Eric Simonson et al. v. Zoning Board of Appeals of the Town of Darien et al. (2012)

MEMORANDUM OF DECISION

The principle issue before the court is whether the Zoning Board of Appeals of the Town of Darien made a de novo determination of the issues before it in rendering its September 15, 2010 decision.

The four individual parties are contiguous residential neighbors.   The plaintiffs, Eric Simonson and Barbara Simonson, owning and residing at 362 Hollow Tree Ridge Road, Darien, Connecticut have appealed from the September 15, 2010 decision of the Zoning Board of Appeals of the Town of Darien (ZBA), which denied the plaintiffs' appeal from a decision of the Darien zoning enforcement officer granting the application of the defendants, J. Willson Ropp and Adrienne Dreiss, for a zoning permit to allow the demolition of an existing residence and the construction of a new residence on their property at 364 Hollow Tree Ridge Road, Darien, Connecticut.   364 Hollow Tree Ridge Road contains a driveway right-of-way that runs across the plaintiffs' property.   Both properties are located in the R–2 zone requiring a minimum of two acres.   The property at 364 Hollow Tree Ridge Road, Darien, Connecticut contains 2.8557 acres and is improved with an existing single family residence along with typical residential site improvements.

Previous yard variances had been granted for the subject property.   The latest variances were granted in 2009.   The 2009 variances reduced the minimum side yard from 50 feet to 31.0 feet along the northerly property boundary and from 50 feet to 28.3 feet along the southwesterly property boundary.   The 2009 variances were not use variances nor did they vary any lot area, lot shape or lot size zoning requirements.   ROR 20.   The Simonsons appealed the 2009 variance decision of the Zoning Board of Appeals of the Town of Darien to the Superior Court, Judicial District of Stamford/Norwalk at Stamford, FST CV 10–6003073 S. The parties were represented by their current counsel of record in the Superior Court appeal.   The ZBA was also represented by its separate current counsel of record.   The respective parties are represented by these same attorneys in this current zoning appeal.   The variance appeal was briefed and tried.   A memorandum of decision was issued on May 6, 2011 dismissing the Simonsons' appeal from the variances.   Simonson et al. v. Zoning Board of Appeals of the Town of Darien et al., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. FST CV 10–6003074 S (May, 6, 2011, Jennings, J.T.R.).   No party filed an appeal from the May 6, 2011 court decision.   Judge Jennings did not have the additional 596 square feet before the court.

After the 2009 variance was issued by the ZBA the defendants, J. Willson Ropp and Adrienne Dreiss, acquired an additional 596 square feet of land from an adjacent neighbor, not the plaintiffs.   ROR 44, Survey dated February 4, 2010;  ROR 45, Quit Claim Deed recorded February 23, 2010.   That 596 square feet increased the size of the two-acre lot at 364 Hollow Tree Ridge Road from 124,394.29 square feet to 124,990.29 square feet;  an increase of .0047912 percent, less than one-half of one percent lot size increase.   ROR 35.   The 596 square feet addition did not decrease either of the two yards for which variances were granted in 2009.   While the underlying yard zoning variances were pending before the court, and after the defendants acquired the additional 596 square feet parcel, the defendants filed an application for the issuance of a zoning permit on April 13, 2010 using a preprinted form.   This zoning permit applied for a partial demolition and rebuilding of a new residence on an existing foundation at 364 Hollow Tree Ridge Road. The zoning permit was approved by David J. Keating, Zoning Enforcement Officer of the Town of Darien on May 11, 2010.   ROR 17;  ROR 30.   The 2009 yard variances were still under appeal.   That variance decision, Appeal # 39–2009, was noted in the zoning permit application.   On June 14, 2010 the plaintiffs, acting by their current counsel of record, appealed the issuance of that zoning permit to the ZBA. ROR 3 a), b), c), d) and e);  ROR 29.   This ZBA appeal referenced the two prior yard variances granted by the ZBA, # 67–1997 and # 39–2009.

