Opinion
FSTCV145014274S
04-19-2017
Karen A. Murphy et al. v. City of Stamford, et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
A. WILLIAM MOTTOLESE, JUDGE TRIAL REFEREE.
This is a companion case to Murphy v. Zoning Board of the City of Stamford, CV 14-5014294 S decided by the undersigned on November 16, 2016 [63 Conn.L.Rptr. 486, ]. The plaintiffs are Kathleen A. Murphy individually and as Administratrix of the Estate of Karen A. Murphy. The plaintiff's property is located at 68 Saddle Rock Road in Stamford. The individual defendants, Susan Cullman and John Kirby own property at 74 Saddle Rock Road which abuts the plaintiff's property. The plaintiff appeals from the action of the zoning board (" the board") in granting Cullman and Kirby a coastal site plan review permit which authorized construction of a single-family house on 1.24 acres in the R-20 (1/2-acre residential) zone. Both properties abut the waters of Long Island Sound. The evidence at trial showed that the plaintiff has owned an interest in the property at all times since the board acted to the date of trial. She is therefore statutorily aggrieved. Goldfeld v. Planning & Zoning Commission, 3 Conn.App. 172, 486 A.2d 646 (1985).
Karen A. Murphy died during the pendency of this appeal and while Kathleen A. Murphy was appointed administratrix of her estate and substituted as a plaintiff, Kathleen Murphy is now the sole owner of the property.
Through their agent, Richard W. Redniss, the individual defendants filed an application for coastal site plan approval pursuant to Sec. 7T10F of the Stamford zoning regulations which governs applications for construction of one-family structures on land " immediately adjacent to coastal waters." The residential structure proposed was intended to replace a house that was severely damaged by Super Storm Sandy in 2012. The plaintiff has made numerous attacks on the board's decision. Two of these attacks were expressly abandoned at trial. Pursuant to Clifford v. Planning and Zoning Commission, 280 Conn. 434, 448-49, 908 A.2d 1049 (2006), the court granted the plaintiff's motion to supplement the record by allowing the admission of certain documents which the board precluded her from introducing into the administrative record. The plaintiff's claims of improprieties by the board are reduced to: (i.) the site plan approval relied on a text amendment which was inapplicable; (ii.) the site plan violated some of the zoning regulations; (iii.) the zoning enforcement officer failed to issue an opinion that the application complied with the zoning regulations; (iv.) the board failed to make the necessary written findings for approval of a coastal site plan; (v.) the board failed to give adequate consideration to the site plan; (vi.) the application did not comply with the requirements of the coastal site plan statutes.
At trial, plaintiff's counsel stated: " That the board's denial of a public hearing and preclusion of documents are no longer viable issues."
Standard of Review
The standard of review for administrative adjudication of coastal site plans is the same as the standard for conventional site plans.
" [C]onclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record . . . 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 . . . The action of the commission should be sustained if even one of the stated reasons is sufficient to support it . . . The evidence, however, to support any such reason must be substantial . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Citations omitted; internal quotation marks omitted.) Id., 198-201; see also Pinchbeck v. Planning & Zoning Commission, supra, 69 Conn.App. 800 (proper standard of trial court review of coastal site plan is whether decision supported by substantial evidence). " When the zoning body fails to state reasons for its decision on the record, the reviewing court has a duty to search the entire record before it to find a basis for the board's decision. Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 608, 569 A.2d 1094 (1990)." (Alternate citation omitted.) Hescock v. Zoning Board of Appeals, 112 Conn.App. 239, 248-49, 962 A.2d 177 (2009). Apart from the requirement that in acting on a site plan application a zoning board's decision must be supported by substantial evidence, it is fundamental that the application must conform to the applicable zoning regulations. Norwalk v. Norwalk Wilbert Vault Co., 208 Conn. 1, 13, 544 A.2d 152 (1988); Pinchbeck v. Planning and Zoning Commission, 69 Conn.App. 796, 799, 796 A.2d 1208 (2002).
I. Reliance on Inapplicable Text Amendment of July 28, 2014
The plaintiff argues that the validity of the site plan approval was dependent on the application's compliance with an amendment to the text of the regulations which took effect on July 28, 2014, a date subsequent to the board's approval of June 23, 2014. Additionally, the plaintiff points out that at the time that the plan was approved, the validity of the text amendment was on appeal to the Superior Court; see decision in Murphy v. Zoning Board, CV 14-5014294 S, supra . It is significant that neither the individual defendants nor the board has argued that the text amendment referred to was in any way applicable or essential to the issuance of the coastal site plan permit. It is clear from the numerous briefs which each defendant has filed as well as from their oral argument that neither defendant relies on the text amendment to validate the approval granted the individual defendants. On the contrary, the defendants' briefs are replete with analysis of how each separately challenged instance of noncompliance with the applicable zoning regulations refers to the regulations which were in effect as of June 23, 2014, not July 28, 2014. The court need not reach the issue of whether this principle supports the plaintiff's claim for the simple reason that the defendants themselves make no claim of reliance on the text amendment. Thus, the plaintiff's argument is misplaced and therefore superfluous.
The plaintiff predicates her claim on the principle that " the zoning law or regulation in effect at the time of the decision of a court is controlling as opposed to that in effect when the proceedings were instituted or when the administrative agency entered its decision upon the application." McCallum v. Inland Wetlands Commission, 196 Conn. 218, 223, 492 A.2d 508 (1995). See also Samperi v. Planning and Zoning Commission, 40 Conn.App. 840, 844, 674 A.2d 432 (1996), (trial court properly considered conformity of application to regulations in effect at the time of filing.)
