Thomas Halsey et al. v. Noank Zoning Board of Appeals (2014)

MEMORANDUM OF DECISION

The plaintiffs, Thomas and Elizabeth Halsey, appeal from a November 1, 2012 decision of the Noank Zoning Board of Appeals, which decision affirmed a denial of a zoning permit application for construction of a residential home.   The application had earlier been denied by the Noank Fire District Zoning Commission and the zoning enforcement officer.   For the reasons set forth in detail below, the court sustains the actions of the Noank Zoning Board of Appeals and dismisses the appeal.

1. Facts and Background

The record reflects that on March 27, 2012, Thomas and Elizabeth Halsey filed an application with the Noank Fire District Zoning Commission for a permit to construct a large single-family residence on a vacant lot at 28 Potter Court in Noank for use by members of their family.   The lot has been owned by the Halseys since 1987 ¹ and a previous residence located there was demolished some years earlier, due to environmental and safety concerns.

The Village of Noank, located in the Town of Groton, is an historic Connecticut seacoast town with unique village architectural features.   It is listed in the National Register of Historic Places and the proposed building is located within the National Historic District.²  The proposed dwelling is also to be located in the Village Residential District (RV), “a district ․ intended to preserve and enhance the traditional character of a small New England coastal village by encouraging retention of older buildings and diverse architectural styles ․” Zoning Regulations § 3.12.³ Any proposed dwelling located in the RV zone pursuant to the Noank zoning regulations must conform to all of the dimensional requirements of the zone, including all frontage, setbacks and lot coverage requirements, see Regulations § 3.3, § 3.4, § 3.5. It is conceded that, despite the unusual configuration of the lot, all dimensional requirements were met.   Unlike most lots located in the area, which present narrow frontage on the street side and run deep to the rear of the lot, 28 Potter Court came into being sometime in the mid-twentieth century and the opposite configuration;  wide street frontage, and narrow depth, presenting unusual challenges for any house plan in the context of the area.   In addition, applicants such as the Halseys must also obtain architectural design approval pursuant to Zoning Regulations § 2.26.

In general, in reviewing a plan application under this section, the Commission must determine “that the overall architectural character of the proposed site and building design is in harmony with the neighborhood in which such activity is taking place ․ and preserves and enhances the beauty of the community, its historical integrity, and architecture.”  Regulations § 2.26, above.   The Design Review Criteria consist of eleven design elements which are described in detail in the Regulations § 2.26 et seq.⁴  The design criteria were agreed by all of the architectural experts in this matter to be appropriate architectural criteria.

At the regularly scheduled meeting of the Noank Fire District Zoning Commission on April 17, 2012, the Commission first took up the Halseys' application.   At that meeting, the Halseys' architect.   William Roehl, presented the home design to the Commission.   It is a 96–foot–long home with a roof elevation of 34'8”.   The total footprint of the building would be 2,658 square feet.   It is apparent from a close reading of the transcript of the hearing that the Halseys' architect did not design their proposed residence after a detailed review of the design criteria.   Rather, he designed the house according to his clients' wishes and described that process in detail.   At the initial hearing, members of the public came and spoke about the proposed building.   The Commission members were also unequivocal in the expression of their concerns and reservations about the design.   They outlined those concerns in detail, referencing the specific design criteria in the regulations, which in their opinion the proposed home design did not meet.⁵  The matter was continued, so that the plan could be reviewed with possible suggestions for correction at a workshop scheduled for May 15, 2012.⁶

At the workshop, the Commission members again expressed their concerns about the proposed building, although some changes had been made by the Halseys' architect.⁷  Plaintiffs' architect maintained, despite the critical comments, that the design was in compliance with all regulations which applied to it, including the design review criteria.   Over the course of the next several months, both special and public meetings were held to address the proposed building plan.   Some changes were made by Mr. Roehl to the design;  the attached garage was moved back approximately sixty feet to lessen the impact of the length of the building from the street and the roof lines were lowered to thirty feet, although the Commission members continued to express their concerns.

Ultimately, the Commission retained a consultant, Patrick Pinnell, an architect and planner.⁸  His report sets forth in detail the various ways in which the building design is either incomplete or does not conform to the design review criteria of the zone.   The central points were that the scale of the building is larger than any other home in the surrounding Noank village streets;  in essence it is out of any village scale.   Further, its length and imposing frontage are out of place along the street and that the mixture of roof shapes is irregular.⁹  In addition, of the eleven criteria, he found six to be incomplete and without adequate detail to reach a clear conclusion, although some conjectures could be made.   Those were:  Regulations § 2.26.3.2 Portion of Building's Front Facades, § 2.26.3.6 Buildings and Structures and Relationship of Materials to be Used, § 2.26.3.7, Relationship of Textures, § 2.26.3.8 Walls of Continuity, § 2.26.3.10 Relationship to Environmental Setting, § 2.26.3.11 Directional Expression.   Some criteria were indeed met or partially met.   Those include, among others, § 2.26.3.3 Proportions of Openings within the Facade.   Mr. Pinnell concluded, based on his review of the criteria and the information before the Commission that the proposed plan was not in harmony with the neighborhood nor in conformity with the criteria in question.

Based on the consultant's comments, the Commission would have been well within its authority to take no action on this application, as the drawings were significantly incomplete, and also information concerning all the lots within 200 feet of this site had not been timely presented.   Indeed, on many occasions, Commission members expressed their frustration at the plaintiffs' failure to provide the necessary information and sought some of it on their own behalf.

Plaintiffs presented their expert's report challenging Mr. Pinnell's findings and Mr. Roehl continued to insist that the plan conformed to the criteria.   On July 30, 2012, the Commission voted three to two to deny the Certificate of Design Appropriateness, after continuing to express their negative opinions as to the unprecedented scale of the proposed building and its complex roof elements.¹⁰  As the matter had been referred to the Commission by the Zoning Enforcement Office, he also then denied the zoning permit application.   The plaintiffs then appealed both decisions, which were consolidated into one appeal before the Noank Fire District Zoning Board of Appeals.

