R & R Pool & Patio v. Zoning Bd. of Appeals of the Town of Ridgefield

• Decision Date: 14 August 2001
• Docket Number: No. SC,SC
• Citation: 778 A.2d 61,257 Conn. 456
• Court: Connecticut Supreme Court
• Parties: (Conn. 2001) R AND R POOL AND PATIO, INC., ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF RIDGEFIELD 16422

778 A.2d 61 (Conn. 2001)

R AND R POOL AND PATIO, INC., ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF RIDGEFIELD

No. SC 16422

THE SUPREME COURT OF THE STATE OF CONNECTICUT

Argued May 30, 2001

August 14, 2001

Counsel Patricia C. Sullivan, with whom were Barbara M. Schellenberg and, on the brief, Austin K. Wolf, for the appellant (defendant).

Robert A. Fuller, with whom was Raymond F. Ross, for the appellees (plaintiffs).

Sullivan, C. J., and Borden, Norcott, Katz and Palmer, Js.

Opinion

Katz, J.

The principal issue in this certified appeal is whether the Appellate Court properly concluded that the doctrine of collateral estoppel precluded the trial court from dismissing an appeal by the plaintiffs, R and R Pool and Patio, Inc. (R & R Pool), David Ross, Mitchell Ross and Phillip Ross, ¹ from a cease and desist order sustained by the defendant, the zoning board of appeals of the town of Ridgefield (board), for violating a zoning variance. See R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 60 Conn. App. 82, 758 A.2d 462 (2000). The Appellate Court predicated its application of the doctrine of collateral estoppel on the trial court's contemporaneous decision sustaining the plaintiffs' appeal from the defendant's denial of a prior site plan application, and thereafter reversed the trial court's judgment dismissing the plaintiffs' appeal. Id., 93, 96. Following our grant of certification to appeal, ² the board appeals from the judgment of the Appellate Court, claiming that the Appellate Court improperly applied the doctrine of collateral estoppel. We agree with the board and, accordingly, reverse the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following procedural history and facts: ''The plaintiffs own property located at 975 Ethan Allen Highway in Ridgefield (property). The property is located in a B-2 zone in which retail uses are not permitted under the Ridgefield zoning regulations. In July, 1990, a tenant of the property at the time, Richard Amatulli, doing business as Classics of Ridgefield, obtained site plan approval to conduct a wholesale oriental rug operation on the property, a permitted use in the zone. On November 5, 1990, the [board] granted Amatulli's application for a variance to conduct retail sales on the property (Amatulli variance). The [board] limited the variance with the following language: 'This action permits wholesale and retail sales to be conducted from the [property], unrestricted as to type of customer or hours of operation, but restricted as to the products to be sold. Such wholesale and retail sales shall be limited to oriental rugs, fine furniture and art.'

''In 1993, the then owners of the property . . . applied for a variance to remove the restrictions and to allow full retail use of the property. The application was denied by the [board] on June 21, 1993, and no appeal was taken therefrom.

''On July 2, 1993, the owners, through their attorney, Melvin J. Silverman, and on behalf of their new tenant, R & R Pool, filed an application for site plan approval with the Ridgefield planning director proposing the use of the property for 'warehouse, office and retail sale of fine outdoor furniture.' In a letter, which was part of the application, Silverman stated that the owners wanted to 'lease the premises to a seller of fine furniture [R & R Pool], albeit of the type which is used generally out of doors.' By letter dated September 24, 1993, the planning director informed Silverman that the application was denied and stated [as one of the] three reasons for such denial: '(1) The business you are planning to operate, with the merchandise you are planning to sell, is not the 'fine furniture' contemplated by the [board] in its decision on . . . [the Amatulli variance] ....'The owners and [the plaintiffs] appealed to the [board] (site plan case), and the [board] sustained the planning director's decision by way of a memorandum of decision dated February 14, 1994.'' Id., 84±n85.