The ZBA held a public hearing on September 15, 2010.   Counsel of record attended and presented documents and legal and factual arguments.   The individual defendants also presented documents and legal and factual arguments.   David Keating, the zoning enforcement officer of the Town of Darien, testified and offered substantial documentation.   ROR 16 through and including ROR 48.   At the conclusion of the public hearing the ZBA unanimously voted to deny the plaintiffs' appeal from the decision of the ZEO. This instant administrative appeal was filed by the plaintiffs' counsel of record returnable to the Superior Court on November 30, 2010.

Eric Simonson and Barbara Simonson own real property contiguous to the subject property.   The subject property is also served by a driveway that contains a right of way over the Simonson property.   The plaintiff, Eric Simonson, testified and was not cross-examined.   Certified deeds were offered into evidence.   The court finds that Eric Simonson and Barbara Simonson are and have been the owners of the adjacent piece of property consistently since 1991.   “Aggrieved person means a person aggrieved by a decision of a board ․ includes any person owning land that abuts or is within a radius of one hundred feet of any portion of land involved in the decision of the board.”   Gen.Stat. § 8–8(a)(1).   The court finds that the plaintiffs, Eric Simonson and Barbara Simonson, are aggrieved persons in regards to the September 15, 2010 ZBA decision.

Neither party claims that the respective appeals filed by the plaintiffs were either untimely or procedurally incorrect.   Counsel conceded on the record to this court that the respective appeals taken were timely and procedurally correct.   The court finds that the plaintiffs', Eric Simonsen and Barbara Simonsen, appeal from the May 11, 2010 zoning permit issued by David Keating, zoning enforcement officer of the Town of Darien, was timely and procedurally correct.   ROR 3. The court finds that the appeal taken from September 15, 2010 decision of the ZBA to the Superior Court by the plaintiffs, Eric Simonsen and Barbara Simonsen, was timely and procedurally correct.

The plaintiffs outline a number of factual and legal arguments for their respective positions that are contained in the following documents;  Zoning Board of Appeals Application Form Item K, (ROR 3 a);  Factual and legal arguments advanced by plaintiffs' counsel at the September 15, 2010 public hearing of the ZBA (ROR 50);  Factual and legal arguments stated in the plaintiffs' appeal to the Superior Court ¶ 14 (# 100.30);  and Legal and factual arguments made by the plaintiffs in their pretrial brief dated August 26, 2011 (# 111.00).

This instant appeal is from the decision of a zoning board of appeals concerning an appeal by the plaintiffs from a decision of the zoning enforcement officer of the Town of Darien, David Keating.  “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 any bylaw, ordinance or regulation adopted under the provisions of this chapter ․” Gen.Stat. § 8–6(a)(1).  “The conclusion that this scope of review applies upon judicial review is not undermined by the fact that, as in this case, the zoning agency was a zoning board of appeals reviewing the decision of a zoning enforcement officer in an appeal from that decision pursuant to General Statutes §§ 8–6 through 8–7b.   Although we have never precisely held it be so, it is clear from both the entire statutory scheme and our zoning case law that the zoning board hears and decides such an appeal de novo, and that the action of the zoning enforcement officer that is the subject of the appeal is entitled to no special deference by the court.”  Caserta v. Zoning Board of Appeals, 226 Conn. 80, 87–89 (1993).  “We conclude that, following 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.”  Id. 82;  Mountain Brook Association, Inc. v. Zoning Board of Appeals, 133 Conn.App. 359, 363–64 (2012).

