Opinion
No. CV02-0079277S
July 13, 2004
MEMORANDUM OF DECISION
Having reviewed the Return of Record and considered the issues raised in the lengthy briefs, this court dismisses the appeal of the plaintiff. The Court considered the broad issues framed by the parties: whether the plaintiff had reached an agreement with the Board, precluding the Board's consideration of all the issues raised in the Zoning Enforcement Officer's Cease and Desist Order; and if there was no precluding agreement, whether the Board properly upheld the issuance of the Order. For reasons set forth below, this court finds that there was no agreement of the parties which precluded the Board's consideration of all of the issues in the Cease and Desist Order; and the record supports the Board's affirmation of the propriety of the Cease and Desist Order.
The plaintiff, Complete Construction Company, Inc., owns land in Ansonia for which it obtained approval "to construct the company headquarters, to maintain a contractor's yard, and to conduct gravel mining and to process, store and sell recycled construction material within the premises." Resolution, (Site Plan — Lot 3, Woodlot Subdivision, Complete Construction, Inc.) 6/28/98. Return of Record, #5. The Site Plan proscribed certain enumerated activities; delineated the amount of material that could be stored on the property; and set forth the days and hours operation was allowable.
On January 17, 2002, the Ansonia Zoning Enforcement Officer ("ZEO"), Peter Crabtree, issued a Cease and Desist Order. In the Order, the ZEO claimed that the use of the property was in violation of the terms of the site plan. Though the ZEO did not list, with specificity, the violations he claimed to have found, he referred to uses not permitted on the property including: "(1) construction material recycling activities, equipment for crushing and sorting of said material and devices for the handling, display and sale of the processed material, and (2) extraction, processing, handling storage and sale of earth material excavated at the site." Cease and Desist Letter, dated January 17, 2002. Return of Record, #8. In addition, the ZEO concluded that the quantity of fill on the property was in excess of 400 cubic yards, requiring a temporary special exception. The Order required that the plaintiff stop "importing more fill or perform[ing] grading on the site unless and until you have made and received approval from the Planning and Zoning Commission for a Temporary Special Exception." Cease and Desist Letter, dated January 17, 2002. Return of Record, #8.
The Planning and Zoning Commission acknowledged the Cease and Desist Order during a meeting on January 28, 2002, at which the plaintiff was advised that if it wanted to challenge the Order, it should file an appeal to the Zoning Board of Appeals ("ZBA").
On January 31, 2002, the plaintiff filed an appeal to the ZBA, claiming that the Cease and Desist Order was "vague, unsubstantiated, erroneous, and fail[ed] to understand and consider prior approvals for use of the property issued in 1998." Return of Record, #10.
After scheduling and conducting several meetings/hearings, the ZBA voted, unanimously, to deny the appeal and uphold the decision of the ZEO at a Special Meeting on August 2, 2002. Return of Record, #39, p. 11-12.
The plaintiff filed this appeal, alleging that: the decision of the ZBA was erroneous and it acted arbitrarily, capriciously, and unreasonably in various ways. Underlying the plaintiff's allegations of wrong-doing is a recitation, both directly and implicitly, of "harassing," unfair and illegal treatment. Essentially, the plaintiff claims that there was no basis for the ZEO to issue the Cease and Desist Order, and that the ZBA violated the plaintiff's constitutional and legal rights in upholding the Order.
The defendant, predictably, presents a different picture, claiming that the issues framed by the plaintiff are without merit. Rather, the ZBA argues that the central issue is whether the ZBA properly upheld the issuance of the Cease and Desist Order. The defendant maintains that the record supports its decision. This court agrees.
The plaintiff presents a number of arguments in this case. Ultimately, each of them fails. Included among them are the following questions. (1) Whether there was agreement on all matters raised in the Cease and Desist Order except the propriety of the use of the Sifter? (2) Whether the defendant maintained a stenographic or audio record of the proceeding? (3) Whether the Planning and Zoning Commission considered the Cease and Desist Order? (4) Whether the witnesses were administered an oath, prior to giving testimony? (5) Whether members of the defendant improperly conducted a "tour" of the plaintiff's property? The court addresses each of the preceding questions, as follows, and finds that the subsequent answers require a dismissal of the plaintiff's appeal.
First, on the issue of the agreement, this is by far the most passionately pursued and eloquently argued of all of the plaintiff's claims. Ultimately, though, this issue is without merit because the plaintiff never conceded that the Cease and Desist Order was validly issued as to all issues except the sifter. Thus, the matter of whether or not the Cease and Desist Order was valid when issued remained a disputed issue, even if the plaintiff and the ZEO agreed on June 1, 2002 that the plaintiff's subsequent work remedied certain violations noted in the Order. The plaintiff did not withdraw its appeal, or amend it. Instead, on June 1, 2002, the plaintiff said that any violations, other than the use of the sifter, if they existed, had been corrected.