Subsequently on October 11, 2012, the Board of Appeals took up the matter and had before it the entire record of the Commission hearings, workshop minutes and all exhibits.   The testimony before the Zoning Board of Appeals did not vary substantially from that presented during the hearings and meetings below.   Mr. Roehl continued to assert that his design met the design criteria.   At the hearing, Mr. Roehl admitted that the eleven design criteria were variously “the soul of architecture” or the “model of architectural standards,” although he had not considered them when he designed the proposed home.   The Halseys' consultant, also an architect, critiqued Mr. Pinnell's report.   Mr. Pinnell also testified as to his conclusions.

Mr. Pinnell carefully analyzed each of the design criteria and their specific application to the subject design.   In a general vein, he indicated that the “proposed building design had an architectural design like a villa, appropriate for a country setting with agricultural land around it.”   However, as he observed, in this instance, the Halseys do not own such surrounding land, yet their proposed house will certainly dominate all other houses located within the vicinity.   Even the Halseys' expert, Mr. Paradis, while maintaining the criteria were met, admitted that the issue of scale is the “most difficult one.”   At a subsequent meeting, the Zoning Board of Appeals members voted three to two in favor of the Halsey application, but such a vote fell short of the four votes needed to overturn the decision of the Zoning Commission.¹¹  The instant appeal ensued.

2. Aggrievement

In order to maintain their appeal, each of the plaintiffs must demonstrate that they are aggrieved by the decision of the Noank Zoning Board of Appeals from which this appeal emanate.   Aggrievement is jurisdictional, and a prerequisite for maintaining an appeal.  Winchester Woods Association v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1989);  Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 507, 242 A.2d 705 (1968).   Evidence by way of a certified copy of the recorded deed demonstrating the petitioners' ownership of the subject property was introduced at trial.   There is no question the Halseys are classically aggrieved by the action of the Noank Zoning Board of Appeals sustaining the action of the Noank Fire District Zoning Commission.

3. Scope of Review

Plaintiffs argue that the Noank Fire District zoning board of appeals;  (1) failed to state the reasons for its action on the record, (2) no substantial evidence exists in the record to support the Board's decision and (3) the decision is therefore arbitrary and illegal and expresses only personal opinions of the members.

“Ordinarily, zoning authorities act in either a legislative or an administrative capacity.”  Burke v. Board of Representatives, 148 Conn. 33, 38, 166 A.2d 849 (1961).   The determination of whether a zoning authority is acting in a legislative or administrative capacity is important as it implicates the scope of judicial review.   See Blakeman v. Planning & Zoning Commission, 82 Conn.App. 632, 643, 846 A.2d 950, cert. denied, 270 Conn. 905, 853 A.2d 521 (2004).   When a zoning commission acts on a special permit or site plan, it acts in an administrative capacity.   See Cybulski v. Planning & Zoning Commission, 43 Conn.App. 105, 110, 682 A.2d 1073, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996).  “When a commission is functioning in such an administrative capacity, a reviewing court's standard of review of the commission's action is limited to whether it was illegal, arbitrary or in abuse of [its] discretion.”  (Internal quotation marks omitted.)  Clifford v. Planning & Zoning Commission, 280 Conn. 434, 440, 908 A.2d 1049 (2006).

In appeals from administrative zoning decisions, the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record.   See Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 215, 779 A.2d 750 (2001).  Loring v. Planning & Zoning Commission, 287 Conn. 746, 756, 950 A.2d 494 (2008), states:

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 a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board ․ If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court ․ cannot substitute its judgment as to the weight of the evidence for that of the commission.

(Internal quotation marks omitted.)  Loring, supra at page 756.

Further, if a board:

states its reasons on the record [the court] look[s] no further ․ Where, however, the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board's decision.”   (Internal quotation marks omitted.)  Garlasco v. Zoning Board of Appeals, 101 Conn.App. 451, 455 n.8, 922 A.2d 227, cert. denied, 283 Conn. 908, 927 A.2d 917 (2007).  “[E]vidence 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.

(Internal quotation marks omitted.)  Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 114, 977 A.2d 127 (2009).

In this case, the Zoning Board of Appeals did not state the reasons for its action on the record, so the court must search the record to determine whether there is substantial evidence to support its conclusions.   The court concludes that there is ample evidence in the record before the Zoning Board to uphold its decision, albeit a close call in terms of its vote.¹²  That evidence included the minutes and transcripts of the hearings before the Noank Fire District Zoning Commission, the detailed and negative report of the commission's architectural expert, and the many negative comments of the commissioners themselves concerning the manner in which the proposed building plan did not meet the design review criteria.   It also included the testimony before the Zoning Board of Appeals on October 11, 2012.

It is correct that there is contrary and negative evidence before the board ably and passionately presented by the plaintiffs' experts, in particular the designing architect, Mr. Roehl.   Unfortunately, such negative information is not adequate to permit the court to conclude that the decision of the board was arbitrary or illegal and against the weight of the evidence.   The plaintiffs' inability to carefully weigh evidence contrary to their position is in part bound up in the fact that;  (1) their architect failed to design the building taking into account the design review criteria, (2) when confronted with various requests for changes to meet such criteria, their architect was only willing to alter the plan in what are essentially minor ways, which failed to address the major concerns, (3) the claim that the design met all the design criteria requirements, (4) the belief that the design review criteria of the Noank Fire District Zoning Commission are not authorized by the Connecticut's zoning enabling statute, Connecticut General Statures § 8.2 and are thereof outside the power of the Zoning Commission to adopt and apply.   They and Mr. Roehl apply the label “personal aesthetic” criteria in a pejorative manner to the entire enterprise, despite admitting to the fact that the criteria themselves are appropriate design criteria.   Such arguments are unavailing.

