Fortunata Maluccio v. East Lyme Zoning Board of Appeals (2015)

MEMORANDUM OF DECISION

BACKGROUND

This vigorously contested matter is an appeal of Fortunata Maluccio, (plaintiff) from the decision of the East Lyme Zoning Board of Appeals (Board or ZBA) upholding a decision of the Zoning Enforcement Officer (ZEO) of said Town had denied her a zoning permit to build a house.   After various interlocutory pleadings, the filing of the Return of Record and the briefs of the parties, a hearing was held before this court on April 8, 2015, at which both parties were well represented by counsel.   From the evidence introduced at the hearing, and without objection by the defendant, the court finds the plaintiff to be aggrieved by the action of the board.   No issue has been raised with respect to the service of process or the timeliness of the appeal either to the ZBA or thereafter to the court.

FACTS

From the Record the following facts are relevant to the decision.

In 1970 a subdivision known as Green Valley Lakes was approved by the East Lyme Planning Commission.   At that time the East Lyme Subdivision Regulations allowed the Planning Commission the discretion, but not the requirement, to mandate a developer to provide land to the Town of East Lyme for “open space for parks and playgrounds as it may deem proper ․ Such open space, if required, shall be at the rate of not less than one acre for every 40 families ․” At the time of the application for subdivision approval a developer was required to show on the plan submitted for approval an area reserved for such purpose before knowing whether or not the same would be required by the Commission.   Pursuant to those requirements, the developer of Green Valley Lakes did show on the plan of development submitted with his application an area labeled “Recreation Area” which is the property in dispute in this litigation.   This parcel of about 3.17 acres was also known by its address at 6 Red Fox Road (the property).   The remaining land in the subdivision was labeled as numbered lots or roads.   At its meeting of July 13, 1970, the East Lyme Planning Commission approved the subdivision plan that included the property labeled “recreation area.”   The Commission vote regarding this subdivision did not mention specifically whether or not a recreation area would be required.   However, the minutes of that meeting indicate that the developer had intended at that time to offer to deed the “recreation area” to the Town for recreation.

Only the board of selectmen was authorized by the town charter to accept land offered to the town.   The minutes of the East Lyme Board of Selectmen meeting of July 5, 1973, indicate that the property was offered to the Town. However, after discussion, the selectmen voted unanimously to reject the offer and inform the developer's attorney that the town was not interested in acquiring title to the recreation area.   Later in 1979 the developer again offered to deed the property to the Town, but that subsequent offer was also rejected.

Thereafter, until the plaintiff purchased the property at a tax sale from the Town of East Lyme, the title remained with the original and subsequent developers and was not otherwise deeded or encumbered.   The land itself remained in its natural state from 1970 until the present time.   The property has not been “classified” as open space by the assessor nor is it shown as open space on the Town's Plan of Development or Comprehensive Plan. No rights in the “recreation area” were specifically deeded to lot purchasers in the development.   No lot owner has filed a Notice of Claim to any rights to the property pursuant to Section 47–33f of the Connecticut General Statutes.

On February 14, 1972, the developer recorded on the land records of the Town of East Lyme a “Declaration of Restrictions” relating to the subdivision.   No mention was made in the declaration of the parcel labeled “Recreation Area” nor does it place any special restrictions on the same.   It does purport to regulate such things as fences, gardens, clothes lines, garbage cans, etc.   No rights are created in the declaration for the use of the property by any lot owners.

On March 10, 2006, the Town of East Lyme Tax Collector gave public notice of a tax sale related to that property, among others.   That notice indicated the property was to be sold subject to a utility easement and sloping rights, but made no mention of any encumbrance relating to parks and playgrounds.   At the sale itself, however, there was distributed to those bidders who appeared a document labeled “Instructions for Bidders” which did indicate that the parcel was designated as “recreation area” and erroneously claimed it had been “classified” as open space by the town.   The plaintiff bought the property at the tax sale for $19,500.

