Hugh A. Schnip et ux v. Town of Sprague Planning and Zoning Commission et al. (2012)

MEMORANDUM OF DECISION

I.

Statement of the Appeal

By their complaint, Hugh A. Schnip and Wendy B. Schnip (hereinafter “plaintiffs”), appeal from their decision of the Planning and Zoning Commission of the town of Sprague (hereinafter “the Commission”) to grant the application of Noreen Foley and James T. Foley (hereinafter “defendants”) to conduct a home occupation under the provisions of the zoning regulations of the town of Sprague.

II.

Jurisdiction

General Statutes § 8–8(b) governs appeals from decisions of zoning commissions to the Superior Court.  “A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.”  (Internal quotation marks omitted.)  Cardoza v. Zoning Commission, 211 Conn. 78, 82 (1989).

a.

Aggrievement

“[P]leading and proof of aggrievement are prerequisites to a 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 (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 (2003).   A plaintiff may prove aggrievement by testimony at the time of trial;  Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308 (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 (2001).

Two broad yet distinct categories of aggrievement exist, classical and statutory.   Plaintiffs in their complaint have alleged both classical and statutory aggrievement.   Plaintiffs presented evidence only as to their claim of statutory aggrievement.

“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.”  (Internal quotation marks omitted.)  Moutinho v. Planning & Zoning Commission, supra, 278 Conn. 665.   The stand for statutory aggrievement in zoning appeals is set forth in General Statutes § 8–8(a)(1), which provides in relevant part:  “In the case of a decision by a ․ planning and zoning commission ․ ‘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.”

The evidence indicates that at all times relevant to these proceedings, plaintiffs were the owners of property which abuts the property which is the subject of this appeal.   It is therefore found that plaintiffs are statutorily aggrieved and have standing to prosecute this appeal.

b.

Timeliness and Service of Process

Pursuant to General Statutes § 8–8(b), “An appeal shall be commenced by service of process in accordance with sections (f) and (g) of this section within 15 days from the date that notice of the decision was published as required by the General Statutes ․”

Notice of the Commission's decision was published in the Norwich Bulletin on April 13, 2010.   This action was commenced by service of process on April 28, 2010.   It is therefore found that service of process was properly made and that this action was commenced within the time allowed by statute.

III.

Scope of Review

In deciding the issues presented by this appeal, the court is limited in its scope of review by statute and applicable case law.   Review of the decisions of local zoning authorities is limited to a determination, principally on the record before the Commission, whether the Commission abused the discretion vested in it.  Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 444 (1979);  Cybulski v. Planning & Zoning Commission, 43 Conn.App. 105, 110, cert. denied, 239 Conn. 949 (1996).   This court can sustain the appeal only upon a determination that the action taken by the Commission was unreasonable, arbitrary or illegal.   It must not substitute its judgment for that of the local Commission and must not disturb the decision of the Commission as long as honest judgment has been reasonably and fairly exercised.  Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995);  Raczkowski v. Zoning Commission, 53 Conn.App. 636, 644, 45 (1999).   Conclusions reached by the Commission must be upheld by the court if they are reasonably supported by the record.  Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 583 (1999).   The question on review of the Commission's action is not whether the court would have reached the same conclusion, but whether the record before the Commission supports the decision reached.  Id. Although the factual and discretionary determinations of the Commission must be given considerable weight, it is for the court to expound and apply governing principles of law.  Domestic Violence Services of Greater New Haven, Inc. v. FOIC, 47 Conn.App. 466, 470 (1998).   Plaintiffs bear the burden of proof to demonstrate that the Commission acted improperly.  Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206;  Raczkowski v. Zoning Commission, supra, 53 Conn.App. 640.

“When, as here, a zoning commission has not stated on the record the basis of its determination, the reviewing court must search the record to determine the basis for the commission's decision ․ A reviewing court may not substitute its own judgment for that of the commission.   The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached ․ The evidence, however, to support any such decision must be substantial ․ 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 ․” (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Clifford v. Planning & Zoning Commission, 280 Conn. 434, 452–53 (2006).

IV.

Factual Background

The record indicates that at its regular meeting of March 3, 2010 the Commission held a pre-application meeting with defendant Noreen Foley.   This consisted of a lengthy informal discussion concerning her desire to open a commercial petting zoo on property in the town of Sprague.

On April 7, 2010 the Commission received an application for a zoning permit filed by plaintiffs for property at 124 Pautipaug Hill Road. A proposed use of the land would be a petting farm.   The property was in the R–80 zoning district.

Plaintiffs' application was considered by the Commission at its regular meeting of April 7, 2010 as an application for a home occupation for a petting zoo.   At the meeting, defendant Noreen Foley stated that the proposed activity would be primarily for weekends between 10 a.m. and 6 p.m. by appointment.   It would involve birthday parties with a minimum of ten and a maximum of 20 children.   The animals would be little barn animals;  a miniature pig, miniature pony, a goat and other small animals and birds.   Picnic tables would be available.   A moonwalk would also be utilized.   This would be highly visible to the neighbors but would not be a permanent structure.   It could be put up and lowered as needed.   There would also be a possibility of a little paddle boat on an existing pond.

