Albert S. Turner v. Town of Groton Zoning Commission (2015)

MEMORANDUM OF DECISION ON APPEAL

By a revised complaint, Albert S. Turner (appellant or plaintiff) appeals from the approval by the Groton Zoning Commission (defendant or commission) of a June 1, 2011, application for a special permit for the mining, processing—including of material from off-site—and sales of earth products at the property known as 0 Yetter Road, Groton, Connecticut (the property).¹  On July 12, 2012, the court granted a motion by the applicants for that permit, Robert F. Whittle (Robert), William T. Whittle (William) and Richard A. Whittle (Richard), to intervene.²  The record was duly filed by the defendant and briefs were duly filed by the parties.   On April 16, 2014,³ the appeal was argued and the minutes of the February 12, 2012, meeting of the defendant setting forth the terms of the permit were filed. # 153.

FACTS

The defendant is the duly formed and empowered zoning commission of the Town of Groton.   The subject property consists of about seventy-seven acres in the Town of Groton bounded on the east, in part, by Yetter Road and by land owned by the plaintiff on the north by state route 184;  and on the west by a half dozen smaller parcels.   See # 114.   The property is zoned residential—RU–40, in particular.

Prior to the application, and fundamental to the application, use of the property had been the subject of administrative and judicial proceedings for years.   In July of 2007, Kevin Quinn, the Manager of Inspection Services for the Town of Groton (Quinn), issued an order to the intervenors which concerned four activities at the property:  1) excavation of sand and gravel from the property;  2) processing of sand and gravel extracted from the property;  3) processing of sand, gravel and other earth products which were not extracted from the property, i.e., which were brought to the property from elsewhere;  and 4) the crushing, by machine, of rock of any origin (the 2007 order).   The 2007 order stated that 1) the extraction of sand and gravel from the property and 2) the processing at the property of such sand and gravel had commenced prior to the enactment of zoning regulations by the defendant and were, therefore, preexisting, nonconforming uses.   The 2007 order required the intervenors to apply to the defendant for a special use permit for those two uses (the “Legal Non–Conforming Uses”).

The 2007 order stated that the third and fourth uses—processing of earth products which had not been extracted from the property and the mechanical crushing of rocks of any origin (the “Non–Permitted Uses”)—had not commenced prior to the enactment of the Groton zoning regulations, were not permitted in the RU–40 zone, and had to cease immediately.

Robert, William and Richard Whittle (together “the Whittles” or “intervenors”), appealed both aspects of the 2007 order—that the intervenors had to obtain a permit for the “Legal Non–Conforming Uses” and that they had to cease the “Non–Permitted Uses”—to the Groton Zoning Board of Appeals (ZBA).   The ZBA duly heard the appeal and, on November 14, 2007, denied it:  the ZBA upheld the 2007 order in all respects.

The intervenors then appealed the ZBA's decision to this court.   See Whittle v. Town of Groton Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. KNL–CV–08–4007938–S (Whittle v. ZBA).⁴  Eventually, after considerable negotiation and approval by the ZBA,⁵ the parties entered into a “Settlement Agreement” dated May 12, 2011. # 112/39–48.  (That agreement, also referred to as the “Stipulated Judgment” and the “stipulated agreement”;  will be referred to in this decision simply as “the Agreement.”)   On that day, after a hearing pursuant to General Statutes § 8–8(n), Judge James Devine ordered the “[Agreement] granted as a judgment of court.” # 112/48.

In the preamble of the Agreement, the Whittles stipulated that they “have manifested their willingness to accept Quinn's determination that they must obtain a special permit in order to continue the Legal Non–Conforming Uses [;] ․ that absent this Settlement Agreement the Non–Permitted Uses would not be allowed on the Property under current Groton zoning regulations, and that those uses may only be continued on the Property if the court in this appeal were to determine that they are non-conforming uses for purposes of Connecticut law and the Groton zoning regulations, or if the parties were to agree to allow them to continue in order to avoid the expense and uncertainty of continued litigation;  [and that they] wish to continue to engage in the Non–Permitted Uses, subject to such reasonable regulations of them as might be imposed as a part of any zoning permit(s) they might be able to obtain to do so.”   Emphasis added.

Since the meaning and effect of the Agreement is fundamental to this appeal, its pertinent terms are here quoted:

NOW THEREFORE, the parties agree:

1. This Agreement shall be effective upon its approval by the court pursuant to C.G.S. § 8–8(n).  The Whittles need not file a withdrawal of the Appeal, however, until they obtain a special use permit allowing the non-conforming and the non-permitted uses as described herein.   It shall be an express condition of any such special use permit that the Whittles file a withdrawal of this appeal before the special use permit may become effective and before it may be recorded.

2. The Whittles, no later than one month after the court's approval of a motion to approve this Settlement Agreement and authorize their withdrawal of this appeal, shall file in complete good faith and prosecute with all due diligence an application(s) for a special use permit (and if required by the zoning regulations, thereafter promptly file an application(s) for approval of an associated site plan(s)) (“Special Use Permit”) for the continuation of the Legal Non–Conforming Uses and the Non–Permitted Uses on such terms and with such limits as the Zoning Commission and any other Groton land use agency or official with jurisdiction might impose.   Failure to file the permit application within the time period provided shall invalidate this Agreement.

3. If on September 1, 2011 the Whittles have not obtained and recorded a Special Use Permit and associated site plan(s), their rights under this Settlement Agreement shall terminate.   That termination date shall extend until the date of the final adjudication in favor of the Whittles of any appeal(s) that might be taken to the Superior Court from the granting of such special use permit/site plan application(s) by third parties, or if either application is pending before the zoning commission and/or other relevant Groton land use agency, until the agency acts on the application.   Nothing herein prohibits the ZBA from asking the court to modify or terminate the “Restraining Order” issued on or about March 11, 2008.

4. The purpose of the Whittles' application for a Special Use Permit with regard to the Legal Non–Conforming Uses shall be to enable the Zoning Commission to apply the zoning regulations now in force, including without limitation § 7.1–10 et seq.  [“Filing and Removing Earth Products”], to said activities and to among other things establish the terms under which said activities may continue and by which they shall be terminated and all disturbed areas on the Property shall be restored and maintained.

