Opinion
No. CV 07-4105608
March 27, 2008
MEMORANDUM OF DECISION
This is an appeal by the plaintiff, Jewett City Savings Bank, from the decision of the defendant, the Franklin zoning board of appeals (zoning board), denying the plaintiff's application for variances of §§ 2.1, 4.4.2, 4.4.4 and 4.4.5 of the Franklin zoning regulations (regulations) to construct a residence on a rear lot of property owned by the plaintiff (the property). The plaintiff claims that the defendant acted illegally and in abuse of its discretion.
The sections of the zoning regulations provide in relevant part:
2.1 DEFINITIONS. . .
BUILDABLE AREA: A contiguous area any part of which could contain an onsite septic system, a water supply well, or a building in compliance with the provisions of these regulations. No more than 20% of such area may consist of slopes greater than 20%. . .
4.4 DIMENSIONAL REQUIREMENTS. . .
4.4.2. Minimum frontage in a street: 200 consecutive feet . . .
4.4.4. Side and rear yards: 25 feet.
4.4.5. Minimum lot width: 200 feet.
(Emphasis in original.)
The following facts and procedural history are relevant to the plaintiff's appeal. On January 17, 2001, the plaintiff acquired three irregular and vaguely described parcels of land. Subsequently, the plaintiff arranged to have the parcels surveyed. After the survey was completed, the plaintiff sold a portion of the parcels, leaving the plaintiff with the property consisting of approximately four acres of unimproved land, which it is now seeking to develop and which is the subject of this appeal.
On July 26, 2004, the plaintiff filed an application with the Franklin Planning and Zoning Commission (commission) for a special exception pursuant to § 4.3.7 of the regulations seeking to use and develop the property. After conducting a public hearing on the plaintiff's application, on October 19, 2004, the commission denied the special exception application for the following reason: "The applicant does not meet the Town of Franklin Zoning Regulations, in reference to Chapter 2, Definition 2.1, defining Buildable Area." The plaintiff appealed the commission's decision to the Superior Court on November 5, 2004. Concurrently, the plaintiff appealed the commission's decision to the zoning board pursuant to § 3.5B of the regulations. In addition to the foregoing appeals, the plaintiff also filed for a declaratory judgment and a temporary injunction precluding the zoning board from proceeding with the appeal on the ground that it was not authorized by General Statutes § 8-6(a)(1). The trial court rendered judgment for the plaintiff, declaring § 3.5B of the regulations void and temporarily enjoining the zoning board from proceeding with the plaintiff's appeal. Jewett City Savings Bank v. Franklin, Superior Court, judicial district of New London at Norwich, Docket No. CV 04 4100904 (April 19, 2005, Leuba, J.T.R.). The Supreme Court reversed the trial court's decision, concluding that § 3.5B of the regulations is valid and denied the injunctive relief sought by the plaintiff. Jewett City Saving Bank v. Franklin, 280 Conn. 274 (2004). The zoning board conducted a public hearing on the plaintiff's appeal from the decision of the commission and denied the appeal, thus sustaining the action of the commission. The plaintiff is now appealing the zoning board's decision concerning the interpretation of buildable area under § 2.1 of the regulations.
Section 4.3 of the zoning regulations of the town of Franklin provides in relevant part:
SPECIAL EXCEPTIONS: The following uses are permitted provided they meet the conditions of Chapter 10 of these Regulations. . .
4.3.7. Rear lots.
Section 3.5 of the regulations provides in relevant part: "Any person who alleges that there is an error in any order, requirement, or decision made by the Commission or its agent in:
A. enforcement of these regulations, or
B. action on a special exception application, may appeal such action to the Zoning Board of Appeals. . ."
General Statutes § 8-6(a) provides in relevant part: "The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter;. . ."
The plaintiff has also commenced a separate appeal concerning the board's interpretation of buildable area as defined in § 2.1 of the regulations. See Jewett City Savings Bank v. Zoning Board of Appeals, Superior Court, judicial district of New London at Norwich, Docket No. CV 07 4105608.
The plaintiff is the owner of the property which is situated at 395 Pond Road, Franklin, Connecticut. As an owner of the property, the plaintiff is aggrieved by the action of the defendant.
The plaintiff argues that buildable area as defined does not prohibit an encroachment of such area into the side and rear yard setback areas. The plaintiff also argues that if the commission wishes to prohibit a buildable area from containing rear and side yard setbacks and other reasonable restrictions, it must amend its regulations to reflect that. Buildable area is defined under § 2.1 of the regulations which states: "BUILDABLE AREA: A contiguous area any part of which could contain an on-site septic system, a water supply well, or a building in compliance with the provisions of these regulations. No more than 20% of such area may consist of slopes greater than 20%." The zoning board argues that the phrase, "[a] contiguous area any part of which could contain. . ." means that any part or portion of the contiguous area must be able to legally contain the specified improvements. The zoning board further argues that allowing the buildable area to extend into the rear and side yard would violate the regulations because a yard could not contain a building, a water supply well or septic system.
