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SCHAD v. KILLINGLY ZBA

Connecticut Superior Court Judicial District of Windham at Willimantic
Mar 25, 2008
2008 Ct. Sup. 4954 (Conn. Super. Ct. 2008)

Opinion

No. CV 06 4004968

March 25, 2008


MEMORANDUM OF DECISION


I. STATEMENT OF APPEAL

The plaintiff, Richard J. Schad, appeals from the decision of the defendant, the Killingly zoning board of appeals, denying the plaintiff's appeal of the Killingly zoning enforcement officer's denial of the plaintiff's applications for zoning permits to construct single-family residences on two properties in Killingly.

II. FACTS

The plaintiff is the owner of two properties in Killingly, known as 90 Stone Road and 80 Stone Road, respectively. On or about July 10, 2006, the plaintiff filed applications for zoning permits for the purpose of developing single-family residences on the properties. On July 18, 2006, the Killingly zoning enforcement officer denied the permit applications, on the ground that the parcels did not contain frontage on a town road as required by the town's zoning regulations. The plaintiff appealed to the defendant zoning board of appeals on July 25, 2006.

Killingly Zoning Regulations § 620.3 provides in relevant part: "Every building hereafter erected or moved shall be on a lot with frontage on an accepted public street, a proposed public street, or an approved private street or shall have an unobstructed access strip in fee simple (an unobstructed easement of access or an unobstructed right-of-way are acceptable substitutes) not less than fifty (50) feet in width to an accepted public street, a proposed public street, or an approved private street, provided no more than two (2) principal buildings shall use such access strip."

At the public hearing on his appeal, the plaintiff presented evidence that the two properties had frontage on Old Howe Turnpike, which he claimed was originally constructed in 1803. The defendant board also heard testimony that Old Howe Turnpike does not currently appear on any state aid road lists, and, further, that the town does not recognize it as a town road. Following conclusion of the public hearing on September 14, 2006, the defendant unanimously upheld the zoning enforcement officer's decision to deny the plaintiff's request. The present appeal followed.

III. JURISDICTION

General Statutes § 8-8 governs appeals from decisions of municipal zoning commissions to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).

A. Aggrievement

"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007). Aggrievement presents a question of fact for the trial court to determine. Id., 400. Ownership of property which is the subject of a zoning agency decision may constitute the basis of aggrievement. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991).

The plaintiff has pled ownership of the two subject parcels. (Appeal, ¶¶ 1, 6.) At trial, the plaintiff presented evidence and testimony of his ownership. Accordingly, the court finds that the plaintiff is aggrieved for the purposes of this appeal.

B. Timeliness and Service of Process

General Statutes § 8-8(b) provides that an appeal "shall be commenced by service of process in accordance with sections (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." Section 8-8(f)(2) requires that "[f]or any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57." In an action against a town board, process must be served "notwithstanding any provision of law, upon the clerk of the town . . ." General Statutes § 52-57(b)(5).

The defendant published notice of its decision in the Norwich Bulletin on September 19, 2006. The plaintiff commenced its appeal by service of process upon the Killingly town clerk on September 25, 2006. (Marshal's Return.) The court finds that the plaintiff timely and properly commenced this appeal.

IV. SCOPE OF REVIEW

A zoning board of appeals "is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal . . . The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision . . . In an appeal from the decision of a zoning board, [the court] therefore review[s] the record to determine whether there is factual support for the board's decision, not for the contentions of the applicant." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).

"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 [a zoning] commission 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 [commission] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached." (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004).

IV. DISCUSSION

In support of his appeal, the plaintiff argues that the defendant's decision was incorrect because his property does contain frontage on a public road, namely, Old Howe Turnpike. The plaintiff contends that the sole method for a town to discontinue a turnpike is found in our statutes, and because this method was not followed here, the Old Howe Turnpike is still in existence for the purposes of the Killingly zoning regulations. The defendant argues that a public highway may be either discontinued according to the statutory process, or may be abandoned under the common law. The defendant maintains that the evidence presented to the board demonstrated that the Old Howe Turnpike, if it ever existed, no longer existed at the time of the plaintiff's application because it had been abandoned by the public though its lack of use.

General Statutes §§ 13a-51; 13a-49.

General Statutes § 13a-51 provides: "All discontinued turnpikes and parts of turnpikes shall remain public highways in the town or towns where situated; but any town may discontinue the whole or any portion of such road within such town in the manner provided in section 13a-49." The statutory process for discontinuing a public highway is as follows: "The selectmen of any town may, subject to approval by a majority vote at any regular or special town meeting, by a writing signed by them, discontinue any highway or private way, or land dedicated as such, in its entirety, or may discontinue any portion thereof or any property right of the town or public therein, except when laid out by a court or the General Assembly, and except where such highway is within a city, or within a borough having control of highways within its limits." General Statutes § 13a-49.

The plaintiff has produced some evidence that Old Howe Turnpike did exist. For the sake of the subsequent analysis, the court assumes that the plaintiff has demonstrated sufficiently that the Old Howe Turnpike did in fact exist at some point circa 1803. Further, it is clear that the turnpike was never discontinued according to the procedure found in §§ 13a-51 and 13a-49. The question remaining is whether the procedure outlined in these sections is the exclusive means by which a turnpike may be extinguished or whether a town may abandon a turnpike, as it may abandon any public highway, under common law.