5. To eliminate the uncertainty inherent in litigation and to better regulate and order all of the mining/excavation/refining and processing operations on the Property, and the ultimate closure of the site, the parties hereby agree for purposes of this Settlement Agreement and of the Special Use Permit and any associated permits to be sought pursuant to it that the Non–Permitted Uses may continue on the Property, subject to the following terms and conditions, which shall be part of the application the Whittles submit to the Groton Zoning Commission for a special use permit:

a. For purposes of this Settlement Agreement “rock crushing” shall mean the processing of large rocks, stones, boulders and blasted ledge rock into crushed stone, gravel, riprap, and similar modified earth products of reduced dimensions as conducted by one portable machine that is towed onto and off the site for use during a limited time frame and limited work hours on an annual basis and transported to and from the permitted site behind a truck and/or carried on a flatbed trailer.

b. For purposes of this Settlement Agreement “earth materials processing/ refining” shall mean the use of mechanical equipment to screen, sift, extract and stockpile loom, sand, gravel, stone, rock, etc.

c. The Non–Permitted Uses shall be secondary to and dependent upon the good faith pursuit by the Whittles of onsite mining of sand and gravel and the processing of such materials mined from the Property.   To that end, the Non–Permitted Uses shall cease when the on-site mine is exhausted to the limits to be established by the Zoning Commission in a special permit and/or any renewals thereof.   Total yardage of imported material from off-site to be crushed, processed and/or refined during each period to be prescribed in this subsection shall not exceed fifty (50%) percent of the combined volume in cubic yards of the materials mined from the site and the materials brought to the site from off-site for crushing, processing and/or refining.   Said yardages shall be calculated beginning from the date of the recording of the Special Use Permit.   The percentage limits shall be applied over periods not to exceed two (2) years or the period of the Special Use Permit, whichever is longer.   The Whittles shall keep an accurate accounting of the volumes of materials crushed, processed and/or refined and of all materials brought to the site from off-site and shall submit to the Town of Groton Office of Planning and Development Services annually and at such other times as it might request such records as it deems necessary to confirm that this limit is not exceeded.   Such records shall be prepared and certified by a professional engineer licensed in the State of Connecticut.   Imported materials shall consist of fill only, and may not contain hazardous waste or construction debris.

d. The crushing of rock whether mined from the Property or imported to it from offsite shall be conducted no more than a total of fifty (50) business days between May 1 through June 30 and/or from September 1 through November 1 in any calendar year (“Crushing Period”).   One week before the beginning of any Crushing Period, the Whittles shall report to the Town of Groton Office of Planning and Development Services their intention to begin the Crushing Period and provide an estimate of how long the Crushing Period will last.   All excavation, crushing and processing activities at the Property shall comply with all local, state and federal regulations, including without limitation regulations of the State of Connecticut Department of Environmental Protection, and regulations pertaining to the minimization of dust and noise.

e. Crushing shall occur only between 7:00 am and 5:00 pm and shall never occur on a Saturday, Sunday or legal holiday.

f. No crushing equipment may be permanently erected on or affixed to the Property.   Equipment used to crush rock must be portable.   There shall never be more than one rock crushing machine on the site at any one time.   Crushing equipment will be considered portable if it can be hauled behind a commercial truck or on a standard flatbed truck.

g. Crushing shall occur and the crushing equipment may be operated only in the area to be designated in the Special Use Permit, which location shall be selected to minimize adverse effects on neighboring residences.

h. Materials shall be hauled to and from the Property for processing, crushing, refining and sale/delivery only via the Property's accessway to and from Connecticut Route 184.   All other trucks accessing the site shall do so pursuant to the requirements of the Special Use Permit.

6. The terms and conditions specified herein for the Whittles' continuation for the Legal Non–Conforming Uses and the Non–Permitted Uses shall be a minimum, baseline set of standards and shall not restrict the Groton Zoning Commission or any other Groton land use agency or official with jurisdiction in any respect in terms of conditions it might impose on the future conduct of said activities.

7. This Agreement shall be binding upon the parties and their respective heirs, beneficiaries, successors and assigns, and to that end a notice of the existence of this Agreement shall be recorded on the Land Records of the Town of Groton.   Notwithstanding the foregoing, the rights granted the Whittles by this Agreement to continue the Non–Permitted Activities shall be personal to them and their immediate descendants (i.e., children and grandchildren) and shall not be assignable or delegable.

On June 1, 2011, the intervenors, by way of Robert Whittle, did apply to the defendant for a special permit and site plan approval for “[e]arth products (sand, gravel, rock) mining, processing and sales including the importation of material for on-site processing and the conduct of crushing operations for a yearly 8 to 10 week period.” # 112/9–12.   The application, defendant's number 321, was pursuant to Zoning Regulations § 7.1–10. # 112/10, 38.   The application claims “the project will not intensify the use as an earth products facility except as may be required to meet economic demand.”  Id. However, the intervenors' General Operations Plan is entitled “Phase I:  Expanded Operations Plan.” # 114/3.   The application initially requested a permit to excavate 74,000 cubic yards of earth products, but this was amended to 843,220 cubic yards. # 112/17, 38.   The application document does not request a specific limit on the amount of earth products to be imported for processing.   However, the application sought a permit to import up 843,220 cubic yards of earth products based upon the intervenors' engineers' estimate that just Phase I of the proposed operation could extract as much as that from the property;  see # 115/4 (Phase I Restoration Plan);  and based on the Agreement's provision for imported material not to exceed what is extracted from the site. # 112/45, paragraph 5(c).

The public hearing on the application was held over four sessions in the late summer and fall of 2011.   No evidence of facts, let alone of a substantial basis in fact, was presented on whether all of the proposed uses were allowed by the application's claimed basis, § 7.1–10;  whether all of the proposed uses were otherwise legal non-conforming uses, i.e., whether they were unabandoned uses which pre-existed the adoption of the Groton zoning regulations on June 21, 1957;  or, to the extent the proposed uses were legal preexisting, nonconforming uses, whether the proposed uses would not be an expansion of those uses.   Intervenors' counsel told the defendant that “processing off-site material ․ includ[ing] running [it] through the screeners ․ if it's from off-site ․ was not permitted.” # 117/12.   Regarding expansion, the application foreshadows it ⁶ and the intervenors' stormwater management plan admits it.⁷

The defendant Zoning Commission's discussion of the application spanned parts of three meetings in January and February of 2012.   On February 16, 2012, the defendant granted the application with numerous conditions, notably several which were considerably more restrictive than the “baseline” conditions in the Agreement.

