Benson v. ZONING BD. OF APPEALS OF WESTPORT

• Decision Date: 31 May 2005
• Docket Number: No. 25148.,25148.
• Citation: Benson v. ZONING BD. OF APPEALS OF WESTPORT, 873 A.2d 1017, 89 Conn.App. 324 (Conn. App. 2005)
• Court: Connecticut Court of Appeals
• Parties: Totney BENSON v. ZONING BOARD OF APPEALS OF THE TOWN OF WESTPORT.

873 A.2d 1017

89 Conn.App. 324

Totney BENSON v.ZONING BOARD OF APPEALS OF THE TOWN OF WESTPORT.

No. 25148.

Appellate Court of Connecticut.

Argued February 18, 2005.

Decided May 31, 2005.

Robert A. Fuller, Wilton, for the appellant(plaintiff).

Ira W. Bloom, Westport, for the appellee(defendant).

Thomas M. Geisler, Jr., New Haven, for the appellees(intervening defendants).

McLACHLAN, HARPER and PETERS, Js.

McLACHLAN, J.

This certified zoning appeal concerns whether the plaintiff landowner, Totney Benson, must remove the addition to her home built in 1997 because it sits 3.7 feet over the side setback line.The dispositive issue in this case is what is meant by "the institution of an action to enforce" zoning regulations in General Statutes § 8-13a(a).We conclude that § 8-13a(a) requires the institution of a civil action for an injunction within a three year limitations period and that neither a variance appeal by an abutting landowner nor the issuance of a cease and desist order by a town zoning enforcement officer will suffice.We reverse the judgments of the trial court.

The plaintiff appeals from the judgments of the trial court rejecting her appeals from the cease and desist orders issued by the zoning enforcement officer of the town of Westport requiring that she remove the addition.The plaintiff claims that the defendant, the zoning board of appeals of the town of Westport(board), and the trial court on appeal improperly concluded that the zoning enforcement officer's June, 2001 order was timely.Section 8-13a(a) requires "the institution of an action to enforce" certain zoning regulations within three years "[w]hen a building is so situated on a lot that it violates" those regulations.

This is the third appeal in this matter and the second to reach this court.SeeDaw v. Zoning Board of Appeals,63 Conn. App. 176, 772 A.2d 755, cert. denied, 256 Conn. 931, 776 A.2d 1145(2001).In 1995, the plaintiff applied for and was granted a variance to build a three story addition to the house on the subject property.The variance was necessary because the proposed addition did not comply with the town's side setback and height¹ regulations.Abutting landowners Harold J. Daw and Meryl K. Daw, intervening defendants in the present appeals, appealed to the Superior Court when the board granted the variance without stating its reasons.The plaintiff began construction of the addition despite her knowledge that that appeal was pending.²Finding no undue hardship to support the granting of the variance, the trial court, in a decision dated August 26, 1997, reversed the decision of the board.The plaintiff ceased construction when the zoning enforcement officer then revoked her zoning permit.

Rather than seek from this court certification to appeal, however, the plaintiff in September, 1997, filed with the board a second application for variances to build the same proposed addition and, furthermore, to complete repairs of previously undiscovered structural damage and the construction of two decks.The board again granted the application and that time gave several reasons for its determination of undue hardship.The Daws appealed once again to the Superior Court.Despite her knowledge that another appeal was pending, the plaintiff resumed construction, and the addition was completed in December, 1997.Certificates of zoning compliance and of occupancy were issued.On September 30, 1999, however, the trial court again sustained the Daws' appeal from the variance to construct the addition.We affirmed the judgment of the trial court in a May 1, 2001 opinion on the grounds of res judicata and collateral estoppel.Daw v. Zoning Board of Appeals,supra, 63 Conn.App. 176, 772 A.2d 755.³