The plaintiff, as the appellant, framed the issues presented to the defendant. The plaintiff claimed in its appeal that the Cease and Desist Order was not properly issued; made no sense; and was unsubstantiated. Then, at the June 7, 2002 hearing plaintiff's counsel, on the one hand, argued that the only issue in dispute was whether the plaintiff could use the sifter. But, on the other hand, he repeatedly stated that his client did not concede that the Cease and Desist Order had been properly issued. According to the record, there was no concession by the appellant that the Cease and Desist Order had been properly issued for any matters. Therefore, this remained an unresolved issue in dispute. It is clear that the appellant sought to limit the scope of the Board's review, without conceding that it had ever been in violation of the Site Plan. And, the record indicates that there was some confusion about the effect of this. But, the appellant did not withdraw or amend the issues it presented in its appeal to the ZBA either prior to, during or following its presentation of evidence. Since the plaintiff was the one who challenged the propriety of the entire Cease and Desist Order; and since the plaintiff did not concede that the Order was valid, in any respect, the Board was entitled to consider all of the issues raised in the Cease and Desist Order when it ruled on the appeal. It was within the ZBA's jurisdiction to consider the entire Cease and Desist Order.
At the hearing on June 7, 2002, plaintiff's counsel stated:
I have had some discussions with Mr. Crabtree tonight based on work which was done at the site and it is my understanding that, without making any admissions as to whether or not there was a violation of the approvals or the fact there were violations sufficient as a basis for a cease and desist. It is my understanding that Mr. Crabtree finds, for the most part, the work on the site acceptable, and that there was an agreement for purposes of the procedure that he would so indicate with [a] caveat . . .
(Emphasis added.) Return of Record, #37, pp. 1-2.
First and foremost, we have been, if I understood what Mr. Crabtree was saying, the only issue remaining based on the voluntary actions of my client, again those were taken without any admission one way or the other that there was a violation . . . Is the issue of the sifter"
(Emphasis added.) #37, p. 6.
. . . If we had an agreement, which is my understanding that these issues have been dealt with and that the subject, in effect, taking these issues off the table, I am concerned that you are questioning my client and seeking an admission when we had expressly indicated that we are making no admissions to the Board that there is any violation.
(Emphasis added.) #37, p. 12.
Plaintiff's counsel and the members of the Board engaged in interactions about work that the plaintiff did prior to the hearing and its effect on the proceedings. But, notwithstanding plaintiff's repeated and strong assertions, there was no clear and unambiguous meeting of the minds about this issue.
Second, regarding the issue of the stenographic or audio recordings, this court has previously ruled on the matter. The plaintiff claims that "no stenographic or sound recordings of the hearing(s) were taken." Brief of Plaintiff, dated June 12, 2003, p. 23. The plaintiff made this claim during the pendency of this appeal, twice. Each time, the court (Lager, J.) denied the plaintiff's request for further discovery to address this issue. The court's (Lager, J.) prior rulings are the law of this case. Therefore, the plaintiff's renewed attempt to raise this issue is denied.
The defendant represented that the audiotapes of the March 1, and May 3, 2002 were lost or misplaced. Therefore, the record does not contain a transcript of those meetings. Nonetheless, the minutes from those meetings state that the Board did not entertain any substantive business regarding the plaintiff's appeal on those dates. The plaintiff does not dispute this, and as stated earlier, this court has previously ruled that the plaintiff must rely upon the facts before this court, presented in the record. Certain of the "meetings" held by the ZBA, the ones held on March 1, 2002 and May 3, 2002, might not meet statutory or due process requirements because of the lost audiotapes, and the resulting lack of transcripts. Ultimately, though, this is irrelevant, both because the Board undertook no business related to the appeal on those dates and because the appellant was provided full and fair hearings, which hearings were duly recorded as required by statute, as evidenced from the transcripts included in the Supplemental Return.
On March 1, 2002, the plaintiff requested that the matter be continued because less than five members of the Board were present. And, on May 1, 2002, the plaintiff requested a continuance to the June meeting, which the Board granted.
The court finds without merit the plaintiff's argument that there were no audio recordings of the hearings. The transcripts are evidence that the hearings were recorded. Further, the plaintiff did not provide any specific disputes to the reliability or accuracy of the transcripts.
Third, in its brief the plaintiff claims that the Planning and Zoning Commission impermissibly considered the appeal of the Cease and Desist Order. This is a mis-characterization of the facts. However one views the propriety or wisdom of the Planning and Zoning Commission's actions concerning the Cease and Desist Order, the Commission clearly did not entertain the appeal. It is true that the record reflects that the Commission considered on its agenda the Cease and Desist Order, prior to the filing of the appeal. And, that Commission members toured the plaintiff's property with plaintiff's consent. But, the record provides documentation that members of the Commission advised the plaintiff to file an appeal with the ZBA if it wished to challenge the Cease and Desist Order because the Planning and Zoning Commission was not empowered to consider the appeal. To be sure, the involvement of certain members of the Commission raises certain potentially disturbing notions. And, this court is not entirely satisfied with the explanation about why the Commission considered, as an agenda item, the Cease and Desist Order only 11 days after it had been issued. But, ultimately, the plaintiff fails to present any evidence to establish that the actions of the Commission were, strictly speaking, improper or that they influenced, in an impermissible way, the ZBA in their ruling on the Cease and Desist Order.
