Opinion
No. CV 010096322
September 12, 2003
MEMORANDUM OF DECISION RE WHETHER ZBA APPROVAL FOR GARDEN CENTER INCLUDED PERMISSION FOR TOPSOIL EARTH PRODUCTS AS, INTER ALIA, AN ACCESSORY USE
Statement of Appeal
The plaintiffs, Scott Papoosha and Running Brook Farms, LLC, appeal from the decision of defendant Killingworth Zoning Board of Appeals. The defendant denied the plaintiffs' appeal from an order issued by the Killingworth zoning enforcement officer which ordered them to cease and desist from the stockpiling and processing of earth products at 212-14 Route 80 in Killingworth.
Background
On December 5, 2000, the Killingworth planning and zoning commission (commission) approved the plaintiffs' application for a special exception, special principal use in a commercial district, for a garden center at 212-14 Route 80 in Killingworth. Plaintiff Scott Papoosha is the manager and agent for plaintiff Running Brook Farms, LLC, which, as lessee, operates a retail garden center on the property. On May 18, 2001, the Killingworth zoning enforcement officer (ZEO) issued a cease and desist order to the plaintiffs advising them that the "stockpiling and processing of earth products requires a special exception under § 114 of the Killingworth zoning regulations. Plaintiff Scott Papoosha, doing business as Running Brook Farms, LLC, appealed the cease and desist order to the defendant on June 1, 2001. Following the public hearing, the defendant voted to uphold the cease and desist order. The plaintiffs appealed from that order to the Superior Court which heard the trial thereon on July 7, 2003.
Jurisdiction
General Statutes § 8-6 (a)(1) grants to the zoning board of appeals the power and duty "[t]o hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by" the zoning enforcement officer. "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.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). "Aggrievement is an issue of fact . . . and credibility is for the trier of the facts." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001). An owner of property, which is the subject of a board's decision, is aggrieved and entitled to bring an appeal. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991). "Whether a lessee has a sufficient interest in the property to be an aggrieved party depends upon the circumstances of each case, including the terms of the lease, whether the lessee is in control or possession of the property, or has a future fight of possession which is affected by the decision. " R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999), § 32.5, p. 114.
See Primerica v. Planning Zoning Commission, 211 Conn. 85, 95, 558 A.2d 646 (1989) (the owners of property, who retained a ten year lease in a portion of the property at the time of sale, were held to be aggrieved parties and allowed to maintain an appeal).
In the present appeal, Scott Papoosha alleges that as the manager and agent of the garden center, "and as the person who is the subject of the cease and desist order and the appellant before the board," he is aggrieved by the defendant's decision in denying the appeal. Running Brook Farms, LLC also alleges that as lessee of the property and operator of the garden center at issue in the cease and desist order and subsequent appeal, it is aggrieved by the defendant's decision. At the hearing, the parties filed a joint stipulation of the facts supporting aggrievement. It is undisputed that the property is owned in fee simple by Papoosha Real Estate Investors, LLC; that Scott Papoosha is the manager and agent of the retail garden center operated by Running Brook Farms, LLC on the property; and that the plaintiffs' appeal before the defendant to reverse the decision of the ZEO's issuance of a cease and desist order was denied. Accordingly, the court finds aggrievement that the plaintiffs are aggrieved for the purposes of bringing this appeal.
Timeliness and Service of Process
General Statutes § 8-8 (b) provides, in part, that an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." Subsection (f) further provides that service "shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality."
In the present appeal, the defendant's decision to uphold the ZEO's issuance of a cease and desist order was duly published in The Hartford Courant on August 31, 2001. On September 14, 2001, this appeal was commenced by service of process by leaving a true and attested copy of the original appeal, recognizance and citation at the original place of abode of Bruce E. Dodson, chairman of the zoning board of appeals, and in the hands of Linda Dudek, assistant town clerk.
Accordingly, the court finds that the appeal is timely and that the proper parties were served.
Scope of Review
"[F]ollowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and record before the board." Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82, 626 A.2d 744 (1993). "[T]he zoning board hears and decides such an `appeal' de novo, and . . . the action of the zoning enforcement officer that is the subject of the appeal is entitled to no special deference by the court." Id., 88-89.
