LLC v. Zoning Board of Appeals of the Town of Sterling (2013)

MEMORANDUM OF DECISION

Plaintiff appeals on both substantive and procedural grounds from a September 7, 2010, decision of the town's zoning board of appeals.   The ZBA had denied plaintiff's appeal from an adverse determination made by the town's zoning enforcement officer.   For reasons set forth herein, the appeal must be dismissed.

I. Aggrievement

From January of 2010 to the present, plaintiff has been the owner of the land involved in this action.   See, Exhibit 1. The court finds that it is aggrieved by the actions of the defendant.  Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674 (2001).

II. History of Land and Applicable Regulatory Provisions

A. Land Involved

The focus of this appeal is a tract of land consisting of 22.3 acres, more or less, on the northerly side of State Route 14 in the town of Sterling.   Plaintiff acquired title to this parcel in 2010.   The record is unclear as to the prior chain of title.   In 2005, however, whether acting as principal or agent, an individual named David Dupont proposed the construction of an eleven-unit private planned development to be known as “Heritage Estates” on the site.   The eleven units were to be separate-standing condominium residences, each served by its own septic system and leachfield, but sharing a common drive from Route 14 and having a mutual interest in the majority of the land included in the total parcel.

Between 2005 and 2010, pursuant to a schedule which the record does not make clear, Dupont or others did blasting for the driveway and installed drainage culverts.   The various and sundry tasks now evident on the ground are claimed to reflect an investment of approximately $75,000.¹  There is no evidence that any building foundations were ever commenced, nor that plaintiff has made any substantial additional investment in improvements to the land since its 2010 acquisition.

B. Regulatory Provisions

Between 2005 and 2010, the land was subject to three distinct local regulatory schemes.   The first two of these were “local land use ordinances” enacted pursuant to the authority of Conn. Gen.Stat. Sec. 8–17a.  (Exhibits 6 and 7, respectively adopted on July 23, 2004, and November 18, 2006.) ²  It is clear and undisputed that the Dupont proposal was compliant with the provisions of the ordinance that was in effect in 2005, but nonconforming under the ordinance that the town adopted in 2006.   Notwithstanding that nonconformity, the board of selectmen, which was charged with enforcement of each rendition of the ordinance, voted in 2007 to allow continuance of the Dupont project in consideration of the investment that the owner had made in the project prior to that date.   The Inland Wetlands and Watercourses Commission of the town had also approved the project, and thus on July 27, 2007, Dupont filed in the office of the town clerk a ten-page series of plans (Exhibit 5) bearing the approval of both the selectmen and the IWWC.

In 2009, the town adopted the third mechanism for land use regulation applicable to this parcel, specifically a zoning ordinance under the authority of Conn. Gen.Stat. Secs. 8–1 et seq.   This ordinance and the regulations adopted by the town's zoning commission on September 10, 2009 (Exhibit 8) remain in effect.   Those regulations do not permit a condominium proposal such as that which Dupont and the two boards contemplated.

III. Discussion

Plaintiff argues that any one of three separate claims warrant this court's sustaining its appeal.

A. Is Sterling estopped from prohibiting the fulfillment of plaintiff's plans?

Prior to the 2010 purchase of the subject premises, plaintiff's agent was aware that the 2009 zoning regulations disallowed a condominium project of this nature.   In plaintiff's eyes, however, certain behavior on the part of town officials render it now inequitable to allow the town to enforce that ban.

Both parties have thoroughly briefed the topic of municipal estoppel in this domain.   Both rely upon largely the same set of appellate authorities, albeit with differing interpretations of what those authorities stand for.   These cases include Fairlawns Cemetery Assn., Inc. v. Zoning Comm., 138 Conn. 434 (1952);  Dornfried v. October Twenty–Four, Inc., 230 Conn. 622 (1994);  Bauer v. Waste Mgmt. of Conn., Inc., 234 Conn. 221 (1995);  Cortese v. Planning & Zoning Bd. of Appeals, 274 Conn. 411 (2005);  Levine v. Town of Sterling, 300 Conn. 521 (2011);  and Crisman v. Zoning Bd. of Appeals, 137 Conn.App. 61 (2012);  as well as the superior court decisions of Iovanna v. Zoning Bd. of Appeals, 2008 Conn.Super. LEXIS 2058 (Aug. 7, 2008;  Hendel, J.T.R.), and Mercieri v. Zoning Bd. of Appeals, 1996 Conn.Super. LEXIS 642 (March 11, 1996;  Rubinow, J.).

