LLC v. Berlin Planning & Zoning Commission (2012)

MEMORANDUM OF DECISION

The plaintiff, Race Hill Farm, a limited liability company, appeals from a final decision issued by the town of Berlin zoning board of appeals (the board) on June 28, 2011.   Pursuant to section XV(A)(1) of the Berlin zoning regulations, the plaintiff filed an application with the board to reverse a decision by the chief zoning enforcement officer (ZEO) denying a formal request for a certificate of zoning compliance.   The board voted to deny the application.   The plaintiff now appeals pursuant to General Statutes § 8–8.

The record shows as follows.   The plaintiff is the owner of real property in Berlin, Connecticut known as 398 Chamberlain Highway.¹  (Return of Record (ROR), Item 32, p. 1.) The property, zoned for residential use, has historically been permitted to operate as a garden supply center under a special use exception authorized by section XI(U) of the Berlin Zoning Regulations (the regulations).  Id., 6. Section II(B)(71) of the regulations defines a garden supply center as “[a]n agricultural and associated retail operation where the primary use is the propagation, growth, storage and/or sale of flowers, plants, shrubs, or trees” and specifies further that the “use may also include the sale of garden related merchandise ․” (ROR, Item 7.)

Upon purchasing the property, the plaintiff made an informal inquiry concerning the possible sale of pet food and accessories at the location, and was advised that the sale of such goods would likely fall beyond the scope of the special use exception.  (ROR, Items 1 and 2.) Section IV(A)(3) of the regulations provides that “where a proposed use is not clearly permitted nor clearly prohibited in a zoning district by these regulations, the [Planning and Zoning Commission] shall make a determination as to whether the proposed use is permitted in that district by right or by special permit, or is prohibited.”   (ROR, Item 34, p. 30.)   Accordingly, the inquiry was subsequently submitted to the planning and zoning commission (the P & Z) for an official interpretation of the relevant zoning regulations.  (ROR, Item 2.)

Section IV(A)(2) of the regulations declares that “any use not specifically permitted by right or by special permit in a zoning district by these regulations shall be deemed to be prohibited within such district.”  (ROR, Item 34, p. 30.)   Noting further that the proposed sale of pet-related products comprised too substantial a part of the business to be considered an ancillary use, and voicing concern over authorizing the establishment of a retail operation in a residential zone where not expressly permitted by the regulations (ROR, Item 7), the P & Z determined that the special use exception permitting the operation of a garden supply center in a residential zone did not authorize the sale of pet supplies and accessories at such locations.   (ROR, Item 32, p. 7.)

Pointing to a broad definition of agriculture contained within section XI(C) of the regulations, the plaintiff next alleged that the special use exception for garden centers authorized the sale of feed and grain for livestock as a non-primary use of the property.  (ROR, Item 8.) Arguing further that the sale of pet food and supplies would constitute a less intrusive use than the sale of livestock feed, the plaintiff submitted a formal application for a certificate of zoning compliance, proposing once more to operate the property as a garden supply center that, in addition to traditional garden supply center merchandise, also offered certain pet supplies for sale.  (ROR, Item 8.) Based upon the language of the regulations and relying heavily on the interpretation thereof issued by the P & Z, the chief ZEO denied the application.  (ROR, Item 9.) Pursuant to section XV(A)(1), the plaintiff then applied to the board, seeking reconsideration of the decision.  (ROR, Item 10.)   Following a public hearing on June 28, 2011, the ZBA voted four in favor, one opposed, to uphold the decision of the chief ZEO. (ROR, Item 32, p. 17.)   From the adverse determination of the board the plaintiff now appeals.²

“When ruling upon an application for a special permit, [the board] acts in an administrative capacity ․ [Its] function ․ [is] 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.”  Trumbull Falls, LLC v. Planning and Zoning Commission, 97 Conn.App. 17, 21, 902 A.2d 706 (2006).  “The trial court [has] to decide whether the board correctly interpreted the regulation and applied it with reasonable discretion to the facts.”  Minter v. Zoning Board of Appeals, 20 Conn.App. 302, 309, 566 A.2d 997 (1989).

The resolution of “zoning questions is to be left to the local authority, and ․ the courts cannot substitute their judgment for the liberal discretion enjoyed by zoning [officials].”  Zieky v. Planning and Zoning Commission, 151 Conn. 265, 267, 196 A.2d 758 (1963).  “As long as an honest judgment has been reasonably and fairly exercised by a zoning commission after full hearing, courts should be cautious about disturbing the commission's decision.”   Anastasiou v. Zoning Commission, 6 Conn.App. 278, 283, 505 A.2d 8 (1986).   “In applying the law to the facts of a particular case ․ [board] action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal.”  (Internal quotation marks omitted.)  Minter v. Zoning Board of Appeals, supra, 20 Conn.App. 309.  “[T]he burden is on the [plaintiff] to establish that the board has not acted fairly, with proper motives and for valid reasons.”  Manchester v. Zoning Board of Appeals, 18 Conn.App. 69, 73, 556 A.2d 1026 (1989).

