Opinion
CV156050198S
04-28-2016
Scott L. Farrington-Posner et al. v. Zoning Commission of the Town of Stratford et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Dale W. Radcliffe, J.
FACTS
This appeal concerns an attempt by the Defendant, AAA Northeast, Inc., to construct and operate a complex which it describes as a " fleet center, " office and vehicle service facility (ROR 1) at 382 Ferry Boulevard, Stratford. AAA Northeast, Inc. is the contract purchaser of the property, which is owned by one Norma Berry, a resident of West Hartford (ROR 1; ROR 28, p. 1).
382 Ferry Boulevard consists of 2.49 acres, and is located at the corner of Ferry Boulevard and Willow Street. The parcel has 272.19 feet of frontage along Ferry Boulevard, and 242.18 feet of frontage on Willow Street, a residential side street. No improvements, other than a Quonset hut (ROR 18) are situated on the property.
The parcel is located in two zoning districts. The first three hundred fifty (350) feet measured from Ferry Boulevard to the rear of the property, approximately 77 percent of the area, is contained within a Commercial CA Zone. Commercial enterprises are located on Ferry Boulevard, including Salce Construction, Schock's Autobody, and a retail gasoline station and convenience store. (ROR 18, photos 3, 4 & 5.)
The remaining 23 percent of the property is zoned for residential use, and is within an RS-4 (single-family residential) Zone. The residentially zoned component of 382 Ferry Boulevard abuts residences with addresses on Willow Avenue, and Homestead Avenue. The zone line bisects the property diagonally, and is bounded on three sides by residentially zoned property. (Ex. 2.)
The proposal submitted by AAA Northeast, Inc., envisioned a 13, 750-square-foot commercial building, which would be used as a fleet center, office and vehicle repair facility. In its special case (special permit) application, AAA Northeast, Inc. cited several provisions of the Stratford Zoning Regulations: Section 3.4.4, Section 7.1.4, Section 20.1 and Section 20.2. (ROR 1.)
The proposed structure contemplated several uses of the facility. The proposed allocation of space was (ROR 28, p. 4-5):
Office Use
6, 675 sq. ft.
Vehicle Service
3, 910 sq. ft.
Warehouse, Parts
3, 165 sq. ft.
TOTAL
13, 750 sq. ft.
Two shifts would report to work at the location. Sixty (60) or seventy (70) employees would report during the 7 a.m. to 3 p.m. shift. Of that number, approximately thirty (30) would remain on site as office staff. The remainder would park their private vehicles in the parking lot, and pick up trucks which would be kept on the property. After picking up the AAA vehicles, the truck operators would leave the site.
A second group of employees would report to the property for the 3 p.m. to 11 p.m. shift. Twenty (20) or thirty (30) of these employees would pick up trucks and leave the location, while ten (10) office and dispatch employees would remain. (ROR 28, p. 5.)
The interior of the facility would consist of offices for AAA staff, four service bays, a training bay, and a warehouse area devoted to spare parts, tires and batteries. All vehicle servicing would involve vehicles used and maintained by AAA. No repair or maintenance of private motor vehicles would be permitted, not would automobile parts be sold at retail.
The proposed parking lot is designed to accommodate one hundred forty-two (142) vehicles. Fifty-three (53) trucks will leave the property when the shift begins, and will return at the end of the shift. (ROR 28, p. 16.)
Three approvals were sought from the Stratford Zoning Commission: 1) a special case approval based on the size of the proposed building, 2) a coastal site plan review, and 3) a general repairers and service license.
AAA Northeast, Inc. claimed that its fleet center was a permitted use in a Commercial CA Zone, pursuant to Section 7.1.4 of the Stratford Zoning Regulations. That section reads:
S. 7.1.4--Uses Permitted in Retail Commercial Districts CA and CNC Public garages, motor vehicle service stations with limited and general repairers license, and automotive sales rooms or outdoor sales areas for these uses, provided, however, a self-service gasoline station shall be subject to the approval of the Zoning Commission as a special case.
The Defendant, AAA Northeast, Inc., insists that its fleet center is a permitted use in a CA Zone, because it is a " motor vehicle service station with limited and general repairers license." Pursuant to S. 7.1.4, this use does not require an application for special permit approval, unless a self-service gasoling station is planned.
However, AAA Northeast, Inc., concedes that special case approval is mandatory in this instance, because the proposed commercial office building is in excess of 5, 000 square feet.