II. Noncompliance With Applicable Regulations
In support of this claim of noncompliance the court, after an evidentiary hearing, ordered that the record be supplemented by the addition of Exs. B, C and D. These documents consist of an " Opposition" to the application with appendix and a letter from Blue Shore Engineering, LLC, both dated June 23, 2014, the very day the board acted. These documents, especially the " Opposition" (Ex. B), contain numerous claims which can be summarized and analyzed as follows: (1) drainage and engineering reports lacking (at best). Here, the Opposition characterizes the written reports of Redniss and Mead, Engineers and Surveyors and Roberge Associates, Consulting Engineers concerning flooding and drainage as lacking proper calculations and representations; (2) there has never been a determination of the quantity of fill which was brought onto the site; (3) the wall installed on the common property line is tortured; (4) a private restrictive covenant was ignored; (5) there are inconsistencies between the staff report and the Redniss and Mead report; (6) there are inconsistencies between the application and the provisions of G.S. § 22a-90 through 22a-112, Coastal Area Management Act; (7) by increasing the likelihood of coastal flooding the historic buildings on 68 Saddle Rock Road (plaintiff's property) will be destroyed; (8) plaintiff will suffer noise pollution by reason of the proximity of the approved swimming pool to plaintiff's home; (9) both Richard W. Redniss of Redniss and Mead and Norman Cole, the city Land Use Bureau Chief violated the Rules of Conduct for the American Institute of Certified Planners.
As an initial matter it is noted that not all of these claimed defects have earned inclusion in the plaintiff's briefing. Therefore, the court has examined only those claims that can be identified in these filings. Thus, pursuant to Clifford v. Planning and Zoning Commission, supra, at 449, the defendants presented their contentions as to why this evidence does not " undermine the validity of the grant of the application." Having reviewed these contentions and having heard oral argument thereon the court does not believe that in the equitable disposition of this appeal these documents undermine the validity of the board's approval for the reasons that follow in this opinion.
The crux of the plaintiff's claim of noncompliance of the applicable zoning regulations is that many of the measurements which are stated on the documents which are in the record as well as some of the mathematical calculations are incorrect. The Residence . The plaintiff provides the following analysis: (1) the residence did not comply with the height limitation of two and one-half stories or 30 feet (Sec. 2.4 of regulations). This claim is based entirely on the assertion that the height was improperly calculated because an " excessive amount of fill" was brought onto the property. More specifically, the argument is as follows: " The Building Height Definition in the ZRs #16, on page 3-8 states the height is measured from the average grade of the finished ground surface. When filling was used, [as in this project] there is a limit of three feet from the existing ground surface. More than three feet of fill was added to the existing ground surface, so measurement of height could not be calculated from the point used by the applicant, and the building height was over 30 feet. Building height is measured to the highest point of the roof. The actual height as shown on the plans as shown by the scale on them was 33 feet six inches." Both defendants dispute this claim and defend the correctness of the measurement at oral argument. The plaintiff admitted that nowhere in the record is there any calculation or even an estimate of the quantity of fill which was added to the site. The closest that anyone came to addressing that issue is Ex. B. p. 3 of the " Opposition" which states the following:
Verbatim quote from page 3 of plaintiff's Supplemental Brief of January 3, 2017.
17. What has become apparent is that fill has unlawfully been brought onto the property located at 74 Saddle Rock Road.
18. The fill brought in the VE Zone near the seawall of the Subject Property, for example, is not insignificant and results in flooding towards the property located at 68 Saddle Rock Road.
Nothing in the record supports these assertions. Not only does the plaintiff provide no estimate of the quantity of the fill either herself or through an engineer but there is no testimony describing the size and frequency of deliveries of the fill nor are there any photographs depicting any aspect of the project (including before and after) nor is there a topographical study from which this can be determined. In fact, the plaintiff acknowledges at page 7 of her Reply Brief of April 25, 2016 that " It is unclear where these points are taken (grade points) and what map was used to ascertain how much fill had been brought into the project by the current and previous owners."
The above quotations introduce the plaintiff's use of a scale ruler to calculate the height of the house. The fact that this was done after the board had acted raises significant issues when the record is devoid of any evidence that the measurement shown in the record has been tested by use of such a device. The Pool House . The same criticism using the same instrument is made with regard to the pool house as an accessory building which by regulation is limited to 15 feet in height because the plaintiff asserts that the base from which the measurement is taken is not the correct level. The location of the pool house as shown on the drawings is also disputed because the pool house is claimed to be an accessory building because it is supported by its own foundation and is not part of the dwelling structure. The Walls . Similarly it is claimed that the height of the walls in the side yard nearest the plaintiff's property exceed the six-foot height limitation prescribed in Sec. 3. A.15 of the regulations. Building coverage . Finally it is claimed that the maximum building coverage limit for the site of fifteen percent is exceeded by twenty percent.
Also known as an architect's scale which Wikipedia describes as " a specialized ruler designed to facilitate the drafting and measuring of architectural drawings." Webster's New World Dictionary, 2nd Coll. Ed. at p. 1269 defines the object as follows: " a series of marks along a line, at regular or graduated intervals, used in measuring or registering something; any instrument or ruler marked in this manner; the proportion that a map, model, etc. bears to the thing that it represents; ratio between the dimensions of a representation and those of the object (a scale of one inch to a mile); a line marked off on a map to indicate this ratio or proportion."
