Jean Barouth et al. v. Zoning Board of Appeals of the Town of Orange (2011)

MEMORANDUM OF DECISION

This action is an appeal from the August 4, 2008 decision of the Town of Orange Zoning Board of Appeals (here after “ZBA”) upholding and supporting a decision of the Zoning Enforcement Officer of the Town of Orange.

The plaintiff Jean Barouth is the owner ¹ of a certain parcel of land commonly known as 10 Goldman Road in the town of Orange as evidenced by her deed.  (Plaintiff's Ex. 1.) The Property is shown on the Orange Assessor's Map 66 in Block 7 as Lot 23.   The Property is also shown as Lot 11 in a subdivision known as Carowell Estates (the “Subdivision”).

On or about April 17, 2008, the plaintiff submitted an application to Paul Dinice, the Zoning Officer for the Town of Orange (hereafter “ZEO”) for a certificate of zoning compliance.   On or about June 10, 2008, the ZEO denied the Applicant's application.   In his letter of denial the ZEO stated that, “The lot fails to meet the requirements of the Orange Zoning Regulations.   Furthermore, the ‘Carowell Acres' subdivision was never completed and has expired.”

The plaintiff, by and through her agent, plaintiff Louis J. D'Amato, appealed the decision of the ZEO to the Zoning Board of Appeals (here after “ZBA”).

On August 4, 2008, the ZBA held a public hearing regarding the plaintiff's appeal and voted to uphold the decision of the ZEO. In the notice of the denial of the plaintiff's appeal, the ZBA noted, “The Board members focused on Section 8–26c of the Connecticut General Statures [sic], which discusses the seven-year expiration on subdivisions.”   From that decision the plaintiffs have appealed to this Court pursuant to § 8–8(b), C.G.S.

Having considered the record, the applicable statutes, ordinances, case law as well as the arguments and memoranda of law submitted on behalf of the parties, the Court makes the following findings:

“The role of the Court is to determine whether or not the zoning board acted properly in the exercise of its functions and not to substitute its judgment for the judgment of the zoning authority.”  DeMaria v. Planning and Zoning Commission, 159 Conn. 534, 540 (1970).   It performs that function by a review of the record.

In the instant case, a perusal of the record indicates that the ultimate issue concerning the plaintiff's right to receive a certificate of zoning compliance to construct a single-family dwelling is the effect, if any, of § 8–26c, C.G.S.² on the Subdivision and, in particular the “Property.”

According to the Record, the commission's approval appears to have been given on September 25, 1952 as written in longhand on the plan.  (Record Ex. 27.)

The Record does not indicate any requests for extensions to complete the work in connection with this Subdivision.

In July 2005 the ZEO advised the Assessor for the Town of Orange that “Town Counsel” had opined that in regard to the Subdivision, “the original zoning approval is still valid,” but that prior to the issuance of a building and/or zoning permit certain things must occur.   Those things included the following:  (1) Written permission from the City of West Haven for a ‘street opening’ to access the lot from Goldman Road (which is situated in the city of West Haven;  (2) written documentation displaying which city/town would provide emergency services to the Property;  (3) written documentation from the Orange Board of Education showing how it will service school children residing on Goldman Road;  and (4) an approved septic application from the Orange Health Department.  (Record Exhibit 25.)

The testimony of the ZEO at the time of the hearing before the ZBA was that, “prior to that 2005 letter it was my [ZEO's] position that the subdivision was not valid and that a permit could not be issued.   There was no correspondence that said a permit was going to be issued and a number of other items that needed to be addressed were not addressed.”  (Record Ex. 22 p 15–16.)   The record shows that as far back as February 9, 2006, the plaintiff was advised in a letter from the ZEO that her application for permission to construct a one-family home at 10 Goldman Road (a/k/a Dogburn Road) had been denied.  (Record Exhibit 1.) In a subsequent letter dated October 19, 2006, the ZEO further articulated the basis for such denial.   It was noted by the ZEO that, “The subject property was part of what was known as ‘Carowell Acres Section 1.’ The road servicing the subdivision, Goldman Road (a.k.a. Dogburn Road), and accompanying drainage facilities were never constructed.   The subdivision approval is null and void.”   Reference was then made to § 8–26c, C.G.S. That letter went on to note that, “Other issues that have not been addressed and are reasons for the denial include the following ․” (Record Ex. 3.) (Emphasis added).  (See also Record Ex. 22, p. 16–17.)   It is clear from the Record that those “other issues” are subordinate to the ultimate determination by the ZEO that the Subdivision was null and void under the statute.   According to the Record and based upon his own statements, compliance with those “other issues” could not and would not have made the issuance of a building permit possible in the opinion of the ZEO.

The ZEO has indicated that he denied the plaintiff's application for the construction of a single-family dwelling for the reason that the subdivision approval for “Carowell Acres” had expired pursuant to § 8–26c, C.G.S. There was no definite date of expiration cited in any portion of the Record.   That has made the issue a “confusing situations as noted by ZBA Commissioner Eisenhandler at the time of the hearing.