In December 2005, the town of Killingly considered an ordinance to discontinue Old Howe Turnpike. The vote of the town council fell one vote short of the necessary six votes to pass the ordinance. The council subsequently passed a resolution, by vote of eight to one, stating that no action was necessary to discontinue the road, as the public's interest in the road had been previously abandoned.

"A highway may be extinguished [1] by direct action through governmental agencies, in which case it is said to be discontinued; or [2] by nonuser by the public for a long period of time with the intention to abandon, in which case it is said to be abandoned." (Internal quotation marks omitted.) Mackie v. Hull, 69 Conn.App. 538, 547, 795 A.2d 1280 (2002), quoting Greist v. Amrhyn, 80 Conn. 280, 285, 68 A. 521 (1907). "Although the length of time during which nonuse on the part of the public must continue before the highway is presumed to be abandoned has not been determined, it must be substantial." Stohlts v. Gilkinson, 87 Conn.App. 634, 644, 867 A.2d 860 (2005). "Abandonment is a question of fact . . . It implies a voluntary and intentional renunciation, but the intent may be inferred as a fact from the surrounding circumstances." (Citation omitted.) Pizzuto v. Newington, 174 Conn. 282, 285, 386 A.2d 238 (1974). Further, "[t]he burden of proof is on him who seeks to establish the abandonment of a highway, and the continuance of the street will be presumed until satisfactory evidence is produced to rebut it." Appeal of St. John's Church, 83 Conn. 101, 105, 75 A. 88 (1910).

Historically, turnpikes were roads built by private corporations at private expense under public authority. The turnpike corporation was authorized to collect tolls for the use of the road in order to reimburse the cost of construction and maintenance. See 39 Am.Jur.2d, Highways, Streets, and Bridges § 7 (1999). The impetus for the establishment of turnpikes in Connecticut was the federal Congress's establishment of federal post offices in 1784, which in turn required the creation and maintenance of mail routes. Seidel v. Woodbury, 81 Conn. 65, 72, 70 A. 58 (1908). Legislation authorizing private turnpike companies to build and maintain roads was passed in order to alleviate burdens on towns which had previously been responsible for local roads. Id. Importantly, however, the private nature of the construction and maintenance of turnpikes did not alter their status as public highways. "[A] turnpike road . . . is a public highway established by public authority, and to be regarded as a public easement . . ." State v. Suffield Thompsonville Bridge Co., 81 Conn. 56, 62, 70 A. 55 (1908).

Section 13a-51 is the only section of the General Statutes that refers to turnpikes. Apparently, all turnpike legislation (e.g., statutes providing for legislative authority to confer turnpike franchises, state commissioners to oversee turnpikes, etc.) was removed from the statutes in the Revision of 1902. Seidel v. Woodbury, supra, 81 Conn. 73-74. Further, our appellate courts have not decided a case interpreting § 13a-51.

Mindful of the lack of appellate authority in this area, the court reads § 13a-51 as follows. When a turnpike company ceased to operate a particular turnpike, an immediate question would arise for the town and its selectmen as to whether the road would continue to be available for public use. The first clause of § 13a-51 directly addresses this situation: "All discontinued turnpikes and parts of turnpikes shall remain public highways in the town or towns where situated." Following discontinuance of this sort, i.e., where a turnpike company ceased to operate, the town would have the option of discontinuing according to the statutes: "[B]ut any town may discontinue the whole or any portion of such road within such town in the manner provided in section 13a-49."

The plaintiff reads § 13a-51 as providing the exclusive means by which a turnpike may be discontinued. Accordingly, in the present case, though Old Howe Turnpike ceased to be a turnpike in the sense that tolls were charged for its use, it eventually became a public highway. Because the town never discontinued the turnpike according to § 13a-49, the plaintiff argues, it remains a public highway. The court disagrees with this limited reading of § 13a-51. The statute does not proscribe extinguishment of a turnpike through common-law abandonment in addition to formal discontinuance by statute. Because abandonment of a turnpike is not directly proscribed by the statute, and in the absence of appellate authority to such effect, the court finds that a turnpike may be abandoned through nonuse coupled with intent of the public to abandon.

While not the basis for its decision, the court notes that treating Old Howe Turnpike as frontage would not accomplish the purpose of access and safety for which Killingly Zoning Regulations § 620.3 was enacted.

On the basis of the evidence before the defendant and that presented at trial, the court finds that the Old Howe Turnpike has been abandoned. The road does not appear on any state or town maps. The plaintiff does not seriously deny abandonment, rather, he argues that turnpikes are not subject to common-law abandonment. As explained above, the court does not agree with the plaintiff's contention.

V. CONCLUSION

For the foregoing reasons, the plaintiff's appeal is hereby dismissed.


Summaries of

SCHAD v. KILLINGLY ZBA

Connecticut Superior Court Judicial District of Windham at Willimantic
Mar 25, 2008
2008 Ct. Sup. 4954 (Conn. Super. Ct. 2008)
Case details for

SCHAD v. KILLINGLY ZBA

Case Details

Full title:RICHARD J. SCHAD v. KILLINGLY ZONING BOARD OF APPEALS

Court:Connecticut Superior Court Judicial District of Windham at Willimantic

Date published: Mar 25, 2008

Citations

2008 Ct. Sup. 4954 (Conn. Super. Ct. 2008)
45 CLR 253