The overarching issue which these attacks implicate is whether they are foreclosed from judicial adjudication because they were not raised before the board when there was ample opportunity to do so. When the court ordered an enlargement of the record for equitable reasons pursuant to the Clifford case, it permitted introduction of all of the evidence which the plaintiff offered but the board rejected. The plaintiff makes no claim that she identified in these documents the specific mathematical discrepancies in measurements or calculations for the board or that the board declined to accept the technical data which she now uses as an attack vehicle long after the board considered and acted on the application. Nor did the plaintiff seek to offer this data pursuant to Clifford .
The court notes that the documents which comprise the supplemental record contain no data, measurements or calculations. These appear for the first time in plaintiff's briefs.
In Norwalk Public Library Foundation, Inc. v. Norwalk Zoning Commission, CV 16-6028970 S, Judicial District of Stamford (January 19, 2017, Mottolese, J.T.R.), this court was confronted with a virtually identical set of facts, the only difference being that in the Norwalk case the plaintiff hired an engineer to review the drawings filed with the commission after the commission had acted. In his review the engineer claimed to have found errors in some of the critical dimensions shown on the drawings and the plaintiff sought to supplement the record by including these findings. In the present case, of course, the plaintiff presents similar evidence to the court through her counsel's ingenuity without professional verification. The court's reasoning is equally applicable here:
" The motion to supplement the record is denied because the plaintiff makes no claim that it could not have brought the alleged violations or discrepancies to the commission's attention prior to or during the site plan hearing. Moreover, there is no evidence that the engineer's report could not have been prepared by examining the drawings prior to or during the hearing nor is there a claim the commission denied plaintiff that opportunity. The two cases on which plaintiff relies are clearly and materially distinguishable. Parslow v. Zoning Board of Appeals, 110 Conn.App. 349, 358-59, 954 A.2d 275 (2008) by its own terms must be limited to the " narrow" facts which were present. The court went on to endorse the trial court's admonition that the decision was not to be used to " open the door" to misuse of G.S. § 8-8(k). Additionally, the facts disclosed that there was " good reason" why the plaintiff failed to present the evidence to the board with which he sought to expand the record. Finally, the plaintiffs were " laypersons unschooled in legal technicalities." None of these facts are present here. The plaintiff is the Norwalk Public Library which is governed by a board of trustees to whom can be attributed some degree of intellectual sophistication and are not unschooled laypersons. Preininger v. Planning and Zoning Commission, 2002 WL 31911478 is likewise distinguishable because the basis for the court's allowance of additional evidence was the fact that plaintiff did not have an opportunity to refute the town planner's opinion on the validity of the petition or present evidence on the subject because the commission reserved its validating of the petition to executive session at which the plaintiff was not permitted to present his version of validity. Finally, to permit expansion of a zoning record by permitting an engineer to critique technical material post hearing and decision when there was full opportunity to do so prior to those events would turn our 8-8(k) jurisprudence on its head and beget a new rule of law. This case is more appropriately controlled by Samperi v. Zoning Commission, 40 Conn.App. 840, 851, 674 A.2d 432 (1996) and Tarasovic v. Zoning Commission, 147 Conn. 65, 69, 157 A.2d 103 (1959)."
Even plaintiff's counsel has opined that there must be a good reason for the failure to present this evidence in the original proceeding. 9A Fuller, Connecticut Practice Series: Land Use Law and Practice, § 32:8 at 206-07 (2006). The plaintiff has offered no such reason.
What the plaintiff has done here is to attack the factual basis of the board's decision by asserting contrary facts without giving the board an opportunity to evaluate those facts. Such a procedure would violate the fundamental rule that administrative appeals are decided on the record rather than de novo. Indeed, there are serious practical reasons why this practice cannot be permitted. The first was enunciated by James Lunney the city's zoning enforcement officer. During his testimony on the plaintiff's application for a restraining order pursuant to G.S. § 8-8(h) he was asked to determine building height from a drawing by using an architectural scale. The following colloquy occurred between plaintiff's counsel and Mr. Lunney:
" Assigning error to a court's evidentiary rulings on the basis of objections never raised at trial unfairly subjects the judge and the opposing party to trial by ambush. State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982)." (Alternate citations omitted.) Davis v. Margolis, 215 Conn. 408, 415, n.5, 576 A.2d 489.
There is nothing in the record to indicate that a restraining order was ever granted.
Q Mr. Lunney, this building is in the R20 zone and the maximum height of this building under the regulations of the (indiscernible) coastal site but by the Zoning Board was (indiscernible) building.
A Are you asking me or are you telling me?
Q No, I'm asking you.
A I'll just look in the regs to make sure. I know what the answer is, but I just--in R20 the maximum height is 30 feet.
Q Thank you. Do you know how to use one of these? (architect's scale)
A Yes.
Q. Could you measure this-- this says building height 29-11 inches .
A Okay.
Q Would you mind measuring what that line says?
A I can measure it for you but that would not be the way we would use it. Because you don't measure drawings because they're very, very minuet (sic) so you could easily be off . It's the-- it's the words or the numbers that would be what's in effect . (Emphasis added.)
Thus, it is apparent that taking measurements from a drawing by use of a scale could very well cause one to miscalculate. The clear implication from Mr. Lunney's comment is that measurements on drawings are not placed there by use of an architectural scale but rather by a more accurate method employed by the surveyor/engineer. In today's age of technology that would have to be a computer. Additionally, there is no way to determine whether a layperson has used the scale properly and professionally or whether the terminal points were correct. For example, the defendants claim that the plaintiff measured the height of the dwelling to the cupola when the cupola should be excluded from the height calculation as set forth in Section 3A.16 of the zoning regulations.
