Opinion
No. FST CV 05 4007594 S
November 13, 2008
MEMORANDUM OF DECISION
Are roads and docks subject to zoning? These are the questions.
This appeal involves a decision by the Stamford Zoning Board of Appeals (ZBA) in an appeal from a decision by the Stamford Zoning Enforcement Officer that a dock in the waters of Stamford Harbor/Long Island Sound and as well as Cook Road Extension leading to the dock are not subject to the Stamford Zoning Regulations. There is no Appellate Court decision in Connecticut directly on point. Although Connecticut is one of the smallest states in the Union, its meandering shorefront on the waters of Long Island Sound contains the largest shorefront per capita of all fifty states. "There are 217 miles of direct shorefront on Long Island Sound but including land fronting on the estuaries draining into the Sound and tidal wetlands, the entire coastal frontage measures 583 miles." Department of Environmental Protection, Connecticut Coastal Access Guide. There are 36 municipalities that directly front on Long Island Sound. General Statutes § 22a-94(a). In addition there are over a hundred thousand miles of roads in Connecticut's 169 municipalities.
Connecticut Gen. Statutes § 8-6(a) authorizes the zoning board of appeals to hear appeals from actions of the local zoning enforcement officer. "The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter; . . ." Following an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court must engage in the following scope of review. "We conclude that, following 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 the record before the board." Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82 (1993).
The court makes the following findings of facts and legal conclusions.
The dispute over this dock has a long history. Portions of that history will be contained in this decision. All references to the "dock" in this decision shall include pilings, piers, floats, ramps, finger docks and gangways. The owner of Cook Road Extension is the Southfield Point Association, Inc. The dock owners are the Southfield Point Association, Inc. and Davenport Point Association, Inc. Both are defendants in this lawsuit. The other two defendants are the Zoning Enforcement Officer and the Zoning Board of Appeals of the City of Stamford.
On June 17, 2004 John P. Casey, an attorney with Robinson and Cole, LLP, acting on behalf of the plaintiff, wrote a six-page letter to Mr. James J. Lunney, III, the Zoning Enforcement Officer of the City of Stamford, regarding Southfield Point Association (SPA). The letter was headed: "Southfield Point Association, Inc. Multi User Dock/Marina Extension End of Cook Road, Stamford, CT." The letter concluded as follows:
Without question, the SPA multi-user dock presents a complicated zoning compliance question. While the actual dock structures themselves are primarily beyond the high water line, the impact on the uplands and surrounding properties caused by the expanded use of the dock should not be ignored. The dock must be investigated, and I am confident you will agree that zoning enforcement action should be taken. If your office determines the previous dock to be a pre-existing, non-conforming use, then the new dock is an illegal expansion of that non-conformity and your office should issue a cease-and-desist order requiring the SPA to remove the new dock and return the site to its previous condition. If, on the other hand, you determine the dock to be an existing use permitted as a special exception, then you should still issue a cease-and-desist order pending approval of a Special Exception by the ZBA. Either way, this dock should not escape scrutiny by the City's zoning officials. Thank your for your attention to this request, I look forward to your response and would appreciate the opportunity to meet with you to discuss this matter.
The June 17, 2004 letter also discussed the eastern end of Cook Road. It mentions the Plaza at that location as being 60 feet wide and approximately 200 feet long from Davenport Drive to Stamford Harbor. The Plaza and Cook Road Extension are one and the same.
A May 3, 2005 opinion from Mr. Lunney was issued in response to that June 17, 2004 letter. In its final paragraph, the May 3, 2005 letter states: "The result of Corporation Counsel's review was that the Dock was not governed by this office because it is governed by the State. It is also the determination of the Law Department that the Dock was a neighborhood Dock and not a Marina, and therefore not addressable under the Zoning Regulations." At the August 24, 2005 ZBA public hearing Mr. Lunney restated his decision: "The decision was that I'm not going to tell them that they have to come before the board." "I did not have the authority to make them come before the board." From this language and a review of the entire record this court finds that Mr. Lunney adopted the determinations of the Stamford Law Department as his own decision. The court finds that Mr. Lunney made two decisions in his May 3, 2005 letter: a factual determination, Doyen v. Zoning Board of Appeals, 67 Conn.App. 597, 600 (2002), and an interpretation of the applicability of the zoning regulations, Raymond v. Zoning Board of Appeals, 76 Conn.App. 222, 233 (2003).