“[T]here is no statutory requirement that a zoning commission state the reasons for its denial of an application.”  (Citations omitted.)  Zieky v. Plan and Zoning Commission, supra, 151 Conn. 267.  “In situations in which the zoning commission does state the reasons for its action, the question for the court to pass on is simply whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations.”   (Citations omitted.)  Id., 267–68.  “Where ․ the commission assigns no reason for its action, the court is left to surmise and conjecture as to what the reasons may be, unless the record discloses a reasonable basis for the action taken.   There is then cast on the court the burden, made necessary by the commission's omission, of searching the record to discover sufficient reason to support the decision under review.  Id., 268.   The determination of the board must be upheld if even one such reason is sufficient to support the action.   See Anastasiou v. Zoning Commission, supra, 6 Conn.App. 284.

“This case requires [the court] to interpret ․ the zoning regulations.   Because the interpretation of the regulations presents a question of law ․ review is plenary ․ Additionally, zoning regulations are local legislative enactments ․ and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes ․ Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended ․ The process of statutory interpretation involves the determination of the meaning of the statutory language [or ․ the relevant zoning regulation] as applied to the facts of the case, including the question of whether the language does so apply.”  (Internal quotation marks omitted.)  Trumbull Falls, LLC v. Planning and Zoning Commission, supra, 97 Conn.App. 21–22.

At the public hearing, the board recognized that pursuant to section IV(A)(3) of the regulations “the Planning and Zoning Commission has the ultimate authority to interpret whether or not a use is permitted.”  (ROR, Item 32, p. 15.)   The P & Z concluded that the special use exception authorizing the establishment of a garden supply center in an area zoned for residential use did not also authorize the sale of pet foods and accessories at such location.  Id. Noting that “[n]o one wants to see a vacant business, no one wants to see los[t] revenue, [and] no one wants to see a decline [of] the neighborhood ․” the board suggested that the plaintiff might be well advised to seek amendment of the Berlin Zoning Regulations by the P & Z. Id., 16.   Nevertheless, considering itself bound by the interpretation of the P & Z, the board voted four in favor, one opposed to uphold the decision of the chief ZEO denying the plaintiff a certificate of zoning compliance.  (ROR, Item 27.)

Section II(B)(71) of the regulations defines a garden supply center as “[a]n agricultural and associated retail operation where the primary use is the propagation, growth, storage and/or sale of flowers, plants, shrubs, or trees.”  (ROR, Item 34, p. 19.)   The plaintiff advocates for the adoption of an expansive definition of garden supply center by reference to the definition of agriculture contained within section XI(C) of the regulations.  (Plaintiff's Brief, pp. 4–5.)   Accordingly, the plaintiff insists that the garden supply center special use exception authorizes all agricultural uses, provided that the primary use remains the propagation, growth, storage and/or sale of flowers, plants, shrubs or trees.  Id., 5. The board, by upholding the decision of the ZEO on the basis of the interpretation of the regulations issued by the P & Z, has instead implicitly read section XI(U) of the regulations as standing alone and narrowly authorizing by special use permit the establishment within a residential zone of agricultural and associated retail operations exclusively involving the propagation, growth, storage and/or sale of flowers, plants, shrubs or trees.  (Defendant's Trial Memorandum, pp. 7–11.)

The interpretation of the relevant zoning regulations implicitly adopted by the board is no less viable than the alternative proposed by the plaintiff, and therefore entitled to considerable deference.   Furthermore, the plaintiff has failed to demonstrate that the board acted unreasonably, arbitrarily, illegally or in abuse of its discretion.   Accordingly, the appeal is dismissed.

Henry S. Cohn, Judge

FOOTNOTES

FN1. As the owner of the property, the plaintiff has been classically aggrieved by the decision of the board to uphold the decision of the chief zoning enforcement officer denying an application for a certificate of zoning compliance..  FN1. As the owner of the property, the plaintiff has been classically aggrieved by the decision of the board to uphold the decision of the chief zoning enforcement officer denying an application for a certificate of zoning compliance.

FN2. Where a proposed use is not clearly prohibited or clearly permitted by the statute, section IV(A)(3) of the Berlin Zoning Regulations expressly vests within the planning and zoning commission exclusive authority to determine whether the proposed use is permitted by right, permitted by special permit, or prohibited.   An appeal may well have been taken from the ruling of the planning and zoning commission rather than from the subsequent decision of the zoning board of appeals.   Both parties have however agreed to waive the procedural issue..  FN2. Where a proposed use is not clearly prohibited or clearly permitted by the statute, section IV(A)(3) of the Berlin Zoning Regulations expressly vests within the planning and zoning commission exclusive authority to determine whether the proposed use is permitted by right, permitted by special permit, or prohibited.   An appeal may well have been taken from the ruling of the planning and zoning commission rather than from the subsequent decision of the zoning board of appeals.   Both parties have however agreed to waive the procedural issue.

Cohn, Henry S., J.