Pool House . The defendants properly make the same argument with regard to the pool house and the walls located on the common property line. On the other hand, the pool house height is challenged not because of the inaccuracy of the measurement but rather on the basis that it is detached from the principal structure and is therefore an accessory building subject to a 15-foot height limitation as set forth in the regulations. While the plaintiff admits that the stated height of 14 feet 11 inches is correct, she challenges it because the base from which the measurement was taken is incorrect. Again, the plaintiff disagrees with the engineer/surveyor's determination of the base grade. Defendants argue, however, that not only is the stated height reliable and controlling but rather the pool house is part of the principal use on the property (the dwelling) because it shares the same foundation as the dwelling. Section 3.A.2 defines " accessory building" as follows:
" Accessory Building or Use: An accessory building or use is one which is subordinate and customarily incidental to the main building and use on the same lot providing that, except as provided in Section 6-D, such accessory building shall not exceed one story and not exceed fifteen (15) feet in height. No accessory building shall be within five (5) feet of any lot line except in cases in which the main building is permitted to be closer. No accessory building shall be erected prior to the erection of the main building. (91-002, 204-41)"
The definition is silent on the question of whether a building which is attached to the principal building in any manner is an accessory building. " In statutory construction, we endeavor, moreover, 'to read the statute as a whole and so as to reconcile all parts as far as possible.' Martone v. Lensink, 207 Conn. 296, 302, 541 A.2d 488 (1988). Thus it is necessary to examine other relevant provisions of the zoning regulations. Sec. 3.A.14 defines " Building" as follows:
Building: A building is an independent structure having a roof supported by columns or walls resting on its own foundations and includes shed, garage, stable, green house or other accessory building. A detached building is one separated on all sides from adjacent buildings by open spaces from the ground up. (Emphasis added.)
Record item 25 clearly shows that the foundation for the pool house rests on the same foundation on which the dwelling sits and therefore does not " rest on its own foundation." Therefore, by definition, the pool house is not an accessory building and so is not subject to the 15-foot height limitation. Moreover, as with the other challenges which the plaintiff levels against measurements and dimensions this attack is predicated on a purported erroneous base from which the measurement was taken, claiming that the designated height is influenced by the addition of fill which is impermissible. Again, there is not a speck of evidence in the record, even as supplemented, concerning even the presence of fill on the property so the court is unable to fault the board for relying on the engineer's calculations. Lot Coverage (building coverage) . The plaintiff correctly asserts that lot coverage in the R-20 zone is limited to 15 percent of the area of the lot. She also asserts that the actual lot coverage is 35 percent. At page 1 of her Reply Brief of April 25, 2016 the plaintiff has presented a chart which shows that the calculation of coverage performed by the applicant's surveyor/engineer is 14.2 percent. That figure was derived from a zoning location survey prepared by Redniss and Mead, dated August 8, 2014 which contains a table which sets forth the zoning data applicable to the site and includes an entry for building coverage at 14.2 percent. The survey contains a certification as class A-2. The plaintiff argues that examination of another document prepared by Redniss and Mead entitled " Site Area Inundated During a 100 Year Base Flood" dated April 28, 2014 would make it obvious that the coverage is far in excess of 14.2 percent. (See Record, Ex. 55.) The plaintiff arrives at this conclusion because she has determined that the swimming pool, lawn terrace spa, pool deck and parking court are structures because under Section 3.A.1 a building is deemed to include a structure and a structure is defined at Section 3.A.97 as " anything constructed or erected which requires location on the ground or attached to something having location on the ground." While the regulation does not contain a definition of " building coverage" it does contain a definition of " building area." Building area is defined in Section 3.A.15 as follows: " Building Area: Building area is the aggregate of the maximum horizontal cross section area of all buildings including accessory buildings on a lot, excluding cornices, eaves, gutters or chimneys projecting not more than twenty four (24) inches, steps and one-story open porches, covered front porches (see Section 7-C.3), and balconies and terraces. Building area shall also exclude decks, terraces, patios, pools or similar structures not more than eight inches (8") above adjacent grade, and exclude such structures that exceed eight inches (8") above adjacent grade up to an amount equal to 200 square feet for each dwelling unit on the lot. (210-40.)"
While there is no evidence that the board's interpretation is time tested it certainly is reasonable. Curry v. Alan S. Goodman, Inc., 286 Conn. 390, 404, 944 A.2d 925 (2008).
The plaintiff makes assertions based upon her own mathematical calculations of the areas of these various features as well as the height of the pool deck which she claims to be higher than 8 inches above adjacent grade as prohibited by Sec. 3.A.15. While the plaintiff does not explain how she arrives at these calculations, except perhaps by use of an architectural scale, she reverts to her claim that such is obvious from just eyeballing Ex. 55 of the record. The reason this is not an appropriate methodology is that Ex. 55 is not a class A-2 survey whereas the zoning location survey, also prepared by Redniss and Mead, is certified as such. Retaining Walls . Next, the plaintiff asserts that certain retaining walls are too high in violation of Sec. 7G of the Regulations which provides in relevant part as follows: " G--Except as provided in the next paragraph, the yard requirements of these Regulations shall not be deemed to prohibit any otherwise lawful fence or wall, provided that in any Residence District no fence or wall shall exceed six feet (6') in height in any front or side yard nor eight feet (8') in height in any rear yard, measured from the finished grade adjacent to both sides of the fence or wall, whichever is lower. The Zoning Board may, by Special Exception, authorize a fence or wall of greater height within a front, side or rear yard, subject to a finding that the structure and associated improvements will not adversely impact any adjacent property or public street. (203-38.)"