On June 1, 2005 the plaintiff, Jerome Rapoport, filed an appeal with the ZBA stating: "Decision of the Zoning Enforcement Officer dated May 3, 2005 is appealed because: Southfield Point Association, Inc., acting alone or in concert with Davenport Point Association, Inc. has over time expanded a non-conforming use, all as more specifically set forth in Schedule A attached hereto and made a part hereof." Attached as Schedule A appears to be the June 17, 2004 plaintiff attorney's letter and Mr. Lunney's May 3, 2005 letter. The application described the subject premises: "East of Davenport Drive/Cook Road intersection comprising the Plaza at the Easterly Terminus of Cook Road and littoral rights beyond." The application further indicated that the following structures and uses presently exist: "Bulkheads, pilings, piers, gangways, docks, launching ramp." A Legal Notice was published by the ZBA for the public hearing which stated: "Application #103-05 of Jerome Rapoport of an Appeal of the Zoning Enforcement Officer's Decision in determining the dock at 236 Davenport Drive was a neighborhood dock and not a marina and not addressable under the Zoning Regulations. Said property located on the East side of Davenport Drive/Cook Road intersection comprising the Plaza at the Easterly Terminus of Cook Road and littoral rights beyond in a R-20 zone." The ZBA held public hearings on August 24, 2005 and September 19, 2005. The ZBA met on October 26, 2005 in executive session. The ZBA upheld the decision of the Zoning Enforcement Officer that the dock and immediate area was not subject to the Stamford Zoning Regulations.
The formal decision of the ZBA dated November 10, 2005 is as follows: "The Zoning Board of Appeals voted to uphold the Zoning Enforcement Officers' Decision (103-05 of Jerome Rapoport) in determining the dock at 236 Davenport Drive was a neighborhood dock and not a marina and not addressable under the Zoning Regulations." Return of Record #31, ZBA Certificate of Decision.
The plaintiff filed this appeal with the Superior Court in a timely fashion.
The court concludes that the entirety of Cook Road Extension, the dock located in the waters of Stamford Harbor/Long Island Sound and the connection between the dock and the land portion of Cook Road Extension were each at issue as to whether they were under the jurisdiction of the Stamford Zoning Regulations. Mr. Lunney considered and rendered an opinion on all three areas. The record before the ZBA indicates that the ZBA considered and rendered a decision on all three areas. The ZBA referred to the Plaza leading to Cook Road and Cook Road Extension as 236 Davenport Drive. Although 236 Davenport Drive may not be a correct street address for Cook Road Extension, the record before the ZBA is clear that Cook Road Extension was before the ZBA. Therefore 236 Davenport Drive is the entirety of Cook Road Extension and all the dock facilities.
The property in question is located in the R-20 Zone. It is in an area commonly known as Southfield Point. The Southfield Point subdivision map recorded in the Stamford Land Records lays out the following roads: Davenport Drive, Cook Road, Hickory Drive, and Eureka Terrace. This map superceded two earlier recorded subdivision maps. They are private roads. Southfield Avenue services a portion of the subdivision. Residential lots are laid out fronting on each of those streets. Cook Road runs in an easterly direction from Southfield Avenue to its intersection with Davenport Drive. Cook Road then continues beyond Davenport Drive easterly a short distance between two lots to the shorefront of Stamford Harbor, a portion of Long Island Sound. The court refers to this section of Cook Road, as Cook Road Extension. In ROR #17 Tab 6 the plaintiff refers to Cook Road Extension as the Plaza. They are one and the same. Sometime after the subdivision was recorded, single-family houses were built on the subdivision lots. The two defendants' associations were later formed with its membership limited to the property owners in the Southfield Point subdivision. There are 87 association members. These owners as members of the two Associations use Cook Road Extension for access to Stamford Harbor/Long Island Sound. Various docks, pilings and other improvements were constructed over the years at the end of Cook Road Extension. The members of the two associations alone have the right to use Cook Road Extension and the dock, not the general public.
This court appeal relates to three specific areas: (1) Cook Road Extension; (2) the dock directly on the waters of Stamford Harbor/Long Island Sound; (3) the connection between the dock located in the waters of Stamford Harbor/Long Island Sound and Cook Road Extension. These three areas were the subject of Mr. Lunney's opinion, the decision of the ZBA and this Superior Court appeal. The court has disregarded the DEP "Fact Sheet" attached to the defendant's November 26, 2007 brief as Exhibit 3. It was not part of the ZBA record.
Directly to the south of Cook Road Extension is the single-family house at 122 Davenport Drive, Stamford, Connecticut owned by the plaintiff, Jerome Rapoport. At trial three exhibits were offered and Mr. Rapoport testified. Exhibit 3 is an aerial photograph of Cook Road, Cook Road Extension, the dock and Mr. Rapoport's house at 122 Davenport Drive. The plaintiff's property abuts and is within 100 feet of Cook Road Extension and the dock. At all times referenced and to this date, the plaintiff has been the record title owner of 122 Davenport Drive, Stamford, Connecticut. This court finds that the plaintiff, Jerome Rapoport, is statutorily aggrieved. General Statutes § 8-8(a)(1).
The test for review of a decision of a municipal land use agency depends upon the function of the agency. In this case the ZBA did not act in a legislative or administrative capacity. The ZBA has a greater discretion when it acts in a quasi-judicial capacity. Stern v. Zoning Board of Appeals, 140 Conn. 241, 245 (1953); Connecticut Sand and Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442 (1963). Where there is an appeal to a zoning board of appeals under Gen. Stat. § 8-6(a)(1) the board acts in a quasi-judicial capacity. Nielson v. Zoning Board of Appeals, 152 Conn. 120, 123 (1964); Conn. Gen. Stat. §§ 8-6(a)(1) and 8-7. This court must determine if the reasons assigned by the ZBA are reasonably supported by the record and are pertinent to the considerations granting the variance. The court has no right to go beyond the reasons stated. Stankiewicz v. Zoning Board of Appeals, 211 Conn. 76, 77-78 (1989). The court should not go beyond the official statement of the board once the board has stated its reasons even if the reasons stated are inadequate.
