Opinion
No. CV-09-4010471-S
December 29, 2010
MEMORANDUM OF DECISION
I
STATEMENT OF APPEAL
The plaintiff, Seventeen Oaks, LLC, appeals from a May 7, 2009 decision of the Zoning Board of Appeals of the City of Middletown (the board). The board voted to uphold an appeal filed by Christopher Parslow (Parslow) and reverse and over-rule a determination of the Zoning and Wetlands Enforcement Officer's (the zoning officer) decision that the operation of Miss Patsy's Kitchen at the property of the plaintiff at 980 North Main Street was not in violation of the zoning code of the City. The plaintiff owns the property at issue, shown as Lot 3 on block 35-8 of the Middletown Assessor's Records, known, sometimes, however, as Lot 2, 1277 Randolph Road and Lot 3, 980 North Main Street. Parslow, a defendant in this appeal, owns the property shown as Lot 1 on block 35-8 of the Middletown Assessor's records, known as 11 Maple Shade Road, Middletown. The property of Parslow adjoins the subject property.
II
BACKGROUND
The appeal by the plaintiff arose from a successful appeal by Parslow to the board (ZBA 2008-14) pursuant to which the board reversed a November 7, 2008 determination of the zoning officer that there was no violation of the zoning code as to the present location of "Miss Patsy's Kitchen" at 980 North Main Street.
It is necessary, however, for the court to go back further discuss the history of this matter.
In the summer of 2004, the plaintiff installed a food service trailer and commenced to operate a food service business known as Miss Patsy's Kitchen on an area of the plaintiff's property then referred to as Lot 2, block 35-8 of the Middletown Assessor's Records and known as 1277 Randolph Road, Middletown. In 2004, the zoning officer issued a cease and desist order regarding the operation of the facility from such location. The plaintiff in the pending appeal (Seventeen Oaks) appealed that order to the board. On September 2, 2005, the board, after conducting a public hearing in which there was testimony as to the historical uses at the property referred to as Lot 2, 1277 Randolph Road and also to the area of the plaintiff's property known as Lot 3, 980 North Main Street, reversed and overturned the decision of the zoning officer. Parslow appealed the decision of the board to the Superior Court, captioned as Parslow v. Middletown Zoning Board of Appeals, et al, MMX CV 05-4002110-S. The court, Booth, J., in a Memorandum of Decision dated July 6, 2006, reversed the decision of the board. The decision of the trial court was affirmed by the Appellate Court. See, Parslow v. Zoning Board of Appeals, 110 Conn.App. 349 (2008). In its decision the Appellate Court noted that "[t]here is no question that there are two separate lots . . ." Id., 364.
The plaintiff in this appeal directs the court to a finding by the trial court in its July 6, 2006 memorandum which states "[t]he court finds no evidence of any preexisting nonconforming use [for the sale of food] on any portion of lot two. There is at least some evidence of the sale of food prior to zoning on lot three." In addition to taking note of the above finding, the court further takes note that the trial court in the July 6, 2006 memorandum, in footnote 2, indicated it was not necessary for the court "to determine whether the evidence of prior activity on lot three would be sufficient to support the finding of a legal nonconforming use on lot three" as the trial court (and the Appellate court) found that Seventeen Oaks was using the portion of the property known as Lot 2 for the food service.
The plaintiff thereafter relocated Miss Patsy's Kitchen to the portion of the plaintiff's lot referred to in the above discussed decisions as Lot 3, 980 North Main Street.
On October 24, 2008, Parslow wrote to the zoning officer and the Middletown City Attorney's Office regarding the relocation of Miss Patsy's Kitchen and requesting the City to take appropriate action to remedy an alleged on-going zoning violation by virtue of the operation of Miss Patsy's kitchen on another area of the plaintiff's lot. On November 7, 2008, the zoning officer wrote a letter indicating that there was no violation of the zoning code as to the then and still current location of Miss Patsy's Kitchen. Parslow filed the appeal to the board on November 20, 2008.
On February 5, 2009, the public hearing was opened before the board. The public hearing was continued to March 5, 2009 and then, due to the lack of a quorum, to April 2, 2009. The public hearing was closed on April 2, 2009. On May 7, 2009, the board met and voted to uphold the appeal filed by Parslow and overrule the decision of the zoning officer.
