Anthony F. LoFrisco et al. v. Zoning Board of Appeals of the Town of Wilton et al. (2013)

MEMORANDUM OF DECISION

In this administrative appeal, the defendant, Zoning Board of Appeals of the Town of Wilton, is raising the novel issue that the two immediately adjacent neighbors have not demonstrated that they are harmed by the Board's decision, thus these plaintiffs lack standing and therefore this administrative appeal must be dismissed.

The Zoning Board of Appeals of the Town of Wilton (ZBA) granted a variance of Section 29–9.E.2.d of the Wilton Zoning Regulations for an athletic field owned by the Town of Wilton in order to replace 30–foot light poles with 70–foot light poles.   Section 29.9.E.2d states:  “Lamp posts shall be the minimum height necessary to provide adequate illumination, but in no case shall they exceed a height of 30 feet.”   The ZBA conducted a duly noticed public hearing on the application and by a vote of four in favor and one against granted the variance.   After receiving notice of the Board's decision, three sets of neighbors filed this appeal.   This appeal to the Superior Court was timely made and filed in a procedurally correct manner.

The initial issue before the court is the determination of aggrievement with a discussion of the defendants' argument that the immediate adjacent neighbors do not have standing.   There are three sets of neighbors who filed this appeal.   Two sets of neighbors own property immediately adjacent to the athletic field on which the light pole variance was granted.   Those two neighbors claim that they are statutorily aggrieved:  “In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, ‘aggrieved person’ includes any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.”  General Stat. § 8–8(a)(1).  P.A. 12–146 removed the language “in this state” effective October 1, 2012 in response to a Connecticut court decision.   The Board's decision and the commencement of this appeal all occurred before October 1, 2012.   The properties in question are all located in the State of Connecticut and are not close to the border of any other state.   These two sets of neighbors offered testimony and certified copies of their recorded deeds.

The first of these two plaintiffs, William A. Patty and Eliot H. Patty, own residential property and reside at that residential property at 174 Ridgefield Road, Wilton, Connecticut.   Mr. Patty testified that he and his wife, Eliot H. Patty, have owned the real property since March 6, 2003.   The March 6, 2003 certified deed was offered as Exhibit 3. A certified subdivision map recorded in the Wilton Land Records as Map # 5330 was offered.   Exhibit 4. Mr. Patty noted on Exhibit 4 that the northerly portion of his property at 174 Ridgefield Road, Wilton, Connecticut backs up to the Wilton athletic field.   He also identified his property as being immediately adjacent to the athletic field using Exhibits 5, 11 and 12.   He testified that he and his wife have consistently owned the property since they acquired it on March 6, 2003 and they both are the current owners of 174 Ridgefield Road. The plaintiff only asked Mr. Patty questions concerning the title ownership.   No questions were asked of Mr. Patty on cross-examination.   No questions were asked of Mr. Patty concerning the effect of the variance on his property.   The Pattys claim statutory aggrievement pursuant to Gen.Stat. § 8–8(a)(1).

The second of these two plaintiffs, Kieran A. Lynch and Victoria Lynch, own residential property and reside at 40 Cider Mill Place, Wilton, Connecticut.   Victoria Lynch testified she and her husband, Kieran A. Lynch, have owned the real property consistently since they acquired it on December 9, 1996.   Their December 9, 1996 certified deed was offered as Exhibit 1. Mrs. Lynch acknowledged the location of her property on the maps in evidence noting that her real property is immediately adjacent to the athletic fields on which the variance was obtained.   Mrs. Lynch was not cross examined.   There was no evidence offered by Mrs. Lynch of the effect of the lights on her property.   The Lynches claim statutory aggrievement pursuant to Gen.Stat. § 8–8(a)(1).

Aggrievement falls into two basic categories;  Statutory aggrievement and classical aggrievement.   Statutory aggrievement in this case is self evident and is supported by the language of Gen.Stat. § 8–8(a)(1).   The documents submitted by Mr. Patty and Mrs. Lynch as well as their testimony satisfy this court that they are aggrieved persons since they own real property that abut a portion of the land involved in the decision of the ZBA.

