Wiltzius v. Zoning Bd. of Appeals

• Decision Date: 26 February 2008
• Docket Number: No. 27788.,No. 27789.,No. 27787.,27787.,27788.,27789.
• Citation: 106 Conn.App. 1,940 A.2d 892
• Court: Connecticut Court of Appeals
• Parties: James J. WILTZIUS v. ZONING BOARD OF APPEALS OF the TOWN OF NEW MILFORD et al.

940 A.2d 892

106 Conn.App. 1

James J. WILTZIUS v. ZONING BOARD OF APPEALS OF the TOWN OF NEW MILFORD et al.

No. 27787.

No. 27788.

No. 27789.

Appellate Court of Connecticut.

Argued October 15, 2007.

Decided February 26, 2008.

Robert A. Fuller, Wilton, with whom was James J. Wiltzius, pro se, for the appellant in AC 27788 and AC 27789, appellee in AC 27787 (plaintiff).

Timothy S. Hollister, with whom was Ryan K. McKain, Hartford, for the appellee in AC 27788 and AC 27789, appellant in AC 27787 (defendant Garden Homes Management Corporation et al.).

Mark K. Branse, Glastonbury, filed a brief for the Connecticut Manufactured Housing Association, Inc., as amicus curiae.

BISHOP, McLACHLAN and GRUENDEL, Js.

McLACHLAN, J.

The present controversy arises from three separate zoning appeals brought by the plaintiff, James J. Wiltzius, against the defendant zoning board of appeals of the town of New Milford (board) and the defendants Sixth Garden Park Limited Partnership and Garden Homes Management Corporation,¹ challenging various zoning permits and certificates of zoning compliance issued by the town's zoning enforcement officer in connection with the replacement of mobile homes in the defendants' mobile home park. The plaintiff and the defendants now appeal from the judgment of the trial court dismissing the plaintiffs administrative appeals with respect to nine of the replacements and sustaining his appeal with respect to two of the replacements.² In AC 27788 and AC 27789, the plaintiff claims that the court improperly concluded that (1) his appeals to the board with, respect to four of the zoning permits at issue were not timely filed and (2) the issuance of a"certificate of zoning compliance is not a decision from which an appeal to the board may be brought. In AC 27787, the defendants claim that the court improperly concluded that (1) the plaintiffs appeal to the board with respect to two of the zoning permits at issue was timely filed and (2) the replacement of existing mobile homes with larger mobile homes constituted an illegal expansion of a nonconforming use. We affirm in part and reverse in part the judgment of the trial court.

The underlying facts are largely undisputed. Candle Hill Mobile Home Park was established in 1965. In 1971, zoning regulations were first enacted in the town of New Milford. The mobile home park was placed, and remains, in the R-60 and R-80 residential zones, in which single-family dwellings are permitted on lots of at least 60,000 or 80,000 square feet. When zoning was adopted the mobile home park consisted of 102 mobile manufactured homes on three parcels of land totaling approximately twenty-seven acres. Each mobile home occupies a designated space in the park, but the spaces are not individual lots in an approved subdivision. The regulations adopted in 1971 did not permit mobile home parks in R-60 or R-80 zones so that Candle Hill Mobile Home Park became a nonconforming use at that time.

The defendants became the owners and operators of the mobile home park in 1990.³ They began to replace some of the older mobile homes with newer mobile homes and, at first, were allowed to make those replacements simply by obtaining zoning permits from the town's zoning enforcement officer. In the summer of 2002, the zoning department informed the defendants that a variance would be required for any future replacements. After they applied for and obtained a variance for the replacement of one of the mobile homes, they applied for another variance to replace three additional mobile homes. On October 15, 2003, the board issued a blanket variance, without notifying abutting property owners arid without publishing notice of that decision in a newspaper, allowing the future replacement of mobile homes within the mobile home park. The zoning enforcement officer issued zoning permits for those three mobile homes on October 27, 2003. On February 23, 2004, the zoning enforcement officer issued an additional two zoning permits for replacements at the site. In all, eleven permits were issued for the replacement of eleven mobile homes at the defendants' park.

The plaintiff purchased his residential property, which abuts one of the three parcels occupied by the mobile home park, in 1999.⁴ In February, 2004, while looking out of the window of his home, he noticed construction activity in connection with two mobile homes located at 16 Tallow Lane and 18 Tallow Lane. He discovered that the board had issued the blanket variance and appealed from that decision to the board on April 1, 2004, At the same time, he filed a request with the New Milford zoning department pursuant to the Freedom of Information Act, General Statutes § 1-200 et seq., requesting disclosure of any zoning permits that had been filed or issued for the replacement of any of the mobile homes at Candle Hill Mobile Home Park. In response to that request, on April 7, 2004, the plaintiff received copies of nine of the eleven zoning permits issued to the defendants. The nine permits were issued for the replacement of mobile homes located at 4 Wicker Lane, 17 Victory Lane, 16 Tallow Lane, 18 Tallow Lane, 15 Duncan Lane, 19 Duncan Lane, 21 Duncan Lane, 1 Victory Lane and 12 Shadow Lane. On April 8, 2004, the plaintiff filed an appeal with the board, challenging the issuance of those permits.