Even the earliest cases establish that estoppel is an extraordinary interdiction of a town's efforts to enforce its zoning regulations.  “There are two essential elements to an estoppel—the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief;  and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done;  Pet Car Products, Inc. v. Barnett, 150 Conn. 42 (1962).   The same case informs that “․ it is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge,” 150 C. 42, 54.   This court must hold an evidentiary hearing to determine this issue, Bloom v. Zoning Board of Appeals, 233 Conn. 198 (1999), and it has done so.

The Levine case repeats an oft-quoted summary of the factors allowing a court to apply this doctrine to a town's efforts:

The standards governing the application of equitable estoppel are well established.   In order for a court to invoke municipal estoppel, the aggrieved party must establish that:  (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief;  (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge;  (3) the party had changed its position in reliance on those facts;  and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents ․

300 Conn. 521, 534–35.

Plaintiff has proven to this court's satisfaction that the town's board of selectmen did approve this project in 2005 under the then-applicable regulations, that the same board ratified that approval in 2007, that plaintiff's predecessors in title filed plans in the town clerk's office consistent with those approvals in 2007, and that they thereafter made infrastructure improvements valued at about $75,000 in reliance upon the legal status conferred by the actions of the selectmen.   While these may be necessary details to support a claim of estoppel, they are not alone or together sufficient to do so.

Plaintiff purchased this tract in early 2010, and had begun to scrutinize the parcel's potential in late 2009.   Plaintiff offered no evidence that any member of town government made any direct representations to its agents in that time frame indicating that the 2007 status of the property remained unaltered by the town's adoption of the 2009 zoning ordinance or regulations.   To the contrary, on December 23, 2009, the town's attorney emailed plaintiff's attorney his opinion (Exhibit B) that “the situation is much different today ․ I cannot, at this time, recommend to the Planning and Zoning Commission that it overlook its new zoning regulations and allow the current or future landowner to proceed with a project that ceased to be in compliance with Sterling's land use ordinance in January of 2006.”   At the August 3, 2010 public hearing on its appeal from the ZEO's determination that its project was nonconforming and would not be permitted, plaintiff's counsel acknowledged that the ZEO had in fact communicated that disapproval prior to purchase, and that the town attorney had indicated that the earlier actions of the selectmen did not protect plaintiff from the new zoning ordinance;  Return, page 4. Plaintiff chose to ignore these “checkered flags” and proceed with the purchase.   When the Commission and its enforcement agent agreed with the town attorney's analysis, this lawsuit ensued.

Of the authorities cited at the beginning of this subsection, the Dornfried, Cortese, Levine, Mercieri and Iovanna decisions were all exclusively or principally decided on the basis of whether or not the loss suffered by the landowner was or was not “substantial.”   For the purpose of the present argument, this court is assuming that the plaintiff's predecessor's $75,000 was substantial in proportion to the scale of his proposed project.   Thus none of these cases is particularly on point with respect to what this court considers to be the pivotal issues here, namely, whether plaintiff acted with due diligence in ascertaining the true state of affairs or altered its position in reliance upon inaccurate or misleading statements by town officials authorized to make such statements.

The Fairlawns Cemetery case treats the estoppel argument raised by the plaintiff in a fairly curt fashion, almost for the sake of argument alone.   Noting that “the present developers” had no basis for relying upon any statement to them by town officials, the Court concluded that “[u]nder such circumstances no estoppel could arise against the town.”   138 Conn. 434, 442.   In Waste Management, the property owner's actual knowledge of the town's plan to amend its regulations in a manner affecting that owner's project trumped its contention that the silence of town officials aware of its project and its conduct estopped those officials from subsequent efforts to enforce the new regulations;  such a claim, the Court held, “is simply untenable”;  234 Conn. 221, 248.   While in Crisman an Appellate Court panel did affirm a trial court decision barring a town's enforcement efforts on the basis of estoppel, it is notable that the landowner in that case had obtained the approval of his project directly from the appropriate zoning enforcement officer, and had, thereafter, made substantial expenditures in fulfillment of that project prior to the planning and zoning commission's determination that his project ought not to have been approved.

