Laurel Beach Assoc. v. Zoning Bd. of Appeals of Milford, 20905

• Decision Date: 06 November 2001
• Docket Number: 20905
• Court: Connecticut Court of Appeals
• Parties: LAUREL BEACH ASSOCIATION v. ZONING BOARD OF APPEALS OF THE CITY OF MILFORD ET AL.20905 THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

LAUREL BEACH ASSOCIATION v ZONING BOARD OF APPEALS OF THE CITY OF MILFORD ET AL.

No. AC 20905

THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued June 5, 2001

November 6, 2001

Counsel George F. Martelon, Jr., for the appellant (plaintiff)

Brian A. Lema, for the appellee (defendant Elizabeth Stevens).

Lavery, C. J., and Landau and Peters, Js.

Opinion

Lavery, C. J.

The plaintiff, Laurel Beach Association, appeals from the judgment of the trial court dismissing its appeal from the decision of the defendant zoning board of appeals of the city of Milford (zoning board). The plaintiff claims that the zoning board acted improperly in upholding the decision of its zoning enforcement officer, who granted a permit to the defendant Elizabeth Stevens (Stevens) ¹ for one of her parcels to be considered a legally nonconforming lot. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiff's appeal. Stevens is the owner of adjacent lots, numbered twenty-six and twenty-seven, on Seaview Avenue in Milford. From 1968 until 1994, she and William Stevens, who was then her husband, held title to lot 27. William Stevens alone held title to lot 26. On September 13, 1994, as part of a dissolution settlement, he transferred the title to both lots to Stevens.

Lots 26 and 27 were created during the formation of a Laurel Beach subdivision in 1901. The first zoning regulations were adopted in Milford in 1928. Lot 26, as with the other twenty-two lots along Seaview Avenue from Third Avenue through Eighth Avenue, does not conform to the requirements of R-10, the zone in which those lots are located. ² Eight of the lots have the same fifty foot frontage as does lot 26. Of the twenty-three lots, only lot 26 does not have a house constructed on it.

In 1988, William Stevens applied to the zoning board for a zoning permit and special exception to build a house on lot 26. ³ The zoning board, by a four to one vote, denied his request. The decision was upheld in an appeal to the Superior Court in 1988.

Effective February 1, 1989, Milford enacted new regulations under § 6.4.2 ⁴ that removed the requirement of special exception approval. ⁵ In December, 1998, Stevens submitted an application under § 6.4.2 to build a house on lot 26. On December 16, 1998, the zoning enforcement officer determined that lot 26 was a legal nonconforming lot. The plaintiff appealed to the zoning board, which affirmed the decision, by a three to two vote, on January 12, 1999. The plaintiff next appealed to the court, which rendered a judgment of dismissal in a March 15, 2000 memorandum of decision. We granted certification to appeal, and this appeal followed. Additional facts will be provided as necessary.

The plaintiff claims that the court improperly (1) concluded that the plaintiff did not sustain its burden of proof that the zoning board acted illegally, arbitrarily and in abuse of its discretion in reversing the decision that it made in 1988, (2) concluded that collateral estoppel and res judicata were inapplicable to the 1999 approval, (3) refused to find that the recognition of lot 26 as legally nonconforming resulted in making lot 27 nonconforming and (4) failed to find that the lots had merged for zoning purposes in accordance with the city's ordinance.

I.

The plaintiff first asserts that the court improperly concluded that the plaintiff failed to carry its burden of proof that the zoning board in 1999 improperly reversed the decision that it made in 1988 without evidence of a material change between the time of the 1988 application and the time of Stevens' 1998 application. We disagree.

Trial courts defer to zoning boards and should not disturb their decisions so long as ''honest judgment has been reasonably and fairly exercised after a full hearing.'' Molic v. Zoning Board of Appeals, 18 Conn. App. 159, 164, 556 A.2d 1049 (1989). The trial court should reverse the zoning board's actions only if they are unreasonable, arbitrary or illegal. Irwin v. Planning & Zoning Commission, 244 Conn. 619, 628, 711 A.2d 675 (1998). If the zoning board has not given the reasons for its decision, the trial court must search the entire record to find a basis for its decision. Paige v. Town Plan & Zoning Commission, 235 Conn. 448, 464, 668 A.2d 340 (1995). ''Where it appears from the record that the action of a zoning authority rested on more than one ground, the authority's action must be sustained so long as the record supports at least one of the grounds.'' Hoagland v. Zoning Board of Appeals, 1 Conn. App. 285, 290, 471 A.2d 655 (1984). The burden of proof is on the plaintiffs to demonstrate that the zoning board acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988).

