Ross v. Zoning Bd. of Appeals of Westport

• Decision Date: 24 November 2009
• Docket Number: No. 30210.,30210.
• Citation: 983 A.2d 11,118 Conn.App. 90
• Court: Connecticut Court of Appeals
• Parties: David ROSS v. ZONING BOARD OF APPEALS OF the TOWN OF WESTPORT.

983 A.2d 11

118 Conn.App. 90

David ROSS v. ZONING BOARD OF APPEALS OF the TOWN OF WESTPORT.

No. 30210.

Appellate Court of Connecticut.

Argued April 20, 2009.

Decided November 24, 2009.

Ira W. Bloom, Westport, for the appellant (defendant).

Robert A. Fuller, Wilton, for the appellee (plaintiff).

HARPER, ROBINSON and MIHALAKOS, Js.

ROBINSON, J.

The zoning board of appeals of the town of Westport (board) appeals from the judgment of the trial court sustaining the appeal by the plaintiff David Ross.¹ On appeal, the board claims that the court improperly (1) concluded that the town zoning enforcement officer (officer) and board had no authority to enforce state or federal statutes that were implemented after the date that the relevant subdivision plan was approved, (2) failed to remand this case to the board for further review to consider existing zoning violations, illegalities and discrepancies and (3) concluded that the zoning enforcement officer was estopped from enforcing established errors in the plaintiff's submissions and approvals. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our discussion of the present appeal. The plaintiff is the owner of certain real property located at 8 Sandpiper Road in Westport. The subject property is part of a subdivision approved by the Westport planning and zoning commission (commission) on October 20, 1965. In 2001, the plaintiff sought to construct a two-story, single-family dwelling on the then vacant parcel. He filed an application with the commission for approval of a coastal area management site plan, which was approved on July 26, 2001. After receiving all necessary approvals, the plaintiff was issued a zoning permit on August 31, 2001, and a building permit on October 12, 2001. Final inspection of the property was conducted on December 30, 2003, and the plaintiff was issued a certificate of zoning compliance on March 11, 2004.

On March 15, 2004, the plaintiff filed a new coastal site plan application with the commission, seeking approval for an addition to the existing dwelling. At a meeting conducted on July 26, 2004, the commission denied the application. The plaintiff appealed to the trial court which sustained the appeal. Thereafter, this court affirmed the judgment of the trial court.² See Ross v. Planning & Zoning Commission, 118 Conn.App. 55, 982 A.2d 1084 (2009).

While the appeal was pending in the related matter; see footnote 1 of this opinion; the officer sent notice to the plaintiff that his zoning permit and certificate of zoning compliance were revoked on February 10, 2005. On March 11, 2005, the plaintiff appealed to the board from the action of the officer. A public hearing was conducted by the board on June 14, 2005; thereafter, on June 28, 2005, the board denied the appeal. Although the board did not reference in its notice of decision any specific zoning regulation that it believed the plaintiff had violated, the record demonstrates that the board's decision was predicated on alleged violations of its coastal area regulations, flood plain regulations and lot coverage regulations.

On July 18, 2005, the plaintiff commenced the present appeal to the court. This appeal and the appeal in the related matter were consolidated for the purposes of the hearing; however, the court issued separate memoranda of decision sustaining both appeals. Although separate, the memorandum of decision sustaining the appeal from the commission's decision incorporated by reference its discussion in the memorandum of decision sustaining the appeal from the decision of the board. Accordingly, the memorandum sustaining the appeal underlying the present matter before this court provides an analysis of both appeals. This appeal followed.