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the [board's] decision . . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). "Where a zoning board of appeals does not formally state the reasons for its decision, however, the trial court must search the record for a basis for the board's decision." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995).
"The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal." RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) Id. "Moreover, the plaintiffs bear the burden of establishing that the board acted improperly." Wood v. Zoning Board of Appeals, 258 Conn. 691, 698, 784 A.2d 354 (2001).
Because the defendant in the present appeal did not formally state the reasons for its decision, the trial court must search the record to determine whether the defendant acted arbitrarily, illegally or in abuse of its discretion.
Analysis
The plaintiffs allege that the defendant acted arbitrarily, illegally and in abuse of its discretion in denying their appeal of the ZEO's issuance of a cease and desist order. Specifically, the plaintiffs allege that (1) the preparation of topsoil in connection with the operation of a retail garden center is a use expressly permitted in a commercial district pursuant to § 80 A. 1. of the regulations; (2) the mixing of sand, mulch and compost to prepare topsoil is an accessory use that is customary and incidental to the principal use authorized by the regulations; and (3) § 114 of the regulations, governing the removal of earth products, does not apply to the plaintiffs' principal use of its property as a retail garden center. At trial, the plaintiffs filed a prehearing reply brief to clarify and narrow the above issues for oral argument.
In opposition, the defendant argues that no section of the regulations permits the preparation of topsoil without a special exception; that the preparation of topsoil is not an accessory use that is customary and incidental to the principal use as a garden center; and that § 114 of the regulations properly applies to the plaintiffs' activities associated with their stockpiling and mixing of materials to produce topsoil.
Whether the Preparation of Topsoil in Association with a Retail Garden Center is an Approved Principal Use Under § 80 A. 1. of the Regulations
The plaintiffs argue that because a retail garden center is a general principal use expressly authorized in a commercial district under § 80 A. 1. of the regulations, it "is not among the several retail uses requiring a special exception pursuant to § 80 A. 2." to conduct the preparation of topsoil. (Plaintiffs' Brief, p. 15.) The plaintiffs further maintain that because their special exception application for a garden center expressly indicated that the preparation and processing of topsoil would occur on the property, it was part of the approval previously granted by the commission on December 5, 2000. The defendant counters that the regulations do not permit the preparation of topsoil in association with a garden center as a principal use in a commercial district, nor as an accessory use, nor was that use authorized by the special exception previously issued by the commission.
Section 80 A. 1. sets forth the general principal uses permitted in a commercial district, subject to site plan approval by the commission. These uses include, in pertinent part: "Retail service establishments and retail stores not requiring a special exception pursuant to Section 80 A. 2. of these regulations . . ." (ROR, Zoning Regs., § 80 A. 1.B., p. 80-1.) Section 80 A. 2. requires that certain special principal uses performed in association with those principal uses authorized under § 80 A. 1. need further special exception approval from the commission. These special principal uses include retail stores for the sale of alcoholic beverages; hotels; automobile service stations and car wash enterprises; theaters; billiard parlors, bowling alleys, indoor skating rinks; dance studios; restaurants, bars, food service shops; barber shops, beauty parlors, laundromats, cleaning or laundry agencies; bed and breakfast; medical clinic and veterinary clinic. (ROR, Zoning Regs., § 80 A. 2., p. 80-1.)
Section 80 A. 2. dictates that an applicant must comply with the procedural requirements set forth in § 120 and subject to certain special conditions outlined in § 130 of the regulations. (ROR, § 80 A. 2., p. 80-81.)
"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 [has] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts." (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, supra, 258 Conn. 697. "[A] local ordinance is a municipal legislative enactment and the same canons of construction which we use in interpreting statutes are applicable to ordinances . . . In interpreting a zoning ordinance, the question is the intention of the legislative body as found from the words employed in the ordinance . . . The words [employed] are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their express terms . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant . . . Common sense must be used in construing the regulation, and [the court] assume[s] that a rational and reasonable result was intended by the local legislative body." (Citation omitted; internal quotation marks omitted.) Munroe v. Zoning Board of Appeals, 75 Conn. App. 796, 804, 815 A.2d 1261 (2003).
