Christopher Carrozzella et al v. Wallingford Zoning Board of Appeals (2010)

MEMORANDUM OF DECISION

I

STATEMENT OF APPEAL

The plaintiff's appeal from a decision of the Wallingford zoning board of appeals to uphold a notice of violation issued by the Wallingford zoning enforcement officer.   The zoning enforcement officer had issued the notice to the plaintiffs ordering them to remove an “unapproved play set” from their property.

II

BACKGROUND

On or about July 24, 2006, Mark DeVoe, the assistant town planner for the town of Wallingford, and the zoning enforcement officer (ZEO) in this matter,¹ issued a notice of violation to the plaintiffs, Christopher and Mary Jane Carrozzella, ordering them to remove an “unapproved play set” from their property located at 2 Self Court in Wallingford.  (Return of Record [ROR], Exhibit 1.) The notice stated, inter alia, that the plaintiffs were in violation of § 4.3 of the Wallingford zoning regulations and provided the following two reasons:  (1) “Play sets and other recreational facilities and structures are not permitted for individual unit owners in Open Space Planned Residential Development;  they are allowed only as community facilities for the use and enjoyment of the entire development and must be shown on the site plan and approved by the Planning and Zoning Commission as part of the developer's approval process”;  and (2) “[t]he play set is located in an area set aside as open space by the developer.   The Planning and Zoning Commission regulates any use within required open space;  again, no such use was approved.”  (Emphasis in original.)   The notice ordered the plaintiffs to remove the play set within ten days of receipt of the letter.  (ROR, Exh. 1.)

On August 7, 2006, the plaintiffs filed an appeal with the zoning board of appeals (board).  (ROR, Item 1;  appeal, ¶ 3, and answer, ¶ 3.)   A public hearing on the appeal was held on September 18, 2006.  (ROR, Exhs. 3, 5, 6 and 7.) At the hearing, the board failed to pass a motion to sustain the appeal with a vote of two in favor and three opposed;  consequently, the appeal application was denied and the ZEO's order was upheld by the board.  (ROR, Exh. 5, p. 11;  Exh. 6, pp. 32-33;  Exhs. 7 and 8.) The board published notice of its decision on September 22, 2006.  (ROR, Exh. 7.) The plaintiff appealed that decision to the Superior Court, and the appeal was tried to this court on February 26, 2010.

III

JURISDICTIONAAggrievement

“[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal ․ [I]n order to have standing to bring an administrative appeal, a person must be aggrieved.”   (Citation omitted;  internal quotation marks omitted.)  Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006).   “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003).   A plaintiff may prove aggrievement by testimony at the time of trial;  Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991);  or “by the production of the original documents or certified copies from the record.”  (Internal quotation marks omitted.)  Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).

“Two broad yet distinct categories of aggrievement exist, classical and statutory ․ Classical aggrievement requires a two-part showing.   First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share ․ Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest ․

“Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case.   In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.”  Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2008).  General Statutes § 8-8(a)(1) provides in relevant part, “In the case of a decision by a ․ zoning board of appeals, ‘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.”  Section 8-8(b) provides in relevant part, “any person aggrieved by any decision of a board ․ may take an appeal to the superior court for the judicial district in which the municipality is located.”

In the complaint filed on October 10, 2006, the plaintiffs allege that they are aggrieved by the actions of the defendant.   At the trial on February 26, 2010, the parties stipulated to the fact that the plaintiffs own the property that was the subject of the notice of violation and the appeal to the board.   The owner of the property that is the subject of the application before the board that was denied is an aggrieved party.  Bossert Corp. v. Norwalk, 157 Conn. 279, 285, 253 A.2d 39 (1969).   Moreover, the plaintiffs' status as owners of the subject property establishes that they have a specific personal and legal interest in the subject matter of the decision.   The fact that the board's decision resulted in the denial to the plaintiffs of the ability to use their property as proposed establishes that this specific personal and legal interest has been specially and injuriously affected.   See Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987).   Accordingly, based on the facts to which the parties stipulated at trial, the court concludes that the plaintiffs are classically aggrieved by the board's decision.

