Brian G. Grissler et al. v. Town of New Canaan Zoning Board of Appeals (2011)

MEMORANDUM OF DECISION

The plaintiffs, Brian G. Grissler and Patricia A. Grissler, bring this administrative appeal of a decision of the defendant, the zoning board of appeals of the town of New Canaan (board of appeals), in which the board of appeals upheld a cease and desist order issued against the plaintiffs.   A review of the record in this case reveals the following factual background.   The plaintiffs own property located at 42 Dabney Road in New Canaan.   This property is located in the two-acre residence zone and has a home where the plaintiffs live.  (ROR [Return of Record], Exh. [Exhibit] 2.) Starting in 2005, New Canaan town officials began receiving complaints that a large commercial flatbed tow truck was parked for long periods of time at the plaintiffs' residence.  (ROR, Exh. 21, p.36.) The tow truck in question is used by the plaintiffs' adult daughter, Katelyn Grissler, who works for a towing company in Norwalk.  (ROR, Exh. 11.)   According to the plaintiffs, Katelyn Grissler lives part time with the plaintiffs at their 42 Dabney Road residence and part time in an apartment in Norwalk.  (ROR, Exh. 21, p. 2.) Pursuant to § 3.3.A.7 of the zoning regulations of the town of New Canaan, commercial vehicles of more than 1000 pounds may not be maintained or stored in residential zones unless they are housed in an enclosed structure.  (ROR, Exh. 30, p. 46.)   Katelyn Grissler's tow truck was frequently parked outside in the plaintiffs' driveway.  (ROR, Exh. 26–27.)   Accordingly, on January 7, 2010, Steve Kleppin, the New Canaan zoning enforcement officer, issued a cease and desist order against the plaintiffs.   This cease and desist order stated as follows:  “[t]his office has repeatedly confirmed a violation of § 3.3.A.7 of the New Canaan Zoning Regulations at your address.   Specifically, you continue to park a flatbed tow truck in the driveway of your residence ․ I was informed that you had secured a location at a commercial space in town to park your vehicle [at 23 Vitti Street in New Canaan], yet it continues to be frequently stored on your residentially zoned property.   Therefore, you are instructed to immediately remove the flatbed tow truck and cease storing it at 42 Dabney Road.” (ROR, Exh. 3.)

On January 21, 2010, the plaintiffs appealed the issuance of this cease and desist order to the board of appeals.  (ROR, Exh. 2–3.)   The board of appeals held a public hearing on the plaintiffs' appeal on March 1, 2010.  (ROR, Exh. 21.)   At this hearing before the board of appeals, many of the plaintiffs' neighbors appeared and complained about the fact that this tow truck was parked in the plaintiffs' driveway.   Accordingly, the board of appeals affirmed the cease and desist order that had been issued against the plaintiffs.   Following the board of appeals' decision, the plaintiffs brought this present appeal to the Superior Court.

Appeals from a decision of a zoning board of appeals are governed by General Statutes § 8–8.  “A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.”  Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995).  Section 8–8(b) provides in relevant part:  any person aggrieved by any decision of a board ․ make take an appeal to the superior court for the judicial district in which the municipality is located ․” The term “board” is statutorily defined to include a zoning board of appeals.  General Statutes § 8–8(2).   Furthermore, “[p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ․ It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved.”  (Citation omitted;  internal quotation marks omitted.)  Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537–38, 833 A.2d 883 (2003).   In the present case, the plaintiffs allege that they are the owners of the property located at 42 Dabney Road. At the hearing before this court on April 28, 2011, the plaintiffs presented a warranty deed indicating that they are the owners of the subject premises.  (Plaintiffs Exh. A.) As the plaintiffs are the owners of the property that is subject to the cease and desist order, the plaintiffs have satisfied the aggrievement requirement, and, therefore, they are aggrieved and they have standing to bring this appeal.   See Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991).