The defendant, ZBA, notes in their December 19, 2012 Brief (# 108.00, p. 10) the difference between the legal concept of aggrievement and that of standing in light of the facts of this case.  “Here, certain Plaintiffs may be aggrieved, but they lack standing to pursue this appeal because they cannot demonstrate any harm they suffered, or will suffer, due to the Board's action.”   The Wilton defendants argue that the effect of the new 70 foot lighting system compared to the current 30 foot lighting system must be examined prior to a determination of standing.   They argue:  “Although the concepts of aggrievement and standing are closely related, they are not one and the same.” (# 108.00, p. 9.) They further argue from the facts in the Return of Record:  “Substantial evidence before the Board demonstrated that the replacement of the existing 30–foot light poles with 70–foot light poles will actually benefit the neighboring property owners because the higher light poles will reduce spill and glare, thereby decreasing the amount of light diffusion to surrounding properties.   The evidence also demonstrated that the neighbors will benefit because the new lights will have timers that will cause them to shut off automatically, whereas the current lights sometimes stay on longer than necessary.   There certainly was no evidence that the higher light poles will produce a more negative effect than the effect produced by the lower light poles.   Nor was there any evidence that there will be any increased use of light for additional practice time or games, if the higher light poles replace the lower light poles.” (# 108.00, p. 10–11.)   At trial the defendants, ZBA, the Town of Wilton and the Wilton Youth Football, Inc., offered no evidence on standing, aggrievement or any other evidence whatsoever.

The second form of aggrievement is classical aggrievement.   Classical aggrievement, on the other hand, requires a party to satisfy a well established two-fold test:  1) the party claiming aggrievement must demonstrate a specific, personal and legal interest in the subject matter of the decision appealed from, as distinguished from a general interest, such as is the concern of all members of the community as a whole;  and 2) the party must show that this specific, personal and legal interest has been specially and injuriously affected by the action of the agency.  Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47 (1984);  Nader v. Altermatt, 166 Conn. 43, 51 (1974).   The defendants' argument appears to take the second element of classical aggrievement, “a specific, personal and legal interest that has been specially and injuriously affected by the action of the agency” and engrafted that element on to the language of Gen.Stat. § 8–8(a)(1).   The defendants then argue that standing has not been shown by these two adjacent land owning plaintiffs, William A. Patty, Eliot H. Patty, Kieran A. Lynch and Victoria Lynch.

For three reasons that argument is not persuasive.

(1) Statutory aggrievement exists by virtue of legislative fiat which grants standing to appeal by virtue of a particular statute, rather than through an examination and analysis of the facts of a particular case.  Weill v. Lieberman, 195 Conn. 123, 124–25 (1985);  Pierce v. Harwinton Zoning Board of Appeals, 7 Conn.App. 632, 635–36 (1986).

(2) There is no language in Gen.Stat. § 8–8(a)(1) that requires proof of anything other than ownership either within one hundred feet of any portion of the land involved in the decision of the board or abutting the land that is involved in the decision of the board.   The two different concepts of statutory aggrievement and classical aggrievement are well known to the legislature.   Had the legislature intended to add the elements of harm and injury to the statutory aggrievement requirements, they knew how to do so.  Foley v. State Elections Enforcement Commission, 297 Conn. 764, 786–87 (2010);  Christian Activities Council v. Town Council, 249 Conn. 566, 619–20 (1999) (Berdon dissenting).   The court finds that Gen.Stat. § 8–8(a)(1) is unambiguous and by its plain language does not require proof of injury or harm to the aggrieved person.

(3) The court has not been able to find any case that supports the defendants' argument.   The defendants cite D.S. Associates v. Planning and Zoning Commission, 27 Conn.App. 508 (1992), for the proposition that for a plaintiff in an administrative appeal to be aggrieved that plaintiff must also have standing to pursue the appeal.   The appeal in D.S. Associates was dismissed because the plaintiff lacked standing.

There were two plaintiffs, D.S. Associates and Twin Pines Development Corporation.   D.S. Associates filed the subdivision application on July 29, 1988.   Although D.S. Associates had title to the real property since December 30, 1986, it had conveyed title to Twin Pines Development Corporation on May 21, 1988, before the subdivision application was filed.   Twin Pines was not involved in the subdivision proceedings before the Planning and Zoning Commission and had not filed nor joined in the subdivision application.   The court found that D.S. Associates was not aggrieved because it had no interest in the real property either at the time of the application nor at any time subsequent to the application.   The court found Twin Pines aggrieved because it was the owner of record of the real property and has been the owner since before the date of the application to the present.   The Appellate Court affirmed the trial court's finding that Twin Pines was thus an aggrieved party.   It then found that “The dispositive issue in this appeal is whether Twin Pines has standing.”  “This is one of these rare cases in which the plaintiff is aggrieved but does not have standing.”  Id. 511.   The trial court's conclusion that Twin Pines had no standing was confirmed by the Appellate Court:  “The zoning regulations did specifically require the property owner or its agent to apply for subdivision approval.   Consequently, Twin Pines' failure to comply with the regulations cannot be remedied by their having a substantial interest in the property.”  Id. 512.   The Appellate Court affirmed the trial court's dismissal of the appeal.  D.S. Associates is not applicable to the facts of this case.