Caserta involved an appeal that had been before the appellate courts on three previous appeals.   The Milford zoning enforcement officer issued a zoning permit to the plaintiffs, James Caserta, to make certain alterations to the plaintiff's building.   After the zoning enforcement officer revoked the permit, the plaintiff appealed the revocation to the zoning board of appeals.   Issues raised before the zoning board of appeals were whether the plaintiffs proposed use of the property was a continuation of a nonconforming use, whether the plaintiff had abandoned any nonconforming use and would the proposed use involve a change of use from a nonconforming use?   The zoning board of appeals denied the plaintiffs appeal.   The plaintiff appealed to the trial court from the zoning board of appeals' decision.   The trial court sustained the plaintiff's appeal ruling that the zoning enforcement officer had properly issued the permit, the permit had been illegally revoked and the zoning enforcement officer's determination that the nonconforming use had not been abandoned could have been reasonably reached by the zoning enforcement officer.  Id. 83–84.   The Supreme Court remanded with direction to the trial court to reverse its judgment sustaining the plaintiff's appeal on the basis that the trial court had yet to consider the validity of the zoning board of appeals' decision under the appropriate scope of review;  Did the zoning board of appeals conduct a de novo determination of the issue before it?

“The court, after a hearing thereon, may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from.   If a particular board action is required by law, the court, on sustaining the appeal, may render a judgment that modifies the board decision or orders the particular board action.”  Gen.Stat. § 8–8(1).

“In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, conclusions reached by the board must be upheld by the trial court if they are reasonably supported by the record ․ 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.”  Mountain Brook Association, Inc. v. Zoning Board of Appeals, supra, 133 Conn.App. 372.

“When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision ․ Rather, 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 authority was required to apply under the zoning regulations ․ The principle that a court should confine its review to the reasons given by a zoning agency ․ applies only where the agency has rendered a formal, official, collective statement of reasons for its action ․ It does not apply to mere utterances of individual members of the agency ․” Mountain Brook Association, Inc. v. Zoning Board of Appeals, supra, 133 Conn.App. 364.

Neither party has pointed to a formal, collective statement of the reasons of the ZBA in rendering its September 15, 2010 decision.   This court therefore must search the entire record to find the basis for the ZBA's decision.   Moon v. Zoning Board of Appeals, 291 Conn. 16, 25–26 (2009).

The plaintiff's October 5, 2010 court appeal alleges four reasons for their appeal:  “14.   In denying the plaintiffs' appeal, the Board acted illegally, arbitrarily, and in abuse of discretion in one or more of the following ways:

a.  The Board denied the appeal, even though the application for zoning permit and the plans submitted with the application failed to comply with the applicable provisions of the Darien Zoning Regulations;

b. The Board denied the appeal, even though certain variances that the Board has issued previously were not valid;

c. The Board failed to make any findings as to whether the applicants' plans complied with the applicable zoning regulations;  and

d. The record before the Board lacked substantial evidence to support the Board's decision.”

The court turns to issue 14.c. raised by the plaintiffs.  “In denying the plaintiffs' appeal, the Board acted illegally, arbitrarily, and in abuse of discretion in one or more of the following ways:  ․ c. The Board failed to make any findings as to whether the applicants' plans complied with the applicable zoning regulations.”   Plaintiffs' October 5, 2010 appeal ¶ 14c. (# 100.30.) The plaintiff's argue the following before this court:  “The transcript of the deliberations in this case reveals that the ZBA failed to undertake any analysis as to whether the new lot configuration affected the hardship that the Ropps asserted as the basis of their variance.  (ROR 50, pp. 25–30.)   Plainly, the ZBA rubber stamped the Zoning Enforcement Officers' issuance of the Zoning Permit without undertaking any de novo review, and without making any findings as whether the proposed plans complied with the applicable regulations.   Instead, the deliberations focused on the propriety of the issuance of the previous variances, rather than the priority of the issuance of the Zoning Permit (ROR 50, pp. 25–30).   The Simonsons did not raise the propriety of the previous variances during the hearing, and it was error for the ZBA to revisit those variances.”   Plaintiff's Pretrial Brief dated August 26, 2011, page 13 (# 111.00).