In its brief plaintiff cites three additional trial level decisions in support of its position.   State court judges authored two of these:  Osterberg v. Seymour Zoning Board of Appeals, 1990 Conn.Super LEXIS 830 (November 15, 1990;  Fuller, J.) [3 Conn. L. Rptr. 538], and Phoenix Soil, LLC v. Zoning Board of Appeals of Waterbury, 2009 Conn.Super LEXIS 830 (March 26, 2009;  Cremins, J.).   In each of these cases estoppel was decreed, but in each case this was done in favor of a property owner who had relied upon the appropriate municipal official before undertaking alterations to the land involved, and in each case the improvements had been essentially completed before the enforcement phase commenced.   Plaintiff's third case, Holt v. Town of Stonington, 2010 U.S. Dist LEXIS 62964 (June 23, 2010;  Hall, J.) is a federal court ruling denying a motion to dismiss which had claimed a pleading insufficiency;  the posture of the case before this court is completely distinct, and the holding not of any precedential value in this instance.

This court takes no issue with the articulation of the law or the result in Crisman or any of the other authorities cited by plaintiff, but notes that all are factually quite distinct from that at bar.   Critically, the Crisman opinion notes, municipal estoppel claims are “inherently fact bound”;  137 Conn.App. 61, 69.   Unlike other litigants who have succeeded in claims of municipal estoppel, Sterling Trails purchased its tract not in reliance upon but in defiance of current information as to the regulatory status of that tract.   Proof of reliance is an elementary principle of estoppel law;  Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344 (1976);  and here it is missing.   Furthermore, proof of allowable expenditures beyond the purchase price in claimed reliance upon anything said by a Sterling official is also essential, and also missing;  A & F Construction Co, Inc., v. Zoning Board of Appeals of West Haven, 60 Conn.App. 273 (2000).   In short, plaintiff has not made out a prima facie case warranting this court deciding in its favor and against the town on this basis.

B. Does plaintiff's project qualify as a nonconforming use exempt from the prohibitions of the current regulations?

Alternatively, plaintiff argues that the land it bought was vested for use as a condominium site, and that such a use ought to be permitted regardless of any representations made to it by the town's officials.   Clearly, when a parcel is in “actual use” for a particular purpose, that use excuses its nonconformity and will be allowed to continue;  Fairlawns Cemetery, supra.   Equally clearly, when a use is merely “contemplated,” its nonconformity in the face of new regulations is fatal to the actualization of the contemplated use;  Sherman–Colonial Realty Corporation v. Goldsmith, 155 Conn. 175 (1967).

The sometimes difficult task when scrutinizing a project which lies in media res, as does plaintiff's Sterling proposal, is to determine whether the glass is “half empty” or “half full.”   This court has not discovered a bright-line test to assist a factfinder in all such cases.   Though made many years ago, the court finds still accurate the observations that “neither the extent, quantity, nor quality of the use ․ but only that it must exist [matters]”;  that “neither the act, the ordinance, nor the law generally requires the court to speculate as to the number of acts or business transactions necessary to constitute an existing use”;  and that “ ‘existing use’ should mean the utilization of the premises so that they may be known in the neighborhood as being employed for a given purpose”;  DeFelice v. Zoning Board of Appeals, 130 Conn. 156, 161 (1943).   Even though these observations still ring true, they demonstrate that the standards upon which to determine nonconformity in a given instance may yet remain elusive.

It bears noting that this court does not consider this question in a vacuum.   The court acts in review of a determination made in the first instance by the town's zoning board of appeals.   Our Supreme Court has indicated that “[t]he statutory procedure reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board's judgment”;  Greenwich v. Kristol, 180 Conn. 575 (1980).   What this court must do is to determine whether the board's act was arbitrary, illegal or an abuse of discretion;  Wood v. Zoning Bd. of Appeals of the Town of Somers, 258 Conn. 691, 697 (2001);  and the board's factual and discretionary determinations are to be accorded considerable weight.  Wood reminds us that with respect to a claim of nonconforming use, such as is involved here, a court is not permitted to substitute its judgment for that of the board or to make factual determinations on its own.   The question, therefore, is whether the ZBA's conclusions here were supported by the evidence that was before it.