It is obvious from the above language that the purpose of the regulation is to control the height of walls and fences within a prohibited yard, which in the R-20 zone, is 15 feet for both side yards not to exceed 35 feet when added together (Sec. 7A, Appendix B, Table III). The regulations further contain a setback of 40 feet for front yards and 50 feet for rear yards. In this case the plaintiff chose to read Record Ex. 13, p. SE1 as calling out heights which violate the 8-foot height limit in the rear yard and a 6-foot limit in the side yards. Assuming that these numbers are correct, the defendants argue that Sec. 7G is applicable to the present case because all of the walls are contained within the building area as defined in Sec. 3.A.15. That is, all such walls are located beyond the applicable setback and therefore are governed by the height limitation that applies to the principal use on the property which permits heights up to 30 feet. Neither the plaintiffs nor the defendants offer any analysis of the interplay between Sections 7G and 3.A.15.
" Ordinarily [trial courts afford] deference to the construction of a statute applied by an administrative agency empowered by law to carry out the statute's purpose . . . Cases that present pure questions of law, however, invoke a broader standard of review that is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily 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 . . . [It] is for the courts, and not administrative agencies, to expound and apply governing principles of law. (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 698-99, 784 A.2d 354 (2001). Whether the Board properly interpreted and applied the relevant regulations depends upon whether it read the particular regulations " in the context of all the regulations, their evident purpose and policy, and recognized principles of zoning in general." Field Point Park Association, Inc. v. Greenwich Planning and Zoning Commission, 103 Conn.App. 437, 441, 930 A.2d 45 (2007).
There is nothing in the record to indicate how the board has construed the interplay of the two regulations in the past. Thus it falls to the court to make such a statutory interpretation. Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 416, 920 A.2d 1000 (2007).
" When construing a statute our fundamental objective is to ascertain and give affect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner the meaning of the statutory language as applied to the facts of the case, including the question of whether the language actually does apply." . . . Friezo v. Friezo, 281 Conn. 166, 181, 914 A.2d 533 (2007).
Words in a statute shall be construed according to the commonly approved usage of the language. Gen. Stat. § 1-1. Martone v. Lensink, 207 Conn. 296, 302, 541 A.2d 488 (1988). When the language used by the legislature is plain and unambiguous there is no room for statutory construction by the courts and the statute will be applied as its words direct. Verrastro v. Sivertsen, 188 Conn. 213, 220, 448 A.2d 1344 (982); Kelemen v. Rim Rock Corporation, 207 Conn. 599, 606, 542 A.2d 720 (1988). " In construing a statute common sense must be used and the courts will assume that the legislature intended to accomplish a reasonable and rational result." King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987).
In examining Sec. 6.3.A.15 of the Regulations it is evident that since a wall is a structure because it is something erected which has location on the ground (See Sec. 3.A.97) it is a " similar structure" as set forth in Sec. 6.3.A.15 and is more than 8 feet above adjacent grade. According to Sec. 4.2.4 all buildings must be located beyond the set back requirements specified for each of the four yards. Because it is presumed that the legislative body (the board) acted to accomplish a reasonable and rational result, in construing statutory provisions common sense must be used. Id. It would be superfluous to regulate the height of walls within the building area when the height of structures within the building area is governed elsewhere in the regulations, namely Sect. 4.2.4. Accordingly, since none of the walls are claimed to be in excess of 30 feet in height it becomes necessary to determine whether any of the walls are located closer to adjoining property lines than what the plaintiff is allowed by Sec. 4.2.4. Since Ex. 55 is a certified A-2 survey we may rely on the measurements shown thereon. Beginning with the rear yard which faces Long Island Sound, the setback to the residence is 100 feet, plus or minus. Without use of an architect's scale it can be observed that the distance from the proposed retaining wall at its closest point to Long Island Sound is far in excess of the required 50 feet. The only side yard in contention is the northeasterly yard adjacent to the plaintiff's property where the proposed wall is shown as 60.5, plus or minus feet from the plaintiff's boundary when the set back is 15 feet. The walls are clearly in compliance.
Further discussion of the reliability of technical data shown on maps and drawings is appropriate at this point. It is important to note that the accuracy of measurements, dimensions and other features which are placed on maps and drawings by surveyors and engineers are highly regulated not only by the Stamford zoning ordinance but by our statutory and to some extent our decisional law. For example, Section 7.2.C of the zoning regulations which governs site plans including coastal site plans requires that " all plans and documents be certified by an architect, landscape architect, engineer or surveyor registered within the State of Connecticut." Subsection 1 of Sec. 7.2.C requires a survey at scale no less than 1-60 showing dimensions and other features which must be " certified by a registered land surveyor and prepared in accordance with the standards of a Class A-2 survey as defined by the Connecticut Association of Land Surveyors. G. S. § 20-299 defines land surveyor as one who is qualified to perform many functions including: " (A) Measuring, evaluating or mapping elevations, topography, planimetic features or land areas of any portion of the earth's surface; (B) determining positions of points with respect to appropriate horizontal or vertical datum in order to establish control networks for topographic, planimetric or cadastral mapping; (C) measuring, evaluating, mapping, monumenting or otherwise marking on the ground, property boundary lines, interior lot lines of subdivisions, easements, right-of-way or street lines; (D) measuring, evaluating, mapping or marking on the ground, the horizontal location of existing or proposed buildings, structures or other improvements with respect to property boundary lines, building, setback, zoning or restriction lines, existing or proposed interior lot lines, easements, rights-of-way or street lines; (E) measuring, evaluating, mapping or reporting the vertical location of existing or proposed buildings, structures or other improvements with respect to vertical reference surfaces, including base flood elevations; (F) measuring, evaluating, mapping or reporting the location of existing or proposed buildings, structures or other improvements or their surrounding topography with respect to flood insurance rate mapping or federal emergency management agency mapping; (G) measuring or mapping inland wetland boundaries delineated by a soil scientist."