Section 8–8(b) further provides:  “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.”  “[P]rocess 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 § 8–8(f)(2).   General Statutes § 52–57(b) provides that “[p]rocess 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 March 11, 2010, the board of appeals published notice of its decision in the New Canaan Advertiser, a newspaper with general circulation in New Canaan.  (ROR, Exh. 28.)   The plaintiffs then commenced this action by serving two copies of the process on the New Canaan town clerk on March 22, 2010.   Accordingly, this appeal was timely and service was proper.

“[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).  “A court's review of a zoning board's decision to uphold a cease and desist order is limited to a determination of whether the record contains substantial evidence to support the order ․ 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 ․ The plaintiff bears the burden of proof to demonstrate that the board acted improperly.”  (Citations omitted;  internal quotation marks omitted.)  Kopylec v. Zoning Board of Appeals, 125 Conn.App. 754, 756–57, 9 A.3d 442 (2010).  “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 [board].”  (Internal quotation marks omitted.)  Trumbull Falls, LLC v. Planning & Zoning Commission, 97 Conn.App. 17, 29, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006).   “Additionally, zoning regulations are local legislative enactents ․ and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes ․ Ordinarily, [courts afford] deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes ․ Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion ․ Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny ․ the agency is not entitled to special deference ․ [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law.”  (Internal quotation marks omitted.)  Fedus v. Planning & Zoning Commission, 112 Conn.App. 844, 848–49, 964 A.2d 549, cert. denied, 292 Conn. 904, 973 A.2d 104 (2009).

In their memorandum of law, the plaintiffs argue that the board of appeals acted illegally, arbitrarily and in abuse of its discretion because it utilized a legally unsupportable definition of the word “storage.”   The plaintiffs contend that the board of appeals' interpretation of the term “storage” was legally unworkable and inadequate because the evidence in the records reveals that Katelyn Grissler only left her tow truck at the plaintiffs' residence for short periods of time.   Specifically, the plaintiffs contend that Katelyn Grissler “periodically uses the vehicle during both daytime and nighttime hours in the course of her employment, she drives the vehicle to the Property from time to time in between calls, for short periods, as it is also her place of residence ․ The record reveals that she will stop at her parents' house in between calls for a meal and then leaves for work ․ After work, the vehicle is returned to [a commercial parking spot on] Vitti Street.”   According to the plaintiffs, such intermittent parking at the Dabney Road property cannot possibly constitute storage.   Moreover, the plaintiffs also argue that the board of appeals erred because it failed to define precisely the word “storage,” and ostensibly decided their appeal without using any standards.   The plaintiffs contend that such actions were a violation of their due process rights.

In response, the board of appeals argues that the plaintiffs have an overly narrow conception of this case.   The board of appeals notes that the New Canaan zoning regulations prohibit both “maintenance” and “storage” of large commercial vehicles in a residential zone and that “maintenance” of a vehicle involves a smaller amount of time than “storage.”   Accordingly, the board of appeals contends that, at the very least, Katelyn Grissler has been maintaining her tow truck at the plaintiffs' residence.   Moreover, the board of appeals argues that there is more than enough evidence in the record to satisfy either the “maintenance” or “storage” standard because numerous individuals have witnessed Katelyn Grissler's tow truck being parked at the plaintiffs' property for as much as forty-eight consecutive hours.

In their reply memorandum, the plaintiffs argue that the board of appeals' argument regarding “maintenance” should be disregarded because the board of appeals' brief cites to Webster's New World Dictionary for the definition of that word.   As there is no reference to the definition of “maintenance” in the record, the plaintiffs contend that the court cannot entertain this argument because the board of appeals failed to receive permission from the court to supplement the record.   After reviewing the record, it is clear that all of the discussion before the board of appeals focused on the definition of the word “storage” as opposed to “maintenance.”   As the board of appeals solely focused on what the term “storage” meant when it upheld the cease and desist order, the court will do the same in this memorandum of decision.¹