Plaintiff, in its brief, claims the benefit of the Fairlawns Cemetery and Sherman–Colonial Realty Corp. cases, supra, as well as that of the cases of Town of Wallingford v. Roberts, 145 Conn. 682 (1958), Town of Lebanon v. Woods, 153 Conn. 182 (1965), and Johnson v. Bd. of Zoning Appeals, 35 Conn.App. 820 (1994).   This is curious in that not one of these cases ended with a court finding that an owner's property had properly qualified as a prior nonconforming use and was thus beyond reach of subsequent changes in zoning regulations.   Thus in Fairlawns Cemetery, the owner's dilemma was that there was no cemetery to be found when zoning became operative.   In Sherman–Colonial, all that a proponent of subdivision nonconformity in the face of subsequent amendments could point to was his having filed an earlier map with the town clerk;  crucially, no sale of lots or other implementation of that plan had occurred before those amendments.   The defendant in Wallingford unsuccessfully attempted to beat trailer park regulations by moving a handful of trailers onto his property on the eve of those regulations taking effect, but was thwarted by the court's holding that to be properly deemed nonconforming a use had to be so utilized and known in the neighborhood before the law changed.  Lebanon 's increase in minimum-lot sizes was deemed applicable to future development of a subdivision notwithstanding the developer's having done “substantial work ․ on the roads, water system and storm sewers,” which might have to be abandoned if the subdivision were reconfigured.³  Finally, Johnson sustained the denial of a zoning compliance certificate to an owner whose previously compliant lot had been approved by the board of selectmen, but which no longer complied with dimensional standards embodied in subsequent regulations administered by the planning commission, as the owner had not irrevocably committed that lot to actual subdivision before the regulations became effective.

This court also weighed plaintiff's claims in light of Helicopter Associates, Inc. v. City of Stamford, 201 Conn. 700 (1986), which is a case presenting a more recent attempt than Defelice to outline what is meant by the “known in the neighborhood” aspect of a nonconforming use.   At page 713, the Court pointed out that “[f]or there to be an existing use, premises must be so utilized as to be known in the neighborhood as employed for a given purpose.   Such utilization combines two factors:  (1) the adaptability of the land for the purpose;  (2) the employment of it within that purpose.   In addition, the use must be actual and not merely contemplated.”   For the moment, the adaptability of the Sterling Trails property to its planned use may be presumed.   With respect to the second prong of the Helicopter Associates test, however, the court cannot find fault with the ZBA's conclusions here.   Helicopter Associates yielded a victory for the property owner which sought approval of a helicopter landing site on its property.   Noting that the site had been paved and painted for that purpose, and, most significantly, that several flights had occurred before popular opinion apparently prompted a change in the local regulations, the Supreme Court reversed a trial court finding that such flights had simply been too casual to constitute a prior nonconforming use.   Here, the record indicates that the Sterling Trails property has not been so demonstrably employed, and thus plaintiff's claims differ both in kind and degree from those in Helicopter Associates.   This court therefore does not find the directives of that case to be applicable here.

In short, plaintiff fails to cite a single case ⁴ supporting its contention that its land here showed “irrevocable commitment” to plaintiff's intended project as of the time zoning came into being in Sterling.   Plaintiff has not established that the ZBA's conclusions on this score were arbitrary, illegal, or an abuse of its discretion.   Accordingly, the court cannot sustain its appeal on this basis, either.

C. Was the public hearing on its appeal before the ZBA tainted by illegal ex parte communications?

There is no dispute that the ZBA held a public hearing on plaintiff's appeal on August 3, 2010, that the principal witnesses who spoke at the hearing were plaintiff's agent and attorney, or that the hearing was closed before the end of that evening.   Record, pages 3–8.   Later, on September 7, the board discussed the appeal and voted to deny it.   Record, pages 20–22.   Plaintiff now maintains that the September vote was tainted by ex parte communications to the board, because specifically, as claimed in plaintiff's brief:  1) members of the Board had multiple communications with the ZEO about Sterling Trails' appeal after the public hearing was closed;  2) the ZEO presented new evidence to the Board to which Sterling Trails was given no opportunity to respond;  3) such evidence was relied upon in the Board's decision to deny Sterling Trails' appeal;  and 4) the impermissible communications between the Board and the ZEO were substantially prejudicial to Sterling Trails.