The instant appeal was filed by the plaintiff as a result thereof.
Additional facts will be set forth below as appropriate.
III
JURISDICTION
Appeals to the Superior Court regarding decisions of a zoning commission or board are governed by General Statutes § 8-8(b). The appeal by the plaintiff was timely. Notice of the board's decision was published on May 14, 2009. The plaintiff served the appeal within the fifteen-day period required by General Statutes § 8-8.
General Statutes § 8-8(b) provides as follows: Except as provided in subsections (c), (d) and (r) of this section and sections 7-147 and 7-147i, any person aggrieved by any decision of a board, including a decision to approve or deny a site plan pursuant to subsection (g) of section 8-3 or a special permit or special exception pursuant to section 8-3c, may take an appeal to the superior court for the judicial district in which the municipality is located, notwithstanding any right to appeal to a municipal zoning board of appeals under section 8-6. The 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. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court.
The plaintiff has demonstrated aggrievement. "It is well settled that [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 . . . Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." (Citations omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-39 (2003).
The plaintiff introduced Exhibit 1 and 2 as evidence that the plaintiff owns the property at issue. An owner of the property which is the subject of the application is always an aggrieved party. Bassert v. Norwalk, 157 Conn. 275, 285 (1968). Accordingly, the court finds the plaintiff has proven aggrievement.
IV
STANDARD FOR REVIEW
The standard to be applied by a Superior Court in reviewing the consideration of the action of a zoning board is whether the board's action was arbitrary, illegal or an abuse of discretion. Bloom v. Zoning Board of Appeals, 233 Conn. 198 (1995). The plaintiff bears the burden of demonstrating that the board acted improperly. Francini v. Zoning Board of Appeals, 228 Conn. 785 (1994). "[T]he trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . ." Spero v. Zoning Board of Appeals, 217 Conn. 435, 440 (1991). The "[c]ourts are not to substitute their judgment for that of the board . . . and the decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing . . ." (Citations omitted.) Norwood v. Zoning Board of Appeals, 62 Conn.App. 528, 532 (2001). The function of the court is to determine if, on the basis of the record, whether substantial evidence has been presented to the board to support the board's findings. Concetta v. Zoning Board of Appeals, 42 Conn.App. 133, 138 (1996). "The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached." Primerica v. Planning and Zoning Commission, 211 Conn. 85, 96 (1989). "In light of the existence of a statutory right of appeal from the decision of the local zoning authorities, however, a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right to appeal would be empty." (Internal quotation marks omitted.) Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn.App. 53, 57 (1988).
V
DISCUSSION
At issue in this appeal is whether the board properly upheld the appeal by Parslow and reversed the factual determination of the zoning officer that the location and operation of a food vending entity known as "Miss Patsy's Kitchen" at 980 South Main Street did not constitute a violation of the zoning code. (ROR, Item S-3.)
The plaintiff claims the board erred in upholding the appeal by Parslow and in making its decision the board acted improperly by: (i) prior to voting on the appeal, reading letters written by members of the board who were not present at the May 5, 2009 board meeting; (ii) illegally allowing a board member to vote on the matter; and (iii) reversing a prior decision of the board.
The defendants claim the plaintiff in installing the food vending trailer on the plaintiff's property caused a change in the use of the subject property which is nonconforming on the residentially zoned parcel and not permissible under the zoning regulations of the City. The defendant has asked the court to determine that (A) the plaintiff's use of the property for a hot dog stand is an illegal, nonconforming use; and (B) the zoning board acted properly in reaching its decision.
A. Limitation on the court's authority to determine the appropriateness of the plaintiff's use of the property for a hot dog stand.
"General Statutes § 8-6 entrusts the commission with the function of interpreting and applying its zoning regulations . . . The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion to the facts . . . The plaintiffs have the burden of showing that the commission acted improperly . . . The trial court can sustain the plaintiff's appeal only upon a determination that the decision of the commission was unreasonable, arbitrary or illegal . . . It must not substitute its judgment for that of the zoning commission and must not disturb decisions of local commissions as long as honest judgment has been reasonably and fairly exercised." (Citations omitted; emphasis added; internal quotation marks omitted.) Dimopoulos v. Planning Zoning Commission, 31 Conn.App. 380, 383, cert. denied, 266 Conn. 917 (1993).
