Eric Simonson v. Zoning Board of Appeals of the Town of Darien (2014)

MEMORANDUM OF DECISION

Nature of the Proceeding

Currently before the court are two similarly-captioned cases (CV125013970 and CV125013971), which are chapters 4 and 5 of an ongoing saga—the dispute between plaintiffs and their neighbors, the defendants Ropp and Dreiss.¹  The two matters currently before the court focus on the issuance of a certificate of zoning compliance ² in connection with the construction of a new home on the individual defendants' property, and the related issue of whether preconditions to the issuance of such a certificate had been satisfied as stated in a letter sent by the Town's Zoning Enforcement Officer, David Keating (“ZEO”).

Prior matters that have been tried (the two matters commenced in 2010) related to variances for setbacks and a permit to allow demolition of the pre-existing home and construction of a new home) provide a context for these disputes.   The still-pending action by plaintiffs against the individual defendants (Simonson v. Ropp) is more closely related to the matters currently under consideration—that action seeks compensation for damage to their property during the construction of the new home, and the matters under consideration are based on plaintiffs' claim that resolution of such damage claims (or at least certain of them) was a precondition to the issuance of the certificate of zoning compliance.

The court adopts an abridged version of the detailed factual background as recited in

Historically both Parcel B and Parcel C were part of a single larger parcel owned by William and Eleanor McKinley who subdivided that parcel into three lots in 1959 ․

The deeded right of way which is the subject of this action was created by the McKinleys when they sold Parcel B to John Lewis Schafner and Dorothey Louise Schafner (predecessors in title to the Simonsons) by a warranty ․ which reserved

․ an easement and right of way to the Grantors, their heirs and assigns, in common with the Grantees, their heirs and assigns, as an appurtenance to Parcel “C” as shown of the aforementioned map ․

The Ropps' acquisition deed ․ reflects the foregoing easement and right of way, as Parcel “C” is thereby conveyed to the Ropps ‘[t]ogether with an easement in common with others for purposes of ingress and egress over the driveway on Parcel B ․ reserved as an appurtenance to Parcel C in a deed recorded in Book 267 at Page 258 of the Darien Land Records.’

[CV116008662] is wholly concerned with disputes between the parties arising out of the demolition of the former Shotts residence and the construction of the new Ropp residence on Parcel “C” which has been a strained and contentious event between the parties, which started with the Simonsons' appeal of setback variances granted to the Ropps by the Zoning Board of Appeals, which appeal was dismissed ․ See Eric Simonson and Barbara Simonson v. Zoning Board of Appeals of the Town of Darien et al., Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. FSTCV10–6003074S (May 6, 2011, Jennings, J.), 2011 Ct.Sup. 10920.   In addition to this civil action there is also an appeal by the Simonsons from the issuance of a Zoning Permit to the Ropps by the Darien Zoning Enforcement Officer which was upheld by the Zoning Board of Appeals, still pending in this court as Docket No. FSTVV10–6007454S.

[The complaint in CV116008662] alleges that the Ropps and Prutting & Co. have trespassed on the Simonson property since February 22, 2011 when the demolition commenced by causing heavy and construction vehicles and machines to be brought to Ropp property via the right of way over the Simonson property, and by using the right of way portion of the Simonson property as a parking and staging area, in violation of Condition 2 of the variance granted to the Ropps.

Condition 2, mentioned in the last sentence of the court's history (sometimes referred to as the second condition or second stipulation), is central to the matters presently before the court.   Condition 2 states:

Due to the fact that the subject property is accessed from Hollow Tree Ridge Road by a driveway which is located on the property of others, and various features including drainage pipes are installed under the driveway, protective measures, such as the use of lower weight capacity trucks, will be necessary to avoid damage to the driveway and its shoulders.   Any documented damage to the property of others resulting from the project shall be properly repaired to the satisfaction of Zoning staff prior to the issuance of a certificate of occupancy for the project.

On June 18, 2012, Mr. Keating, the Darien Zoning Enforcement Officer, sent a letter to the Ropps reporting on the then-status of the project, advising them that, inter alia, there was no need for them to do any repair work in order to satisfy condition 2, as a prerequisite to issuance of further permits/certificates in connection with the construction and occupancy of their home.   The letter did indicate that certain paperwork still needed to be submitted.   The letter was prepared in response to an inquiry from counsel for the Ropps as to what needed to be done in order to get the final certificates relating to completion of the project (page 43 of September 12, 2012 transcript (R.O.R. 16);  ¶ 5 of minutes of July 18, 2012 meeting (R.O.R. U).   The letter contained information relating to a possible appeal of the contents of the letter.

Plaintiffs have denominated Mr. Keating's letter a “determination” and have claimed that the contents of the letter, particularly with respect to the lack of need to perform repair work, was in error.   They further claim that, as a determination, it was appealable under the Darien zoning regulations ³ and applicable state statutes.   Accordingly, they appealed the issuance of the letter to the Darien Zoning Board of Appeals (ZBA or Board);  at the initial hearing on July 18, 2012, the Board heard arguments and presentations from all sides, and then continued the matter to September 12, 2012.   On that continuation date, the Board also considered the subsequent appeal filed by plaintiffs relating to the issuance of a certificate of zoning compliance.⁴  The Board voted on both matters separately;  it initially took up what plaintiffs characterize as the determination appeal (# 13–2012), and denied it based on the issue being moot.   The Board then took up the appeal relating to the issuance of the certificate of zoning compliance, and denied that as well (# 35–2012).

Plaintiffs separately appealed from each decision of the Board.   Plaintiffs contend that compliance with the second condition was a prerequisite to issuance of a certificate of zoning compliance, that the Zoning Enforcement Officer improperly determined that there had been compliance, and that the Zoning Board of Appeals erred both in concluding that the zoning enforcement officer had not erred in determining that there was sufficient compliance and had not erred in issuing the certificate.

A hearing was conducted on September 18, 2013, primarily for purposes of establishing aggrievement.   Each of the parties has filed a brief.   Plaintiffs have filed a reply brief.   The court has reviewed the return of record as filed in each of the cases.⁵

The appeal currently before the court relates to the Board's decision in the # 35–2012 appeal, denying plaintiffs' challenge to the issuance of the certificate of zoning compliance.   Simultaneous with the issuance of this decision, the court is issuing a decision in the 970 case, dismissing that appeal on jurisdictional grounds.

Legal standards

[W]hen a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision.   As the [Board] did not provide any reasoning for its decision ․ we search the entire record to find a basis for the [Board's] denial of the plaintiffs' application.  Green Falls Associates, LLC v. Zoning Board, 138 Conn.App. 481, 492–93 (2012) (internal quotation marks and citations, omitted).

[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.   We also are mindful that the zoning board of appeals makes a de novo determination of the issue before it, without deference to the actions of the zoning enforcement officer.

[T]he board is endowed with liberal discretion and ․ its actions are subject to review by the courts only to determine whether they are unreasonable, arbitrary or illegal ․ The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision ․ [A] zoning board of appeals hears and decides an appeal de novo ․ It is the board's responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts ․ In doing so, the board is endowed with a liberal discretion ․ Indeed, under appropriate circumstances, the board may act upon facts which are known to it even though they are not produced at the hearing ․ Upon an appeal from the board, the court must focus on the decision of the board and the record before it.

It is well settled that the courts should not substitute their own judgment for that of the board and that the decisions of the board will not be disturbed as long as an honest judgment has been reasonably and fairly made after a full hearing ․ The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings ․ Upon an appeal from the judgment of the trial court, we review the record to see if there is factual support for the board's decision, not for the contentions of the applicant ․ to determine whether the judgment was clearly erroneous or contrary to law.

“In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] 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 [board] ․ The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached ․ If the 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.”  Woodbury Donuts, LLC v. Zoning Board Of Appeals of the Town of Woodbury, 139 Conn.App. 748, 757–60 (2012) (citations, internal quotation marks, and footnote, omitted).

The omitted footnote from the passage above, states:

This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred ․ [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury ․ The substantial evidence rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention.   It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication.   On the other hand, it is review of such breadth as is entirely consistent with effective administration ․ [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency ․ and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action ․ 139 Conn.App. 759, n.10 (internal quotation marks and citation, omitted).

Discussion

Although there are two separate appeals that were taken to the Board, and two separate appeals taken to the Superior Court that currently are being addressed, the parties have submitted composite/consolidated briefs that address both matters simultaneously.   The court has attempted to address these appeals separately, and will attempt to keep cross referencing between decisions to a minimum.

Aggrievement

The court finds that plaintiffs are aggrieved, based on statutory and classical aggrievement.   Not only do they own the property abutting the subject property (statutory aggrievement—see, General Statutes § 8–8(1))—but the events in question involve claims of actual and unremedied direct harm to their property.  (Claimed direct damage to their property, that was supposed to have been remedied but was not, appears to be sufficient to establish classical aggrievement.)