In August 2012, plaintiff submitted an application to the ZEO for a zoning permit to build a single family home on the property.   The application was prepared by a professional civil engineer, J. Robert Pfanner, who also prepared the site plan attached to the application together with a zoning compliance chart.   The application and attached plans conformed to all the specific requirements of the Zoning Regulations of the Town of East Lyme. Section 24.3B of the East Lyme Zoning Regulations states, in pertinent part:  “The Zoning Enforcement Officer, acting on behalf of the Commission, shall review applications to determine conformity with the zoning regulations ․ The Zoning Enforcement Officer will review the site plan to ensure compliance with the Zoning Regulations and shall issue a permit within 30 days of receipt if all other applicable requirements of these regulations have been met.”   The ZEO denied the zoning permit.   In his denial the reason given is as follows:  “The application is denied as property is designated as recreation area Open Space on the original subdivision plan.   See letter from Director of Planning to Mrs. Maluccio dated July 31, 2012.”   In that letter the Director of Planning reaches the decision that the property is not an “approved residential building lot” from the fact that it was designated on the original subdivision plan approved by the Commission as “recreation area.”   The plaintiff appealed the denial to the Zoning Board of Appeals which conducted a hearing on the matter and upheld the decision of the ZEO.

At that hearing the plaintiff submitted a voluminous compilation of exhibits labeled A to Z with many subheadings.   The ZEO submitted seventeen exhibits constituting the record before him as required by Section 8–7 of the General Statutes.   There was submitted at a continuance of the hearing a letter from an attorney from whom the ZBA had requested an opinion.

Section 8–7 of the General Statutes gives the ZBA the following powers:  “Such board may reverse or affirm wholly or partly or modify any ․ decision appealed from and shall make such order, requirement or decision as in its opinion should be made in the premises and shall have all the powers of the officer from whom the appeal has been taken but only in accordance with the provisions of this section.   Whenever a zoning board of appeals ․ sustains or reverses ․ any order ․ appealed from, it shall state upon its records the reason for its decision ․”

In their decision the Zoning Board of Appeals gave as their reason for the denial the following statement:

“It was determined that the ZEO had properly denied the zoning permit for 6 Red Fox Road;  that designations of the original subdivision map such as recreation area;  open space, etc. were purely semantics as they all serve the same function and the opinion of the attorney was that they were synonymous as you are talking about language from 1970 and now.   Further it was recommended that the appropriate method of change for this item is through the Planning Commission.”

THE LAW

An appeal from a decision by a zoning board of appeals is statutory in nature and the standard of review by the Superior Court is well-established.   An adverse decision by the board may be appealed under General Statutes § 8–8(b).  The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal.   Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994);  Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269, 588 A.2d 1372 (1991).  “ ‘It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own.’  “ Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 744, 626 A.2d 705 (1993), quoting Farrington v. Zoning Board of Appeals, 177 Conn. 186, 190, 413 A.2d 817 (1979);  accord Timber Trails v. Planning & Zoning Commission, 222 Conn. 380, 400, 610 A.2d 610 A.2d 620 (1992) (noting that on factual questions reviewing court cannot substitute its judgment for that agency).  “Moreover, the plaintiffs bear the burden of establishing that the board acted improperly.”  Wood v. Zoning Board of Appeals, 258 Conn. 691, 698, 784 A.2d 354 (2001).

“Where a zoning agency has stated its reasons for its actions, 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 [board] was required to apply under the zoning regulations.”  (Internal quotation marks omitted.)  Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995);  Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).

“In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning board] must be upheld by the trial court if they are reasonably supported by the record.   The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] ․ The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached ․ If 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 [board's] stated rationale, the reviewing court ․ cannot substitute its judgment as to the weight of the evidence for that of the [board] ․ The [board's] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.”  (Citations omitted;  internal quotation marks omitted.)  Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004);  Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547–48, 684 A.2d 735 (1996).  “This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred ․ The reviewing court must take into account [that there is] contradictory evidence in the record ․ but 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 quotation marks omitted.)   Tarullo v. Inland Wetlands & Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003);  accord Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587–88, 628 A.2d 1286 (1993);  see Madrid Corporation v. Inland Wetlands Agency, 25 Conn.App. 446, 448, 594 A.2d 1037, cert. denied, 220 Conn. 915, 597 A.2d 334 (1991).

Generally, when the court finds the action of an administrative agency to be illegal, it should go no further than to sustain the appeal.  Bogue v. Zoning Board of Appeals, 165 Conn. 749, 754, 345 A.2d 9 (1974).  “For the court to go further and direct what action should be taken by the zoning authority would be an impermissible judicial usurpation of the administrative functions of the authority.”  Id. When it appears, however, that the zoning authority could reasonably reach only one conclusion, the court may direct the authority to do that which the conclusion requires.  Id., 753;  Watson v. Howard, 138 Conn. 464, 470, S6 A.2d 67 (1952).