According to the Code of Regulations of the State of Connecticut, map accuracy is determined by reference to six different classes of land surveys running from class AA as the highest to class D as the lowest level of accuracy. An A-2 survey is ranked third in level of accuracy. See Section 20-300b-11. Additionally, Section 20-300-10(c) provides as follows: " The licensed land surveyor shall indicate on any map or survey which bears his or her seal and signature, for submittal to his or her client or town clerks as required under section 7-31 of the general statutes, that said map or survey is substantially correct to the degree of accuracy shown thereon. The accuracy shall be classified in accord with the " code of recommended practice for accuracy of surveys and maps" a publication approved for use by the board.
Moreover, topographical maps are classified by state regulation as T-1 or T-2 in Sec. 20-300b-11(d) with either being acceptable for ground surveys. The regulation provides that: " In using topographical accuracy Class T-1 or T-2 the surveyor is expressing confidence that should a test profile be run in the field, a platted comparison with a profile scaled from the map shall be in agreement with the above criteria and the remainder shall be within the contour interval."
The court notes that the principal set of drawings for the present project (Ex. 25) contains on page A-000 the following certification by Redniss and Mead, Engineers and Surveyors:
7. The Design Reflected On These Plans Complies With Section 7.1 Of The Stamford Zoning Regulations (" Flood Prone Area Regulations Of The City Of Stamford") And Is Capable Of Withstanding The Flood Depths, Pressures, Velocities, Impact And Uplift Forces And Other Factors Associated With The Base Flood.
Section 7.E.6 of the zoning regulations provides that all site plans and architectural plans shall conform to the standards of Sec. 7.2.C of the regulations. As stated above, Sec. 7.2.C requires all surveys to be class A-2 in accuracy. Furthermore, the property and topographical survey (Ex. 5G, no. 2), also prepared by Redniss and Mead, are certified as A-2 and T-2. Finally, even our courts have recognized the difference in the level of accuracy in the various levels of surveys. See Durkin Village Plainville, LLC v. Zoning Board of Appeals, 107 Conn.App. 861, 863, n.3, 946 A.2d 916.
" Sections 20-300b-2 and 20-300b-11(b) of the Standards for Surveys and Maps in the State of Connecticut, describes the type of surveys and the accuracy required for each classification. Connecticut Association of Land Surveyors, LLC, Standards for Surveys and Maps in the State of Connecticut, 1999, available at http://www.ctsurveyor.com/conn-code.htm (accessed 4/28/08). Earlier codes have described the A-2 survey as a " type of survey to be used in areas where density and other factors warrant a moderate degree of accuracy." Connecticut Association of Land Surveyors, LLC, Recommended Standards For Surveys and Maps in the State of Connecticut, 1984. There are a variety of other survey types with less degrees of accuracy than an A-2 survey . Standards for Surveys and Maps in the State of Connecticut, supra, § 20-300b-11(b)." Clearly, an A-2 and T-2 survey have a degree of accuracy which is obviously superior to measurements derived from an architect's scale calculated by a layperson who is not trained in the proper use of the scale.
There is yet another reason why the board should not be found to have acted improperly in accepting the architectural data contained in the record before it. Apart from the well established rule that a zoning agency has the right to accept or reject evidence offered by experts when it is conflicting, Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. At 547, there is a very practical reason which supports a zoning board's right to accept such data. In the present case, the data at issue has been reviewed and approved at several layers of scrutiny. Specifically, it is logical to infer that in addition to Redniss and Mead, different parts of the data were reviewed by Roberge Associates, Consulting Engineers, Norman Cole, the Land Use Bureau Chief, Fifield/Piaker/Elmon Architects PC, the Stamford Environmental Protective Board, the city Engineering Bureau and even the zoning enforcement officer who testified at the G.S. § 8-8(h) hearing, each with respect to its particular area of interest or authority. Very simply, zoning agencies of this state should be free to design their own methods for verifying the accuracy of the technical data which is given to them. From this court's years of experience adjudicating land use cases it is well aware that the practice varies from municipality to municipality and that some agencies, based on years of experience, have come to rely on the veracity of individual professionals in whom they have developed confidence. This is particularly true of Richard W. Redniss of Redniss and Mead.
Such practice ranges from an A-2 survey to a mere representation by the applicant that all dimensions are true and accurate.