The substantial evidence in the record before the Board of Appeals, as noted, was extensive that the proposed plan did not conform to the regulations and therefore was denied.   It included Mr. Pinnell's testimony concerning the failure of this application to meet the design criteria in the important respects as noted above.   The crucial failure of this application is that it did not conform to Regulations § 2.26.31 in terms of scale, where scale is “the scale of construction which must relate to human scale and the scale of structures within 200 feet of the lot.”   And in general, the purpose of the design review regulations is to erect “building designs ․ in harmony with the neighborhood in which such activity is taking place.” ¹³  As noted by the Commission's architectural consultant, the design failed in this most crucial respect.¹⁴

The court does not possess the authority to ignore the substantial evidence before the board and substitute its own discretion for such conclusions, even if it were inclined to do so.   The record does contain within it detailed and substantial evidence to support the outcome reached.   As cited above, “[e]vidence 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.”  (Internal quotation marks omitted.)  Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 114, 977 A.2d 127 (2009).

The rule creates a significant hurdle for those who seek to invalidate a Board's action.   Stated somewhat differently than in the cases cited above, when analyzing the amount of such evidence in the record needed to sustain an agency's action, it imposes:

a more restrictive standard of review that standards embodying review of weight of the evidence or clearly erroneous action ․ It is something less than the weight of the evidence and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.

(Internal citations omitted.)  Property Group, Inc. v. Planning and Zoning Commission, 226 Conn. 684, 697–98, 628 A.2d 1277 (1993).

In this case, clearly it is possible to draw two inconsistent conclusions from the evidence as the plaintiffs clearly have done, and wish the court to do.   But the law is clear;  there remains substantial evidence in the record to support the agency conclusion, even if contrary to that which plaintiffs hold dear.   The decision of the Noank Fire District Board of Appeals was not arbitrary and capricious and is sustained.

4. Authority for the Noank Fire District's Enactment of the Design Review Criteria

The major and novel legal issue in this case as to whether a community may seek to preserve its historic character by enacting a zoning regulation which not only states its objective to do so, but further defines how it will do so by establishing eleven detailed design review criteria.   It is agreed by all that the criteria are appropriate architectural design criteria.   The parties also agree that the enactment process followed by the Noank Fire District Zoning Commission in adopting the subject regulations in 2006 was in accordance with the established procedure for enacting and amending zoning regulations and met all specific requirements for its valid adoption.

A. Discussion of Grant of Authority under Connecticut General Statutes § 8.2(a)

Plaintiffs argue, however, that the Connecticut's zoning enabling statute, Connecticut General Statutes § 8.2, does not grant to municipalities the right to regulate aesthetics or the design of homes.   For such details to be properly enacted and not ultra vires, a municipality must adopt either a historic district pursuant to Connecticut General Statutes § 7–l47p or establish a village district pursuant Connecticut General Statutes § 8–2j.   Plaintiffs cite the beginning lines of the zoning enabling statute for the proposition that the zoning powers are limited in scope.   As cited, Connecticut General Statutes § 8–2(a) provides in relevant part that:

[t]he zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures;  the percentage of the area of the lot that may be occupied;  the size of yards, courts and other open spaces;  the density of population and the locations and use of buildings, structures and land for trade, industry, residence or other purposes ․

It is certainly correct that any municipality's zoning powers are limited in scope by what is contained in the enabling statute, plaintiffs stop too short.   It is important to not ignore other portions of § 8–2(a) relevant to this matter before the court.   Those additional sections provide further definition to the contours of the zoning authority so granted.   So, for example, grant of authority extends to establishing “districts ․ and within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings ․” ¹⁵ Connecticut's zoning enabling statute, Connecticut General Statutes § 8.2 addresses the types of regulation which may be made and what is to be considered, among other things;

Such regulations shall be made with reasonable consideration to the character of the district and its peculiar suitability to particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land through such municipality ․ Zoning regulations may be made with reasonable consideration for the protection of historic factors and ․

§ 8.2(a) (emphasis added).

Plaintiffs maintain that this grant of authority does not permit the Zoning Commission s adoption of the design review criteria, although they admit that it does authorize the general language of Regulations § 3.1.¹⁶

That regulation authorizes the establishment of “a district ․ intended to preserve and enhance the traditional character of a small New England coastal village by encouraging retention of older buildings and diverse architectural styles ․” Noank Zoning Regulations § 3.12. So it follows that the village district itself is so authorized, and that the municipality may regulate the “erection, construction of ․ buildings within the district.   A methodology to regulate the construction of buildings with an eye towards “reasonable consideration for the protection of historic factors” is the substance of what is intended to be addressed in this general section of the Noank Zoning Regulations.

What the plaintiffs' ignore, however, is that that there must be a specific method reasonably calculated to carry out such permitted and authorized expressions of purpose, other than the general and aspirational statements contained in regulations § 3.12 just quoted.   If such aspirational and general statements were the limit of the grant of authority to municipalities by Connecticut General Statutes § 8.2(a), the instant zoning regulation could easily be attacked and struck down for being vague, arbitrary when applied to any specific building application, and not providing proper notice to applicants of what was intended.

The court finds that the design review criteria can easily be viewed as reasonable and objective criteria by which to determine whether or not any new building construction “preserves or enhances the traditional character of a small New England village.”   So the question arises.   What then should be the content of any regulations adopted by a zoning agency for the purpose of protecting the unique historic factors of a community?

Plaintiffs argue the dimensional requirements;  i.e., lot configuration, street setbacks and other mechanical regulations are adequate for the purpose and are all that is authorized by statute.   If this were so, assuming all dimensional requirements were met, the plaintiffs would have been free to build a modern glass house or a concrete modern several storied cube, for example, construction designs which would make no reference to the community in which they were constructed or to the historic character for the community.   Plainly, dimensional regulations do nothing to protect historic factors, which of necessity implicate the harmony of any proposed construction with its surrounding homes and their architecture and design.