I. Substantial Evidence

In their complaint, plaintiffs identify 12 grounds for their appeal in the 971 case (¶ 16)—one more than were alleged in the 970 appeal.⁶  As noted in the 970 decision, inclusion of an excessive number of grounds for an appeal tends to dilute the impact of those that might be more worthy of attention.   See, e.g. Alterisi v. Commissioner of Correction, 145 Conn.App. 218, 223 (2013).

In its decision relating to the 970 case, the court has addressed the substance of the allegations in § 16(k) and (l) of plaintiffs' 971 complaint, where plaintiffs claim that there was a lack of a quorum due to expired terms of some members of the Board who heard the matter, and further that “the Board permitted persons who were not valid members of the Board or alternates to participate ․” The court hereby incorporates that discussion by reference, and rejects plaintiffs' contentions for the reasons stated therein.

Paralleling their complaint in the 970 matter, plaintiffs' complaint in this case states, in ¶ 15, that “[a]Ithough the Board is required to state the reasons for denying the appeal, the Board has not made available to the public a copy of any documents that state the reasons for the Board's decision.”   It is not clear whether this is but a prelude to subparagraphs (i) and (j) in ¶ 16, or is intended to claim that the Board did not give a reason for its decision in a more absolute sense.

Unlike the situation in the 970 case where the vote was explicitly couched in terms of a specified reason, here there was no specific reason given by the Board, as an entity, for its decision on plaintiffs' appeal in # 35–2012.   Therefore, the court must search the record to determine the reason or reasons.  Green Falls Associates, supra.

The decision being appealed was the issuance of the certificate of zoning compliance.   Therefore, the issue before the Board was whether the ZEO correctly had issued that certificate, a determination subject to de novo review.

The court has reviewed in some detail, both the minutes and transcripts of the proceedings.   At ¶ 52 of the minutes relating to # 35–2012 (R.O.R. item 15), one of the Board members stated that “the question is whether Mr. Keating made the proper determination regarding the stipulation about damage repairs.”   A number of members identified problems with the evidence proffered by plaintiffs.   In ¶¶ 55–61 of the minutes, various Board members are indicated to have commented on problems (inadequacies) in the evidence of damage, notably including the lack of photographs taken before the project started to provide a baseline for damage determinations, and that is confirmed by review of the primary source material, the transcript at pp.   64–77 (R.O.R. 16 and R.O.R. W).  One member stated:  “ ․ so five of us agree that there is no documented evidence of any damage being caused by these construction vehicles.”  (R.O.R. 16 (and R.O.R. W) at pp. 71–72.)   The court recognizes that plaintiffs have disputed the reliability of photographs taken by/for defendants, shortly after the project started, as not truly being “before” photos, but provided nothing to the Board showing conditions prior to those photographs.   Generally speaking, the Board's thorough review of the adequacy of the evidence is inconsistent with plaintiffs' repeated contention that the Board simply adopted Mr. Keating's findings as a matter of course.   Based on the court's review of the record, the Board denied the plaintiffs' appeal based on a failure of plaintiffs to prove, satisfactorily, that the certificate should not have been issued, in turn because plaintiffs failed to establish that documented damage had not been repaired, in turn because they failed to establish (“document”) that any unrepaired damage had been caused by the Ropps' construction activities.

To elaborate:  On a number of occasions in their submissions, plaintiffs implicitly argue based on a false dichotomy.   In their view, as articulated in their briefs, if the Board did not reject Mr. Keating's decision to issue the certificate, then the Board must have blindly adopted his decision and reasoning.   An obvious third option, which plaintiffs do not adequately address (attempt to refute) is that the Board independently—exercising its own judgment based on a de novo review—reached the same conclusion(s) as Mr. Keating.   Compare, Germain v. Town of Manchester, 135 Conn.App. 202, 211 (2012) (“That the [reviewing tribunal] ruled in the [the lower tribunal's] favor does not mean that [the reviewing tribunal] necessarily afforded deference to the [lower tribunal].   Rather, the memorandum of decision clearly shows that the [reviewing tribunal] engaged in a de novo review of the statutory language, legislative history and governing precedent”).

The court recognizes that the “substantial evidence” test used in matters such as this, or “sufficiency of the evidence” in more general litigation contexts, requires some semantic rejiggering when the factfinder decision under review amounts to a rejection of the evidence proffered by a plaintiff.   Instead of looking at the affirmative evidence presented, the court must consider whether the evidence presented was indisputable or admitted or otherwise so overwhelming that a rational person could not disregard it.   In this case, there was substantial dispute about claims of damage and the proper interpretation to be given to the concept of documented damage.   The Ropps submitted photographs showing conditions near if not at the beginning of work (e.g. R.O.R. V at pp. 71 and 80), and the Board had before it Mr. Woodside's report and Mr. Keating's report, in addition to the voluminous submission from plaintiffs.   There was nothing about the submissions to the Board that required it to accept or reject any particular submission or position—it was well within the Board's discretion as to which evidence to credit, if any.   In this negative sense, there was substantial evidence supporting the Board's decision.

The result is the same if the substantial evidence test is applied in terms of affirmative proof that there had been compliance with the variance condition.   The Ropps provided photographs showing conditions at or near the beginning of the project.   Mr. Keating, after receiving Mr. Woodside's report, personally visited the site and based on his personal observations, found nothing in need of remediation.   These facts, and others considered by the Board, constitute substantial evidence that affirmatively supports a determination that there had been compliance with the second condition.   From either perspective, then, there was substantial evidence supporting the decision of the Board.

II. Other issues

Plaintiffs' appeal is not limited simply to a challenge to the existence of substantial evidence supporting the ZBA decision.   There are extensive other grounds recited, and the court will attempt to address the issues raised by plaintiffs, in the order addressed in their brief (recognizing that many of these separately-identified issues rely, at least in part, on consideration of the weight of the evidence).

In Section III of their brief, plaintiffs effectively argue that the Board abdicated its responsibility to make a decision, instead deferring to the ZEO.

The transcript of the deliberations in this case reveals that the ZBA failed to undertake any real analysis of the meaning and requirements of the Second Stipulation or the ZEO's conclusions set forth in the Determination Report.   Indeed, ZBA expressly held that they were deferring to the ZEO's conclusions (ROR U 7 and W), and effectively rubberstamped the ZEO's determination regarding satisfaction of the requirements of the Second Stipulation.   Thus, ZBA not only erred by failing to make its own independent determination of the meaning of the Second Stipulation and the facts at hand, but also should not be granted any deference by this Court because it failed to make an informed and independent decision.

On a general level, the Board clearly understood its function, as articulated by one of the members immediately before the vote (as quoted earlier):  “[T]he question is whether Mr. Keating made the proper determination regarding the stipulation about damage repairs.”   That is consistent with the recognition of a need to review what the ZEO had done, and inconsistent with the notion that the board was simply to rubberstamp what he had done.

As previously noted, several (if not all) members of the Board commented on the shortcomings in the evidence presented by plaintiffs both to the ZEO and to the Board itself.   As noted earlier, a decision to agree with Mr. Keating and utilize or accept his factual investigation does not equate to an abdication of responsibility by the Board.

In order to evaluate the claim on a more detailed level, it is necessary to place the issue in the proper context, including plaintiffs' own contentions/position.   The second condition or stipulation is quoted above, and the critical sentence provides:  “Any documented damage to the property of others resulting from the project shall be properly repaired to the satisfaction of Zoning staff prior to the issuance of a certificate of occupancy for the project.”   Mr. Woodside, a member of the land-use staff of the town of Darien, prepared a document, which is perhaps the centerpiece of the dispute (see, e.g., Exhibit 11 to R.O.R. I) (page 35 of entire item as electronically filed).   Plaintiffs claim that his report is and was intended to be a definitive listing of damages to plaintiffs' property that falls within the scope of the second condition.   Defendants claim that the document is a listing of plaintiffs' claims, based on discussions between Mr. Woodside and plaintiffs as well as his viewing of the premises.   If the case could be boiled down to one central issue, it would be that plaintiffs do not agree with any determination that, at a minimum, does not fully and unqualifiedly adopt Mr. Woodside's report as a statement of unresolved damages that need to be corrected.

The Zoning Enforcement Officer did not simply accept Mr. Woodside's report—he performed his own investigation, including visits to the site.   See, e.g., R.O.R. 16 at p.14;  see, also, ¶ 20 of R.O.R. U (and related transcript pages).   Based on his review of the facts, the ZEO made the objected-to determination that the Ropps did not need to perform any repairs prior to issuance of a certificate of zoning compliance (but did need to submit additional required documentation).   Subsequently, Mr. Keating did in fact issue a certificate of zoning compliance.   As noted earlier, plaintiffs have appealed from both the “determination” as well as the actual issuance of the certificate.