In the present case, the board has determined that the hot dog stand owned and operated by the plaintiff is an illegal, nonconforming use. On legal questions, the court's review of this decision is plenary and is not bound by the opinion of the agency. Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 580 (1999). "The credibility of the witnesses and the determination of issues of fact [however] are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached." (Internal quotation marks omitted.) Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 697 (1993). As is also discussed above, Connecticut jurisprudence has made clear that the trial court's scope of review over a zoning board of appeals is limited to a determination of whether the board acted in an unreasonable or illegal manner in coming to its decision. See Dimopoulos v. Planning Zoning Commission, supra, 31 Conn.App. 380 and Bloom v. Zoning Board of Appeals, 233 Conn. 198 (1995). The court may not, therefore, come to its own independent conclusion on the matter of whether the plaintiff is engaging in an illegal, nonconforming use and therefore the court considers the plaintiff's claims on appeal.
B(i) Review of letters written by absent board members during the meeting of May 5, 2009
The plaintiff claims the board acted improperly in reading letters from absent commissioners after the public hearings on the matter had been closed. The defendants argue that no evidence was submitted for consideration by the board after the close of the public hearing, as the letters were merely expressions of opinion by absent members, and were not submitted by any party. The defendant also notes that even where a zoning board of appeals inadequately follows appropriate procedures, the court may still uphold its decision if the outcome reached is otherwise supported by the record.
"Our law clearly prohibits the use of information by a municipal agency that has been supplied to it by a party to a contested hearing on an ex parte basis." (Emphasis in original.) Norooz v. Inland Wetlands Agency, 26 Conn.App. 564, 569 (1992); see also Blaker v. Planning Zoning Commission, 212 Conn. 471, 476-81 (1989). "While proceedings before zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence . . . they cannot be so conducted as to violate the fundamental rules of natural justice." (Citations omitted.) Pizzola v. Planning Zoning Commission, 167 Conn. 202, 207 (1974). "Due process of law requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence . . . To that end, our law holds that commissions cannot consider additional evidence submitted by a party without granting the opponents and the public the opportunity to examine that evidence and to offer evidence in explanation or rebuttal." (Citation omitted; internal quotation marks omitted.) Palmisano v. Conservation Commission, 27 Conn.App. 543, 546-47 (1992).
In the present case, however, the letters read by certain members of the commission after the close of the public hearing were not submitted by a party. Further, the plaintiff did not prove that such letters constitute evidence. While the content of the letters is not disclosed in the record, there is no indication that they contain anything other than an expression of the authors' opinions. In fact, the board's chairwoman stated, "[Mrs. Russo] did write something that gives her opinion and she said that she would have liked this read . . ." (Emphasis added.) (Supplemental ROR, unnumbered 4th page.) A commission may rely on its personal knowledge when coming to a decision. Feinson v. Conservation Commission, 180 Conn. 421, 427 (1980). "[T]he commission is not required to provide an opportunity for rebuttal when it relies on the knowledge and experience of one of its members on nontechnical issues." Brookfield Plaza Limited Partnership v. Zoning Commission, 21 Conn.App. 489, 494 (1990) (holding that it was not improper for the chair of the commission, who was present at the vote, to submit a report summarizing the proceedings at the public hearing, explaining his personal observations, and proposing a recommended outcome). The court finds, based on the record, that the letters contain opinions of board members, albeit absent board members, and do not constitute evidence.
Further, even assuming arguendo, that the letters did constitute an improper ex parte communication, such an occurrence does not automatically render the board's decision void. See Blaker v. Planning Zoning Commission, supra, 212 Conn. 481 n. 5 ("We reject [the] view that the occurrence of the ex parte communication necessarily rendered the commission's decision void"). If "it has been demonstrated that an improper ex parte communication has occurred, a presumption of prejudice arises . . . [T]his presumption is rebuttable, [however] the burden of showing that a prohibited ex parte communication between a commission and an applicant has not prejudiced a party must be allocated to those seeking to uphold the validity of the commission's decision." Id., 480. Receiving improper evidence will constitute harmless error as long as the commission's action "is adequately supported by assigned reasons not based on the allegedly tainted evidence." First Hartford Realty Corp. v. Planning Zoning Commission, 165 Conn. 533, 545 (1973). In this instance, the action of the board in voting to reverse the decision of the zoning officer is supported by the record as the board found that the evidence at the public hearing did not support a finding of the existence of an established and committed presence of a hot dog stand having been in operation on the property. The board further, and alternatively, found ample evidence to support the conclusion that if such a non-conforming use did exist, it had been abandoned; and also that the current use is an improper expansion of such prior use due to the changes to the physical structure by the hard-wiring of the site, the placement of the facility on a bituminous pad with concrete steps and, despite the presence of wheels thereon, the facility does not move. Based on such findings, the board voted to uphold the appeal. Therefore, the plaintiff's claim that the letters constituted an improper ex parte communication and therefore improper evidence heard by the board is harmless error as the decisions made was more than adequately supported by the untainted record evidence.