The court further notes that in addition to the above quoted language of Zoning Regulations § 3.12, Regulation § 2.26, setting for the details of the design review criteria, also contains similar language which in turn also refers to the language of Connecticut's zoning enabling statute, Connecticut General Statutes § 8.2(a).  Regulation § 2.26 clearly states that the objective of the process is to determine that the:

character of the proposed site and building design is in harmony with the neighborhood in which such activity is taking place or accomplishes a transition in character between areas of unlike character, promotes property values in the neighborhood and preserves and enhances the beauty of the community, its historical integrity and architecture.  (Emphasis added.)

These are all references to the specific grant of authority under § 8.2(a) for communities to make regulations taking such factors into account.   Admittedly, there are diverse styles in Noank, but the goal is to review what is in the immediate vicinity, that is within 200 feet of the subject property and proposed building.   The next step is for the Commission then to carefully analyze such proposed construction from the optic of its harmony to those of immediate surroundings and neighborhood character.   See also Regulations § 2.26.1 and § 2.26.3. Certainly, the design review criteria categories are all reasonable criteria that could be applied to a significant variety of proposed buildings, without falling afoul of prohibited “vague aesthetics” considerations.   They include scale, portion of building's front facades, proportion of openings within the facade, the rhythm of solids to voids in the facade, the rhythm of spacing of buildings on the street, buildings and structures and relationship to materials, relationship of textures, relationship of roof shapes, walls of continuity, relationship to environmental setting, and last directional expression.¹⁷  All are elements of a building's construction.   Despite the use of the word “architectural” to which plaintiffs take exception, the court finds these criteria are all reasonably calculated to take into account historic factors, the character of this community, as well as its general public welfare.   These are all the subjects of permissible regulation pursuant to Connecticut General Statutes § 8–2(a).

As is the case with the substantial evidence rule discussed earlier in this decision, there are some guidelines for the court to follow when considering whether or not a municipal ordinance is valid under the zoning enabling statute.   In Builders Service Corp., Inc. v. Planning and Zoning Commission of the Town of East Hampton, 208 Conn. 267, 289–90, 545 A.2d 530 (1988), the court stated:

[Zoning legislation has been upheld as a legitimate subject for the exercise of police power provided it has a reasonable relation to the public health, safety and welfare, and operates in a manner which is not arbitrary, destructive or confiscatory.   Whether specific regulations meet the test of a constitutional exercise of the police power must be determined in the light of the circumstances shown to exist in a particular case.   Whether the times and conditions require legislative regulation, as well as the degree of that regulation, is exclusively a matter for the judgment of the legislative body ․ Courts can interfere only in those extreme cases where the action taken is unreasonable, discriminatory or arbitrary.   Every intendment is to be made in favor of the validity of [an] ordinance and it is the duty of the court to sustain the ordinance unless its invalidity is established beyond a reasonable doubt.

(Internal quotation marks and citations omitted.)

The court concludes that the regulation in question is reasonably related to public health safety and welfare, and the circumstance of this case do demonstrate that there are a reasonable and constitutional exercise of the power granted to the Noank Fire District Zoning Commission and thus to be reviewed and applied by the Noank Fire District Zoning Board of Appeals.

B. Impact of other Legislation and Statutory Construction

There are additional arguments which plaintiffs' propound to claim that Connecticut General Statutes § 8–2(a) does not grant to the zoning Commission the right to enact such regulation.   As mentioned, they include that either Connecticut General Statutes § 8–2j or § 7–147p are the only permissible avenues of adopting such design regulation, both of which would have required different procedures for adoption than the method utilized by the Commission.   The court turns to the principles of statutory construction to begin its consideration of these arguments.

“The principles that govern statutory construction are well established.   When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of other statutes.   If, after examining the statute itself and its relationship such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”  (Internal quotation marks omitted.)  Okeke v. Commissioner of Public Health, 304 Conn. 317, 325–26, 39 A.3d 1095 (2012).  “[W]e presume that the legislature intends sensible results from the statutes it enacts ․ Therefore, we read each statute in a manner that will not thwart its intended purpose or lead to absurd results.”  (Internal quotation marks omitted.)  Hibner v. Bruening, 78 Conn.App. 456, 459 828 A.2d 150 (2003).  “Furthermore, we presume that laws are enacted in view of existing relevant statutes ․ and that [s]tatutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law.”

(Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 518, 923 A.2d 638 (2007).  (Emphasis added by this court.)

Turning first to the historic district legislation, Connecticut General Statutes § 7–147p, the first relevant fact is that this was adopted by the legislature prior to the date on which the amendments to Connecticut General Statutes § 8–2(a) concerning historic factors were added.¹⁸  Turning again to the principles of statutory construction, the legislature is presumed to enact laws in view of existing relevant statutes ․ “and that [s]tatutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law.”   See Cogswell, supra, page 518.   If one considers that both statutes form a coherent body of law, then there would have been no need to add these extra provisions to Connecticut General Statutes § 8–2(a), similar to those provided for with greater detail in the historic district legislation, if the legislature at that time had intended that only that section to the statute could be used for the “protection of historic factors” in a community.   Such interpretation would lead to inconsistent results and an unworkable series of statutes.

Treated as defendant claims, a coherent whole body of law can still be found by giving both statutes their proper scope and permitting more than one reasonable manner for local communities to protect the character of their community, its property values and historic factors.   The court does not find that the language of Connecticut General Statutes § 8–2(a) granting to municipalities the right to consider historic factors is nullified by the earlier adoption of Connecticut General Statutes § 7–147p.