We reaffirm that this is the appropriate scope of review for municipal land use appeals and appeals from decisions of historic district commissions. When an administrative agency specifically states its reasons, the court should go no further because it could reasonably be inferred that this was the extent of its findings. To go beyond those stated reasons invades the factfinding mission of the agency by allowing the court to cull out reasons that the agency may not have found to be credible or proven. Fonfara v. Reapportionment Commission, 222 Conn. 166, 206 n. 12, 610 A.2d 153 (1992) (Berdon, J., dissenting). To the extent that our decision in Stankiewicz conflicts with this principle, it is hereby overruled. Thus, our review of the commission's decision is limited to whether there is substantial evidence in the record to support the conclusion . . .
Gibbons v. Historic District Commission, 285 Conn. 755, 771 (2008).
Generally it is the function of a zoning board or a commission 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 Appellate Court and trial courts must decide whether the board correctly interpreted the section of the regulations and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal . . . Courts are not to substitute their judgment for that of the board, . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . The trial court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support the board's findings . . . Evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact and issue can be reasonably inferred . . .
Oakbridge/Rogers Avenue Realty, LLC, v. Planning and Zoning Board of Appeals, 78 Conn.App. 242, 248 (2003).
In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given. (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-60, 916 A.2d 5 (2007), citing Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004). Since the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . the court must determine the correctness of the conclusions from the record on which they are based. (Citation omitted; internal quotation marks omitted.) Spectrum of Connecticut, Inc. v. Planning Zoning Commission, supra, 13 Conn.App. 163, quoting Feinson v. Conservation Commission, 180 Conn. 421, 425, 429 A.2d 910 (1980); Housatonic Terminal Corp. v. Planning Zoning Board, 168 Conn. 304, 306, 362 A.2d 1375 (1975).
Smith Brothers Woodland Management, LLC v. Zoning Board of Appeals, 108 Conn.App. 621, 628 (2008).
"Where the administrative agency has made a factual determination, the scope of review ordinarily is expressed in such terms as substantial evidence or sufficient evidence . . . Where, however, the administrative agency has made a legal determination, the scope of review ordinarily is plenary." O'Donnell v. Waterbury, 111 Conn.App. 1, 7 (2008); Quarry Knoll II Corp. v. Planning and Zoning Commission, 256 Conn. 674, 721 (2001).
This court will discuss the three specific areas that were the subject of the Zoning Enforcement Officer's decision, the ZBA hearing and decision and this court appeal. The court will examine the ZBA's record under the substantial evidence standard and then conduct a plenary review of the legal issues raised before the ZBA in regards to each of the three areas.
I. The Utilization of Cook Road Extension
The parties alternatively refer to this area as the Terminus of Cook Road, the Plaza, 236 Davenport Drive and/or Cook Road Extension. All four descriptions are one and the same. The court will use the term "Cook Road Extension." The plaintiff commenced the ZBA public hearing with the following statement: "The decision relates to the area called the plaza at the terminus of Cook Road." One early subdivision map refers to Cook Road Extension as the Plaza. The ZBA record reflects that Cook Road, having been laid out in the 1925 subdivision, extends from Southfield Avenue to Davenport Drive. At the intersection of Cook Road and Davenport Drive, Cook Road extends in a easterly direction beginning at Davenport Drive and ends at the waters of Stamford Harbor/Long Island Sound. It is this extension of Cook Road that is at issue in this appeal. The roads in the Southfield Point subdivision are all private including Cook Road Extension. Most deeds in the subdivision contain the following language or its equivalent: "Together with a right of way for all lawful purposes in common with others over Cook Road and the other improved streets or roads laid out on Southfield Point, the right to use the dock at the easterly terminus of said Cook Road . . ." The deed that contains this language is in the ROR #16 from the Southfield Point Company to Earle Farnell dated July 27, 1925 and recorded in the Stamford Land Records on July 30, 1925. A chart containing similar deed restrictions for other Southfield Point subdivision property is in the record. ROR #18.
The Stamford Zoning Enforcement Officer rendered an opinion that Cook Road Extension was not subject to the Zoning Regulations of the City of Stamford. The ZBA, in Mr. Rapoport's Appeal from the decision of the Zoning Enforcement Officer, made both a factual and legal determination that Cook Road Extension was not subject to municipal zoning regulations.
