Opinion
No. CV00-0158097S
April 14, 2004
MEMORANDUM OF DECISION
This appeal from the decision of the Watertown Zoning Board of Appeals (hereinafter "Board") denying property owners, Gary and Amy Swingle (hereinafter "Swingles") relief from a cease and desist order of the Zoning Enforcement Officer is consolidated with Watertown's application for an injunction, restraining the property owners from operating a riding academy on their Watertown property and from using their Watertown property to access the commercial activities carried out on their Bethlehem property.
Facts
The Swingles purchased contiguous properties located in Watertown and Bethlehem in 1985. Bethlehem has no zoning. The properties in Watertown are located in a residential zone. The Swingles live in a single-family dwelling on one of the Watertown properties. They use the Bethlehem property for their business and commercial activities which include boarding horses and selling inventories and closeouts from a commercial warehouse they built on the Bethlehem property. The stables are located on the Bethlehem property, and a riding rink is located on adjacent Watertown property. Additionally, the Swingles want to locate a telecommunications facility on the Bethlehem property. In June 1999, Watertown's Zoning Enforcement Officer, Mary Greene (Barton), issued a cease and desist order to the Swingles ordering them to stop using the "driveway" over their private property in Watertown to access their commercial activities in Bethlehem and to stop operation of the riding rink. Specifically, the Swingles were ordered to:
1. Cease the use of private property (driveway) in the Town of Watertown in an R-90 Residential Zoning District to access your commercial activities; i.e. riding academy, salvage warehouse business.
2. Cease the use of private property (driveway) in the Town of Watertown in an R-90 Residential Zoning District to access the proposed telecommunications facility in Bethlehem.
3. Cease the operation of a riding rink in the Town of Watertown as an accessory use to the riding academy and boarding stables located in the Town of Bethlehem and Watertown.
The Swingles appealed to the Watertown Zoning Board of Appeals, arguing that the so-called "driveway" is a public road bordering their property and, as such, is not subject to zoning regulations. Additionally, they claim that the riding rink is an accessory use to the boarding stables. The public hearing was held on October 27, 1999, November 23, 1999, and December 15, 1999. On February 16, 2000, the Cease and Desist Order was upheld based on what was presented at the public hearing by a vote of 3 to 2.
The Swingles challenge the decision of the Zoning Board of Appeals on three grounds. First, they claim that one of the zoning regulations (7.4) pursuant to which the zoning enforcement officer issued the cease and desist order was inapplicable to them. Second, they claim that the passway access they use to reach their Bethlehem property is a public road and not subject to Watertown's zoning regulations. Third, they claim that the "riding rink" is not an accessory use to the riding academy and boarding stables in Bethlehem, and no special permit is required.
Aggrievement
Section 8-8(b) of the Connecticut General Statutes provides that any person aggrieved by a decision of a municipal land use board may appeal to superior court. Section 8-8(a)(1) provides that an ". . . `aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." The Swingles own real property that abuts the subject property. The plaintiffs' property abuts the parcel which they claim is a highway. Additionally, they have a personal and legal interest in continuing to use their Bethlehem property for commercial purposes, and that interest has been specially and injuriously affected by the decision of the ZBA upholding the Cease and Desist. Therefore, they are aggrieved by the actions of the Zoning Board of Appeals.
Standard of Review
"The procedure for appealing an adverse decision from an official charged with enforcing the zoning regulations is well established. General Statutes § 8-6 confers on the zoning board of appeals of each town, city or borough the power and duty (1) [t]o hear and decide appeals where it is alleged that 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. Loulis v. Parrott, 42 Conn. App. 272, 277 (1996).
"In reviewing the decision of one charged with the enforcement of the zoning regulations, the zoning board of appeals is an administrative body acting in a quasi-judicial capacity." (Internal citations omitted.) Loulis v. Parrott, supra at 278.
