Sandra Ariyan, Trustee et al. v. Pine Orchard Association, Inc. et al. (2010)

MEMORANDUM OF DECISION

The Pine Orchard Association, which is located in Branford, Connecticut, was chartered by the State of Connecticut on June 18, 1903.   The Association was given, and still has, certain areas of jurisdiction separate from the Town of Branford, including planning, zoning, and zoning enforcement, within the boundaries of the Association.   The Association first adopted zoning regulations on June 26, 1945.

This litigation has its origins in the efforts of the plaintiff to construct a gazebo on her property known as 16 Yowago Drive located in the Pine Orchard section of Branford, Connecticut (property).   There are two pending appeals, both involving the same parties, the same property, and the same partially constructed gazebo.   They have been consolidated for trial and were both argued before this court on September 14, 2010.

Docket # CV08-4034207 concerns an appeal by the plaintiff from the denial by the defendant Pine Orchard Association Zoning Board of Appeals (ZBA) of the plaintiff's appeal from a cease and desist order of the Pine Orchard Association Zoning Enforcement Officer (ZEO) which was heard and decided by the ZBA on July 13, 2008.  (Cease and desist appeal.)   Docket # CV 09-4037838 is an appeal by the plaintiff from a denial by the ZBA of the plaintiff's application for a variance of the rear yard setback zoning regulation which was heard and decided by the ZBA on June 1, 2009 (variance appeal).   Since the issues in each appeal are different the court will file two memoranda.   This memorandum concerns Docket 08-4034207 dealing with the appeal from the ZBA's decision with respect to the cease and desist order.

The property is owned by the plaintiff Sandra Ann Ariyan Trust Agreement and this appeal has been brought, by the plaintiff Sandra Ann Ariyan, Trustee.   The court finds that the plaintiffs have established that they are statutorily aggrieved.

The property consists of approximately one-half of an acre and is located in an A-2 zone.   The zoning regulations provide that property located in an A-2 zone shall have a 25-foot front yard setback and a 20-foot rear yard setback.   The property is rectangular in shape and has 217 feet frontage on Yowago Avenue to the east and 217 feet on an unimproved right of way owned by the Hotchkiss Grove Association and known as Dudley Avenue to the west.   The south and north lines are 121 and 125 feet long.   Located on the property is a one-family residence with an attached garage, a swimming pool, a small gazebo, and a partially constructed larger gazebo.   The location of the partially constructed large gazebo is the subject of this appeal.

In late 2007 or early 2008 the plaintiff began to construct a gazebo 10 feet wide and 38 feet long next to the pool.   It has wooden posts with foundation footings three and one-half feet deep, and when it is finished will have a plywood roof with asphalt shingles, and will be 10 feet high.   Construction was started by the plaintiff without obtaining a building permit.   On February 21, 2008 the plaintiff applied to the Pine Orchard Zoning Authority for a Certificate of Zoning Ordinance Conformity.   This application was denied on February 28, 2008 and a stop work order was issued by the ZEO. A second application was denied on April 21, 2008 and the plaintiff was advised that the partially constructed gazebo violated the rear yard setback zoning regulation.

On June 14, 2008 the plaintiff filed an application for a variance of the setback requirement before the ZBA, a public hearing was held on July 14, 2008, and the application was denied.   There was no appeal from the denial.   That application for a variance is not the application for a variance with which Docket 09-4037838 is concerned.

On August 6, 2008 the ZEO issued a cease and desist order.   The basis of the order was that the partially constructed gazebo was a non-conforming structure which had been erected without zoning and building permits.   The plaintiff was ordered to remove the gazebo.   On August 29, 2008 the plaintiff appealed the ZEO's cease and desist order to the ZBA. The appeal set forth various reasons why the plaintiff thought the cease and desist order was wrongfully issued.   A duly noticed public hearing was held by the ZBA on the appeal on October 13, 2008.   The ZBA upheld the action of the.   ZEO and denied the appeal.

On November 13, 2008, the plaintiff appealed the decision of the ZBA to this court.   The appeal claimed that the decision of the ZBA was illegal, arbitrary and an abuse of discretion in that (a) the ZBA failed to find that the cease and desist order was in error because it was not based on the actual language of the zoning regulations which do not contain a definition of “structure,” and which provide no guidance for the interpretation employed by the ZEO in issuing the order;  (b) the gazebo does not disrupt the views or interfere with the rights of adjacent landowners, was not a “structure” pursuant to the zoning regulations, and that no setback was required;  and (c) the decision of the ZBA is not supported by the evidence and has no basis in fact or law.

