III v. Hartland Zoning Board of Appeals (2013)

MEMORANDUM OF DECISION

This decision will resolve two consolidated appeals brought by the plaintiff, Frank S. Kawa, III, the owner of land in the Town of Hartland, Connecticut.   The plaintiff appeals from decisions of the defendant, Hartland Zoning Board of Appeals (“ZBA”), affirming orders of the Hartland Zoning Enforcement Officer (“ZEO”) that he cease and desist from certain operations on his property in connection with a firewood business.   The plaintiff argues that he is using his property as a farm for agricultural or forestry purposes in accordance with the Hartland Zoning Regulations (“Regulations”).   The parties filed briefs and engaged in oral argument on April 4, 2013.

I. Aggrievement

The plaintiff is the applicant and the owner of the property which is the subject of this appeal.   He is statutorily aggrieved.  C.G.S. § 8–8(a)(1).   As such, he may appeal to the Superior Court.  C.G.S. § 8–8(b);  see Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991).

II. Standard of Review

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 ZBA acts administratively in a quasi-judicial capacity in applying the regulations in an appeal from an order of the zoning enforcement officer.  Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 514, 264 A.2d 552 (1969).

“[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).  “[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 Board 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 quotation marks omitted.)  Blaker v. Planning & Zoning Commission, 219 Conn. 139, 146, 592 A.2d 155 (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, 778 A.2d 61 (2001).

III. Procedural History and Facts

The facts of this case as revealed by the Record are not in dispute.   The plaintiff's property consists of 50 acres of land at 265 Center Street in West Hartland.   It is located in an R–1 zone.  Article IV–1–3 of the Regulations states that permissible uses of residential property include the following:  “Agriculture, forestry, truck or nursery gardening, including greenhouses incidental thereto, and raising of livestock and poultry provided that ․ such uses for commercial purposes shall be limited to a farm as defined in 1–3.   In section 1–3 of the Regulations, “farm” is defined as “a tract or land containing 5 acres of more, used in part or wholly for agricultural purposes, which may include the raising and keeping of domestic or other animals.”

Aside from a residence and an outbuilding, the majority of the plaintiff's land is wooded.   The plaintiff has had a licensed Connecticut Forest Practitioner prepare a forest management plan to meet the plaintiff's objective “[t]o enhance outdoor recreational opportunities, wildlife habitat enhancement, and overall improvement of forest health.”   The plaintiff claims that he harvests trees in accordance with the forest management plan and then cuts and splits the timber into firewood which he sells to his neighbors.   In addition, he supplements his own harvest with timber from offsite and brings it to his property to be cut, split and sold.   The record does not reflect how much of the firewood sold by the plaintiff comes from each source.

On July 20, 2011, the ZEO issued a cease and desist order to the plaintiff stating, in part:  “You are in violation of the Hartland Planning and Zoning Regulations regarding the operation of a firewood business.   On June 20, 2011, the Planning and Zoning Commission concurred with my assessment of this business and agreed business must stop immediately.”   The plaintiff filed a timely appeal to the ZBA. The ZBA affirmed the decision of the ZEO stating, in part:  “Firewood that is processed and sold for commercial purposes is prohibited by the Hartland Zoning Regulations, inclusive but not limited to Section IV (Uses Regulations).   Further affirmed in this decision was to prohibit the use of commercial equipment present at 265 Center Street, West Hartland, CT in the processing and sale of firewood for commercial purposes.”   The plaintiff filed a timely appeal of that decision to this court.   That appeal is Docket No. LLI–CV–11–6005571–S (“first appeal”) which is part of this consolidated appeal.

