Patrick Looney et al. v. Zoning Board of Appeals of the Town of Old Lyme et al. (2015)

MEMORANDUM OF DECISION

The present zoning dispute was heard by the court on September 22, 2015, as a result of an appeal by the plaintiffs, Patrick Looney and Diane Looney (“Plaintiffs”), from the decision of the Old Lyme Zoning Board of Appeals (“Board”) to uphold a cease and desist order issued on January 17, 2014, by Anne Brown, the then acting Zoning Enforcement Officer of the Town of Old Lyme (“ZEO”).  This appeal was brought pursuant to C.G.S. §§ 8–8 and 8–6(1) from a cease and desist order issued on January 17, 2014.  Said appeal was timely filed by the plaintiffs, with briefs filed and arguments heard on the hereinbefore stated date.

The plaintiffs are the owners of certain real property in the R–10 Zone of Old Lyme, known as 2 Moss Trail, Old Lyme, Connecticut (“Property”).  The Property is in the Rogers Lake West Shore Association, Inc., a special chartered municipality pursuant to 22 Spec. Acts 761, No. 364 § 1 (1937).

On January 17, 2014, the ZEO issued a Cease and Desist Order alleging the maintenance of a junkyard and storing rubbish, machinery, trash, refuse, debris and/or junk motor vehicles on the Property in violation of Zoning Regulations 6.1.2, 6.1.5 and 6.1.24 of the Old Lyme Zoning Regulations (“Regulations”).  On February 14, 2014, Plaintiffs filed an appeal of the cease and desist order to the Board.  A public hearing on the appeal was held on March 18, 2014, and continued on May 20, 2014, with notice of the public hearing being published in The Day on March 5, 2014, and March 12, 2014.

The appeal was presented to the Board by the Plaintiffs' attorney.  At the presentation to the Board at the public hearing, Plaintiffs contended that the objects being stored were not junk, but useful personal property including motor vehicles, motorcycles, lawn mowers, blowers, boats, tools, miscellaneous parts, toys, etc.

After the close of the public hearing, the Board entered its open voting session and voted to uphold the decision of the ZEO in the cease and desist order by a unanimous vote.  Notice of the Board's decision was published in The Day on May 23, 2014.  On June 5, 2014, the Plaintiffs served the Board with their appeal of its decision to uphold the ZEO's cease and desist order.

At the hearing, the Plaintiffs presented evidence of ownership of the subject property with this court finding the Plaintiffs were classically aggrieved by the actions of the Board.

Upon appeal, the scope of judicial review of a decision of the Board is narrowly circumscribed.  Conclusions reached by the Board must be upheld by the trial court if they are reasonably supported by the record.  Vine v. Zoning Board of Appeals, 281 Conn. 553, 559–60 (2007).  Where no reason for its decision is expressly stated, the court must search the entire record to find a basis to uphold the decision.  Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369 (1988).

The proper focus of the court is on the evidence that supports the decision of the Board, rather than the contentions of the opponent.  See Caserta v. Zoning Board of Appeals, 226 Conn. 80 (1993);  Pleasant View Farms Development v. Zoning Board of Appeals of Wallingford, 218 Conn. 265, 290 (1991).  “The plaintiff has the burden of proof to show that the record does not support action of the agency.”  Laufer v. Conservation Commission, 24 Conn.App. 708, 715 (1991).  Additionally, evidence is to be construed most favorably to upholding the ruling of the Board.  Grady v. Katz, 124 Conn. 525 (1938).

“The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached.”  Primerica v. Planning and Zoning Commission, 211 Conn. 85, 96 (1989).  In fact, even the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.  Vine, supra, 281 Conn. 559–60;  Property Group, Inc. v. Planning and Zoning Commission, 226 Conn. 684, 697–98 (1993).