The board's memorandum of decision sets forth its reasons as to why the planning director had been correct in denying the plaintiffs' site plan application. ³ The board explained that, although the term ''fine furniture'' had not been further defined in the Amatulli variance, the term had a particular meaning when the variance was viewed in light of the circumstances surrounding its original approval. The applicant for the original variance, Amatulli, had ''presented his request as a unitary operation with the sale of furniture as an adjunct to the sale of oriental rugs and of the same quality as would often involve the services of an interior decorator.'' By contrast, the board noted, the plaintiffs had proposed ''to have the meaning of the term 'fine furniture' used to include mass produced, outdoor furniture, arguing that it is in fact 'fine furniture.' '' The board determined that the furniture that the plaintiffs had proposed to sell was not the kind of merchandise presented to the board when the variance was originally requested, namely, items ''that, like oriental rugs, are not stock items, are made by hand, and . . . are expected to appreciate in value with the passage of time.'' The board concluded: ''Outdoor furniture simply does not fit this definition.''

On February 24, 1994, the owners of the property and the plaintiffs appealed to the Superior Court, alleging that the board's decision in the site plan case was arbitrary, illegal and an abuse of discretion. The trial court dismissed the action for lack of standing on the ground that the plaintiffs were not the applicants for the site plan approval. The property owners and the plaintiffs appealed from the judgment of dismissal to the Appellate Court. While that appeal was pending, the owners conveyed title to the property to the plaintiffs. The Appellate Court thereafter reversed the judgment of the trial court on the issue of standing and remanded the case for a determination on the merits of the case. See R & R Pool & Home, Inc. v. Zoning Board of Appeals, 43 Conn. App. 563, 684 A.2d 1207 (1996). ⁴ On remand, the trial court, Stodolink, J., ultimately sustained the plaintiffs' appeal. The trial court concluded that the record contained ''no factual evidence to support the board's conclusion that the plaintiffs' furniture is not the 'fine furniture' contemplated by the [Amatulli] variance.'' R & R Pool & Patio, Inc. v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. 316152 (October 26, 1998).

''During the pendency of the site plan case in Superior Court, the plaintiffs, on July 27, 1995, applied to the planning director for [a second] site plan approval for the 'retail and wholesale sales of oriental rugs, fine furniture and art.' An accompanying statement of proposed use explained that '[t]he property will be used in accordance with the [Amatulli variance]' and that the furniture to be sold would be 'of good quality and the higher-end products. It will be the type of quality of fine furniture which is sold in the better furniture stores in the United States. None of the furniture will be of the plastic type which is generally found in discount stores.'

''Pursuant to the planning director's request for clarification of the use, Raymond Ross, the attorney for the plaintiffs, by letter dated August 15, 1995, stated that 'R & R [Pool] will have the same limited retail sales of ''oriental rugs, fine furniture and art'' which were previously sold by [Amatulli] under the terms of the [Amatulli] variance. The furniture will be of similar kind and nature to that which was sold by [Amatulli] and falls within the terms of the variance. The products will be of the high-end quality, well styled and upscale products which were previously sold. The products will be customarily used by consumers in such rooms of a home as a den or a dining room. The sale of these furniture items are often made with the assistance of an interior decorator or designer. . . . There will be no plastic furniture, no mass produced assembly line type of furniture, and no athletic equipment such as swingsets.'

''[Prior to the trial court's decision in the site plan case, on] August 23, 1995, the planning director issued site plan approval to the plaintiffs [on the second application] subject to the condition that 'the limited retail sales will be exactly as permitted and described in the grant of [the Amatulli variance] and further defined in [the board's memorandum of decision denying the first application for site plan approval].'

''In September, 1995, the plaintiffs began retail sales of furniture on the property. On December 29, 1995, the Ridgefield zoning enforcement officer issued a cease and desist order to the plaintiffs ordering that they remedy or discontinue (1) conducting retail sales in a B-2 zone, (2) retail sales not allowed under the Amatulli variance and (3) retail sales not presented during the site plan process and sales that specifically violate the conditions of the plaintiffs' site plan approval.'' R & R Pool & Patio, Inc. v. Zoning Board of Appeals, supra, 60 Conn. App. 87±n88.

On January 5, 1996, the plaintiffs appealed from the cease and desist order to the board. On April 29, 1996, after a hearing, the board sustained the decision of the zoning enforcement officer to issue the cease and desist order. The board concluded, in part, that the plaintiffs had ''applied for [s]ite [p]lan [a]pproval for one use [in the second site plan application], and after receiving it . . . put the property to another use.'' The relevant portion of the board's memorandum of decision focused on the documents submitted by the plaintiffs as part of the second site plan approval process. The board noted that the plaintiffs' site plan had been approved for the sale of '' 'oriental rugs, fine furniture and art' . . . .'' The planning director's approval of that application, the board...