Crisman v. Zoning Bd. of Appeals of Town of Morris

Decision Date24 July 2012
Docket Number33394.,Nos. 33393,s. 33393
Citation46 A.3d 1005,137 Conn.App. 61
CourtConnecticut Court of Appeals


Franklin G. Pilicy, Watertown, for the appellant in AC 33393 (intervening defendant).

Peter C. Herbst, Torrington, with whom was James P. Steck, for the appellee/cross appellant in AC 33393 and the appellee in AC 33394 (plaintiff).

Steven E. Byrne, for the appellant in AC 33394 (named defendant).



The defendant zoning board of appeals of the town of Morris (board) and the intervening defendant, David M. Geremia, filed separate appeals from the judgment of the trial court sustaining the administrative appeal of the plaintiff, Forrest E. Crisman, Jr., from the board's decision upholding a cease and desist order issued by the town's zoning enforcement officer. On appeal, Geremia claims that the court improperly concluded that the plaintiff proved his municipal estoppel claim. Similarly, the board claims that the court improperly determined that the doctrine of municipal estoppel was applicable under the circumstances of this case and additionally claims that the court improperly concluded that the plaintiff could complete construction of the structure that was the subject of the cease and desist order.1 We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The plaintiff owns property on the east shore of Bantam Lake in Morris located in the lake residential district. The primary dwelling on the property is less than 800 square feet in size. Prior to December, 2007, a one car garage erected circa 1900 also was located on the plaintiff's property. The garage was partially situated within an area that became the right-of-way for a town road. At that point in time, the garage became a preexisting, legal nonconforming structure. In December, 2007, a tree fell on the garage and caused substantial damage.

Later in December, 2007, shortly after the tree damaged the garage, the plaintiff met with the town's zoning enforcement officer, Leon Bouteiller. The plaintiff wanted to obtain the requisite permits and approvals for the replacement and enlargement of the garage. The plaintiff met with Bouteiller repeatedly to discuss the project. Bouteiller, after eliciting informationfrom the plaintiff, filled out the application for the zoning permit to allow construction of the new structure. The plaintiff and Bouteiller signed the application. Bouteiller issued the zoning permit on April 23, 2008, which approved the construction requested by the plaintiff. 2 The plaintiff provided the town's building inspector with architectural plans of the proposed structure in May, 2008, and began construction.

On July 15, 2008, Bouteiller, at the direction of the town's planning and zoning commission (commission), issued a cease and desist order to the plaintiff advising him that a two foot kneewall was being built that had not been shown on the approved site plan. On July 24, 2008, Bouteiller released the first cease and desist order and replaced it, again at the direction of the commission, with a second cease and desist order dated July 24, 2008. The second cease and desist order, which is the operative order for purposes of this appeal, ordered the plaintiff to stop construction for the following reason: “The April 23, 2008 Zoning Permit authorizes a 1450 square foot ground level single story garage addition. No Zoning Permit has been issued for any construction beyond 1450 square feet. All construction beyond the 1450 square feet and any other use other than a garage is in violation of the April 23, 2008 Zoning Permit.” The plaintiff already had expended approximately $100,000 on the project by the time the cease and desist orders were issued.

On August 22, 2008, the plaintiff appealed to the board from the July 24, 2008 cease and desist order. See General Statutes § 8–7. The plaintiff and Bouteiller addressed the board at its hearing held on the plaintiff's appeal. On November 25, 2008, the board voted to uphold the cease and desist order. The deliberation portion of that meeting was not recorded, however, and the minutes gave a cursory summary of the reasons for the board's decision. Notice of that decision was published on November 27, 2008, and the plaintiff filed a timely appeal with the Superior Court. See General Statutes § 8–8(b). At the board's January 6, 2009 meeting, which was held after the filing of the plaintiff's appeal to the Superior Court, the board “corrected” the minutes of the November 25, 2008 meeting and identified the bases for the members' votes. From the members' comments in the “corrected” minutes, the consensus was that the cease and desist order had been properly issued because the plaintiff's proposed structure was not subordinate to the primary dwelling on the property and, therefore, was not a permissible accessory building.