The parties did not provide to this court a copy of the Zoning Regulations. Therefore, it is not clear what the proper procedure was for the Planning and Zoning Commission to have followed.
Fourth, the plaintiff claims that it was denied the right to present, and cross-examine witnesses and that the witnesses who presented testimony were not administered an oath. The record establishes that the plaintiff was able to present witnesses; and that plaintiff's counsel was afforded an opportunity for cross-examination. On the issue of the witness oath, even plaintiff's counsel conceded, on the record, during the April 5, 2002 hearing before the ZBA that this was not absolutely necessary. Plaintiff's counsel stated: "I would request the Board, if it so desires, and I would request to put [the witness] under oath before this Board, and if the Board refuses, fine, then we will move on. I can still questions [the witness]." Return of Record, #36, p. 5. Further, Plaintiff presented no legal authority to this court to support its assertion, that witnesses must be placed under oath in proceedings before the ZBA. Why an administrative agency would find swearing witnesses in abhorrent is unclear. But, in this case, the ZBA did not administer oaths to the witnesses. Nonetheless, the plaintiff has provided no legal basis for this court to conclude that this is illegal or that this fact, standing alone, is sufficient to overturn the decision of the Board.
Members of the Board expressed clear sentiments in opposition to administering an oath to each witness. When told that the Board could put a witness under oath, the Chairman replied: "Under oath?" and then, "We're not lawyers here." Return of Record, #36, p. 4. A few moments later, another member stated: "I don't believe that there was any call for swearing under oath in public hearings." Return of Record, #36, p. 5. Ultimately, the Chairman of the Board concluded: "Well, we have never put anybody under oath here since I have been on this Board, and I have been on this Board for, geez, a longtime, and this is the first I have had anybody come in here and ask me to put under oath. I would let Mr. Crabtree talk on his behalf in front of this Board, and this Board will listen to what he has to say, and then we would like to listen to what you have to say about the cease and desist order . . ." Return of Record, # 36, pp. 5-6.
Fifth, the plaintiff claims that the Board illegally toured his property. The plaintiff provided no legal support for his conclusion that because the Board attempted to or did tour his property while considering his appeal, this was illegal or invalidated its ultimate holding. This claim of an illegal tour again provides a whiff of impropriety, without substantiating what the basis for the impropriety is. Therefore, the court must conclude that a tour, if one took place, did not invalidate the process of the Board.
The Board acts in a quasi-judicial role, when determining the sufficiency of appeals from Cease and Desist Orders. It is empowered "to hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the zoning enforcement officer." Dimenstein v. Zoning Board of Milford, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 91-035697 (Fuller, J., August 30, 1991) ( 4 Conn. L. Rptr. 780). The question for this court is whether or not the Board's upholding the Order was in accordance with the law and was supported by the record. On legal issues, the court reviews the issues, de novo. The court, however, must take the facts found by the Board. "Where the Board gives reasons for its action, the question is whether the reasons given are supported by the record . . . If the Board fails to give reasons, the Court searches the record to discover a sufficient reason to support the Board's decision." (Citations omitted.) Id.
The plaintiff established aggrievement. Ultimately, this court finds that the record sufficiently supports the action of the Board in upholding the Cease and Desist Order. The plaintiff requested that the Board determine whether or not the ZEO's Cease and Desist Order was proper. The Plaintiff requested that the Board consider the witnesses it presented; the documents it submitted; and that the Board take judicial notice of, inter alia, the minutes of the Planning and Zoning Commission hearings and transcripts of all Planning and Zoning Commission hearings held in connection with the 1997/1998 site plan review. The Board did not issue a written ruling articulating the basis for its decision. But, the record clearly reflects that the Board upheld the issuance of the Order because it found that at the time the Order was issued: the plaintiff had improperly sorted fill; the plaintiff had improperly graded the premises; the piles of fill on the property exceeded 25 feet; the plaintiff had not planted the proper trees; the storage area was not properly closed. Additionally, the Board upheld Cease and Desist Order because it concluded that the use of the sifter violated the Site Plan. Though the plaintiff disagrees with these factual findings, or argued that many of the violations were corrected, this does not change the validity of the Board's actions.
It is quite clear from the record that there is a charged and animated history among the participants. Certainly, there is an undercurrent of long-standing and strongly held convictions for and against either side. Yet, these undercurrents or whiffs do not provide a basis upon which this court can conclude that the process employed by the Board was improper. Nor can this court conclude that the decision of the ZBA resulting from that process was unfounded. Would a more formal, stricter process have been more comfortable for the plaintiff and easier for the court to review on appeal? Absolutely. But, this begs the question. Following the issuance of the Cease and Desist Order, the plaintiff was provided with due process. The plaintiff framed the issues on appeal. The plaintiff presented evidence and was afforded an opportunity to cross-examine the evidence against it. The Board properly considered the issues raised on appeal and decided the requisite predicate facts. Those findings are supported in the record. Accordingly, the court dismisses this appeal.
Robinson, J. (A)