Against this background, the fallacy in plaintiffs' position is not hard to discern.   The Board framed the issue as whether the ZEO correctly had determined that no corrective action (repairs) was needed before issuance of the certificate.   Although plaintiffs attempt to frame the issue as one of blind acceptance of the ZEO's actions, plaintiffs actually are complaining that the Board accepted/believed the “wrong” person's investigation and assessment as to what if any corrective action was needed—under the guise of challenging the decision to issue the certificate, they are seeking to “re-try” the factual investigation that was used in making the decision to sign and issue the certificate, a conclusion that the Board also reached.⁸

Accepting that the Board was to undertake a de novo review, there were a number of implicit issues to be resolved.   Whose satisfaction was required (and had the condition been imposed with a specific official in mind)?   What level of satisfaction was required—absolutely all damage (anything and everything, regardless of materiality or triviality) or only those elements of damage exceeding some threshold of significance?   Aside from input from Mr. Keating and Mr. Woodside (their investigations and resulting memoranda), to what extent was there credible, probative evidence of damage, resulting from construction?   Given the wording of the second condition, was the focus of concern on specific vulnerabilities, e.g. pipes under the road? ⁹  Was Mr. Woodside's report intended to be an objective recitation of problems in need of correction that were caused by defendants' construction activities, or was it a recitation of problems as claimed by plaintiffs, with Mr. Woodside verifying the existence of conditions without being able to opine about causation?   And finally (for purposes of this recitation), had plaintiffs carried their burden of proof?

An alternate perspective is hierarchical in nature.   At the highest level, the Board was being asked to review the ZEO's decision to issue a certificate of zoning compliance.   Subordinate to that was the issue of compliance with the second condition.   Subordinate to that was the issue of uncorrected damage due to construction, as intended to be addressed by the second condition.   The appeal is from the decision to issue the certificate.

The standard to be applied was “satisfaction of Zoning staff.”   Plaintiffs interpret that to mean that, given his efforts and resulting report, Mr. Woodside's satisfaction was the proper benchmark.   Mr. Keating, as ZEO, did not accept Mr. Woodside's report at face value and after his own independent efforts, concluded that nothing further needed to be done by defendants (with respect to repairs) as a precondition to issuance of a certificate.   The Ropps also believed that the decision was to be made by Mr. Keating rather than someone else (see R.O.R. N at p. 95).   The Board also believed that Mr. Keating was to make the decision for purposes of issuance of a certificate, based on their own interpretation of the condition they had imposed (see, e.g., ¶¶ 54–55 of R.O.R. 15).   Mr. Keating, not Mr. Woodside, was the official charged with responsibility to sign the certificate of zoning compliance, which implicitly required a determination that all conditions for issuance had been satisfied.   The Board affirmed his decision based on plaintiffs' failure to prove that there were documented damages that needed to be repaired as a precondition to issuance of a certificate.

The transcript and minutes reflect that the Board considered these factors and sub-issues explicitly and implicitly.   It is clear that most of the members were concerned about inadequate evidence of pre-construction conditions, particularly photographs.   At least one member recalled that the purpose of the “satisfaction of Zoning staff” had been to make the ZEO the final arbiter of what needed to be done (see, e.g. ¶¶ 54–55 of R.O.R. 15 (minutes re:  # 35–2012)), thereby necessarily negating plaintiffs' position that the second condition was unambiguous and obvious in meaning (referring to their interpretation).

As quoted above, plaintiff complains that “ZBA ․ erred by failing to make its own independent determination of the meaning of the Second Stipulation ․” yet effectively complain that the Board erred by failing to adopt their proffered meaning.   See, e.g., ¶ 16 of their complaint, alleging that “the Board improperly interpreted and applied the terms of the Variance and the Stipulations” (subparagraph (b)) and “ignored the plain meaning of the words of the Variance and the Stipulations, and thus, de facto, amended the Variance ․” (subparagraph(c)).  Plaintiffs do not identify anything specific in the record suggestive of a failure of the Board to “make its own independent determination” as to the meaning of the second condition/stipulation, and the Board's adoption of an interpretation at odds with plaintiffs' suggests the contrary.   As long as the interpretation was reasonable, which it was, it does not amount to “de facto [amending] the variance.”

Section IV of plaintiffs' brief appears to be a fact-intensive expansion of the preceding section.   Again, plaintiffs effectively refute their own contention that the Board did not make its own determination of the meaning of the language at issue, by stating that the Board did not give that language the same interpretation that they claim to be proper.   Plaintiffs claim that the language had to be applied in the absolutely strictest terms—materiality of damage is not a proper consideration and relationship of maintenance and claimed damage should not be considered.   Other than saying so, plaintiffs do not provide any reasoned argument as to why it is palpably unreasonable for the Board to have treated materiality as an implied qualification (if in fact the Board did disregard or ignore essentially-trivial damages and/or what they considered to be normal wear and tear).

Perhaps most importantly, plaintiffs do not accept either Mr. Keating's or the Board's determination(s) as to the adequacy of documentation of damage (and perhaps implicitly, their right to make such determinations), which in the context of this case is the equivalent of a failure of proof (on the part of plaintiffs).

In this regard, plaintiffs' contention that no deference should be given to the Board because it did not exercise its own judgment (see quoted paragraph, above), becomes especially inapposite.   The language at issue was inserted into a variance by the Board in connection with an earlier (related) matter before it (application for a variance).   The Board is now being asked to interpret and apply its own language, while acting in a different capacity (quasi-judicial).   If deference is ever appropriate, it would seem to be especially so when a body is interpreting and applying its own work-product.¹⁰

There is no question but that plaintiffs made clear their position that the second condition/stipulation needed to be applied strictly, and that “even minor damages” needed to be repaired as a precondition to issuance of any certificate of zoning compliance.   It is also clear that the Board did not accept that position, thereby implicitly indicating that it did not accept plaintiffs” interpretation of the provisions at issue—assuming it got beyond the failure of proof.

Plaintiffs' arguments boil down to a claim that the Board should have accepted their arguments and their perception of the evidence.   Unfortunately for them, it is especially difficult to disprove a conclusion that is based on a perceived lack of credible and relevant evidence.   See, e.g. National Groups, LLC v. Nardi, 145 Conn.App. 189, 202 (2013) (although trial court had found witness to be credible on certain points (145 Conn.App. 192), trial court did not err in rejecting other testimony of witness, based on implausibility of testimony).   If the Board had ruled in favor of plaintiffs, then the evidence presented by plaintiffs likely would have been deemed to have provided an adequate basis for such a result.   Nothing required the Board, however, to accept plaintiffs' factual or interpretive contentions, and the concern about inadequate documentation of pre-construction conditions is a rational reason for the result that actually obtained.   Mr. Keating's review of the claimed damages also provided an adequate basis for rejecting plaintiffs' factual assertions (in the context of a plausible interpretation of the disputed language that focused on material/significant damages, not encompassing (despite plaintiffs' protestations to the contrary) “even minor damages”).

The court does not believe it necessary or appropriate to go through every single factual assertion of plaintiffs in order to establish that there were factual issues as to each matter, thereby providing a basis for the Board to have concluded as it did.   The court will focus on one particular claimed aspect of damage.

In the letter that was the subject of the 970 appeal, Mr. Keating stated:

The catch basin that was supposedly damaged approximately a year ago is lower than the surrounding pavement by design (so that water will drain into the basin) and the pavement was formed at the time of installation to curve down into the grate at the top of the basin.   The catch basin is fully functional at this time.   I do not require that you ‘repair’ the catch basin because I do not believe it is damaged.   If maintenance, replacement or other work on the catch basin is deemed appropriate by you and the neighbor, please coordinate your efforts in that regard.  (See, e.g., R.O.R. item D, starting at page 9.)

At best, then, there is a conflict between the factual recitation in the Woodside letter saying that there was damage to the drain ¹¹ and the Keating letter to the contrary.

The court notes that plaintiffs appear to have taken some liberties in interpreting the record.   At page 14 of their brief, plaintiffs state that “the Determination Report conceded that there had been damages caused by the Ropp's project to the plaintiffs' property ․ and damages to a drain, among other things ․ yet concluded that ․ no such repairs were required by the Ropps.”   The “Determination Report” is plaintiffs' nomenclature for Mr. Keating's letter, and that document concludes (see quoted passage above) that there was no damage to the drain/catch basin (“I do not believe it is damaged”).¹²

Plaintiffs also fail to give any recognition much less weight to the factual dispute as to the willingness of the Ropps to undertake some repairs and issues as to timing and/or conditions for such repairs.   This was addressed in Mr. Keating's letter, including reference to an impasse between plaintiffs and the Ropps.  (See, also, email at p. 118 of R.O.R. N.) The court recognizes that plaintiffs' version of this aspect of the dispute varies from what is recited, but the very existence of a dispute and impasse reasonably could have influenced Mr. Keating's approach, and the subsequent decision by the Board to do likewise.

Plaintiffs then go on to repeat that the intent of the language at issue was that Mr. Woodside's report controlled and that the Board abdicated its responsibility by making the ZEO the “final arbiter.”   Plaintiffs seem to miss the inherent inconsistency between their insistence that the Board exercise its discretion and undertake a de novo review, with their insistence that Mr. Woodside's report be the sole if not binding factor in making that determination.