When a party files successive applications for the same property, a court makes up to two inquiries. The first is to determine whether the two applications seek the same relief. The zoning board determines that question in the first instance, and its decision may be overturned only if it has abused its discretion. Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 279, 129 A.2d 619 (1957). If the applications are essentially the same, the second inquiry is whether ''there has been a change of conditions or other considerations have intervened which materially affect the merits of the matter decided.'' Malmstrom v. Zoning Board of Appeals, 152 Conn. 385, 390-91, 207 A.2d 375 (1965); Bradley v. Inland Wetlands Agency, 28 Conn. App. 48, 50-51, 609 A.2d 1043 (1992). For an appellate court, the only question is whether the trial court's finding as to the zoning board's decision is clearly erroneous. See Fernandes v. Zoning Board of Appeals, 24 Conn. App. 49, 53-54, 585 A.2d 703, rev'd on other grounds, 218 Conn. 909, 591 A.2d 811 (1991).

The plaintiff first alleges that the Stevens' applications sought the same relief: To build a house on lot 26. Assuming that the applications were essentially the same, the plaintiff next alleges that the 1989 zoning regulation changes were ''ministerial,'' not material. Noting that neither the zoning board nor the court discussed specifically whether the amendment of § 6.4.2 of the zoning regulations was a material change, the plaintiff argues that the court abdicated its responsibility to expressly search the record for substantial evidence that the zoning board correctly interpreted and applied its regulations.

Stevens responds that the 1988 application is not substantially the same as the approved 1998 application because of the ''substantive'' changes in § 6.4.2 of the zoning regulations, which the court expressly recognized in its March 15, 2000 memorandum of decision. Relying on Baron v. Planning & Zoning Commission, 22 Conn. App. 255, 257, 576 A.2d 589 (1990), she argues that the zoning board is entrusted with the function of applying its regulations, and that zoning boards of appeal generally hear and decide appeals de novo. Conetta v. Zoning Board of Appeals, 42 Conn. App. 133, 137, 677 A.2d 987 (1996).

The court's conclusion, based on Bradley v. Inland Wetlands Agency, supra, 28 Conn. App. 51, that it is solely for the board and not the court to determine whether the co-defendant's petition was a new application or substantially the same as the earlier application; see Hotchkiss Grove Assn., Inc. v. Water Resources Commission, 161 Conn. 50, 58, 282 A.2d 890 (1971); seems to give a zoning board absolute discretion. Such a statement glosses over the court's inquiry as to whether the agency abused its discretion. See Fiorilla v. Zoning Board of Appeals, supra, 144 Conn. 279. That realization, however, does not change the outcome.

It is indeed unclear whether the zoning board considered Stevens' proposal to be substantially the same as the 1988 application. There is some language in the court's decision to support the proposition that the zoning board considered Stevens' application to be different. For instance, the court properly found that the revised § 6.4.2 of the zoning regulations no longer required an owner to get a special exception and shifted the approval responsibility from the zoning board to a zoning enforcement officer. The court also noted the public hearing testimony of the zoning enforcement officer, who gave his opinion that § 6.4.2 was changed because the old regulation created inconsistent results and that the changes ''liberalized'' the former version of § 6.4.2.

Even if the zoning board concluded that those applications were essentially the same, it does not necessarily follow that it abused its discretion in granting the permit. See Malmstrom v. Zoning Board of Appeals, supra, 152 Conn. 390-91. The court found that the record before the zoning board that was submitted by Stevens included several photographs of the lots, copies of checks and tax bills showing that both lots are taxed separately by the city and by the plaintiff, subdivision maps and a certificate of title with related documentation showing the property's chain of title. As stated more fully in our discussion of the plaintiff's collateral estoppel claim in part II, that information was not presented to the zoning board when William Stevens applied for a permit in 1988. As a result, the zoning board could have properly granted the permit in 1998 even if it did view the relief requested as substantially similar.

II.

The plaintiff next contends that the court improperly concluded that the theories of issue preclusion (collateral estoppel) and claim preclusion (res judicata) were inapplicable to this case. We disagree.

''Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum. [C]laim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits. . . . [I]ssue preclusion, prevents a party from relitigating an issue that has been determined in a prior...