There can also be no dispute that parties appearing before a local zoning board of appeals are entitled to procedures that comport with our notions of natural justice, including an expectation that when a public hearing is officially closed, the deliberative body does not thereafter receive evidence potentially prejudicial to its application;  Wadell v. Zoning Board of Appeals of New Haven, 136 Conn. 1 (1949);  Parish of St. Andrews v. Zoning Board of Appeals of Stamford, 155 Conn. 350 (1967);  McCrann v. Town Planning and Zoning Commission of Bloomfield, 161 Conn. 65 (1971);  and Holt–Lock, Inc. v. Zoning and Planning Commission, 161 Conn. 182 (1971).   Plaintiff implies that this principle bars the board from its September meeting consideration of a legal opinion from Attorney Zizka.   Assuming that plaintiff desires litigation of this claim, the court finds it meritless.   The Zizka opinion in the Record, pages 15–19, is squarely within the zone of appropriate guidance of counsel upon which a local board may rely, as approved by the Supreme Court in Spero v. Zoning Board of Appeals of Guilford, 217 Conn. 435 (1991).

Expressly, on the other hand, plaintiff challenges the use of certain communications from the zoning enforcement officer to the ZBA at that meeting.   As noted in the town's brief, the barrier against extra-record communications does not categorically preclude a board from considering information provided post-hearing by its technical and professional advisers;  Hawkes v. Town Planning and Zoning Commission of Farmington, 156 Conn. 207 (1968), and in some instances a ZEO may be classified as a technical adviser to the board.   But a ZEO may play different roles in different settings, and when, as here, his decision is the very topic under consideration by the board, then, “under the circumstances of this case, [he] takes on the appearance and role of a party”;  Faith Tabernacle Church v. Zoning Bd. of Appeals, 1995 Conn.Super. LEXIS 1494 (May 19, 1995;  Holtzberg, J.).   Particular caution must be shown in allowing this exception in such a circumstance.

Whatever support exists for the plaintiff's allegations is set forth in the minutes of the September 7 meeting (Record, page 21) in the following words:

Chairman Offiler noted for the record that he and Joe Theroux, Zoning Enforcement Officer had an e-mail communication today (copy on file).   The question to him was two part:  Did he feel that the claimed $75,000 worth of site improvements were substantially completed and if so, does he feel that this work would commit the site irrevocably to the proposed condominium project.   J. Theroux provided an answer in writing (e-mail dated 9/7/10) that we can include with the documentation.

And, moments later:

R. Waugh stated that he also read the information thoroughly and he agreed with Chairman Offiler's comments.   You can't substantiate, without receipts, $75,000 worth of improvements, and reading the ZEO's statement there is not even site work done, no foundations were started really no commitment to any kind of building.

Neither e-mail itself has been made part of the record.   No member otherwise summarized what Theroux had said, or indicated that he or she had derived any information from his e-mail whatsoever.   No member made any reference to the content of the e-mails following Waugh's single-sentence response.

Plaintiff claims that Norooz v. Inland Wetlands Agency of the Town of Woodbury, 26 Conn.App. 564 (1992), requires that this court sustain its appeal.  Norooz represents a modern application of the rules pronounced somewhat peremptorily in Wadell, Parish of St. Andrews, McCrann, and Holt–Lock, supra.   Following the closure of a public hearing, the administrative board in Norooz had received two letters from a technical consultant which it relied upon in reaching its decision.   Those facts were sufficient for a trial court to rule in plaintiff's favor and sustain the appeal.   The Appellate Court, on the other hand, demanded a more nuanced inquiry:

The proper inquiry for a reviewing court, when confronted with an administrative agency's reliance on nonrecord information provided by its technical or professional experts, is a determination of whether the challenged material includes or is based on any fact or evidence that was not previously presented at the public hearing in the matter.

Neither the trial court nor the plaintiffs have identified any fact or evidence relied on in those letters which was not already evidence of record in the administrative proceedings.   Our review of those documents and the record of the administrative proceedings, moreover, discloses that both letters are limited to a review of, a comment on and an opinion concerning evidence of record.   There is no indication or suggestion in either letter that facts not already of record in the lengthy administrative proceeding were considered by LandTech in forming its conclusions and recommendations to the agency.   The agency properly relied on these documents, and the trial court should not have sustained the plaintiffs' appeal.

26 Conn.App. 564, 573–74 (citations omitted).

That inquiry cannot even begin until it is clear what Theroux said.   Accepting as true plaintiff's assertions that he opined upon the value of the improvements and upon the extent plaintiff had irrevocably committed its land to its project, each of these details was a matter of fact propounded by plaintiff at the public hearing.   Any opinion expressed by Theroux as to either is not a breach of the allowable limits set by the Norooz case.   Additionally, the virtual indifference shown by all members of the ZBA to the Chairman's “for the record” remarks makes it clear that there was no reliance upon the Theroux communication of which plaintiff can legitimately complain.