Both the appellant, in this case, and the Whittles ⁸ appealed the commission's decision.

As of March 13, 2012, the intervenors had failed to show Quinn, had failed to persuade the ZBA,⁹ and had not attempted to show the defendant or the court that the “Non–Permitted Uses” preexisted the adoption of zoning regulations.   On March 13, 2012, Judge Devine entered the following order:  “The judgment entered on 5/12/11 was entered in error and is vacated.”

DISCUSSION

This appeal primarily concerns the “Non–Permitted Uses,” whether the commission had a substantial basis for granting the intervenors' application as to those uses and, particularly, whether the Agreement invalidated the 2007 order or the ZBA's rejection of the intervenors' appeal of that order.   This appeal also concerns the intervenors' uncontestedly preexisting, nonconforming uses which are not permitted by Groton Zoning Regulations § 7.1–10 and for which the 2007 order required the intervenors to obtain a special use permit and site plan approval, and the defendant's approval of a special permit and site plan for those uses.

On their application to the commission, the intervenors had the burden of proving the existence of their claimed preexisting, nonconforming uses.   See Taylor v. Zoning Board of Appeals, 65 Conn.App. 687, 694, 783 A.2d 526 (2001).

The plaintiff has standing to appeal:  he owns land surrounded on three sides by the subject property.   See General Statutes § 8–8(a)(1), providing standing for “any person owning land ․ that abuts ․ any portion of the land involved in the decision of the board.”

When a zoning commission has functioned in an administrative capacity, such as ruling on site plan applications, the court's review is limited to whether the commission's action was illegal, arbitrary or in abuse of its discretion.   Clifford v. Planning & Zoning Commission, 280 Conn. 434, 439–40 n.6, 908 A.2d 1049 (2006).   Whether a zoning commission acted illegally, arbitrarily or in abuse of its discretion depends on whether “the commission's action was in violation of the powers granted to it or the duties imposed upon it.”  Id. In an appeal from a zoning commission decision, the decision will be invalidated if it is not supported by substantial evidence.   It is not enough that the record includes evidence which reasonably supports the action.   Kaufman v. Zoning Commission, 232 Conn. 122, 151, 653 A.2d 798 (1995).

The intervenors claimed, at oral argument, that the plaintiff abandoned all his arguments except a challenge to the legality of the Agreement.   The court finds no merit in that claim.   First, the plaintiff does not challenge the legality of the Agreement.¹⁰  He challenges the defendant's, and the defendant's and intervenors' counsels,' interpretations of the Agreement and of its legal effect.   At issue in this appeal is the meaning and legal effect of the Agreement and the correctness of the Zoning Commission's reliance upon it.   The present appeal, as briefed, is well within several of the plaintiff's claimed errors—all denied by the defendant and the intervenors—in paragraphs 15 and 16 of the revised complaint.

The plaintiff alleges that the defendant acted illegally in that its approval of the intervenors' application was contrary to the zoning regulations of the Town of Groton.   The intervenors and the defendant argue that there is substantial evidence in the record to support the defendant's findings and its decision to grant the intervenors' application for a special use permit and site plan approval for the “Non–Permitted Uses.”

In fact, the defendant made no finding that the “Non–Permitted Uses” were legal uses, either because they are allowed by the Groton Zoning Regulations or because they are preexisting, nonconforming uses under General Statutes § 8–2(a) (“regulations shall not prohibit the continuance of any nonconforming use ․ existing at the time of the adoption of such regulations”).¹¹  Setting aside the question of whether the “Non–Permitted Uses” were or were not legal, there are two fundamental problems with this lack of finding.   The first problem is with the application itself.   The application is for a special permit for uses not permitted by Zoning Regulations § 7.1–10, on which it claims to be based.   That section, entitled “Filling and Removing Earth Products,” is limited to filling land with, and removal from land of, earth products.¹²  It does not deal with, let alone permit, by special permit or otherwise, importation of earth products (except as site fill), let alone rock crushing and other processing, storage and sale of earth products.

The second problem with the application is that, even if § 7.1–10 permitted importation of earth products for sale and rock crushing and other processing, storage and sale of earth products, the regulation requires that “[t]he Commission will subject each application to careful scrutiny, considering the location, intensity, and type of operation contemplated.”   See General Statutes § 8–3c(b) (“Whenever a commission grants or denies a special permit ․ it shall state upon its records the reason for its decision”).   In this case, the commission—understandably relying on its and the intervenors' attorneys' interpretation of the Agreement—gave no consideration to such basic questions as whether the proposed uses were allowed by the application's claimed basis, § 7.1–10;  if not, whether the proposed uses were legal non-conforming uses, i.e., whether they were continuous uses preexisting the adoption of the Groton zoning regulations;  and whether, to the extent the proposed uses were legal preexisting, nonconforming uses, the proposed uses would be an illegal expansion of those uses.   See Wiltzius v. Zoning Board of Appeals, 106 Conn.App. 1, 25, 940 A.2d 892, cert. denied, 287 Conn. 906, 950 A.2d 1283 (2008) (public policy of zoning includes eliminating non-conforming uses);  see also Cioffoletti v. Planning & Zoning Commission, 24 Conn.App. 5, 8, 584 A.2d 1200 (1991) (right to continue a preexisting, nonconforming use means only the use as it existed before zoning regulations).¹³

The court finds that, as Groton Manager of Planning Services Matthew Davis told the defendant commission, the importation of earth products for processing, storage and sale is prohibited at the property and in the zoning district in which the property is located and is not contemplated in the town's comprehensive plan. # 121/5.   In Groton, those uses are only permitted in an industrial zone. # 113/56;  # 121/6.   Accordingly, the town has no land use regulations addressing those “otherwise prohibited uses on residentially zoned land or in areas planned for residential use.” # 113/56.   In a December 28, 2011, memorandum to the commission, Davis also said, “the commission has attempted to develop and apply what in its best judgment it believes will be reasonable and sufficient limitations on the proposed use.” # 113/56.   Although the good faith and effort of the defendant are not challenged by the plaintiff or by this court, the creation of “reasonable and sufficient limitations” for a use not permitted by the zoning regulations, for one site, amounts to spot zoning.  Bartram v. Zoning Commission, 136 Conn. 89, 93, 68 A.2d 308 (1949) (spot zoning occurs when a zoning authority grants privileges to a single lot or small area which are not extended to other land in the vicinity.)   As asserted by the plaintiff, spot zoning is contrary to law in this state.   See Gaida v. Planning & Zoning Commission, 108 Conn.App. 19, 32, 947 A.2d 361, cert. denied, 289 Conn. 922, 958 A.2d 150 (2008).