Section 3.3.A.7 of the zoning regulations of the town of New Canaan provides:  “When housed in an enclosed structure, maintenance or storage of not more than one (1) commercial vehicle of over one-thousand (1,000) pound capacity or one (1) self-propelled heavy-construction equipment unit provided that no vehicle for the transportation of refuse, garbage, or septic waste shall be maintained in a residential zone.”   The terms “maintenance” and “storage” are not defined in the regulations.   Nevertheless, § 2.1.C of the New Canaan zoning regulations provides that “[i]n the interpretation and enforcement of these Regulations, words not defined in this Article shall be interpreted by the Commission after consulting one or more of the following:

1. The Statute Building Code, as amended.

2. The Connecticut General Statutes, as amended.

3. The Illustrated Book of Development Definitions (Rutgers University, Center for Urban Policy Research (Piscataway, NJ)), as amended.

4. Black's Law Dictionary.

5. A comprehensive general dictionary.”  (Emphasis added.)

Under the New Canaan zoning regulations, “the word ‘shall’ is mandatory and not discretionary.” § 2.1.B.1. Consequently, the New Canaan zoning regulations require the board of appeals to interpret undefined terms in accordance with these publications.   Additionally, under the general rules of statutory interpretation, when interpreting a statute or regulation “words and phrases shall be construed according to the commonly approved usage of the language;  and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.”  General Statutes § 1–1(a).  “When a statute does not define a term, [courts] look to the common understanding expressed in the law and in dictionaries.”  (Internal quotation marks omitted.)  Fillion v. Hannon, 106 Conn.App. 745, 751, 943 A.2d 528 (2008).

At the March 1, 2010 public hearing, Kleppin told the members of the zoning board of appeals that “if a term is not defined the regulations, there are several sources to check for a definition.   And it says just pick one or more of these sources.   And I did check the first four.   I did not check the comprehensive general dictionary because I came up with a definition that confirmed my suspicion.”  (ROR, Exh. 21, p. 35.)   The source that Kleppin was referencing was the illustrated Book of Development Definitions, which defines “outdoor storage” as “[t]he keeping, in an unenclosed area, of any goods, junk, material, merchandise or vehicles in the same place for more than 24 hours.”   (ROR, Exh. 24.)   Kleppin further opined that in order to constitute storage of a vehicle, “it's got to be there for an extended period of time.   The development definition kind of points to a 24–hour period.   That's not the standard.   To me, that just reinforces what we already thought:  That ․ gives a little more backbone to that.”  (ROR, Exh. 21, p. 40.)

There was much discussion among the members of the board of appeals regarding whether Kleppin's suggestion was an appropriate definition.   Although, as noted by the plaintiffs, the board of appeals failed to reach a consensus on a precise definition for the word “storage,” it is clear that the members felt that it needed to be some type of long-term housing.   For example, one member of the board of appeals noted that “I think the definition that [the plaintiffs' counsel] provided of storage is keeping something for future use, and we're certainly empowered to make a reasonable assessment of what that word means.   And it would seem to me based upon what [Kieppin has] presented, even if we just focus on, as [the plaintiffs' counsel] would like, the time after October [2009], this vehicle is being stored there.   It's being stored for use in the future day after day after day.   And I don't think it has to be there for 23, 24 hours.   It can be there for the time period that we've talked about.   It can be there for three or four hours, going out on a call.   That's storing a commercial vehicle.”  (ROR, Exh. 21, p. 69–70.)

The hesitancy on the part of the board of appeals to adopt a precise time frame in respect to this tow truck makes sense because an automobile, by its very nature, is designed to be moved.   It would be illogical to set down a rigid twenty-four-hour time frame in regard to a vehicle.   For this reason, the court is not inclined to adopt a rule stating that in order for a vehicle to be stored on property that it has been to be there for more than twenty-four consecutive hours.   Rather, the court concludes that a vehicle is stored on property when it is placed there for the long term and that the property is the location where the vehicle is primarily housed.