Moreover, the credibility of witnesses and the determination of factual issues are matters solely within the province of the administrative agency.  Vine, supra, 281 Conn. 559–60;  Conetta v. Zoning Board of Appeals, 42 Conn.App. 133, 137–38 (1996);  Protect Hamden/North Haven from Excessive Traffic and Pollution, Inc. v. Planning and Zoning Commission of the Town of Hamden, 220 Conn. 527 (1991).  The court cannot substitute its judgment for that of the board or make factual determinations on its own.  Farrington v. Zoning Board of Appeals, 177 Conn. 186, 190 (1979);  Cumberland Farms, Inc. v. Zoning Board of Appeals of Westbrook, 74 Conn.App. 622 (2003).  Decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing.  Santos v. Zoning Board of Appeals, 100 Conn.App. 644, 647 (2007);  Conetta, supra, 42 Conn.App. 137–38.

“Zoning boards of appeal are entrusted with the function of deciding within prescribed limits and consistent with the exercise of a legal discretion, whether a regulation applies to a given situation and the manner of its application.”  Molic v. Zoning Board of Appeals, 18 Conn.App. 159, 165 (1989).  The Appellate Court has frequently held that a local board is in the most advantageous position to interpret its own regulations and apply them to the situations before it.  Doyen v. Zoning Board of Appeals of Essex, 67 Conn.App. 597, 603 (2002), cert. denied, 260 Conn. 901 (2002) (citing New London v. Zoning Board of Appeals, 29 Conn.App. 402, 405, cert. granted, 224 Conn. 921 (1992) (appeal withdrawn March 18, 1993).

The Plaintiffs argued and briefed five issues in support of their appeal:

(1) The Board lacked authority to regulate zoning matters in the Rogers Lake West Shores Association, Inc. (“Association”) and no valid delegation of zoning powers were made to the Town of Old Lyme (“Town”);

(2) The subject regulations were too vague to enforce and in violation of their due process rights;

(3) The Board's decision was based upon selective enforcement in violation of their equal protection rights;

(4) The Board admitted photographs taken by the ZEO without a warrant;  and

(5) The zoning regulations are preempted by C.G.S. §§ 7–148(c)(7)(H)(xv), 7–148aa and 7–152c, Connecticut anti-blight statutes.  The court will decide these issues seriatim in the present controversy.

Issue (1) The Board's Authority to Regulate Zoning Matters Concerning the Association's Property

The Plaintiffs reside on land located in the Association, a specially chartered entity created the Connecticut legislature pursuant to the Special Act. The Association and its real property are located within the Town and neighboring Town of Lyme. The Plaintiffs' property is located solely within the Town. According to C.G.S. § 8–2, grants a “city, town or borough” the statutory authority to adopt and regulate zoning within the boundaries thereof.  The court concludes based upon the record and applicable legislation that the Association is not a “city, town or borough” but rather a “body politic and corporate” entity, as stated in the Special Act.

Furthermore, the court concludes that the Association was not granted zoning power pursuant to the Special Act. The Association was granted several enumerated powers to regulate Association property within its borders.  The Special Act gave authority to the Association to construct and operate hospitals, public roads, conduits, sewers and other structures, provided all such construction, operation or maintenance is within the law and does not conflict with any franchise or other grants by the Town of Lyme and Old Lyme or by the state (Section 4).  Section 5 provides that the Association is granted powers to regulate construction and establish building lines, which are general municipal powers under C.G.S. § 7–148(c)(7)(A) and not zoning powers.  Section 6 grants “power to protect by suitable means life and property within its limits from loss and damage” and the ability to appoint special policeman or watchman with powers of arrest for Association bylaws violation.  Section 7 grants powers to regulated health, garbage and other domestic refuse with the further power to appoint a health officer subject to the supervision of the Town health office.

The court concludes that the Special Act conferred to the Association the authority to have buildings built in compliance with Town and State building code, Association bylaws to be enforced by constables and matters of health and sanitation under the direction of the Town's health officer.  Zoning powers were not specifically granted to the Association.  The Town has adopted zoning pursuant to Chapter 8 of the General Statutes together with the power to enforce its duly adopted regulations.¹

Issue (2) Are the Subject Regulations Too Vague to Enforce in Violation of the Plaintiffs' Due Process Rights?