Considering the next claim that the other permissible method would have been to establish a village district pursuant to Connecticut General Statutes § 8–2j, the court is also not persuaded by plaintiffs' argument.   This legislation was enacted well after the amendments to Connecticut General Statutes § 8–2(a) that added the language concerning the “character of the district and ․ protection of historic factors.”   It states that a “zoning commission may establish village districts ․”

Again, the mandate is to construe the statutes as they must have been intended and to create a consistent body of law.   And as above, both are reasonable methods of protection of a historic community, and each method may be available to any community for the protection of its unique character, without creating inconsistencies or superfluous statutory language.   Further, the legislature did not choose to amend Connecticut General Statutes § 8–2(a) to delete those references or add to Connecticut General Statutes § 8–2j “notwithstanding the language of Connecticut General Statutes § 8–2(a), a commission may ․” Such language is often used when the intention is to repeal or in some manner limit earlier legislation.   It also did not amend Connecticut General Statutes § 8–2(a) under the section relating to the protection of historic factors and add “as set forth in Connecticut General Statutes § 8–2j or § 7–147p,” a simple step to have taken, if it had been the intent to make village districts or historic districts the only method to protect such factors within a community through zoning regulations.   Neither amendment nor repeal was undertaken, and the court concludes that the intent was to continue to permit alternative methods for municipalities to enact regulations for protection of historic locales pursuant to Connecticut General Statutes § 8–2(a).

One additional argument plaintiffs raise is that the language of Connecticut General Statutes § 8–2(a) concerning the protection of historic factors was repealed by this legislation.   For this, there is in addition another axiom of statutory construction to be considered.

It is a well-established rule of statutory construction that repeal of the provisions of a statute by implication is not favored and will not be presumed where the old and the new statutes ․ can peacefully coexist ․ If, by any fair interpretation, we can find a reasonable field of operation for both ․ without destroying or perverting their meaning and intent, it is our duty to reconcile them and give them concurrent effect.  (Internal quotation marks omitted.)  Rivera v. Commissioner of Correction, 254 Conn. 214, 242, 756 A.2d 1264 (2000).

Such repeal could only be by implication, something the law frowns upon and this court will not hold.   Further:

when two statutes relate to the same subject matter, every effort should be made to find a reasonable field for the operation of both statutes ․ [and] where there is a reasonable field for each statute which does not impinge on the domain of the other, it is the court's duty to give them concurrent effect.

(Citations omitted, internal quotation marks omitted.)  Windham First Taxing District v. Windham, 208 Conn. 543, 553, 546 A.2d 226 (1988).

In this instance, the court concludes that legislation permitting village districts as set forth in Connecticut General Statutes § 8–2j cannot have repealed the earlier additions to Connecticut General Statutes § 8–2(a).   Both statutes can be given scope and operate without impinging on the other.   The court concludes that Connecticut General Statutes § 8–2j is not the exclusive method of protecting the unique historic features of a seacoast town;  otherwise the legislature would have so acted and repealed the provisions of Connecticut General Statutes § 8–2(a) specifically.

C. Discussion of Case Law

There are yet additional arguments plaintiffs raise to claim Connecticut General Statutes § 8–2(a) does not grant to communities the right to enact zoning regulations such as Noank's Zoning Regulation § 2.26 This is by their analysis of the applicable case law.   The Plaintiffs cite Capalbo v. Planning & Zoning Board of Appeals, 208 Conn, 480, 547 A.2d 528 (1988), as standing for the proposition that general considerations, such as promoting health and the general welfare are not freestanding, but can be accomplished only through the specific powers enumerated in the statute.  Capalbo involved the regulations of signs in a community, which prohibited more than three different colors on a sign.   The court held that such regulation was not authorized as § 8–2(a) specifically enumerates what can be regulated with respect to signs, which are their height, size and location.   Color is not mentioned.

The present case differs as there are not specific categories of regulated area which are permissible for the “reasonable protection of historic factors” enumerated in the statute.   If there were, this would be a different case.   Another case on which Plaintiffs rely is Buttermilk Farms v. Planning and Zoning Commission, 292 Conn. 317, 973 A.2d 64 (2009).   In Buttermilk in reviewing a subdivision application, the Commission had mandated the addition of sidewalks outside the subdivision area.   The court held that this was impermissible, as the grant of authority to communities for subdivisions of land only included sidewalks within the subdivision grounds.   In this case, that would be akin to applying the design review criteria outside of the listed streets or the district itself, something that is not at issue.   Both cases are inapposite to the present situation before the court, despite the more general language cited by plaintiffs.

Another case cited is DeMaria v. Planning and Zoning Commission, 158 Conn. 534, 271 A.2d 105 (1970).  DeMaria, decided before the addition of the much quoted language to the zoning enabling statute.   Only one reason was cited in the record below by the Planning and Zoning Commission for turning down an application for an apartment complex and that was “aesthetic reasons.”   One wonders what the Connecticut Supreme Court might have made of the situation, after the adoption of the changes in 1977 and if the commission had cited neighborhood characteristics and had adopted standards by which any building, including complex of apartments would be reviewed.   If those factors were part of the equation, would the court have decided differently?   At any rate, with respect to the case before the court, DeMaria simply does not provide controlling precedent, given the timeframes in question.

ORDERS

For all the foregoing reasons, the court finds that the Noank Fire District Zoning Regulations § 2.26 establishing the Design Review Criteria were properly authorized under Connecticut General Statues § 8.2(a) and duly adopted.   The regulations reflect a proper exercise of authority granted by Connecticut General Statues § 8.2(a) to the Noank Fire District Zoning Commission for the protection of historic factors within the community it serves.   The court also concludes that there was substantial evidence in the record to support the Noank Fire District Zoning Board of Appeals decision. for all of the foregoing reasons, the instant appeal is dismissed.

BY THE COURT

Barbara M. Quinn, Judge Trial Referee

APPENDIX A

May 1 of any year, providing such structure meets all setback and height requirements of accessory buildings.   Any such structure remaining after May 1 of any year shall be considered a violation of these Regulations.

2.2 BUILDING IN FLOOD PLAIN AREAS

No zoning permit shall be granted to permit the construction of a new building or any addition to an existing building on any lot, a portion of which is located in a Flood Plain Area as mapped under the National Flood Insurance Program until all requirements of Sections 1 & 2 of these regulations are complied with.