Taken out of context, the reference to “final arbiter” might be perceived as having some merit with respect to a claim of abdication of responsibility.   However, as noted earlier in this decision, immediately before voting, there was a recognition that the issue before the Board encompassed the question of whether the decision of the ZEO had been correct.   In context, then, the reference to “final arbiter” related to the ZEO's decision to issue a certificate based on a predicate determination of whether the Ropps had complied with all conditions and requirements for issuance of the certificate.   Someone had to make a determination as to whether the conditions for issuance of a certificate of zoning compliance had been satisfied, and in that context, it is hardly surprising that the ZEO, the person who would issue the certificate, would also be the “final arbiter” as to whether necessary conditions had been met.   If there is any doubt, see also ¶ 55 of R.O.R. 15:  “A member] said that he intended that the ZEO act as an arbiter rather than individual neighbors and that the ZEO should decide if damages occurred” and p. 66 of R.O.R. 16 where the underlying testimony is recorded (and there is an indication that an additional member agreed).

To put it differently:  Review by the Board was not a legal predicate for issuance of the certificate of zoning compliance—the conditions articulated in the variance were not imposed for purposes of Board review, but rather as preconditions for issuance of required certificates by the ZEO (subject to possible later review by the ZBA).   From this perspective, the issue of being a final arbiter reflected that the ZEO was not to be bound by subordinate input, but instead ultimately was to make his own decision (presumably utilizing input from subordinates).   To turn it around:  would it have been reasonable to interpret the second condition as compelling the ZEO to accept a determination made by someone subordinate to him, without any discretion being allowed?

In section V of their brief, plaintiffs assert that “the conclusions of the ZBA are contrary to the manifest weight of the evidence, amount to an abuse of discretion by ZBA, and are clearly erroneous.”   Plaintiffs recite a summary of the extensive evidence they submitted, only minimally referring to contrary evidence.   Most significantly, they failed to address the right and ability of the Board to reject testimony as it saw fit, as long as it was not wholly irrational to do so.   In this regard, again, the court notes the numerous observations of Board members about limitations on proof submitted by plaintiff, including questions relating to causation, and especially lack of adequate documentation (photographs) reflecting the preconstruction state of affairs.   There also was expressed concern about an inability to ask questions of plaintiffs' expert, with particular attention to his unavailability at the second hearing after the topic of his availability had been raised at the first hearing (R.O.R. 16 at page 20).

Focusing on the issue of photographs:  The court has carefully reviewed plaintiffs' brief.   There are a few references to the photographs they submitted, showing claimed damage, but there is no reference to the photographs submitted by/on behalf of the Ropps showing conditions near the start of the project (see, e.g. R.O.R. V at pp. 71 and 80),¹³ and no reference to the Board's concern about the lack of photographs taken by plaintiffs before any work commenced (other than in the context of a claim that the Board imposed an unreasonable standard of proof on them;  see discussion of section IX of plaintiffs' brief, below).   If the issue were whether the Board could have found for the plaintiffs, then a reference only to photographs provided by plaintiffs would have been appropriate.   To show an abuse of discretion or other improper action based on the evidence as a whole, however, requires consideration of the evidence as a whole including the tribunal's right to give such weight as it deems appropriate to the evidence before it.   Absent a showing that the almost-before photographs submitted on behalf of defendants and the lack of photographs of true-before conditions could not properly be considered by the Board, plaintiffs' attention only to evidence supporting their position does not fairly represent the resources available to the Board in making its decision.

Plaintiffs may consider the evidence they offered to be overwhelming, but the volume and nature of evidence they describe would not have compelled the Board to have ruled in their favor.   Members of the Board had issues with respect to lack of pre-construction photographs.   Concern was expressed by a Board member about the inability to question plaintiffs' expert.   Mr. Keating reviewed Mr. Woodside's report and then made a site visit, concluding that no repair work needed to be done by the Ropps, prior to issuance of an appropriate certificate.   Plaintiffs have not provided an adequate basis for requiring the Board to reject his findings and opinions.

Plaintiffs claim that Mr. Keating acknowledged a lack of expertise, but the court does not recall seeing any such admission ¹⁴ —and the court does not recall seeing any representations that Mr. Woodside had expertise in those same areas much less expertise that could not be ignored.   Further, claims of lack of expertise need to be taken in context—self-reporting of lack of expertise is not necessarily determinative.  Wood v. Club, LLC, 134 Conn.App. 768 (2012);  cert dismissed as improvidently granted, 310 Conn. 373 (2013).

Plaintiffs point out that defendants' expert also was not available to testify but neglect to recognize that the burden was on them to satisfy the Board that it should reverse the decision of the ZEO, such that it was not inherently inappropriate for the Board to focus primarily on the adequacy of plaintiffs' submission (including their expert).   To frame the issue from a different perspective:  the Board focused and apparently reached its decision based on the perceived inadequacies of plaintiffs' submission rather than on the strength of the Ropps' submission, such that any claimed weakness or inadequacy of the Ropps' submission was not of equivalent importance.

In section VI of their brief, plaintiffs claim that the Board “ignored the plain meaning of the second stipulation and variance and thus, de facto, amended the variance without complying with the applicable provisions of law and regulations.”   This is but a reformulation of plaintiffs' dissatisfaction with the Board's interpretation and application of the second condition/stipulation.   The essential premise, as before, is that there is but a singular meaning to be ascribed to the language used, namely the strict interpretation urged by plaintiffs.  (Plaintiffs effectively acknowledge that this argument is an expansion or alternate formulation of section IV of their brief.)   The court believes that it already has addressed these claims adequately and therefore will not elaborate further.

In section VII of their brief, plaintiffs claim that the Board “failed to consider adequately numerous procedural and legal defects by the ZEO.” Plaintiffs identify a plethora of issues, claiming that in the aggregate they are indicative of bias.   Thus, the fact that the ZEO was attempting to accommodate a scheduling issue for the Ropps becomes indicative of bias rather than what it was purported to be—an attempt to accommodate a scheduling issue for town residents.   Other than claimed inferences, plaintiffs offer no evidence to suggest that it was anything but an attempt to accommodate, and that runs counter to the oft-cited presumption that public officials have acted in accordance with their official responsibilities, absent a “clear indication to the contrary,” Waterbury v. Washington, 260 Conn. 506, 571 (2002).   The court does not find any of the individual complaints, nor the aggregate, to constitute sufficient grounds to undermine the conduct and decision of the Board based on bias.

Plaintiffs also claim that it was unfair that the ZEO met only with the Ropps in connection with his review of the Woodside report.   According to the appeal (R.O.R. D in # 31–2012), plaintiffs provided Mr. Woodside with a detailed four-page letter outlining claimed damages (contained in R.O.R. M), spent approximately 3 hours with him on site (pointing out damages), and provided extensive documentation.   There is nothing in the record indicating the extent of input from the Ropps, other than Mr. Woodside's reference to having obtained information from them.   There also is nothing in the record indicating that Mr. Keating was not aware of, and had not reviewed, the extensive submissions that had been provided to Mr. Woodside by plaintiffs.

The court recognizes that there is at least a superficial appearance of lack of fairness based on the situation as described by plaintiffs.   The court, however, must presume that public officials acted properly unless otherwise shown, Waterbury v. Washington, supra.   Further, that perception only would be applicable to the decision-making process of Mr. Keating and not the Board.   Despite perhaps limited direct input, plaintiffs already had provided substantial input to Mr. Woodside, and that was considered, indirectly if not directly, by Mr. Keating.   More significantly, any claim of unfairness in Mr. Keating's conduct was subject to review by the Board, and it is the conduct of the Board that is the focus of this appeal.   The court cannot conclude that this failure, even if an accurate perception of the facts of the case, undermines the Board's conduct—in turn deciding that plaintiffs had failed to prove that the Ropps had not satisfied the requirements of the second stipulation.¹⁵

Plaintiffs also claim that the ZEO should not have issued the certificate of zoning compliance due to the claimed automatic stay arising from plaintiffs' appeal from Mr. Keating's letter (# 31–2012).   They rely upon language contained in General Statutes § 8–7:

An appeal shall not stay any such order, requirement or decision which prohibits further construction or expansion of a use in violation of such zoning regulations except to such extent that the board grants a stay thereof.   An appeal from any other order, requirement or decision shall stay all proceedings in the action appealed from unless the zoning commission or the officer from whom the appeal has been taken certifies to the zoning board of appeals after the notice of appeal has been filed that by reason of facts stated in the certificate a stay would cause imminent peril to life or property, in which case proceedings shall not be stayed, except by a restraining order which may be granted by a court of record on application, on notice to the zoning commission or the officer from whom the appeal has been taken and on due cause shown.

Plaintiffs cite no authority as to how this provision should be applied in a situation such as this.   Mr. Keating, on the record, indicated that he had acted on the advice of counsel;  in the brief filed on behalf of the ZBA, counsel briefly addresses this point, indicating that it does not apply to the conduct of the ZEO in subsequently signing off on a certificate of zoning compliance, but rather was applicable to enforcement actions such as in court.   This, of course, assumes that Mr. Keating's letter was a decision that could be appealed and therefore properly result in a stay, a premise that the court has rejected in its decision in the 970 case.