B

Timeliness and Service of Process

General Statutes § 8-8(b) provides in relevant part:  “[A]ny person aggrieved by any decision of a board ․ may take an appeal to the superior court for the judicial district in which the municipality is located.   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 ․” Section 8-8(f) provides, in part, 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.   Such service shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the clerk of the municipality or the chairman or clerk of the board a necessary party to the appeal.”  General Statutes § 52-57(b) provides in relevant part:  “Process in civil actions against the following-described classes of defendants shall be served as follows:  ․ (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency ․”

On September 29, 2006, the plaintiffs commenced this appeal by service of two copies of process upon the Wallingford town clerk, who accepted service as agent for service for the board.  (Marshal's return.)   A review of the record reveals that notice of the agency's decision was published on September 22, 2006.  (ROR, Exh. 7.) Accordingly, the court finds that the appeal is timely and that service was proper.

IV

SCOPE OF REVIEW

“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.)   Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294, 947 A.2d 944 (2008).  “Where a zoning board of appeals does not formally state the reasons for its decision ․ the trial court must search the record for a basis for the board's decision.”  (Internal quotation marks omitted.)  Moon v. Zoning Board of Appeals, 291 Conn. 16, 25, 966 A.2d 722 (2009).

“[F]ollowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board.”  Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82, 626 A.2d 744 (1993).  “[T]he proper focus of a reviewing court is on the decision of the zoning agency and, with regard to its factual determinations, on the evidence before it that supports, rather than contradicts, its decision.

“The conclusion that this scope of review applies upon judicial review is not undermined by the fact that ․ the zoning agency was a zoning board of appeals reviewing the decision of a zoning enforcement officer in an appeal from that decision pursuant to [the General Statutes] ․ [I]t is clear from both the entire statutory scheme and our zoning case law that the zoning board hears and decides such an appeal de novo, and that the action of the zoning enforcement officer that is the subject of the appeal is entitled to no special deference by the court.”  (Internal quotation marks omitted.)  Id., 87-89.

V

DISCUSSION

In their brief, the plaintiffs argue that (1) the play set referred to in the notice of violation is either an unregulated use or a permitted use under the Wallingford planning and zoning regulations applicable to the plaintiffs' property;  (2) the board's practice of requiring the plaintiffs to proceed first at the public hearing deprived them of fundamental fairness and due process;  and (3) the board's decision is not supported by substantial evidence in the record.   These issues will be addressed in turn.²

A

Whether the Play Set Referred to in the Notice of Violation Is Either an Unregulated Use or a Permitted Use under the Wallingford Planning and Zoning Regulations Applicable to the Plaintiffs' Property.

The plaintiffs first argue that §§ 4.3.A, 4.3.B and 4.3.D.5 of the regulations permit play sets on the plaintiffs' home site lot.   In support, they note that § 4.3, which governs open space planned residential districts (OSPRD), encourages “recreation” and expressly permits “[r]elated accessory buildings, structures, and uses,” which include “[r]ecreation facilities.”   They further note that § 4.3.D.5.A requires that open space in an OSPRD accomplish certain objectives, one of which is to preserve land “to serve park and recreation needs.”  (Plaintiffs' brief, p. 5;  accord ROR, Exh. 9, Wallingford Zoning Regs., § 4.3.D.5.A.2.) They also note that § 2.2 of the regulations, which sets forth definitions of words used in the regulations, defines “Open Space” in part as “[t]hat portion of the ground space on the same lot as the principal building which is either landscaped, or developed and maintained for recreation purposes ․” ³ (Plaintiffs' brief, p. 5.) They contend that a literal reading of these provisions permit a play set within the plaintiffs' unit or home site lot and that such use is consistent with and accomplishes the recreation purpose of the OSPRD regulations.

The plaintiffs further maintain that play sets are not regulated by the zoning regulations at all.   In support of that position, they rely on a letter from the Wallingford town planner, Linda Bush, who stated that Wallingford has never regulated playscapes, play houses or tree houses, and the state building code, which states that building permits are not required for “swings and other playground equipment.”  (ROR, Exh. 1, Interoffice Memorandum dated 1/24/06;  Plaintiffs' brief, p. 6.) They further rely on the fact that the terms “playscape” or “play set” are not defined in the regulations.   They maintain that town officials had advised owners in the Fieldstone Farm development prior to their home purchases that play sets were not prohibited and that those owners relied on that information to their detriment.

