Megin v. Zoning Bd. of App. of New Milford

• Decision Date: 25 March 2008
• Docket Number: No. 27947.,27947.
• Citation: 942 A.2d 511,106 Conn.App. 602
• Court: Connecticut Court of Appeals
• Parties: Wilfred J. MEGIN v. ZONING BOARD OF APPEALS OF the TOWN OF NEW MILFORD.

942 A.2d 511

106 Conn.App. 602

Wilfred J. MEGIN v. ZONING BOARD OF APPEALS OF the TOWN OF NEW MILFORD.

No. 27947.

Appellate Court of Connecticut.

Argued January 16, 2008.

Decided March 25, 2008.

Max F. Brunswick, for the appellant (plaintiff).

Scott R. McCarthy, for the appellee (defendant).

McLACHLAN, GRUENDEL and PELLEGRINO, Js.

GRUENDEL, J.

In this certified zoning appeal, the plaintiff, Wilfred J. Megin, appeals from the judgment of the Superior Court affirming the decision of the defendant, the zoning board of appeals (board) of the town of New Milford (town), to uphold a cease and desist order.¹ The plaintiff's sole claim on appeal is that the board improperly permitted land use inspector Sarah Acheson to participate in its deliberations after the close of the public hearing, thereby violating his right to fundamental fairness. We affirm the judgment of the Superior Court.

At issue in this appeal is the storage of numerous motor vehicles and related debris on 64 Old Town Park Road, which is located in an R-40 residential zone of the town and at all relevant times was owned by the plaintiff. The town zoning regulations permit four uses in residential zones; use as a junkyard is forbidden.² The term "junkyard" is defined in part in the regulations as "any place of storage or deposit, whether in connection with a business or not, for two or more unregistered, used motor vehicles which are either no longer intended or in condition for legal use on the public highways and shall also include any place or storage or deposit for used parts of motor vehicles and old metals, iron, glass, paper, cordage and other waste materials which on any lot have an aggregate bulk equal to one automobile." New Milford Zoning Regs., § 15-010. Junkyards are permitted "as a special permit use" only in MV zones. New Milford Zoning Regs., § 70-010 et al.

By letter dated October 2, 2000, zoning enforcement officer Kathy Castagnetta informed the plaintiff that "[i]t has been brought to my attention that you are storing unregistered and/or unroadable motor vehicles including a trailer on your property in the residential zone.... Please be advised that ... these activities are not permitted in the residential zone in the [t]own.... You are hereby ordered to remove all unregistered and/or unroadable vehicles from the property within 15 days of receipt of this letter." When the plaintiff did not comply, a cease and desist order issued on December 7, 2004. That order stated in relevant part that "[a]s a result of a field inspection on December 3, 2004, I have determined that the following violation exists: (1) This property is being used as a junkyard. This condition violates chapter 25 of the [regulations], which does not permit a junkyard in a residential zone in the town. Junk vehicles, trailers and other debris must be removed from this property." Acheson signed the order.

In a written response, the plaintiff averred that "I am not running a junkyard, never have run a junkyard, have no intention of having a junkyard, have no certificate of business for a junkyard...." By letter dated December 16, 2004, Acheson responded as follows: "According to the [regulations], your property is most definitely a junkyard. If I am wrong and the dozens of vehicles and trailers on the premises are registered, then I will lift the cease and desist order. However, until you can provide proof of registration this order will remain in effect. You do have the right to appeal it to the [board] within thirty days of receipt." The plaintiff filed such an appeal.

More than one month prior to the hearing on the plaintiff's appeal, Acheson prepared a memorandum for the board. That February 7, 2005 memorandum stated in relevant part: "There are dozens of unregistered vehicles and trailers, as well as a variety of construction materials and debris, on this residential lot. This fact is evident in the photos I have taken on December 3, 2004, January 7, 2005 and January 25, 2005. This is the worst junkyard situation that I have seen in a residential area. It is clearly a violation and no valid reason for the presence of this junk has been offered to the zoning office.... The negative impact on the neighborhood can be felt from speaking with neighbors who have given up hope of ever seeing the vehicles removed. After years of living with these items within feet (in the worst case) of their backyards, they have resigned themselves to looking at the blight daily.... The amount of unregistered vehicles and other debris on site clearly classifies this site as a junkyard, which is not permitted in any zone other than MV motor vehicle district."³