2.2 PROHIBITED USES

No manufactured home, mobile home or recreational vehicle may be parked or placed within the jurisdiction of the Noank Fire District.   No vehicle or trailer having a gross weight exceeding five tons may be parked within the Noank Fire District except:  a) to load or unload within 72 hours;  b) in conjunction with a bona fide construction project as determined by the Zoning Enforcement Officer;  c) any public utility or fire vehicles;  d) equipment used in the hauling and moving of boats if parked on shipyard property.   No vehicle, truck, trailer or temporary structure shall be used for habitation or storage except as permitted by these regulations.   No houseboat may be docked, tied up or moored except within those areas zoned Waterfront Commercial.

2.2 LOBSTER POTS AND FISHING GEAR

Nothing within these regulations shall prohibit the storing of lobster pots or fishing gear on any lot within the Noank Fire District.

2.2 SUBDIVISION APPROVAL

All subdivisions as defined in Section 8–18 of the Connecticut General Statutes as amended must be approved by the Town of Groton Planning Commission.   Subdivision plans must be prepared in accordance with the Town of Groton's Subdivision Regulations and all subdivision plans for property in the Noank Fire District must be referred to the Noank Zoning Commission by the Planning Commission at least 15 days prior to any scheduled public hearing or at least 15 days prior to the meeting at which the Planning Commission is to take action if no hearing is required.   Such referral shall be for the purpose of reviewing said plans to assure their conformance with the Zoning Regulations of the Noank Fire District and the general suitability of the proposed subdivision with the character of Noank.  (Amended 1/1/90.)

2.25.1 Furthermore, no subdivision shall be approved by the Town of Groton's Planning Commission unless written confirmation is provided to the Planning Commission from the Executive Committee of the Noank Fire District that adequate fire protection can be provided and public water supply is being provided by the Noank Water Department or other such water company as approved by the Executive Committee of the Noank Fire District.

2.26 ARCHITECTURAL DESIGN

No site plan and/or special exception required under these Regulations shall be approved nor shall any structure be constructed or exterior renovation or substantial improvement to an existing structure in the RV zone or on the streets listed below be permitted until the Zoning Commission determines that the overall architectural character of the proposed site and building design is in harmony with the neighborhood in which such activity is taking place, or accomplishes a transition in character between areas of unlike character;  protects property values in the neighborhood, and preserves and enhances the beauty of the community, its historical integrity and architecture.   The applicant shall provide adequate information to enable the Commission to make that determination, including architectural plans of all buildings, other structures and signs.   Such plans shall include preliminary floor plans and elevations showing height and bulk, roof lines, door and window details, exterior building materials, color and exterior lighting.   Site plans shall show paving materials, landscaping, fencing, lighting design and other features of the site and buildings which are visible from the exterior of any building on the site or from adjacent properties or streets and which may impact on the character or quality of life on adjoining properties and throughout the Fire District.   Design review requirements shall apply to all structures, exterior renovations, and substantial improvements within the RV zone.   They shall also apply to all properties which abut the following streets regardless of the underlying zone:  Brook Street (old and new), Prospect Hill Road, Elm Street (Route 215 to Fishtown Road), Spicer Avenue, and Wilbur Court.

2.26.1 Design Review Requirements

The purpose of the design review requirements is to encourage development which will protect, preserve, and enhance the unique historic character of Noank, and particularly it's Village, through design standards that reflect Noank's district architectural character and scale.

In addition to all other requirements of the Zoning Regulations, the applicant for all buildings or structures and sites subject to a review by the Commission under this section, shall submit scaled elevation drawings of the proposed structures for a design review.   The scale of such drawings shall not be smaller than one-eighth inch equals one-foot (1/8”=1'–0”).   The drawings shall locate and identify exterior materials, fixtures, roof pitch, and building or structure height and include dimensions and architectural characteristics.   The applicant shall also provide the Commission with all required comparative information regarding lots within two hundred (200) feet of the lot on which the development is proposed.

2.26.2 Standards for Design Review of Buildings and Structures

The Commission shall review all plans for renovations, substantial improvements, and construction of new buildings or structures for a determination of appropriateness of design.   All determinations will be based on a review of structures on all lots within two hundred feet of the lot on which development is proposed, including any structures already existing on the lot to be developed.

2.26.3 Criteria as Guidelines

The following criteria shall be guidelines to be used by the Commission in the determination of appropriateness, in keeping with the architectural fabric of the Noank Fire District:

2.26.3.1 Scale:  Scale of construction, which must relate to human scale and the scale of structures within two hundred feet of the lot.

2.26.3.2 Proportion of Building's Front Facades:  Proportion of building's front facade is defined as the relationship between width and height of the front elevation of the building.

2.26.3.3 Proportion of Openings Within the Facade:  Proportion of the openings within the facade is defined as the relationship of width to height of windows and doors.

2.26.3.4 The Rhythm of Solids to Voids in the Facade:  Rhythm of solids to voids in the facade is defined as an ordered, recurrent alternation of openings to solid walls.

2.26.3.5 Rhythm of Spacing of Buildings on the Street:  Rhythm of spacing of buildings on the street, or the occurrence of building masses to spaces between them.

2.26.3.6 Buildings and Structures and Relationship of Materials to be Used:  Relationship of rnaterials to be used in buildings and structures, or the mixture of exterior materials, such as wood, brick, glass, or slate to those materials used within two hundred feet of the lot.

2.26.3.7 Relationship of Textures:  Relationship of textures of the predominant material used, which shall reflect the types used within two hundred feet of the lot, such as rough (brick and tooled joints) or smooth (horizontal wood siding).

2.26.3.8 Relationship of Roof Shapes:  Relationship of roof shapes, which should be compared to the majority of roofs within two hundred feet of the lot.   For example:  gable, gambrel, or hip.

2.26.3.9 Walls of Continuity:  Walls of continuity, described as the physical ingredients that form screens or enclosures around the project (such as brick walls, iron/wood fences, evergreen screens berms and hedges).