The plaintiffs also argue that the board and the ZEO relied upon regulations, specifically §§ 4.3.D.5.E and 4.3.D.18, that were adopted after approval of the site plan for the Fieldstone Farm development and that those regulations cannot be applied retroactively to the plaintiffs' property without violating the plaintiffs' due process rights.   They contend that retroactive application of amendments to zoning regulations is prohibited by General Statutes § 8-2h(a) ⁴ and that, therefore, such regulations may not prohibit the plaintiffs' play set.   The plaintiffs essentially argue that because the developer of Fieldstone Farms was not required to depict the locations of play sets that might be used by individual unit owners on its site plan at the time of its application for site plan approval, the town cannot now rely on the absence of such play sets from the plan in upholding the ZEO's order.   Finally, they maintain that they own their home site lot and that the play set “is not a structure as might be claimed by the defendant.”  (Plaintiffs' brief, p. 10.)

The defendant board counters that play sets located in the designated open space of an OSPRD that are not specifically approved as part of the planning and zoning approval process are prohibited and that the plaintiffs' play set, therefore, is not permitted.   In support of this argument, it maintains that the Wallingford zoning regulations are permissive, rather than prohibitive, meaning that any uses not specifically permitted are deemed prohibited.

The board also contends that § 4.3.B.2.c of the regulations, which allows as a permitted use in an OSPRD “[r]ecreation facilities limited to the use of individuals living on the premises,” does not allow such facilities for the use of any particular unit;  rather, such uses are permitted for the use of the entire community.   In support, it asserts that an OSPRD development is not divided into individual lots like a traditional subdivision;  it is a coordinated entity that is designed to allow for a development with greater density than a traditional subdivision while preserving open space for conservation and preservation of natural resources.   Moreover, it argues, regardless of whether the plaintiff's play set is located within their home site lot, the plaintiff's reliance on their deed to the property is misplaced because ownership of the land where the play set is located does not exempt that land from regulation.   It maintains that regardless of ownership of the land in question, the use of that land is governed by the regulations and by the zoning commission.

The board argues that the open space of this development begins twenty feet from the foundation of each home in the development and that § 7.5 and § 7.4.A.3 of the regulations require the plans submitted with a site plan application to show all uses of the open space, including recreation facilities, and no such facilities were depicted on the plan at the time of approval.   It also points out that § 4.3.D.11 ⁵ requires recreation facilities to be centrally located.

The board further argues that the plaintiff has failed to demonstrate that play sets are customary to the primary use of its property, that is, an OSPRD development.   To the contrary, it maintains, the testimony heard at the public hearing demonstrated that such uses are not typical in an OSPRD.   It further maintains that a play set is a “structure” as that term is defined in the regulations and that provisions of the regulations that were adopted subsequent to the approval of the development are not relevant because the regulations in effect at the time of approval prohibited the play set at issue.

In their reply brief, the plaintiffs attempt to draw a distinction between “use” and “accessory use” in the regulations, arguing that a play set is, “at best,” an accessory use and “is not a ‘use’ at all.”  (Plaintiffs' reply brief, p. 2.) Accordingly, they contend, references to “uses” in §§ 7.4 and 7.5, as well as the definition of “use” in § 2.1, are not applicable to “accessory uses,” which are defined in § 2.2 of the regulations.   They maintain that although “uses” must be depicted on site plans, depiction of “accessory uses” is not required because the developer could not have foreseen which accessory uses each unit owner might make of his or her property in the future.

The plaintiffs' attempt to draw a distinction between “uses” and “accessory uses” is without merit.   Section 2.1 defines “use” as “any purpose for which a lot or part thereof is arranged, intended, or designed to be used, occupied, maintained, made available, or offered for use, and to any purpose for which a building or structure or part thereof, is arranged, intended or designed to be used, occupied, maintained, made available, or offered for or erected, constructed, altered, enlarged, moved, or rebuilt with the intention or designed of using the same.”  Section 2.2 defines “accessory use” as “[a] use or building, or both, customarily incidental and subordinate to the principle use or building, in character with the surrounding zone, and located on the same lot as such principle use or building or on a contiguous lot under the same ownership.”  (Emphasis added.)   As the definition of “accessory use” defines that term as a specific type of “use,” the plaintiffs' contention that an accessory use is not a use is without merit.   Moreover, the definition of “use” in § 2.1 is sufficiently broad to encompass accessory uses.

“Generally, it is the function of a zoning board or 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 ․ trial court ha [s] to 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.”  (Internal quotation marks omitted.)  Goulet v. Zoning Board of Appeals, 117 Conn.App. 333, 343, 978 A.2d 1167, cert. denied, 294 Conn. 909, 982 A.2d 1082 (2009).