This administrative appeal had been pending before the Superior Court for more than six months when Geremia, an abutting landowner, filed a motion to intervene as a party defendant. The court granted his motion, and the parties filed prehearing briefs setting forth their respective positions. On August 24, 2010, the court held a hearing. The plaintiff presented evidence as to his aggrievement, and, in furtherance of his equitable municipal estoppel claim, he presented evidence as to the expenses he had incurred in connection with the construction of his unfinished structure.3 During the course of the hearing, the parties agreed that it would be appropriate for the court to conduct a site visit. The court granted their request, stating that it would notify the parties after the visit was completed and that it would permit the filing of supplemental briefs. The court further indicated that it would schedule a second hearing date if it had questions or if it required additional oral argument.4

On January 11, 2011, the court issued its memorandum of decision. After finding that the plaintiff was statutorily aggrieved by the board's decision, the court summarized the parties' positions and addressed each claim. The court first determined that the board's decision to uphold the cease and desist order was based on grounds other than those specified in that order. Although the issue of whether the proposed structure should be characterized as an accessory building or the primary building was not raised in the cease and desist order, the matter had been discussed at the hearing before the board. The court noted that the plaintiff had not claimed unfair surprise or inadequate opportunity to respond to that issue when he appeared before the board. Accordingly, the court concluded that “the plaintiff was not prejudiced by the fact that the board's decision to uphold the cease and desist order was not strictly based on the points set forth in the [cease and desist] order.” The court further found that there was sufficient evidence in the record to support the board's conclusion that the proposed building was not a permissible accessory building.

The court then addressed the plaintiff's municipal estoppel claim. After citing relevant case law, the court found that the plaintiff had satisfied all of the requirements necessary to invoke that doctrine. The court began its analysis by stating that the parties agreed that Bouteiller was the authorized agent of the municipality. The court then made the following factual findings. Bouteiller met with the plaintiff several times and was made aware of the projected size and uses to be made of the building, even though he did not see the architectural plans at the time he issued the zoning permit. Bouteiller did not see the architectural plans before issuing the zoning permit because they were prepared later for purposes of obtaining the building permit. Moreover, as explained by Bouteiller, the zoning regulations did not require that architectural plans be submitted for the issuance of a zoning permit for an accessory building. Furthermore, Bouteiller stated that even if the architectural plans had been made available to him, he would have concluded that the project was in full compliance with the zoning permit.

The court then made the following determinations: “Based on his many discussions with [Bouteiller], and after the zoning permit was issued, the plaintiff began construction on his proposed building. He obtained architectural drawings, incurred engineering expenses, took the steps necessary to install a new septic system, ordered building materials, and in summary expended more than $100,000 on the project prior to the issuance of the cease and desist orders.... For all of the foregoing reasons, the court finds that the board should be and is estopped from enforcing the cease and desist order.” The defendantsand the plaintiff filed the present appeals after this court granted their petitions for certification.

The dispositive issue in these appeals is whether the trial court correctly determined that the plaintiff proved his municipal estoppel claim, thereby precluding the enforcement of the cease and desist order that prohibited the construction of the plaintiff's proposed structure. The board argues that the court's factual findings were clearly erroneous because the plaintiff induced Bouteiller to act on a misleading and incomplete application, and he failed to prove that he would suffer substantial harm if the cease and desist order was enforced. The board further claims that the court applied an inappropriate remedy and should have remanded the matter back to the board “for a more definitive statement ... as to how much of the presently constructed garage addition could remain.” Geremia, the abutting landowner, argues that the court's findings are clearly erroneous because there is compelling evidence in the record disputing what...

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2 cases
  • Crisman v. Zoning Bd. of Appeals of Morris
    • United States
    • Connecticut Supreme Court
    • September 27, 2012 opposition. The intervening defendant David M. Geremia's petition for certification for appeal from the Appellate Court, 137 Conn.App. 61, 46 A.3d 1005, is ...
  • Crisman v. Zoning Bd. of Appeals of Morris
    • United States
    • Connecticut Supreme Court
    • September 27, 2012 support of the cross petition. The plaintiff's cross petition for certification for appeal from the Appellate Court, 137 Conn.App. 61, 46 A.3d 1005, is ...

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