Assuming, however, that the letter was a matter amenable to appeal, plaintiffs do not suggest how a stay could be meaningful given the facts and context of this case.   The action of the zoning enforcement officer that would be the subject of a stay was not an order telling somebody that they must do something or must refrain from doing something;  and it was not a grant or denial of permission to do something;  instead, it was a recognition, for want of a better term, of a status—certain requirements had been satisfied.   How does one stay a status?   Particularly given the posture taken by plaintiffs, that the letter and the certificate of zoning compliance are two separate processes that properly can be appealed separately, why would it be improper for the ZEO to assess (again) the status of the various conditions imposed on the Ropps in connection with a determination as to whether to sign/issue a certificate of zoning compliance?   In effect, plaintiffs want the ZEO letter to be treated as independent of the issuance of a certificate for purposes of appellate review, but treated as part of a single process for purposes of operation of § 8–7.

Section 8–7 is a statute of general applicability.   That does not mean that every provision of the statute can be made to apply in a rational sense to every conceivable scenario involving an appeal to a ZBA. Even assuming plaintiffs' interpretation to be correct, what would it mean, for example, if there were an appeal from a denial of the issuance of a certificate of zoning compliance or a certificate of occupancy how would an appeal effectuate a stay?   Indeed, if one took the position, as plaintiffs apparently do, that the appeal prevents the ZEO from issuing any subsequent paperwork on the project (until the appeal is resolved with finality), that would mean that a ZEO could not even review and sign a renewed request for such a certificate based on updated information or corrective action, as long as the appeal was pending, thereby preventing an applicant from curing the problem and getting on with the project (instead of waiting for the appeal to run its course).

To the extent that the Board implicitly rejected plaintiffs' contention that a stay was or might be applicable, the court (independently) concurs in that legal interpretation, i.e. that there was no stay preventing the Board from addressing # 35–2012 on its merits.

In section VIII of their brief, plaintiffs primarily argue (again) that General Statutes § 8–7 required there to be a stay with respect to issuance of the certificate of zoning compliance, based on plaintiffs having filed an appeal from the issuance of the ZEO letter (# 31–2012).   They make a number of arguments concerning jurisdiction, and discuss Holt extensively.   In large measure, this is an expansion of the previous point/argument.

Plaintiffs make a number of claims, unsupported by any authority.   Thus, at pp. 24–25 of their brief, they argue that because the ZBA seemingly acknowledged that it had jurisdiction to decide # 31–2012, the town is now estopped to argue a lack of jurisdiction.   Subject matter jurisdiction cannot be created by the conduct of the parties—while normally framed in terms of such conduct as consent or waiver, there is no reason why the closely-related concept of estoppel ¹⁶ should be treated any differently.   Further, estoppel requires an element of reliance (Carpender v. Sigel, 142 Conn.App. 379, 389 (2013)), and plaintiffs make no claim of reliance (and other than plaintiffs' decision to appeal, and the court can conceive of no “reliance” upon a representation of a right of appeal or claimed jurisdiction to hear an appeal (other than a decision to appeal—which was done—or not to appeal).

Plaintiffs then go on to discuss the Holt decision in some detail.   The court has addressed this discussion in its memorandum of decision in the 970 case and will not repeat it here.   As reflected in the 970 decision, the court does not agree with plaintiffs' claims as to applicability of Holt to this case.

Section IX of plaintiffs' brief claims that the ZBA imposed an unlawful, improper and impossible standard upon the plaintiffs to document damages.   Shorn of all rhetoric, plaintiffs are asking the court to substitute its judgment and/or plaintiffs' judgment as to the weight of evidence for that of the Board.   There is nothing unlawful, improper or impossible about expecting someone claiming damage as a result of construction activity (as in the context of this case), to have provided “before” pictures or other evidence so as to allow a meaningful comparison of “after” conditions, as was attempted to be done by the Ropps (e.g. R.O.R. V at pp. 71 and 80).¹⁷  This is not a situation where plaintiffs were unaware of what was going on, nor is it a situation where an adversarial posture had not existed for a substantial period of time prior to the events of concern, e.g. see footnote 1, above.   More narrowly, it is not unreasonable for the Board to have equated documented damages with proven damages, with proof encompassing satisfactory evidence that there had been a change in conditions due to construction—not simply damage from unknown causes or perhaps just natural deterioration of a driveway.   There is no reason why the Board could not have relied on the Ropps' photographs, and the existence of those photographs also negates any suggestion that it was unreasonable (much less unlawful) for the Board to have considered the existence or absence of “before” photographs to be part of the process of documenting damages.   The Board was entitled to—if not required to—expect something in the nature of proof of factual causation rather than an argument relying solely on post hoc ergo propter hoc.  (Based on the record, it appears that the Board concluded that there was inadequate evidence that the “post” was not also “ante.”)

Even in a courtroom, it is a basic principle that it is not simply the volume or literal weight of evidence that determines an outcome, but rather persuasive quality of the evidence.   See, e.g., standard civil jury instruction 2.5–1 ¹⁸ which states, inter alia, “it is the quality and not the quantity of testimony that controls.”   See, also, Speed v. DeLibero, 23 Conn.App. 437, 440 (1990) (factfinder determines weight to be given to evidence and testimony).   There is no reason why the Board, in this case, was not free to evaluate the evidence before it and find it wanting.

Section X of plaintiffs' brief explicitly relies upon several of the other sections of the brief in claiming that the ZBA's actions “so departed from legal procedures and fairness and the principles of disinterested decision-making as to deprive the plaintiffs of their due process and fundamental fairness rights.”   Plaintiffs further claim that the Board did not take its job seriously and effectively constituted a “kangaroo court.”   Plaintiffs' frustration is palpable, but ad hominem attacks are not acceptable substitutes for legal reasoning and analysis (based on a factual record).

The court cannot reverse the Board's decision on this claimed basis.   To the contrary, the court notes that in at least one significant respect, the Board's analysis and approach were sufficiently thoughtful and well-reasoned that the Board appears to have convinced plaintiffs to abandon one of the issues raised in their initial appeal to the Board (comparing issues presented to the Board with those presently before the court).   In their appeal to the Board, plaintiffs had claimed not only a violation of the second condition/stipulation but also the first condition.   The first condition/stipulation pertained to how construction activities were to be performed, and the transcript shows that the Board carefully and thoughtfully pointed out to plaintiffs how the fait accompli of construction activities could not or should not be a basis for denying a certificate of zoning compliance or certificate of occupancy (recognizing that improper methods of construction in the past would create an impossible-to-cure situation if they were to be the basis for denial of a certificate of zoning compliance).   See, e.g. R.O.R. 16 at pp. 52–55.   The absence of such a claim in the appeal to this court suggests that plaintiffs recognized the unassailable analysis of the Board in that respect.   To be sure, the fact that the Board carefully addressed one issue does not necessarily mean it exercised the same care in other areas, but the court believes it is indicative that the Board understood its role and took its job seriously rather than being a “kangaroo court.”  (For the reasons stated in the various sections cited by plaintiffs, the court rejects this aggregate contention.)

In section XI, plaintiffs claim that the Board considered information outside of the record and permitted unauthorized persons to participate in deliberations.   There are several aspects to this claim, none of which has any merit.

Preliminarily, the court notes that one of the decisions quoted at length in the “legal standards” section of this decision contains the following:  “Indeed, under appropriate circumstances, the board may act upon facts which are known to it even though they are not produced at the hearing.”  Woodbury Donuts, supra.   The court does not believe that it is necessary to rely on this statement, but the language illustrates the breadth of information that properly may be considered by a ZBA.

Plaintiffs claim that advice of counsel on a legal issue constitutes “information outside of the record” rather than being legal advice needed in order for the Board to properly perform its function.   Plaintiffs cite no authority for the proposition that advice of counsel is an impermissible consideration with respect to legal questions that might arise in the course of Board proceedings.¹⁹

A fundamental flaw with the argument as stated is that plaintiffs either mis-cited the record or have misrepresented the record.   At page 28 of their brief, plaintiffs state:

First, at the July hearing (ROR V), the chairman of ZBA stated that he (and perhaps others on ZBA) had received advice from town counsel as to certain matters relating to the Determination Appeal and did not read that advice into the record, yet apparently relied on that advice in some manner.

The court has gone through the transcript of the July hearing (R.O.R. V) and has been unable to find any reference to any member of the Board consulting with town counsel or any legal counsel.²⁰  The only references the court found to the advice of counsel in that transcript were with respect to Mr. Keating, the ZEO—see pp. 49–50;  see, also footnote 19.  (In a transcript of the September hearing, there was further discussion of the advice received by Mr. Keating (p. 13 of R.O.R. 16 (also R.O.R. W).)  Thus, the flaws in this argument are compounded—plaintiffs have cited no authority indicating that it would have been inappropriate to seek or rely upon advice of counsel, and there appears to be nothing in the record indicating that any member of the Board actually did so.