There are generally two types of zoning regulations: permissive and prohibitive. Under the rule of permissive zoning regulations those uses that are specifically set forth in the regulations are permitted and all other uses are prohibited. Under the rule of prohibitive zoning regulations all uses are allowed except those that are expressly prohibited in the regulations. "As compared to prohibitive zoning ordinances, where all uses are allowed except those expressly prohibited, permissive zoning regulations are the preference of the majority of municipalities in Connecticut. See R. Fuller, 9, Connecticut Practice Series; Land Use Law and Practice (2d Ed. 1999) § 4, 10, p. 63." Graff v. Zoning Board of Appeals, 277 Conn. 645, 654 (2006). "No intended use not specifically listed or classified in this table shall be permitted in any district until the Zoning Board, after an application followed by a hearing, shall classify the same for a district or for districts in which such use shall be permitted." Stamford Zoning Regulations, Section 5B. The Stamford Zoning Regulations are permissive. Gordon v. Zoning Board, 145 Conn. 597, 604 (1958). The plaintiff therefore argues that since the Stamford regulations are permissive and since a road is not a permitted use, it is a prohibited use. Therefore the road is subject to zoning.
The first issue that must be discussed is whether there was substantial evidence before the board for the ZBA to make a factual determination that Cook Road Extension was used as a road. The court has reviewed the entire record and the many photographs contained in the record. The record demonstrates that there were no structures located on Cook Road Extension. Photographs in the record demonstrate nothing inconsistent with the use of Cook Road Extension as a road. ROR #11 Tab 8, ROR #21 Tab 11. These photographs show: pavement, curbing, grass, shrubbery, two planters each with a small decorative tree, two low fence sections with Privacy signs, a small safety fence on the sea wall and a flag pole. There is nothing on Cook Road Extension that is inconsistent with its use as a roadway for access of vehicular and pedestrian traffic coming from Davenport Drive to the waters of Stamford Harbor/Long Island Sound.
The record demonstrates that Cook Road Extension was only used for access to the dock. This was routinely accomplished as follows: one of the 87 members of the Association would drive from their house located in the Southfield Point subdivision area in their motor vehicle together with all their equipment for the use of the boat and would either bring the boat by trailer to the dock and launch it into the waters of Long Island Sound or having been moored at the dock at the end of Cook Road Extension, the docked boat would be loaded with the supplies from the motor vehicle. These supplies would include those necessary for the boat's repair, maintenance and operation including gasoline, lines, safety devices, oars, sails, and the like. In addition personal equipment would be loaded onto the boat including clothing, food and beverages. The boat loading would take place in one of three ways: preloaded and brought by trailer, docked but loaded by supplies brought by motor vehicle or docked and loaded by supplies carried by hand. The motor vehicle would immediately be returned to the property owner's driveway. It was not parked on Cook Road Extension. No vehicle parking or storage of any supplies on the landward area of Cook Road Extension or the dock area is permitted by the Association rules. The court finds that there was substantial evidence before the ZBA that Cook Road Extension was only used as a road for vehicular and pedestrian access to the dock and for no other purpose.
The legal issue that must be decided by this court is whether a road is a use that is subject to the Stamford Zoning Regulations. Wood v. Zoning Board of Appeals, 258 Conn. 691, 699 (2001). The court finds that a road is not a listed use in the R-20 zone. A road is not a permitted use in any of the zones in Stamford. The latest case discussing the effect of a permissive zoning regulation failing to list any and all possible uses was decided in 2006. "The mere fact that certain accessory uses are excluded does not imply that all possible accessory uses must be enumerated. Furthermore, we note that, not only are dogs not listed as a valid accessory use, but neither are any potential activities or uses, thus further suggesting that the provision is meant to be open to interpretation based on its general definition, rather than requiring a comprehensive list of acceptable accessory uses. To conclude otherwise, in the absence of such a list contained in the regulation, would render § 61 A.3 largely meaningless because the commission would have no way to give the accessory use definition practical meaning based upon the particular facts before it." Graff v. Zoning Board of Appeals, supra, 277 Conn. 664 (2006). "The regulations must be interpreted so as to reconcile their provisions and make them operative as far as possible . . . When more than one construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results." Id., 657.
Although the plaintiff's argument appears to be technically correct, pure common sense, as well as custom and practice has excluded from the effect of zoning regulations in permissive zoning schemes the following types of uses in roads; street lights, curbs, sidewalks, drainage systems, curb cuts, telephone poles, electrical utilities, underground utilities, fire hydrants, sanitary sewer systems, catch basins, traffic lights, stop signs, speed bumps, lines painted on the roadway, public benches, bus stops, road signs, direction markers, parking meters, manhole covers, crosswalk markers, mechanical crosswalk systems, underground water meters, underground utility turn-off valves for property fronting on the roadway, grass, shrubbery, and trees. The plaintiff cited no authority that any municipality or court in Connecticut has subjected the usual and customary road use to a zoning authority.
Twice our Appellate Courts have touched on this subject. "As the zoning board has no jurisdiction over the physical improvement of the city's streets or the state's parkways: " Gordon v. Zoning Board, supra, 145 Conn. 603. (Interpreting Stamford Zoning Regulations) Field Point Park v. Planning and Zoning Commission, 103 Conn.App. 437, 444 (2007). (The area beneath a private subdivision road cannot be used to calculate adjacent lot area.)
The court finds the ZBA properly applied the law of permissive zoning in holding that Cook Road Extension contains ordinarily and routine egress and access improvements, and is used exclusively as a road and as such is excluded from the Stamford Zoning Regulations.