The defendant says that the intervenors told its members (commissioners) that rock crushing pre-dated zoning. # 147/20 n.4. Even if that statement is regarded as testimony, the defendant conducted no hearing on whether or not it was true—on whether or not the crushing of rocks by machine ¹⁴ (let alone present day machines, let alone also importation of earth products) was an ongoing use at the property prior to the enactment of the Groton zoning regulations—or on the extent of any such preexisting, nonconforming uses compared to the proposed uses.   Even if that statement is regarded as evidence, it is not substantial evidence.

The defendants and the intervenors rely entirely on the Agreement as a substitute for proof that the “Non–Permitted Uses” are preexisting, nonconforming uses at the property and, therefore, legal.   The intervenors claim it was not necessary for them to prove to the Zoning Commission that the “Non–Permitted Uses” predated the zoning regulations because “[t]hat fact was already acknowledged by the Town, and outlined in the Stipulated Judgment.”   During the hearing on the Whittles' special permit application, the Zoning Conimission's counsel told the commissioners, “I think ․ what [the Agreement] means is that you can't deny the application because you think the uses are inappropriate to the zone or to that location.”   There are several problems with these arguments.   First, the proposition that “it was not necessary for the [intervenors] to demonstrate that their uses predated” the Groton zoning regulations is not a fact:  it is an opinion or a conclusion of law which is not supported, let alone established as a matter of law, by the Agreement.   Second, while “their uses predated the Groton zoning regulations” and “the Non–Permitted Uses were uses conducted, and not abandoned, at the property on June 21, 1957” are statements of fact, the Agreement does not, implicitly let alone explicitly, support the truth of those statements.   Third, it is improper to conflate the ZBA and the Zoning Commission into “the Town.” Neither the town nor the defendant commission entered into the Agreement.   Only the ZBA entered into the Agreement.   Though the Agreement “shall be binding upon the parties and their respective heirs, beneficiaries, successors and assigns,” the Zoning Commission is none of those.

Fourth, more fundamentally, only a judgment against the ZBA in Whittle v. ZBA —a judgment reversing the ZBA's determination that the intervenors failed to show that the “Non–Permitted Uses” were preexisting, nonconforming uses—would be binding on the defendant.   Of course, such a judgment could be entered by stipulation, but the Agreement is no such stipulation.

The intervenors admit, in the site plan submitted to the defendant, that “non-permitted uses include the importation of rock, concrete and asphalt products from off-site locations and the crushing of imported materials and [of] rock mined from the site.” ¹⁵ # 115/2, operation note A1. The intervenors claim that their “demonstration of these disputed uses resulted in the Stipulated Judgment.”   The Agreement reveals no such demonstration.   The only demonstrations in the record resulted in the 2007 order and the ZBA's denial of the appeal from that order.

The intervenors claim that the “Non–Permitted Uses” ¹⁶ were given legal status as preexisting, nonconforming uses “pursuant to the terms of the [Agreement].”   The court disagrees.   The Agreement is a contract.   The interpretation of contracts, including contracts for settlement of land use appeals, is usually a question of fact.  Griffin v. Planning & Zoning Commission, 30 Conn.App. 643, 650, 621 A.2d 1359 (1993).   The interpretation of a contract becomes a question of law when its language is definitive and unambiguous.  Levine v. Massey, 232 Conn. 272, 278, 654 A.2d 737 (1995).   What is absent from the contract language is no less important.   What is absent from the language of the Agreement are any words to the effect that the ZBA agreed either the 2007 order or the ZBA's rejection of the appeal of that order was erroneous or invalid.

The intervenors claim that the court, based on the Agreement, determined that the ZBA appeal was effectively settled.   The court disagrees.   As the defendant's counsel stated at the hearing, the basis for the Whittles' claimed limitation on the Zoning Commission's jurisdiction was not adjudicated.   It was contractual.   This is made clearer by the provision of the Agreement that withdrawal of the ABA appeal would be a condition to any special permit acceptable to the Whittles—one they wanted to become effective. # 112/42.   If the appeal had been withdrawn, the short-lived judgment would have to be vacated, leaving only the Agreement.   If the Agreement finally resolved the ZBA appeal, there would be no reason to provide for the appeal's withdrawal if the Zoning Commission gave them the permit they wanted.   There would be no reason to reserve the right to revive the appeal if the commission did not give the Whittles what they wanted.   Judge Devine's order vacating the judgment in Whittle v. ZBA was presumably and properly because the Agreement is undeniably conditional and any judgment on it could not be final.   That order did not invalidate the Agreement, but it did implicitly recognize that the Agreement was not to a final judgment, let alone a judgment against the ZBA.

The Agreement is essentially a stipulation to stay the ZBA appeal to allow the Whittles to apply to the Zoning Commission for “any zoning permit(s) they might be able to obtain.” ¹⁷ # 112/41.   That process had to include proof to the commission by substantial evidence that the proposed uses were allowed under the zoning regulations or had to be permitted because they were preexisting, nonconforming uses—and not an expansion of such uses.   See Taylor v. Zoning Board of Appeals, supra, 65 Conn.App. 697–98.   Since the Agreement was not a stipulation to a judgment against the ZBA in Whittle v. ZBA, neither the Agreement nor the short-lived Judgment entered by Judge Devine on May 12, 2011, removed, or could remove, anything from the Zoning Commission's jurisdiction, duties or powers.   See 12 Havermeyer Place Co., LLC v. Gordon, 76 Conn.App. 377, 389, 820 A.2d 299, cert. denied, 264 Conn. 919, 828 A.2d 618 (2003) (illegal use cannot be made legal by agreement);  see also Bartsch v. Planning & Zoning Commission, 6 Conn.App. 686, 689–91, 506 A.2d 1093 (1986) (zoning commission has no power to grant permits or approve applications for illegal land uses).

