R v. Zoning Bd. of Appeals of The Town of Ridgefield., 32105.

• Decision Date: 07 June 2011
• Docket Number: No. 32105.,32105.
• Citation: 19 A.3d 715,129 Conn.App. 275
• Court: Connecticut Court of Appeals
• Parties: R AND R POOL AND PATIO, INC.v.ZONING BOARD OF APPEALS OF the TOWN OF RIDGEFIELD.

129 Conn.App. 275

19 A.3d 715

R AND R POOL AND PATIO, INC.

v.ZONING BOARD OF APPEALS OF the TOWN OF RIDGEFIELD.

No. 32105.

Appellate Court of Connecticut.

Argued March 10, 2011.Decided June 7, 2011.

Patricia C. Sullivan, with whom, was Barbara M. Schellenberg, Bridgeport, for the appellant (defendant).Robert A. Fuller, Wilton, for the appellees (plaintiffs).GRUENDEL, ROBINSON and BEAR, Js.BEAR, J.

The defendant, the zoning board of appeals of the town of Ridgefield (board), appeals from the judgment of the Superior Court sustaining in part the appeal of the plaintiffs, R & R Pool & Patio, Inc., Mitchell Ross, David Ross and Philip Ross. On appeal, the board claims that the court improperly rejected its definition of the term “fine furniture,” as that term was set forth in a variance pertaining to the plaintiffs' property, and improperly substituted its own definition. We conclude that the court properly determined that the board's definition of that term was arbitrary and illegal; however, we further conclude that the court's definition of that term also was improper. Accordingly, we affirm in part and reverse in part the judgment of the Superior Court.

The following facts as found by the trial court are relevant to this appeal. ¹ “The plaintiffs' property is located at 975 Ethan Allen Highway in Ridgefield. The property is located in a B–2 zone in which retail uses are not permitted under the Ridgefield zoning regulations. In July, 1990, Richard Amatulli, a tenant of the property at the time, obtained site plan approval to conduct a wholesale oriental rug operation on the property. On November 5, 1990, the board granted Amatulli's application for a variance to conduct retail sales on the property. The variance provided: ‘[T]his action permits wholesale and retail sales to be conducted from the premises, 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.’ ...

“On July 2, 1993, the owners, on behalf of their new tenant, R & R Pool & Patio, Inc., 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. This application was denied. One of the reasons given for the denial was that the merchandise that the tenants were planning to sell was not the ‘fine furniture’ contemplated by the board in its decision on the Amatulli variance. The owners and the plaintiffs appealed from the decision to the board, which upheld the planning director's decision. On February 24, 1994, the owners of the property and the plaintiffs appealed to the Superior Court, alleging that the board's decision on the site plan application was arbitrary, illegal and an abuse of discretion. The ... court dismissed the appeal for lack of standing on the ground that the property owners were not the applicants for the site plan approval. The property owners and the plaintiffs then appealed the case to the [this court]. While that was pending, the owners conveyed title to the property to the plaintiffs. Upon review, [we] reversed the judgment of the [Superior Court] and remanded the case for a determination on the merits. On remand, the ... court, Stodolink, J., sustained the appeal and concluded that the record contained no evidence to support the board's conclusion that the furniture at issue was not the type of ‘fine furniture’ contemplated by the Amatulli variance.

“On July 27, 1995, while the appeal of the first site plan application was pending in the Superior Court, the plaintiffs submitted a second site plan application to the planning director, seeking approval for the retail and wholesale sales of oriental rugs, fine furniture and art. In that application the plaintiffs provided a ‘statement of proposed uses' for the property, along with numerous letters to the planning director. The plaintiffs stated that the ‘property will be used in accordance with the variance granted by the [board] in App. # 90–099 on November 5, 1990,’ the original Amatulli variance. The plaintiffs also stated that the products to be sold on the premises would be limited to ‘[r]etail and wholesale sales of oriental rugs, fine furniture and art.... The products will be of high end quality, well styled and up-scaled products.... There will be no plastic furniture, no mass produced assembly line type of furniture, and no athletic equipment such as swing sets. R & R [Pool & Patio, Inc.,] will not be selling the type of furniture which is customarily sold in discount stores. Instead, the furniture will be of the high type and caliber which is customarily sold in high quality furniture stores throughout the United States. A consumer could expect to find the same products in stores on Fifth Avenue or Madison Avenue in New York City and similar states in different parts of the country.’ ... Based upon these assurances, the planning director approved the plaintiffs' second site plan application.