"In reviewing the actions of a zoning board of appeals, [it is noted] that the board is endowed with liberal discretion and that its actions are subject to review by the courts only to determine whether they are 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." (Citation omitted; internal quotation marks omitted.) Wing v. Zoning Board of Appeals, 61 Conn. App. 639, 643, 767 A.2d 131, cert. denied, 256 Conn. 908, 772 A.2d 602 (2001).
"Trial courts defer to zoning boards and should not disturb their decisions so long as `honest judgment has been reasonably and fairly exercised after a full hearing.' . . . The trial court should reverse the zoning Board's actions only if they are unreasonable, arbitrary or illegal . . . If the zoning board has not given the reasons for its decision, the trial court must search the entire record to find a basis for its decision . . . The burden of proof is on the plaintiffs to demonstrate that the zoning board acted improperly." (Citations omitted). Laurel Beach Assn. v. Zoning Board of Appeals, 66 Conn. App. 640, 645 (2001).
Discussion Section 7.4
The first issue raised by the plaintiffs concerns § 7.4 of the Watertown zoning regulations. Prior to the amendment and at the time the Cease and Desist Order was issued, the regulation prohibited access to any use in business or industrial zone on or across land in a residential zone. The Board argues first that this claim cannot be considered on appeal by the court because it was not raised before the Board. Moreover, the Board argues that, if it is considered, it is clear that the Zoning Commission's action in amending § 7.4 was to clarify its original intent which was to prevent commercial or business traffic through residential property. On this issue, the court agrees with the Board's position. "When there is ambiguity and a zoning ordinance, its meaning and scope may be found by examining the language in the light of the other provisions in the ordinance, by ascertaining the object sought to be accomplished, and by considering all other relevant circumstances." (Internal citations omitted). DiMarco v. Zoning Board of Appeals of the City of Norwalk, 1996 WL 661823 (Conn.Super., Nigro, J.). "[T]he zoning regulations, as well as 8-6 of the General Statutes, entrust to the board the function of deciding, within prescribed limits and consistent with the exercise of legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply." DiMarco v. Zoning Board, supra. The unusual situation existing in Bethlehem with respect to its lack of zoning regulations does not serve to negate the intent of the Watertown Zoning Commission when it enacted the § 7.4. For this reason, and because this issue was not raised before the Board, the Swingles cannot prevail on this ground.Riding Rink
Very little discussion was had during the public hearing with respect to the riding rink. The Swingles contend that the riding rink is not the riding academy. They claim that the riding academy is located in Bethlehem. There is, however, a riding rink in Watertown, and Watertown zoning regulations apply.
Section 21.3.6 of the Watertown Zoning regulations permits a "riding academy" under specified conditions and subject to Special Permit and Site Plan approvals. Section 7.2 of the Watertown Zoning regulations provides that any use not permitted by right, by Site Plan Approval or by Special Permit in a zoning district by these Regulations shall be deemed to be prohibited with such district. A riding rink is not permitted as a matter of right in an R-90 zone. The Swingles did not obtain a special permit. Therefore, the Board's decision denying the appeal with regard to this issue is justified, and the appeal is dismissed with respect to this issue.
Passway
Mary Greene (Barton), the Zoning Enforcement Officer, related the sequence of events which led to her issuing the cease and desist order. She stated that Bethlehem and the Wetlands Agency referred an application for the cellular tower to the Watertown Town Clerk. The Town Clerk, as standard procedure, sends these referrals to the Planning and Zoning Commission. The application was referred to the Watertown Conservation Commission for comment. The Watertown Conservation Commission had no concerns regarding the cellular tower and its impact on Watertown's inlands wetlands and watercourses. This was then referred on to the Planning and Zoning Commission. At a June 2nd Planning and Zoning meeting, an Attorney was present representing the abutting neighbor of the Swingles, Daniel Conron. According to Mary Greene (Barton), that attorney "brought to the attention" of the Commission that the Swingles are using an access owned by others to access their commercial business in Bethlehem. He submitted a copy of on-going litigation of Mr. Swingle and his abutting neighbors. Mary Greene (Barton) testified that up until that time she believed the access was a public road Right of Way. The town attorney, Attorney McHugh, was requested to review the application for a question of access. Based on the attorney's opinion, she was told to issue the Cease and Desist order. Attorney McHugh stated that his title searcher went through the deeds in the chain of the Swingles' title and found a deed which purported to convey the road to Avery Skilton in 1807. (Minutes, Public Hearing, October 27, 1999.)
