Komondy v. Zoning Bd. of Appeals of The Town of Chester.

Decision Date05 April 2011
Docket NumberNo. 31944.,31944.
CourtConnecticut Court of Appeals
PartiesMarguerite A. KOMONDYv.ZONING BOARD OF APPEALS OF the TOWN OF CHESTER.

OPINION TEXT STARTS HERE

Christina P. Burnham, Old Saybrook, for the appellant (plaintiff).John S. Bennet, Essex, for the appellee (defendant).GRUENDEL, ALVORD and DUPONT, Js.GRUENDEL, J.

In this certified zoning appeal, the plaintiff, Marguerite Komondy, appeals from the judgment of the Superior Court dismissing her appeal from the decision of the defendant, the zoning board of appeals (board) of the town of Chester (town), which denied her appeal from two decisions of the zoning enforcement officer and her application for a variance from § 113B.5 of the town zoning regulations (regulations). She contends that the board acted illegally in permitting an unseated alternate member to participate in both the public hearing and the board's deliberations thereon. We affirm the judgment of the Superior Court.

This appeal concerns the use of a mobile home on 29 Liberty Street in Chester (property), which is located in an R–1 residential district of the town and at all relevant times was owned by the plaintiff. Section 113B.5 of the regulations permits the temporary use of a mobile home on a property during the construction of a permanent dwelling. That regulation requires notification of such use to the zoning enforcement officer and expressly limits the use to a period of six months.1

The property contained a 6531 square foot historic single-family residence, which a fire destroyed in March of 2005. Days later, the plaintiff, pursuant to § 113B.5, applied for a six month use permit to install a temporary mobile home on the property during the reconstruction of her home, which was granted on March 14, 2005. Approximately one year and four months later, Zoning Enforcement Officer Judith R. Brown issued a cease and desist order regarding the use of the mobile home on the property. In response, the plaintiff requested an extension of the permit originally issued in March, 2005, which Brown denied on August 25, 2006.

On August 28, 2006, the plaintiff filed an appeal with the board from both the cease and desist order and the denial of her request for an extension. In addition, the plaintiff applied for a variance from the [six] months time limit” contained in § 113B.5.2 The board held a public hearing on the plaintiff's applications on December 18, 2006. In attendance at that hearing were regular board members Mario Gioco, Jim Miller, Tom Englert and Mark Borton, and three alternate board members, Dan Bednarz, Theresa Myers and Andy Vomastek. Because only four regular members were present, Bednarz was seated pursuant to General Statutes § 8–5a.3

[16 A.3d 744 , 127 Conn.App. 673]

After the public hearing concluded, the board deliberated the merits of the plaintiff's applications. The board then voted to deny both the appeal from the decisions of the zoning enforcement officer and the application for a variance from § 113B.5. From that decision, the plaintiff appealed to the Superior Court, which rendered judgment dismissing her appeal. In so doing, the court rejected the plaintiff's claim that the board acted illegally in allowing Myers, an unseated alternate, to participate in the public hearing and the board's deliberations. In addition, the court concluded that the board properly denied the variance application because the requisite hardship was lacking.4

On appeal to this court, the plaintiff challenges only the court's determination regarding Myers' participation in the public hearing and the board's deliberations. She does not challenge its determination that no unusual hardship existed to warrant a variance of the zoning regulations. Accordingly, we focus our attention on the propriety of Myers' involvement in the December 18, 2006 proceedings.

The record before us contains a transcript of the December 18, 2006 proceedings on the plaintiff's applications. It substantiates the court's finding that Myers was an alternate who, despite not being seated to act on the plaintiff's applications pursuant to § 8–5a, participated in both the public hearing and the subsequent deliberations of the board. During the public hearing, Myers asked more than a dozen questions, the majority of which were directed at the plaintiff's husband, Christopher Komondy, who offered testimony in support of the plaintiff's applications. Her participation in the board's subsequent deliberations on the plaintiff's variance application was even more extensive.5 The transcript of the deliberations thereon contains more than twenty separate statements by Myers.6 Myers posed various questions to the town's attorney and articulated her opinion on various aspects of the variance at issue during those deliberations. For example, Myers expressed her view that we have a larger obligation to the greater good if you want to call it that. And if we decide to write and grant a variance where we put limitations in, first of all, without knowing what enforcement is, what is the good of having a limitation or making a law or saying this is what's going to happen if we don't know (a) if we can enforce it and (b) how we're going to enforce it. And who's going to be responsible for ... checking all this out and monitoring this, and, you know, we've already had months of delays and people in the town waiting on this decision as well as the applicant. You know, this could drag out to have a life of its own and by the time we're even getting to the point of figuring out how to handle it, the building could be gone or could be up, could be not, God knows what could happen in any part of this process in two to three years....”

On the issue of hardship, Myers questioned whether this is “a financial hardship or a hardship with [the] land.” When Gioco and Miller discussed potential conditions related to the timing of the reconstruction on the property, Myers opined that “it was a chronological argument, very well said, and, I mean, you could argue either way, but that is not necessarily a solid grounding for a hardship.” She concluded that statement by noting that [y]ou can't talk yourself into a hardship, either it is a hardship or it isn't.” Similarly, when another board member raised the possibility of attaching a condition to the variance that would limit the use of a mobile home on the property “by time,” Myers stated that “then it's two months back, three months later, where do you just cut it off and stop the bleeding, I mean, when are you, obviously, we are all sympathetic, but you know what I mean. You let them go for two years and then they guarantee that they got three more months and then you're going to say, well, sorry, and then in three more months it's like, you know, the world fell apart, and it's going to take three or four more months. That's the problem with this ... as much as we want to do this, that's the problem with this, how, where does it end; it ends when they're done, not when we decide to grant a variance.” Near the end of the board's deliberations, Gioco, the board's chairman, opined that “really this ... should have been handled by [the] planning and zoning [commission] because it is not clear.... Maybe we should give them the chance to fix it as opposed to us.” In response, Myers stated that “if we really have gone through this whole process and decided that we shouldn't be hearing this and then we shouldn't have accepted the application.... We have heard it, it is on the books ... I think we have to make a decision. I mean, if the applicants or if we want to talk to [the planning and zoning commission] about modifying [§ 113B.5] ... but I don't think we can postpone our decision based on that....” (Emphasis added.) Plainly, Myers was an active participant in the board's deliberations on the variance application.

I

The plaintiff claims that Myers' participation in the proceedings ran afoul of General Statutes § 8–5(a), rendering the board's action on her applications illegal. She argues that the plain language of that statute forbids an alternate member from participating in either the public hearing or board deliberations on an application unless that alternate has been seated pursuant to § 8–5a. Her claim presents a question of statutory construction, over which our review is plenary. See Buttermilk Farms, LLC v. Planning & Zoning Commission, 292 Conn. 317, 328, 973 A.2d 64 (2009).

“The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply.... When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider 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.... The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Id. In addition, “common sense must be used in statutory interpretation, and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) Cannata v. Dept. of Environmental Protection, 239 Conn. 124, 141, 680 A.2d 1329 (1996).

We thus begin with the language of the statute. Section 8–5(...

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