II. Utilization Of The Dock That Is Directly Located on The Waters of Stamford Harbor/Long Island Sound
The plaintiff argues that there is no substantial evidence supporting the ZBA's November 10, 2005 decision that "the dock at 236 Davenport Drive was a neighborhood dock . . ." This court agrees. The zoning regulations have no use entitled: "neighborhood dock." Thus there can be no facts to support a zoning use that does not exist. It is clear on the other hand that the ZBA found the use was not a yacht club or marina nor in any other way subject to the zoning regulations. Thus the reference by the ZBA in reference to "neighborhood dock" is of no import. The question was whether the use of the dock was under the authority of Stamford Zoning and the ZBA answered this question in the negative.
The plaintiff claims that the dock is a yacht club/marina defined under the Stamford Zoning Regulations. The defendants claim that the dock is all located on and in the waters of Stamford Harbor/Long Island Sound, which is the property of the State of Connecticut and therefore by law is not subject to the Stamford Zoning Regulations.
Permitted uses within R-20 zone includes a yacht club not open to the general public and that use must be permitted by special exception. Zoning Regulation § 4-23. A yacht club is defined in the regulations as "A voluntary or corporate association whose objectives, pursuits and purposes are social or recreational, maintained on land owned or leased by it for the following activities: . . . yacht clubs, . . . Docks, anchorage, and mooring space." Zoning Regulations § 3-27. In addition yacht clubs must have parking. The plaintiff in his attorney's June 17, 2004 letter claimed that the dock and its improvements as well as the terminus of Cook Road were a yacht club and are required to be subject to the Stamford Zoning Regulations either as a nonconforming use, an extension of a nonconforming use or as a special exception. Zoning Regulations §§ 10, 19-1.5, 19-3. The two associations as owners as well as the ZBA and the Zoning Enforcement Officer disagree with each of these claims.
Plaintiff is claiming that this issue is subject to plenary review and this court should decide this issue as a matter of law. The plaintiff further claims the ZBA did not decide this issue. The defendants claim that this issue is subject to the court's deferential review. The court must defer to the factual determination made by the ZBA since the ZBA did decide the issue and that the standard to be applied by the court is: Was the ZBA's decision arbitrary, capricious, or an abuse of its discretion? This court finds that there is no prior decision of the Stamford ZBA that has discussed this issue. The court will conduct both a substantial evidence review and a plenary review.
As of the time of the appeal to the ZBA, the City of Stamford had not adopted a Harbor Management Plan as authorized by Gen. Stat. § 22a-113m. Stamford had not adopted by ordinance any Harbor Management Commission nor had it designated "any existing board, commission, council, committee or other agency as a harbor management commission." Gen. Stat. § 22a-113k(a).
During the August 24, 2005 hearing, the ZBA had documentary evidence of the four permits that had previously been issued for the dock by the State of Connecticut.
(1) The Davenport Drive Association received a certificate issued by Water Resources Commission, State of Connecticut certificate number 2917 on August 17, 1971. The State granted permission: "To install and maintain a ramp, a float 10 feet by 35 feet with an attached float 44 feet by 6 feet and mooring piles necessary to secure the floats in Stamford Harbor at the foot of Cook Road at Stamford in accordance with the plans submitted dated June 29, 1971." No zoning application was filed. No zoning permits or approvals were obtained.
(2) The Davenport Drive Association was issued a Consent Order by the Department of Environmental Protection, State of Connecticut file number LIS-93-065-V on August 9, 1994 on the basis that the Davenport Drive Association had not received a certificate or permit from the Commissioner of Environmental Protection pursuant to Gen. Stat. § 22a-361 for the erection or maintenance of a timber pier, deck, floats, aluminum ramp, rebuilt concrete bulkhead and a concrete boat ramp. Apparently the Davenport Drive Association had extended and increased the dock waterward of the high tidal line in the navigable waters of the Stamford Harbor without obtaining the necessary permits from the State. No zoning application was filed. No zoning permits or approvals were obtained.
(3) On December 12, 2002 the Davenport Drive Association, Inc., and the Southfield Point Association, Inc., received Permit number 199702749-KZ from the Department of Environmental Protection, State of Connecticut for the erection waterward of the high tide line of a concrete pad, a concrete boat ramp, a stone and concrete sea wall, rip rap, fixed pier, wooden piles, wooden ramps, and wooden floats. The letter from the Department of Environmental Protection stated: "If you have not already done so, you should contact your local Planning and Zoning Office to determine local permit requirements on your project if any." No zoning application was filed. No zoning permits or approvals were obtained.
(4) On August 29, 2003 the Southfield Point Association, Inc., was issued an Amended Certificate from the Department Environmental Protection, State of Connecticut COP-2003-117-KZ. This modified the December 12, 2002 permit. The Certificate of Permission described 12 wooden piers instead of 8, floats, finger docks, fixed piers, aluminum ramp in place of a wooden ramp, and two wooden floating docks. This approval was further subject to the 2002 permit. The permit stated in paragraph 21: "The issuance of this certificate does not relieve the Certificate Holder of his obligations to obtain any other approvals required by applicable federal, state and local law." The December 12, 2002 letter stated: "If you have not already done so you should contact your local Planning and Zoning office to determine local permit requirements for your project." No zoning application was filed. No zoning permits or approvals were obtained.
