Opinion
CV166063541S
03-26-2018
Vivian JONES et al. v. WALLINGFORD PLANNING & ZONING COMMISSION et al.
UNPUBLISHED OPINION
OPINION
Sybil V. Richards, Judge
This case is an administrative appeal filed by the plaintiffs/appellants, Vivian Jones and David Jones, (" plaintiffs" ) following a decision of the appellee/defendant Planning and Zoning Commission of the Town of Wallingford (" P & Z commission" ).
I. Facts
The plaintiffs are individuals who own and reside at property located at 8 Wind Swept Hill Road, Wallingford, Connecticut. The plaintiffs’ property abuts an existing winery. The winery is operated by the appellee/co-defendant Paradise Hills Vineyard & Winery, LLC (" Paradise" ) and is located at 15 Wind Swept Hill Road, Wallingford, Connecticut (" abutting property" ). The record owners of the abutting property on which the winery is situated are the appellees/co-defendants, Richard Ruggiero and Brenda Ruggiero (collectively referred to as the " Ruggieros" ), who also own Paradise. On December 9, 2015, the Ruggieros applied for zoning regulation amendments (" first application" ). During the hearing on the first application, the P & Z commission became aware that the text of the proposed amendments was not filed with the town clerk at least 10 days in advance of the P & Z commission hearing in accordance with General Statutes § 8-3(a). Subsequently, a second application was submitted (" second application" ) to the P & Z commission. At a meeting on the second application, the P & Z commission incorporated the written materials and the minutes from the first application. The defendants withdrew the first application on April 11, 2016. The P & Z commission approved the second application on June 13, 2016.
This first application is identified as " 507-15" in the return of record.
The appeal was tried to the court on December 8, 2017. During the trial, no testimony was presented. On an evidentiary level, the parties relied solely upon the return of record as well as a warranty deed that was admitted into evidence. The parties also submitted briefs to address the issues raised by the plaintiffs in this appeal. During the trial, the court heard oral argument by counsel.
II. Jurisdiction
General Statutes § 8-8(b) governs appeals from decisions of zoning commissions to the Superior Court. " A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
a. Legal Standard
I. Aggrievement
" [P]leading and proof of aggrievement are prerequisites to a trial court’s jurisdiction over the subject matter of a plaintiff’s appeal ... [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). " Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003). A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning & Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
There is no dispute among the parties that the plaintiffs are aggrieved. The plaintiffs are individuals who own and reside at real property located at 8 Wind Swept Hill Road, Wallingford, Connecticut, which abuts the subject winery owned and operated by the defendants. Therefore, the plaintiffs are aggrieved statutorily pursuant to General Statutes § 8-8(b).
2. Legislative Discretion of the P & Z Commission
An amendment to a regulation is a legislative function. Konigsberg v. Board of Alderman, 283 Conn. 553, 581 (2007) (Citations omitted).
The standard of review according to which courts must analyze challenges to legislative decisions of local zoning authorities is well settled. " In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the [zoning authority] 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 agency. O’Donnell v. Police Commission, 174 Conn. 422, 426, 389 A.2d 739 (1978); Balch Pontiac-Buick, Inc. v. Commissioner of Motor Vehicles, 165 Conn. 559, 563, 345 A.2d 520 (1973). The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached. Conley v. Board of Education, 143 Conn. 488, 492, 123 A.2d 747 (1956)." Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979); accord Primerica v. Planning & Zoning Commission, 211 Conn. 85, 96, 558 A.2d 646 (1989); see also Goldberg v. Zoning Commission, 173 Conn. 23, 26, 376 A.2d 385 (1977).