2.26.3.10 Relationship to Environmental Setting:  Relationship of buildings, structures, and landscaping to the blending of the project with the environment within two hundred feet of the lot, or to the needs for landscaping to buffer, screen, or soften a project from adjoiners of for site users.

2.26.3.11 Directional Expression:  Directional expressions of the elevation's structural shape or placement of details and openings of the front facade, which may have a vertical, horizontal, or a non-directional character.

2.26.4 Compliance

The Commission shall develop a set of findings and required changes that will be forwarded to the applicant.   Failure to receive a determination of appropriateness shall be a basis of denial of the application.

2.26.5 Modification

Substantial changes to the proposal after formal approval must be reviewed by the Commission or a royal.   Minor changes that would not materially affect the applicant's compliance with any of the criteria may be approved by the Zoning Enforcement Officer.

2.26.6 Special Criteria for Exterior Renovations and Substantial Improvement of Existinig Buildings

In addition to the above criteria, exterior renovation of substantial improvement of a building or structure visible from a public street or from navigable waters shall be subject to the following criteria:

2.26.6.1 Every reasonable effort shall be made to provide a compatible use for a structure which requires minimal alteration of its site, environment or originally intended purpose.

2.26.6.2 The distinguishing original qualities or character of a building or structure, its site, and its environment shall not be destroyed.   The removal or alteration of any historic material or distinctive architectural features should be avoided when possible.

2.26.6.3 All buildings, structures, and sites shall be recognized as products of their own time.   Renovations shall generally be compatible with the existing structure or buildings on-site, but renovations that have no historical basis and which seek to create an earlier appearance shall be discouraged.

2.26.6.4 Changes which may have taken place in the course of time are evidence of the history and development of a building, structure, its site and its environment.   These changes may have acquired significance in their own right, and this significance shall be recognized and respected.

2.26.6.5 Distinctive stylistic features or examples of skilled craftsmanship which characterize a building, structure, or site shall be treated with sensitivity.

2.26.6.6 Deteriorated architectural features shall be repaired or replaced to the extent possible.   In the event replacement is necessary, the new material should match the material being replaced in composition, design, texture and other visual qualities when feasible.   Repair or replacement of missing architectural features should be based on accurate duplication of features, substantiated by historic, physical, or pictorial evidence rather than on conjectural designs or the availability of different architectural elements from other buildings or structures.

2.26.6.7 Renovations and additions which destroy significant historical, architectural, or cultural characteristics shall be discouraged.

2.26.6.8 Designs shall generally be compatible with the size, scale, material, and character of the original structure and other structures within 200 feet of the lot.

2.26.6.9 Whenever possible, new additions or renovations to buildings and structures shall be done in such a manner that if such additions or renovations were to be removed in the future, the essential form and integrity of the structure would be unimpaired.

2.26.7 Design Review Procedure

2.26.7.1 Administrative Design Review

All applications for design review shall first be reviewed by the Zoning Enforcement Officer.   The Zoning Enforcement Officer may approve minor applications for design review.   These applications shall be limited to replacement of windows, roofing, and siding with the same or appropriately similar styles provided that all applications are in keeping with the intent of the design review guidelines of Section 2.26.   The Zoning Enforcement Officer may refer applications to the Zoning Commission for further review if necessary in his opinion.   Applications approved by the Zoning Enforcement Officer by this method will not be subject to Section 2.26.8 “Posting of Property.”  (Amended 1/29/2008.)

2.26.7.2 Zoning Commission Review

For applications, other than minor applications approved by the Zoning Enforcement Officer under section 2.26.7.1, if the Zoning Enforcement Officer determines that the proposal will have minimal effect on surrounding properties and public views, including views from navigable waters, and substantially conforms to the requirements for design review, he shall so advise the Commission, which may approve the application at its next regular meeting.   If, however, the Commission determines that the application requires further review, the Commission may elect not to approve the application or to table the application and send it to an outside consultant who will make a report to the Commission to assist in deliberations.  (Amended 6/17/2008.)

2.26.8 Posting of Property

The applicant for design review approval under Section 2.26 of these Regulations shall erect, or cause to have erected, a sign on the premises affected by the proposed application at least fifteen days prior to Commission review of the site plan.   Said sign shall be provided by the Zoning Enforcement Officer upon request of the applicant.   Said sign shall be installed by the applicant, securely fastened or staked, be clearly visible from the street closest to the affected property, and shall be maintained as such until fifteen days following the public notice of Commission action on the application.

FOOTNOTES

FN1. See Plaintiff's Exhibit I, deed to the property dated September 30, 1987 and recorded in Volume 454 at Page 52 of the Town of Groton Land Records..  FN1. See Plaintiff's Exhibit I, deed to the property dated September 30, 1987 and recorded in Volume 454 at Page 52 of the Town of Groton Land Records.

FN2. Return of Record, hereafter “ROR,” Exhibit 70, “Village of Noank, Historic and Architectural Resources Survey Report, Town of Groton, Connecticut.   Phase V—Volume V–I.”.  FN2. Return of Record, hereafter “ROR,” Exhibit 70, “Village of Noank, Historic and Architectural Resources Survey Report, Town of Groton, Connecticut.   Phase V—Volume V–I.”

FN3. ROR, Exhibit 69..  FN3. ROR, Exhibit 69.

FN4. The full design review criteria are attached as Appendix A and made part of the decision..  FN4. The full design review criteria are attached as Appendix A and made part of the decision.

FN5. ROR, Exhibit 7, Transcript of the Regular Meeting of the Noank Fire District Zoning Commission of April 17, 2012, pages 19–21..  FN5. ROR, Exhibit 7, Transcript of the Regular Meeting of the Noank Fire District Zoning Commission of April 17, 2012, pages 19–21.

FN6. Ibid, page 24..  FN6. Ibid, page 24.