As a preliminary matter, we note that the intertwined nature of the two companion appeals is evident from the joint nature of the court's memorandum of decision as well as the parties' arguments on appeal. Therefore, for clarification purposes, we find it necessary to distinguish the specific issues raised in the present matter to focus our review properly in this case.³ The present appeal specifically addresses the board's decision to uphold the officer's revocation of the plaintiff's zoning permit and certificate of zoning compliance. In the memorandum of decision sustaining the plaintiff's appeal from the board's decision, the court determined that the property was exempt from any zoning regulations enacted after October 21, 1965, the date when the subdivision map that included the plaintiff's property was approved by the commission. The court also noted that the board's decision did not identify any specific zoning violation. Ultimately, the court concluded that the construction complied with the applicable zoning regulations. On those grounds, the court sustained the plaintiff's appeal from the decision of the board.⁴

I

The board's first claim is that the court incorrectly held that the officer and the board were without authority to enforce state and federal statutes that were enacted subsequent to the approval of the plaintiff's subdivision in 1965. In support of this contention, the board advances four arguments: (1) neither General Statutes § 8-26a⁵ nor Poirier v. Zoning Board of Appeals, 75 Conn.App. 289, 815 A.2d 716, cert. denied, 263 Conn. 912, 821 A.2d 766 (2003), operate to deprive the board of jurisdiction to enforce state and federal statutes, including its enforcement of regulations promulgated by the Federal Emergency Management Agency (agency); (2) even if § 8-26a does strip it of jurisdiction to enforce state and federal laws that were enacted after the subdivision was approved, it retains jurisdiction under the related theories of waiver and manifest jurisdiction; (3) both Westport's zoning regulations and Connecticut's jurisprudence explicitly provide for the revocation of a zoning permit; and (4) public policy supports a decision to allow it to enforce agency regulations relating to flood zones. We agree with the court that the board and the officer were without jurisdiction to enforce federal and state laws that were not in existence at the time that the subdivision was approved.

We begin by setting forth the legal principles and standard of review that guide our resolution of the board's appeal. "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction.... The objection of want of jurisdiction may be made at any time ... [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention.... The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009). Moreover, "[a] determination regarding a trial court's subject matter jurisdiction is a question of law. When ... the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Id.

In connection with the board's first argument, that neither § 8-26a nor Poirier v. Zoning Board of Appeals, supra, 75 Conn.App. at 289, 815 A.2d 716 (lot shown on subdivision plan for residential property approved prior to effective date of change in zoning regulations not required to conform to subsequent change), operate to deprive it of jurisdiction to enforce state and federal statutes, we are not persuaded. We begin by consulting the text of § 8-26a to ascertain whether this case comes within the ambit of that statute. Section 8-26a(b)(1) provides in relevant part that "when a change is adopted in the zoning regulations ... of any town ... no lot ... shown on a subdivision or resubdivision plan for residential property which has been approved, prior to the effective date of such change, by the planning commission of such town ... and filed or recorded with the town clerk, shall be required to conform to such change." Thus, our initial analysis inquires (1) whether the plaintiff's lot is on a subdivision plan that was properly approved and recorded and (2) whether the approval and recording of that subdivision occurred prior to the subject change in the board's zoning regulations.

It is not disputed that the subdivision lot on which the plaintiff built his home was approved by a properly authorized planning commission on October 20, 1965, and that it is recorded as lot 14 on map number 6054 in the Westport land records. Moreover, the record demonstrates that Westport's zoning regulations include provisions that regulate coastal areas; see Westport Zoning Regs., § 31-10; flood plains; see id., at § 31-11; and lot coverage limits for homes in residence A district. See id., at § 13-6. Thus, the regulations that the board suspects the plaintiff to have violated are presumptively "zoning regulations." See Poirier v. Zoning Board of Appeals, supra, 75 Conn.App. at 295, 815 A.2d 716 (regulations found in town's zoning regulations "presumptively a `zoning regulation'"); see also id., at 302, 815 A.2d 716 ("we find no indication that the legislature intended distinctions to be drawn between certain zoning regulations, for example, that protection might extend to changes in setback requirements, but not to changes in coverage requirements"). Finally, it is undisputed that the subject zoning regulations were not in effect in 1965, at the time the plaintiff's subdivision was approved and recorded.

Our analysis does not end there, however, because § 8-26a was amended in 2004 to clarify which subdivision lots are eligible for...