Frances Brandon et al. v. Litchfield Zoning Board of Appeals et al. (2011)

MEMORANDUM OF DECISION

These are administrative appeals from decisions made by the Zoning Board of Appeals of the Town of Litchfield (“ZBA”).   The parties engaged in protracted pleadings before submitting briefs which were both 35 pages in length in both cases.   There is an extensive record which has been returned to the court for both cases.   On August 10, 2011 the court heard testimony on aggrievement and, then, lengthy oral argument by the attorneys.

I. PROCEDURAL HISTORY AND UNDISPUTED FACTS

The property involved in these appeals (“Cropsey property”) was purchased in 1962 by the defendant, Joyce M. Cropsey, and her late husband, James G. Cropsey, who was called Buck. The Cropsey property consists of contiguous parcels of land which total approximately 185 acres on the north and south sides of Blue Swamp Road in the Milton section of Litchfield.   The Cropsey property is now owned by the defendants, Joyce M. Cropsey, Mitchell & Cropsey, Inc., and Joyce MacKenzie Cropsey, Howard Mitchell Graves Cropsey, James MacKenzie Cropsey and Henry Clifford Graves Cropsey, as Trustees for Joyce Mackenzie Cropsey.   The plaintiffs are individuals and entities who also own property in Milton, in the same general neighborhood as the Cropsey property.

Joyce Cropsey and her husband Buck established their residence on the Cropsey property soon after the purchase and raised their three children there.   It is undisputed that before 1970 Buck Cropsey was a hunting enthusiast who began using his property for shooting practice, although the extent of those activities is disputed.   Shooting activities continued until Buck Cropsey's death in 1993.   The Town of Litchfield adopted Zoning Regulations on July 22, 1970.   The neighborhood of the Cropsey property was zoned exclusively residential, having the lowest development density in Litchfield.

In 1977, Buck Cropsey applied to the Litchfield Planning & Zoning Commission (“Commission”) for a special exception to establish a shooting school on the Cropsey property.   After a public hearing and site visit, the Commission denied the application.

In August 2004 a resident in the neighborhood of the Cropsey property made a complaint to the then Land Use Administrator and Zoning Official, Ruth Mulcahy, regarding the clay, bird and trap shooting on the Cropsey property.   After looking into the matter, Ms. Mulcahy reported to the Commission that she felt that the shooting activities being conducted on the Cropsey property consisted of a pre-existing, non-conforming use of the property which could be continued.   The Commission agreed to take no action on the matter.   No one took an appeal from the inaction of Ms. Mulcahy or the Commission.

On February 4, 2008 an attorney representing several residents of Litchfield appeared at the Commission meeting.   Attorney Peter Herbst addressed the Commission, and delivered a letter outlining his clients' concerns about the commercial use of the Cropsey property by the White Oak Gun Club. Mr. Herbst outlined a history of increasing shooting on the Cropsey property which he alleged would have a negative impact on his clients and to be in violation of Zoning Regulations.   He requested that the Zoning Enforcement Officer investigate the use of the Cropsey property and “if the investigation reveals that there was a non-conforming use, to define what that was and abate and terminate any expanded use now or in the future.”

The ZEO undertook an investigation of the complaints made in that letter.   On July 21, 2008, the ZEO submitted a written report to the Commission in which he advised that the activities on the Cropsey property pre-existed the adoption of zoning in Litchfield in 1970.   The written report submitted by the ZEO to the Commission concluded with this statement:  “It appears that the current use of property is consistent with the approximate 40 year historical record of use and that the shooting range activities have existed, along with the White Oak Gun Club, before any zoning regulations were adopted.   Therefore, no reason exists to alter the August 20, 2004 memorandum from Ruth Mulcahy to First Selectmen Leo Paul that was discussed with the Planning and Zoning Commission on December 13, 2004.”   The ZEO did not issue a cease and desist order.   On August 4, 2008 the Commission accepted the ZEO's report and took no further action.