“A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it ․ Although the position of the municipal land use agency is entitled to some deference ․ the interpretation of provisions in the ordinance is nevertheless a question of law for the court ․ The court is not bound by the legal interpretation of the ordinance by the [commission] ․

“The regulation is a local legislative enactment, and in its interpretation we seek to discern the intent of the legislative body as manifested in the words of the regulation ․ Since zoning regulations are in derogation of common law property rights, however, the regulation cannot be construed beyond the fair import of its language to include or exclude by implication that which is not clearly within its express terms ․ The words employed by the local legislative body are to be interpreted in accordance with their natural and usual meaning ․ [W]here more than one interpretation of language is permissible, restrictions upon the use of lands are not to be extended by implication ․ [and] doubtful language will be construed against rather than in favor of a [restriction] ․

“A court must interpret a statute as written ․ and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation ․ The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant ․ Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body.”  (Citation omitted;  internal quotation marks omitted.)   Balf Co. v. Planning & Zoning Commission, 79 Conn.App. 626, 635-36, 830 A.2d 836, cert. denied, 266 Conn. 927, 835 A.2d 474 (2003).

The court agrees with the board that the play set at issue in this appeal is prohibited by the regulations.   Although the plaintiffs correctly note that one of the purposes of an OSPRD is to preserve land “to serve park and recreation needs”;  see Wallingford Zoning Regs. § 4.3.D.5.A.2;  and that the regulations do not contain the words “playscape” or “play set,” the board correctly concluded that play sets fall within the general category of “recreation facilities,” which are addressed in the regulations.   The regulations contain specific restrictions on the placement of recreation facilities.  Section 4.3.D.11 of the regulations requires that recreation facilities be “as centrally located as possible, protected with a suitable and safe fence, located at least 25 feet from any dwelling unit and shall not be located within any of the required setbacks.”  (ROR, Exh. 9.)

The board's interpretation of this provision as allowing recreation facilities only for the use of the entire community is reasonable in light of the use of the phrase “centrally located” in that section and in light of the first stated purpose of the OSPRD, which is “to expand the choice of housing in the Town from individual lots and structures to the planning and development of larger areas with groups of structures erected as a coordinated entity ․” (Emphasis added.)   Wallingford Zoning Regs., § 4.3.A.1. Central placement of recreation facilities used in common by all unit owners within a development is more consistent with the OSPRD concept, insofar as such facilities could be incorporated into the overall design of the project.   Further, allowing every unit owner to place their own play set upon their home site lot would not be consistent with the second purpose of the OSPRD stated in the regulations, which is “to preserve and make available open space for conservation, preservation of natural resources, farmland, recreation, wildlife habitat, and maintaining the rural New England flavor of Wallingford.”   Wallingford Zoning Regs., § 4.3.A.2. For these reasons, the board's interpretation of its regulations to allow only centrally located recreation facilities for the benefit of the community as a whole is not unreasonable, arbitrary or illegal.

The plaintiffs' argument concerning the retroactive application of §§ 4.3.D.5.E and 4.3.D.18 is also unpersuasive.   Although the plaintiffs may be correct in arguing that the sections of the regulations that were adopted subsequent to the approval of the development at issue are not applicable to that site plan and cannot be used to limit the plaintiffs' use of their property, those particular sections merely clarify existing requirements and do not change the requirements with respect to depiction of play sets on the site plans.   Section 4.3.D.18 explains that the “Commission approves each OSPRD as a planned development and is concerned over both the architectural design of each unit and the relationship of each building in the development to other buildings in the development.   The Commission considers OSPRD developments to be entirely different types of neighborhoods than those developed under traditional subdivision and zoning standards.   In an OSPRD, no individual lots are created;  all land is owned in common.   As such, the following policies shall apply:  ․” (ROR, Exh. 9.) The portion of this section quoted above does not impose any requirements;  it merely clarifies existing policy relating to OSPRD developments.   Accordingly, regardless of whether this provision were to be properly applied to the subject development, its provisions would not affect this court's analysis of the issues presented in this appeal.   Moreover, none of the policies listed in that section apply to play sets.⁶  Section 4.3.D.5.E, which was also adopted after the site plan was approved, provides that “[o]pen space may only be used for purposes approved by the Planning and Zoning Commission during the approval process.   In [OSPRDs], those uses, in most cases, shall be limited to lawn and garden areas shown on the original site plan and areas to be left in their natural state adjoining the developed areas.   Any use of open space not approved by the commission shall be a violation of these regulations.”  (ROR, Exh. 9.) These provisions merely clarify the existing requirements in § 7.4.A.3 of the regulations regarding site plan applications and do not impose additional requirements.

