LLC v. Zoning Board of Appeals Town of Stonington (2014)

MEMORANDUM OF DECISION

These are consolidated appeals by the plaintiff, Summit Street Development, LLC, from a decision of the defendant, the Planning and Zoning Commission Town of Stonington (the Commission), denying the plaintiff's application for a special permit to allow construction of a dentist office on a parcel of land owned by the plaintiff on Mason's Island Road, Stonington, Connecticut, and from the decision of the defendant, Zoning Board of Appeals Town of Stonington (the Board), denying the plaintiff's application for a variance of the minimum lot area required for the plaintiff's parcel of land.   The plaintiff claims that the defendants acted unreasonably, illegally and arbitrarily by denying the plaintiff's applications.

The plaintiff is the owner of the property which is the subject of the special permit and variance at issue in these appeals.   As an owner of the property, the plaintiff is aggrieved by the action of the defendants.

These consolidated appeals involve a proposed commercial development of a dental office building on plaintiff's parcel of land located on Mason's Island Road in Stonington.   The parcel of land is located in the M–1 zone designated by the Town of Stonington Zoning Regulations (Regulations).   The minimum lot size required in the M–1 zone is 80,000 square feet and the plaintiff's parcel of land contains only 41,742 square feet.   The parcel of land is a nonconforming use as to lot area.   It is located in a non-residential zone.

The Commission conducted a public hearing on the plaintiff's application at which the opposition to the application claimed that the plaintiff's real estate was not a valid preexisting nonconforming building lot because the Regulations did not protect non-residential unimproved preexisting nonconforming building lots.   Accordingly, the opposition claimed that the plaintiff must first obtain a variance.

The Commission denied the plaintiff's application on the basis “that the applicant failed to receive a variance for a minimum lot area prior to the application here.”

Subsequent to the action of the Commission, the plaintiff filed an application with the Board for a variance of the minimum lot area required for its parcel of land.   After a public hearing, the Board denied the plaintiff's application, apparently on the basis that it disagreed with the Commission's interpretation of the regulations that the plaintiff required a variance.

A zoning authority is endowed with liberal discretion and its decisions are subject to review by a court only to determine whether the authority acted arbitrarily, illegally or unreasonably.  Pleasant View Farms Development.   Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269 (1991).   The burden of demonstrating that the authority acted improperly is upon the party seeking to overturn the authority's decision.  Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988).

A court should not usurp the function and prerogatives of a zoning authority by substituting its judgment for that of the authority where an honest judgment has been reasonably and fairly exercised after a full hearing.  Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995).   The question is not whether another decision maker, such as the trial court, would have reached the same decision, but whether the record compiled before the agency supports the decision reached.  Calandro v. Zoning Commission, 176 Conn. 439, 440 (1979).

The plaintiff first claimed in its brief that its nonconforming parcel of land is protected under § 8–2 of the Connecticut General Statutes, which provides, in part, that zoning regulations “shall not prohibit the continuance of any nonconforming, use, building or structure existing at the time of the adoption of such regulations.”   In view of Johnson v. Board of Zoning Appeals, 35 Conn.App. 820, 825 (1994), which held that “ § 8–2 does not protect nonconforming, underdeveloped lots,” the plaintiff has withdrawn its claim under § 8–2.

The plaintiff next claims that its nonconforming parcel of land is protected under § 2.6.1 of the Regulations.  Section 2.6.1 provides:

2.6.1 Lawful uses or bulk in existence and not conforming to these Regulations on the effective date of these Regulations or on the effective date of amendments to these Regulations are non-conforming and may be continued subject to the following conditions and specifications:

2.6.1.1 Continuance.   Non-conforming uses and bulk may be continued but not expanded in area height, amount of use or extent of bulk.

Non-conforming bulk is defined in § 1.2.2 as follows:

That part of a building or non-building use which does not conform to one or more of the applicable Bulk Regulations of these Regulations, whether on its effective date or as a result of subsequent amendments.

Regulations § 5.2.1 Commercial/Industrial Zone Bulk Requirements sets forth the bulk requirements for nine zones in Stonington, including M–1 zone for which the minimum lot area specified is 80,000 square feet.

The Commission's analysis appears to have been based on the definition of bulk contained in § 1.2.2 of the Regulations, which provides, in part:

The size and shape of buildings and non-buildings uses;  ․ Bulk regulations include regulations dealing with floor area ratio, building height, lot area per dwelling unit, lot frontage, lot width, required yard, courts, useable open space, space in between buildings on a single lot and lengths of buildings in a row.

The Commission apparently viewed the omission of minimum lot area in the list of examples of bulk items as a specific intent to exclude minimum lot area from protection under § 2.6. However, § 1.2.2 states that “bulk regulations include regulations dealing with” the items enumerated therein.  (Emphasis supplied.)  “When ‘include’ is utilized, it is generally improper to conclude that entities not specially enumerated are excluded.”  Cruz v. Montanez, 294 Conn. 357, 382 (2009).   Accordingly, the Commission's exclusion of minimum lot area from the definition of bulk was improper.

In Northeast Parking, Inc. v. Planning and Zoning Commission, 47 Conn.App. 284, 293 (1997), the Appellate Court stated:

Although the position of the municipal land use agency is entitled to some deference the interpretation of provisions in the ordinance is nevertheless a question of law for the court.   The court is not bound by the legal interpretation of the ordinance by the [commission].   Rather, the court determines legislative intent from the language used in the regulations.   We interpret an enactment to find the expressed intent of the legislative body from the language it used to manifest that intent.  (Citations and quotation marks omitted.)

Minimum lot area in M–1 zone is listed in § 5.2 as a bulk item requiring a minimum area of 80,000 square feet.   The Commission's interpretation could result in no minimum lot area requirement for the M–1 zone and conflicts with the § 5.2 requirement of a minimum lot area of 80,000 square feet.   This is clearly an unreasonable result.

Zoning “regulations must be interpreted so as to reconcile their provisions and make them operative so far as possible ․ When more than one construction is possible, we adopt one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results.”  Graff v. Zoning Board of Appeals, 277 Conn. 645, 653 (2006).   The Commission's construction of §§ 1.2.2 and 5.2 leads to an unreasonable and bizarre result and must be rejected.

Accordingly, the court grants the plaintiff's appeal of the Commission's action.

The parties have agreed that if the court grants the plaintiff's appeal of the Commission's action, no further action is required on the plaintiff's appeal of the Board's action.

Seymour L. Hendel, J.T.R.

Hendel, Seymour L., J.T.R.