James W. Greaves and Beatrice T. Greaves v. Gary Swingle, Superior Court J.D. Waterbury at Waterbury, Return Date May 24, 1999, transferred to J.D. Litchfield, Application for Temporary Injunction and Complaint alleging that Gary Swingle has trespassed onto the plaintiff's property.
The evidence regarding the status of the "driveway/road" presented at the public hearing consisted of the plaintiffs' deed and several others which describe the northerly boundary of their property as a highway. Moreover, Gary Swingle pointed out that the road referred to in the Avery Skilton deed is to the east of Route 63. The Swingle property is to the west of Route 63; thus, the Avery Skilton deed is not in the Swingles' chain of title. (Minutes, Public Hearing, November 23, 1999.)
Philip R. Deleppo, Director of Public Works, indicated, in a letter dated November 23, 1999, that there is no accepted street of the town at this location, the town does not maintain any drive at this location, the alleged road is not reported to the State as a public road for consideration for financial assistance under the Town Road Aid grant program, and there is no drive or road at the location identified or listed by the Town as a paper street, unimproved dirt road or private street under the "Paper Street Ordinance." (Minutes, Public Hearing, November 23, 1999.)
In an affidavit produced at the hearing, Daniel Conron, an abutting property owner, stated that he observed Gary Swingle make changes on the "drive" which were inconsistent with his claim that the "drive" is a public road. (Minutes, Public Hearing, November 23, 1999, p. 9.)
Robert Nole, a title searcher for the New England Title Company, testified that he never found a road running east and west, anywhere running from Bethlehem to Watertown, but he did not check as far back as the 1700s. His interpretation of the deeds was disputed by the plaintiff. (Minutes, public hearing, December 15, 1999.)
Attorney Pilicy, the Town Attorney, advised the Board members that ". . . [I]mplicit in any vote is a finding of whether or not this is a road. Whether you make that as an express finding of fact as a preliminary to your actual vote or not, I think that you cannot escape the fact that there has to be some at least some implicit finding that this is or is not right now a public highway because that's really at the heart of the issue. That's really the grounds or the reasons behind which Zoning Officer made the Zoning Officer's decision, that this is the use of a private driveway to access a commercial or at least non-residential activity which is not authorized under the Zoning Regulations. The applicant has appealed that decision, and one of the grounds for the appeal, if not the principal grounds of the appeal, is because this is a public highway and not a driveway, the Zoning Officer's decision is in error. So I think that what you're presented with, and the way this issue has come for you, you must make that decision or finding of whether or not this Board was satisfied that it is or is not today a public highway. So whether you make that express finding and then go on to vote on the main issue or whether you just proceed and vote on the main issue, that decision is going to be there, expressed or implied. It's part of what you're required to decide in this case." (Minutes, regular meeting, February 16, 2000.)
Discussion concerning whether the access is a road ensued. Several members of the Board expressed some concern that the evidence with which they were presented led to confusion:
Mr. Roger: "I just feel bad that everybody considered this a road as they were making deeds out, and now when it came to a point where it suited one person more than the rest of the neighbors, all the sudden it's no longer a road. That's my total concern. I don't believe in that at all. It suited one person more than the rest, so the rest came forward and said well we don't want it to be a road anymore. It suited everybody as long as they were making deeds and using it as a boundary, but now when it doesn't suit them anymore they don't want it to be a road anymore."