A review of the regulations confirms that the operation of a retail garden center is a general principal use authorized in a commercial district under § 80 A. 1.B. of the regulations. Moreover, a garden center is not among those special principal uses itemized in § 80 A. 2. which expressly requires additional approval by the commission. An examination of § 80 A. 2., however, suggests that the underlying purpose of this section is to regulate further those general principal uses authorized under § 80 A. 1. that may adversely effect the health, safety and welfare of the public.
For example, any proposed special exception use "shall not adversely affect the enjoyment, usefulness and value of the premises in the general neighborhood thereof," or adversely affect "neighboring wetlands and water courses or the natural ecological processes and functions thereof." (ROR, Zoning Regs., §§ 130 A. 3., 130 A. 6., p. 130-31.)
In the present appeal, while a liquor store and a gas station are authorized retail service establishments under § 80 A. 1.B., both retail uses need further special exception approval under § 80 A. 2. Specifically, the placement of a liquor store in a rural residential district, or within 1,000 feet of another liquor store is prohibited. (ROR, § 112 A. 3., p. 112-1.) Similarly, the placement of a gas station within 2,500 feet of another gas station is also banned. (ROR, § 80 A. 2.C., p. 80-1.) It is reasonable to assume that these additional restrictions are in place because the location of a liquor store, or of a gas station, could adversely affect the enjoyment, usefulness and values of the properties in a general neighborhood.
Similar to a liquor store and a gas station, a garden center is an approved retail service establishment under § 80 A. 1.B. Unlike a liquor store or a gas station, however, a garden center is not expressly listed under § 80 A. 2. as a special principal use needing further approval to conduct the usual retail activity of selling shrubbery, plants and landscaping materials. The issue here, however, is whether a fair interpretation of the regulations leads to the conclusion that the preparation and processing of topsoil using earth products is an approved general principal use in association with a retail garden center, so that the use would not necessitate additional approval under § 80 A. 2.
Both § 80 A. 1., general principal uses, and § 80 A. 2., special principal uses, state that any approval for a special exception permit requires an applicant to comply with the procedures outlined in § 120 of the regulations. (ROR, Zoning Regs., §§ 80 A. 1. and 80 A. 2., p. 80-1.) Accordingly, the plaintiffs were required to comply with § 120 in their initial application notwithstanding its apparent approval under § 80 A. 1. Section 120 states, in part, that "[e]ach application form shall contain or be accompanied by, in writing: . . . A complete and comprehensive statement and site plan, describing the proposed use and all improvements relating thereto . . ." (ROR, Zoning Regs., § 120C. (4), p. 120-2.) The apparent reason for this procedural guideline is to allow the commission to make an informed decision when examining a special exception application.
Here, the plaintiffs were utilizing a twenty horsepower machine (screener) to mix sand, mulch and compost to produce topsoil, which led to the ZEO's issuance of a cease and desist order. (ROR, ZEO Letter, Exh. 17.) The plaintiffs claim that they were not required to depict this planned use on their original site plan, only alterations to existing buildings or any new improvements, which planned use was part of their previously approved special exception granted by the commission. The defendant counters that "there was absolutely no reference in any manner to the use of machine screening equipment to `prepare' the topsoil . . . [and] this activity was never proposed or discussed at the . . . public hearing."
In addition to complaints about the noise levels exceeding acceptable decibel levels, the Connecticut Water Company raised concerns that manure was being used to mix topsoil and was a threat to the town's public water supply reservoir. (ROR, Letter to ZBA, Exh. 16.) The inland wetlands and watercourses commission raised concerns that the plaintiffs' activity was being performed within the regulated wetland buffer area in violation of General Statutes §§ 22a-36 through 22a-45. (ROR, Letter from inlands wetlands commission to Papoosha, Exh. 18.)
The plaintiffs' site plan revealed the placement of four storage bins on the eastern portion of the property to warehouse topsoil, stone, compost and mulch. (ROR, Site Plan, Exh. 24.)
A cursory reading of §§ 80 A. 2.1. and 80 A. 2. supports the plaintiffs' argument that only improvements, alterations of existing buildings and any new construction, must be depicted on a site plan when seeking a special exception from the commission. (ROR, Zoning Regs, §§ 80 A. 1., 80 A. 2., p. 80-1). Yet, the plaintiffs minimize the important procedural requirements of § 120 that applied to their original application. Specifically, § 120C. (4) requires an applicant to provide a "comprehensive statement" to the commission concerning any proposed use in association with a principal use. The narrative portion of the plaintiffs' application provided for "[s]pace for the preparation of, and retail outlet for topsoil, mulch and compost . . ." (ROR, Special Exception Proposal, Exh. 21.) There was no indication on the application, however, that a commercial screener would be used to process and produce topsoil.