The Appellate Court decision in Megin v. Zoning Board of Appeals of Milford, 106 Conn.App. 602 (2008), must also be taken into account in resolution of this issue, although neither party has cited this authority.   The local land use inspector had ordered Megin to clear an accumulation of junk from land he owned.   He appealed that officer's cease and desist order to the ZBA, which conducted a public hearing on the appeal.   Megin and his attorney were present;  coincidentally, one of the defenses Megin raised before the board was that his property was a nonconforming use.   Present throughout and also offering evidence was the land use inspector herself, Sarah Acheson, whose cease and desist order was the very focus of the appeal.   The hearing focused upon the claim of nonconformity, as well as the extent of the blight maintained upon the property.

As soon as the hearing closed, the board proceeded to a meeting at which it discussed the appeal.   Acheson remained in attendance, although Megin and his counsel had left.   In the course of the board's discussion, Acheson commented four times upon various aspects of the hearing, including the factual claims at issue.   In the end, the ZBA sustained her cease and desist order and denied the appeal.   Megin then sued, demanding that the court declare her participation to be a per se violation of due process requiring a summary reversal of the board's decision.

While the Appellate Court indicated that it would “neither condone nor encourage the practice of permitting a party to an administrative appeal, even one that provides technical or professional assistance, to participate in the deliberations of an administrative agency,” 106 Conn.App. 602, 611 (fn.8), the court deemed it significant that Acheson did not offer any fact or evidence at that meeting that was not already evidence of record.   What she said was reiterative of what she and others had said within the confines of the public hearing.   If this scenario constitutes a violation of fundamental fairness, its particulars reveal it to be a harmless example of that species.   What allegations of such a violation do is to raise a rebuttable presumption of prejudice, shifting to the other side the burden of showing that the communication was harmless.   Applying that process, the Appellate Court sustained the action of the Milford ZBA because the record showed that several assigned reasons not based upon the allegedly tainted evidence provided adequate and proper support for the board's conclusions.

In this case, the Sterling board articulated four reasons for the action it took:

1.  The Zoning Regulations were correctly interpreted by the ZEO regarding development lot size allowable as the Zoning Application did not meet the Zoning Regulation's Section IV—Dimensional Requirements, Section 4.01 Minimum Lot Area and Section 4.02 Minimum Buildable Area.

2. The argument made by the Applicant that the land had been “irrevocably committed” to only that particular use of eleven condominium units was not persuasive as none of the five cases presented supported the applicant's claims.

3. In order to be “grandfathered,” the use has to be actual not contemplated use and engineering plans, development plans, and designs do not constitute actual use. (sic.)

4.  The ZEO's decision does not make the property worthless as other uses of the land are possible.

Record, page 22.

Even though either party cited the Megin decision in its discussion of this issue, this court cannot avoid its guidance.   Even if one entertains a presumption that something said by the Sterling ZEO in his emails amounted to nonrecord evidence, and thus causes a shift to defendant of the burden to prove its harmlessness, the court finds that in this case there is no other conclusion supported by the record.   The details of the impropriety attributed to Theroux and the ZBA's utilization of his input are only vaguely sketched.   The minutes of the board's deliberations show that its decision was based upon four distinct premises, none of which reflect reliance by the members upon anything which the ZEO might have opined.   Under these circumstances this court is satisfied that the decision of the board was not tainted in any way that our appellate authorities have deemed significant, and that the mention of the Theroux correspondence at the post-hearing meeting did not deprive plaintiff of fundamental fairness in the consideration of its appeal.

IV. Conclusion and Orders

Plaintiff has not established any reason upon which this court might reverse the decision made by the Sterling Zoning Board of Appeals.   The appeal is therefore dismissed.

Boland, J.