Section 7.4 of the regulations sets forth the requirements for site plan applications.   Specifically, § 7.4.A.3.b requires site plans to contain the “[l]ocation of all existing and proposed uses and facilities not requiring a building such as but not limited to, swimming pools, tennis courts, light standards, tanks, transformers, dumpsters and recycling containers.”  (Emphasis added.)   Wallingford Zoning Regs., § 7.4.A.3.b. The use of the phrase “not limited to” in this section demonstrates that other uses and facilities not listed are also meant to be included.   Moreover, in light of the broad array of uses and facilities included in the list, all uses, whether they are as permanent as a swimming pool or tennis court or as transient as a dumpster or recycling container, must be included.   For these reasons, the board's interpretation of its regulations to require the depiction of play sets on the site plan is within its discretion and is not unreasonable, arbitrary or illegal.   Accordingly, the court will not disturb the board's interpretation or substitute its judgment for that of the board.

B

Whether the Board's Practice of Requiring the Plaintiffs to Proceed First at the Public Hearing Deprived Them of Fundamental Fairness and Due Process.

The plaintiffs argue that the fact that they were required to present their case prior to the ZEO explaining the basis for the notice of violation resulted in “the accused,” i.e., the plaintiffs, being required to defend themselves prior to any production of “proof of guilt” by “the accuser,” i.e., the ZEO. They maintain that this caused confusion because the notice contained only a generic reference to § 4.3 and contained an “indirect reference to § 4.3.D.5.E and § 4.3.D.18, both adopted after the filing of the zoning application” by the developer of Fieldstone Farms.  (Plaintiffs' brief, p. 16.)   They maintain that they would have presented their case differently if they had heard the ZEO's arguments prior to presenting their own and that they were required to suspend their presentation to review return of record exhibit 5a,⁷ which had not been provided to them prior to the hearing.   They further contend that “[i]n all of our jurisprudence the accuser is required to make his case first” and that requiring the plaintiffs to make a defense “to as yet unleveled claims” puts them at a disadvantage.

With regard to the plaintiffs' claim concerning the order of presentations at the public hearing, the board notes that the plaintiffs made no such claim during the hearing and did not request a continuance.   Moreover, it maintains that the plaintiffs, as applicants before the board, would generally present their arguments first.   It also notes that the hearing was recessed to provide the plaintiffs with an opportunity to review the ZEO's memorandum.

“Our due process clause, like that of the federal constitution, does not guarantee any particular form of state procedure.   Due regard must be had to the nature of the proceeding and the individual right affected by it.”   (Internal quotation marks omitted.)  Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 554-55, 600 A.2d 757 (1991).  “Constitutional principles permit an administrative agency to organize its hearing schedule so as to balance its interest in reasonable, orderly and nonrepetitive proceedings against the risk of erroneous deprivation of a private interest.”  Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 486-87, 576 A.2d 510 (1990), citing Mathews v. Eldridge, 424 U.S. 319, 335, 348-49, 96 S.Ct. 893, 897-98, 47 L.Ed.2d 18 (1976), Pet v. Department of Health Services, 207 Conn. 346, 364-65, 542 A.2d 672 (1988), and Petrowski v. Norwich Free Academy, 199 Conn. 231, 235, 506 A.2d 139, appeal dismissed, 487, 479 U.S. 802, 107 S.Ct. 42, 93 L.Ed.2d 5 (1986);  accord Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 220 Conn. 555.