Section 20.1, Stratford Zoning Regulations.
Because only a portion of 382 Ferry Boulevard is located in a Commercial CA Zone, while the balance is in a Residential RS-4 Zone, AAA Northeast, Inc. invoked Section 3.4.4 of the Stratford Zoning Regulations. No change in zoning classification from residential to commercial was requested.
Section 3.4.4 reads:
In all cases where, following the extension of the regulations applicable to the less restricted district in accordance with the provisions of either paragraph 3.4.1 or 3.4.2 the Zoning Commission finds that the remainder of the lot lying in the more restricted district is unusable for any of the uses permitted in the said more restricted district, for other than self-inflicted reasons, the Zoning Commission may, subject to a public hearing, authorize the extension of the regulation applicable to the less restricted district to the entire lot if, in its judgment, such extension can be so regulated by means of appropriate conditions and safeguards any deleterious effect on adjacent properties located in the more restricted district.
AAA Northeast, Inc. maintains that the residential segment of 382 Ferry Boulevard is only accessible over the commercially zoned portion of the property, and is otherwise landlocked. The applicant argues that the area is not suitable for residential purposes, and should therefore be treated as commercially zoned property. (ROR 28, p. 13.)
Several homeowners, including the Plaintiffs Scott L. Farrington-Posner and Justin Dupray, spoke in opposition to the proposal. (ROR 28, p. 21-26.) Opponents highlighted the intensity of the proposed use, including noise when the shifts change, and related traffic concerns. They argued that the AAA operation would compromise the residential character of their neighborhood.
Following the close of the public hearing, the Stratford Zoning Commission discussed the proposal, and the requested approvals. A motion to approve 382 Ferry Boulevard for the use proposed by AAA Northeast, Inc. was made, and was adopted unanimously. (ROR 24, p. 2.)
Although the minutes reflect that commissioners noted that " even though there was opposition to this project that this area is zoned for that purpose and residents have to realize this when they purchase property, " no collective reasons were given by the Zoning Commission in support of the action, as required by General Statutes § 8-3c(b).
Section 8-3c(b), C.G.S.--" . . . Whenever a commission grants or denies a special permit or special exception, it shall state upon its records the reason for its decision . . ."
Notice of the decision was published in the Connecticut Post on June 1, 2015. (ROR 26.)
Following publication, the Plaintiffs Scott L. Farrington-Posner, Dana M. Farrington-Posner, Barbara J. Wendell, Justin Dupray and Kerstin Dupray, commenced this timely appeal.
AGGRIEVEMENT
This appeal is brought by individual homeowners, who own and occupy property on Homestead Avenue, a public street. Their properties all abut 382 Ferry Boulevard. (Ex. 2.)
The Plaintiffs, Scott L. Farrington-Posner and Dana M. Farrington-Posner are the record owners of 76 Homestead Avenue, having purchased the property in 2008 (Ex. 3), while Justin and Kerstin Dupray own 42 Homestead Avenue (Ex. 1), which was purchased in 2004 via a warranty deed recorded at Volume 1810, pages 172-73 of the Stratford Land Records (Ex. 1). Title was initially taken in the name of Kerstin M. Uberti. A change of name certificate is recorded at Volume 2082, Page 123 (Ex. 1) of the Stratford Land Records.
Barbara J. Wendel purchased 64 Homestead Avenue, along with her late husband in 1997. (Ex. 4.)
Each of the five named Plaintiffs have owned their homes, during the entire time this appeal has been pending.
Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an appeal. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996); Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991). The question of aggrievement is one of fact, to be determined by the trial court. Primerica v. Planning & Zoning Commission, 211 Conn. 85, 558 A.2d 646, (1989); Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 508, 242 A.2d 705 (1968).
Two broad categories of aggrievement have been recognized--statutory aggrievement, and classical aggrievement.
Statutory aggrievement exist by legislative fiat, rather than by an analysis of the facts of a particular case. Weill v. Lieberman, 195 Conn. 123, 124-25, 486 A.2d 634 (1985); Pierce v. Zoning Board of Appeals, 7 Conn.App. 632, 635-36, 509 A.2d 1085 (1986). One claiming statutory aggrievement must show that a particular statute grants to a party standing to pursue an appeal, without the necessity of demonstrating actual injury based upon the particular facts at hand. Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2005); Fort Trumbull Conservancy v. Alves, 262 Conn. 480, 485-87, 815 A.2d 1188 (2003).