It was stated that there would be sufficient space for off-street parking.   After further discussion, the following motion was made and approved by the Commission:

[M]otion made to approve the home occupation of 124 Pautipaug Hill Road to include a petting zoo, host birthday parties, erection of non-permanent structures to include, but, not limited to, a moon-bounce, possible water activities with the operating hours of 10 a.m. through 6 p.m.

The Commission did not state on the record the specific reasons for granting the application.

The Commission's decision was duly published on April 13, 2010.   This appeal followed.

V.

Analysis

The zoning permit granted by the Commission at its meeting of April 7, 2010 was for a home occupation.   The home occupation approved included a petting zoo and other activities as stated by the Commission and included, but not limited to, a moon-bounce and possible water activities.

Section 6.1.2 of the Zoning Regulations states that home occupations are permitted by right in the R–80 rural zoning district in which defendant's property is located.   Home occupation is defined by section 2.1.27 as follows:

A use which is customarily and may properly be carried on for compensation within a dwelling or in another previously existing building located on the same lot with a dwelling which meets the requirements of Section 15.15 of these Regulations.

The definition requires that the home occupation meet with the requirements of Section 15.15 of the Regulations.   This section provides that no home occupation shall be allowed unless a home occupation permit is issued by the Commission.   The Section also allows the Commission to require a public hearing if deemed necessary.   In this case, it appears that the Commission did not deem that a public hearing would be necessary.  Section 15.15 also requires that home occupations meet certain requirements.   Those requirements applicable to the case at bar are:

15.15.1 It is clearly secondary to the use of the dwelling for dwelling purposes.

15.15.2 It does not change the residential character of the dwelling in any visible manner.

15.15.5 Equipment used in such occupation shall be customarily incidental to residential occupancy.

15.15.7 Except for fruit and vegetables grown on the premises, no other display or items related to the home occupation shall be visible off the premises.

15.15.8 If located in a dwelling, the total floor area occupied by such home occupation does not exceed 25% of the dwelling floor area above the basement.

15.15.9 If located in a previously existing accessory building on the same lot as the dwelling, the space occupied by such a home occupation may not exceed an area equivalent to the area allowed in Section 15.15.8 above.

In approving defendants' application the Commission was acting in its administrative capacity.   In reviewing the action of the Commission, the court is limited to determining whether the Commission correctly interpreted the applicable regulations and applied them with reasonable discretion to the facts of the case.   The Commission is endowed with liberal discretion and its action is subject review only to determine whether such action was unreasonable, arbitrary or illegal.  Clifford v. Planning and Zoning Commission, 280 Conn. 434, 451 (2006).

A review of the record indicates that in approving defendants' zoning permit to allow a home occupation the Commission failed to correctly interpret its regulations and apply them to the facts of the case.   The permit would allow a petting zoo involving small barnyard animals, a moon-bounce and water activities.   All of these activities would, of necessity, take place in the open and not within a dwelling or previously existing building.   Section 2.1.27 clearly requires that the home occupation be conducted within a dwelling or previously existing building.   Contrary to the Commission's argument, the provisions of Section 15.15 reinforce the language of Section 21.27 which require that a home occupation be conducted within a dwelling or previously existing building and not in the open.

Section 2.1.27 clearly requires that the home occupation be conducted within a dwelling or previously existing building.   This section also requires that the use be one that is customarily and properly carried on within the dwelling.   The activities allowed under the permit granted which include barnyard animals, a moon-bounce and water activities could not be considered uses customarily carried out within a dwelling or other existing building.

Section 2.1.27 clearly requires that the home occupation be conducted within a dwelling or a previously existing building.

Contrary to the Commission's argument, the provisions of Section 15.15 reinforce the requirement that the home occupation be conducted within a dwelling or previously existing building.   Sections 15.15.1, 15.15.2 and 15.15.8 all use the word “dwelling” indicating that the home occupation must be conducted within such a structure.   Section 15.15.9 covers the maximum area allowed in an existing accessory building as authorized by Section 21.27.   Section 15.15.7 requires that no items related to the home occupation except for fruits and vegetables be visible off the premises.   All of the items allowed under the home occupation permit granted by the Commission would be visible off the premises.

“A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found form the words employed in the ordinance ․ The words [employed] are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms.”   Evans v. Planning & Zoning Commission, 73 Conn.App. 647, 651–52 (2002).   When interpreting the ordinance, the court attempts to discern the intent of the legislative body as shown by the words of the regulation, applying common sense and assuming that a rational and reasonable result was intended.   Spero v. Zoning Board of Appeals, 217 Conn. 435, 441 (1991).   The Board has the authority to interpret the regulations and decide whether they apply to the situation.  Stern v. Zoning Board of Appeals, 14 Conn. 241, 245 (1953).   The court must decide whether the Board properly interpreted the regulations and applied them to the facts of the case.  Danseyar v. Zoning Board of Appeals, 164 Conn. 325, 327 (1973).

As above noted, the words employed in the regulations clearly indicate a legislative intent that a home occupation must be conducted within a dwelling or previously erected building and that the activity not be visible off premises.   The permit granted by the Commission would be in direct violation of the legislative intent expressed in the regulations.

VI

Conclusion

It must be found that in granting the home occupation permit in this case, the Commission failed to correctly interpret its regulations and properly apply them to the facts of the case.

Accordingly, the decision of the Commission granting the zoning permit for a home occupation to the defendants is reversed.

Purtill, JTR

Purtill, Joseph J., J.T.R.