III. Failure of Zoning Enforcement Officer to Opine on Zoning Compliance
On May 2 and 12, 2014 the board requested that the zoning enforcement officer opine concerning compliance of the application with the zoning regulations. The zoning enforcement officer failed to do so. The plaintiff claims that this omission constitutes a fatal defect in the process of the board's approval of the application. The plaintiff relies on Sec. 17C of the zoning regulations which provide as follows: " Review by Zoning Enforcement Officer: Upon the receipt of a completed application for a Zoning Permit and payment of the applicable fee, the Zoning Enforcement Officer shall promptly conduct investigations of the application and the premises as required. An application for a Zoning Permit shall be denied if the application does not comply with the requirements of these Regulations, if the application is incomplete, or if the application contains any false material statements or omissions. The Zoning Enforcement Officer shall grant or deny an application for a Zoning Permit within thirty (30) days from the date the completed application, with filing fee, was filed with the Zoning Office, unless an extension of time is authorized by the applicant. In the case of an application for a Zoning Permit for a sign, the Zoning Enforcement Officer shall grant or deny such application within ten (10) business days from the date the completed application, with filing fee, was filed with the Zoning Office. In the case of applications for Zoning Permits for signs, if the Zoning Enforcement Officer fails to act within such 10-day period, the sign shall be deemed to not require a Zoning Permit, but must comply with all standards of this Section and all other provisions of these Regulations."
It is obvious from the language employed in this provision that by its terms it applies to zoning permits and not applications for coastal site plans. In fact, from the language of Sec. 17A, a zoning permit may only be issued only after a coastal site plan has been approved.
Sec. 17A provides as follows: A. Permits Required: Except as otherwise provided in these Regulations or other applicable laws, no building or structure shall be constructed, reconstructed, erected, enlarged, extended or structurally altered, wholly or partly, and no use of land, buildings or other structures, or part thereof, shall be undertaken or changed, and no excavation for any building, structure, sign or use shall be made, until a Zoning Permit has been issued by the Zoning Enforcement Officer. No Zoning Permit shall be issued for any building, structure, sign or use that requires issuance of a special exception, approval of site and architectural plans and requested uses, or Coastal Site Plan Approval under these Regulations until such approvals have been issued and are legally in effect . A Zoning Permit shall be rendered null and void if any substantial changes or alterations are made to the plot plan, building plans and/or other supporting application documents after the issuance of the Zoning Permit. (Emphasis added.)
An examination of the Coastal Area Management Regulations (Sec. 7-T) fails to reveal any requirement that the zoning enforcement officer's opinion of zoning compliance be obtained as a precondition to approval by the board. However, subsection 5 of Sec. 7-T provides that " applications for coastal site plan review may be referred to any other appropriate agency for review and recommendations." (Emphasis added.) " We have consistently held that may is discretionary rather than mandatory." Waterbury v. Washington, 260 Conn. 506, 531, 800 A.2d 1102 (2002). This ground is without merit because the board had no statutory duty to refer the application to the Zoning Enforcement Officer who in turn had no duty to respond.
IV. Absence of Written Findings
G.S. § 22a-106(e) provides as follows:
" In approving any activity proposed in a coastal site plan, the municipal board or commission shall make a written finding that the proposed activity with any conditions or modifications imposed by the board: (1) is consistent with all applicable goals and policies in section 22a-92; (2) incorporates as conditions or modifications all reasonable measures which would mitigate the adverse impacts of the proposed activity on both coastal resources and future water-dependent development activities."
The plaintiff argues that the board's minutes of June 23, 2014 (Record, Ex. 28) which found " The project consistent with all applicable goals and policies set forth in the CAM Act" is legally inadequate because it failed to address adverse impacts on the plaintiff's property. This overlooks the fact that the board's minutes require that the project " comply with the following plans and correspondence." Among these documents are the staff report of Rick Talamelli, the Environmental Planner for the Stamford Environmental Protection Board, the Report of Roberge Coastal Engineers, the drainage summary report prepared by Redniss and Mead, Civil Engineers, each of which concluded that the project would have no adverse impact on adjacent properties. Nevertheless, such generalized finding by the board is not fatal to its decision. In DeBeradinis v. Zoning Commission, 228 Conn. 187, 635 A.2d 1220 (1994), our Supreme Court refused to overturn the granting of a coastal site plan approval on the grounds that the commission's written finding was inadequate. The court found that the fact that the commission granted the application with conditions " clearly implies that it found potential adverse impact." This specific language of the court is particularly applicable here. " It is clear from the commission's written finding that it found potential adverse impacts. As the commissioner correctly argues, it is impossible to find that something is unacceptable without first finding that it exists. The fact that the commission did not explicitly list the potential adverse impacts found does not invalidate its decision. We have consistently held that it is the duty of a reviewing court to search the record before it for evidence supporting the decision of a local zoning board. Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 608, 569 A.2d 1094 (1990); A.P.& W. Holding Corp. v. Planning & Zoning Board, 167 Conn. 182, 355 A.2d 91 (1974). We recently have held that this is true where an agency is directed by statute to state its findings and reasons therefor on the record. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 589, 628 A.2d 1286 (1993). In Samperi, we recognized that " [c]ourts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions." Id., 596. Such caution is particularly appropriate when reviewing the decision of a local land use commission composed of laypersons whose procedural savoir-faire may not rise to the sophisticated level needed to achieve strict compliance with the statutory directions under which they operate. Id. This reasoning applies with equal force to the Coastal Management Act directive at issue in the present case. The commission's written finding clearly implies that it found potential adverse impacts. Such a finding satisfies the statutory directive subject to the necessity that it must be supported by substantial evidence in the record." DeBeradinis v. Zoning Commission, 228 Conn. 187, 198-99, n.7, 635 A.2d 1220 (1994). So, notwithstanding the lack of specificity in the board's finding the court has searched the record for reasons to support the board's decision and finds that there is substantial evidence to support that decision. See Hescock v Zoning Board of Appeals, 112 Conn.App. at 248-49, supra .