The Agreement neither says nor implies that the “Non–Permitted Uses” were under way before, and when, Groton adopted zoning regulations.   The recitals in the Agreement include the intervenors' acknowledgment that, “absent this Settlement Agreement the Non–Permitted Uses would not be allowed on the Property under the current Groton zoning regulations, and that those uses may only be continued ․ if the court in this appeal were to determine that they are nonconforming uses for purposes of Connecticut law and the Groton zoning regulations, or if the parties were to agree to allow them to continue in order to avoid the expense and uncertainty of continued litigation ․” Whatever significance that provision has,¹⁸ it is because it is the intervenors' admission.   It is no admission by the ZBA:  in the Agreement, the ZBA neither explicitly nor implicitly agrees that the “Non–Permitted Uses” are preexisting, nonconforming uses.   Also, if the ZBA believed that it would lose the appeal, Whittle v. ZBA, let alone believed it had erroneously upheld the 2007 order—that the “Non–Permitted Uses” actually preexisted the zoning regulations—there would be no legitimate reason not simply to agree to judgment in favor of the Whittles.

Numbered paragraph 1 of the Agreement provides that the intervenors “need not file a withdrawal of the Appeal ․ until they obtain a special use permit allowing the non-conforming and the non-permitted uses as described herein.” # 112/42.   There would be no reason, from the intervenors' point of view, let alone any need, to withdraw the appeal if the effect of the Agreement were that they prevailed on the appeal.   In effect, this sentence means that, if the intervenors failed to get what they wanted from the Zoning Commission, they could revive and pursue Whittle v. ZBA in the hope that the court would invalidate the ZBA's ruling and decree that the “Non–Permitted Uses” preexisted the zoning regulations.   As a practical matter, the intervenors' right to resume the ZBA appeal was both an obvious consequence and a tacit threat if the commission did not approve their application.   Part of the foundation of citizen government is that land use agencies and officers, and the municipalities and taxpayers funding the defense or enforcement of their work, should not allow themselves to be pressured to ignore their duties or disavow their bona fide conclusions, let alone ignore reality, by the prospect of the expense and trouble of litigation.

In Whittle v. ZBA, on March 11, 2008, the court granted the Whittles' unopposed application for a restraining order “against the decision of the defendant ZBA while this appeal is pending to allow the [Whittles] ․ to continue with their business and livelihood ․” Paragraph 3 of the Agreement provides, “[n]othing herein prohibits the ZBA from asking the court to modify or terminate the “Restraining Order” issued on ․ March 11, 2008.” # 112/43.   If the ZBA admitted the “Non–Permitted Uses” pre-existed the zoning regulations, the ZBA would have no standing, let alone ground, to seek a modification of the restraining order.

Paragraph 5 of the Agreement provides, “[t]o eliminate the uncertainty inherent in litigation and to better regulate and order all of the mining/excavation/refining and processing operations on the Property, and the ultimate closure of the site, the parties hereby agree for purposes of this Settlement Agreement and of the Special Use Permit and any associated permits to be sought pursuant to it that the Non–Permitted Uses may continue on the Property, subject to the following terms and conditions, which shall be part of the application the Whittles submit to the Groton Zoning Commission ․” (Emphasis added.) # 112/44.   Again, except by an unconditional stipulation to judgment in favor of the Whittles in Whittle v. ZBA, the ZBA had no power to limit the issues submitted to, or the facts considered by, the Zoning Commission, and the Zoning Commission had no discretion to treat the Agreement as removing the legality of the “Non–Permitted Uses” from the issues on the Whittles' application.

Paragraph 6 of the Agreement provides that “[t]he terms and conditions specified herein for the Whittles' continuation [of] the Legal Non–Conforming Uses and the Non–Permitted Uses shall be a minimum, baseline set of standards and shall not restrict the Groton Zoning Commission ․ in any respect in terms of conditions it might impose on the future conduct of said activities.”   (Emphasis added.) # 112/47.   This sentence does not restrict what the Zoning Commission may, let alone must, consider in ruling on the special permit application.

Paragraph 7 of the Agreement provides, “[t]his Agreement shall be binding upon the parties and their respective heirs, beneficiaries, successors and assigns ․ Notwithstanding the foregoing, the rights granted the Whittles by this Agreement to continue the Non–Permitted Activities shall be personal to them and their immediate descendants (i.e., children and grandchildren) and shall not be assignable or delegable.” # 112/47.   Whatever the intervenors' rights “granted” by the Agreement are, this provision is binding on the parties—not on the Zoning Commission.   Furthermore, “this Agreement to continue the Non–Permitted Activities” is clearly subject to the Zoning Commission's ruling on the special permit application, without limitation on inquiry into the legality of the “Non–Permitted Uses” for the reasons here discussed.   That “the rights granted the Whittles by this Agreement to continue the Non–Permitted Activities shall be personal to them and their immediate descendants” highlights what the Agreement does not provide.   If the “Non–Permitted Uses” really pre-existed the Groton zoning regulations, there would be no need for this concession.   If, in the Agreement, the ZBA agreed that it had erred in the Whittle appeal as to the “Non–Permitted Uses,” there would be no need to limit those uses to the intervenors and their “immediate descendants.”

