Holt v. Zoning Bd. of Appeals

• Decision Date: 28 April 2009
• Docket Number: No. 29089.,29089.
• Court: Connecticut Court of Appeals
• Parties: Carol F. HOLT v. ZONING BOARD OF APPEALS OF the TOWN OF STONINGTON et al.

968 A.2d 946

114 Conn.App. 13

Carol F. HOLT v. ZONING BOARD OF APPEALS OF the TOWN OF STONINGTON et al.

No. 29089.

Appellate Court of Connecticut.

Argued October 16, 2008.

Decided April 28, 2009.

Eric Knapp, for the appellant (plaintiff).

Jeffrey T. Londregan, New London, for the appellee (named defendant).

William H. Hescock, pro se, the appellee (defendant).

LAVINE, BEACH and MIHALAKOS, Js.

LAVINE, J.

This is an appeal by the plaintiff, Carol F. Holt, from the judgment of the trial court dismissing her appeal from the decision of the defendant zoning board of appeals of the town of Stonington (board) that reversed a conclusion by the zoning enforcement officer. The court dismissed the appeal on the grounds that the board lacked subject matter jurisdiction because (1) the appeal to the board from the zoning enforcement officer's letter was not timely filed and (2) the letter did not constitute an appealable decision. The plaintiff claims that the court improperly concluded that the letter did not constitute a decision for the purposes of General Statutes § 8-7 and article VIII, § 8.10.2 of Stonington zoning regulations (regulations). The defendant William H. Hescock¹ claims that the court improperly concluded that his appeal from the letter was not filed timely. We conclude that under the specific circumstances of the present case, the letter did not in fact constitute an appealable decision.² We also conclude, however, that having determined that the letter was not a decision appealable to the board, the trial court should have reversed the board's decision and ordered a dismissal of the defendant's appeal, rather than dismissing the plaintiff's appeal to the court.

The following factual findings by the court are relevant to our consideration of the plaintiff's appeal. On May 12, 2005, the plaintiff purchased from Carol Rooney a lot at the intersection of Boulder Avenue and Hampton Street in Stonington. The size of the lot was approximately 7000 square feet. At the time of the purchase, the plaintiff was aware of a February 4, 2005 letter to Rooney from Joseph M Larkin, Stonington's zoning enforcement officer. The relevant portions of the letter stated:

"Dear Mrs. Rooney,

On April 28, 2003 I sent you [a] letter regarding the zoning status of the above-mentioned undersized lot. In June 2004 the Planning & Zoning Commission amended its [z]oning [r]egulations ... regarding undersized lots ([article II, § 2.9 of the Stonington zoning regulations]) and you have requested that I review this lot to see how the regulation amendment impacts it. Towards that end I offer the following:

"1. The lot is located in a RM-20 (residential) [z]one that requires conforming lots to have a minimum of 20,000 square feet of area with 100 feet of frontage.

"2. The subject lot's area is approximately 7000 square feet....

"3. The newly adopted [§ 2.9 of the regulations]³ allows undersized lots to comply ... with the bulk requirements of the RH-10 zone rather than the RM-20 [z]one.

"4. Based on the RH-10 [z]one [b]ulk [r]equirements, a single-family residence could be built on this lot if it does not exceed a total floor area of approximately 1750 [square feet]."

In paragraphs six and seven, Larkin explained that the house built on the lot would have to comply with the flood hazard zone and possibly with the coastal area management sections of the regulations. On November 9, 2005, the plaintiff submitted to Larkin building plans for the lot. At or about the same time, she submitted to him requests for a building permit and a certificate of zoning compliance.

The defendant, whose property abuts the lot, learned of Larkin's letter to Rooney on or before November 15, 2005, and, on November 28, 2005, submitted a letter to Larkin through an attorney. In his letter, the defendant informed Larkin of a conveyance from 1981 that, in the defendant's opinion, resulted in the lot's not qualifying for development as an undersized lot under § 2.9 of the regulations. The defendant asked Larkin to reconsider his February 4, 2005 letter before issuing a zoning compliance letter. In response, Larkin sought advice on this issue from a municipal attorney.

On December 15, 2005, the plaintiff's attorney asked Larkin not to take action on the plaintiff's requests for a building permit and a certificate of zoning compliance so that the plaintiff could respond to the defendant's November 28, 2005 letter. On December 29, 2005, the municipal attorney sent a letter to Larkin, supporting the defendant's position that the lot did not qualify for construction under § 2.9. In late January or early February 2006, the plaintiff withdrew her requests for a building permit and a certificate of zoning compliance. On February 15, 2006, she published a copy of Larkin's February 4, 2005 letter in a local newspaper.