The plaintiffs' claim that the board's practice of requiring the plaintiffs to proceed first at the public hearing deprived them of fundamental fairness and due process is without merit.   They have offered no authority for the proposition that a zoning enforcement officer whose order is appealed should be required to present first at the public hearing on the appeal.   Moreover, at an administrative hearing, an applicant before a board is typically expected to present its application before opponents are heard.   See R. Fuller, 9 Connecticut Practice Series:  Land Use Law and Practice (3d Ed.2007) § 20:3, pp.   557-58 (“After the applicant's presentation, the agency members may ask questions about the application and for input from the staff or consultants to the agency who are present ․ After that, opponents of the application are allowed to make statements and presentations against it or to ask questions of the applicant and its representatives.”).   A review of the transcript of the public hearing reveals that such a procedure was followed at the public hearing in this case.   Although not applicable to proceedings before administrative agencies, Practice Book § 70-3, a rule of appellate procedure regarding the order of arguments presented in an appeal, provides in relevant part:  “Counsel for the appellant or plaintiff in error will be entitled to open and close the argument ․” A review of the transcript of the public hearing reveals that the plaintiffs' attorney made the opening presentation and was the last person to speak prior to the public hearing being closed.  (ROR, Exh. 6, pp. 1 and 32.)   The record in the present appeal discloses no violation of the plaintiffs' procedural rights to due process.   Accordingly, the appeal will not be sustained on that basis.

C

Whether the Board's Decision Is Supported by Substantial Evidence in the Record.

The plaintiffs also argue that the board's decision is not supported by substantial evidence in the record.   In support of this claim, the plaintiffs argue that the board failed to apply §§ 4.3.A, 4.3.B and 4.3.D.5 of its regulations to the facts of this case and that if it had, the board would have concluded that play sets are unregulated or permitted and, therefore, no violation had occurred.   They also argue that the board erred in failing to state the reasons for its decision in the record.   Finally, the plaintiffs contend that the record does not contain evidence to support the ZEO's claim that the plaintiffs' play set is in the open space.   In support, they claim that the record demonstrates confusion as to where the open space starts and stops.   Moreover, they argue, General Statutes § 12-107e requires open space to be approved by a majority vote of the Wallingford town council before it may be included in the plan of development, and there is no indication in the record that this was ever done in this case.   For these reasons, the plaintiffs maintain, the court must find that the board's decision was unreasonable, arbitrary and/or illegal.

The plaintiffs' argument that the board's failure to state the reasons for its decision on the record renders its decision subject to reversal is without merit.   As noted above, “[w]here a zoning board of appeals does not formally state the reasons for its decision ․ the trial court must search the record for a basis for the board's decision.”  (Internal quotation marks omitted.)   Moon v. Zoning Board of Appeals, supra, 291 Conn. 25.   Accordingly, the appeal is not sustained on that basis and the court must search the record to determine whether the board's decision is supported by substantial evidence.

A review of the record supports a determination that the plaintiffs' play set is located in the designated open space of the Fieldstone Farm OSPRD development.   First, substantial evidence in the record demonstrates that the open space begins twenty feet from the foundation of each building regardless of the boundaries of each home site or unit.  (See, e.g., ROR, Exh. 5d, pp. 1-2;  Exh. 6, p. 23, remarks of Janis Small.)   Moreover, although the record shows that the plaintiffs may have been confused by the distinction between ownership of their building site and the town's authority to regulate uses of the land contained within it, their attorney, David Parent acknowledged that although the plaintiffs own their “1/3 acre lot,” that lot “is subject to OSPRD regulation.”  (ROR, Exh. 6, p. 24.)   The plaintiff Christopher Carrozzella also conceded that his property is subject to OSPRD regulation, but argued that the open space is outside of the plaintiffs' 1/3 acre unit.   He argued that his unit “was deeded to us as Unit number 13 and you have in our original application the map that the developer ․ when we bought that is what we interpreted as owning and ․ we knew it was subject to the OSPRD however ․ the open space is outside of that 1/3 acre ․ So when he says the play set is in an area set aside as open space by the developer I disagree because it is in my lot.”  (ROR, Exh. 6, pp. 18-19.)   Notwithstanding the plaintiffs' apparent confusion, the record contains substantial evidence to support the position of the defendant that the open space at Fieldstone Farm begins twenty feet from the foundation of each building and, consequently, includes the portion of the plaintiffs' property where the play set is located.

