Parker v. Zoning Comm'n of the Town of Wash.

• Decision Date: 11 January 2022
• Docket Number: AC 44130
• Citation: 269 A.3d 157,209 Conn. App. 631
• Parties: Robert PARKER et al. v. ZONING COMMISSION OF the TOWN OF WASHINGTON et al.
• Court: Connecticut Court of Appeals

209 Conn.App. 631

269 A.3d 157

Robert PARKER et al.

v.ZONING COMMISSION OF the TOWN OF WASHINGTON et al.

AC 44130

Appellate Court of Connecticut.

Argued March 15, 2021

Officially released January 11, 2022

Gail E. McTaggart, for the appellants(plaintiffs).

Michael A. Zizka, for the appellee(named defendant).

Paul V. Gelderman, for the appellee(defendantErika Klauer et al.).

Teresa R. Peacocke, self-represented, the appellee(defendant).

Elgo, Moll and Sheldon, Js.

ELGO, J.

The plaintiffs, Robert L. Parker, Peter E. Rogness, and Randi M. Solomon, trustee for the Randi M. Solomon Revocable Trust, appeal from the judgment of the Superior Court denying their appeal from the decision of the defendantZoning Commission of the Town of Washington(commission) to grant the application of the defendant101 Wykeham Road, LLC(applicant), to modify a special permit previously approved by the commission in 2013 pursuant to a settlement agreement.¹On appeal, the plaintiffs claim that the court improperly concluded that the application did not constitute an impermissible expansion of both a nonconforming structure and a nonconforming use.The plaintiffs further claim that the court"failed to require compliance with [the] special permit standards" contained in the Washington Zoning Regulations (regulations).²We affirm the judgment of the Superior Court.³

This appeal concerns the development of a 26.9 acre parcel of real property owned by the applicant and known as 101 Wykeham Road in Washington (property).The property is located in the "R-1 Farming and Residential" zoning district.⁴Among the uses authorized by special permit in that zone is an "Inn or Tourist home."Washington ZoningRegs., § 4.4.1.The regulations, however, provide no definition of the terms "inn" or "tourist home."

In May, 2008, an entity known as Wykeham Rise, LLC(Wykeham), the predecessor in title to the applicant, applied for a special permit to construct an "inn and associated appurtenances" on the property.Following a lengthy hearing over the course of several months, the commission, by a vote of three to two, denied that application.⁵Wykeham appealed from that decision to the Superior Court, claiming that (1) the commission lacked a valid reason for its denial, and (2) the commission's decision must be reversed due to the improper participation of alternate members in its deliberations and the improper predetermination of the merits of the application by one regular member of the commission.

While that appeal was pending before the Superior Court, Wykeham alternatively sought special permit approval to operate a school on the property,⁶ and it is undisputed that the commission granted such approval.Although the record before this court is voluminous and contains materials that reference "Wykeham University," it does not contain copies of any such special permit applications or the commission's formal decision to approve such a special permit.The record nonetheless indicates that Wykeham agreed, as a condition to the settlement agreement at issue in this appeal, to surrender the special permit approval that it had obtained for a school once the settlement agreement was ratified.See footnote 7 of this opinion.

In October, 2011, the Superior Court issued its memorandum of decision on Wykeham's appeal from the commission's denial of its request for a special permit to construct an inn on the property.The court concluded that none of Wykeham's claims constituted reversible error.At the same time, the court noted its concern about the conduct of the commission, stating in relevant part: "The court observes ... that certain commission members engaged in a level of conduct that skirted the boundaries of what is appropriate for municipal public officials sitting on a commission.First, during the course of the five public hearings held on Wykeham's application ... Commissioner [Valerie] Friedman made observations and comments that might lead one to believe that the application was being predetermined and prejudiced in such a way that the principles of fundamental fairness during the proceedings were being undercut. ...The court finds that ... Commissioner Friedman, as a sitting member of the commission, created the appearance, in form, if not in substance, of predetermination and, therefore, contradicted the spirit of the statutory mandate of General Statutes § 8-11.The court further observes that the participation by [two] alternate commission members ... in the deliberative process by way of comment or submission on why the application should be denied, was inappropriate."The court concluded with the following admonition: "The court ... strongly advises that Chairman [David] Owen, along with all of the commissioner members, should undertake some remedial training and orientation concerning their duties as municipal public officials sitting on boards and commissions, including their obligation to remain impartial and nonjudgmental during such proceedings, and to withhold judgment until all of the evidence and arguments have been presented for their deliberation."Wykeham Rise, LLC v. Zoning Commission , Superior Court, judicial district of Litchfield, Docket No. CV-09-4007939-S, 2011 WL 5223048(October 11, 2011).