Section 8-8(a)(1) of the General Statutes defines " aggrieved person" to include:
. . . any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.
Classical aggrievement, on the other hand, requires a party claiming to be aggrieved to satisfy a well-established two-fold test: 1) that party must show a specific personal and legal interest in the subject matter of the decision, as distinct from a general interest such as concern of all members of the community as a whole, and 2) the party claiming to be aggrieved must show that the personal and legal interest has been specifically and injuriously affected by the decision which generated the appeal. Cannavo Enterprises v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984).
All Plaintiffs own real property, which abuts 382 Ferry Boulevard. It is therefore found that each of the named Plaintiffs has satisfied the test for statutory aggrievement, and the court has jurisdiction to hear their appeal.
Because statutory aggrievement has been proven, it is unnecessary to determine whether any Plaintiff would also meet the test for classical aggrievement. No evidence from which a finding of classical aggrievement could be made was presented at trial.
STANDARD OF REVIEW--SPECIAL PERMIT (SPECIAL CASE)
A special permit, or special case as it is designated in the Stratford Zoning Regulations, allows a property owner to use property in a manner which is expressly permitted by the zoning regulations. A.P.& W. Holding Corporation v. Planning & Zoning Commission, 167 Conn. 182, 185, 355 A.2d 91 (1974); Kobyluck v. Planning & Zoning Commission, 84 Conn.App. 160, 169-70, 852 A.2d 826 (2004). The terms " special permit" and " special exception" (special case) have the same meaning and are often used interchangeably. Summ v. Zoning Commission, 150 Conn. 79, 87, 186 A.2d 160 (1962).
A zoning commission's authority to issue a special permit is derived from S. 8-2 of the General Statutes. The authorizing statute does not permit a commission, in the exercise of its discretion, to vary the application of its regulations on a case by case basis. Mackenzie v. Planning & Zoning Commission, 146 Conn.App. 406, 428-29, 77 A.3d 904 (2013). While S. 8-2 permits the imposition of conditions, those conditions must be authorized by the zoning regulations themselves, and must be necessary to protect the public health, safety, convenience and property values. Housatonic Terminal Corporation v. Planning & Zoning Board, 168 Conn. 304, 307, 362 A.2d 1375 (1975).
Section 8-2, C.G.S.--" . . . regulations . . . may provide that certain . . . uses of land are permitted only after obtaining a special permit . . . subject to standards set forth in the regulations and conditions necessary to protect public health, safety, convenience and property values . . ."
When ruling upon an application for a special permit (special case), a commission sits in an administrative capacity, rather than in a legislative or quasi-judicial capacity. Irwin v. Planning & Zoning Commission, 244 Conn. 619, 627, 711 A.2d 675 (1988); Goldberg v. Zoning Commission, 173 Conn. 23, 29, 376 A.2d 385 (1997); Farina v. Zoning Board of Appeals, 157 Conn. 420, 422, 254 A.2d 492 (1969). The commission has no independent discretion beyond determining whether an application, as presented, satisfies the standards set forth in the regulations. Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, 55 Conn.App. 533, 537, 738 A.2d 1157 (1999). The conditions under which a special permit is permitted, must be found in the regulations themselves. Beckish v. Planning & Zoning Commission, 162 Conn. 11, 15, 291 A.2d 208 (1971).
When considering a special permit application, a commission is empowered to determine: 1) whether the proposed use of the property is permitted under the zoning regulations, 2) whether the standards contained in the regulations are satisfied, and 3) whether any conditions of approval or modifications are necessary in order to protect public health, safety, convenience and property values. Housatonic Terminal Corporation v. Planning & Zoning Commission, supra, 307. Sitting in an administrative capacity, a commission has a right to determine, within prescribed limits, whether a particular regulation applies, and the manner in which it applies. Irwin v. Planning & Zoning Commission, supra, 627. However, the discretion exercised must be controlled by fixed standards applying in all cases, in a like manner. Sonn v. Planning Com. of Bristol, 172 Conn. 156, 163, 374 A.2d 159 (1976).