At the November 21, 2000 public hearing, where the plaintiffs were seeking approval for the garden center, Scott Papoosha testified that the projected "equipment to be stored at this location would be a bucket loader" and that the "vehicles would be three trucks." (ROR, Transcript of 11/21/00, Exh. 23, p. 3.) When further questioned by chairman Martens, "are you going to have any heavy equipment," Scott Papoosha responded that there would be a payloader to load mulch. (ROR, Exh. 23, p. 3.) He did not state that additional heavy equipment would be necessary to prepare the topsoil, nor did he describe the process to the commission.
It was not until after the ZEO issued a cease and desist order, at the August 27, 2001 appeal hearing, that Scott Papoosha thoroughly explained that the actual process of preparing topsoil involved the use of a huge screener approximately eight feet by twenty five feet in size. (ROR, Transcript of 8/27/01 ZBA proceedings, Exh. 38, pp. 8-11.) He explained that the machine is positioned so that it would be fed directly into the one of storage bins; that compost is brought in from off-site, "[a]nd then it's run through a shredder, shredded and screened." (ROR, Exh. 38, pp. 11-12.) In response, the ZEO testified that the entities that reviewed the plaintiffs' application for a garden center, the commission, the inland wetlands commission and the town engineer, were completely unaware of the process for preparing topsoil because it was never explained to them. "[I]t may be naive but you're talking about people who are not in the business, and their understanding was that [the topsoil] was going to be prepared in the bins" shown on the site plan. (ROR, Exh. 38, p. 32.)
Accordingly, the court finds that there is credible evidence in the record to support the defendant's decision to uphold the ZEO's issuance of a cease and desist order. Specifically, the court finds that while a retail garden center is an approved general principal use under § 80 A. 1.B., the preparation of topsoil is not a retail use that is automatically approved as part of the general principal use and, therefore, was not part of the special exception previously granted by the commission. The court further finds that the plaintiffs' not adhering fully to the provisions of § 120, by not describing the methodology for preparing topsoil, deprived the commission of the opportunity to determine, whether a special exception permit was further required under § 80 A. 2. of the regulations.
Whether the Preparation of Topsoil is an Accessory Use that is Customary and Incidental to the Principal Use of a Retail Garden Center
In the alternative, the plaintiffs argue that in designating a particular property for principal authorized use, the zoning commission also authorizes accessory uses related to that principal use. As such, the plaintiffs contend that if the preparation of topsoil is not part of their previously approved special exception, then it is an "accessory use" authorized by the regulations as "incidental" and "minor in significance to the actual operation of the retail garden center." The defendant counters that § 80 of the regulations makes it clear that certain other uses are not to be allowed as uses accessory to the principal use, and that includes the parking or storage of any commercial motor vehicle accessory to the principal use not concealed within an enclosed structure or invisible from public streets or adjacent residential structures.
Section 20 of the regulations defines an "accessory use" as "any improvement which is attendant, subordinate and customarily incidental to the principal improvement on the same premises." (ROR, Zoning Regs., § 20, p. 20-1.) Section 80 A. 3.G. further provides, in part, that "[m]echanical equipment . . . and similar accessory structures and uses shall be concealed within the roof or enclosed within a structure. Where this is not possible, mechanical elements shall be located so that they are not visible from public streets or adjacent residential areas . . ." (ROR. Zoning Regs., § 80 A. 3.G., p. 80-3.)
Both parties cite to the seminal case of Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 512, 264 A.2d 552 (1969) for the definition of accessory use. "An accessory use under a zoning law is a use which is dependent on or pertains to the principal or main use." (Internal quotation marks omitted.) Id. "[A]ccessory uses must be located on the same lot, and must be subordinate and customarily incidental to, the principal use." DJ Quarry Products, Inc. v. Planning Zoning Commission, 217 Conn. 447, 456, 585 A.2d 1227 (1991). "Whether a particular use qualifies as an accessory use is ordinarily a question of fact for the zoning authority, to be determined by it with a liberal discretion." (Internal quotation marks omitted.) Upjohn Co. v. Planning Zoning Commission, 224 Conn. 82, 89, 616 A.2d 786 (1992).