The ZBA # 50–210 record does not contain a formal, collective statement of the reasons for the denial.   ROR 49, Minutes and Resolution Calendar No. 50–2010.   The Minutes and Resolution are four pages in length in 20 numbered paragraphs some of which are a restatement of the evidence that was offered at the public hearing.   Paragraphs 16–20 contain statements by various ZBA members.  “Chuck DeLuca said he doesn't understand the applicant's argument and he failed to see the enlargement of the subject property as a significant change.   He also pointed out that the issues are before the Superior Court.   Al Tibbetts said that he agreed, and also noted that the applicants' administrative appeal has now taken place.   Anthony Simari noted that the owner's representatives said this was a ‘renovation.’   Al Tibbetts said he didn't hear a reason to overrule the Zoning Enforcement Officer's decision.   Upon a motion by Chuck Deluca, seconded by Al Tibbetts, the ZBA voted 5–0 to DENY above delineated appeal.”   The RESOLUTION states as follows:  “NOW THEREFORE, BE IT RESOLVED, that due to the lack of sufficient information provided, the Zoning Board of Appeals was unable to find that an error was made;  and ON SEPTEMBER 15, 2010 THE ZBA DENIED THE APPEAL UNDER SECTION 1122 OF THE DARIEN ZONING REGULATIONS AND SUSTAINED THE DECISION OF THE ZONING ENFORCEMENT OFFICER TO ISSUE A ZONING PERMIT FOR THE CONSTRUCTION OF A REPLACEMENT RESIDENCE.”   ROR 49.

The court has reviewed the entire record including the transcript of September 15, 2010 public hearing that contained the presentation of the lawyers for the two individual parties as well as the statements of David Keating, the zoning enforcement officer, as well as the questions asked by and statements made by ZBA members.   The deliberations occurred on September 15, 2010 immediately after the public hearing.   The deliberations were transcribed on pages 25 through 30 of the 31–page transcript.   ROR 50.

The court notes the following plaintiff's arguments contained in the September 15, 2010 transcript.   Attorney Maslan, arguing for the plaintiffs, stated that when the 596 square foot addition to the lot was changed, “it changes the analysis as to whether there's a hardship where this building should be located.”   ROR 50, page 3. It required that the side yard variance be an additional 50 feet due to the legal effect of Section 339f of the Darien Zoning Regulations, which requires that on lots created after March 4, 1960 the setback be increased by an additional 50 feet to a total of 100 feet.   Further for new lots created after March 4, 1960 Section 339g requires that the utilities serving the property be located underground.   ROR 51, page III–8. In essence the plaintiff's claimed before the ZBA that the additional 596 square feet addition to the existing lot created a new lot.   That new lot was a rear lot.   Since it was created after March 4, 1960 the lot now had to comply with two other requirements:  the 100–foot setback and underground utilities.   The plaintiffs argued that no application for a variance of the 100–foot setback had been applied for and no variance of the underground utility requirement had been applied for.   The plaintiffs argued that at the time the zoning permit was issued the property was not in conformity with the zoning regulations and not in conformity with the two side yard variances that had been previously obtained.   The plaintiff also noted an inconsistency in that the prior variance applications indicate the renovation of a house whereas the zoning permit application indicated a virtual replacement of the house.  “Partial demolition and rebuilding of new structure on existing foundations.”  (ROR 3b.)

The ZBA was required to make a de novo determination of the above issues and to state their formal collective reasons for its decision on the record.   Mountain Brook Association, Inc. v. Zoning Board of Appeals, supra, 133 Conn.App. 363–64.

To the plaintiffs' arguments, David Keating, the zoning enforcement officer testified before the ZBA:  “I must say I really don't understand these arguments that the permit was issued invalidly.”   ROR 50, page 20.   He noted that the original application stated a major renovation with a few parts being saved.   The zoning permit noted the prior variance applications and complied with the 2009 yard variance.  “So the semantics of whether we call it a substantial renovation or a replacement house 99 out of a 100 people when they see this would say it's a replacement house, because virtually what they see is going to be all new.”   ROR 50, page 21.