This issue was discussed in a letter prepared by Timothy Hollister and Leonard Blum, attorneys for the developer of Fieldstone Farm, which was addressed to Janis Small and dated May 15, 2006.   In that letter, Hollister and Blum explain that “[t]he areas beyond the 20-foot open space setback were subject to an Open Space Management Plan (the ‘Plan’), which was filed with the Commission and became enforceable by virtue of the Plan provided to the Commission and subsequently executed by Baker Residential and recorded ․ The concept of a ‘homesite lot’ as the Unit is introduced on the first page of the [Public Offering Statement (POS) ]. Sections 1.18 and 4.3 of the Declaration delineate the boundaries of the unit and state that a unit comprises a ‘volume of air space which may contain a residence and other improvements.’  ․ [A]lthough purchasers bought and own their unit, their ownership rights to use the space within the unit are subject to the terms and conditions of the permits and approvals.   That portion of the unit outside the 20 foot open space setback is, under the site plan and approved permits, part of the unit, but restricted as to use by the unit owner pursuant to the Plan, conversely the [area] within the 20 foot setback area is not subject to the Plan. Put another way, purchasers own a unit which is a homesite lot, but when the permits and conditions are overlaid on what they own (as the POS and Declaration clearly state), their fee ownership of the unit is subject to the restrictions of the overlay open space requirements ․” (ROR, Exh. 5d.)

Moreover, the applicable OSPRD regulations designate the land beginning twenty feet from the foundation of each home in the plaintiffs' development as open space.   According to the plaintiffs' application, the plaintiffs' property is located in an RU-40 zone.  (ROR, Exh. 1.) In that zone, a minimum of 70 percent of the land in an OSPRD development must be open space.   Wallingford Zoning Regs., § 4.3.D.5.B. Section 4.3.D.5.C of the regulations provides:  “Area within the following distance of buildings, parking lots, driveways, and roads shall not be used in calculating compliance with the minimum open space requirements contained in these regulations ․” Below that provision is a chart listing the minimum open space setback for each district.   The minimum open space setback for the RU-40 zone is listed as twenty feet.  (ROR, Exh. 9.) The plaintiffs do not contend, nor do they offer any evidence to show, that these regulations do not apply to their property.

Substantial evidence in the record supports the board's determination that the play set is located in the designated open space.   For example, at the public hearing on September 18, 2006, Janis Small, the Wallingford town attorney, testified that the play set is located in the open space.  (ROR, Exh. 6, p. 23.)   Although the record contains no evidence as to the specific location of the play set within the plaintiffs' home site lot, the plaintiffs had the burden of demonstrating that the ZEO acted improperly.   See Upjohn Co. v. Planning & Zoning Commission, 224 Conn. 82, 89, 616 A.2d 786 (1992) (“Upjohn was the applicant before the commission and therefore had the burden of persuading the commission that it was entitled to the permits that it sought.”);  Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, 569, 785 A.2d 601 (2001) (“applicant bears the burden of demonstrating the existence of a hardship”);  Hoffer v. Zoning Board of Appeals, 64 Conn.App. 39, 42, 779 A.2d 214 (2001) (same).   The plaintiffs failed to offer any evidence at the public hearing to demonstrate that the play set at issue was located within the twenty-foot setback area, nor did they argue that it was located in that portion of their land.   Moreover, as § 4.3.D.11 requires recreation facilities to be located at least twenty-five feet from any dwelling unit, the play set at issue would be in violation of the regulations regardless of whether it was in the twenty-foot open space setback area or in the designated open space beyond.   Accordingly, the board's decision not to overturn the action of the ZEO was not unreasonable, arbitrary or illegal, and the appeal will not be sustained on this ground.

IV

CONCLUSION

For the foregoing reasons, the appeal is dismissed.

Thompson, J.

FOOTNOTES

FN1. In paragraph one of the complaint, which is admitted in the defendant board's answer, DeVoe is referred to as the “zoning enforcement officer.”   At the public hearing on September 18, 2006, DeVoe stated in relevant part “First of all I am here before you this evening as a[n] appointee of the Planning & Zoning Commission as the Zoning Enforcement Officer at least in this matter.”   In various items of correspondence in the record, as well as the parties' briefs, DeVoe is referred to as the “Assistant Town Planner.”  (See ROR, Exhs. 1, 2, 5a and 8.) For purposes of consistency, DeVoe will be referred to herein as the zoning enforcement officer or ZEO..  FN1. In paragraph one of the complaint, which is admitted in the defendant board's answer, DeVoe is referred to as the “zoning enforcement officer.”   At the public hearing on September 18, 2006, DeVoe stated in relevant part “First of all I am here before you this evening as a[n] appointee of the Planning & Zoning Commission as the Zoning Enforcement Officer at least in this matter.”   In various items of correspondence in the record, as well as the parties' briefs, DeVoe is referred to as the “Assistant Town Planner.”  (See ROR, Exhs. 1, 2, 5a and 8.) For purposes of consistency, DeVoe will be referred to herein as the zoning enforcement officer or ZEO.