The plaintiffs filed two appeals to the ZBA. One appeal is directly from the ZEO's report itself.   It alleges that the ZEO's report is incorrect and in error because:  “Substantial evidence was submitted to the zoning enforcement officer documenting that the current use of the property bears no resemblance to the use that occurred prior to the adoption of zoning regulations.   Said evidence documented:  1. That prior to the adoption of zoning, only a small portion of the property located on the North Side of Blue Swamp Road, was used occasionally, generally on Sunday mornings from nine or 10 a.m. to noon by Cropsey family members and invited guests for a shooting area. 2. That shooting was under the direction, control and supervision of James Buck Cropsey, who with his wife Joyce M. Cropsey, was at all times relevant times, the owner and full-time resident of the property. 3. That shooting involved only family members and occasionally friends or guests of Buck Cropsey, who were personally invited to the premises by Buck Cropsey. 4. That all shooting activities at the property involving nonfamily members ceased and were discontinued for at least several and perhaps as many as ten years after Buck Cropsey's death in December 1993.   Substantial evidence was presented to the ZEO documenting that currently there is a dues-paying membership shooting club at the property, professional shooting instruction provided by a non-resident for a fee and shooting games and shooting activities, encompassing a far greater portion of the property than was utilized for social shooting prior to 1993.   This new commercial activity, which is causing very substantial harm to the Milton community and neighboring properties, bears no relationship to prior use.   Even if the prior use had not been abandoned, it represents a prohibited change from Buck Cropsey's prior use.”

The other appeal is from the Commission's acceptance of the ZEO's report.   It gives the same reasons for appeal as are quoted above.   The ZBA consolidated both appeals and commenced a public hearing on October 7, 2008.   The public hearing was completed on January 6, 2009.   On February 3, 2009 the ZBA unanimously voted in Case 9–4 to “uphold the Zoning Enforcement Officer's report of investigation, its findings and decisions.”   On the same day the ZBA unanimously voted in Case 9–5 to “uphold the 8/4/08 Planning and Zoning Commission endorsement of the Zoning Enforcement Officer's report.”

The plaintiffs have filed two appeals to this court:  Docket No. 094008206 (“ZEO appeal”) is an appeal from P & Z's denial of the appeal of the ZEO report itself.  Docket No. 09 4008205 (“P & Z appeal”) is an appeal of the P & Z's acceptance of the ZEO report.

II. AGGRIEVEMENT

There are several plaintiffs, some of whom appeared to prove aggrievement.   Francis and Rhett Brandon, Ivan Lowenthall, and Barbara and Stanley Cohen have proven that they are statutorily aggrieved because they own property which abuts the property which is the subject of the appeal.   These parties also proved classical aggrievement on the basis of noise and safety concerns which adversely affect the value of their properties.   Holly and Earl Taylor are not statutorily aggrieved but proved classical aggrievement.

III. JURISDICTION

The first issue which must be addressed is the defendants' argument that the ZBA had no jurisdiction to hear either appeal.  C.G.S. § 8–6 gives the ZBA the power to “hear and decide appeals where it is alleged there is an error in any order, requirement, or decision made by the official charged with the enforcement of this chapter, or any by-law, ordinance or regulation adopted under the provisions of this chapter.”   The defendants argue that the ZEO is the person charged with enforcement of the zoning regulations, and that he did not issue any “order, requirement, or decision” from which an appeal could be taken to the ZBA. Therefore, the defendants argue that the ZBA was without jurisdiction to entertain the ZEO appeal, and the court should accordingly dismiss the appeal.

The Cropsey defendants had raised the same issue through a motion to dismiss which they filed with the ZBA after the appeals had been taken but before the commencement of the public hearings.   The plaintiffs responded with a written memorandum in which they argued that:  1) as to the ZEO appeal, the ZEO has been delegated the enforcement authority by the P & Z and that the ZEO's report constitutes a decision which can be appealed to the ZBA;  and 2) as to the P & Z appeal, the P & Z is authorized to be the zoning enforcement authority by virtue of C.G.S. § 8–3, and that the formal vote the P & Z took to adopt the ZEO's report is a decision which can be appealed to the ZBA.

The ZBA referred the motion to dismiss to its attorney, Thomas Byrne, for an opinion.   Attorney Byrne opined that the ZEO report was a decision which may be appealed to the ZBA. With respect to the P & Z appeal, Attorney Byrne opined that it was “less clear” but recommended that the ZBA hear and render decisions on both appeals.

In support of their argument that the appeal should be dismissed, the defendants cite from Robert Fuller's land use text:  “Since a decision on whether to enforce zoning regulations is discretionary, there is no right to appeal the refusal of the zoning enforcement officer to bring an enforcement action to the zoning board of appeals.”   Robert Fuller, 9 Connecticut Practice Series Land Use Law & Practice, § 8.6 p. 227–28 (2008).   Next, the defendants cite Superior Court cases which stand for the proposition that a failure to issue a cease and desist order is not an “order, requirement or decision” which is appealable to the ZBA under § 8–6.   Battistoni v. Morris, Judicial District of Litchfield, Docket No. 000083196 (May 22, 2001) [29 Conn. L. Rptr. 621];  Gordon v. Zoning Board of Appeals of Town of Easton, Judicial District of Fairfield at Bridgeport, Docket No 980357241 (December 21, 2001) [31 Conn. L. Rptr. 159].   The defendants also cite Palmieri v. Zoning Board of Appeals, 32 Conn.Sup. 625 (Appellate Session 1975) for the proposition that the proper remedy for the failure of a ZEO to issue a cease and desist order is not an appeal to the ZBA but a mandamus action to compel the P & Z to issue a ruling on the requested cease and desist order.