On March 1, 2006, the defendant appealed from Larkin's February 4, 2005 letter to the board. The board sustained the defendant's appeal, deciding that Larkin's conclusion in the letter that the lot qualified as an undersized lot under § 2.9 was incorrect. The plaintiff appealed from the board's decision to the trial court, and, on May 15, 2007, the court dismissed her appeal, concluding that (1) the board lacked subject matter jurisdiction to consider the defendant's appeal because he did not file it in a timely manner and (2) the board lacked subject matter jurisdiction to hear the appeal because the February 4, 2005 letter was not a decision pursuant to General Statutes § 8-7 and § 8.10.2 of the regulations.

The crux of the plaintiff's argument on appeal is that Larkin's letter was an appealable decision⁴ because our courts have in the past reviewed decisions of zoning boards reversing or upholding letters issued by zoning enforcement officers. Although, in some instances, conclusions or opinions expressed in letters issued by zoning enforcement officers may be appealable decisions pursuant to General Statutes §§ 8-6 and 8-7 and have been treated as appealable decisions by our courts, we do not agree with the plaintiff that this case presents such an instance.

We first set forth our standard of review. The question of whether a letter written by a zoning enforcement officer is a decision under General Statutes § 8-7 and § 8.10.2 of the regulations is an issue of law, and our review is therefore plenary. See Wiltzius v. Zoning Board of Appeals, 106 Conn.App. 1, 23, 940 A.2d 892 (review of court's application of § 8-7 is plenary), cert. denied, 287 Conn. 906, 907, 950 A.2d 1283, 1284 (2008); see also Munroe v. Zoning Board of Appeals, 261 Conn. 263, 269, 802 A.2d 55 (review of issue concerning statutory interpretation of § 8-7 is plenary).

Section 8-7 governs appeals to zoning boards and provides that "[t]he concurring vote of four members of the zoning board of appeals shall be necessary to reverse any order, requirement or decision of the official charged with the enforcement of the zoning regulations...." (Emphasis added.)⁵ Section 8.10.2 of the regulations also provides that "[a]ny person claiming to be aggrieved by any order, requirement, or decision made by the [z]oning [e]nforcement [o]fficer may appeal to the [z]oning [b]oard of [a]ppeals." The issue before us is, therefore, whether Larkin's February 4, 2005 letter was a "decision" under General Statutes § 8-7 and § 8.10.2 of the regulations.

We begin our analysis by noting that although our courts have treated actions of zoning enforcement officers as appealable decisions; see, e.g., Munroe v. Zoning Board of Appeals, supra, 261 Conn. at 263, 802 A.2d 55; Bishop v. Zoning Board of Appeals, 92 Conn.App. 600, 886 A.2d 470 (2005), cert. denied, 277 Conn. 906, 894 A.2d 986 (2006); no Connecticut court, to our knowledge, has addressed the issue of whether all letters issued by zoning enforcement officers automatically are appealable to zoning boards of appeals. For example, this court recently concluded in Wiltzius v. Zoning Board of Appeals, supra, 106 Conn.App. at 19, 940 A.2d 892, that the issuance of the certificate of zoning compliance by the zoning enforcement officer constituted an appealable decision pursuant to General Statutes § 8-6. In reaching this decision, this court relied in part on the fact that the certificate itself contained language stating that it was appealable pursuant to § 8-7. Wiltzius v. Zoning Board of Appeals, supra, at 21, 940 A.2d 892.

Conversely, in Pinchbeck v. Zoning Board of Appeals, 58 Conn.App. 74, 76-79, 751 A.2d 849 (2000), this court held that no order, requirement or decision was made before the defendant zoning board's July 23, 1997 hearing on an application for a variance and therefore that a handwritten statement on a variance application dated approximately July 1, 1997, stating that the "[e]nforcement officer indicated that side yard [variance] for height increase [was] not required" was not an order, requirement or decision under §§ 8-6 and 8-7.⁶

We do not think that a bright line rule has been so far established in evaluating this category of cases. We conclude, therefore, that the determination of whether the action of a zoning enforcement officer amounts to a decision appealable under § 8-7 depends on the particular facts and circumstances of each case.

We next turn to article VIII of the regulations, which governs administration and enforcement of the Stonington zoning regulations. Our Supreme Court has stated that "[b]ecause the interpretation of [zoning] regulations presents a question of law, our review is plenary.... Additionally, zoning regulations are local legislative enactments ... and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes." (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 416, 920 A.2d 1000 (2007).

Article VIII, §§ 8.2, 8.3 and 8.4 of the Stonington zoning regulations address zoning permits,...