Next, plaintiffs claim that the Board heard a separate matter presented to it by the Ropps, and that Board members' probable recollection of aspects of that matter somehow tainted these proceedings.   Plaintiffs have not sought to have the record amended or augmented (see, General Statutes § 8–8(k)) so as to present to the court anything about that prior proceeding, such that there is nothing properly before the court in that regard.  (An obvious area of concern—to the extent that plaintiffs claim that the Ropps had been trying to get the second stipulation removed from their variance without plaintiffs” knowledge, the court is left to guess as to whether notice had been required to be given to plaintiffs and whether there was evidence or a claim that such notice had been given to plaintiffs.)   There is not even a suggestion of what might have transpired that would prove to be so prejudicial, now.

Plaintiffs effectively are arguing that by hearing one matter (which was denied—a result favorable to plaintiffs), the Board is precluded from hearing a related matter at a later date, based on a claim that evidence in the first matter would taint the deliberation in the second matter—without any authority for such a proposition, under these or any possibly-relevant circumstances.   (Consideration of the number of matters recited in footnote 1 suggests the severity of the problem if merely hearing one matter taints the Board as to subsequent matters.)   Plaintiffs cannot prevail merely by citing an area of dissatisfaction without specific facts in the record and without any legal analysis or reference to relevant legal authority.

Next, plaintiffs claim that the Board improperly relied upon one or more members who, during discussion, stated their recollection of the purpose and meaning for the second condition, from the earlier proceedings at which the condition had been imposed.   Although plaintiffs fail to cite to the specific portion(s) of the record they find objectionable, the court has located some such references.   See, e.g., ¶¶ 54–56 of R.O.R. 15;  pp. 65–67 of R.O.R. 16.   Plaintiffs failed to identify any authority that an articulated institutional memory is an impermissible consideration in deliberations.   Plaintiffs also state that these articulated purposes do not appear in the 2009 record concerning the variance itself, but have not provided the court with anything other than their conclusory statements to that effect and the official action of the Board in imposing the conditions (essentially, the decision to impose the conditions)—the actual record from the earlier matter is not before the court.²¹  Nor have plaintiffs attempted to present a cogent argument of why attempted reference to the actual/original motive and expectations for imposing a condition now being considered, should be deemed impermissible.   Compare, Anatra v. Zoning Board of Appeals of the Town of Madison, 307 Conn. 728, 744 (2013) (“when the undefined words or phrases [in a certificate of variance] are ambiguous or reasonably susceptible to multiple interpretations, a search for the intent of the board at the time it approved the variance is necessary to resolve that question ․” (Emphasis added;  internal quotation marks omitted;  brackets as in cited case).   As identified earlier in this memorandum, the who, what, and how relating to documented damages are not unambiguously defined by the concept of documented damages, such that visiting or revisiting those “questions” was appropriate.

Finally, plaintiffs object to the presence of an alternate member of the Board participating and voting “even though she apparently was not needed for a quorum ․ and therefore her participation in deliberations violated applicable Darien zoning regulations and fatally taints ZBA's deliberations.”   Plaintiffs do not identify how this violated the zoning regulations or taints the deliberations—the court in its decision in the 970 matter refers to applicable law and disposed of this contention at that time, such that no further discussion appears to be required.

In their reply brief, plaintiffs emphasize the overwhelming evidence they presented (addressed earlier in this decision) and especially the impact of the decision of Judge Jennings in a related matter (FSTCV116008662S, Simonson v. Ropp— entry # 114.00 dated October 11, 2011) (denying temporary injunction)).   In that decision, Judge Jennings refers to damage done to plaintiffs' property, and plaintiffs claim that it was especially inappropriate for the Board to decline to give significant weight to that determination—that it was res judicata.

As a matter of law, it would not be appropriate for a tribunal to give collateral estoppel-type effect to any factual determination arising from a less-than-full proceeding such as a hearing on a temporary injunction or prejudgment remedy, and certainly it is not something that is required.   Gateway, Kelsa & Co. v. West Hanford No. 1, LLC, 126 Conn.App. 578 (2011).²²  Further, it is not clear what standard of proof had been utilized by Judge Jennings—his decision does not identify whether he made his determination based on a preponderance of the evidence or some lesser standard.   See, e.g. RW Group, Inc. v. Pharmacare Mgmt. Services, Inc., J.D. Tolland, No. X07–CV05–4003840–S, 2006 Ct.Sup. 7707, 41 Conn. L. Rptr. 418 (Apr. 27, 2006) (stating that in connection with a temporary injunction proceeding, a probable cause standard of proof was appropriate, rather than preponderance of the evidence).²³  Indeed, as Judge Jennings did not find that plaintiffs had proved irreparable harm, a finding of damages was unnecessary as the determining factor was the inability to prove the irreparable quality of the damages being asserted, and collateral estoppel only applies to findings that were essential to the earlier determination.²⁴  See, Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 535 (2006) (“Issue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment ․ Thus, the issue must have been fully and fairly litigated in the first action ․”).  Under the circumstances of that temporary injunction hearing, a determination of damages was not essential—precisely the same result would have obtained if the court had hypothetically assumed the existence of damages.

Plaintiffs have not identified any authority supporting their implicit contention that the Board could not evaluate all of the evidence before it, including the decision of Judge Jennings, as it saw fit, but instead was required to give special weight to his decision.

Plaintiffs then state that

if ․ the Determination was merely a ‘finding’ and not a decision ․ or was ‘simply advisory’ and not ‘something else the ZEO was required to issue,’ then the CO should never have been issued, as the plain terms of the Second Stipulation require such a determination by Zoning staff prior to issuance of the CO. Other than the Determination set forth in the Determination Report, there is nothing else in the Record to evidence that the required determination under the Second Stipulation has been made by the Zoning staff.   Therefore, if you accept the Defendants' argument, you must nevertheless sustain the plaintiffs' appeal and reverse ZBA.

In so arguing, plaintiffs conflate the need for a determination and the manner/mechanism utilized to effectuate such a determination.   Simply put, plaintiffs do not identify any basis on which the court can or should conclude that there was a requirement for a determination, separate and apart from the issuance of the certificate of zoning compliance (or other “official” document).   The ZEO could just as well have issued separate memoranda relating to the claimed driveway damage, status of building official inspections, and water pollution commission review;  or, he could have communicated the information via telephone to the Ropps or their attorney,²⁵ preparatory to issuance of the certificate of zoning compliance.  (The Keating letter was dated June 18;  based on the typed date, the certificate was prepared on June 19 and signed by Mr. Keating on June 29.)

In sum, then, despite the numerous (if overlapping) flaws identified by plaintiffs, plaintiffs have not established that the Board did not undertake a proper de novo review of Mr. Keating's decision to issue a certificate, nor have they established that any of the claimed procedural or interpretive flaws they have identified are sufficient to justify rejection of the decision of the Board.

Conclusion

In the absence of admitted or otherwise undisputed evidence, it is difficult to establish that a tribunal's rejection of proffered evidence is sufficiently erroneous to warrant rejection of a decision.   Here, not only was the evidence contested, but there also was a dispute as to the standard against which the evidence was to be measured.   Viewed from the perspective of sustaining the decision of the Board, there was substantial evidence to support—affirmatively—the absence of proof of documented damages, or to support in a more negative sense, the failure of plaintiffs to prove that there were documented damages that needed to be corrected prior to issuance of a certificate of zoning compliance.

Plaintiffs argue that there was supposed to be a strict standard applied such that any damage to their property, however trivial, needed to be repaired if it was caused by the Ropps' construction activities.   They have cited no cases, nor have they given a cogent argument, as to why the Board could not interpret the requirements the Board itself had imposed as concerned only with material or substantial damages, not trivial or inconsequential damages.

Similarly, with respect to the right of Mr. Keating to override their interpretation of Mr. Woodside's findings, there is both the matter of the proper interpretation to be given Mr. Woodside's letter as well as the reasonableness of an interpretation of the condition giving Mr. Keating the final say, insofar as the decision to issue or not issue a certificate of zoning compliance necessarily relied upon satisfaction of that condition.   Again, plaintiffs have cited no cases, nor have they given a cogent argument, as to why the Board could not interpret the requirements the board itself had imposed in such a manner.

The issue, of course, is not whether the court agrees with the decision of the Board but rather whether the Board reasonably could have concluded as it did based on a de novo review of facts and application of appropriate legal principles.   Plaintiffs have not presented anything to the court sufficient to justify overturning the decision of the Board.

For all these reasons, then, this appeal is hereby dismissed.

POVODATOR, J.