Mr. Reynolds: "If that's the case then, Phil, you have to say that then the road was an accepted road at one time and it had been dedicated . . ."
Mr. Roger: "I don't think anybody on this Board is qualified to state that as an accepted road. I'm going on based on the information we have in front of us has it ever been called a road? I believe yes it has been. Has there ever been documents shown that it has been abandoned? No, there has not been. That's what I'm going on. I'm not qualified to say whether that's accepted or not. That's up to the Town."
Mr. Sarandrea: "That's one problem I have myself. Every document you look at says that highway, but they can never, it always says it's bounded by this highway, that no one can come up and say that it was or it wasn't a highway, but all the records to say that too, though.
Mr. Reynolds: ". . . The argument here is that the road was a road at one time and even myself, I have this sneaking suspicion that somewhere there is a document that has not been shown to us that is far more definitive than what we've been looking at, but I can't go by that, because I can only go by what my instincts tell me at the moment and what's been shown to me, and at this moment in time, it's too cloudy. I don't know. Throughout the last 3 months, I've been sitting here saying to myself, well the next time I come there'll be this fabulous document or this wonderful map or this hidden treasure that will reveal it all, but unfortunately that hasn't happened. The experts that came and talked to us really, actually made it a little bit more confusing. They did not shed any more light on it, and that's a great shame because I really would have liked to have some really solid information on this. Based upon what has been presented I would have no choice in what my decision would be at his (sic) point in time."
Mr. Sarandrea: "The only thing, I kept this one letter out, and the same thing like Phil is saying. This one here, this Robert Nole, they describe every deed from everybody here, I mean they describe this highway from the west, the east, the north, the south, and yet the closing statement here says `I never found any of these parcels coming out old original guarantees.' But it's all in these volumes. That's what's confusing about this whole thing, and that is why I kept this one particular letter out because that's what really, I mean that's all they keep saying — Town Line Highway, west by the highway. It's a highway between Litchfield and Watertown. But if we have to go by the Regs are today that that road is not used, that's how we have to base our decision, but, it's kind of . . ."
The Board voted 3-2 to uphold the decision of the Zoning Enforcement Officer. (Minutes, regular meeting, February 16, 2000.)
Additional Evidence
The court (Doherty, J.) granted the Swingles' motion to introduce additional evidence to the court, finding that the additional evidence sought to be introduced by the plaintiff is necessary for the equitable disposition of this appeal.
The additional evidence offered included the expert opinion of Herbert G. Isaacson, an attorney whose area of concentration is in the field of real estate, conveyancing and title review.
Attorney Isaacson examined the records in Watertown, in Morris, in Bethlehem, in Waterbury, and in Litchfield. In addition, he examined records in the State Library and in the State Historic Society. His research was extensive. He found in the Proprietor's Records on Waterbury, in a document dated 1722, a layout of that portion of Waterbury which later became Watertown which purported to lay out from the Proprietors tiers of lots separated by highways.
He testified that, in his opinion, Proprietors' records (Exhibits 12 and 13) and subsequent deeds (Exhibits 14 through 19) establish the existence of a highway running east/west between what is now Watertown and Morris. "The opinion is that the highway was, in fact, opened as a Proprietors Highway, that the Proprietors Highway passed to the town, that there . . . [is] no evidence of an abandonment of the highway, and therefore, it is my opinion that the highway belongs to the town of Watertown." (Transcript May 20, 2003, p. 86.)
Regarding the issue of abandonment, Attorney Isaacson testified that he found no evidence that the town of Watertown had acted to discontinue the highway.
As a counter to Attorney Isaacson, the defendant produced an expert witness, Attorney Nicholas Simone, who has worked with other attorneys in the title insurance, title exam, and closing fields since 1980. He examined the records of the town of Watertown for the purpose of determining whether or not this access was a public road. In addition, he reviewed abstracts of titles provided to him. Attorney Simone testified that, based on all the documentation that he reviewed, that the access is an abandoned road if, in fact, it were a public road. He stated that he could not decipher the Proprietor's documents that formed the basis for Attorney Isaacson's decision. Based on other documents he reviewed, he formed the opinion that the road has long since been abandoned. (Transcript, May 22, 2003, pp. 28, 32, 37.)