The board held a hearing on the plaintiff's appeal on March 16, 2005. Both the plaintiff, who was represented by attorney Max F. Brunswick, and Acheson appeared. During the public hearing, the plaintiff claimed for the first time that he had a nonconforming use of the property.⁴ He did not deny that he had numerous motor vehicles and related debris stored on the property. In response to a question from a board member, Acheson stated that "[t]here's absolutely no record of this [preexisting] use. If it were a farm and they had equipment there, then that might be a use that went along with the farm, but as far as I know, this property is not being used as a farm." The transcript shows that at the conclusion of the public hearing, the board commenced its "business meeting."⁵ No explanation is provided for Acheson's presence at that meeting.

Acheson made a total of four remarks during that meeting. First, she stated that "I think [the plaintiff is] saying it is a junkyard but it's preexisting." Second, in response to a question about how many vehicles were on the property, Acheson replied, "dozens, dozens." Third, Acheson noted that the issue of preexisting use "came up tonight, by the way." Finally, Acheson stated that the plaintiff's property was "not even a farm." At the conclusion of the meeting, the board voted unanimously to uphold the cease and desist order. The plaintiff appealed from that decision to the Superior Court, which rendered judgment dismissing his appeal.

On appeal to this court, the plaintiff claims that Acheson's participation in the business meeting violated his right to fundamental fairness.⁶ We generally employ a deferential standard of review to the actions of a zoning board. See, e.g., Wing v. Zoning Board of Appeals, 61 Conn.App. 639, 643, 767 A.2d 131, cert. denied, 256 Conn. 908, 772 A.2d 602 (2001). "[C]ourts are not to substitute their judgment for that of the board, and ... the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing...." (Emphasis added; internal quotation marks omitted.) Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547, 684 A.2d 735 (1996). In the present case, the plaintiff challenges not the ultimate decision of the board but, rather, the fundamental fairness of the board's hearing. The question of whether the board violated the plaintiff's right to fundamental fairness in that administrative proceeding presents a question of law over which our review is plenary.⁷ Cf. GMAC Mortgage Corp. v. Glenn, 103 Conn.App. 264, 273, 931 A.2d 290 (2007) (issue of whether court violated procedural due process rights is question of law over which review is plenary).

"While proceedings before zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence ... they cannot be so conducted as to violate the fundamental rules of natural justice." (Citations omitted.) Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974). "Fundamentals of natural justice require that there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to crossexamine witnesses produced by his adversary. ... Put differently, [d]ue process of law requires that the parties involved have an opportunity to know the facts on which the commission is asked to act ... and to offer rebuttal evidence." (Citations omitted; internal quotation marks omitted.) Grimes v. Conservation Commission, 243 Conn. 266, 274, 703 A.2d 101 (1997). In short, "[t]he conduct of the hearing must be fundamentally fair." Bancroft v. Commissioner of Motor Vehicles, 48 Conn.App. 391, 408, 710 A.2d 807, cert. denied, 245 Conn. 917, 717 A.2d 234 (1998); see also R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 20:14, p. 587.

While "zoning boards and commissions are entitled to technical and professional assistance in matters which are beyond their expertise ... and that such assistance may be rendered in executive session," our Supreme Court has held that "[t]he use of such assistance ... cannot be extended to the receipt, ex parte, of information supplied by a party to the controversy without affording his opposition an opportunity to know of the information and to offer evidence in explanation or rebuttal." (Citation omitted.) Pizzola v. Planning & Zoning Commission, supra, 167 Conn. at 208, 355 A.2d 21. In Norooz v. Inland Wetlands Agency, 26 Conn.App. 564, 602 A.2d 613 (1992), this court discussed in detail that aspect of local administrative procedure. Echoing Pizzola, the court first noted that "[o]ur law clearly prohibits the use of information by a municipal agency that has been supplied to it by a party to a contested hearing on an ex parte basis." Id., at 569, 602 A.2d 613. It then discussed a number of cases from our Supreme Court that, in contrast to that general rule, "have approved the consideration of information by a local administrative agency supplied to it by its own technical or professional experts outside the confines of the administrative hearing." Id., at 570, 602 A.2d 613 citing Holt-Lock, Inc. v. Zoning & Planning Commission, 161 Conn. 182, 184-85, 286...