R & R Pool & Patio, Inc. v. Zoning Board of Appeals

• Decision Date: 18 May 2004
• Docket Number: (AC 24111)
• Citation: 83 Conn. App. 1,847 A.2d 1052
• Court: Connecticut Court of Appeals
• Parties: R AND R POOL AND PATIO, INC., ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF RIDGEFIELD

83 Conn. App. 1

847 A.2d 1052

R AND R POOL AND PATIO, INC., ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF RIDGEFIELD

(AC 24111)

Court of Appeals of Connecticut.

Argued February 23, 2004.

Officially released May 18, 2004.

Schaller, McLachlan and Peters, JS. Patricia C. Sullivan, with whom was Barbara M. Schellenberg, for the appellant (defendant).

Robert A. Fuller, with whom was Raymond F. Ross, for the appellees (plaintiffs).

Opinion

SCHALLER, J.

The defendant, the zoning board of appeals of the town of Ridgefield (board), appeals from the judgment of the trial court reversing the board's decision and directing it to grant the plaintiffs'¹ application for site plan approval for outdoor display and storage on their property. This is the third action involving the parties that has come before this court on issues related to the plaintiffs' use of their property. In this appeal, the board claims that the court's order directing it to grant the plaintiffs' site plan application is inconsistent with (1) the decision of our Supreme Court in R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 778 A.2d 61 (2001), and (2) the court's own findings.² We reverse a portion of the judgment of the trial court and remand the case to that court with direction to remand it to the board for further proceedings consistent with this opinion.

The following facts and procedural history are relevant to our disposition of the board's appeal. In July, 1990, the board granted Richard Amatulli, a tenant of the property at that time, a variance that permitted him to conduct "wholesale and retail sales ... from the [property], unrestricted as to type of customer or hours of operation, but restricted as to the products to be sold. Such wholesale and retail sales shall be limited to oriental rugs, fine furniture and art." (Internal quotation marks omitted.) Id., 458. In 1993, the then owners of the property filed an application on behalf of a new tenant, the present corporate plaintiff, R and R Pool and Patio, Inc., to operate a warehouse and an office on the property and to conduct retail sales of "fine outdoor furniture." The Ridgefield town planning director denied the application, and the board sustained the denial. The board based its decision on the determination that the furniture that the plaintiffs proposed to sell was not the type of merchandise for which the variance had been granted to Amatulli. The owners and the plaintiffs appealed to the Superior Court. The court dismissed the appeal on the ground that the plaintiffs lacked standing, and the owners and the plaintiffs then appealed to this court.³ We reversed the trial court's judgment in part and remanded the case to that court for a decision on the merits. R & R Pool & Home, Inc. v. Zoning Board of Appeals, 43 Conn. App. 563, 684 A.2d 1207 (1996). In 1998, the trial court sustained the plaintiffs' appeal on the ground that the record was devoid of evidence "to support the board's conclusion that the plaintiffs' furniture is not the `fine furniture' contemplated by the [Amatulli] variance." R & R Pool & Patio, Inc. v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. CV 94-316152 (October 26, 1998). The board did not appeal from that decision.

In July, 1995, while their appeal on their first site plan application was pending in the trial court, the plaintiffs filed a second site plan application, this time for the sale of oriental rugs, fine furniture and art. During the course of the application process, the plaintiffs assured the planning director that they would limit their retail furniture sales to goods that would comply with the Amatulli variance and that they would not sell plastic or mass produced furniture. The first site plan appeal was still pending when, in August, 1995, the planning director approved the plaintiffs' second site plan application. The site plan approval was subject to the condition that "the limited retail sales will be exactly as permitted and described in the grant of [the Amatulli variance] and further defined in [the board's memorandum of decision denying the first application for site plan approval]." (Internal quotation marks omitted.) R & R Pool & Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 462.

Four months later, and three months after the plaintiffs began selling furniture on the property, the Ridgefield zoning enforcement officer issued a cease and desist order on the ground that the plaintiffs' sales were not permitted under the Amatulli variance and violated the conditions of their site plan approval. The plaintiffs appealed to the board, and the board sustained the zoning enforcement officer's order. In so doing, the board determined that the plaintiffs were in violation of the zoning variance that applied to their property because they "applied for [s]ite [p]lan [a]pproval for one use ... and after receiving it ... put the property to another use." (Internal quotation marks omitted.) Id. Specifically, the board noted that the plaintiffs' site plan application "had been approved for the sale of oriental rugs, fine furniture and art ... [and] concluded that [t]he outdoor furniture ... offered for sale at [the plaintiffs' property] does not meet the aforementioned criteria." (Internal quotation marks omitted.) Id., 462-63.

The plaintiffs appealed to the Superior Court claiming, inter alia., that the term "fine furniture" was vague and that their rights to due process were violated because they were not told what items of furniture that term did not include. The court heard that appeal at the same time that it heard, on remand, the plaintiffs' appeal from the denial of their first site plan application. In addition to sustaining the plaintiffs' appeal in the first site plan case, as previously detailed, the court dismissed their appeal from the board's decision to sustain the cease and desist order related to the second site plan. In the latter case, the court decided that "the board's reason for sustaining the order ... was reasonably supported by the record." Id., 463. The plaintiffs appealed from that decision.

We reversed the court's judgment on the basis of the doctrine of collateral estoppel. After the granting of certification, the board appealed to the Supreme Court on the ground that collateral estoppel did not apply because in the trial court's decision in the first site plan case, the court did not determine the definition of the term "fine furniture" as used in the Amatulli variance. Our Supreme Court agreed with the board's argument, stating that "the meaning of fine furniture as used in the Amatulli variance was neither litigated by the parties nor decided by the trial court in the site plan case. Therefore, the trial court did not render final judgment on an issue that would preclude the board, under the doctrine of collateral estoppel, from ensuring in the cease and desist case that the plaintiffs' actual use complied with its site plan application to sell fine furniture." Id., 475. Accordingly, the Supreme Court reversed the judgment and remanded the case to this court with direction to affirm the judgment of the trial court. Id., 481.

The present case involves, inter alia, a different aspect of the Amatulli variance, specifically, whether it allows the plaintiffs to use the exterior of the property for outdoor displays and storage.⁴ On December 23, 1998, the plaintiffs filed a third application for site plan approval for specific areas of outdoor displays in which they intended to display a different line of products for sale, i.e., "[f]urniture and furnishings, including the customary related accessories such as cushions, umbrellas, and tableware related to furniture in stock.... Spas, hot tubs and pool accessories.... Billiard and gaming tables and accessories.... Fireplace equipment and grills.... Works of art.... Christmas and seasonal holiday products." The planning director denied the application on February 17, 1999. The plaintiffs appealed and, on July 19, 1999, the board upheld the planning director's decision. The plaintiffs appealed to the Superior Court on numerous grounds. On August 9, 2002, the court sustained the appeal on the ground that there was no substantial evidence indicating that the variance did not include outdoor displays, and because the plaintiffs' proposed use of the property did not constitute a change from Amatulli's use and, thus, they were not...