"The word `incidental' as employed in a definition of `accessory use' incorporates two concepts. It means that the use must not be the primary use of the property but rather one which is subordinate and minor in significance . . . But `incidental,' when used to define an accessory use, must also incorporate the concept of reasonable relationship — with the primary use. It is not enough that the use be subordinate; it must also be attendant or concomitant. To ignore this latter aspect of `incidental' would be to permit any use which is not primary, no matter how unrelated it is to the primary use." Lawrence v. Zoning Board of Appeals, supra, 158 Conn. 512. "The word `customarily' is even more difficult to apply . . . Courts have often held that use of the word `customarily' places a duty on the board or court to determine whether it is usual to maintain the use in question in connection with the primary use of the land." Id. "The use must be further scrutinized to determine whether it has commonly, habitually and by long practice been established as reasonably associated with the primary use." Id., 512-13.
Accordingly, the plaintiffs must establish that the proposed use of preparing topsoil on the property is both customary and incidental to the operation of the garden center. While common sense dictates that topsoil already prepared for retail sale is rationally related to the primary use of a garden center, the actual process of mixing sand, mulch and compost to produce topsoil is altogether different. At the August 27, 2001 appeal hearing, Scott Papoosha testified that the process of mixing topsoil requires utilizing a screener in an area eight feet by twenty-five feet. (ROR, Exh 38, p. 11.) He also stated that this activity would take place for "5 to 6 hours a day . . ." during the months of April, May, June, August, and September. (ROR, Exh. 38, p. 23.)
The plaintiffs argue that the defendant misinterpreted Papoosha's statement regarding the duration of the mixing operations, and that the operations would not exist on a continual basis, but only at those times necessary "to maintain a supply for retail sale." (Plaintiffs' Prehearing Reply Brief, p. 9.)
Here, the plaintiffs' efforts to minimize the enormity of the mixing operations after-the-fact are unpersuasive. The magnitude of the proposed production activity, in terms of the hours of operation and the size of the screener, suggests that the plaintiffs never intended for the preparation of topsoil to be an accessory use, subordinate and minor in significance to the primary use of the garden center. Furthermore, the plaintiffs' counsel represented that had Scott Papoosha known that he would not be allowed to process topsoil on the property, he would have gone to another community "because this is an integral part of his business and gives him the ability to sell [topsoil] at a reasonable price to his consumers." (Emphasis added.) (ROR, Exh. 38, p. 80.)
The concept of custom is more difficult to apply in the present appeal because there are no other retail garden centers in Killingworth. The plaintiffs argue that in order to demonstrate custom, Scott Papoosha properly testified before the board that such mixing operations are conducted on several garden centers in the region. The defendant argues that Papoosha's testimony is simply not persuasive as to custom. Specifically, the defendant contends that the testimony and photographs provided by Scott Papoosha that this activity occurs at other garden centers in Oxford and Monroe does not show whether the alleged accessory use at the sites existed as specially permitted uses or as preexisting non-conforming uses.
Papoosha testified that he has been involved in the landscaping business since 1981. (ROR, Exh. 38, p. 8.)
While the defendant may properly consider the testimony of Scott Papoosha, it is not required to accept it. "A zoning [commission], like any other administrative board or agency, may determine for itself the weight it will give to the evidence it receives in the form of oral testimony or any materials or statistical data that are presented on any particular issue . . ." Brennick v. Planning Zoning Commission, 41 Conn. Sup. 593, 602, 597 A.2d 346 (1991). "An administrative agency is not required to believe any witness, even an expert." Manor Development Corp. v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980).
"In applying the test of custom . . . some of the factors which should be taken into consideration are the size of the lot in question, the nature of the primary use, the use made of the adjacent lots by neighbors and the economic structure of the area. As for the actual incidence of similar uses on other properties, geographical differences should be taken into account, and the use should be more than unique or rare, even though it is not necessarily found on a majority of similarly situated properties." Lawrence v. Zoning Board of Appeals, supra, 158 Conn. 513.