To support this argument, the plaintiff submitted a copy of the Pomfret zoning regulations in which the definition of buildable area specifically excludes required front yard, side yard, and rear yard setbacks.
The law is well-established as to the applicable standard of review. "Generally, it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal . . . Moreover, the plaintiffs bear the burden of establishing that the board acted improperly.
"Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes . . . [A]n agency's factual and discretionary determinations are to be accorded considerable weight . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law . . . These principles apply equally to regulations as well as to statutes." (Citations omitted; internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 408-09 (2007). However, a "court that is faced with two equally plausible interpretations of regulatory language properly may give deference to the construction of that language adopted by the agency charged with enforcement of the regulation." Wood v. Zoning Board of Appeals, 258 Conn. 691, 699 (2001).
"Additionally, zoning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes . . . Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended . . . The process of statutory interpretation involves the determination of the meaning of the statutory language [or in this case, the relevant zoning regulation] as applied to the facts of the case, including the question of whether the language does so apply." (Citations omitted; internal quotation marks omitted.) Alvord Investments, LLC v. Zoning Board of Appeals, supra, 282 Conn. 416.
"Regulations must be viewed to form a cohesive body of law, and they must be construed as a whole and in such a way as to reconcile all their provisions as far as possible . . . This is true because particular words or sections of the regulations, considered separately, may be lacking in precision of meaning to afford a standard sufficient to sustain them. When more than one construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results. [W]e consider the statute as a whole with a view toward reconciling its parts in order to obtain a sensible and rational overall interpretation." Field Point Park v. Planning Zoning Commission, 103 Conn.App. 437, 440-41 (2007). (Citations omitted; internal quotation marks omitted.)
The plaintiff's claim involves a question of law that has not been considered by the court previously. The court's review is, therefore, plenary. The court first looks to the language of the statute. Section 2.1 of the regulations defines buildable area as the following: "BUILDABLE AREA: A contiguous area any part of which could contain an onsite septic system, a water supply well, or a building in compliance with the provisions of these regulations. No more than 20% of such area may consist of slopes greater than 20%." (Emphasis added.)
The definition of buildable area, by its express terms, prohibits the inclusion of land in calculating buildable area any area that could not, without violating the zoning regulations, contain a septic system, water supply well, or a building. Any portion of a lot that cannot contain such improvements cannot be included in buildable area. The work "could" refers to legal limitations as well as physical limitations of the lot. If "could contain" were to be interpreted as strictly meaning that portion of the lot that "has the physical capacity to contain," then the phrase, "in compliance with the provisions of these regulations" would be meaningless. It is a "basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions . . . [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous." (Internal quotation marks omitted.) Small v. Going Forward, Inc., 281 Conn. 417, 424 (2007). Therefore the phrase, "in compliance with the provisions of these regulations," modifies the word "could," such that only portions of the property that could legally, without violating any of the applicable zoning regulations, contain a septic system, water supply well, or a building, may be included in calculating the amount of buildable area on a property. To interpret this regulation differently would render provisions of the regulations meaningless.
The plaintiff cannot include the rear and side yard setback area in calculating the required minimum buildable area because the plaintiff could not place a septic system, a well, or a building on the rear and side yards without violating the regulations. Section 2.1 of the regulations defines "yard" as "[a]n open space unobstructed from the ground upward along the full length of a lot or street line between that line and nearest point of any building or portion thereof." A building could not be placed in the yard because it would be an obstruction. Neither a septic system nor a well can be placed in the yard under § 9.6 of the regulations. Section 9.6 states in relevant part, "[n]o water supply well or septic system may be located in any required minimum yard." Any areas that are within the required minimum yards cannot be included in calculating the minimum buildable area because those areas could not contain a septic system, a water supply well, or a building without violating the zoning regulations.
The court is further persuaded by Doyle v. Town of Gilmanton, 155 N.H. 733, 927 A.2d 1211 (2007). In that case, "the regulations define a `building site' as that part of a parcel of land on which a building is placed. The regulations do not, however, state whether setbacks are included in calculating that area, and, in fact, do not specifically mention setbacks at all." Id., 736. The court reasoned that "because a setback cannot be an area where a building or other structure is placed, it cannot be part of a `building site' as defined in the regulations. Because setbacks are excluded from the definition of `building site' we conclude . . . that the area covered by setbacks should not be included when calculating whether a proposed building site meets the minimum building site size requirement." Id.
CONCLUSION
Based on the foregoing, the decision of the Franklin Board of Appeals is affirmed and the appeal is denied.