Although a special permit enables a property owner to use property in a manner that is permitted by the zoning regulations, a permit must be obtained, because the nature of the use is such that the exact location and operation must be regulated, due to unique topographical conditions, traffic problems and neighborhood uses. Barberino Realty & Dev. Corp. v. Planning & Zoning Com., 222 Conn. 607, 612, 610 A.2d 1205 (1992).
In applying the law to the facts of a particular case, a commission is endowed with liberal discretion, and its actions are subject to review by a court only to determine whether the challenged action was unreasonable, arbitrary or illegal. Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988); Raczkowski v. Zoning Commission, 53 Conn.App. 636, 639, 733 A.2d 862 (1999). On factual questions, a court cannot substitute its judgment for that of the commission. Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 380, 401, 610 A.2d 620 (1992). The burden is on the party challenging the action, to show that the commission acted unreasonably, arbitrarily or illegally. Baron v. Planning & Zoning Commission, 22 Conn.App. 255, 257, 576 A.2d 589 (1990).
Where, as here, the Defendant Stratford Zoning Commission failed to state collective reasons for its action, as required by S. 8-3c(b), that omission is not fatal. The court is required to search the record to determine whether the record compiled before the Commission provides a basis for the decision. Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 544-45, 600 A.2d 757 (1991); Parks v. Planning & Zoning Commission, 178 Conn. 657, 661-62, 425 A.2d 100 (1979).
SECTION 3.4.4 OF THE STRATFORD ZONING REGULATIONS EXCEEDS THE AUTHORITY CONFERRED BY STATUTE UPON A MUNICIPAL ZONING COMMISSION, AND USURPS POWERS GIVEN BY LAW TO A MUNICIPAL ZONING BOARD OF APPEALS
The special permit issued by the Stratford Zoning Commission to AAA Northeast, Inc., is predicated upon the valid adoption and implementation of S. 3.4.4 of Stratford Zoning Regulations.
Section 3.4.4 permits the Zoning Commission to apply the regulations applicable to a commercial zone, to residentially zoned property, without the necessity of changing the zoning classification of the parcel from residential to commercial. The powers of the Zoning Commission, pursuant to the regulation, may be exercised only upon findings by the Zoning Commission that: 1) the portion of the property lying within the more restricted zone is unusable for any of the uses permitted in that district, 2) the reason for the lack of suitability is not " self-inflicted, " and 3) the extension of the zoning regulations will not adversely affect neighboring properties, because conditions and safeguards can be promulgated by the Zoning Commission.
The Plaintiffs maintain that Section 3.4.4 is not authorized by any provision of the General Statutes, and violates the " uniformity" provision of General Statutes S. 8-2, which requires all regulations adopted by a Zoning Commission to be:
. . . uniform for each class or kind of buildings, structures or uses of land throughout each district . . .
It is also claimed that the regulation usurps powers and prerogatives committed to the province of the Stratford Zoning Board of Appeals pursuant to S. 8-6 of General Statutes, and has the effect of creating a non-conforming use of the property in question.
Section 8-6(a), C.G.S.--" (a) The zoning board of appeals shall have the following powers and duties . . . (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with the general purpose and intent and with due consideration for conserving the public health, safety, convenience and property values soley with regard to a parcel or land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such laws ordinances or regulations would result in exceptional difficulty or unusual hardship, so that substantial justice will be done, and the public safety and welfare secured . . ."
Each of these claims in meritorious, and well taken.
At one time, any attack on the validity of a land use regulation could only be instituted through the filing of a declaratory judgment action. Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 563, 552 A.2d 796 (1989). The Cioffoletti rule was expressly abandoned by the Connecticut Supreme Court in Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 582, 715 A.2d 46 (1998), where a tax appeal was combined with claims seeking declaratory relief. Since Stafford Higgins, out Appellate Court has made it clear that one found to be aggrieved, may attack the validity of a regulation of general application, without resorting to a declaratory judgment suit. Warner v. Planning & Zoning Commission, 120 Conn.App. 50, 56, 990 A.2d 1243 (2010); Berlin Batting Cages, Inc. v. Planning & Zoning Commission, 76 Conn.App. 199, 214, 821 A.2d 269 (2003); Lewis v. Planning & Zoning Commission, 62 Conn.App. 284, 297, 771 A.2d 167 (2001).
Any challenge to S. 3.4.4 of the Stratford Zoning Regulations, is therefore properly raised in this appeal.