What is not confusing is the fact that the Subdivision was approved in September 1952 and a portion of it along Howellton Road was developed after the construction of that road and the appurtenant drainage and other infrastructure.   That cannot be said of the portion of the Subdivision located along Goldman Road. The ZBA heard testimony from town attorney Vincent Marino to the effect that the lots in question, including Lot 11, the plaintiff's parcel, were not building lots recognized under Town of Orange regulations because there had been too much time that passed since they were originally approved.   He also testified that in view of the fact that the Subdivision was approved before 1991, anything that was required to have been done had to have been completed within seven years of the Subdivision's approval pursuant to § 8–26c(d), C.G.S. Specific examples of work which had not been completed within the prescribed time period included drainage requirements and the extension of Emerald Road. (Record Ex. P. 28–29.)

While the plaintiff argued that there was no public notice by the Town of Orange on the Town land records to warn unwitting potential property owners that the Subdivision had expired, a reading of § 8–26c(c) indicates that such notice is required only in situations where a subdivision had been approved on or after October 1, 1977, which is not the case regarding the subdivision in question.

During its discussion in executive session concerns were briefly mentioned concerning police and fire safety, schools, sewers and/or septic issues.   The Chairman noted that, under the circumstances, those concerns were all “secondary” to the expiration of the Subdivision.  (Record Ex. 22 p. 32.)   The applicant and the Town of Orange indicated by their respective positions their consensus with that view and so does the Court.   The Court finds that it was within the discretion of the ZBA to conclude that the ZEO was correct in his determination that, under the statute, the Subdivision had expired.

In an appeal from a zoning authority's action, the plaintiff has the burden of proving that the authority acted improperly.  Bora v. Zoning Board of Appeals, 161 Conn. 297, 300 (1971).

“When the evidence shows that the Board had an adequate basis for its decision, the conclusion must be drawn that its action was within its power and must be sustained.  Van De Mark v. Zoning Board of Appeals, 1 Conn.Sup. 89, 90 (1935).

“While the board is vested with liberal discretion a trial court must review the decision of a zoning board of appeals to determine if the board acted arbitrarily, unreasonably or unreasonably.”  Wnuk v. Zoning Board of Appeals, 255 Conn. 691, 695–96 (1993).

“[T]he decisions of zoning authorities are afforded great deference, and they are to be overruled only when it is found that the authority has not acted fairly, with proper motive and upon proper reason.”  McMahon v. Zoning Board of Appeals 140 Conn. 433, 438 (1953).

A review of the Record in this case compels the conclusion that the Zoning Board of Appeals of the Town of Orange acted within the scope of its discretion and that its actions were not illegal or arbitrary in upholding and supporting the decision of the Zoning Enforcement Officer.

Accordingly, the appeal of the plaintiff is dismissed.

BY THE COURT

JOSEPH W. DOHERTY, J.

FOOTNOTES

FN1. The fact that the plaintiff, Jean Barouth, is the owner of the subject premises is not at issue.   The Court finds that by virtue of her ownership of the subject property and by the denial of her application for a certificate of zoning compliance, the plaintiff is a statutorily aggrieved person as that term is defined by § 8–8(a)(1), C.G.S. and, consequently, has the requisite standing to bring this action..  FN1. The fact that the plaintiff, Jean Barouth, is the owner of the subject premises is not at issue.   The Court finds that by virtue of her ownership of the subject property and by the denial of her application for a certificate of zoning compliance, the plaintiff is a statutorily aggrieved person as that term is defined by § 8–8(a)(1), C.G.S. and, consequently, has the requisite standing to bring this action.

FN2. Sec. 8–26, C.G.S. provides, in relevant part, (a) Any person, firm or corporation making any subdivision of land, except as provided in Section 8–26g, shall complete all work in connection with such subdivision within five years after the approval of the plan for such subdivision;  the commission's endorsement of approval on the plan shall state the date on which such five-year period expires ․ (d) Not withstanding the provisions of this section, any subdivision approval made under this section on or before October 1, 1991, shall expire not more than seven years from the date of such approval and the commission may grant one or more extensions of time to complete all or part of the work in connection with such subdivision, provided the time for all extensions under this subsection shall not exceed ten years from the date the subdivision was approved..  FN2. Sec. 8–26, C.G.S. provides, in relevant part, (a) Any person, firm or corporation making any subdivision of land, except as provided in Section 8–26g, shall complete all work in connection with such subdivision within five years after the approval of the plan for such subdivision;  the commission's endorsement of approval on the plan shall state the date on which such five-year period expires ․ (d) Not withstanding the provisions of this section, any subdivision approval made under this section on or before October 1, 1991, shall expire not more than seven years from the date of such approval and the commission may grant one or more extensions of time to complete all or part of the work in connection with such subdivision, provided the time for all extensions under this subsection shall not exceed ten years from the date the subdivision was approved.

Doherty, Joseph W., J.