All four of these permits, certificates and orders were obtained by the defendants from the State of Connecticut pursuant to Title 22a of the General Statutes. The exclusive jurisdiction to regulate conduct waterward of the mean high water mark is within the State of Connecticut. "The Commissioner of Environmental Protection shall regulate dredging and the erection of structures and the placement of fill, and work incidental thereto, in the tidal, coastal or navigable waters of the state waterward of the high tide line." General Statutes § 22a-359(a). Neither party has disputed the facts that the dock at the end of Cook Road Extension is in Stamford Harbor, Stamford Harbor is navigable, Stamford Harbor is part of Long Island Sound, and Long Island Sound is navigable.
The court has examined in detail each of these permits and certificates together with the diagrams and plans attached. Each of the foregoing was in the return of record and considered by the ZBA in its November 10, 2005 decision.
Connecticut law states that private property ends at the mean high water mark. Simons v. French, 25 Conn. 346, 351 (1856). The phrases "high water mark," "mean high water mark" and "ordinary high water mark" are all the same measurement. Private ownership of land extends from the mean high water mark landward. In Long Island Sound from the mean high water mark waterward, the State of Connecticut is the owner. Michalezo v. Woodmont, 175 Conn. 535, 538 (1978). "It is settled law in this State that the public, whose representative is the State, is the owner of the soil between high and low-water mark upon navigable water where the tide ebbs and flows." State v. Knowles-Lombard Co., 122 Conn. 263, 265 (1936). (Long Island Sound of Madison, CT,) "In this state, the owners of land bounded on a harbor own only to the high-water mark . . ." Poneleit v. Dudas, 141 Conn. 413, 419 (1954). The issues in this case do not involve the reclamation of any fill that has been deposited next to the upland area. Id., 419. The Department of Environmental Protection of the State of Connecticut has published a Public Trust Fact Sheet which outlines this statement of the law. "In Connecticut, a line of state Supreme Court cases dating back to the earliest days of the republic confirm that private ownership ends at mean high water line, and that the state holds title to the lands waterward of mean high water subject to the private rights of littoral or riparian access." www.ct/gov/dep/cwp/view.asp.
"We begin by reasserting the accepted principle that a municipality's zoning powers are limited by the zoning statutes and the municipality's zoning regulations. As a creature of the state, . . . town, whether acting itself or through its planning commission, can exercise only such powers as are expressly granted to it, or such powers as are necessary to enable it to discharge the duties in carry into effect the objects and purposes of its creation." Upjohn Company v. Zoning Board of Appeals, 224 Conn. 96, 100 (1992); Baker v. Norwalk, 152 Conn. 312, 314 (1965). "In other words, in order to determine whether a regulation . . . was within the authority of the commission to enact, we do not search for a statutory prohibition against such an enactment; rather, we must search for statutory authority for the enactment." Avonside, Inc. v. Zoning and Planning Commission, 153 Conn. 232, 236 (1965). Stamford Zoning Regulations do not state that they have control over the waters of Long Island Sound in Stamford Harbor nor do any statutes give any of the 36 municipalities that front on Long Island Sound zoning authority over its waters. Poneleit v. Dudas, supra, 141 Conn. 417. The Connecticut Coastal Management Act (CAM) permits municipalities to "adopt a municipal coastal program for the area within the coastal boundary and landward of mean high water mark." Gen. Stat. § 22a-101(a). Stamford has adopted CAM but its jurisdiction is only landward of mean high water.
This court requested further briefing and oral argument in an order dated March 20, 2008 on the issue of preemption by reason of the State issuing the above mentioned four permits. The order stated: "Do any or all of the following four decisions and their statutory and regulatory foundations preempt the Zoning Regulations of the City of Stamford either expressly, impliedly, by means of a conflict or in any other manner." The certificates, permits and orders issued by the State of Connecticut on August 17, 1971, August 9, 1994, December 12, 2002 and August 29, 2003 were referenced in this court order. The parties agreed at oral argument on July 16, 2008 that preemption had no place in this case. Colchester v. Reduface Association, 34 Conn.Sup. 177 (1977); Shelton v. City of Shelton, 111 Conn. 433, 438 (1930). The fact that the DEP had issued permits that may have conflicted with local zoning ordinances was not involved in this case. Beacon Falls v. Posick, 212 Conn. 570, 577-78 (1989). Preemption is a legal theory in which both the municipality and the state have business within the area. The issue in this appeal is whether the State of Connecticut has exclusive jurisdiction in Stamford Harbor and that Stamford has no zoning jurisdiction in its harbor. The issue is exclusive jurisdiction not preemption.
The defendants' argument is that unless and until Stamford has adopted a Harbor Management Commission and a Harbor Management Plan, the City by any agency cannot regulate what is constructed within the waters of Stamford Harbor/Long Island Sound. DiPietro v. Zoning Board of Appeals, 93 Conn.App. 314, 323, cert. denied 277 Conn. 925 (2006). The defendant claims that the State of Connecticut has exclusive jurisdiction over the harbor to the mean high water line.