FOOTNOTES

FN1. Defendant takes issue with plaintiff's argument that the $75,000 investment has been proven and is meaningful here.   First, the evidence to that effect consists of estimates made in 2010 by plaintiff's agent as to what its predecessor had spent more than two years earlier.   More significantly, any such expenditures would have been made by that predecessor, not by plaintiff itself, and it is not certain that a party claiming that its expenditures warrant an estoppel can bootstrap its position onto the expenditures made by an earlier and now absent predecessor in title.   Lastly, and perhaps most significant from the point of view of equity, it is possible that insofar as plaintiff claims “expenditures” that claim is a fiction altogether;  at the public hearing on August 3, 2010, plaintiff's agent indicated that he attempted to obtain data from the subcontractors who performed the work included in his calculations, but found many not forthcoming because, in his words, “[m]ost were not [cooperative] because they didn't get paid.”   Record, part 1, page 8 (emphasis added).   While these observations illustrate the infirmities of plaintiff's estoppel argument, the court does not deem this factor of the estoppel test to be dispositive for present purposes.   Additional references to the $75,000 claim in the remainder of this memorandum are subject to the same observations..  FN1. Defendant takes issue with plaintiff's argument that the $75,000 investment has been proven and is meaningful here.   First, the evidence to that effect consists of estimates made in 2010 by plaintiff's agent as to what its predecessor had spent more than two years earlier.   More significantly, any such expenditures would have been made by that predecessor, not by plaintiff itself, and it is not certain that a party claiming that its expenditures warrant an estoppel can bootstrap its position onto the expenditures made by an earlier and now absent predecessor in title.   Lastly, and perhaps most significant from the point of view of equity, it is possible that insofar as plaintiff claims “expenditures” that claim is a fiction altogether;  at the public hearing on August 3, 2010, plaintiff's agent indicated that he attempted to obtain data from the subcontractors who performed the work included in his calculations, but found many not forthcoming because, in his words, “[m]ost were not [cooperative] because they didn't get paid.”   Record, part 1, page 8 (emphasis added).   While these observations illustrate the infirmities of plaintiff's estoppel argument, the court does not deem this factor of the estoppel test to be dispositive for present purposes.   Additional references to the $75,000 claim in the remainder of this memorandum are subject to the same observations.

FN2. The parties refer to a version of the ordinance amended effective as of January 28, 2006, but the edition contained in the record as Exhibit 7 is the November amendment.   While this is somewhat confusing, the court is satisfied that this confusion is surmountable and that the resolution of this dispute would not be different whether the January or the November amendment is controlling..  FN2. The parties refer to a version of the ordinance amended effective as of January 28, 2006, but the edition contained in the record as Exhibit 7 is the November amendment.   While this is somewhat confusing, the court is satisfied that this confusion is surmountable and that the resolution of this dispute would not be different whether the January or the November amendment is controlling.

FN3. The court notes that these details were brought up in the course of the Supreme Court's approval of the limited injunction which the trial court had entered.   Having taken into account the prior existence of several homes within the subdivision, the trial court allowed those units to remain so as to avoid waste of the described investments.   However, avoidance of that waste was not sufficient cause for prohibiting future improvements to the portions of the land upon which development remained purely prospective..  FN3. The court notes that these details were brought up in the course of the Supreme Court's approval of the limited injunction which the trial court had entered.   Having taken into account the prior existence of several homes within the subdivision, the trial court allowed those units to remain so as to avoid waste of the described investments.   However, avoidance of that waste was not sufficient cause for prohibiting future improvements to the portions of the land upon which development remained purely prospective.

FN4. The court has also read the plaintiff's reply brief, which brings in the new material of Madore v. Haddam Zoning Board of Appeals, Conn.Super. LEXIS 2122 (August 21, 2012;  Handy, J.) [54 Conn. L. Rptr. 519], and Griswold Hills of Newington, LP v. Town Plan and Zoning Commission of Newington, 1995 Conn.Super. LEXIS 1767 (June 9, 1995;  Berger, J.) [14 Conn. L. Rptr. 405].   Madore does not turn upon the claim of a prior nonconforming use, and Griswold Hills does not involve this subject at all..  FN4. The court has also read the plaintiff's reply brief, which brings in the new material of Madore v. Haddam Zoning Board of Appeals, Conn.Super. LEXIS 2122 (August 21, 2012;  Handy, J.) [54 Conn. L. Rptr. 519], and Griswold Hills of Newington, LP v. Town Plan and Zoning Commission of Newington, 1995 Conn.Super. LEXIS 1767 (June 9, 1995;  Berger, J.) [14 Conn. L. Rptr. 405].   Madore does not turn upon the claim of a prior nonconforming use, and Griswold Hills does not involve this subject at all.

Boland, John D., J.