FOOTNOTES

FN1. There have been six cases filed in the Stamford Judicial District involving these parties.   In one matter, only the owners of the parcels are parties (Simonson v. Ropp, FSTCV116008662S), while five also include the Darien Zoning Board of Appeals as a party (Simonson v. Zoning Board of Appeals, FSTCV106003074S, FSTCV106007454S, and FSTCV136016625S (in addition to the two cases currently before the court)).   FSTCV136016625S is an appeal after a remand as ordered in FSTCV106007454S.  (Although not relevant to this case, for the sake of accuracy, it should be noted that in Simonson v. Ropp, the individual defendants' contractor also is a party.)   For simplicity, the court will refer to defendants Ropp and Dreiss as defendants Ropp or the Ropps..  FN1. There have been six cases filed in the Stamford Judicial District involving these parties.   In one matter, only the owners of the parcels are parties (Simonson v. Ropp, FSTCV116008662S), while five also include the Darien Zoning Board of Appeals as a party (Simonson v. Zoning Board of Appeals, FSTCV106003074S, FSTCV106007454S, and FSTCV136016625S (in addition to the two cases currently before the court)).   FSTCV136016625S is an appeal after a remand as ordered in FSTCV106007454S.  (Although not relevant to this case, for the sake of accuracy, it should be noted that in Simonson v. Ropp, the individual defendants' contractor also is a party.)   For simplicity, the court will refer to defendants Ropp and Dreiss as defendants Ropp or the Ropps.

FN2. There has been some variability in nomenclature.   Sometimes the document has been identified as a certificate of zoning compliance, while at other times it has been referred to as a certificate of occupancy.   The record indicates that there is a single document that serves both purposes;  the signature of the zoning enforcement officer makes it a certificate of zoning compliance, and the signature of the building official makes it a certificate of occupancy.   See, R.O.R. M at page 50;  page 9 of transcript of July 18, 2012 proceedings (R.O.R. V).  As the signature/issuance by the zoning enforcement officer is the focus of these appeals, the court generally will refer to the certificate as a certificate of zoning compliance..  FN2. There has been some variability in nomenclature.   Sometimes the document has been identified as a certificate of zoning compliance, while at other times it has been referred to as a certificate of occupancy.   The record indicates that there is a single document that serves both purposes;  the signature of the zoning enforcement officer makes it a certificate of zoning compliance, and the signature of the building official makes it a certificate of occupancy.   See, R.O.R. M at page 50;  page 9 of transcript of July 18, 2012 proceedings (R.O.R. V).  As the signature/issuance by the zoning enforcement officer is the focus of these appeals, the court generally will refer to the certificate as a certificate of zoning compliance.

FN3. General Statutes § 8–6 authorizes a zoning boards of appeal to hear appeals relating to a claimed error in an “order, requirement or decision” made by an official;  the Darien zoning regulations add “determinations” to the list.   See, e.g. § 1121 of the Darien zoning regulations..  FN3. General Statutes § 8–6 authorizes a zoning boards of appeal to hear appeals relating to a claimed error in an “order, requirement or decision” made by an official;  the Darien zoning regulations add “determinations” to the list.   See, e.g. § 1121 of the Darien zoning regulations.

FN4. Depending on context, the initial appeal to the Board will sometimes be referred to by its designation before the Board (# 31–2012) and sometimes by the last three digits of the docket number of the appeal before this court (970).   Similarly, the second appeal to the Board will sometimes be referred to by its designation before the Board (# 35–2012) and sometimes by the last three digits of the docket number of the appeal before this court (971)..  FN4. Depending on context, the initial appeal to the Board will sometimes be referred to by its designation before the Board (# 31–2012) and sometimes by the last three digits of the docket number of the appeal before this court (970).   Similarly, the second appeal to the Board will sometimes be referred to by its designation before the Board (# 35–2012) and sometimes by the last three digits of the docket number of the appeal before this court (971).

FN5. The return of record (R.O.R) in the 970 case identifies record items by use of letters, and the return of record in the 971 case uses number designations.   There is some overlap in documentation, such as the transcript of September 12, 2012 being designated both R.O.R. 16 and R.O.R. W, and numerous instances of a document appearing several times in one or both records (e.g. Mr. Keating's June 18, 2012 letter)..  FN5. The return of record (R.O.R) in the 970 case identifies record items by use of letters, and the return of record in the 971 case uses number designations.   There is some overlap in documentation, such as the transcript of September 12, 2012 being designated both R.O.R. 16 and R.O.R. W, and numerous instances of a document appearing several times in one or both records (e.g. Mr. Keating's June 18, 2012 letter).

FN6. The difference appears to be inclusion of ¶ 16(f), relating to the claimed violation of General Statutes § 8–7 with respect to a stay..  FN6. The difference appears to be inclusion of ¶ 16(f), relating to the claimed violation of General Statutes § 8–7 with respect to a stay.

FN7. R.O R. U is part of the record that only pertains to the 970 appeal.  (R.O.R. W, although a designation applicable to the 970PL, is also part of the record in this appeal under the designation R.O.R. 16.).  FN7. R.O R. U is part of the record that only pertains to the 970 appeal.  (R.O.R. W, although a designation applicable to the 970PL, is also part of the record in this appeal under the designation R.O.R. 16.)

FN8. When a member of the Board attempted to get the discussion back on track, plaintiff concurred that whether the ZEO's decision was correct, was the primary issue:[Board Member]:  What—the only thing we need to decide tonight in addition to some, well, the most substantive thing we need to decide tonight is whether Mr. Keating erred in his determination that there was no documented damage to the property resulting from the project, that's all.   So I'd like to bring the discussion back to that then all the other things you guys are going to resolve in court.Mr. Simonson:  One—one way or the other, and I agree with that.(P. 35 of R.O.R. W.).  FN8. When a member of the Board attempted to get the discussion back on track, plaintiff concurred that whether the ZEO's decision was correct, was the primary issue:[Board Member]:  What—the only thing we need to decide tonight in addition to some, well, the most substantive thing we need to decide tonight is whether Mr. Keating erred in his determination that there was no documented damage to the property resulting from the project, that's all.   So I'd like to bring the discussion back to that then all the other things you guys are going to resolve in court.Mr. Simonson:  One—one way or the other, and I agree with that.(P. 35 of R.O.R. W.)

FN9. The “preamble” to the second condition provides:  “Due to the fact that the subject property is accessed from Hollow Tree Ridge Road by a driveway which is located on the property of others, and various features including drainage pipes are installed under the driveway, protective measures, such as the use of lower weight capacity trucks, will be necessary to avoid damage to the driveway and its shoulders.”.  FN9. The “preamble” to the second condition provides:  “Due to the fact that the subject property is accessed from Hollow Tree Ridge Road by a driveway which is located on the property of others, and various features including drainage pipes are installed under the driveway, protective measures, such as the use of lower weight capacity trucks, will be necessary to avoid damage to the driveway and its shoulders.”

FN10. One of the members of the Board recognized that the Board was being called upon to interpret its own language, during the September 12, 2012 hearing.  (P. 54 of R.O.R. W.) Aside from the fact that at least one member's comments suggested actual presence at the earlier proceeding, it is not uncommon for judicial bodies to use the first-person-plural (“we”) in describing and interpreting decisions rendered by former panels of the same body.   See, e g. Incardona v. Roer, 309 Conn. 754, 762, n.6 (2013)..  FN10. One of the members of the Board recognized that the Board was being called upon to interpret its own language, during the September 12, 2012 hearing.  (P. 54 of R.O.R. W.) Aside from the fact that at least one member's comments suggested actual presence at the earlier proceeding, it is not uncommon for judicial bodies to use the first-person-plural (“we”) in describing and interpreting decisions rendered by former panels of the same body.   See, e g. Incardona v. Roer, 309 Conn. 754, 762, n.6 (2013).

FN11. Mr. Woodside's report (see, e.g. R.O.R. I at pp. 35–36) states:  “Along the south edge of the driveway the cast iron top of a catch basin has been depressed.”   There is no indication of any basis for determining a causative relationship to construction of Ropps' home.  (A reasonable interpretation of the introductory language of his letter reflects that he is reporting what he saw rather than implying a causative linkage:  “ ․ I have identified the following damages which exist along the driveway section which is on the Simonson property” (emphasis added).).  FN11. Mr. Woodside's report (see, e.g. R.O.R. I at pp. 35–36) states:  “Along the south edge of the driveway the cast iron top of a catch basin has been depressed.”   There is no indication of any basis for determining a causative relationship to construction of Ropps' home.  (A reasonable interpretation of the introductory language of his letter reflects that he is reporting what he saw rather than implying a causative linkage:  “ ․ I have identified the following damages which exist along the driveway section which is on the Simonson property” (emphasis added).)

FN12. Plaintiffs also accuse town officials of “backdating” a document (see, e.g. brief at page 9) when the only evidence relating to a discrepancy between a typed date and information concerning the actual date of signing is that the document was typed on the date indicated, presumably was signed on that date by a different official (the building official), but not signed by Mr. Keating until a later (explicitly indicated) date.   See, R.O.R. I at page 3 (plaintiff's own recitation of what he had been told about the signing of the document)..  FN12. Plaintiffs also accuse town officials of “backdating” a document (see, e.g. brief at page 9) when the only evidence relating to a discrepancy between a typed date and information concerning the actual date of signing is that the document was typed on the date indicated, presumably was signed on that date by a different official (the building official), but not signed by Mr. Keating until a later (explicitly indicated) date.   See, R.O.R. I at page 3 (plaintiff's own recitation of what he had been told about the signing of the document).