Because there are no other garden centers in Killingworth, the issue of whether the preparation of topsoil is an acceptable accessory use in association with a garden center is open to interpretation. The record reveals, however, that there was an incident four years ago in which the ZEO issued a cease and desist order closing down a topsoil screening operation for the lack of a permit. (ROR, Exh. 38, p. 34.) In fact, the site involved was directly across the street from the plaintiffs' property. (ROR, Exh. 38, p. 34.) Instead of seeking approval from the commission for that operation, that property owner moved the screening operations to another town. (ROR, Exh. 38, p. 34.) While this prior incident was not an accessory use performed in association with an approved general principal use, it does evince an intent by the commission to regulate the processing and screening of topsoil. Thus, it is reasonable to assume that if the plaintiffs had provided a comprehensive statement describing in expansive detail the methodology of preparing topsoil in their special exception application for a garden center, the commission would have required further review.
After considering the facts contained in the record, and the arguments of counsel, and the relevant case law, it is apparent that, in Killingworth, the preparation of topsoil is not considered an accessory use that is customary and incidental to the principal use of a garden center, as defined by § 20 of the regulations.
Whether § 114 of the Regulations Applies to the Preparation of Topsoil
The plaintiffs argue that the intent of § 114 is to regulate the removal and excavation of earth products from gravel or rock quarries, and does not apply to their activity of preparing topsoil for retail sale. Specifically, the plaintiffs contend that the zoning enforcement officer mistakenly informed the defendant that § 114D.8 prohibited them from preparing topsoil on the property, and, therefore, the cease and desist order was issued in error. The defendant counters that the stockpiling and processing of earth materials is prohibited by § 114.
The plaintiffs claim that the large stockpiles originally excavated in order to construct the garden center building erroneously led to the ZEO's issuance of a cease and desist order regarding their right to prepare topsoil using sand, mulch and compost. Because the plaintiffs acknowledge that the excavated material was removed from the property prior to the appeal hearing, the issue of whether the excavated material was being used to prepare topsoil is moot.
The ZEO testified that, at times, the stockpiling of material reach heights of twenty to twenty five feet. (ROR, Exh. 38, p. 30.)
"A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it . . . Although the position of the municipal land use agency is entitled to some deference . . . the interpretation of provisions in the ordinance is nevertheless a question of law for the court . . . The court is not bound by the legal interpretation of the ordinance by the [board] . . . If a board's time-tested interpretation of a regulation is reasonable, however, that interpretation should be accorded great weight by the courts . . ." Vivian v. Zoning Board of Appeals, 77 Conn. App. 340, 344, 823 A.2d 374 (2003).
Section 114 confers upon the commission the authority to regulate the excavation and removal of earth products. (ROR, Zoning Regs., § 114, p. 114-1.) The plaintiffs, however, take a selective approach to § 114, and reason that because the activity of preparing topsoil does not involve the excavation and removal of earth products, § 114 does not apply to them. The plaintiff's narrow reading of this provision is misplaced, and disregards those provisions contained in § 114 governing the stockpiling of earth products, in general. Section 114B. (General Restrictions) provides, in part, that "no earth products shall be excavated or removed from any land, shall be piled, kept or stored on any land, except as hereinafter permitted." (Emphasis added.) (ROR, Zoning Regs., § 114B., p. 114-1.) Moreover, § 114F. (Stockpiling) sets forth that " [n]o earth products shall be piled, kept or stored upon any land except when authorized in the particular instance by a special exception granted by the Commission pursuant to 120 . . ." (Emphasis added.) (ROR, Zoning Regs., § 114F., p. 114-4.) Again, an objective reading of § 114 leads to the conclusion that its purpose is to regulate earth products, in general, regardless of whether the material is being excavated, removed, piled, kept or stored upon any land. (ROR, Zoning Regs., § 114B., p. 114-1.)
Nowhere in the record is there any evidence that the plaintiffs applied for and received a special exception permit to stockpile earth products in connection with their activity of preparing topsoil.
The ZEO testified that members of the planning and zoning commission urged the plaintiffs to file an amendment to their site plan seeking further approval regarding the preparation of topsoil and stockpiling of materials on the property. (ROR, Exh. 38, p. 90.)
