S&L Realty, LLC v. Windsor Zoning Board of Appeals, No. CV04 400 13 93 (Conn. Super. 6/6/2006)
| Decision Date | 06 June 2006 |
| Docket Number | No. CV04 400 13 93,CV04 400 13 93 |
| Court | Connecticut Superior Court |
| Parties | S&L Realty, LLC v. Windsor Zoning Board of Appeals Opinion No.: 93854 |
The plaintiff, S&L Realty, LLC, appeals the decision of the defendant, the Windsor Zoning Board of Appeals, (the board), to uphold a cease and desist order issued by the Windsor zoning enforcement officer, Stephen Dupre, (ZEO), with respect to property located at 20 Windsor Avenue in the town of Windsor. The parties have filed briefs and argument was heard by this court on March 30, 2006. The court has reviewed the testimony and evidence contained in the entire record, including tapes of the two board hearings (ROR, Item 19), and has considered the parties' briefs and oral arguments. For the reasons stated below, the appeal is dismissed.
The plaintiff is the alleged owner of the property which is the subject of this appeal located at 20 Windsor Avenue, Windsor, Connecticut. The board is the municipal agency within the town of Windsor designed to hear and decide appeals from decisions of the Windsor ZEO pursuant to General Statutes §8-7.1
I
Appeals from a decision of a zoning board may be taken to the superior court. General Statutes §8-8(b). "Appeals to courts from administrative agencies exist only under statutory authority . . . A statutory right to appeal must be taken advantage of only by strict compliance with the statutory provisions by which it is created . . . Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal." (Citations omitted; internal quotations marks omitted.) Office of Consumer Counsel v. Department of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995).
Aggrievement is a jurisdictional question and a prerequisite to maintaining an appeal. Winchester Woods Associates v. Planning and Zoning Commission, 249 Conn. 303, 307, 592 A.2d 953 (1991); Dibonaventure v. Zoning Board of Appeals, 24 Conn.App. 369, 373, 588 A.2d 244 (1991). "Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 739, n.12, 626 A.2d 705 (1993). At a court hearing on January 31, 2006, and again at a hearing on March 30, 2006, the attorney for the board stipulated to the fact that at all relevant times, the plaintiff, S&L Realty, LLC, was the owner of real property and improvements thereon located at 20 Windsor Avenue, Windsor, Connecticut ("property"). (T., 1/31/06, p. 3.) In addition, the board, in paragraph 1 of its answer to the plaintiff's complaint, admits to the allegations in paragraph 1, which state, "At all relevant times hereto, the plaintiff, S&L Realty, LLC, was the owner of real property located at 20 Windsor Avenue, Windsor, Connecticut." Therefore, the ownership of the property is undisputed. The owner of the property which forms the subject matter of the application is always aggrieved. Bossert v. Norwalk, 157 Conn. 279, 285, 253 A.2d 39 (1968); Ziegler v. Thomaston, 43 Conn.Sup. 373, 376, 654 A.2d 392, 395 (1994). The court therefore finds that the plaintiff is aggrieved by the decision of the board.
By cease and desist order dated May 5, 2004, (ROR, Item 7), the town of Windsor ZEO directed the plaintiff to discontinue certain activities at the property and to conform the property to an approved site plan. The cease and desist order stated that the plaintiff was in violation of Section 2.4.15(O) of the Windsor zoning regulations by continuing the following activities on the property without a special use permit: (1) storage and sale of used automobiles; (2) operation of an auto detailing business; (3) parking of commercial vehicles which exceed the maximum allowed gross vehicle weight for a B2 zone; and (4) failure to maintain landscaping as required by a site plan.2 On May 12, 2004, the commission directed that unless something occurred in response to the cease and desist order, the ZEO should bring the complaint to superior court.
However, before the ZEO took any action, the plaintiff appealed the issuance of the cease and desist order by letter dated May 17, 2004 to the board. (ROR, Item 8.) The board scheduled a public hearing on the applicant's appeal for June 16, 2004. General Statutes §§8-7 and 8-7d require the board to publish notice of its public hearing in a newspaper of general circulation at least twice, at specific intervals prior to the public hearing. This required notice was accomplished on June 4, 2004 and June 11, 2004 in the Hartford Courant. (ROR, Items 1(a), 1(b).)