As a creature of the State, a municipality, whether acting itself or through its planning and zoning commission, has no inherent powers of its own, and it possesses only such rights and powers as have been expressly granted to it by the State. Buttermilk Farms, LLC v. Planning & Zoning Commission, 292 Conn. 317, 326, 973 A.2d 64 (2009); Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 19, 523 A.2d 467 (1987); Simons v. Canty, 195 Conn. 524, 529, 488 A.2d 1267 (1985). A municipality, as a specially chartered corporation, may only exercise those powers granted to it by the General Assembly. City Council v. Hall, 180 Conn. 243, 248, 429 A.2d 481 (1980).
As an administrative authority, a Zoning Commission can only exercise those powers which have been validly conferred upon it by the legislature. It cannot change the statutory provisions under which it acquires authority, unless the statute specifically grants it that authority. Finn v. Planning & Zoning Commission, 156 Conn. 540, 546, 244 A.2d 391 (1968). The question in all cases is whether there is statutory authority for the municipal zoning regulation. Avonside, Inc. v. Zoning & Planning Commission, 153 Conn. 232, 236, 215 A.2d 409 (1965). The delegation of authority is narrowly construed. An enumeration of powers in a statute is uniformly held to forbid those things which are not enumerated. State ex rel Barnard v. Ambrogio, 162 Conn. 491, 498, 294 A.2d 529 (1972).
The purpose of the uniformity requirement in S. 8-2, is to ensure all property owners that there will be no improper discrimination, and that all owners of the same class, in the same district, shall be treated alike. Kaufman v. Zoning Commission, 232 Conn. 122, 143, 653 A.2d 798 (1995); Lewis v. Swan, 49 Conn.App. 669, 683, 716 A.2d 127 (1998). The uniformity requirement precludes a zoning commission, when acting administratively, from varying the zoning regulations of a given district on a case by case basis. Veseskis v. Zoning Commission, 168 Conn. 358, 359-60, 362 A.2d 538 (1975); MacKenzie v. Planning & Zoning Commission, supra, 432.
Section 3.4.4 of the Stratford Zoning Regulations requires a Zoning Commission to abandon its administrative role when deciding a special case application, and to assume a legislative and quasi-judicial function. The findings required by the regulation, are not informed by any standards, and cannot be made without the case by case analysis which is ill suited to the administrative process.
A prospective applicant is unable to determine whether a proposal will meet with the approval of the Zoning Commission, in the absence of known and fixed standards with which the applicant must comply.
Furthermore, no provision of the general Statutes permits a commission, whether acting administratively or legislatively, to extend zoning regulations applicable to one zoning district, into another district, without the formalities of a change of zoning classification application.
At trial, the Defendants suggested that S. 3.4.4 allows for a " de facto " change of zone. No provision of the General Statutes permits the establishment of a " de facto " zone, and the court has located no case law justification for any " de facto " change in zoning regulations, unaccompanied by the legislative act of adopting a specific zoning regulation, or a change in the applicable zoning designation.
The Zoning Commission's approval of AAA Northeast, Inc.'s special case proposal, rendered the zoning regulations applicable to the Commercial CA Zone, applicable to the Residential RS-4 Zone. Because this was accomplished without a change in zoning classification, a nonconforming use of the residentially zone portion of 382 Ferry Boulevard has resulted.
The General Statutes do not sanction the creation of a nonconforming use of property by a municipal planning and zoning commission. It is a cardinal principle of zoning law that nonconforming uses should be abolished, or reduced to conformity as quickly as the fair interests of the parties will admit. Under no circumstances, would they be permitted to increase. Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 382, 311 A.2d 77 (1972); Raffael v. Planning & Zoning Board of Appeals, 157 Conn. 454, 462, 254 A.2d 868 (1969); McMahon v. Board of Zoning Appeals, 140 Conn. 433, 440, 101 A.2d 284 (1953).
The Stratford regulation at issue in this case, turns that established principle on its head. Not only does the Zoning Commission's action fail to reduce an existing nonconformity, it creates a nonconforming use of land, where none previously existed.
The effect of S. 3.4.4 represents the antithesis of the public policy concerning nonconforming uses of land, and cannot be justified as part of the special case procedure.
Section 3.4.4, by its terms, employs language commonly associated with municipal zoning board of appeals, when deciding an issue of hardship. No provision of the General Statutes permits a zoning commission to adopt regulations empowering itself to vary the application of zoning regulations, when acting upon a special case or special permit application. South End Property Owners & Residents Association v. City Plan Commission, 156 Conn. 587, 591, 244 A.2d 394 (1968).