The board rescinded the blanket variance that had been issued on October 15, 2003, at its meeting held on April 26, 2004. Shortly thereafter, in late May, 2004, the zoning department discovered an additional two zoning permits that had been issued for the replacement of mobile homes located at 10 Tallow Lane and 11 Shadow Lane. Those permits had been misfiled. Within thirty days of their discovery, the plaintiff appealed to the board from the issuance of those two zoning permits.

In June, 2004, the zoning enforcement officer issued certificates of zoning compliance for the mobile home replacements at 4 Wicker Lane, 17 Victory Lane, 16 Tallow Lane and 18 Tallow Lane. The plaintiff appealed to the board from the issuance of those certificates.

On May 19 and June 16, 2004, the board held a public hearing on the plaintiffs appeals from the issuance of the nine zoning permits by the town's zoning enforcement officer.⁵ The plaintiff claimed that the permits were not valid because they were issued in reliance on a variance that was not valid. The plaintiff, his counsel, the president of Garden Homes Management Corporation and counsel for the defendants attended the public hearing, spoke before the board and presented evidence for the board's consideration. The timeliness of the filing of the plaintiffs appeals was an issue raised before the board, and it was addressed by counsel for both parties.

The board issued the following decision on the plaintiffs appeals at its meeting held on July 21, 2004: "[W]e overturn the decision of the [zoning enforcement officer] to issue the following permits: # 445-03 for 4 Wicker Lane, # 446-03 for 18 Tallow Lane, # 447-03 for 17 Victory Lane, # 48-04 for 16 Tallow Lane and # 47-04 for 15 Duncan Lane. This decision is based on the fact that the permits issued were based on a variance ... that has been declared void due to a lack of proper public notification." With respect to the permits issued for 21 Duncan Lane, 19 Duncan Lane, 1 Victory Lane and 12 Shadow Lane, the board upheld the zoning enforcement officer's decision because "[i]t is the opinion of the board that the zoning enforcement officer acted properly and that the time frame for an appeal has expired." The defendants did not appeal from the board's decision. The plaintiffs appeal to the trial court challenged only the board's determination that his appeal from the granting of four of the permits, 21 Duncan Lane, 19 Duncan Lane, 1 Victory Lane and 12 Shadow. Lane, was not timely.

At the time of the board's decision, the plaintiffs appeals to the board from the zoning enforcement officer's issuance of the certificates of zoning compliance for 4 Wicker Lane, 16 Tallow Lane, 18 Tallow Lane and 17 Victory Lane were still pending. The installation of those four replacement mobile homes had been completed, and the mobile homes had been sold. Also pending before the board was the plaintiff's appeal from the issuance of the misfiled zoning permits for 10 Tallow Lane and 11 Shadow Lane. The board held a public hearing on those appeals on July 26 and September 22, 2004. At the board's meeting held on November 17, 2004, the board issued its decision on the plaintiffs appeals. The decisions made by the zoning enforcement officer were upheld. The plaintiff appealed from those decisions to the Superior Court.

The plaintiff filed three separate administrative appeals to the Superior Court from the board's actions in connection with the issuance of zoning permits and certificates of zoning compliance for the replacement of mobile homes at the defendants' mobile home park. The three cases were consolidated, and the court heard testimony as to aggrievement and oral argument on October 17, 2005. On February 10, 2006, the court filed its memorandum of decision in which it dismissed in part and sustained in part the plaintiff's appeals.

The court found that the plaintiff had constructive notice in February, 2004, of the zoning permits for 4 Wicker Lane, 16 Tallow Lane, 18 Tallow Lane, 17 Victory Lane, 15 Duncan Lane, 19 Duncan Lane, 21 Duncan Lane, 1 Victory Lane and 12 Shadow Lane. For that reason, the court concluded that the plaintiffs appeals to the board from the issuance of those permits were not timely because they were not filed within thirty days of that notice as required by General Statutes § 8-7⁶ and that the board did not have jurisdiction to hear them. The court further found that the plaintiffs appeal from the issuance of the certificates of zoning compliance for 4 Wicker Lane, 16 Tallow Lane, 18 Tallow Lane and 17 Victory Lane, which was based on the claim...