The cease and desist order entered states “[t]his order is issued to you for maintaining a junkyard and storing rubbish, machinery, trash, refuse, debris and/or junk motor vehicles in violation of §§ 6.1.2, 6.1.5 and 6.1.24 of the Old Lyme Zoning Regulations ․” Section 6.1.2 of the Regulations reads:

No land in any district shall be used for a junkyard or a junk business of any description and no rubbish, machinery, broken glass, stumps, roots, garbage, trash, refuse, debris or junk motor vehicles shall be left or stored on any lot so as to be unsightly or detrimental to nearby property.

The cease and desist sets out two counts:  1) maintaining a junkyard;  and 2) storing rubbish, machinery, trash, refuse, debris, and/or junk motor vehicles.  The definition of junkyard states:

Except as provided in connection with a licensed motor vehicle repair garage or a Farm, the deposit or the outdoor storage on a Lot of more than one (1) unregistered vehicle or vehicles otherwise not in a condition for legal use on public highways or parts of one (1) or more such vehicles shall be deemed a Junk Yard.

The defendant ZEO submitted a memorandum into evidence at the public hearing stating that at least two vehicles on the Property were unregistered on May 20, 2014, which she verified with the tax assessor.  The Plaintiffs at the time of the issuance of the cease and desist order, maintained a junkyard by virtue of having unregistered and undrivable vehicles, in excess of the regulatory limitation.

The defendant ZEO further testified that the many objects on the Property were junk, including twenty lawnmowers, unregistered boats, unregistered motorcycles, machinery parts, toys, etc.  The defendant Board similarly decided that many of the objects found on the Property were junk.  The defendant Board upheld the defendant ZEO's cease and desist because “the cease and desist order was issued correctly since all of the listed violations exist.”

Further, as the Plaintiffs argued in their brief, “[a] ‘statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law’ ․ And this is no less true of a municipal ordinance or regulation.”  Helbig v. Zoning Comm'n. of Noank, 185 Conn. 294, 308 (1981), citing O'Connell v. Brockton Board of Appeals, 344 Mass. 208, 212 (1962).  The issue in Helbig was a regulation that called for “sufficient proof as the Zoning Commission may require” to prove a preexisting nonconforming use.  Id., 310.  The Supreme Court held that the regulation was unconstitutional “because of its failure to meet the constitutional mandate that a regulation be as reasonably precise as the subject matter requires and as reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations.”  Id., 310.

The Regulations in the present case do have a clear definition of “refuse:” “[w]aste, junk, garbage, debris, rubbish or trash, but not including sewage collected or disposed of in lawful facilities.”  In contrast to Helbig, this court concludes that “refuse” is defined in the regulations, and the term debris is not “so vague that men of common intelligence must necessarily guess at its meaning.”  Id., 308.  The regulation is clear, valid and enforceable.  Furthermore, the second count does not require that all six categories of forbidden items be stored on the Property.  Again, the defendant ZEO testified that the property contained junk, and the defendant Board found that the Property contained junk when they upheld the cease and desist order.

The Plaintiffs also argue that the term “detrimental to nearby property” is not defined.  As above, the term is not so vague that the Plaintiffs or the defendant Board would have to guess at its meaning.  Further, as above, detrimental to nearby property is one of two requirements listed in the Regulations, § 6.1.2.

No land in any district shall be used for a junkyard or a junk business of any description and no rubbish, machinery, broken glass, stumps, roots, garbage, trash, refuse, debris or junk motor vehicles shall be left or stored on any lot so as to be unsightly or detrimental to nearby property.  (Emphasis added.)

The defendant ZEO determined that the junk was unsightly, and the defendant Board, reviewing the evidence de novo, agreed.  The term “detrimental to nearby property” is not vague.  The record also indicates that the defendant Board found the Plaintiffs' property to be unsightly.  Furthermore, there is sufficient evidence in the record from neighbors professing that their property has been devalued due to the condition of the Plaintiffs' property.

The regulations applied to the Plaintiffs' property, for reasons stated above are not vague and unenforceable.  They met the constitutional mandate as reasonably precise as the subject matter requires those affected to know their rights and obligations.