On October 17, 2011, the ZEO issued the plaintiff a second cease and desist order which is essentially the same as the first cease and desist order but adds the requirement that the plaintiff remove from his property all materials and equipment used in connection with his firewood business including a saw, a splitting rig, a fuel storage tank, any commercial motor vehicles used in the business and a stockpile of logs.   The plaintiff filed another timely appeal to the ZBA. The ZBA heard the matter and issued a decision affirming and modifying the second cease and desist order as follows:  “Firewood that is processed and sold for commercial purposes is prohibited by the Hartland Zoning Regulations;  inclusive but not limited to Section IV (Uses Regulation).   Further affirmed in this decision was to immediately cease and desist from importing of logs and the processing and sale of firewood and products on a commercial scale in a residential zone at 265 Center Street, West Hartland, CT.” The plaintiff filed a timely appeal of this decision to the Superior Court.   That appeal is the second part of this consolidated appeal.  (“Second appeal.”)

Although the second decision of the ZBA is not a model of lucidity, the ZBA has clarified the decision in its brief in this case.   The plaintiff is not prohibited from harvesting wood on his own property for processing and sale as firewood to third parties.   The plaintiff is not required to remove his logging and splitting equipment from his property.   The plaintiff is only prohibited from importing logs from off-site for processing and sale.   It is unclear from the record whether the ZBA's current position is a true clarification of the original order or a strategic retreat from an untenable position.

V. Discussion

The issue before the court involves construction of the provisions of the Regulations.  “Under our well established standard of review, [w]e have recognized that [a]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts ․ 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 ․ We have determined, therefore, that ․ deference ․ to an agency's interpretation of a statutory term is unwarranted when the construction of a statute ․ has not previously been subjected to judicial scrutiny [or to] ․ a governmental agency's time-tested interpretation ․ The zoning regulation at issue in the present case has not previously been subjected to judicial scrutiny.   Moreover, the board did not indicate that it had applied a time-tested interpretation of the regulation.   Accordingly, we do not defer to the board's construction and exercise plenary review in accordance with our well established rules of statutory construction ․ Resolution of this issue requires us to review the relevant town regulations.   Because the interpretation of the regulations presents a question of law, our review is plenary ․ We also recognize that the zoning regulations are local legislative enactments ․ and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes ․ Whenever possible, the language of zoning regulations will be construed so that no clause is deemed superfluous, void or insignificant ․ The regulations must be interpreted so as to reconcile their provisions and make them operative so far as possible ․ When more than one construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results.”  (Citations omitted;  internal quotation marks omitted.)  Heim v. Zoning Board of Appeals, 289 Conn. 709, 714–16, 960 A.2d 1018 (2008).

The plaintiff's position is that his property is a farm and that he has the right to engage in commercial agriculture or forestry on his farm.   The plaintiff's argument was better suited to the first appeal and the original position of the ZEO and the ZBA, i.e., that the plaintiff could not engage in the commercial sale of firewood from his property even if the logs were grown on his own land.   The first appeal addresses this issue directly.   But, it is clear that the position of the ZBA has undergone an evolution.   Now that the ZBA has backed off from its original position that all commercial sale of firewood is prohibited, the plaintiff has difficulty adapting his argument to address the ZBA's modified stance as reflected in the second appeal.   The plaintiff is required to argue that it is still farming if the trees are not grown on the farm, are not used to improve the soil, and are not incorporated into a product grown on the farm.   The only connection which the logs have to the farm is that they are cut and split there.

The plaintiff relies upon Reed v. Zoning Board of Appeals, Superior Court, judicial district of Hartford, Docket No. CV 97 0572091 (March 4, 1999, Maloney, J.).  (24 Conn. L. Rptr. 186).   The plaintiff in that case owned and operated a farm, a permissible use in the zone in which her land was located.  Id. To enhance the volume and quality of the topsoil, the plaintiff imported tree stumps, topsoil, woodchips and bark mulch from off-site, ground the wood products and mixed these materials into the soil.  Id. The zoning enforcement officer took the position that the importing and grinding of stumps was not a farming use and ordered that the plaintiff cease and desist.  Id. The zoning board of appeals agreed.  Id. Upon appeal to the court, Judge Maloney agreed with the plaintiff that the stump grinding operations were for the purpose of cultivating the soil on her farm and that there is nothing in the statutes, case law or the town's regulations which would transform this agricultural activity into a prohibited activity merely because the plaintiff obtained the raw materials from outside the boundaries of the property in question.  Id. Therefore, the court determined that the plaintiff was engaged in a farm use and that the appeal must be sustained.   Id.

