that "`[a]ggrieved person' means a person aggrieved by a decision of a board and . . . 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."
At trial, the plaintiff testified that she owns property within one hundred feet of Island Cove and that she has owned an interest in such property continuously since 1972. In addition, the plaintiff offered into evidence a quitclaim deed for the property; (Plaintiff's Exhibit 1); an assessors card; (Plaintiff's Exhibit 2); and an assessors map depicting the location of her property and Island Cove's property; (Plaintiff's Exhibit 3). Accordingly, the court finds that the plaintiff is statutorily aggrieved.
IV SCOPE OF REVIEW
When reviewing the decisions of a zoning commission, a court 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.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470 (2001). When reviewing a decision of a zoning commission, "a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board." (Citation omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453 (2004).
V DISCUSSION A Accessory Use
The plaintiff maintains that the events tent is not an accessory use to a marina under the test set forth in Lawrence v. Zoning Board of Appeals, 158 Conn. 509 (1969). (Plaintiff's 12/1/04 Brief, pp. 8-10.) Specifically, the plaintiff argues that the events tent will be open to the general public for a fee and that such facility has "nothing to do with the operation of a marina." (Plaintiff's 12/1/04 Brief, p. 10.) Further, the plaintiff contends that "the record reflects no evidence of similarly situated water dependent facilities having any sort of similar event facilities open for rent to the general public as a separate enterprise." (Plaintiff's 12/1/04 Brief, p. 13.) Finally, the plaintiff maintains that an events tent is not an accessory use in an MC zone because the Article I, § 8-4 of the Old Saybrook zoning regulations provides that "[a]ccessory uses will not include uses that are otherwise not permitted or specifically prohibited in the district" and that events tents are not permitted in the zone. (Plaintiff's 12/1/04 Brief, p. 9.)
Island Cove counters that the zoning commission acted reasonably in finding that the events tent is an accessory use to the marina under the zoning regulations. (Island Cove's 3/4/05 Brief, p. 6.) Furthermore, Island Cove maintains that other marinas in Connecticut have similar function spaces. (Island Cove's 3/4/05 Brief, p. 8.) "Specifically, the North Cove Yacht Club in Old Saybrook, the Essex Yacht Club, the Corinthian Yacht Club in Essex, the Cedar Island Manna in Clinton and Pilot's Point Marina in Westbrook are all local marinas that provide facilities for weddings and other social gatherings." (Island Cove's 3/4/05 Brief, pp. 8-9.)
"An accessory use under a zoning law is a use which is dependent on or pertains to the principal or main use." (Emphasis added.) Lawrence v. Zoning Board of Appeals, supra, 158 Conn. 511. "While the necessity for permitting accessory uses must be admitted, the objectives of the comprehensive plan will be jeopardized if `accessory use' is so broadly construed as to allow incompatible uses to invade the district." Id., 511. In the present case, the zoning regulations define accessory use as follows: "A use, in addition to the principal use that is clearly subordinate to, and customarily incidental to, and located upon the same lot as, the principal use or on a contiguous lot under the same ownership." Old Saybrook Zoning Regs., art. I, § 9.2. (ROR, Exhibit 66, p. 9-1.)
In Lawrence v. Zoning Board of Appeals, supra, 158 Conn. 511, the accessory use ordinance contained language that is nearly identical to the Old Saybrook accessory use regulation at issue in the present case. In Lawrence, "the ordinance in question [defined) an accessory use as one which is subordinate and customarily incidental to the main building and use on the same lot." Id.
"The word `incidental' as employed in a definition of `accessory use' incorporates two concepts. It means that the use must not be the primary use of the property but rather one which is subordinate and minor in significance. Indeed, we find the word `subordinate' included in the definition in the ordinance under consideration. But `incidental,' when used to define an accessory use, must also incorporate the concept of reasonable relationship with the primary use. It is not enough that the use be subordinate; it must also be attendant or concomitant. To ignore this latter aspect of `incidental' would be to permit any use which is not primary, no matter how unrelated it is to the primary use." (Emphasis added.) Lawrence v. Zoning Board of Appeals, supra, 158 Conn. 512.