Issue (3) Was the Board's Decision Based Upon Selective Enforcement in Violation of the Plaintiffs' Equal Protection Rights?

The Plaintiffs argue that their rights of equal protection were denied because the ZEO was selectively enforcing the junk regulation against them.  They contend that the ZEO only enforces regulations when a complaint is made;  and that the ZEO failed to examine other homes in the neighborhood where materials and vehicles were stored in a similar manner.

In review of the pleadings, this court concludes that the Plaintiffs have failed to plead any facts demonstrating selective enforcement.  See Russell v. Russell, 91 Conn.App. 619–34 (2005).  The record is also devoid of any pattern of discrimination practiced by the municipality.  The fact that the ZEO only acts when a complaint is filed is insufficient evidence of a conspicuous pattern of discrimination.  The evidence of the amount of vehicles registered or unregistered or miscellaneous other claimed debris by the Plaintiffs versus other landowners is insufficient to prove a pattern of discrimination conspicuously practiced by the ZEO. (See Chaplin v. Balkus, 189 Conn. 445, 448 (1983).

Issue (4) Does the Admission of Photographs Taken by the ZEO Without a Warrant Require a Decision in Favor of the Plaintiffs?

The Plaintiffs contend that the taking of photographs of the rear yard of the Plaintiffs' property (i.e.“curtilage”) from a neighbor's property required a warrant which the ZEO failed to obtain.  Citing Town of Bozrah v. Chmurynski, 303 Conn. 676, 697 (2012).  The Plaintiffs further argue that their fenced in backyard curtilage extends to the “intimate activity associated with the sanctity of a man's home and privacies of life ․” (Internal quotation marks omitted.)  Oliver v. U.S., 466 U.S. 170 (1984), resulting in a Fourth Amendment claim of the U.S. Constitution.

As argued by the defendants, all of the photos taken by the ZEO from the neighbor's property were offered as evidence at the public hearing before the Board without objection.  Furthermore, the Plaintiffs have failed to allege any error by the Board in accepting said photos.  The first time this argument concerning the admission of the ZEO photos has been made by the Plaintiffs was in their brief.  Our Supreme Court has denied similar claims made first at the time of the brief and not alleged in the complaint.  Mitchell Land Co. v. Planning & Zoning Board of Appeals, 140 Conn. 527, 563 (1953);  Welch v. Zoning Board of Appeals of North Branford, 159 Conn. 208 (1969).

The parties were given notice of the hearing dates and participated and no party was denied the right to produce relevant evidence and to cross examine witnesses as deemed necessary.  The Plaintiffs had ample opportunity to object to the admission of these curtilage photos taken by the ZEO allegedly in violation of their Fourth Amendment right.  They and their counsel failed to do so.  The Board had this evidence available to it and, therefore, had the right to determine the credence and weight at its discretion.  Vine, supra, 281 Conn. 559–60.

The emphasis placed by the Plaintiffs on the applicability of Town of Bozrah v. Chmurynski to the present controversy is misplaced.  This Supreme Court decision dealt with a temporary injunction action brought by the Town of Bozrah and its ZEO to prevent a defendants' property owners refusal to permit an inspection of their property for certain alleged zoning violations, i.e., unregistered cars and junk.  Id., 678–80.  The trial judge granted the temporary injunction, concluding that the town's interest in stabilizing property values and promoting the general welfare justified an inspection of the defendants' property meeting the requirements of the Fourth Amendment of the U.S. Constitution.  Id., 681.  Upon motion of the defendants,' the trial court granted a stay of execution while two of the defendants appealed and three of the defendants filed writs of error with the cases consolidated and transferred to the Connecticut Supreme Court.

The defendants claimed that the trial court's order violated their Fourth Amendment right to be free from unreasonable searches and seizures requiring a warrant prior to any search.  Id., 682.  Distinguishing the property search from one of routine and area wide inspection, the Supreme Court held that targeted search of the defendants' property requires the trial court to make a preliminary determination of probable cause to believe that a zoning violation exists on the subject property prior to granting a temporary injunction.  Id., 697.  Permitting a search of the defendants' property without a finding of probable cause violates the Fourth Amendment.  The Supreme Court reversed the judgment and remanded the case to the trial court with direction to set aside the injunction.

