Cady v. Zoning Bd. of Appeals of Burlington

Bruce A. Cady

v.

Zoning Board of Appeals of the Town of Burlington et al

No. LNDCV156062008S

Superior Court of Connecticut, Judicial District of Hartford, Hartford, Land Use Litigation Docket

August 11, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Marshall K. Berger, J.

I

The plaintiff, Bruce A. Cady, the owner of 42 Claire Hill Road in Burlington, appeals an April 21, 2015 decision of the defendant, the zoning board of appeals of Burlington (board) upholding a decision of its zoning enforcement official, Liz Burdick. In a letter dated November 7, 2014, Burdick determined that a map of the codefendant, GM Retirement, LLC (GM Retirement), showing revised boundary lines for its property at 48 Claire Hill Road^[1] and route 179, also known as Canton Road, complied with Burlington's zoning and subdivision regulations. (Return of Record [ROR], Item 1.) Cady filed his appeal with the board on November 21, 2014. (ROR, Item 1.) The public hearing commenced on January 20 2015, continued on March 17, 2015, and concluded on April 21 2015. (ROR, Items 13-16.) The appeal was denied by the board on April 21, 2015, and notice of the decision was published in the Hartford Courant on April 28, 2015. (ROR, Items 17-18.)

On May 11, 2015, Cady commenced the instant appeal. In his complaint, he alleges that the board committed both procedural and substantive errors in denying his appeal. The return of record was filed on December 1, 2015. On January 19, 2016, the board filed substituted record item thirty-nine containing the transcripts of the public hearing and the deliberative session on April 21, 2015 (pleading #111.00). The plaintiff filed his brief on February 3, 2016, the board filed its brief on March 3, 2016, GM Retirement filed its brief on March 4, 2016, and Cady filed a brief in reply on April 4, 2016. After a status conference, the parties submitted supplemental briefs on May 4, 2016, on the issue of whether the boundary line revisions constituted a subdivision. On May 11, 2016, this court heard the appeal.

II

General Statutes § 8-8(b), in relevant part, provides that " any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located . . ." General Statutes § 8-8(a)(1) defines " aggrieved person" as " a person aggrieved by a decision of a board" and " includes any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."

Before this court on May 11, 2016, Cady introduced a copy of his deed for 42 Claire Hill Road, which abuts GM Retirement's property at 48 Claire Hill Road. (Exhibit 1; ROR, Item 35.) The parties further stipulated that Cady has owned the property throughout the administrative process and still owns it. Accordingly, this court found that Cady is aggrieved. See General Statutes § 8-8(a)(1) and (b).

III

" [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 . . . [T]he zoning board of appeals makes a de novo determination of the issue before it, without deference to the actions of the zoning enforcement officer . . .

" In reviewing the actions of a zoning board of appeals, we note that the board is endowed with liberal discretion and that its actions are subject to review by the courts only to determine whether they are unreasonable, arbitrary or illegal . . . The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision . . . It is the board's responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts . . .

" It is well settled that the courts should not substitute their own judgment for that of the board and that the decisions of the board will not be disturbed as long as an honest judgment has been reasonably and fairly made after a full hearing . . . The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings . . . Upon an appeal from the judgment of the trial court, we review the record to see if there is factual support for the board's decision, not for the contentions of the applicant . . . to determine whether the judgment was clearly erroneous or contrary to law." (Internal quotation marks omitted.) Cockerham v. Zoning Board of Appeals, 146 Conn.App. 355, 363-64, 77 A.3d 204 (2013), cert. denied, 311 Conn. 919, 85 A.3d 653 (2014).

" Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply." (Internal quotation marks omitted.) Doyen v. Zoning Board of Appeals, 67 Conn.App. 597, 603, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002). " A local board . . . is in the most advantageous position to interpret its own regulations and apply them to the situations before it . . . If a board's time-tested interpretation of a regulation is reasonable . . . that interpretation should be accorded great weight by the courts." (Citations omitted; internal quotation marks omitted.) Id., 603-04.

" Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law . . . These principles apply equally to regulations as well as to statutes." (Internal quotation marks omitted.) Anatra v. Zoning Board of Appeals, 307 Conn. 728, 737-38, 59 A.3d 772 (2013).

" [Z]oning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning . . . [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Citation omitted; internal quotation marks omitted.) Moon v. Zoning Board of Appeals, 291 Conn. 16, 20-21, 966 A.2d 722 (2009).

" A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance . . . The words employed are to be interpreted in their natural and usual meaning . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant . . . The regulations must be construed as a whole and in such a way as to reconcile all their provisions as far as possible . . . [R]egulations are to be construed as a whole since particular words or sections of the regulations, considered separately, may be lacking in precision of meaning to afford a standard sufficient to sustain them." (Internal quotation marks omitted.) Mountain Brook Assn., Inc. v. Zoning Board of Appeals, 133 Conn.App. 359, 368-69, 37 A.3d 748 (2012).

" A [regulation] should be construed so that no word, phrase or clause will be rendered meaningless . . . Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body." (Citations omitted; internal quotation marks omitted.) Raymond v. Zoning Board of Appeals, 76 Conn.App. 222, 234-35, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003).

IV

Currently 1.63 acres, GM Retirement's property was once four lots.^[2] (ROR, Item 35.) The first lot is at 48 Claire Hill Road, was once owned by Earl R. Richard and Karen V. Richard, consists of 0.832 acres, and contains a two-family dwelling. (ROR, Item 35.) It occupies roughly the entire upper, or northerly, half of GM Retirement's property. (ROR, Item 35.) The other three lots comprise the lower, or southerly, half of the property. (ROR, Item 35.) The lots consist of portions of parcels taken, but not totally utilized, in 1959 by the Connecticut department of transportation (department) to widen route 179. (ROR, Items 24-25; Items 27-28; Item 35.) Clara L. Rainault, the former owner of the most easterly lot on the lower half of the property, apparently retained ownership of the portion of her lot that was not taken by the state. (ROR, Item 2, Attachment [Att.] 4.) In July of 1986, GM Retirement's predecessors in title, Martin Beirut and Adele Beirut, purchased the remainder of Rainault's property, which was 0.270 acres. (ROR, Item 2, Att. 4; Item 35; Item 36, pp....