A zoning enforcement officer acting on an application for a zoning permit has a purely ministerial function.  Rocchi v. Zoning Board of Appeals, 157 Conn. 106, 113, 248 A.2d 922 (1968).   If the application conforms to the requirements of the regulations he has no discretion and must issue the permit.   See Langer v. Planning & Zoning Commission, 163 Conn. 453, 456, 313 A.2d 44 (1972).

The Zoning Board of Appeals derives its powers from statute.   It can exercise only such powers as are expressly granted to it.  Moscowitz v. Planning and Zoning Commission, 16 Conn.App. 303, 308, 547 A.2d 569 (1988).

Section 8–6 of the General Statutes provides in pertinent part:

(a) The zoning board of appeals shall have the following powers and duties:  (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter ․

Section 8–7 of those statutes provides in part as follows:

The board shall hold a public hearing on such appeal in accordance with the provisions of section 8–7d.   Such board may reverse or affirm wholly or partly or may modify any order, requirement or decision appealed from and shall make such order, requirement or decision as in its opinion should be made in the premises and shall have all the powers of the officer from whom the appeal has been taken but only in accordance with the provisions of this section.   Whenever a zoning board of appeals ․ sustains or reverses wholly or partly any order, requirement or decision appealed from, it shall state upon its records the reason for its decision ․

“[A zoning] board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they are] unreasonable, arbitrary or illegal.”  (Internal quotation marks omitted.)   Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).  “[F]ollowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board.”   Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82, 674 A.2d 855 (1993).

A decision of the Superior Court stated:  “When a land use agency reviews applications to it, it cannot properly consider private property interests and deed restrictions.”   Lynn v. Darien Zoning Board of Appeals, Superior Court, judicial district of Fairfield, Docket No. CV–92–299972–S (February 18, 1994, Fuller, J.).  “Thus, [t]he law is well established that restrictive covenants in a deed as to the use of property are distinct and separate from provisions of zoning law and have no influence or part in the administration of zoning law.”  (Internal quotation marks omitted.)   Anniello v. Vernon Planning & Zoning Commission, Superior Court, judicial district of Tolland, Docket No. CV–93–52916–S (August 14, 1995, Klaczak, J.).

Also, “restrictive covenants and zoning regulations are two entirely separate and unrelated limitations on the use of property ․ Zoning ordinances regulate the use of land through the exercise of the police power in accordance with a comprehensive plan for the entire community ․ [and are] entirely divorced in concept, creation, enforcement and administration from restrictions arising out of agreements between private parties ․ Restrictive covenants have no influence or part in the administration of a zoning law ․ and thus, a zoning board may not deny a special permit on the ground that the use will violate a restrictive covenant ․ [I]f a property owner is otherwise entitled to a ․ special [permit], it should be granted, notwithstanding private covenants which would prohibit the proposed use.”  (Citations omitted;  internal quotation marks omitted.)   Schieffelin v. Westport Planning & Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. CV–92–299489–S (October 4, 1993, McKeever, J.).

“Because a [municipal planning commission (and by analogy, a ZBA) ] is not a court of law, its authority is stringently limited.   It can only apply its regulations to the proposals which appear before it.   It cannot make law.”   Gagnon v. Municipal Planning Commission, 10 Conn.App. 54, 57, 521 A.2d 589, cert. denied, 203 Conn. 807, 525 A.2d 521 (1987).   In light of this principal, the Gagnon court held that the municipal planning commission did not have authority to determine whether a claimed right of way was a legally protected and enforceable prescriptive easement, since that conclusion could “only be made by judicial authority in a quiet title action governed by General Statutes § 47–31.”  Id., 58.

ISSUE

The single issue which is determinative of this dispute, and which has been variously stated by the plaintiff in her brief, is whether or not the mere designation on a plan of subdivision, required by the subdivision regulations, of a parcel of land on the plan as “Recreation Area,” without more, strips the parcel of its development rights forever to such an extent that the parcel cannot thereafter be used as a building lot even if it otherwise complies with all the specific requirements of the zoning regulations for such a building lot.