In the present case, the plaintiff argues that, based upon the reasoning of Reed, “there is no logical reason why the importation of logs could be deemed to convert his operations from farming into something that is not farming.”   But, this argument is weak because the facts of Reed are distinguishable from those in this case.   Cultivating the soil for planting is an important part of farming.   In Reed, the stumps imported to the property remained on the property.   But the importation of logs for processing and sale is different in that the logs are not used as fertilizer and are not incorporated into a legitimate farm product;  they are merely processed and shipped off the property.   This is more similar to a commercial saw mill than a farm.

The case cited by the ZBA in support of its position, McDonnell v. Falco, Superior Court, judicial district of Fairfield, Docket No. CV 98 0350831 (October 13, 1999, Gormley, J.) is a better precedent than Reed. Although the procedural setting of that case is quite different, and the wording of the applicable zoning regulation is different, the court's reasoning is directly applicable.   The defendant owned property where he cut timber for sale as firewood or mulch;  but, 80% of the logs that the defendant split for firewood or ground into mulch were brought to his property from off-site.  Id. Judge Gormely stated:  “Based on the facts, the regulations and the law, the court finds that the defendant's present commercial use of his property in the processing of wood for firewood and mulch as it relates to the 80 percent of his raw materials brought in from off premises is in violation of the Easton zoning regulations.   In other words it is in violation of those regulations to bring trees and logs onto the defendant's premises from outside sources, process them into firewood and mulch, store them on his property and sell them later.   The defendant has never received any special permit, permission or variance for that operation.   Obviously, he may process any wood grown on his premises for sale to customers.”  Id. I agree with the reasoning of the McDonnell case.

The court agrees with the plaintiff that there is no question that the plaintiff has a farm within the meaning of Article 1–3 of the Regulations and that, pursuant to Article IV–1–3 of the Regulations, he is permitted to engage in agriculture or forestry for commercial purposes on his farm.   The court also agrees with the plaintiff that, as the facts of this case are not in dispute, the issue is the interpretation and application of the Regulations.   Finally, the court agrees with the plaintiff that this court's review of the ZBA's interpretation and application of the Regulations is plenary.

The words “agriculture” and “forestry” have plain meanings.   Webster's Third New International Dictionary defines agriculture as “the science or art of cultivating the soil, harvesting crops, and raising livestock;  the science or art of the production of plants and animals useful to man in varying degrees the preparation of these products for man's use and their disposal (as by marketing).”   Forestry is defined as “the science of developing, caring for, or cultivating forests;  the management of growing timber.”   The plaintiff is engaged in agriculture and forestry when he develops, manages, harvests and sells his own timber.   But bringing timber from offsite for cutting and splitting is neither agriculture nor forestry as it relates to the use of his property.   The plaintiff urges the court to refer to the very lengthy definition of “agriculture” and “farm” contained in C.G.S. § 1–1(q).  This definition is to be used in the construction of state statutes but it does not vary in any significant way from the plain meanings of these terms.

For the reasons given, the court finds that the ZBA did not act unreasonably, arbitrarily or in abuse of its discretion in affirming the order of the ZEO that the plaintiff cease and desist from the practice of bringing logs to his property from off-site for cutting, splitting and sale.   The second appeal (Docket No. CV 12 6006464) is dismissed.   The first appeal (Docket No. CV 11 6005571) is sustained because the cease and desist is over-broad;  it seeks to prevent the plaintiff from conducting a firewood business on his property even if the wood is harvested on the plaintiff's property.

BY THE COURT,

John W. Pickard

Pickard, John W., J.