The plaintiff claims that common-law "littoral and riparian rights are subject to reasonable regulation in the interest of public welfare." Bloom v. Water Resources Commission, 157 Conn. 528, 536 (1969). Bloom involved a state permit, not the application of municipal powers. In addition, the quote is from Shorehaven Yacht Club v. Water Resources Management, 146 Conn. 619, 624 (1959), a case also not involving municipalities. Poneleit v. Dudas, supra, 141 Conn. 417 cited by the plaintiff, only related to municipal zoning authority over reclaimed land. As to land waterward of the mean high water line, Poneleit v. Dudas supports the defendant's position.
The dock was constructed in an easterly direction from the mean high water line. "Below mean high water" is a horizontal term. It means waterward of the mean high water mark. It is not a vertical term meaning under the surface of the water. "Above mean high water" is a horizontal term. It means landward at the mean highwater mark. It is not a vertical term meaning on or above the surface of the water. It is true that much of the dock is above the high water on a vertical plane. On a horizontal plane the dock is beyond the mean high water line in an eastward direction, i.e., waterward of the mean high water line. This court concludes that there is substantial evidence in the record to support the decision of the ZBA in denying the plaintiff's appeal on the basis that the dock, floats, fingers and piles, were all waterward of the mean high water line and thus were within the exclusive jurisdiction of the State of Connecticut and not within the zoning authority of the City of Stamford.
This court now will discuss the issue of whether the docks located waterward of the mean high water line in Stamford Harbor/Long Island Sound are not subject to the Stamford Zoning Regulations as a matter of law. This issue is subject to plenary review.
"The state has manifested its intent to delegate to municipalities located adjacent to Long Island Sound a part of the duty to regulate waterward of the mean high water mark." DiPietro v. Zoning Board of Appeals, supra, 93 Conn.App. 320. Gen. Stat. § 22a-113k(a) permits municipalities to establish a harbor management commission which has the statutory authority to designate that "area within the territorial limits of the municipality and below the mean high water that shall be within the jurisdiction of a commission." Id., 320. When a municipality approves a municipal harbor commission: "The statutory scheme, as described, demonstrates that the state did not intend to fully occupy the field because it expressly delegated the responsibility of regulation with the harbor management commissions it created. See Gen. Stat. § 22a-113k." DiPietro v. Zoning Board of Appeals, supra, 93 Conn.App. 323. In DiPietro it was noted that the City of Milford created a harbor management commission and therefore, the Milford zoning authorities could regulate landward of mean high water. "This court has recognized the authority of the city to delegate to the harbor management commission the duty of determining the number of permissible boat slips that may be erected." DiPietro v. Zoning Board of Appeals, supra, 93 Conn.App. 321; citing Oak Bridge/Rogers Avenue Realty, LLC v. Planning and Zoning Board, supra, 78 Conn.App. 242.
"We note that our conclusion is limited to activities occurring waterward of the high tide mark, as activities occurring within the coastal boundary and landward of the mean high water mark may be regulated by the municipality in accordance with coastal site plans pursuant to General Statutes §§ 22a-101(a) and 22a-105(b)." DiPietro v. Zoning Board of Appeals, supra, 93 Conn.App. 320, fn. 8. Since Stamford had not approved a harbor management commission pursuant to Conn. Gen. Stat. § 22a-113m, the State of Connecticut continues to have exclusive jurisdiction over the mean high water line waterward.
In DiPietro the Commissioner of Environmental Protection issued a permit which contained the following language: "The issuance of this permit does not relieve the permittee of his obligations to obtain any other approvals required by applicable federal, state and local law." The letter accompanying that permit further stated; "If you have not already done so, you should contact your local Planning and Zoning Office and the U.S. Army Corps of Engineers to determine local and federal permit requirements for your project, if any." DiPietro v. Zoning Board of Appeals, supra, 93 Conn.App. 324, fn. 11. It is noted this is similar language to that contained in the December 12, 2002 and August 29, 2003 permits obtained by the two Associations from the State of Connecticut. Those permits are in the return of record. This language is boiler plate and does not order the owners of their property to apply to the local planning and zoning office when the municipality has no Harbor Management Commission. This language is not legal authority that the local municipal zoning authority can act on these waterward applications. The DEP cannot confer zoning authority on the City of Stamford where none previously existed by the use of this phrase. DiPietro stands for the proposition that once there is a harbor management commission and approved harbor management plans in place, only then may a municipality subject activities waterward of the mean high water line to its authority. Neither of these two conditions apply to the City of Stamford.
The court finds as a matter of law that Stamford has no zoning authority over the dock located waterward of the main high water mark. The court finds that the ZBA's and the Zoning Enforcement Officer's conclusion to that effect are legally correct.