Mr. Keating also noted that there was a note on the site plan about a small parcel to be conveyed to be added to the two-acre parcel.   He noted that the additional land was slightly less than 600 square feet being added to an existing building lot that is over two acres in size.   No lot portion was being taken away.   Mr. Keating told the ZBA that the additional square feet was not reducing any setback requirements.   He stated:  “It's not a new building lot.   It's a slightly modified configuration of a building lot, but the building lot exists.   It has for many, many years prior to 1960.   The setback requirements are the same.   The argument that a 100–foot setback would be applicable is wrong because it is not a new building lot.   There's no more building lots created.   There's no additional building lots being created.   It is a slightly reconfigured parcel, but it's not a new building lot.   No utilities have to be—are required to be underground because it's not a new building lot, so I really don't understand these arguments about something that has to do with the driveway dispute between neighbors.”   ROR 50, page 22.

The deliberation portion of the meeting consisted of six pages of transcripts.  “Mr. Capellupo:  This is Hollow Tree Ridge Road and they're appealing—I believe they're appealing the zoning permit or are they appealing our ruling.   Mr. Williams:  Appealing the zoning permit, I think.   Mr. Tibbetts:  They're appealing Dave Keating's issuance to the zoning permit.   Mr. DeLuca:  I am not understanding this appeal.   Mr. Capellupo:  I'm not getting too much of the appeal.”   ROR 50, page 25.   The deliberations concluded with the following:  “Mr. Tibbetts:  So what they're saying that there needs to be underground utilities, that the acquisition of this 596 square feet constitutes creation of a new lot.   Mr. Capellupo:  I didn't buy that.   Mr. Simari:  I didn't buy that either.   Mr. Tibbetts:  Well, I don't buy either, I mean ․ Mr. Simari:  Well, it wasn't before us at the time.   Mr. Capellupo:  Okay. Mr. Tibbetts:  Yeah. Mr. DeLuca:  All right.   Mr. Tibbetts:  So, you are moving, Chuck?   Mr. DeLuca:  I'm moving to deny it.   Mr. Tibbetts:  I'll second it.   Mr. Capellupo:  All those in favor?   Unaminous.”  ROR 50, page 30.

The court having reviewed the entire record cannot find a formal reason for the 5–0 vote denying the plaintiffs' appeal from the zoning enforcement officer's issuance of the zoning permit.   The court has reviewed the entire record for the purpose of discovering the reason for the ZBA's September 15, 2010 denial of the plaintiff's appeal.

The court finds that from the statements of the individual members of the ZBA and the Minutes and the Resolution, the court concludes that the ZBA confirmed the decision of the zoning enforcement officer.   ROR 49;  ROR 50.   The ZBA conducted a review of the zoning enforcement officer's reasoning.   The ZBA did not conduct a de novo review of the legal and factual issues raised and a de novo determination of those issues.   An essential issue was whether the ZBA had sufficient evidence before it to determine that the additional 596 square feet created a new lot and if so, invoked Section 339f requiring a 100–foot side yard setback and Section 3 39g requiring utilities to be placed underground.   The ZBA had to independently determine those facts and not just rule on the propriety of the zoning enforcement officer's issuance of a zoning permit.   It also appears that the ZBA did not understand the plaintiff's application.   The record is replete with those admissions.

In accordance with Gen.Stat. § 8–8(1) the court sustains the plaintiffs' appeal and remands this matter to the Zoning Board of Appeals of the Town of Darien for the ZBA to render a de novo determination of the legal and factual issues before it in ZBA appeal # 50–2010, based on the record before it in ZBA appeal # 50–2010 and to furnish a formal collective statement of its reasons for those determinations.

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.