ANALYSIS AND CONCLUSION

It may assist in the analysis of this case to make clear what specific things are not involved.   This is especially true as the plaintiff has addressed so many tangentially involved areas in an effort to assist in finding the correct legal answer.

This is not a factual dispute where the court is required, as above, to search the record to find whether or not there are facts in the Record to support the ZBA decision.   This case turns on a question of law as outlined above.   This is not a dispute by lot owners over property rights.   This is not about the protection of a deeded recreation area or about a granted conservation easement.   The parties do not differ appreciably on the facts of the case.   The plan shows a notation of “Recreation Area.” The town board of selectmen is the agency authorized to accept deeds of land to the town, not the Planning Commission.   The Declaration of Restrictions does not mention the recreation area.   No specific mention of rights in the recreation area are contained in deeds of lots in the subdivision.   The 3.17 acre parcel does in fact comply with all the specific requirements of a building lot in the zone where it is located, including size, setback, etc.

If there is to be a legal rationale for the denial of the right of the owner to use this property as a building lot it has to come from the mere fact that it was labeled as “recreation area” on the plan.   There is no doubt that the subdivision regulations at the time of the subdivision were permitted by law to require a developer to set aside land to the town for parks and playgrounds.   But, in East Lyme at the time, even though the requirement was that the plan with an application had to show what land was proposed for that purpose, the subdivision regulations themselves do not appear to have gone that far.   Those regulations only required the set aside of land to the town if the commission required it.   Nothing in the minutes of the planning commission suggested that the commission did, specifically, require it.   The vote approving the subdivision did not mention it.   The developer wanted to deed the parcel to the town.   The selectmen considered whether or not to accept the parcel as town open space.   Both sides of the argument were considered at their meeting.   But in the end the selectmen rejected the offer.   Not once but twice.   There were suggestions as to other ways the developer could go to deed the land for open space or recreation, i.e., homeowners' association deed or land trust.   But the developer did not accomplish either of those alternatives and kept title to the property which eventually ended up in the plaintiff.

Plaintiff's arguments about the town taxes or the applicability of other statutory requirements relating to open spaces are not determinative.   Failure of the Town to comply with any of those requirements, if applicable, would not affect the underlying question here.

Neither counsel has cited and the court has not found a prior case specifically on point, although there are many cases with language thought to be helpful.   And there is no shortage of cases, as above, which deal generally with the rights and duties of ZBAs and ZEOs.

The defendant has referenced a case cited by a zoning writer as on point.   But the case of Goldfarb v. High Meadow Riding Club, LLC, Superior Court, Judicial District of Litchfield, Docket No. CV–06–4004617–S (October 31, 2008, Marano, J.) (46 Conn. L. Rptr. 627), is inapposite.   In that case there are at least two separate distinguishing factors.   First, and perhaps most significant, in that factual scenario the developer had filed on the land records a Homeowners' Agreement specifically addressing the imposition of restrictions on the use of the contested parcel and all of the parties deeds referenced the agreement.   Secondly, in Goldfarb the parcel did not comply with the requirements of a building lot since it had no frontage on a road.   Also it should be noted that Goldfarb was not a case involving a ZBA or a ZEO but a suit by lot owners.   The relief in that case was denied.

The defendant also argues that Section 1.61 of the Zoning Regulations applies to make this parcel a “subdivision open space.”   But that section referred to by the attorney, hired by the ZBA to assist it in its duties, makes reference to land areas deeded and perpetually dedicated for recreation neither of which have been found from the facts in the Record here.

The court has looked at the reasons given in the vote of the ZBA for its decision.   While not a model of clarity, the reasons specified suggest to the court that the ZBA was, in effect, as the ZEO had before it, effectuating the enforcement of what was considered to be the private rights of those parties, if any, who had a right to rely on the recreation area designation on the plan for their benefit.   The law is clear that neither the ZBA nor the ZEO have the legal authority to utilize the police power of the state to enforce private rights, if any exist, in regards to the private rights of others to the use or enjoyment of the parcel in question here.

For these reasons, the court finds that the decision of the ZBA is illegal.   It is the judgment of the court that the appeal of the plaintiff must be and is hereby sustained.   Since the court finds that there is only one reasonable result that could legally be reached by the ZBA in these circumstances, it will order the ZBA to reverse the ruling of the ZEO which was before it.

IT IS SO ORDERED.

Robert C. Leuba, JTR

Leuba, Robert C., J.T.R.