Ross v. Zoning Board of Appeals of the Town of Darien, No. FST CV 03-0198198 S (CT 3/20/2006)

• Decision Date: 20 March 2006
• Docket Number: No. FST CV 03-0198198 S,FST CV 03-0198198 S
• Court: Connecticut Supreme Court
• Parties: Mitchell Ross et al. v. Zoning Board of Appeals of the Town of Darien Opinion No.: 92783

Page 1

Unpublished Opinion

Mitchell Ross et al. v. Zoning Board of Appeals of the Town of Darien Opinion No.: 92783

No. FST CV 03-0198198 S

Superior Court of Connecticut

Judicial District of Stamford-Norwalk at Stamford

March 20, 2006

MEMORANDUM OF DECISION

DAVID R. TOBIN, JUDGE.

In these cases the plaintiff's appeal from decisions of the Zoning Board of Appeals (the "Board") of the Town of Darien on two applications filed by the plaintiffs concerning the proposed use of their residential property located at 10 Nickerson Lane in Darien.

The records in the appeals establish the following undisputed facts. The plaintiffs' property is designated as lots 10 and 11 on Map No. 2235 recorded in the Darien land records. Map No. 2235 was recorded immediately following the approval of a subdivision by the Town Plan Commission of the Town of Darien on February 14, 1953. As laid out on the subdivision map, lot 10 had an area of 1.008 acres and lot 11 had an area of 1.012 acres. Both lots were shown as bounded on the west by the waters of Holly Pond, a branch of Long Island Sound. The map shows that in 1953 all of Lot 11 and all but a sliver of Lot 10 were located in the "AAA" zone having a minimum lot area requirement of 43,560 square feet or 1.0 acre and side yard setback requirements of twenty-five feet. The remainder of Lot 10 was located in the "AA" zone which had a minimum area requirement of 17,434 square feet. At the time of plaintiffs' applications, 2003 and 2004 respectively, it appears that the lots were in the R-1 zone which has a minimum lot area of 43,560 square feet or 1.0 acre and a twenty-five-foot side yard setback requirement.

At the time of the 1953 subdivision the Darien Zoning Regulations contained no definition of "mean high water" or "mean sea level" and did not otherwise provide a datum to measure the boundaries (and hence area) of waterfront properties.¹ However, it appears that the Planning and Zoning Commission accepted the elevation of 3.65 feet above mean sea level used by the surveyor who prepared the subdivision map. On July 15, 1973, Darien adopted section 486.2 of its Zoning Regulations which expressly recognized 3.65 feet above mean sea level as the "mean high tide line."

In 1985 Darien adopted an amendment to its Zoning Regulations defining "mean sea level" as: "The average height of the sea for all stages of the tide. National Geodetic Vertical Data 1929, 19 year averages for Darien ending 1929 shall be the datum designated as zero in determining elevations." The record does not disclose whether this resulted in an immediate change in the "mean high tide line."

In 2002 the Darien zoning regulations were again amended to define "mean high water line" as: "The line formed by the intersection of the land and the plane of the most recent mean high water tidal datum, as established by the National Oceanic and Atmospheric Administration from time to time. The elevation of the mean high water line shall be expressed in terms of the National Geodetic Vertical Datum of 1929." The record does not contain any information as to the elevation of the mean high water line as of the date of the adoption of this amendment.

However, it appears that as of the date of the plaintiffs' applications the "mean high water line" as defined in the regulation was 4.3 feet above the 1929 datum or approximately 9 inches higher than the elevation in effect under the regulations in effect until 2002. The record includes no evidence as to when the sea level actually rose² or when a new "mean high water mark" first went into effect. In any event in March 2003 a survey, using the 4.3 feet elevation, found lot 10 to have an area of .9764 acres instead of the 1.008 acres previously resulting from the use of the 3.65 feet elevation. The same survey found lot 11 to have an area, using the 4.3 feet standard of .9888 acres rather than the 1.012 acres under the 3.65 feet standard.