B(ii) Vote by a board member appointed after the opening of the public hearing.
The plaintiff next argues that it was improper for commissioner Beauchemin to vote on May 7, 2009 because he was not sworn in as a member of the board until March 10, 2009, and, as a result, was not present at two of the public hearings on the matter. The defendants assert that the only relevant issue is whether the commissioner was sufficiently familiar with the application. The defendants note that the record indicates that commissioner Beauchemin familiarized himself with the evidence and testimony given at the public hearings from which he was absent and argue that, therefore, his vote on the matter was proper.
The Supreme Court has long held that "a member of a zoning commission, although not present at the public hearing, may lawfully vote [on the application before it] if that member acquaints himself sufficiently with the issues raised and the evidence and arguments presented at the public hearing in order to exercise an informed judgment." Loh v. Town Plan Zoning Commission, 161 Conn. 32, 42 (1971); see also Grillo v. Zoning Board of Appeals, supra, 4 Conn.App. 205 (holding that a commissioner who does not attend a public hearing may vote on the application where he has sufficiently acquainted himself with the record). "The plaintiff has the burden of proof of showing that [the commissioner] did not in fact sufficiently acquaint himself with the evidence presented and the issues raised by its applications." Dana-Robin Corp. v. Common Council, 166 Conn. 207, 217 (1974). In the present case, it is undisputed that commissioner Beauchemin did not attend the public hearings on February 5, 2009, and March 5, 2009. He was appointed as a board member on March 2, 2009, and sworn in on March 10, 2009. He was present at the April 2, 2009 meeting, during which remarks from the public were heard and the public hearing on the application was closed. Also, commissioner Beauchemin made himself "fully familiar with the record of the application"; (Supplemental ROR, Item M-4); prior to casting his vote.
The plaintiff cites no authority to support the proposition that commissioner Beauchemin was not eligible to vote because he was not a member of the board at the time two of the three public hearings were held. Notably, just as in other civil matters, when the court hears a zoning appeal it is "not required to review issues that have been improperly presented to [it] through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly." (Internal quotation marks omitted.) Avalonbay Communities, Inc. v. Planning Zoning Commission, 103 Conn.App. 842, 851 n. 7, (2007). Moreover, at least one Superior Court decision suggests that when a commissioner was not a sworn member during the time when public hearings took place, he is eligible to vote on the issue so long as he sufficiently acquaints himself with the record. Executive Auto Group v. Inland Wetlands Watercourse Commission, Superior Court, judicial district of New Haven, Docket No. CV 09 4036906 (February 5, 2010, Corradino, J.). This view is also in line with that expressed by Robert Fuller, who notes that "cases dealing with claims that agency members are not sufficiently informed to vote on the application arise primarily where . . . a new member or alternate enters the proceedings near the end and votes on the application . . . The general test is that in order for an agency member to participate in decisions, the member must only be sufficiently acquainted with the issues raised and the evidence and arguments presented at the public hearing . . ." R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (Third Edition), § 47:1, pp. 29-30 (2007). As Commissioner Beauchemin was a member of the board on the day of the vote, and as he fully familiarized himself with the record, the board did not act improperly in allowing him to vote on the appeal.
B(iii) Claim of abuse of discretion by the board in reversing an earlier vote by the board
The plaintiff argues that the board abused its discretion by reversing its prior decision — namely, that the hot dog stand did not violate the zoning code — because there had been no change in the circumstances that had led the board to its original determination. The defendants argue that the plaintiff's position ignores the fact that the board's decision in the prior appeal was overturned by the Superior Court, and that the Superior Court's holding was affirmed by the Appellate Court.
