Ammirata v. Zoning Board of Appeals

• Decision Date: 18 September 2001
• Docket Number: (AC 20640)
• Citation: Ammirata v. Zoning Board of Appeals, 65 Conn. App. 606, 782 A.2d 1285 (Conn. App. 2001)
• Court: Connecticut Court of Appeals
• Parties: MICHAEL AMMIRATA ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF REDDING ET AL.

65 Conn. App. 606

782 A.2d 1285

MICHAEL AMMIRATA ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF REDDING ET AL.

(AC 20640)

Appellate Court of Connecticut.

Argued February 22, 2001.

Officially released September 18, 2001.

Foti, Flynn and Peters, Js.

Paul L. Bollo, for the appellants (plaintiffs).

Peter S. Olson, with whom was Gerald C. Pia, Jr., for the appellees (named defendant et al.).

Opinion

FLYNN, J.

The plaintiffs, Michael Ammirata and Margaret Ammirata, appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant zoning board of appeals of the town of Redding (zoning board), which sustained the issuance of a cease and desist order by the Redding zoning enforcement officer, the defendant Aimee Pardee (zoning officer).¹

On appeal, the plaintiffs claim that (1) the Redding zoning commission (zoning commission) is barred by the principles of res judicata and collateral estoppel from asserting zoning violations that it has litigated or had the opportunity to litigate in a prior zoning action against the plaintiffs, (2) the zoning commission is prohibited from asserting against them a 1975 setback regulation that is not part of the current regulations that were adopted in 1986, (3) the application of a zoning regulation requiring a land management plan for a prior nonconforming use violates General Statutes § 8-2 (a) and § 5.17 of the Redding zoning regulations, which protect nonconforming uses, (4) General Statutes § 19a-341, concerning the right to farm, bars the zoning commission from requiring a management plan for farm property and (5) the doctrine of municipal estoppel prohibits the town of Redding from enforcing its regulations. We affirm the judgment of the trial court.

We glean the following facts and procedural history from the court's memorandum of decision and from the record. The plaintiffs own a 2.56 acre parcel at 145 Mountain Road (property) in Redding. The plaintiffs occupied the premises in 1978 and acquired title to the property on July 20, 1982. The property is located in a R-2 zone, formerly known as "Residential and Farming District A."

On October 21, 1998, the zoning officer wrote to the plaintiffs, requesting that they file a land management plan and that they observe the twenty-five foot setback of paddocks mandated by the zoning regulations. The plaintiffs did not submit a management plan. On February 11, 1999, the zoning officer issued a cease and desist order to the plaintiffs for the following alleged violations of the zoning regulations. First, the paddocks on the north end of their property did not conform with the twenty-five foot setback requirement and, second, the plaintiffs had failed to submit a management plan to the zoning commission.

The plaintiffs on February 25, 1999, filed an appeal with the zoning board from the cease and desist order. On March 16, 1999, the zoning board denied their appeal, and upheld the cease and desist order. The plaintiffs then appealed to the trial court from that decision. On July 23, 1999, the court issued a permanent injunction against the plaintiffs, enjoining them from permitting any of the following conditions to exist on their property: (1) "the simultaneous maintenance of more than nine horses on the premises, unless the [plaintiffs] shall apply for and receive approval for a land management plan pursuant to the zoning regulations of the town of Redding permitting more than such number of horses; for the purposes of this injunction only, the [plaintiffs] shall be considered to have maintained a particular horse on the premises if such horse remains on the premises overnight," and (2) "the existence of any signs on the premises except as expressly permitted by the zoning regulations of the town of Redding."

On January 7, 2000, the court upheld the decision of the zoning board, ordering the plaintiffs to submit a land management plan within forty-five days of the date of that judgment, and to cease and desist from the violation of the twenty-five foot setback regulation. On January 31, 2000, the plaintiffs filed a petition for certification to this court, which was granted. The plaintiffs subsequently filed this appeal.

In reviewing the actions of a zoning board, we note that local zoning boards are vested with a liberal discretion. Wnuk v. Zoning Board of Appeals, 225 Conn. 691, 695, 626 A.2d 698 (1993). "The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision." (Internal quotation marks omitted.) Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269-70, 588 A.2d 1372 (1991). "A trial court must ... review the decision of a zoning board of appeals to determine if the board acted arbitrarily, illegally or unreasonably." Wnuk v. Zoning Board of Appeals, supra, 695-96. "It is well settled that courts are not to substitute their judgment for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing...." (Internal quotation marks omitted.) Conetta v. Zoning Board of Appeals, 42 Conn. App. 133, 137-38, 677 A.2d 987 (1996).