In 1955 the then owners of the property, Langdon S. Simons, Jr. and Anne M. Simons, had obtained a building permit and subsequently constructed a residence situated on the boundary between lots 10 and 11. Since that time lots 10 and 11 have been taxed by the Town of Darien as a single tax parcel. In 1966 a porch was added to the residence by a subsequent owner after a building permit was issued by the town.

The plaintiff's initial application was made to the Board of Appeals in August 2003, requesting two alternative forms of relief. The plaintiff's first requested an interpretation of Section 385 of the Darien Zoning Regulations that lots 10 and 11 could be used as separate building lots following the demolition of the existing residence. Secondly, should the first relief not be granted, the plaintiffs requested variances of lot area requirements to permit separate use of lots 10 and 11. On September 17, 2003 a hearing was held on the plaintiff's application. At the hearing the plaintiffs presented their evidence and arguments in support of the application and neighbors appeared in opposition to the application.

By decision dated October 30, 2003, the plaintiffs' applications were denied by the Board "without prejudice" due "to the lack of sufficient provided information." The decision did not otherwise explain what additional information the Board believed it required in order to address the merits of the plaintiffs' application. The plaintiffs filed an appeal of that decision to the Superior Court pursuant to General Statutes §8-8.

Prior to filing a second application, the plaintiff applied to the Darien Zoning Enforcement Officer for a determination as to whether they were entitled to the separate use of their two lots. After receiving a negative reply dated March 23, 2004, the plaintiffs filed their second application on April 19, 2004 appealing the decision of the Zoning Enforcement Officer. In their second application plaintiffs attempted to present the Board with the issue as to whether the plaintiffs had two building lots protected by the provisions of General Statutes §8-26a(b)³ or whether as the Zoning Enforcement Officer determined their lots had, at some point, merged and lost their character as building lots.

In contrast to their first application, the plaintiffs' second application did not contain a request for a variance as an alternative form of relief. The only issue presented to the Board was the plaintiffs' appeal from the decision of David J. Keating, Darien's Zoning Enforcement Officer, as set forth in his letter dated March 23, 2004. In that decision Keating ruled that, contrary to the plaintiffs' assertions, lots 10 and 11 did not become non-conforming by any amendment to the Darien zoning regulations, but rather were merged into one lot by "common law merger" due to the intention of the then owners of the lots in 1955 when they built a residence on the dividing line between the two lots. Keating's ruling did not recite any additional factual basis for his conclusion that lots 10 and 11 merged and became a single parcel. However, he expressly states: "The property was not merged by imposition of regulations."

A hearing on the plaintiff's second appeal was held before the Board on June 16, 2004. At the hearing the Board accepted evidence of the 2003 proceedings into the record and accepted new evidence and testimony. Once again the plaintiffs appeared in support of their application while neighbors appeared in opposition.

After the hearing, the Board passed a resolution to deny the plaintiffs' second application "due to the lack of sufficient, demonstrated evidence of an error." The plaintiffs filed on appeal to the Superior Court pursuant to General Statutes §8-8. On May 25, 2005, by order of the court (Rogers, J.) the plaintiffs' two appeals were consolidated for trial.

A hearing on the appeals was held on January 10, 2006, at which time the plaintiffs produced evidence of their ownership of the subject property both at the time of the hearing and at the time of both their applications to the Board. The court found that the plaintiffs had sustained their burden of proving statutory aggrievement under General Statutes §8-8(a)(1). The court then heard oral arguments of the parties on the issues raised in the appeals. By order of the court both parties submitted posthearing briefs.

STANDARD OF REVIEW

"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning agency] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [agency] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [agency] supports the decision reached. If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board. If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the [agency] . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Citations omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d. 511 (2004).

PLAINTIFF'S FIRST APPEAL—FST CV 03-0198198 S

Both of the plaintiffs' applications to the defendant Board seek the same ultimate relief—separate use of lots 10 and 11. However, the form of the applications differ significantly. In their first application the plaintiffs requested "an interpretation" of certain sections of the Darien Zoning Regulations to allow separate use of their lots. In the alternative the plaintiff requested a variance to...