The issue of when an action of a zoning enforcement officer amounts to an appealable “decision” has been hotly contested in the appellate courts and superior court of this state.   The results have been confusing to this court.   The Appellate Court has recently summarized this situation as follows:  “We do not think that a bright line rule has been so far established in evaluation this category of cases.   We conclude, therefore, that the determination of whether the action of a zoning enforcement officer amounts to a decision appealable under § 8–7 depends on the particular facts and circumstances of each case.”  Holt v. Zoning Board of Appeals, 114 Conn.App. 13, 20 (2009).

Here, the report of the ZEO was made after an expensive investigation in which numerous people were interviewed.   It consists of 13 printed pages and a 26–page attachment of exhibits which sets forth in great detail the factual basis upon which the ZEO concluded that the activities being carried out on the defendants' property are “preexisting nonconforming.”   The net result of this report is that the ZEO decided not to take action to issue a cease and desist order against the current activities.

The court finds that the particular facts and circumstances of these cases dictate that the actions of the ZEO of the P & Z are both “decisions” from which appeals may be made to the ZBA. In order to come to this conclusion, there are several section of the statutes and Litchfield Zoning Regulations (“Regulations”) which must be consulted.  C.G.S. § 8–6(a)(1) provides:  “(a) The zoning board of appeals shall have the following powers and duties:  (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or bylaw, ordinance or regulation adopted under the provisions of this chapter.”  Article X, Section 5(1) of the Regulations appoints the ZEO as the “administrative official” charged with the enforcement of the Regulations.  Article X, Section 5(2)(b) provides that the ZEO:  “May cause any building, land or use to be inspected, and may order in writing any person to correct or abate any condition violating these Regulations.”   Article X, Section (3) provides that:  “The Commission in addition to other remedies, may institute legal action to prevent, correct or abate any condition it finds it violates these Regulations.”  Article X, Section 8(2) provides that the Zoning Board of Appeals shall:  “Hear and decide appeals where it is alleged that the is error in any order or decision made by the Zoning Officer.

The court finds that the ZEO is the “Zoning Official” who is authorized to issue cease and desist orders, but the P & Z is the “Zoning Official” designated in the Regulations with the power to bring an action in court to abate a violation of the Regulations.   See, Conto v. Zoning Commission, 186 Conn. 106, 113, 115 (1982).   Thus, the report of the ZEO finding no violation of the Regulations and failing to issue a cease and desist order is a “decision” which may be appealed to the ZBA. The action of the P & Z accepting the ZEO report is a “decision” not to bring an enforcement action which may be appealed to the ZBA.

IV. STANDARD OF REVIEW

“[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 board and the record before the board.”  Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82 (1993).   “[U]pon appeal [from the ZBA's decision], the trial court reviews the record before the [ZBA] to determine whether it has acted fairly or with proper motives or upon valid reasons.”   Spero v. Zoning Bd of Appeals, 217 Conn. Zoning Bd. of Appeals, (Internal quotation marks omitted).  217 Conn. 435, 440 (1991).   The trial court's review of “[a]n administrative appeal shall be confined to the record.”  (Internal citations and quotation marks omitted.)   Rider v. Planning & Zoning Commission, 219 Conn. 139, 146 (1991).  “The Superior Court's scope of review [of an appeal to the ZBA] is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal.   Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations.   It is well settled that a court in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own.”  (Citations omitted;  internal quotation marks omitted.)

R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470 (2001).

V. DISCUSSION

Turning to the merits of the plaintiffs' appeals, there is a large record which the court has reviewed.   The court's conclusion reached after this review is that there is more than enough evidence on both sides of these cases from which the ZBA could have decided either for the plaintiffs or the defendants.   The plaintiffs point out in detail the evidence that weighs in favor of a finding that the character of the defendants' use of their property has changed from an informal, Sunday-morning, noncommercial shooting club to a highly organized, commercial activity at all hours of the day.   There were many witnesses who testified to these allegations.   The plaintiffs' evidence is substantial to say the least.   The ZBA would have been within its rights to have found that there have been changes in the use of the Cropsey property since Buck Cropsey's death which constitute an unlawful expansion of a pre-existing non-conforming use which the ZEO should have ordered abated with a cease and desist order and which the P & Z should have abated with an enforcement action in court.