The law is clear with respect to the role of a zoning board of appeals when considering an appeal from the decision of a zoning enforcement officer.  “The board conducts a de novo review on an appeal from a decision of the zoning officer.”  Caserta v. Zoning Board of Appeals, 226 Conn. 80, 88-89, 626 A.2d 744 (1993).  “The board ‘is in the most advantageous position to interpret its own regulations and apply them to the situations before it.’  (Internal quotation marks omitted.)  Doyen v. Zoning Board of Appeals, 67 Conn.App. 597, 603, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002).   It is, therefore, ‘entrusted with the function of interpreting and applying [its] own zoning regulations.’  (Internal quotation marks omitted.)  Borden v. Planning & Zoning Commission, 58 Conn.App. 399, 411, 755 A.2d 224, cert. denied, 254 Conn. 921, 759 A.2d 1023 (2000).  ‘Generally, it is the function of a zoning board ․ 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.’  “ (Internal quotation marks omitted.)  Wood v. Zoning Board of Appeals, 258 Conn. 691, 697, 784 A.2d 354 (2001).  Munroe v. Zoning Board of Appeals, 75 Conn.App. 796, p. 801 (2003).

“[O]n appeal from [the] zoning board's application of [a] regulation to [the] facts of [a] case, [the] trial court must decide whether the board correctly interpreted the regulation and applied it with reasonable discretion.”   (Internal quotation marks omitted.)  Wood v. Zoning Board of Appeals, supra, 258 Conn. 698.  “[C]ourts should accord great deference to the construction given [a] statute by the agency charged with its enforcement.”  (Internal quotation marks omitted.)  Cimochowski v. Hartford Public Schools, 261 Conn. 287, 296, 802 A.2d 800 (2002).  Munroe v. Zoning Board of Appeals, supra, 75 Conn.App. 796, p. 803.   The burden of proving that the ZBA acted improperly is on the party seeking to overcome the decision or decisions of the ZBA. Francini v. Zoning Board of Appeals, 228 Conn. 785, 791 (1994).  “In light of the existence of a statutory right of appeal from the decisions of 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 of appeal would be empty ․” Daughters of St. Paul v. Zoning Board of Appeals, 17 Conn.App. 53.

The plaintiff claims, by way of her brief, first, that the ZBA did not exercise proper discretion when it sustained the cease and desist order of the ZOE in that since the zoning regulations do not contain a definition of a “structure” the interpretation of the gazebo as a “structure” by both the ZEO and the ZBA is arbitrary, capricious and an abuse of discretion.  “Words used in zoning ordinances are interpreted in accord with their natural and usual meaning.”  Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 153, 543 A.2d 1339, 1343 (1988).  “One of the definitions of structure in Webster's New International Dictionary is something constructed or built, as a building, a dam, a bridge.   In its widest sense the Century Dictionary says it includes any production or piece of work, artificially built up or composed of parts and joined together in some definite maneuver.”  Andrew B. Hendryx Co. v. City of New Haven, 104 Conn. 632, 134 A.77 (1926).

The court notes from the record the remarks of the Chairman of the ZBA. “My own feeling is it's some kind of structure.   They had to have a carpenter, they had hammers, saws, nails, build-they had to build it.   It didn't appear there.”  (ROR Ex. 43, p. 38.)   At least three other members made comments similar to those of Chairman Knowlton.

The plaintiff claims that since the zoning regulations do not contain a definition of “structure” that any interpretation of “structure” by the ZEO and the ZBA is arbitrary and an abuse of discretion.   The court finds that the term “structure” was interpreted in accord with its natural and usual meaning.   This claim is without merit.

The second claim advanced by the plaintiff in her brief is that since the property to the rear of the plaintiff's property is an unimproved section of a private right of way, over which the plaintiff has a right to pass and repass, and which contains no buildable land, that there is no reason to require any setback from the rear line of her property.   This claim is without merit.   The unimproved private road to the rear is owned by the Hotchkiss Grove Association and is known as Dudley Avenue.   The plaintiff may have an easement over this property but she does not have title.   The zoning regulations require that there be a setback from every property line and the ZEO and ZBA have properly enforced this regulation.

The last claims made by the plaintiff in her brief is that proposed gazebo will not obstruct the views or vistas of any of the neighbors, and that prior ZEOs have made a contrary decision with respect to the construction of the smaller gazebo presently on the property.   These claims are without merit.   The issue is not resolved by a popular vote of the neighbors.   What is involved is the proper interpretation of the zoning regulations by the ZEO and the ZBA. The regulations provide for appropriate construction setbacks and both the ZEO and the ZBA are required to apply the regulations if appropriate.   If a prior ZEO approved the construction of the older gazebo, that approval would not affect the obligation of the ZBA in this case to interpret the regulation and to apply it, if proper.  “Boards of appeal are necessarily entrusted with the function of deciding within prescribed limits, and consistent with the exercise of legal discretion, whether the ordinance applies to a given situation and the manner in which it does apply.”  Stern v. Zoning Board of Appeals, 140 Conn. 241, 245 (1953).

The zoning regulation is clear and both the ZEO and ZBA have interpreted and applied it correctly.   The plaintiff has failed to prove that the decision of the ZBA was arbitrary, capricious or an abuse of discretion.

The appeal is dismissed.

William L. Hadden

Judge Trial Referee

Hadden, William L., J.T.R.