The difference between standing and aggrievement has been discussed in other zoning cases.  Goldfeld v. Planning and Zoning Commission, 3 Conn.App. 172, 177 (1985) (The plaintiff as the property owner and zoning applicant did not own the property consistently from the date of the application through the date of the court appeal because his option to purchase the real property had expired.   Held, the property owner lacked standing).

This court does not dispute that standing and aggrievement are two different legal and factual concepts.  D.S. Associates stands for that proposition.   Despite the citation to D.S. Associates the defendants have offered no authority that the concept of harm and injury must be engrafted onto Gen.Stat. § 8–8(a)(1) so that those adjacent property owners, statutorily aggrieved, must demonstrate injury and harm in order to satisfy the separate standard of standing.

The court hereby finds that William A. Patty, Eliot H. Patty, Kieran A. Lynch and Victoria Lynch are owners of real property abutting the property on which the variance was obtained.   They have consistently been owners of their real property throughout this litigation.   They are currently owners of the real property and were the owners at the time of the variance application.   The court finds that these four defendants are statutorily aggrieved persons.   Gen.Stat. § 8–8(a)(1).   The court finds that those four parties are aggrieved persons.  Bossert Corporation v. Norwalk, 157 Conn. 279, 285 (1968).

The third neighbor is the named plaintiff, Anthony F. LoFrisco.   He is the owner of real property at 33 Cider Mill Place, Wilton, Connecticut.   He testified that he and his wife Elanore F. LoFrisco have owned 33 Cider Mill Place, Wilton, Connecticut since they acquired the property on April 26, 1990.   Their April 26, 1990 certified deed was offered as Exhibit 2. Mr. LoFrisco also pointed out where his property is located on Exhibit 5, a subdivision map recorded in the Wilton Land Records as Map # 4239.   Mr. LoFrisco also noted the location of his property on another map in evidence and demonstrated the distance from his house to the athletic field where the light variance was obtained.

Exhibit 5, entitled “Subdivision Prepared for Wilton Realty Holding Group” dated March 20, 1985 recorded in the Wilton Land Records as Map # 4239, shows the subdivision for Cider Mill Place.   Cider Mill Place is a dead-end street with eight subdivision building lots each two acres.   The LoFriscos own lot 3 directly on the cul-de-sac turnaround.   Lot 3 is directly opposite lot 7. Lot 7 abuts the Wilton school property.   Lot 7 is owned by the Lynches.   Lot 3 does not abut the Wilton school property.   The court finds from Mr. LoFrisco's testimony as well as an examination of the subdivision map that the LoFrisco property is neither within a radius of one hundred feet of any portion of the land involved in the decision of the Board nor does it abut any portion of the land involved in the decision of the Board.   The plaintiffs are not claiming that the LoFriscos are statutorily aggrieved.   The court finds that the named plaintiff, Anthony F. LoFrisco, is not statutorily aggrieved.  Gen.Stat. § 8–8(a)(1).

Evidence was offered on Anthony LoFrisco's claim of classical aggrievement.   In his testimony Mr. LoFrisco noted that his property is lower in level than that of the athletic field.   He noted that between his house and the athletic field are a number of trees, tennis courts, and a softball field and the football field on which the variance was granted is located to the rear of a Town of Wilton public middle school that occupies the major portion of the property.   In his testimony before the ZBA Mr. LoFrisco was asked whether he could see any of the existing 30–foot lights from his property.   He answered:  No.

Cider Mill Place is a dead-end street.   Ex. 4. The properties located on the west side of Cider Mill Place are immediately adjacent to the school property.   The properties on the east side of Cider Mill Place do not abut the school property.   Mr. LoFrisco's property is on the east side.   There is no access from Cider Mill Place onto the school property either by walkway, sidewalk, road or driveway.   Cider Mill Place is used by those who would access only the eight subdivision lots;  its residents, guests, service, emergency and postal personnel and the like.   No traffic reports were before the court.   No traffic expert testified at the zoning hearing or before this court or the ZBA. Based on the evidence offered on behalf of Anthony F. LoFrisco, the court finds that he has failed to prove either of the two elements of classical aggrievement.   The plaintiff, Anthony F. LoFrisco, has failed to demonstrate a specific, personal and legal interest in the decision appealed from as distinguished from a general interest such as concerns of all members of the community as a whole.   In addition, Mr. LoFrisco has failed to show any specific, personal or legal interest that he has that has been specifically and injuriously affected by the action of the ZBA. The court cannot find that the named plaintiff, Anthony F. LoFrisco, is classically aggrieved.

Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of the appeal.  Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996);  Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 307 (1991).   The question of aggrievement is one of fact.  Hughes v. Town Planning and Zoning Commission, 156 Conn. 505, 508 (1968).   The burden of proving aggrievement rests with the plaintiff.  London v. Planning and Zoning Commission, 149 Conn. 282, 284 (1962).   Where there are multiple parties involved if aggrievement has been proven by some but not all of the parties the court has jurisdiction.   Protect Hamden/North Haven from Excessive Traffic and Pollution, Inc. v. Planning and Zoning Commission, 220 Conn. 527, 529, f.3 (1991).   The court finds that the plaintiff, Anthony F. LoFrisco, is not aggrieved.   The court finds that the plaintiffs, William A. Patty, Eliot H. Patty, Kieran A. Lynch and Victoria Lynch, are statutorily aggrieved plaintiffs and the court has jurisdiction over their appeal.

“In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, conclusions reached by a zoning commission must be upheld by the trial court if they are reasonably supported by the record.   The credibility of the witnesses and the determination of issues of fact are matters solely within the province 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 ․ If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board ․ If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court ․ cannot substitute its judgment as to the weight of the evidence for that of the commission ․ The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.”  Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453 (2004).  “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.”  Harris v. Zoning Commission, 259 Conn. 402, 420 (2002).

The operative complaint is the August 29, 2012 Amended Appeal (Complaint) ( # 104.00) In this case one of the issues on appeal is that alleged in paragraph 11:  “In rendering its decision, the ZBA failed to follow the WZR, in particular, the ZBA failed to make the findings required by, or consider the requirements of WZR 29–13.B.6.” The ZBA is the defendant, the Zoning Board of Appeals of the Town of Wilton.   The WZR is the Wilton Zoning Regulations.   Section 29–13.B.6 states as follows:

6.  Finding;  No variance shall be granted by the ZBA unless it finds:

a.  That there are special circumstances or conditions, fully described in the findings of the ZBA, applying to the lot or structure for which the variance is sought, which are particular to such lot or structure and do not apply generally to lots or structures in the neighborhood and which have not resulted in any willful act of the applicant subsequent to the date of adoption of the regulation from which the variance is sought, whether in violation of the provisions herein or not;

b. That, for reasons fully set forth in the findings of the ZBA, the aforesaid circumstances or conditions are such that the particular application of the provisions of these Regulations will deprive the applicant of the reasonable use of the lot or structure, that the granting of the variance is necessary for the reasonable use of the lot or structure, and that variance as granted by the ZBA is the minimum adjustment necessary to accomplish this purpose.

c. That the granting of the variance shall be in harmony with the general purposes and intent of these Regulations and the Town's Plan of Development and shall not be injurious to the neighborhood or otherwise detrimental to the public health, safety and welfare;  and,

d. That the granting of the variance is not based upon the nonconformity of neighboring lots, uses, buildings or structures nor upon a financial or economic hardship.

This court has examined the Return of Record.   Nowhere in the Return of Record did the ZBA make any mention of Section 29–13–B–6 either in its deliberations or its conclusions.

The plaintiffs concede that “․ the board of appeals gave formal, collective reasons for its decision, and this court's review is therefore limited to ‘determining whether the assigned grounds are reasonably supported in the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations.’  “ Plaintiff's Brief in Support of Zoning Appeal dated October 24, 2012. (# 105.00, p. 6.) The formal reasons stated by the ZBA in approving this application by a vote of four to one is as follows:  “Sufficient hardship was demonstrated since it would mitigate the light pollution that the existing 30–foot lights are currently emitting and, further, in consideration of the fact that a need of this type was not anticipated when zoning regulations were drafted with commercial uses in mind as opposed to sports venues.”   Return of Record 18.

At the same time the plaintiff's note that the ZBA failed to comply with WZR Section 29–13–B–6.

The court finds that the ZBA has given a formal official collective statement of reasons for its actions.  Harris v. Zoning Commission, supra, 259 Conn. 420.   It would therefore be appropriate for this court to limit its scope of review to determine 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.  Rural Water Co., Inc. v. Zoning Board of Appeals, 287 Conn. 282, 294 (2008).   This court must first consider paragraph 11 of the plaintiffs' appeal, that the finding requirements of WZR Section 29–3–B–6 have not been complied with.