Generally, "an administrative agency cannot reverse a prior decision unless there has been a change of conditions or other circumstances have intervened which materially affect the merits of the matter decided." Malmstrom v. Zoning Board of Appeals, 152 Conn. 385, 390-91 (1965). "This principle applies, however, only when the subsequent application seeks substantially the same relief as that sought in the former." (Internal quotation marks omitted.) Grillo v. Zoning Board of Appeals, 206 Conn. 362, 367 (1988). "The plaintiff bears the burden of proof to show that there was no change of conditions or circumstances since the prior application." (Internal quotation marks omitted.) Bradley v. Inland Wetlands Agency, 28 Conn.App. 48, 51 (1992). "[I]t is for the administrative agency, in the first instance, to decide whether the requested relief in both applications is substantially the same. Its determination will be disturbed only if its discretion was abused." Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 279, 129 (1957). The court's inquiry in this regard is limited to a determination of whether the board's findings of material change or lack thereof is supported by the record. See Malstrom v. Zoning Board of Appeals, supra, 152 Conn. 391.
Here, the commission did not make a finding as to whether the successive applications sought substantially the same relief. The application, on its face, however, leaves no doubt that it does not.
As an initial matter, the court finds, based on the holding of the Appellate Court, in confirming the decision of the trial court, in Parslow v. Zoning Board of Appeals, supra, 110 Conn.App. 364, that at the time of the 2005 appeal the plaintiff was deemed to own two lots referred to as 1277 Randolph Road and 980 North Main Street. The lots, despite having been conveyed to the plaintiff as one lot, were shown as separate lots by the Assessor's cards (see, ROR E-8 and E-9) and treated as such by the board and the court. Subsequent to that decision, the assessor combined the properties into one card and denoted the entirety of the parcel as 980 North Main Street. (See, ROR E-15.) There is no longer an assessor's card for 1277 Randolph Road (See, ROR E-16). Accordingly, when the plaintiff moved the operation of the facility known as Miss Patsy's Kitchen from 1277 Randolph Road to 980 North Main Street, it merely relocated from one side of the lot to another.
The court notes further the deed introduced as Exhibit 1, which was recorded in the Middletown Land Records in Vol. 1419, page 555 on December 30, 2003 is a conveyance of one lot from Mylchreest Realty, LLC to the plaintiff. The testimony of the plaintiff at the hearing on the appeal before the court on October 25, 2010 and Exhibit 2 further confirm the existence of only one parcel, that is, Lot 3 also known as 980 North Main Street.
Notwithstanding the foregoing factual finding, for the plaintiff to succeed in his argument that the hot dog stand is not currently in violation despite the outcome of the previous appeal, the court must assume that Lot 3 (i.e., the lot presently at issue) continues to exist as a separate lot distinct from Lot 2. Because a determination as to the legality of a nonconforming use is dependant upon the past uses of the specific parcel, the plaintiff may not successfully claim that present application, on its face, is seeking substantially the same relief as that sought in the former.
Moreover, if the current application is deemed to be substantially similar to the prior application, then it is clear that circumstances have changed that would justify the board in reversing its previous decision. "[T]he test to be applied is whether new or additional facts appear showing a change in conditions or other considerations materially affecting the merits, [intervened] since the former decision . . ." (Emphasis added; internal quotation marks omitted.) Rommell v. Walsh, 127 Conn. 272, 277, 16 A.2d 483 (1940). Here, the board's earlier decision that the hot dog stand constituted a legal, nonconforming use was overturned by the Superior Court. See Parslow v. Zoning Board of Appeals, Superior Court, judicial district of Middlesex, Docket No. CV 05 4002110 (July 6, 2006, Booth, J.). The Superior Court's decision was then affirmed by the Appellate Court. See Parslow v. Zoning Board of Appeals, 110 Conn.App. 349, 954 A.2d 275 (2008). Given that the board was found to have erred by the court, considerations materially affecting the merits of its previous decision had occurred. The board was, therefore, justified in reversing itself in this instance.
VI
CONCLUSION
For the foregoing reasons, the court finds the board acted properly and, accordingly, the plaintiff's appeal is dismissed.
SO ORDERED.