That the intervenors' rights under the Agreement to continue the Non–Permitted Uses is to be limited to three generations of the Whittle family also reveals the unusual nature of the Agreement in a more general way.   While personal land use covenants may of course be made between private parties;  see Wykeham Rise, LLC v. Federer, 305 Conn. 448, 465, 52 A.3d 702 (2012);  as a matter of zoning law, land use rights and restrictions run with the land.   See Carbone v. Vigliotti, 222 Conn. 216, 230, 610 A.2d 565 (1992).   If a use is preexisting and nonconforming, and has not been abandoned, that use may be pursued by any proper occupant of the land, subject to proper regulation.¹⁹  See Taylor v. Zoning Board of Appeals, supra, 65 Conn.App. 697–98 (towns have police power to regulate preexisting, nonconforming uses reasonably for public health, safety, welfare or convenience).   But, if a nonconforming use did not preexist the municipality's adoption of zoning regulations, no agreement to the contrary would be binding on the municipality or any of its agencies or officers.   This principle arises from the strong social interest in protecting the integrity of the land use planning process by thwarting deals which “abuse the entire process by collusively stipulating to a judgment in the applicant's favor, and thus evade both judicial review and effective scrutiny by potentially aggrieved neighbors ․” (Internal quotation marks omitted.)   Torrington v. Zoning Commission, 63 Conn.App. 776, 787, 778 A.2d 1027 (2001);  see also Mills v. Town Plan & Zoning Commission, 145 Conn. 237, 241, 140 A.2d 871 (1958).

For the foregoing reasons, the court finds that the Agreement does not mean that the ZBA agreed that the “Non–Permitted Uses” were, despite the ZBA's prior ruling on the 2007 order, preexisting, nonconforming uses.   A land use agency can settle litigation.  Torrington v. Zoning Commission, supra, 63 Conn.App. 786.   And of course a land use agency can admit it erred.   But a land use agency cannot agree that what is illegal is legal.   See 12 Havermeyer Place Co., LLC v. Gordon, supra, 76 Conn.App. 389;  Bartsch v. Planning & Zoning Commission, supra, 6 Conn.App. 689–91.   And no agreement with that effect would be binding on the defendant.   Compare Torrington v. Zoning Commission, supra (zoning commission is bound by its own agreement).

The defendant and the intervenors claim that the record includes substantial evidence to support the defendant's decision to grant the intervenors' application for a special use permit and site plan approval for the “Non–Permitted Uses.” The court disagrees.   It is admitted that the “Non–Permitted Uses” are not permitted at the property unless they are “grandfathered,” i.e., unless those uses of the property were under way—not abandoned—on June 21, 1957, when the town first adopted zoning regulations.   The intervenors offered, and the defendant accepted, no evidence that the “Non–Permitted Uses” were preexisting, nonconforming uses.   Even if there had been substantial evidence that the “Non–Permitted Uses” pre-existed zoning, the defendant accepted no evidence, let alone substantial evidence, that the “Non–Permitted Uses” for which the intervenors sought a special permit and site plan approval were not an expansion of such uses as existed in June of 1957.   There being neither a variance for the “Non–Permitted Uses” nor judgment against the ZBA in the ZBA appeal, it does not matter why the defendant did not require and consider such evidence.   In particular, it does not matter that the apparent reason the defendant did not do so is that the commissioners relied on the defendant's attorney's interpretation of the Agreement and his opinion of the legal effect of the Agreement—and on their staff's acquiescence to that interpretation and opinion.   If reliance on attorneys' opinions excused public agencies' failure to consider all proper issues and evidence, attorneys' influence would unduly grow and citizen government would alarmingly weaken, as would courts' powers to remedy incompetence, injustice and corruption.   As defendant's counsel acknowledged in oral argument, collusive agreements to circumvent zoning laws are prohibited.   See 12 Havermeyer Place Co., LLC v. Gordon, supra, 76 Conn.App. 389.   That prohibition includes innocent agreements which have the result of circumventing zoning laws.

The intervenors cite Torrington v. Zoning Commission, supra, for the proposition that a stipulated judgment becomes part of the zoning regulations applicable to the land to which the judgment pertains.   In this regard, Torrington is inapposite:  the “stipulated judgment” in this case—the Agreement—was not by the zoning commission, i.e., by the agency claimed to be bound by the stipulation and which had the power to adopt and amend zoning regulations.

The defendant argues that the record does not reveal that its members thought they had to grant the Whittles' application for a special permit for the “Non–Permitted Uses.” That is true.   However, the record is clear that the commissioners were advised, and believed, that they could not deny the application on the one basis which would as a matter of law have required denial of the application:  the Whittles' failure to prove that the “Non–Permitted Uses” were preexisting, nonconforming uses.

For the reasons above, judgment shall enter for the plaintiff, with costs.   The defendant's approval of the intervenors' applications for special permit and site plan approval is invalid both as to the “Non–Permitted Uses” and other uses because the Zoning Regulations § 7.1–10 basis for the “Legal Non–Conforming Uses,” the commission's failure to consider whether the application involved expansion of those uses, and the approval of and conditions on those uses were inextricably intertwined with consideration of the “Non–Permitted Uses.” ²⁰

Cole–Chu, J.

FOOTNOTES

FN1. In this decision, references to the record and briefs will be abbreviated # [the court filing number/page number if any (label if any) ]..  FN1. In this decision, references to the record and briefs will be abbreviated # [the court filing number/page number if any (label if any) ].

FN2. The intervenors' operations plan revised to September 24, 2010;  # 114;  states that the owner of the property is “Estate of Charlotte B. Whittle.”   The June 1, 2011, land use application is signed by Robert, certifying that he is the owner of the subject property. # 112/9.   This was corrected by a letter dated August 22, 2011, from William and Richard which says they are the legal owners of the property and that they authorized Robert to sign the Special Use Permit Application on their behalf. # 112/24.   The defendant's approval was of a permit to William and Richard. # 153/5..  FN2. The intervenors' operations plan revised to September 24, 2010;  # 114;  states that the owner of the property is “Estate of Charlotte B. Whittle.”   The June 1, 2011, land use application is signed by Robert, certifying that he is the owner of the subject property. # 112/9.   This was corrected by a letter dated August 22, 2011, from William and Richard which says they are the legal owners of the property and that they authorized Robert to sign the Special Use Permit Application on their behalf. # 112/24.   The defendant's approval was of a permit to William and Richard. # 153/5.

FN3. The parties, by counsel, all waived the 120–day limit on issuance of this decision, for which the court thanks them..  FN3. The parties, by counsel, all waived the 120–day limit on issuance of this decision, for which the court thanks them.