On the other hand, the defendants have pointed out testimony which could support a finding by the ZBA that the current level of activity is a mere intensification in what had existed before the enactment of zoning in Litchfield.   The defendants have outlined this evidence in detail in their brief.   The court has reviewed this evidence in detail and will not repeat it all here.   Of particular significance, however, is the evidence from Joyce C. Cropsey detailing the use of the property going back to 1962.   If the ZBA believed this evidence, and the other evidence supporting the defendants, it would be sufficient for it to have found that the Cropseys continued to possess a valid non-conforming right to utilize the property for a commercial gun club and shooting range as they had done since prior to the enactment of zoning in Litchfield.

It is fair to say that the evidence supporting the defendants' position does not seem to this court to be as weighty as the evidence supporting the plaintiffs' position.   But, this is a classic case where the court is not permitted to substitute its judgment for that of the ZBA or to make factual determinations on its own.   The ZBA had the right to believe all of the defendants' evidence and reject all of the plaintiffs' evidence.  “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.  (Internal quotation marks omitted.)  Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453 (2004).

The plaintiffs argue that the ZBA failed to consider the substantial differences between the current use of the property and Buck Cropsey's use of the property.   The plaintiffs are correct that they offered a great deal of evidence that the use of the property has changed since Buck Cropsey's death.   But, the ZBA was not required to accept that evidence.   The ZBA had the right to credit the defendants' evidence, including that of Mrs. Cropsey, that the use of the property had not changed since 1962.

The plaintiffs also argue that, even if Buck Cropsey's use is characterized as nonconforming, such use was abandoned with his death.   A legally protected non-conforming use may be voluntarily abandoned.  Blum v. Lisbon Leasing Corp., 173 Conn. 175, 181–82 (1977).   This well-established principle of law is reflected in Article VI, Section 6.2 the Regulations, which provides that:  “[i]t is the public policy of the Town of Litchfield, and the intent of these Regulations, that the degree of nonconformity in any nonconforming situations be eliminated, as quickly as possible.”  C.G.S. § 8–2 provides, in relevant part:  “Such regulations shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of the property owner to maintain that use.”   “Abandonment is a question of fact which implies a voluntary and intentional renunciation.   Nevertheless, the intent to abandon may be inferred as a fact from the circumstances.   The mere discontinuance of a use where there is no intent to abandon is not enough.   To establish abandonment, the intention on the part of the owner [must be] to relinquish permanently the nonconforming use.   Because the conclusion as to the intention of the landowner is an inference of fact, it is not reviewable unless it was one which the trier could not reasonably make.”  (Emphasis in the original;  internal quotation marks omitted;  citations omitted.)  Cummings v. Tripp, 204 Conn. 67, 93 (1987).

The plaintiffs argue the evidence shows that, following Buck Cropsey's death in 1993, there was little or no shooting on the property.   They argue that the evidence shows a “lack of any conduct to advance any organizational function” which is sufficient to evidence an intent to abandon the prior use.   In other words, as argued by the plaintiffs:  “the Cropsey family, as Buck Cropsey's successor-in-interest, voluntarily and intentionally abandoned any alleged use of the property as a gun club when it chose not to take affirmative steps to ensure its continuation.”

The plaintiffs are correct that there is abundant evidence in the record to support a finding that there was very little shooting on the property for about ten years after Buck Cropsey's death in 1993.   However, aside from this limited shooting activity, there is also very little evidence upon which the ZBA could have based a finding that the Cropsey family intended to abandon the non-conforming use.   Buck Cropsey's widow, Joyce Cropsey, provided the ZBA with an affidavit that from the death of her husband in 1993 until the spring of 2001, she, her sons, and her sons' friends and invited guests continued to engage in the same shooting activities and repaired, replaced and maintained the facilities for shooting activities.   She swore that at no time did she ever abandon or intend to abandon the shooting activities which had existed prior to the adoption of the Regulations.   She also states that since the spring of 2001 her friend, Nicholas Boyden has managed the gun club and that the activities now are of the same exact character and nature as those which had existed prior to the adoption of the Regulations.   As the trier of facts, the ZBA had the right to believe Mrs. Cropsey.   The fact that her affidavit testimony is contradicted by numerous neighbors is not sufficient reason for the court to intervene.   The ZBA, not the court, must weigh the evidence.

VI. CONCLUSION

For the reasons stated, the court finds that the ZBA's failure to reverse the decisions of the ZEO and the P & Z was not unreasonable, arbitrary or illegal, and is supported by substantial evidence in the Record.   Both appeals are hereby dismissed.

BY THE COURT,

John W. Pickard

Pickard, John W., J.