The power to provide for elasticity in the application of zoning ordinances is given, by statute, to a municipal zoning board of appeals. Mackenzie v. Planning & Zoning Commission, supra, 426-28. The powers of a zoning board of appeals emanate from S. 8-6 of the General Statutes. A zoning board of appeals fulfills the role of a court of equity in the zoning process. R. Fuller, 9 Connecticut Practice Series: Land use Law and Practice (3d Ed. 2007) S. 9.1, p. 237-38. That power cannot be diminished or curtailed by restrictions contained in zoning regulations. Langer v. Planning & Zoning Commission, 163 Conn. 453, 458, 313 A.2d 44 (1972).
In Langer, the Supreme Court found that a regulation which allowed the planning and zoning commission to modify, vary or accept certain uses where a literal enforcement of the regulation would result in practical difficulties, was beyond the scope of the commission's authority, and trespassed upon the prerogatives of the zoning board of appeals. Langer v. Planning & Zoning Commission, supra, 457-58.
That S. 3.4.4 permits the Stratford Zoning Commission to usurp the authority vested in the zoning board of appeals, is evident from the language employed in the regulation. Section 3.4.4 requires a finding that a parcel is " unusable for any of the uses permitted in the said more restricted zoning district for other than self-inflicted reasons ." (Emphasis added.)
The " self-inflicted" test is employed by a zoning board of appeals when determining whether a variance should be granted. A self-inflicted hardship, which arises because of individual actions of the applicant, will not provide a zoning board of appeals with sufficient reason to grant a variance. Pollard v. Zoning Board of Appeals, 186 Conn. 32, 40, 438 A.2d 1186 (1982); Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 299, 429 A.2d 883 (1980); Abel v. Zoning Board of Appeals, 172 Conn. 286, 289, 374 A.2d 227 (1977).
Because only a zoning board of appeals has the statutory authority to grant variances, the exclusive authority to vary the zoning regulations is vested in the municipal zoning board of appeals. MacKenzie v. Planning & Zoning Commission, supra, 428.
The provisions of S. 3.4.4 which permit the Stratford Zoning Commission to extend the regulations applicable to one zone into another zone on a case by case basis are, therefore, invalid.
Furthermore, a review of the record reveals that a portion of the residentially zoned property is being maintained by the Plaintiff Scott Farrington-Posner as a lawn, adjacent to his home. He claims to have maintained the lawn for seven years, and alleged that the prior owner maintained the lawn for the ten (10) years preceding his taking possession and title to the property. (ROR 28, p. 23-24.)
Without deciding whether the land was posessed and maintained openly, continuously, notoriously and under a claim of right adverse to the true owner for fifteen (15) years, it can be ascertained from the record that part of the residentially zoned land is being used for a purpose consistent with a residential zone.
Section 3.4.4 of the Stratford Zoning Regulations is not authorized by any provision of the General Statutes, and usurps the powers and responsibilities of the Zoning Board of Appeals. Therefore, it cannot provide the basis for the special case approval which the Zoning Commission voted, when deciding the application of the Defendant, AAA Northeast, Inc.
SECTION 7.1.4 OF THE ZONING REGULATIONS IS NOT APPLICABLE TO THE APPLICATION FOR FLEET CENTER APPROVAL
AAA Northeast, Inc.'s special case application is also fatally flawed, in that the proposed " fleet center, office and vehicle service facility, " can not be justified as a permitted use in a Commercial CA Zone, pursuant to S. 7.1.4 of the Zoning Regulations.
Pursuant to S. 7.1.4, the uses allowed as permitted uses are:
1. Public garages.
2. Motor vehicle service stations with limited and general repairers license.
3. Automobile sales rooms or outdoor sales areas.
All of these are allowed in Commercial CA Zone as a matter of right. No special case approval is required for any of these uses. Under S. 7.1.4, only a self-service gasoline station requires special case approval by the Stratford Zoning Commission.
Clearly, the " fleet center" proposal is not a public garage, or an automobile sales room. The Defendant, AAA Northeast, Inc., claims that its use is analogous to that of a " motor vehicle service station with general repairers license."
This claim is not persuasive.