Accordingly, the court finds, that the record supports the defendant's decision to uphold the ZEO's issuance of a cease and desist order because the record reveals that the plaintiffs are in violation of § 114 of the regulations.
The Plaintiffs' Prehearing Reply Brief
The plaintiffs' prehearing reply brief addresses nine collateral issues raised by the defendant in its opposing brief. Specifically, the plaintiffs claim: (i) that they never agreed to abandon the use of the eastern portion of its property; (ii) that no raw manure has ever been delivered to their property nor will it be used to mix topsoil; (iii) that since there are no other garden centers in Killingworth, the evidence concerning the use of screeners at other garden centers in Connecticut is appropriate to establish it as an accessory use; (iv) that the use of a commercial screener is not prohibited by § 80A of the regulations; (v) that substantial evidence does not support a finding that the mixing of sand and compost to prepare topsoil is the primary use of the property; (vi) that the large piles of topsoil excavated in order to construct the building on the property are not related to the ongoing preparation of topsoil at issue in this appeal; (vii) that the decision in Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 264 (1969), does not require the introduction of regulations from other towns to establish that screeners used to mix topsoil is an accessory use customary and incidental to the principal use; (viii) that the defendant has no special knowledge to determine what is an accessory use in association with the operation of a retail garden center; and (ix) that the defendant misinterprets § 114 of the regulations.
The arguments raised in (iii), (v), (vi), (vii), (viii) and (ix) above are repetitive of the plaintiffs' earlier arguments, and already have been properly reviewed by the court. The remaining arguments are addressed below.
(i) Whether the Plaintiffs Abandoned the Easterly Portion of the Property
As noted earlier, the plaintiffs' site plan shows the placement of four storage bins on the easterly portion of the property. (ROR, Site Plan, Exh. 24.) The plaintiffs argue that they never agreed to abandon the use of the easterly portion of the property to prepare topsoil, and that the defendant misconstrued a statement by their engineer that "nothing was happening on the east side of the property." (Plaintiffs' Prehearing Reply Brief p. 2.) Here, the plaintiffs are clarifying their earlier argument that they were only required by § 80 of the regulations to depict improvements or alterations to existing buildings on their site plan, not the location on the property where they planned to prepare topsoil. Thus, while a review of the record reveals that the plaintiff did not adequately describe the methodology for preparing topsoil in their special exception application for a garden center, the record contains no evidence with respect to abandonment.
(ii) Whether Raw Manure Was Being Used to Prepare Topsoil
Based upon Papoosha's statement that no raw manure has ever been used to prepare topsoil, only aged compost, the ZEO agreed that this issue is moot. (ROR, Exh. 38, p. 40.)
(iv) Whether the Use of a Screener Is Prohibited by § 80 of the Regulations
A careful review of § 80 of the regulations indicates that the use of a screener in a commercial district is not specifically prohibited. Section 80 A. 3G. provides, however, that "Mechanical equipment, storage areas, service areas, trash receptacles, and similar accessory structures and uses shall be concealed within the roof or enclosed within a structure. Where this is not possible, mechanical elements shall be located so that they are not visible from public streets or adjacent residential areas. Mechanical equipment located at ground level shall be adequately screened and landscaped." (ROR, Zoning Regs., § 80 A. 3G, p. 80-3.)
The plaintiffs argue that because the term "mechanical equipment" is not defined by the regulations, the language in § 80 A. 3G "refers to equipment that is affixed to the land and not portable machines," including a portable screener. (Reply Brief, p. 6.) The regulation plainly states that mechanical equipment must be concealed in an enclosed structure, or adequately shielded from public view. Nowhere in this provision are the words, "permanent" or "affixed," used to describe the term "mechanical equipment." The plaintiffs have not provided any evidence, nor does the record demonstrate, that the screener, when not in use, was properly enclosed within a structure, or adequately camouflaged from public view in keeping with the dictates of § 80 A. 3G.
Conclusion
For the foregoing reasons and upon the foregoing authorities, the court finds that the decision of the Town of Killingworth Zoning Board of Appeals to uphold the cease and desist order of the Zoning Enforcement Officer of the Town of Killingworth was not arbitrary, illegal or an abuse of its discretion. Accordingly, the plaintiffs' appeal should be and hereby is dismissed.
Clarance J. Jones, Judge