V. Inadequate Consideration by Board
The plaintiff makes the following statement at page 11 of her brief of January 3, 2017. " It is clear from the transcript of the meeting of the Zoning Board on June 23, 2014, in the supplement to the record dated February 19, 2015 [pleading #140] that the Board gave only a cursory review of the coastal site plan application."
It is well established that a zoning board is not required to use in any particular fashion any of the materials presented to it as long as the conduct of the proceeding is fundamentally fair. Unistar Properties, LLC v. Conservation and Inland Wetland Commission, 293 Conn. 93, 123, 977 A.2d 127 (2009). The plaintiff refers to the fact that the transcript of the proceeding before the board discloses that there was no discussion of the merits of the application. Review of coastal site plans is classified as administrative. Pinchbeck v. Planning and Zoning Commission, 69 Conn.App. at 800, supra . Under G.S. § 22a-109(e) and § 7.1-14.6 of the zoning regulations a public hearing is discretionary with the board. It stands to reason that when a zoning board reviews a coastal site plan where a public hearing has been deemed unnecessary the record developed before the board is likely to be substantially lighter than had there been a public hearing. Clearly there are no statutory or decisional specifications that set a minimum duration for an administrative coastal site plan review by a zoning board. To charge an administrative agency with " only cursory review" is to ignore the possibility, indeed the distinct likelihood, although there is no way to tell for certain, that the members of the board had read and digested all of the written material that supported the application, conferred with professional staff and achieved a level of understanding that obviated the need for extended discussion at the public meeting. It is well recognized that there is a presumption that public officials entrusted with specific public functions related to their jobs properly carry out their duties. Beechwood Gardens Tenants' Association v. Department of Housing, 214 Conn. 505, 514-15, 572 A.2d 989 (1990). This ground has no merit.
VI. Non Compliance with Coastal Site Plan Statutes
Here the plaintiff asserts that in the submission which the board declined to accept prior to rendering its decision (now the supplemental record) the plaintiff enumerated four inconsistencies of the application with the policies of the coastal site plan statutes. The claimed inconsistencies read as follows: (Footnotes omitted.)
" 1. The Coastal Site Plan Review is not proceeding in a manner consistent with the rights of private property owners. This relevant policy is contained in CAM's general goals and policies, which includes but is not limited to (1) the development . . . of the coastal area proceeds in a manner consistent with the rights of private property owners . . . (CGS Sec 22a-92(a)(1)) (E.g., Zoning Board has no jurisdiction; conflicted Land Use Bureau Chief; the natural grade for the Subject Property has not been determined; basic analyses omitted etc.)
2. The Application for the CSRP fails to consider the potential impact of coastal flooding so as to minimize damage to and destruction of life and property. This relevant policy is contained in CAM's general goals and policies, which includes but is not limited to the need to consider in the potential impact of coastal flooding. CGS Sec 22a-92(a)(5) (E.g., Best practices for construction have not been noted or suggested in the Staff Report, see A72, for example).
3. If this Application is approved, the Zoning Board will have violated its Environmental duties because CAM's goal and policies require municipalities " to manage coastal hazard areas so as to insure that development proceeds in such a manner that hazards to life and property are minimized and to promote nonstructural solutions to flood and erosion problems . . ." CSG Sec. 22a-92(a)(b)(2)(F). (Several man-made structures will be needed to protect adjoining and other properties from the flooding caused by the Cullman/Kirby proposed project.)
4. The Project will increase the hazard of coastal flooding through significant alteration of the shoreline configuration. This relevant CAM policy is contained within the minimization of 'adverse impacts on coastal resources' policy, which includes but is not limited to . . . (E) configurations or bathymetry, particularly within high velocity flood zones (CGS Sec. 22a-93(15). (E.g., significant increase in footprint, in the velocity of the flood waters, etc.)"
The plaintiff also claims that in Ex. B she identified for the board inconsistencies between the staff report and the report submitted by Redniss & Mead. Because the court supplemented the record to include Ex. B after the board declined to accept it the court must review these claims and determine whether they undermine the validity of the board's decision. Clifford v. Planning and Zoning Commission, supra . Interpreting the guidance provided by the Clifford court concerning the duty of a trial court with respect to newly presented evidence, namely Ex. B, the scope of the review must necessarily be plenary because the board never had occasion to consider the material. Nevertheless, the board clearly had before it the various experts' studies which the plaintiff alleges are inconsistent with one another. Therefore, whether or not the claimed inconsistencies were brought to the board's attention, it was the board's prerogative to resolve any inconsistencies, if any, in favor of granting the application. It is well established that a zoning board is free to accept or reject expert testimony when it is conflicting or contradictory. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. at 547, supra . Furthermore, the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Samperi v. Inland Wetlands Agency, 226 Conn. at 588, supra .
In the present case the four inconsistencies are the claims of a layperson not an expert. Furthermore, by reason of her adjacency these opinions may be deemed to be biased. It is also noted that, the inconsistencies are strictly generalized conclusions, are non specific in scope and contain no facts to support them. The final claim is that the documents which were before the board contain errors. For instance, the plaintiff claims that the " large garage" is missing from the application. An examination of Ex. 25, page A-101 clearly shows a garage 25 feet 1 inch wide by 33 feet 6 1/4 inches deep. As stated earlier, the court finds that the plaintiff's contentions do not undermine the validity of the board's decision.
For all of the foregoing reasons the appeal is dismissed.