"[T]he meaning of `incidental' . . . is inextricably linked to the meaning of principal use . . . Without the principal use, normally the incidental uses cease or significantly decrease." Quoka v. Board of Zoning Appeals, Superior Court, judicial district of New Haven, Docket No. CV 01 0449880 (September 10, 2001, Pittman, J.) (30 Conn. L. Rprt. 378, 380) (holding that the proposed use did not meet the definition of accessory use). "The most common example of an incidental use is parking. Where the primary use of a site is as a theater or restaurant or office building or school, parking is an incidental subordinate use. Were the primary use to cease, the incidental use would diminish or cease as well." (Emphasis added.) Id. In the case, the court found that "there [was] not basis in the record for a finding that the food production facility [was] anything other than an independent use of the property, albeit a use that is convenient and fiscally prudent." Id. (sustaining the plaintiff's appeal on the ground that the "decision of the ZBA was unreasonable, arbitrary and illegal").
"The word `customarily' is even more difficult to apply. Although it is used in this and many other ordinances as a modifier of `incidental,' it should be applied as a separate and distinct test. Courts have often held that use of the word `customarily' places a duty on the board or court to determine whether it is usual to maintain the use in question in connection with the primary use of the land . . . In examining the use in question, it is not enough to determine that it is incidental in the two meanings of that word as discussed above. The use must be further scrutinized to determine whether it has commonly, habitually and by long practice been established as reasonably associated with the primary use." (Citation omitted.) Lawrence v. Zoning Board of Appeals, supra, 158 Conn. 512-13. "In situations where there is no . . . specific provision in the ordinance, the question is the extent to which the principal use as a matter of custom, carries with it an incidental use so that as a matter of law, in the absence of a complete prohibition of the claimed incidental use in the ordinance, it will be deemed that the legislative intent was to include it." (Internal quotation marks omitted.) Id., 513. "In applying the test of custom, we feel that some of the factors which should be taken into consideration are the size of the lot in question, the nature of the primary use, the use made of the adjacent lots by neighbors and the economic structure of the area. As for the actual incidence of similar uses on other properties, geographical differences should be taken into account, and the use should be more than unique or rare, even though it is not necessarily found on a majority of similarly situated properties." Id.
Under the Lawrence test, the court has found that holding events that are open to the general public may exceed the scope of a valid accessory use. See Miskimen v. Biber, 85 Conn.App. 615, 623 (2004), cert. denied, 272 Conn. 916 (2005) (musical festivals at a campground "are not a valid accessory use when members of the general public are allowed to attend"). In Miskimen, the Appellate Court found that " [a]ttendance by members of the general public at music festivals [was] not subordinate and customarily incidental to the principal use of the property as a campground. The [trial] court properly determined that the [members of the general public who] use[d] the facility on [a] day-to-day basis exceeded the dimension of subordinate and incidental use." (Emphasis added; internal quotation marks omitted.) Id., 623. "Accordingly, the [trial] court correctly determined that the sale of music festival tickets to members of the general public constitutes a violation of the zoning regulations." Id. However, in Miskimen, the town zoning regulations contained unique language that enumerated appropriate accessory uses to a recreational campground and further limited permissible accessory uses to those that were "for camper use only." Id., 621. Therefore, because such language is not present in the Old Saybrook regulations, Miskimen has limited applicability to the matter before the court.
Specifically, § 15.11.18 of the zoning regulations provided that "[p]ermitted as an accessory use to a recreational camp ground and for camper use only, but not permitted as a princip[al] use, there may be: a grocery store with grocery and camper provisions and gifts, snack bar, swimming pool, golf course of any kind, tennis courts, recreation pavilion, horseback riding, and any other appropriate activities, even though some of the activities by their nature are performed off the premises, but all activities must originate on premises." (Emphasis in original.) Id., 621. "[Section] 23.35 of the zoning regulations [provided] in relevant part that campgrounds are to be used `for the parking of camper units or the establishing of overnight living quarters such as tents or other temporary shelters, and primarily occupied by family groups engaged in travel, recreation or vacation.'" (Emphasis in original.) Id., 620. "A use of campground property that is not permitted by §§ 23.35 and 15.11.18 is a violation of the zoning regulations." Id., 621.