FN2. Although the plaintiffs allege several grounds for the appeal in their complaint, they have not briefed all of those grounds.  “Issues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided.”   Cybulski v. Planning & Zoning Commission, 43 Conn.App. 105, 109 n.3, 682 A.2d 1070, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996).   Accordingly, any grounds not adequately briefed are deemed abandoned and will not be addressed by the court..  FN2. Although the plaintiffs allege several grounds for the appeal in their complaint, they have not briefed all of those grounds.  “Issues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided.”   Cybulski v. Planning & Zoning Commission, 43 Conn.App. 105, 109 n.3, 682 A.2d 1070, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996).   Accordingly, any grounds not adequately briefed are deemed abandoned and will not be addressed by the court.

FN3. The complete definition of “Open Space” in § 2.2 is as follows:  “That portion of the ground space on the same lot as the principal building which is either landscaped, or developed and maintained for recreation purposes.   Open Space shall not include those portions of a lot that are utilized for off-street parking or loading, driveway or building purposes.”.  FN3. The complete definition of “Open Space” in § 2.2 is as follows:  “That portion of the ground space on the same lot as the principal building which is either landscaped, or developed and maintained for recreation purposes.   Open Space shall not include those portions of a lot that are utilized for off-street parking or loading, driveway or building purposes.”

FN4. General Statutes § 8-2h provides in relevant part:  “(a) An application filed with a zoning commission, planning and zoning commission, zoning board of appeals or agency exercising zoning authority of a town, city or borough which is in conformance with the applicable zoning regulations as of the time of filing shall not be required to comply with, nor shall it be disapproved for the reason that it does not comply with, any change in the zoning regulations or the boundaries of zoning districts of such town, city or borough taking effect after the filing of such application ․”.  FN4. General Statutes § 8-2h provides in relevant part:  “(a) An application filed with a zoning commission, planning and zoning commission, zoning board of appeals or agency exercising zoning authority of a town, city or borough which is in conformance with the applicable zoning regulations as of the time of filing shall not be required to comply with, nor shall it be disapproved for the reason that it does not comply with, any change in the zoning regulations or the boundaries of zoning districts of such town, city or borough taking effect after the filing of such application ․”

FN5. Section 4.3.D.11 of the regulations, which falls within the provisions setting forth “Development Standards” under § 4.3.D, provides:  “Recreation Facilities-Swimming pools, tennis courts, and other recreational facilities shall be as centrally located as possible, protected with a suitable and safe fence, located at least 25 feet away from any dwelling unit and shall not be located within any of the required setbacks.”.  FN5. Section 4.3.D.11 of the regulations, which falls within the provisions setting forth “Development Standards” under § 4.3.D, provides:  “Recreation Facilities-Swimming pools, tennis courts, and other recreational facilities shall be as centrally located as possible, protected with a suitable and safe fence, located at least 25 feet away from any dwelling unit and shall not be located within any of the required setbacks.”

FN6. The policies set forth in § 4.3.D.18 are as follows:a.  Accessory apartments are not permitted.b. Additions, including rooms, sun porches and garages to individual units are not permitted.c. Accessory buildings and swimming pools for the exclusive use of individual units are not permitted.d. Enlarged decks are not permitted.e. Only decorative fencing shown on the site plan, owned and maintained by the homeowners' association and approved by the Planning and Zoning Commission, is permitted..  FN6. The policies set forth in § 4.3.D.18 are as follows:a.  Accessory apartments are not permitted.b. Additions, including rooms, sun porches and garages to individual units are not permitted.c. Accessory buildings and swimming pools for the exclusive use of individual units are not permitted.d. Enlarged decks are not permitted.e. Only decorative fencing shown on the site plan, owned and maintained by the homeowners' association and approved by the Planning and Zoning Commission, is permitted.

FN7. Exhibit 5a of the return of record is a three-page memorandum from the ZEO to the board dated September 12, 2006, containing “a list of questions and answers that we feel effectively present our position on [the plaintiff's appeal and another appeal concerning similar issues].”.  FN7. Exhibit 5a of the return of record is a three-page memorandum from the ZEO to the board dated September 12, 2006, containing “a list of questions and answers that we feel effectively present our position on [the plaintiff's appeal and another appeal concerning similar issues].”

Thompson, Bruce W., J.