General Statutes §8-7 sets forth the requirements for public notice of ZBA hearings on applications for a variance. The plaintiff does not take issue with the public notice given for the initial hearing on June 16, 2004, and indeed, the record reflects that notice was given in the newspaper in accordance with the statute.
The board consists of five members and three alternates with a quorum being four members per Section 5.3 of the bylaws. (ROR, Item 17, p. 3.) Only four members of the board were present on June 16, 2004. Although this comprised a quorum, the plaintiff, pursuant to General Statutes §8-7, would have had to persuade all four members present to reverse the decision of the ZEO.
The minutes of the June 16, 2004 meeting reflect that the public hearings scheduled for that meeting were called to order. (ROR, Item 14, pp. 1-3.) All applicants and members of the public present were advised by Commissioner Shay, the acting chairwoman, that a unanimous vote to approve or disapprove would be required that evening, and that anyone who chose not to go forward could reappear the following month. Commissioner Cowan then read the procedures for presentation of an application. He then queried the audience for any questions regarding the procedures which were read. Hearing no comments, Commissioner Shay, according to the minutes, declared the hearings proceed.3 (ROR, Item 14, p. 2.) The first application to be called for the public hearing to proceed was the plaintiff's appeal of the cease and desist order, (Application #04-10). The plaintiff's attorney stated that although he was ready to go forward, he preferred to postpone to the next meeting, or to a special meeting if the board was willing to hold one before the next regularly scheduled meeting. He indicated he would prefer to have five members present at the next regular meeting or earlier if a special meeting could be convened. He then raised another procedural issue, requesting that the ZEO provide him with copies of materials the ZEO intended to rely upon prior to the next regularly scheduled meeting so the plaintiff would have "fair notice" of what was relied upon for the cease and desist order. The ZEO, who was present, indicated he would present any documents upon which he relied prior to the next meeting. Plaintiff's attorney asked that the ZEO call him when those documents were ready so he could pick them up. Although the minutes note no response to that inquiry by the ZEO, the tape recording of the June 16 session reflects that he said he would contact plaintiff's attorney. (ROR, Item 19, 6/16/04 Hearing, Tape 1.) The board then proceeded to take up other hearings that evening. During its business session, when the board members present were advised by the ZEO that he was unavailable for the next regular scheduled meeting of July 21, 2004, they tentatively scheduled a special meeting for July 14, 2004 so long as notice could be accomplished. (ROR, Item 19, 6/16/04 Hearing, Tape 2.)4
Subsequently, the board published a notice on June 22, 2004 in the Hartford Courant that noted that the plaintiff's appeal was postponed at applicant's request to a special meeting on July 14, 2004. (ROR, Item 2(a).) Notice of this meeting also was posted in the office of the town clerk and on the public notice board more than 24 hours prior to the meeting.5 (ROR, Item 2(b); Item 19, 7/14/04 Hearing, Tape 1; Item 15, p. 5.) This special meeting was scheduled to honor the request of plaintiff's attorney on June 16 for a meeting as soon as possible. On July 14, 2004, the plaintiff appeared through counsel and raised an issue as to the adequacy of the notice for this special meeting. Commissioner Shay indicated that she mistakenly used the word "postponed" at the earlier meeting but the hearing on June 16 had been opened and recessed to July 14 at the applicant's request. In opening the hearing of July 14, Shay stated this was a recessed meeting. After some discussion with its counsel, the board decided it could proceed and that republishing the notice of the special meeting two times, in accordance with General Statutes §§8-7 and 8-7d, was not necessary. The plaintiff declined an invitation to reschedule the meeting. (ROR, Item 15, pp. 1-3.)
As one of its grounds for appeal, the plaintiff asserts "the special meeting of July 14, 2004 was improperly or inadequately noticed." (Appeal, ¶8g.)
The approved minutes of the June 16th meeting, (ROR, Item 14, pp. 2-3), reference the discussion that occurred on that date under the topic "PUBLIC HEARINGS #04-10:20 Windsor Avenue—Section 2.4.15.O 2) Appeal of Cease and Desist Order—Used Car Sales." It is clear from the record that all the board members believed they had opened the hearing and continued it at the plaintiff's request. As noted herein above, although the board members used the word "postpone" rather than "recess," the June 16 minutes state:
Commissioner Cowan read procedures for presentation of an application. He then queried the audience for any questions regarding the procedures which were read. Hearing no comments, Commissioner Shay declared the...
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