In the lower court decision, the court found that "the zoning regulations §§ 23.35 and 15.11.18 do not contemplate day campers or members of the general public to come and buy tickets for music festivals . . . The court believes the issue of sales of tickets to non-campers for music festivals clearly violates the zoning regulations." Miskimen v. Biber, Superior Court, judicial district of New London at Norwich, Docket No. CV ___ 0121464 (March 1, 2002, Hurley, J.T.R.) Consequently, the Miskimen holding has limited applicability based on the specific zoning regulations at issue in that case.
In the present case, the zoning regulations define accessory use as follows: "A use, in addition to the principal use, that is clearly subordinate to, and customarily incidental to, and located upon the same lot as, the principal use or on a contiguous lot under the same ownership." Old Saybrook Zoning Regs., art. I, § 9.2. (ROR, Exhibit 66, p. 9-1.) Article I, § 9.2 of the Old Saybrook zoning regulations further provides that a principal use is "[t]he primary purpose or function for which one uses, designs, or intends to use premises." (ROR, Exhibit 66, p. 9-8.)
In order for the events tent to constitute an accessory use, it must be incidental, meaning that it is subordinate to the primary use and that it "incorporate[s] the concept of reasonable relationship with the primary use. It is not enough that the use be subordinate; it must also be attendant or concomitant. To ignore this latter aspect of `incidental' would be to permit any use which is not primary, no matter how unrelated it is to the primary use." (Emphasis added.) Lawrence v. Zoning Board of Appeals, supra, 158 Conn. 512. There is little evidence in the record regarding any type of reasonable relationship between the marina and the events tent. The events tent hosts functions that are unrelated to the marina and utilizes independent contractors for catering, as well as entertainment. Island Cove will "provide only the space for such events." (ROR, Exhibit 53, p. 1.) The events tent is not in any way, dependent upon the marina. If the marina closed, there is no reason that the events tent would not be able to continue its operations. See Quoka v. Board of Zoning Appeals, supra, 30 Conn. L. Rptr. 380 ("Where the primary use of a site is as a theater or restaurant or office building or school, parking is an incidental subordinate use. Were the primary use to cease, the incidental use would diminish or cease as well.") For the reasons stated above, the court finds that there is no basis in the record for determining that the events tent is an incidental use to the marina. Instead, the record indicates that the events tent is an independent use of the property.
Furthermore, there is no evidence in the record that the erection of a semi-permanent events tent used solely for non-marina functions, such as weddings, is a use that is customarily found at marinas in Connecticut. "[T]he word `customarily' places a duty on the board or court to determine whether it is usual to maintain the use in question in connection with the primary use of the land . . . The use must be further scrutinized to determine whether it has commonly, habitually and by long practice been established as reasonably associated with the primary use." (Citation omitted.) Lawrence v. Zoning Board of Appeals, supra, 158 Conn. 512-13. The record contains the following examples of marinas that have on-site events facilities: (1) Cedar Island Marina has a picnic and recreational area that is maintained "for the enjoyment of [their] customers," as well as a restaurant and lounge; (2) the Mystic Shipyard has a banquet facility; (3) Brewer Stratford Marina has a restaurant; and (4) Pilots Point Marina has a restaurant, swimming pools and recreational facilities. (ROR, Exhibit 30.) In the "Motion for Approval," the zoning commission noted that they were "presented with numerous examples of other marinas and yacht clubs that host [special events and weddings], and [that] the commission members themselves are aware that regattas, race weeks, weddings, and other special events do occur at such facilities and that not all of them are directly related to the docking of boats." (ROR, Exhibit 58, p. 1.)
Further, Island Cove maintains that North Cove Yacht Club, the Essex Yacht Club, and Corinthian Yacht Club are all marinas that provide "facilities for weddings and other social gatherings." (Island Cove's 3/4/05 Brief, pp. 8-9.) It should be noted, however, that there is no evidence in the record concerning the zoning regulations governing the respective yacht clubs and marinas. Consequently, there is no basis for the court to find that such uses are, in fact, accessory uses. These uses may be permitted uses under the applicable zoning regulations.