“In September, 1995, the plaintiffs began retail sales of furniture on the property. Soon after, the Ridgefield zoning enforcement officer issued a cease and desist order ordering the plaintiffs to remedy or discontinue conducting retail sales in a B–2 zone, retail sales not allowed under the Amatulli variance, retail sales not presented during the site plan process and sales that specifically violate the conditions of the plaintiffs' site plan approval. On January 5, 1996, the plaintiffs appealed the cease and desist order to the board, which upheld the issuance of the order. The board stated the plaintiffs had ‘applied for site plan approval for one use, and after receiving it ... put the property to another use.’

“On May 2, 1996, the plaintiffs appealed from the board's decision on the cease and desist order to the Superior Court. The plaintiffs asserted that the board's decision was arbitrary and illegal in that the Amatulli variance ran with the land and the board could not modify it, the term fine furniture was vague and involved a matter of personal taste, and the plaintiffs were denied due process because they were not informed which items did not constitute fine furniture. The ... court, Stodolink, J., upheld the board's decision, concluding that the board's reason for sustaining the order was reasonably supported by the record. Judge Stodolink issued his decision on both the site plan appeal and the cease and desist order appeal on the same day, October 20, 1998.

“[We] then granted the plaintiffs' motion to take judicial notice of the site plan appeal and concluded that the trial court had determined that the Amatulli variance could not be construed to limit the kind of furniture sold on the property. Because the board had failed to appeal from the trial court's judgment in the [first] site plan appeal, [we] concluded that the board was precluded under the doctrine of collateral estoppel from asserting that ‘fine furniture,’ as it appeared in the Amatulli variance, meant something finer than ordinary furniture. [This court] reversed the ... judgment [of the Superior Court] on the cease and desist appeal, concluding that the plaintiffs' use of the property conformed to the Amatulli variance as defined by the [Superior Court].

“The Supreme Court then heard the case and reversed and remanded it back to [this court], stating that [this court] improperly applied the doctrine of collateral estoppel. R & R Pool & Patio, Inc. v. Zoning Board of Appeals, [257 Conn. 456, 475, 778 A.2d 61 (2001) ]. The Supreme Court stated that because the meaning of ‘fine furniture’ was neither litigated by the parties nor decided by the [Superior Court] in the site plan case, ‘the [Superior Court] did not render final judgment on an issue that would preclude the board, under the doctrine of collateral estoppel, from ensuring in the cease and desist case that the plaintiffs' actual use complied with its site plan application to sell fine furniture.’ Id.

“On December 28, 1998, the plaintiffs filed a third application for site plan approval of specific products to be sold and specific areas for outside display. The specific products proposed in the site plan were as follows: ‘1. Furniture and furnishings, including the customary related accessories such as cushions, umbrellas, and tableware related to furniture in stock ... 2. Spas, hot tubs and pool accessories ... 3. Billiard and gaming tables and accessories ... 4. Fireplace equipment and grills ... 5. Works of art ... 6. Christmas and seasonal holiday products.’ ... On February 17, 1999, the planning director denied the application. On February 25, 1999, the plaintiffs filed an appeal to the board, and the board upheld the decision of the planning director. The plaintiffs appealed from the denial to the Superior Court. On August 9, 2002, the court sustained the appeal because there was no substantial evidence indicating that the variance did not include outdoor displays, and because the plaintiffs' proposed use of the property did not constitute a change from Amatulli's use, and, thus, they were not required to file a new site plan application. In sustaining the appeal, the court reversed the board's decision and directed the board to approve the plaintiffs' application....

“On appeal, [we] reversed the judgment ‘only as to the [Superior Court's] order directing the board to grant the plaintiffs' application for site plan approval’ and remanded the case to the [Superior Court] with direction to remand the matter to the board for further proceedings on the issue of whether the sale of the specific items listed in the application is permitted under the Amatulli variance. R & R Pool & Patio, Inc. v. Zoning Board of Appeals, [83 Conn.App. 1, 847 A.2d 1052, cert. denied, 271 Conn. 921, 859 A.2d 580 (2004) ]. [We] reasoned that ‘once the [Superior Court]...