FN4. Although the court's electronic file in Docket No. KNL–CV–08–4007938–S shows only Robert and William as plaintiffs, Richard was listed as a plaintiff on the summons continuation sheet, in the non-form summons and in the complaint/appeal dated November 30, 2007..  FN4. Although the court's electronic file in Docket No. KNL–CV–08–4007938–S shows only Robert and William as plaintiffs, Richard was listed as a plaintiff on the summons continuation sheet, in the non-form summons and in the complaint/appeal dated November 30, 2007.

FN5. In approving the agreement, the ZBA found as follows:  “1. The terms of the Settlement Agreement will eliminate the uncertainty and expense of litigation and result in as clearly defined [an] outcome as possible under the circumstances;  2. Were we not to settle the appeal on these or similar terms and were we to lose the appeal, all of the uses and activities at the property that were the subject of our original decision in this matter arguably could continue without being subject to the kinds of limits and conditions that the Settlement Agreement will impose on them;  3. The limits and conditions on those uses will be beneficial to the Town and to those most nearly affected by the activities at the property;  4. Pursuant to the Settlement Agreement, all of the contested uses would be subject to further review and regulation by the Zoning Commission pursuant to an application for a special permit.”   The court may consider these findings.   Although they are not part of the administrative record in this case, they are attached to the defendant's brief;  # 147/15 Exhibit 1;  and were filed in Whittle v. ZBA with the motion for approval of the Agreement.  Jewett v. Jewett, 265 Conn. 669, 678 n.7, 830 A.2d 193 (2003)..  FN5. In approving the agreement, the ZBA found as follows:  “1. The terms of the Settlement Agreement will eliminate the uncertainty and expense of litigation and result in as clearly defined [an] outcome as possible under the circumstances;  2. Were we not to settle the appeal on these or similar terms and were we to lose the appeal, all of the uses and activities at the property that were the subject of our original decision in this matter arguably could continue without being subject to the kinds of limits and conditions that the Settlement Agreement will impose on them;  3. The limits and conditions on those uses will be beneficial to the Town and to those most nearly affected by the activities at the property;  4. Pursuant to the Settlement Agreement, all of the contested uses would be subject to further review and regulation by the Zoning Commission pursuant to an application for a special permit.”   The court may consider these findings.   Although they are not part of the administrative record in this case, they are attached to the defendant's brief;  # 147/15 Exhibit 1;  and were filed in Whittle v. ZBA with the motion for approval of the Agreement.  Jewett v. Jewett, 265 Conn. 669, 678 n.7, 830 A.2d 193 (2003).

FN6. The application includes this unlimited exception:  “the project will not intensify the use as an earth products facility except as may be required to meet economic demand.” # 112/10, 38, emphasis added..  FN6. The application includes this unlimited exception:  “the project will not intensify the use as an earth products facility except as may be required to meet economic demand.” # 112/10, 38, emphasis added.

FN7. “Proposed site conditions are the same as existing with expansion of the on-site mining of sand and gravel ․ as market conditions permit.   Similarly, the importation, stockpiling and processing of rock, concrete and waste products will continue, with the volume of imported material being equal to the volume of material excavat[ed] on site ․” # 113/96..  FN7. “Proposed site conditions are the same as existing with expansion of the on-site mining of sand and gravel ․ as market conditions permit.   Similarly, the importation, stockpiling and processing of rock, concrete and waste products will continue, with the volume of imported material being equal to the volume of material excavat[ed] on site ․” # 113/96.

FN8. See Whittle v. Zoning Commission, Superior Court, judicial district of New London, Docket No. KNL–CV–12–6012917–S.   Ironically, the Whittles claim that the commission failed to properly consider evidence presented at the public hearing regarding the history of the property..  FN8. See Whittle v. Zoning Commission, Superior Court, judicial district of New London, Docket No. KNL–CV–12–6012917–S.   Ironically, the Whittles claim that the commission failed to properly consider evidence presented at the public hearing regarding the history of the property.

FN9. The defendant's attorney, who was also the ZBA's attorney in Whittle v. ZBA, told the commission that “the Whittles hadn't convinced the [ZBA], hadn't presented enough evidence to the board to convince it that those [Non–Permitted Uses] had pre-existed zoning.” # 121/8..  FN9. The defendant's attorney, who was also the ZBA's attorney in Whittle v. ZBA, told the commission that “the Whittles hadn't convinced the [ZBA], hadn't presented enough evidence to the board to convince it that those [Non–Permitted Uses] had pre-existed zoning.” # 121/8.

FN10. For this reason, and because whether the “Non–Permitted Uses” were actually preexisting uses was not litigated in Whittle v. ZBA (let alone litigated by the plaintiff), the intervenors' claims of preclusion by res judicata and collateral estoppel are without merit..  FN10. For this reason, and because whether the “Non–Permitted Uses” were actually preexisting uses was not litigated in Whittle v. ZBA (let alone litigated by the plaintiff), the intervenors' claims of preclusion by res judicata and collateral estoppel are without merit.

FN11. The defendant's findings were only two:  that the grading and excavation plan, with conditions and modifications, complied with the intent of General Statutes § 8–2(b) regarding coastal impacts and that conditions and modifications were necessary “to render the application fully compliant with [certain] criteria in” the zoning regulations. # 153/4.  “[W]hen [an] ․ agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision ․ Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the ․ regulations ․ The principle that a court should confine its review to the reasons given by [an] ․ agency ․, applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action ․ It does not apply to mere utterances of individual members of the agency.”  (Internal quotation marks omitted.)  Clifford v. Planning & Zoning Commission, supra, 280 Conn. 439–40 n.6..  FN11. The defendant's findings were only two:  that the grading and excavation plan, with conditions and modifications, complied with the intent of General Statutes § 8–2(b) regarding coastal impacts and that conditions and modifications were necessary “to render the application fully compliant with [certain] criteria in” the zoning regulations. # 153/4.  “[W]hen [an] ․ agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision ․ Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the ․ regulations ․ The principle that a court should confine its review to the reasons given by [an] ․ agency ․, applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action ․ It does not apply to mere utterances of individual members of the agency.”  (Internal quotation marks omitted.)  Clifford v. Planning & Zoning Commission, supra, 280 Conn. 439–40 n.6.