This court recently has reiterated that, " [a]cting in such legislative capacity, the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change ... The discretion of a legislative body, because of its constituted role as formulator of public policy, is much broader than that of an administrative board, which serves a quasi-judicial function ... This legislative discretion is wide and liberal, and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally." Finally, in our review ... we are mindful that, " [e]very intendment is to be made in favor of the validity of [an] ordinance and it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt." (Internal quotation marks omitted.) Builders Service Corp. v. Planning & Zoning Commission, 208 Conn. 267, 289-90, 545 A.2d 530 (1988).Konigsberg v. Board of Alderman, supra, 283 Conn. at 582-84. The scope of judicial review, therefore, is limited. Harris v. Zoning Commission, 259 Conn. 402, 415-16 (2002). " It is the rare case in which the legislative judgment of what is beneficial to the community can be superseded by that of the judiciary." Ghent v. Zoning Commission, 220 Conn. 584, 601 (1991).
The commission has a large measure of discretion in adopting amendments and it is the plaintiff’s burden to show that the agency acted improperly. Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 194-95, citing Lizotte v. Conservation Commission, 216 Conn. 320, 336-37, quoting Aaron v. Conservation Commission, 183 Conn. 532, 537. " ... it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt." Queach Corp., supra, 258 Conn. at 195 (cites omitted). The plaintiffs have failed to meet the substantial burden of establishing that the commission acted improperly.
" Just as a commission has discretion to determine the relative weight of the information it receives, it also has the ability to determine how much information to consider." Timber Trails Associates v. Planning & Zoning Commission, 99 Conn.App. 768, 778 (2007). It also has " ... ample discretion and authority to determine exactly what information it needed to make an informed decision on the propriety of the amendments." Timber Trails, supra, 99 Conn.App. at 779.
III. Plaintiffs’ Arguments
1. Failure to Give Public Notice Required by General Statutes § 8-3(a)
The plaintiffs begin by arguing that the P & Z commission’s consideration of or, in other words, " importation" of the defective first application and transcript from meetings held in conjunction with said application during the second hearing on the second application violated General Statutes § 8-3(a). In examining the plaintiffs’ brief, the court observes that the plaintiffs’ brief attempts to identify a host of claims and a myriad of alleged missteps by the defendants. Then, in summation, the plaintiffs cite to the Connecticut Practice Series twice while raising the concepts of procedural due process and a lack of fundamental fairness without any meaningful development of either topic. Further, the plaintiffs omit any citation to any legal authority to support the plaintiffs’ first legal argument; that is, the P & Z commission’s reliance on materials from the first application, and resulting meeting minutes and the related transcript, which was defectively noticed under General Statutes § 8-3(a), was somehow flawed or impermissible. Our case law requires more than mere assertions of law to advance an argument in a brief on appeal.
It provides, in relevant part, as follows: " A copy of such proposed regulation ... shall be filed in the office of the ... town clerk ... for public inspection at least ten days before such hearing ..."
This series is merely mentioned without any analysis.
" [W]e are not required to review claims that are inadequately briefed ... We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... [F]or this court judiciously and efficiently to consider claims of error raised on appeal ... the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been inadequately briefed ... The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited ... It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones." (Citation omitted; internal quotation marks omitted.) State v. Prosper, 160 Conn.App. 61, 74-75, 125 A.3d 219 (2015).
" When an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived ... In addition, mere conclusory assertions regarding a claim, with no mention of relevant authority and minimal or no citations from the record will not suffice." Miller v. Department of Agriculture, 168 Conn.App. 255, 277 (2016). " Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... For this court judiciously and efficiently to consider claims of error raised on appeal ... the parties must clearly and fully set forth their arguments in their briefs. We do not reverse a judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed ... the parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited ... Assignments of errors which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court." Paoletta v. Anchor Reef Club at Branford, LLC, 123 Conn.App. 402, 406 (2010).