III. The Connection Between the Dock Located Within the Waters of Stamford Harbor/Long Island Sound and Area Landward to the Terminus of Cook Road Extension.This issue does not require this court to engage in plenary review since the court has concluded, by conducting a plenary review, that the City of Stamford has no authority under its zoning regulations to control structures that are built waterward of the mean high water mark in Stamford Harbor/Long Island Sound. The court has equally concluded as a matter of law that the road use of Cook Road Extension landward from the mean high water mark is not subject to the zoning authority of the City of Stamford. The only remaining issue before the court is whether there was substantial evidence before the ZBA that no dock structure was landward of the mean high water mark. The court is required to apply the deferential standard of review to this issue. Smith Brothers Woodland Management, LLC v. Zoning Board of Appeals, supra, 108 Conn. 628-29.
The court has carefully examined the multiple land photographs, aerial photographs, state permits and their supporting plans as well as architectural and construction plans all contained in the return of record. The ZBA had evidence of the exact measurement of the mean high water line at the terminus of Cook Road Extension. The ZBA had before it ROR #14, which is Sheet 4 of 7 and Sheet 5 of 7 of the Davenport Point Association's application before the Department of Environmental Protection dated July 11, 2003 and July 12, 2003. This court has read the entire return of record prior to the final oral argument of counsel on July 16, 2008. The court reviewed carefully ROR #14.
Permit number 199702749-K2 issued on December 12, 2002 contains a diagram labeled Sheet 3 of 6 dated September 30, 2002. ROR #11, Tab 14. It shows the location of mean high water in the upper middle of the diagram with a notation: "M.H.W. EL. +4.4.'" The court understands that notation to read that mean high water is at an elevation of 4.4 feet. Further the court understands that the arrow leading from the notation: "M.H.W. El. +4.4'" ends at a vertical line that is in the portion of the diagram that is part of Cook Road Extension. To the east of that vertical line representing the mean high water line is the following: existing concrete and stone sea wall, constructed next to the sea wall is a wide timber pier supported by twelve piles. Then immediately to the east of the wide timber pier is an aluminum ramp which ends at a dingy dock. From the dingy dock eastward is a wood float supported by eight piles, to the north and south of the wood float are six wood finger floats and at the end of the wood float is a larger wood float. The entirety of these described improvements is what this court has been referring to as the "dock." This diagram, Sheet 3 of 6, demonstrates that the entire dock is eastward at the vertical line denoted as "M.H.W. EL. +4.4.'" The court concludes that the entire dock is waterward of the mean high water mark. This diagram dated September 30, 2002 Sheet 3 of 6 contains the same mean high water mark as ROR #14.
The 2003 permit was a modification of December 12, 2002 permit. The basis of the plaintiff's appeal is the dock approved by the 2003 permit. The "M.H.W. EL. +4.4'" notation remains the same as in the 2002 permit Sheet 3 of 6. The vertical line denoting the location of the water high mark line on Cook Road Extension remains the same. The entire new dock, 12 wood piles, aluminum ramp and wooden floats are all waterward of the mean high water line and are waterward of the "Existing Concrete and Stone Sea Wall." The location of that sea wall is the same in both the 2002 and 2003 permits.
In addition there was testimony before the ZBA that the portion of the dock closest to the sea wall was cantilevered over the sea wall, was not attached to the land and that the only attachment to the land was with the piles that were constructed into the harbor water below the mean high water line.
If the plaintiff is correct, then any water use would be subject to municipal zoning without the adoption of a harbor management commission and plan. This court cannot conceive of any water use that would not have even a minor or transitory land connection at some point in its ordinary use. For example, fishing boats are a 100% water use yet they need to tie up to a dock to load and unload fish to the land and obtain fuel, manpower and supplies from the land. An oil derrick pumping oil must have some method of delivering the oil to land, usually through underwater pipes that eventually connect to the land. A lighthouse needs to be resupplied and usually has some access to underwater electricity or water from land. If the plaintiff's argument is taken to its logical conclusion all Long Island Sound water use is subject to the zoning authority of all 36 municipalities that have a shorefront on the Sound. The plaintiff has cited no authority for that proposition.
This court conducted a close examination of the documents in the record including the diagram of the docks. The record shows that there was no physical connection between the docks and Cook Road Extension landward of the mean high water line. The piles were settled within the waters of Stamford Harbor/Long Island Sound and they are not connected to the landward portion of the mean high water. The entire dock was constructed on these piles.
The court finds that there was substantial evidence before the ZBA, that the entire dock was constructed waterward of the mean high water line and not even the connection between the dock and Cook Road Extension was landward of the mean high water line. This court cannot conclude, applying the substantial evidence standard, that the ZBA was in error when it concluded that there was no portion of the dock landward of the mean high water mark. Although this conclusion is not clearly stated in the language of the ZBA decision, the record and testimony disclosed those facts and by inference the ZBA had to have reached that conclusion in rendering its decision of no zoning authority.
For the reasons stated, the court finds there was substantial evidence in the ZBA record that the three specific areas that were the subject of this appeal: Cook Road Extension, the dock on the water and the connection between the dock landward to the terminus of Cook Road Extension, were not subject to the Stamford Zoning Regulations. This court determines as a matter of law that these three areas were not subject to the Stamford Zoning Regulations. There is no need to consider the issues of non-conforming uses, extensions of non-conforming uses or special exemption requirements.
The plaintiff's appeal is hereby dismissed.