FN13. Photographs were provided showing conditions a few weeks after construction activities had started, with the explanation that when construction had started, snow still was covering areas of interest/concern—these photographs were taken once the snow was gone..  FN13. Photographs were provided showing conditions a few weeks after construction activities had started, with the explanation that when construction had started, snow still was covering areas of interest/concern—these photographs were taken once the snow was gone.

FN14. “ZBA chose to believe the ZEO on his assessment despite the ZEO's admission that (i) He was not an engineer or expert in determining damages, and (ii) he had never done so in the past.”  (Brief at page 18–19.)Plaintiffs cite no reference in the record for these admissions.   The closest the court was able to find was an “admission” that Mr. Keating did not recall ever having made such determinations in the past:( [Question]:  Have you ruled on damages before in your career?   I mean, has there been any stipulation regarding damages on any ․[Answer]:  I can't remember any like this before, no. (pp. 9–10 of ROR. V).The court does not recall seeing anything in the record referring to (much less admitting) lack of expertise or non-engineer status, and again, plaintiffs have not cited anything in the record to that effect..  FN14. “ZBA chose to believe the ZEO on his assessment despite the ZEO's admission that (i) He was not an engineer or expert in determining damages, and (ii) he had never done so in the past.”  (Brief at page 18–19.)Plaintiffs cite no reference in the record for these admissions.   The closest the court was able to find was an “admission” that Mr. Keating did not recall ever having made such determinations in the past:( [Question]:  Have you ruled on damages before in your career?   I mean, has there been any stipulation regarding damages on any ․[Answer]:  I can't remember any like this before, no. (pp. 9–10 of ROR. V).The court does not recall seeing anything in the record referring to (much less admitting) lack of expertise or non-engineer status, and again, plaintiffs have not cited anything in the record to that effect.

FN15. The Board's decision was based on weaknesses in plaintiffs' presentation/proof.   Although the Ropps might have pointed out weaknesses in plaintiffs' presentation to Mr. Keating, nothing the Ropps did or might have done (as far as the record is concerned) would have or could have removed evidence submitted by plaintiffs from consideration by the Board.   Thus, the rationale for the Board's decision could not have been materially affected by the claimed one-sided discussions with the Ropps..  FN15. The Board's decision was based on weaknesses in plaintiffs' presentation/proof.   Although the Ropps might have pointed out weaknesses in plaintiffs' presentation to Mr. Keating, nothing the Ropps did or might have done (as far as the record is concerned) would have or could have removed evidence submitted by plaintiffs from consideration by the Board.   Thus, the rationale for the Board's decision could not have been materially affected by the claimed one-sided discussions with the Ropps.

FN16. “[W]aiver and estoppel [are] so similar as to be ‘nearly indistinguishable,’ “ Milford Paintball, LLC v. Wampus Milford Associates, LLC, 137 Conn.App. 842, 848 (2012) (internal quotation marks, omitted)..  FN16. “[W]aiver and estoppel [are] so similar as to be ‘nearly indistinguishable,’ “ Milford Paintball, LLC v. Wampus Milford Associates, LLC, 137 Conn.App. 842, 848 (2012) (internal quotation marks, omitted).

FN17. For example, in cases involving blasting, it is not uncommon for “before” photographs to be taken, to establish a baseline for property that might be subject to damage.   See, e.g. Delmar Associates v. Monroe Planning and Zoning Commission, J.D. New Britain, CV01–0509213S, 2002 Ct.Sup. 8241 (Jul. 2, 2002);  D.R.S. Consultants v. Loforese, J.D. Ansonia–Milford, CV99–0067392S, 2000 Ct.Sup. 13543 (Nov. 1, 2000)..  FN17. For example, in cases involving blasting, it is not uncommon for “before” photographs to be taken, to establish a baseline for property that might be subject to damage.   See, e.g. Delmar Associates v. Monroe Planning and Zoning Commission, J.D. New Britain, CV01–0509213S, 2002 Ct.Sup. 8241 (Jul. 2, 2002);  D.R.S. Consultants v. Loforese, J.D. Ansonia–Milford, CV99–0067392S, 2000 Ct.Sup. 13543 (Nov. 1, 2000).

FN18. http://www.jud.ct.gov/Jl/civil/part2/2.5–1.htm..  FN18. http://www.jud.ct.gov/Jl/civil/part2/2.5–1.htm.

FN19. In numerous places in the record, plaintiffs claim that Mr. Keating's implied assertion of a privilege constitutes a violation of the Freedom of Information Act, General Statutes § 1–200 et seq.  (More accurately, when Mr. Keating mentioned having obtained advice of counsel, the Board effectively cut off any inquiry as to the substance of the advice given, implicitly recognizing the privilege associated with such communication, which led to plaintiffs' comments about FOIA violations.   See, p. 49 of R.O.R. V.)Notwithstanding plaintiffs' claims to the contrary (e.g. pp. 49–50 of R.O.R. V), FOIA does not abrogate the attorney-client privilege for municipal officials but instead actually recognizes it (§ 1–210(10)).   See also, New Haven v. Freedom of Information Commission, 4 Conn.App. 216, 220 (1985) (portions of billing records of counsel ordered to be disclosed were not exempt from disclosure because there had been finding that records did not implicate attorney-client privilege).The only express limitation or prohibition relating to invocation of attorney-client privilege is with respect to a body going into executive session, where attorney-client privilege cannot be the basis for doing so (§ 1–231)..  FN19. In numerous places in the record, plaintiffs claim that Mr. Keating's implied assertion of a privilege constitutes a violation of the Freedom of Information Act, General Statutes § 1–200 et seq.  (More accurately, when Mr. Keating mentioned having obtained advice of counsel, the Board effectively cut off any inquiry as to the substance of the advice given, implicitly recognizing the privilege associated with such communication, which led to plaintiffs' comments about FOIA violations.   See, p. 49 of R.O.R. V.)Notwithstanding plaintiffs' claims to the contrary (e.g. pp. 49–50 of R.O.R. V), FOIA does not abrogate the attorney-client privilege for municipal officials but instead actually recognizes it (§ 1–210(10)).   See also, New Haven v. Freedom of Information Commission, 4 Conn.App. 216, 220 (1985) (portions of billing records of counsel ordered to be disclosed were not exempt from disclosure because there had been finding that records did not implicate attorney-client privilege).The only express limitation or prohibition relating to invocation of attorney-client privilege is with respect to a body going into executive session, where attorney-client privilege cannot be the basis for doing so (§ 1–231).

FN20. Yet again, plaintiffs' failure to cite pages in a lengthy transcript makes it unreasonably difficult for the court to verify accuracy of sources cited (and context)..  FN20. Yet again, plaintiffs' failure to cite pages in a lengthy transcript makes it unreasonably difficult for the court to verify accuracy of sources cited (and context).

FN21. The court is unaware of any effort to augment the record under General Statutes § 8–8(k)..  FN21. The court is unaware of any effort to augment the record under General Statutes § 8–8(k).

FN22. Plaintiffs attempt to invoke res judicata.   Res judicata applies to claims rather than factual determinations (issue preclusion);  collateral estoppel would be the more appropriate vehicle for arguing some level of preclusion.   Both res judicata and collateral estoppel require finality of the earlier/underlying determination, and the result of a hearing on a temporary injunction is not a final judgment..  FN22. Plaintiffs attempt to invoke res judicata.   Res judicata applies to claims rather than factual determinations (issue preclusion);  collateral estoppel would be the more appropriate vehicle for arguing some level of preclusion.   Both res judicata and collateral estoppel require finality of the earlier/underlying determination, and the result of a hearing on a temporary injunction is not a final judgment.

FN23. See, also, Jean v. L.A. Limousine of Greenwich, J.D. Fairfield at Bridgeport, CV06 4016486 S (Jan. 2, 2007), applying “substantial probability” standard..  FN23. See, also, Jean v. L.A. Limousine of Greenwich, J.D. Fairfield at Bridgeport, CV06 4016486 S (Jan. 2, 2007), applying “substantial probability” standard.

FN24. Judge Jennings also found against plaintiffs with respect to other elements required to be established for a temporary injunction..  FN24. Judge Jennings also found against plaintiffs with respect to other elements required to be established for a temporary injunction.

FN25. See R.O.R. 16 at page 43 and ¶ 5 of R.O.R. U, reflecting that it was an inquiry from Ropps' counsel to Mr. Keating that led to the generation of letter..  FN25. See R.O.R. 16 at page 43 and ¶ 5 of R.O.R. U, reflecting that it was an inquiry from Ropps' counsel to Mr. Keating that led to the generation of letter.

Povodator, Kenneth B., J.