Discussion
The Swingles claim that the appeal should be sustained on the grounds that the defendant Board abused its discretion in reaching its decision. In the alternative, the Swingles seek to have the case remanded to the Board so that it may consider the additional evidence. The Board argues that a remand would be unfair and improper because a lay board would be asked to determine the legal status of the driveway/road. The Board contends that the appeal should be dismissed because its decision was based on the substantial evidence that the Town does not recognize the passway as a public road; therefore, it is not exempt from zoning. The Board takes the position that the plaintiffs' failure to quiet title pursuant to Connecticut General Statutes § 47-31 should inure to their detriment. Unquestionably, given the acrimonious relationship causing the litigation between the plaintiffs and their neighbors, an action to quiet title would benefit everyone involved since the issue of ownership of the subject access would be put to rest. As the Appellate Court stated in Devita v. Esposito, 13 Conn. App. 101, 104 (1987), "In all actions to quiet title, there is a single statute, General Statutes § 47-31, which is applicable to a plaintiff's claims; and which, in fact, supersedes any common law actions brought to determine record title or to claim any interest in real property . . . As a result, there can be no confusion about the basis for the plaintiff's cause of action, and there can be no doubt that General Statutes § 47-31 served as the basis for the plaintiff's action to quiet title.
Also, the relief afforded by the action to quiet title is a full determination of the rights of the parties in the land" (Internal Citations omitted.)
The plaintiffs' failure to bring a quiet title action does not, however, operate to expand the powers of the Zoning Board of Appeals which are set out in Connecticut General Statutes § 8-6 which provides, in relevant part:" (a) The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that 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 . . ."
The record indicates that the Board was instructed by the Town Attorney that it had to determine whether the passway was a public road. Although the attorney made it clear that the Board's decision would not be binding on the Town or a court in determining the legal status of the road, the instruction was erroneously given because it misleads the Board with respect to their function and statutory authority.
In Cybulski v. Planning and Zoning Commission, CT Page 5745 43 Conn. App. 105, 110, the Appellate Court observed: "It is well settled that a commission cannot decide issues of title or ownership of real property. Beckish v. Manafort, 175 Conn. 415, 422 n. 1, 399 A.2d 1274 (1978); 9 Connecticut Practice, R. Fuller, Land Use Law and Practice (1993) § 8.3 The commission does not have the authority to determine whether . . . [a] right-of-way is a public highway, since that conclusion can be made only by a judicial authority in a quiet title action governed by General Statutes § 47-31."
The court recognizes that the decision of the Board should not be disturbed so long as the court is satisfied that the board has acted properly. "Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . ." Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654 (1980). The record discloses that the Board's action was improper insofar as it acted pursuant to the town attorneys instructions regarding how it was to decide the appeal. "[A] municipal planning and zoning commission does not have the authority to adjudicate whether a portion of land is a public highway . . . It can, however, determine whether [appellants from a Cease and Desist order prove] that [they have] met [their] burden of proof as to the existence of a public highway." Florian v. Cheshire PZC, No. CV 02 0279661, 2003 Ct. Sup. 6998-e, 35 Conn.L.Rptr. 74, Superior Court, Judicial District of New Haven at Meriden. (May 30, 2003, Graham, J.)
The evidence presented to the court concerning the passway is necessary for the equitable disposition of this appeal. The Board should be permitted to hear this evidence and to be appropriately instructed by the town attorney. The appeal is sustained on this issue, and, accordingly, the matter is remanded to the Board to consider the additional evidence.
Conclusion
The appeal is denied in part and sustained in part with direction to consider the additional evidence regarding the existence of a highway.
GALLAGHER, J.