The court notes that the plaintiffs submitted a reply brief. However, the court’s examination of the plaintiffs’ reply brief reveals that it is not an adequate substitute for the lack of analysis in the plaintiffs’ brief because the plaintiffs utilize the reply brief in the traditional sense by rebutting the counterarguments propounded by the defendants in the defendants’ briefs. Although the plaintiffs reference caselaw and cite to certain sections of the Connecticut Practice Series Connecticut Land Use and Practice on the topic of the failure to comply with the notice requirements of General Statutes § 8-3(a), the plaintiffs’ reply brief, like the plaintiffs’ brief, omits any legal authority to support the plaintiffs’ assertion that the so-called " importation" or consideration by the P & Z commission of an earlier application (by the same applicant) for proposed amendments to P & Z zoning regulations and P & Z meetings and a transcript that flowed therefrom, which application was later found to be in violation of the hearing notice requirements of General Statutes § 8-3(a), the plaintiffs again fail to identify any legal authority to support this assertion.
Applying the stated legal principles above to the inadequately briefed first issue raised in the plaintiffs’ appeal, the court treats the first issue as abandoned and declines to address it. The court next turns to the second issue raised by the plaintiffs.
2. Failure to Give Notice to Regional Planning Agency Pursuant to General Statutes § 8-3b
The second argument made by the plaintiffs is that the defendant P & Z commission failed to comply with General Statutes § 8-3b, which provides, in relevant part:
" When the zoning commission of any municipality proposes to establish or change a zone or any regulation affecting the use of a zone any portion of which is within five hundred feet of the boundary of another municipality, the zoning commission shall give written notice of its proposal to each regional council of governments for the region or regions in which it and the other municipality are located. Such notice shall be made by certified mail, return receipt requested, or by electronic mail to the electronic mail address designated by the regional council of governments on the council’s Internet web site for receipt of such notice, not later than thirty days before the public hearing to be held in relation thereto."
The plaintiffs then proceeded in the very same brief to explain to the court that the proposed zoning regulation changes sought by the defendants fall within a particular section of the P & Z regulations, section 4.2 to be exact, and this in turn triggered the aforementioned notification requirement for multiple other regional planning agencies that exercise concurrent jurisdiction in the adjacent vicinities that are located within five hundred feet of Wallingford. The plaintiffs next offered to " ... provide the [c]ourt with a certified copy of the zoning map for the Town of Wallingford to demonstrate that one or more of these zones exist within five hundred feet of the boundary of Wallingford ..." but the record shows that no such certified map was ever admitted into evidence. Therefore, the court, likewise, deems this second issue to be abandoned by the plaintiffs as the factual predicate to support the plaintiffs’ position that the notice requirements pursuant to General Statutes § 8-3b were not satisfied by the defendant P & Z commission is non-existent. Thus, the court declines to reach the merits of the second issue raised by the plaintiffs in this appeal.
3. Amended Zoning Regulation Violates General Statutes § 8-2’s Uniformity Requirement
The third argument presented by the plaintiffs is that the new regulation passed by the P & Z commission in approving Paradise’s second application permits a wider variety of uses, e.g., manufacturing, commercial, restaurant, entertainment, and this now encompasses a broader range of uses in violation of subsection (a) of General Statutes § 8-2, which provides, in relevant part:
... all such regulations shall be uniform for each class or kind of building, structures or uses of land throughout each district but the regulations in one district may differ from those in another ...
Uniformity under § 8-2(a) requires the regulation to treat all owners of the same class and in the same district alike. Harris v. Zoning Commission, 259 Conn. 402, 431, citing Vesekis v. Zoning Commission, 168 Conn. 358, 360 (1975). However, the fact that the amendment has a different effect on parcels of land throughout the town does not violate the uniformity requirement. Id. Except for mere assertions of fact regarding what the P & Z commission may or may not have considered in reaching its ultimate decision, which amount to nothing more than pure speculation on the part of the plaintiffs, the plaintiffs have not presented the court with sufficient grounds to support the third issue raised in this appeal. Therefore, the court treats the third issue as abandoned and declines to address it.
Conclusion
For the foregoing reasons, following its review of the return of record and the exhibit admitted into evidence, and its consideration of the briefs submitted and the arguments made by counsel, the court concludes that the record reasonably supports the decision of the P & Z commission. Consequently, the court denies the instant appeal.