FN12. Section 7.1 10 begins as follows:  “The filling with and/or removal of earth products, such as, but not limited to, earth loam, sand, gravel, clay, stone, or minerals, is permitted in any [zoning] district subject to a special permit approval and the following conditions.   Applications to fill and remove earth products are also subject to administrative site plan approval as provided below.”.  FN12. Section 7.1 10 begins as follows:  “The filling with and/or removal of earth products, such as, but not limited to, earth loam, sand, gravel, clay, stone, or minerals, is permitted in any [zoning] district subject to a special permit approval and the following conditions.   Applications to fill and remove earth products are also subject to administrative site plan approval as provided below.”

FN13. As the intervenors acknowledge, extinguishing nonconformities is “a cornerstone principle of zoning law.” # 139/10 n.2. The intervenors neglect the fact that both the 2007 order and the ZBA's upholding of that order would promptly extinguish nonconformities..  FN13. As the intervenors acknowledge, extinguishing nonconformities is “a cornerstone principle of zoning law.” # 139/10 n.2. The intervenors neglect the fact that both the 2007 order and the ZBA's upholding of that order would promptly extinguish nonconformities.

FN14. Splitting rocks by hammer and chisel;  see # 118/25;  is not reasonably equated with rock crushing by present day machines.   The intervenors admit the equipment, including a crushing machine and excavator hammer, has changed. # 120/14–15..  FN14. Splitting rocks by hammer and chisel;  see # 118/25;  is not reasonably equated with rock crushing by present day machines.   The intervenors admit the equipment, including a crushing machine and excavator hammer, has changed. # 120/14–15.

FN15. The site plan reveals that the amount of processed earth products originating from the site (piles O, R, S and T 3835 cubic yards) was substantially less than the amount of processed earth products from off-site (piles C, G, H, J, K and L = 29,420 cubic yards)..  FN15. The site plan reveals that the amount of processed earth products originating from the site (piles O, R, S and T 3835 cubic yards) was substantially less than the amount of processed earth products from off-site (piles C, G, H, J, K and L = 29,420 cubic yards).

FN16. The defendant argues there is no basis for placing any weight on the Agreement's use of the term the “Non–Permitted Uses.” The court agrees that substance is what matters, not labels.  “[T]he processing on the Property of materials brought to the Property from other sites and the crushing of rock on the Property, whether the rock was mined from the Property or brought to the Property from other sites”;  # 112/40;  could have been labeled many other ways.   However, given the 2007 order, the ZBA's denial of the intervenors' appeal of that order, statements of staff in the record and admission of the intervenors that “absent this Settlement Agreement the “Non–Permitted Uses” would not be allowed on the Property under current Groton zoning regulations, the label “the Non–Permitted Uses” is hardly inappropriate..  FN16. The defendant argues there is no basis for placing any weight on the Agreement's use of the term the “Non–Permitted Uses.” The court agrees that substance is what matters, not labels.  “[T]he processing on the Property of materials brought to the Property from other sites and the crushing of rock on the Property, whether the rock was mined from the Property or brought to the Property from other sites”;  # 112/40;  could have been labeled many other ways.   However, given the 2007 order, the ZBA's denial of the intervenors' appeal of that order, statements of staff in the record and admission of the intervenors that “absent this Settlement Agreement the “Non–Permitted Uses” would not be allowed on the Property under current Groton zoning regulations, the label “the Non–Permitted Uses” is hardly inappropriate.

FN17. The ZBA's resolution to approve the Agreement shows that the ZBA expected the Zoning Commission to review the legality—the preexisting, nonconforming use status—of the “Non–Permitted Uses”:  “Pursuant to the Settlement Agreement, all of the contested uses would be subject to further review and regulation by the Zoning Commission ․” # 147/34–36 (exhibits C and D to exhibit 1);  emphasis added..  FN17. The ZBA's resolution to approve the Agreement shows that the ZBA expected the Zoning Commission to review the legality—the preexisting, nonconforming use status—of the “Non–Permitted Uses”:  “Pursuant to the Settlement Agreement, all of the contested uses would be subject to further review and regulation by the Zoning Commission ․” # 147/34–36 (exhibits C and D to exhibit 1);  emphasis added.

FN18. Omitted is the adjective “pre-existing” before “non-conforming.”   There is no dispute that the “Non–Permitted Uses” do not conform to the Groton Zoning Regulations..  FN18. Omitted is the adjective “pre-existing” before “non-conforming.”   There is no dispute that the “Non–Permitted Uses” do not conform to the Groton Zoning Regulations.

FN19. At several points in the consideration of the intervenors' application for a special permit, and in argument in this case, it was claimed that the “Non–Permitted Uses” would end if the intervenors sold the property.   This judge apprehends no basis in the Agreement for the notion that the intervenors could not continue those uses after conveying title to another owner..  FN19. At several points in the consideration of the intervenors' application for a special permit, and in argument in this case, it was claimed that the “Non–Permitted Uses” would end if the intervenors sold the property.   This judge apprehends no basis in the Agreement for the notion that the intervenors could not continue those uses after conveying title to another owner.

FN20. Paragraph 3 of the Agreement provides, “[i]f on September 1, 2011 the Whittles have not obtained and recorded a Special Use Permit and associated site plan(s), their rights under this Settlement Agreement shall terminate.”   In the context of the entire Agreement, and there being no claim by the ZBA or the intervenors of a different meaning, the court would interpret that sentence not to terminate all the intervenors' rights under the Agreement, let alone the Agreement as a whole, but only to terminate the Legal Non–Conforming Uses and the “Non–Permitted Uses” at the property unless and until the conditions for the legal resumption of those uses arose.   That interpretation may be helpful in implementing this decision, but it is not necessary to this decision..  FN20. Paragraph 3 of the Agreement provides, “[i]f on September 1, 2011 the Whittles have not obtained and recorded a Special Use Permit and associated site plan(s), their rights under this Settlement Agreement shall terminate.”   In the context of the entire Agreement, and there being no claim by the ZBA or the intervenors of a different meaning, the court would interpret that sentence not to terminate all the intervenors' rights under the Agreement, let alone the Agreement as a whole, but only to terminate the Legal Non–Conforming Uses and the “Non–Permitted Uses” at the property unless and until the conditions for the legal resumption of those uses arose.   That interpretation may be helpful in implementing this decision, but it is not necessary to this decision.

Cole–Chu, Leeland J., J.