In the present controversy, while it is true that the ZEO in question did not obtain a warrant, she never trespassed on the Plaintiffs' property when photos were taken from the neighbor's yard.  The Plaintiffs also submitted photographs themselves concerning the condition of the property (ROR Transcript, p. 20).  The plaintiff, Patrick Looney, testified to the existence of twenty lawnmowers, four blowers, three unregistered motorcycles, three boats not presently in use, parts of equipment utilized in his son's landscaping business, various children's toys, commercial and residential equipment parts, etc., were stored throughout the 3.7 acre property.  In addition, neighbors and third parties testified throughout the hearings that general unsightly condition of the subject property was detrimental to their property values and violated the applicable provisions of the zoning regulations cited in the cease and desist order.  There is sufficient evidence in the record, exclusive of the ZEO's photographs to sustain the decision of the Board.

Issue (5 ) Are the Zoning Regulations in Question Preempted by C.G.S. §§ 7–148(c)(7)(H)(xv), 7–148aa and 7–152c

The Plaintiffs argue that the zoning regulations adopted and enforced by the Town through the ZEO and the Board are preempted by the Connecticut Anti-blight legislation cited above.  The Plaintiffs further argue that any enforcement action based upon “detrimental conditions” could only be brought under the anti-blight legislation not under the existing zoning regulations.  It is not clear in the record that the Town has adopted an anti-blight ordinance to date.

The court concludes that preemption argument raised by the Plaintiffs is misplaced.  The doctrine of preemption relates to state statutes preempting local laws.  A “local ordinance is preempted by a state statute whenever the legislature has demonstrated an intent to occupy the entire field of regulation on the matter.”  East Haven v. New Haven, 159 Conn. 453, 469 (1970).  Dwyer v. Farrell, 193 Conn. 7, 14 (1984).

The anti-blight statutes previously cited above by the Plaintiffs grants to municipalities the power to enact local ordinances to address housing blight.  C.G.S. § 8–2 also grants to municipalities the power to enact zoning regulations regulating land uses including junkyards, etc.  Section 8–3 grants authority to the Town to enforce zoning regulations.  Section 8–12 states, further, that the zoning enforcement is not the exclusive way of addressing a zoning violation where “additional remedies are available” such as in an anti-blight ordinance referring to junk, etc.

Powers have been granted by the State to regulate junk and storage of debris and rubbish under both titles 7 and 8 of the General Statutes.  Whether the Town has adopted an anti-blight ordinance or not, is not determinative to the issues at hand.  The Town has adopted zoning with definitive regulations concerning unregistered motor vehicles, junk, etc.

ORDER

The decision of the Zoning Board of Appeals of the Town of Old Lyme is hereby affirmed and the Plaintiffs' appeal is dismissed.

Devine, J.

FOOTNOTES

FN1. As to Attorney McGarry's letter concerning the delegation of zoning powers to the Town, the court concludes that since the initial promulgation of zoning authority by ordinance, the Town had the requisite power to enforce those regulations in the Association's geographic area.  This interpretation is consistent with this court's analysis hereinbefore stated.  As an aside, it is interesting to note that the plaintiff, Patrick Looney, sat on the zoning commission of the Town for over 12 years before resigning due to his claim of conflict.  The defendants and other property owners in the Association complied with the zoning regulations of the Town by filing for zoning permits etc., acknowledging the validity of zoning regulations..  FN1. As to Attorney McGarry's letter concerning the delegation of zoning powers to the Town, the court concludes that since the initial promulgation of zoning authority by ordinance, the Town had the requisite power to enforce those regulations in the Association's geographic area.  This interpretation is consistent with this court's analysis hereinbefore stated.  As an aside, it is interesting to note that the plaintiff, Patrick Looney, sat on the zoning commission of the Town for over 12 years before resigning due to his claim of conflict.  The defendants and other property owners in the Association complied with the zoning regulations of the Town by filing for zoning permits etc., acknowledging the validity of zoning regulations.

Devine, James J., J.