Because the trial court, in this case, has made conclusions of law, our review is plenary. Fleet National Bank v. Zoning Board of Appeals, 54 Conn. App. 135, 139, 734 A.2d 592, cert. denied, 250 Conn. 930, 738 A.2d 656 (1999); see also State v. Velasco, 248 Conn. 183, 189, 728 A.2d 493 (1999). "[W]e must decide whether the conclusions are legally and logically correct and supported by the facts in the record." Fleet National Bank v. Zoning Board of Appeals, supra, 139.

I

The plaintiffs first claim that the zoning commission is barred by the principles of res judicata and collateral estoppel from asserting zoning violations that it has litigated or had the opportunity to litigate in a prior zoning action against them. Specifically, the plaintiffs assert that the stipulated judgment in the prior zoning action requires them to submit a land management plan only if they maintain more than nine horses on their property. Additionally, they assert that the alleged setback violation should have been raised in the prior zoning action and, because it was not, the zoning commission is thereby precluded from raising that claim in the present action. We do not reach the merits of this claim due to an inadequate record.

The court's memorandum of decision is silent as to the arguments concerning res judicata and collateral estoppel,² and the plaintiffs did not seek an articulation from the court in that regard. It is the appellant's duty to furnish this court with a record that is adequate to afford review. See Practice Book § 60-5. Absent an articulation of the court's reasoning, we are unable to review the plaintiffs' claim.

II

The plaintiffs' second claim is that the zoning commission³ is prohibited from enforcing against them a 1975 setback regulation that is not part of the current regulations that were adopted in 1986. They further claim that the paddock located on the north side of their property predates the adoption of the 1975 regulation, constitutes a prior nonconforming use and is, therefore, not subject to the regulations. We disagree.

Section IV H (2) of the 1975 zoning regulations established a setback requirement of twenty-five feet for "corrals, runs or similar enclosures."⁴ On the other hand, § 5.14.6 of the 1986 zoning regulations provides that animal enclosures must be set back at least fifty feet from all watercourses, and side and rear lot lines.⁵ The court found that no direct evidence was presented to establish the existence of the plaintiffs' paddock prior to the adoption of the 1975 regulation. Rather, the record supported the zoning board's finding that the paddock was built after the 1975 regulation was adopted. As such, the plaintiffs do not have a nonconforming use that would exempt them from conforming to the 1975 regulation. They do not need to comply with the 1986 regulation requiring a fifty foot setback because the plaintiffs' use became nonconforming subsequent to the twenty-five foot regulation but prior to the fifty foot regulation. Accordingly, the plaintiffs must comply with the 1975 regulation requiring them to abide by a twenty-five foot setback of enclosures.

III

The plaintiffs' third claim is that the application of a zoning regulation requiring a land management plan for a prior nonconforming use violates General Statutes § 8-2 (a) and § 5.17 of the zoning regulations, which protect nonconforming uses. That claim is without merit.

We begin our analysis by reviewing the relevant parts of the statute and regulation cited by the plaintiffs. Section 8-2 prohibits a municipality from preventing the continuance of a nonconforming use.⁶ Section 5.17 of the zoning regulations provides in relevant part: "If a lot, building, structure, or use of a site was lawfully in existence on the effective date of these Regulations [February 1, 1986] (or on the date of an amendment thereto), to the extent that such lot, building, structure or use did not then conform to these Regulations the same is deemed legally nonconforming...." (Emphasis in original.)

Additional regulations that are instrumental in our resolution of this issue are zoning regulations §§ 5.14.2 and 5.14.3. The land management plan regulation, specifically § 5.14.2, requires that a management plan be approved by the zoning commission for animal raising operations where the number of horses, among other animals, exceeds the stated limit of two horses per lot and one horse per each 0.8 acre of site area. Section 5.14.3 permits the zoning commission to approve a management plan only when no adverse impact will result.⁷

Our case law makes clear that generally a municipality can regulate a nonconforming use.⁸ "Regulation of a nonconforming use does not, in itself,...