Wykeham then filed a petition for certification, seeking appellate review of the propriety of that judgment, which this court granted.In addition to Wykeham and the commission, the parties to that appeal included three neighboring property owners—Eric A. Federer, Wendy R. Federer, and Teresa Rosen Peacocke.

While that appeal was pending, the parties settled their differences and entered into an agreement dated January 9, 2013(settlement agreement).That settlement agreement noted that Wykeham "desires to construct and operate an inn" on the property and then set forth sixteen "terms and conditions by and under which neither [the Federers] nor Peacocke would oppose Wykeham in its efforts to obtain [c]ommission approval [of] an [i]nn on the [p]roperty."⁷At a special meeting held on January 7, 2013,⁸ the commission, by a vote of four to one, approved the settlement agreement "per the site development plan by Arthur H. Howland and Associates, dated July 8, 2011, revised to December 17, 2012, 32 sheets"(2012 plan).The commission also incorporated by reference into its approval "[t]he architectural renderings [marked]‘A’ and ‘B’ "⁹ and six conditions of approval that were contained in its previous special permit approval to operate a school on the property.¹⁰

Following the commission's approval of the settlement agreement, a motion for approval was filed with the Superior Court pursuant to General Statutes § 8-8 (n), as the appeal of the commission's 2008 decision to deny Wykeham's special permit request remained pending.¹¹Through legal counsel, the plaintiffs in the present action—who were not parties to the settlement agreement or the proceeding before the Superior Court—opposed the settlement agreement.¹²After hearing from all interested parties, the court concluded that the settlement agreement "reflects honest, good faith compromise on the part of all parties to this appeal."Wykeham Rise, LLC v. Zoning Commission , Docket No. CV-09-4007939-S, 2013 WL 951156, *1(Conn. Super.February 5, 2013).The court further emphasized that "[t]he settlement reflects a substantially reduced project, which should be much more acceptable to the neighbors.The settlement includes the following: (1) the removal of some buildings which were part of the original proposal; (2) reduced parking; (3) reduced restaurant; (4) a prohibition on amplified music; (5) closure of one means of access and egress; (6) limitation on the number of events which can be held; [and](7) plantings to screen the activities of the project."Id.Accordingly, the court approved the settlement agreement, thereby memorializing Wykeham's ability to construct an inn on the property, as depicted on the 2012 plan.¹³See footnote 7 of this opinion.

The settlement agreement also contemplates modification of the 2012 plan.In this regard, the agreement requires that "[a]ny amendments to this [s]ettlement [a]greement must be consented to by all the parties herein or their heirs, successors or assigns."The settlement agreement further provides that "[a]ll modifications to the approved plans must be approved by the [commission] or its authorized agent prior to implementation."

On March 22, 2018, the applicant, as successor in title to the property, filed an application for the "modification of [the] existing special permit" that had been approved by the commission at its January 7, 2013 special meeting (modification application).That application was accompanied by several documents, including a new site development plan prepared by Arthur H. Howland & Associates, P.C., dated December 2, 2016, revised to February 5, 2018(2018 plan),¹⁴ a copy of the applicant's February 8, 2018 application for a building permit and related documentation,¹⁵ and copies of both the settlement agreement and the commission's January 7, 2013 approval thereof.¹⁶

In accordance with the instructions provided by the commission on its special permit application form, the application also included a written description of the proposed modification.In that correspondence, the applicant's legal counsel stated in relevant part: "The [a]pplicant's goal is to build the [i]nn that it is entitled to build as a result of the settlement agreement reached with the [commission] in January of 2013 and approved by the court on February 5, 2013.To do that, the [a]pplicant [is requesting] a modification to the [2012 plan] incorporated into the [s]ettlement [a]greement.This modification is in part necessary in order to comply with newer building code requirements for fire egress.It is also discretionary in part as the [a]pplicant wishes to add grading and stone walls in the rear of the main building. ...It is...