This determination is supported by the definition of “storage” that is found in dictionaries.   For instance, although Black's Law Dictionary does not have a definition for the word “storage,” it does define the verb “to store” as “[t]o keep (goods, etc.) in safekeeping for future delivery in an unchanged condition.”   Black's Law Dictionary (9th Ed.2009).   Moreover, another comprehensive English dictionary defines “storage” as a “space or place for storing” and that “storing” means to “lay away” or “accumulate.”   Merriam–Webster's Collegiate Dictionary (10th Ed.2001).   Both of these definitions suggest that the most important element of “storage” is the intent to keep an item in a place for the long haul.   That does not mean that the item, such as a vehicle, needs to be there continuously for a finite period of time.

Nevertheless, even if this court were to adopt a twenty-four-hour time period as suggested by the Illustrated Book of Development Definitions and by the plaintiffs themselves;  see ROR, Exh. 21, p. 29;  there was ample evidence in the record indicating that Katelyn Grissler's tow truck was stored on the plaintiffs' property.   Exhibit twenty-three of the record is an “Inspection Summary” report of the plaintiffs' property.   This report demonstrates that Katelyn Grissler's tow truck was parked on the plaintiffs' property at all hours of the day and night between July 2009 and January 2010.   For instance, between December 1, 2009 and January 15, 2010, the truck was sighted at the plaintiffs' property on twenty-five different dates.   The inspection summary only notes five dates during this time period when Katelyn Grissler's tow truck was not spotted at the subject property.   Many of the plaintiffs' neighbors have also noticed that the subject tow truck was parked at the plaintiffs' property for long droves of time.   For instance, Jim Walsh, who lives at 22 Shadow Lane, stated:  “Since 2005, a large commercial flatbed tow truck has been in the driveway of 42 Dabney Road located in a residential neighborhood day after day for long, extended periods of time.   There have been various intervals of 24 or 48 hours without movement.”  (ROR, Exh. 21, p. 52.)   Geri Walsh, who also lives at 22 Shadow Lane, reported that “for the past five years, a commercial flatbed tow truck has been parked at the Grissler's practically daily for long stretches that really have been the greater part of a 24–hour time frame.   The commercial vehicle is there constantly.”  (ROR, Exh. 21, p.55). Although the plaintiffs are adamant that the truck was only intermittently parked on their property, the board of appeals has the right to believe this testimony and the court cannot substitute its judgment as to the credibility of witnesses.   Accordingly, the court determines that there is substantial evidence in the record to support a determination that Katelyn Grissler's tow truck was stored at the plaintiffs' residence for intervals of time in excess of twenty-four hours.

As there is more than sufficient evidence in the record indicating that Katelyn Grissler's tow truck was parked in a residential zone for long periods of time over the course of many months, the court concludes that there is substantial evidence to support of the board of appeals' determination that this vehicle was stored at the plaintiffs' residence in violation of § 3.3.A.7 of the New Canaan zoning regulations.   Accordingly, the court dismisses the plaintiffs' appeal.

SO ORDERED

Edward R. Karazin, Jr.

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. Although the board of appeals only focused on the definition of the term “storage” as opposed to “maintenance,” the court notes that in common parlance, “maintenance” typically involves a shorter time period than “storage.”   Consequently, if the court upholds the board of appeals' determination that Katelyn Grissler's tow truck was stored on the plaintiffs' property, then it was most likely maintained as well.   Additionally, as the applicable New Canaan regulation uses the disjunctive word “or,” the plaintiffs would have violated the regulation if they either stored or maintained their daughter's commercial vehicle on their property..  FN1. Although the board of appeals only focused on the definition of the term “storage” as opposed to “maintenance,” the court notes that in common parlance, “maintenance” typically involves a shorter time period than “storage.”   Consequently, if the court upholds the board of appeals' determination that Katelyn Grissler's tow truck was stored on the plaintiffs' property, then it was most likely maintained as well.   Additionally, as the applicable New Canaan regulation uses the disjunctive word “or,” the plaintiffs would have violated the regulation if they either stored or maintained their daughter's commercial vehicle on their property.

Karazin, Edward R., J.T.R.