The board maintained the position throughout the appeals challenging the variances that they had been properly granted.Following the Supreme Court's order denying certification to appeal from our 2001 decision, however;Daw v. Zoning Board of Appeals,256 Conn. 931, 776 A.2d 1145(2001); the board could no longer maintain that position.The variance to build the addition having been denied finally, the town of Westport sought to enforce its regulations.On June 21, 2001, the zoning enforcement officer voided the previously issued permits and ordered the plaintiff to remove the addition.The plaintiff appealed to the board from that order, and the board, on December 13, 2001, upheld the order with modifications reflecting our opinion allowing repairs and deck construction.SeeDaw v. Zoning Board of Appeals,supra, 63 Conn.App. at 187, 772 A.2d 755.The plaintiff appealed to the Superior Court, and the Daws were allowed to intervene as defendants.Following trial, the court affirmed the order that the addition be removed in a December 8, 2003 memorandum of decision.We granted certification to appeal, and this appeal followed.The zoning enforcement officer ultimately initiated a civil action to enforce the regulations pursuant to General Statutes § 8-12 in April, 2004.In that action, the zoning enforcement officer sought an injunction ordering the plaintiff to remove the addition, and it apparently is still pending.The plaintiff appeals from the decision of the trial court rejecting her appeals from the board's decision upholding the zoning enforcement officer's cease and desist orders that she remove the addition.

The plaintiff's only claim on appeal is that the court improperly rejected her timeliness defense to the zoning enforcement officer's orders.She argues that under § 8-13a(a), the failure of the board or the Daws to file an action for an injunction to enforce the zoning regulations within three years after completion of construction in December, 1997, rendered the addition a valid, nonconforming structure.As such, she argues that the addition cannot now be ordered removed and is not subject to further enforcement action.

Although we employ a deferential standard of review to the actions of zoning boards of appeals;see, e.g., Horace v. Zoning Board of Appeals,85 Conn.App. 162, 165, 855 A.2d 1044(2004); the issue raised here is one of statutory construction."Issues of statutory construction present questions of law, over which we exercise plenary review....When construing a statute, we first look to its text, as directed by [General Statutes § 1-2z], which provides: `The meaning of a statute shall, in the first instance, be ascertained from 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.'When a statute is not plain and unambiguous, we also seek interpretive guidance from the legislative history of the statute and the circumstances surrounding its enactment, the legislative policy it was designed to implement, the statute's relationship to existing legislation and common-law principles governing the same general subject matter."(Citation omitted.)Teresa T. v. Ragaglia,272 Conn. 734, 742, 865 A.2d 428(2005).

We begin by quoting the relevant statutory text."When a building is so situated on a lot that it violates a zoning regulation of a municipality which prescribes the location of such a building in relation to the boundaries of the lot ... and when such building has been so situated for three years without the institution of an action to enforce such regulation, such building shall be deemed a nonconforming building in relation to such boundaries . . . ."General Statutes § 8-13a(a).Section 8-13a(a)"amounts to a statute of limitations for [certain] non-conforming buildings."R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice(2d Ed.1999) § 4.35, p. 110.The only issue we must decide⁴ is whether the Daws or the zoning enforcement officer tolled the statutory period by instituting an action to enforce.We conclude that they did not.

The three sides in this litigation each offer a different interpretation of what constitutes "the institution of an action to enforce" under § 8-13a(a).The plaintiff argues that a civil action for an injunction was required, either by the zoning enforcement officer under § 8-12 or by the Daws.SeeMiskimen v. Biber,85 Conn.App. 615, 617 n. 3, 858 A.2d 806(2004)(private action to enforce zoning regulations), cert. denied, 272 Conn. 916, 866 A.2d 1287(2005).The board argues that the issuance of a cease and desist order is the institution of an action to enforce the regulations.⁵The Daws argue that their two variance appeals were actions to enforce the zoning regulations.We agree with the plaintiff.

As the first step in statutory analysis, we examine the relevant language of § 8-13a(a) to determine whether it is, as the plaintiff claims, plain and unambiguous.To determine whether statutory language is plain and unambiguous, we examine the text itself and its relationship to other statutes."The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation."Carmel Hollow Associates Ltd. Partnership v. Bethlehem,269 Conn. 120, 134 n. 19, 848 A.2d 451(2004).We conclude that, given a construction of generous breadth, the phrase "institution of an action to enforce" is ambiguous, as an action to enforce may be either a civil action in court or any formal enforcement action, including a cease and desist order.SeeArute Bros., Inc. v. Dept. of Transportation,87 Conn. App. 367, 372, 865 A.2d 464(2005)(concluding that word action is ambiguous in accidental failure of suit statute, General Statutes § 52-592).

Because we conclude that there is ambiguity, we must consider "the legislative history of the statute and the circumstances surrounding its enactment, the legislative policy it was designed to implement, the...