In opposing this appeal the defendant, ZBA, in its December 19, 2012 Brief states that the reasons stated combined two legal theories;  (1) a finding of hardship (# 108.00, p. 7) and (2) a reduction of nonconformity, which increased safety and benefited neighboring property owners (# 108.00, p. 12).   The ZBA has the authority to approve the variance based on hardship.  Kelly v. Zoning Board of Appeals, 21 Conn.App. 594, 597–98 (1990);  Dupont v. Zoning Board of Appeals, 80 Conn.App. 327, 330 (2003).   In addition the ZBA has the authority to approve the variance even if hardship has not been demonstrated, when the application before it reduces a nonconforming use to a less offensive use.  Vine v. Zoning Board of Appeals, 281 Conn. 553, 562 (2002);  Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, 572 (2001).

By combining these two valid legal theories in the one sentence reason stated by the ZBA, the court finds that both the legal theory of hardship and the legal theory of reduction of nonconformity were conflated by the ZBA. This court finds that not only must the ZBA state their reasons upon the record so the court can make a substantial evidence determination, it must comply with Section 29–13–B–6 of the WZR by making required findings.  Carlson v. Zoning Board of Appeals of the Town of Berlin, 158 Conn. 86, 90 (1969).   Although the ZBA stated the reasons for its decision, the court finds that the ZBA failed to make the necessary findings in compliance with its own regulations.

The issue is discussed in the plaintiff's October 24, 2012 Brief (# 105.00, p. 15–16).   This Brief notes that an appropriate remedy is a remand to the ZBA.

The plaintiffs cite the following authority for the remand:  “Accordingly, because the ZBA failed to comply with its own regulations calling for specific written findings, the appeal is sustained and this matter remanded to the ZBA with instructions to comply with Regulations § 12.01.220 et seq. by setting forth in writing the finding required by the regulations.”   Tannenbaum v. Town of Newtown Zoning Board of Appeals, Superior Court, judicial district of Danbury at Danbury, Docket Number CV 06–4006113 S (July 5, 2002, Markle, J.).   At oral argument the plaintiffs argued that remand is the appropriate remedy in the event that the court agrees with the plaintiffs' claim in paragraph 11.   The provision of the zoning regulations expressly required not only that such a finding be made but also that the board's reasons be fully set forth in the finding.  “The provisions of the zoning regulation expressly required not only that such a finding be made but also that the board's reasons be fully set forth in the finding.”  Gregorio v. Board of Appeals, 155 Conn. 422, 428 (1967);  Gross v. Planning and Zoning Commission, 171 Conn. 326, 329 (1976).

Previous decisions have ordered remand to the zoning agency for its failure to state fully its reasons.  Avalon Bay Community, Inc. v. Zoning Commission, 284 Conn. 134, 138–39 (2007);  Urbanowicz v. Planning and Zoning Commission, 87 Conn.App. 277, 300 (2005);  Ross v. Zoning Board of Appeals, 118 Conn.App. 90, 104 (2009);  Ross v. Planning and Zoning Commission, 118 Conn. 55, 63–64 (2009);  Simonson v. Zoning Board of Appeals of the Town of Darien, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 10–6007454 S (April 9, 2012, Tierney, J.T.R.) (The ZBA did not conduct a de novo review of the legal and factual issues raised and only conducted a review of the zoning enforcement officer's reasoning.   The court ordered a remand to the ZBA for it to render a de novo determination of the legal and factual issues before it);  Urban Girls, Inc. v. Zoning Board of Appeals of Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket Number CV 10–6014593 S (March 13, 2012, Owens, J.T.R.) (“In reviewing the determination of the zoning enforcement officer, the board must determine whether the business in this matter had nonconforming uses for sale of liquor and adult entertainment.   If so, the board must also determine whether either use was abandoned or changed in nature at any time.   The court sustains the plaintiffs' appeal and remands the matter to the zoning board of appeals to proceed according to law”);  Swiconek v. Zoning Board of Appeals of the Town of Glastonbury, Superior Court, judicial district of Hartford, Docket Number CV 08–4038134 S (March 20, 2009, Langenbach, J.T.R.) [47 Conn. L. Rptr. 492], 51 Conn.Sup. 190 (2009).  (The issue of hardship as well as the elimination of a nonconforming use, which constituted an independent ground for sustaining the granting of a variance, were both before the trial court.   The trial court remanded the matter “to the zoning board of appeals for further proceedings consistent with this ruling” after finding that the board's collective written record of approval does not indicate any other basis for finding a hardship).

The court hereby sustains the appeal of the plaintiffs, William A. Patty, Eliot H. Patty, Kieran A. Lynch and Victoria Lynch, and remands this matter to the Zoning Board of Appeals of the Town of Wilton for proceedings consistent with this Memorandum of Decision.

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.