FN7. ROR, Exhibit 53(j)(i), approved minutes of the special meeting held May 15, 2012..  FN7. ROR, Exhibit 53(j)(i), approved minutes of the special meeting held May 15, 2012.

FN8. ROR, Exhibit 27, Curriculum Vitae..  FN8. ROR, Exhibit 27, Curriculum Vitae.

FN9. Specifically, he noted in his report, ROR Exhibit 28, that:Observations on Harmony/Conformity2.26.3.1 Scale ․ The upshot is that the scale of the design proposed for 28 Potter [Court] is that of a large intentionally impressive country house.   Such an item was almost never found in a village setting, because its basic premise was existence within she surrounding agricultural lands.   The Potter Court proposal is mildly asymmetrical in massing, its corner pilasters and pediments would feature gothicky brackets and ornamental ties, but the latter are superficial additions to the basic Palladian masses ․ it remains the case that the basic building massing scale is not urban, not village-premised, and certainly without precedent in Noank.2.26.32.2 Proportion of Building's Front Facades ․ Because the moldings and other details are not present in this schematic stage of design, the strongly projecting central mass on the two-story center block of the house, in particular, runs the risk of looking thin, almost cardboard.2.26.3.5 Rhythm of Buildings on the Street ․ Even though the monumentality of the Palladian “part” is diminished somewhat by the asymmetrical wings, the overall masses, broadside to the street, would be overbearing and out of place.2.26.38 Relationship of Roof Shapes ․ related to the overall issue of street rhythm is the rhythm of roof volumes on the house proper for all its large broad overall massing.   28 Potter [Court] proposes an oddly jumpy set of pediments, hips and rooflets ․ Some of that can be understood by looking at a roof plan, a drawing of which wasn't in the submitted set ․ attached is the plan as best it could be inferred ․ In all probability, it will have the same slightly nervous irregularity of roof emphasis.   While the roof types each have some precedent in the area, there is no house in which they are assembled in quite such a fashion..  FN9. Specifically, he noted in his report, ROR Exhibit 28, that:Observations on Harmony/Conformity2.26.3.1 Scale ․ The upshot is that the scale of the design proposed for 28 Potter [Court] is that of a large intentionally impressive country house.   Such an item was almost never found in a village setting, because its basic premise was existence within she surrounding agricultural lands.   The Potter Court proposal is mildly asymmetrical in massing, its corner pilasters and pediments would feature gothicky brackets and ornamental ties, but the latter are superficial additions to the basic Palladian masses ․ it remains the case that the basic building massing scale is not urban, not village-premised, and certainly without precedent in Noank.2.26.32.2 Proportion of Building's Front Facades ․ Because the moldings and other details are not present in this schematic stage of design, the strongly projecting central mass on the two-story center block of the house, in particular, runs the risk of looking thin, almost cardboard.2.26.3.5 Rhythm of Buildings on the Street ․ Even though the monumentality of the Palladian “part” is diminished somewhat by the asymmetrical wings, the overall masses, broadside to the street, would be overbearing and out of place.2.26.38 Relationship of Roof Shapes ․ related to the overall issue of street rhythm is the rhythm of roof volumes on the house proper for all its large broad overall massing.   28 Potter [Court] proposes an oddly jumpy set of pediments, hips and rooflets ․ Some of that can be understood by looking at a roof plan, a drawing of which wasn't in the submitted set ․ attached is the plan as best it could be inferred ․ In all probability, it will have the same slightly nervous irregularity of roof emphasis.   While the roof types each have some precedent in the area, there is no house in which they are assembled in quite such a fashion.

FN10. ROR, Exhibit 53(j)(v)..  FN10. ROR, Exhibit 53(j)(v).

FN11. ROR, Exhibit 66 and 68..  FN11. ROR, Exhibit 66 and 68.

FN12. For the plaintiffs, who are the losing party below, it is of course difficult to give credence to a decision, which is negative purely by operation of board regulations rather than the mere majority of the board members.   As noted, of all the members of either the Commission or the Board voting, 5 were in favor and 5 against.   Nonetheless, the regulations themselves require what might, in this context, be labeled “a super majority.”   So the court must treat this vote as approval of the denial of the application and search the record for the substantial reasons which support such a finding..  FN12. For the plaintiffs, who are the losing party below, it is of course difficult to give credence to a decision, which is negative purely by operation of board regulations rather than the mere majority of the board members.   As noted, of all the members of either the Commission or the Board voting, 5 were in favor and 5 against.   Nonetheless, the regulations themselves require what might, in this context, be labeled “a super majority.”   So the court must treat this vote as approval of the denial of the application and search the record for the substantial reasons which support such a finding.

FN13. Regulations 2.26..  FN13. Regulations 2.26.

FN14. See ROR, Exhibit 67, Transcript of Zoning Board of Appeals Hearing, October 11, 2012, pages 89–100..  FN14. See ROR, Exhibit 67, Transcript of Zoning Board of Appeals Hearing, October 11, 2012, pages 89–100.

FN15. While the words “erection” and “construction” can be read narrowly to refer to the various state building codes, the court finds more is meant by these terms within the statute, and such specific grant of authority can reasonably include the type of building so constructed or erected..  FN15. While the words “erection” and “construction” can be read narrowly to refer to the various state building codes, the court finds more is meant by these terms within the statute, and such specific grant of authority can reasonably include the type of building so constructed or erected.

FN16. See footnote 5 for Plaintiffs' Brief dated October 10, 2013..  FN16. See footnote 5 for Plaintiffs' Brief dated October 10, 2013.

FN17. See appendix A attached hereto and made a part hereof with all the detail of the design review criteria..  FN17. See appendix A attached hereto and made a part hereof with all the detail of the design review criteria.

FN18. 7–l47p was adopted in 1961 many years before the quoted changes to 8–2(a) in 1977..  FN18. 7–l47p was adopted in 1961 many years before the quoted changes to 8–2(a) in 1977.

Quinn, Barbara M., J.