Despite this statement, there is no evidence in the record of a marina that has a similar events facility. First, there are no marinas that erect semi-permanent seasonal tents. Second, there is little evidence of other marinas with events facilities that are solely for the benefit of individuals that have no affiliation with the marina. The fact that the events tent does not serve the marina's customers or clientele distinguishes the tent from the majority of the aforementioned examples. Therefore, the court finds that the zoning commission acted unreasonably and arbitrarily in finding that the events tent satisfied the definition of "customarily" because there is no evidence that such use has been commonly, habitually and by long practice established as reasonably associated with the primary use of a marina. Accordingly, the court finds that the events tent is not an accessory use to a marina under the Old Saybrook zoning regulations and the plaintiff's appeal is sustained.
B
In the instant matter, the plaintiff has raised two additional claims: (1) The plaintiff maintains that the commission made no findings and took no action regarding the coastal site plan application as required under General Statutes § 22a-106; and (2) the plaintiff argues that the zoning commission may not act on Island Cove's site plan application until the commission receives an inland wetlands commission report, along with any permit issued for regulated activities. Though the plaintiff's appeal is sustained on the ground that the events tent is not an accessory use, the court recognizes its obligation under Practice Book § 64-1(a)(6) to discuss "its conclusions as to each claim of law raised by the parties and the factual basis therefore."
i Coastal Area Management Application
The project site is within the costal boundary pursuant to General Statutes § 22a-105 through 22a-109. A coastal area management site plan review for the project is required by Article VII, § 72.3.2 of the Old Saybrook zoning regulations. (ROR, Exhibit 66, p. 72-2.) In addition, a coastal site plan review is statutorily mandated pursuant to General Statutes § 22a-105(a). General Statutes § 22a-106 requires that the committee make written findings concerning the coastal site plan review. The direction for a written decision appears to be directory not mandatory. Therefore, the decision and the findings do not have to be in writing. See Gagnon v. Inland Wetlands Watercourses Commission, 213 Conn. 604 (1990). Where the commission does arrive at a decision and does not explicitly state the reasons for such a decision, the Supreme Court has instructed the trial court to search the record for evidence supporting the commission's decision. See DeBerandinis v. Zoning Commission, 228 Conn. 187, 198 (1994). The zoning commission's decision must be upheld if the court finds that it is reasonably supported by the record. Id., 198-99.
Though the court is empowered to search the record for reasons supporting the commission's decision, statutory authority requires that the zoning commission render a decision regarding the coastal site plan. Specifically, § 22a-105(f) provides, in relevant part, that "the review of any coastal site plan pursuant to this chapter shall not be deemed complete and valid unless the board or commission having jurisdiction over such plan has rendered a final decision thereon. If such board or commission fails to render such a decision within the time period provided by the general statutes or any special act for such decision, the coastal site plan shall be deemed rejected." (Emphasis added.)
In the case before the court, Island Cove states in its brief that "it is clear that the commission considered CMA criteria and could have reasonably determined that no adverse impacts would result from the approval of the proposal . . ." (Island Cove's 3/4/05 Brief, p. 31.) Assuming, without deciding, that Island Cove is correct in this claim, the question still remains whether or not the commission did determine that the request was consistent with the coastal area management act requirements. The court agrees with the defendants that the zoning commission's findings concerning the coastal area management application do not need to be in writing. The court also agrees that if no reasons are given by the commission, the court is obligated to search the record for reasons. Further, the court assumes, without deciding, that adequate reasons may be found in the record. However, in reviewing the seven-page transcript of the zoning commission's deliberations concerning Island Cove's applications, the court finds no decision by the commission on the coastal site plan review. Consequently, the court finds that the commission never rendered a final decision and, therefore, the coastal site plan must be deemed to be rejected. General Statutes § 22a-105(f).
ii Inland Wetlands Commission Review
The plaintiff claims that the commission's action is defective because an application was not submitted to the Old Saybrook inland wetlands commission. The Appellate Court has found that "[t]he language of the Coastal Management Act unambiguously provides that review of coastal site plans pursuant to § 22a-109(a) supercedes review [for wetlands] under General Statutes § 8-3(g)." Read v. Planning Zoning Commission, 35 Conn.App. 317, 325 (1994). Accordingly, the court finds that the plaintiff's final argument is without merit.
V CONCLUSION
The appeal is sustained because the events tent is not an accessory use to the marina. The site plan is deemed rejected because the commission never determined coastal area management act compliance. Finally, the site plan was not required to be reviewed by the inland wetlands commission because such review was superceded by § 22a-109(a).