The term " fleet center" is not defined in the Stratford Zoning Regulations. As the Plaintiffs point out, a " truck terminal, " is a permitted use under the Regulations, but only in MA Light Industrial Zone. Section 10.2.1.2.12 of the Stratford Regulations defines as a permitted use in the MA Light Industrial Zone.
" Truck terminals subject to the approval of the Zoning Commission as a Special Case . . ."
The Plaintiffs further argue that the fleet center, complete with a fleet of trucks to be maintained and serviced on site, a dispatch center, conference rooms, training bays, vehicle maintenance areas, and space for storage of parts and tires, is not analogous to a service station open to the public where private vehicles are repaired.
This claim is valid, and the effort by AAA Northeast, Inc. to shoehorn its proposal into S. 7.1.4, will not succeed.
Zoning regulations are local legislative enactments. As such, their interpretation is governed by the same principles that apply to the construction of statutes. Newman v. Planning & Zoning Commission, 293 Conn. 209, 214, 976 A.2d 698 (2009). Because zoning regulations are in derogation of the common law, and the rights of property owners, they must be strictly construed, and not extended by implication. Regulations must be interpreted, so as to reconcile their provisions and make them operative, so far as possible. Krazia v. Planning & Zoning Commission, 304 Conn. 447, 453-54, 41 A.3d 258 (2012); Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 153, 543 A.2d 1339 (1988).
A local zoning regulation must be interpreted to intend a reasonable and rational result. Day v. Middletown, 59 Conn.App. 816, 822, 757 A.2d 1267 (2000). Because the regulations are in derogation of the common law, and common-law property rights, they cannot be construed to include, or to exclude by implication, what is not clearly within their express terms. Mountain Brook Ass'n, Inc. v. Zoning Board of Appeals, 133 Conn.App. 359, 371, 37 A.3d 748 (2012); Coppola v. Zoning Board of Appeals, 23 Conn.App. 636, 640-41, 583 A.2d 650 (1990). Zoning regulations are permissive in nature. Those matters which are not specifically permitted, are prohibited. Bradley v. Zoning Board of Appeals, 165 Conn. 389, 394, 334 A.2d 914 (1973).
Although a court is not bound by a zoning authority's interpretation of a regulation, a time-tested interpretation would be entitled to weight. Jalowiec Realty Associates, LP v. Planning & Zoning Commission, 278 Conn. 408, 414, 898 A.2d 157 (2006). However, where, as here, an agency's determination of a question of law has not been previously subject to judicial scrutiny, no special deference is warranted, and it is for the court to apply governing principles of law. This principle applies to both regulations, and to statutes. Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 408, 920 A.2d 1000 (2007).
Despite their most ingenuous efforts, the Defendants are unable to contort the clear provisions of S. 7.1.4 to include the " fleet center" presented by AAA Northeast, Inc. This facility, as demonstrated during the course of the public hearing, includes offices and conference rooms, facilities to service vehicles owned by AAA, and storage areas. Employees are expected to report to the site each day to pick up trucks, before leaving the location, and parking their private vehicles on site. Over fifty (50) trucks will remain at 382 Ferry Boulevard, when not in use.
No repair of public vehicles will be performed on the site, nor will gasoline or petroleum products be sold to the public at retail.
This " fleet center, " and its 13, 750-square-foot facility, is not a " motor vehicle service station" as that phrase is commonly understood, and will not be so construed, through a tortured construction of the Regulation.
It is particularly telling, that no special permit is required, pursuant to S. 7.1.4, in order to locate a " motor vehicle service station" within a Commercial CA Zone. The Regulation does, however, mandate a special case procedure when a self-service gasoline station is sought. To require a special case application for a self-service gasoline station, while eschewing the special case procedure when a " fleet center" is proposed, is a bizarre result, and cannot be ratified. Planning & Zoning Commission v. Gilbert, 208 Conn. 696, 705-06, 546 A.2d 823 (1988).
AAA Northeast, LLC was free to seek an amendment to the Stratford Zoning Regulations, designed to define the term " fleet center, " and to render that use permitted in a Commercial CA Zone, presumably dependent upon special case approval.
However, just as it did not request a change in zoning classification covering the portion of 382 Ferry Boulevard which is zoned Residential RS-4, it failed to suggest an amendment to the Stratford Regulations, and chose to rely on the provisions of S. 7.1.4. This reliance dooms its special case application.
CONCLUSION
The Plaintiffs' appeal is SUSTAINED.