Wood v. Somers Zoning Board of Appeals

• Decision Date: 04 December 2001
• Docket Number: 16426
• Citation: 784 A.2d 354
• Court: Connecticut Supreme Court
• Parties: BRUCE WOOD ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF SOMERS ET AL.16426 THE SUPREME COURT OF THE STATE OF CONNECTICUT

BRUCE WOOD ET AL. v ZONING BOARD OF APPEALS OF THE TOWN OF SOMERS ET AL.

No. SC 16426

THE SUPREME COURT OF THE STATE OF CONNECTICUT

Argued February 13

December 4, 2001

Counsel Duncan J. Forsyth, with whom were Lawrence J. Golden and James W. Sherman, for the appellants (plaintiffs). Carl T. Landolina, for the appellees (defendants).

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

Palmer, J.

The plaintiffs, Bruce Wood, David Gavlak and Hillside Spring Water, Inc. ¹ (Hillside), appeal from the judgment of the trial court dismissing their appeal from the decision of the named defendant, the zoning board of appeals of the town of Somers (board), upholding the issuance of a cease and desist order ² prohibiting the collection, storage and transportation of natural spring water from certain property located at 223 Wood Road (subject property) in Somers. On appeal, the plaintiffs claim that the trial court improperly concluded that Hillside's use of the subject property to collect, store and transport spring water was not a permitted use under Somers zoning regulations. The plaintiffs also claim that the trial court, which concluded that Hillside's use of the subject property did not constitute a legal nonconforming use, ³ instead, should have remanded the case to the board for consideration of that issue in light of the board's failure to address it in the first instance. We reject the plaintiffs' claim that the trial court improperly concluded that Hillside's use of the subject property for the collection, storage and transportation of spring water is not a permitted use. With respect to the plaintiffs' nonconforming use claim, however, we agree that the trial court should not have considered that claim because the board failed to address it in the first instance. Accordingly, we reverse the judgment of the trial court in part and remand the case to that court with direction to remand the case to the board for its consideration of the plaintiffs' nonconforming use claim.

The record reveals the following relevant facts and procedural history. Wood owns the subject property, which is known as the Wood farm and which is comprised of 200 acres of land. Gavlak owns and operates Hillside. Since 1991, Hillside has leased a thirty-three acre parcel on the subject property, which contains four natural springs. Hillside collects water from the springs with pipes, through which the water flows by force of gravity into tanker trucks. The water then is transported off the subject property to bottling plants and, ultimately, is sold for human consumption. ⁴

The subject property is located in an A-1 zoning district. Under provision 214-98 of the Somers Town Code, farms are expressly permitted in an A-1 zone. ⁵ Under the Somers Town Code, the term ''farm'' is defined as ''[a] tract of land containing five . . . acres or more, with a minimum of three . . . acres used principally for agricultural purposes''; ⁶ Somers Town Code 214-4; and the term ''agriculture'' is defined as ''[t]he cultivation of land, including planting and harvesting of crops, tillage, horticulture and forestry, and the raising and management of livestock.'' ⁷ Id. We note, moreover, that Somers Town Code 214-5 provides in relevant part that ''[u]ses that are not expressly permitted are prohibited.''

On December 30, 1996, the Somers zoning enforcement officer issued a letter to the plaintiffs: (1) advising them that the collection and storage of spring water on the subject property for transportation off that property is prohibited by Somers zoning regulations; and (2) ordering them to cease and desist from that activity. The plaintiffs appealed to the board pursuant to General Statutes § 8-7, ⁸ claiming that Hillside's use of the subject property to collect, store and transport spring water is a permitted use because that ''activity falls within the scope of agriculture and/or farming.''

On April 10, 1997, the board held a public hearing on the plaintiffs' appeal. At the hearing, the plaintiffs maintained that Hillside's collection of spring water for bottling and sale off the subject property is a permitted agricultural use. The plaintiffs claimed alternatively that Hillside's use of the subject property to collect spring water constituted a legal nonconforming use inasmuch as water has been collected from the springs for several hundred years, long before any zoning regulations were in place. On May 8, 1997, the board issued its decision upholding the zoning enforcement officer's issuance of the cease and desist order. The board, however, did not address the plaintiffs' nonconforming use claim.

The plaintiffs appealed from the board's decision to the trial court pursuant to General Statutes (Rev. to 1997) § 8-8 (b). ⁹ After a hearing, the trial court issued a memorandum of decision in which it characterized as ''debatable'' the issue of whether the collection, storage and transportation of spring water is a permitted agricultural use within the meaning of Somers Town Code 214-4. The trial court upheld the decision of the board, however, concluding that the plaintiffs had not sustained their burden of proving that the board acted illegally, arbitrarily or in abuse of its discretion in resolving that issue as it did. ¹⁰ The trial court also concluded that Hillside's use of the subject property for storing, collecting and transporting spring water did not constitute a legal nonconforming use. Accordingly, the court rendered judgment dismissing the plaintiffs' appeal.

The plaintiffs filed a petition for certification to appeal to the Appellate Court from the trial court's judgment pursuant to General Statutes (Rev. to 1999) § 8-8 (o), which the Appellate Court granted. We transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

On appeal, the plaintiffs claim that the trial court improperly concluded that Hillside's use of the subject property for the collection, storage and transportation of spring water is not a permitted agricultural use under the applicable provisions of the Somers Town Code. Alternatively, the plaintiffs maintain that, in view of the board's failure to address their nonconforming use claim, the trial court should have remanded the case to the board for its consideration of that claim. We conclude that the trial court properly rejected the plaintiffs' claim that Hillside's collection and storage of spring water on the subject property for bottling and sale off that property is a permitted agricultural use. We agree with the plaintiffs, however, that the board was required, in the first instance, to determine whether that use constitutes a legal nonconforming use and, consequently, we conclude that the trial court improperly considered that issue.

I.

We first address the plaintiffs' claim that the trial court improperly concluded that Hillside's use of the subject property for the collection, storage and transportation of spring water is not a permitted agricultural use under Somers zoning regulations. We are not persuaded by the plaintiffs' claim.

It is undisputed that the subject property is located in an A-1 zone, and that farms are permitted on property that is located in such a zone. As we have indicated, a farm is defined by Somers zoning regulations as a tract of land of five acres or more with a minimum of three acres ''used principally for agricultural purposes.'' Somers Town Code 214-4. For purposes of this appeal, it is undisputed that the subject property comprises more than five acres and, further, that more than three acres of the subject property are used in connection with the collection, storage and transportation of spring water. Consequently, whether Hillside's use of the subject property constitutes a permitted agricultural use devolves into the question of whether the collection, storage and transportation of spring water falls within the meaning of ''agriculture'' as that term is defined in Somers Town Code 214-4.

Before addressing the merits of the plaintiffs' claim, we set forth the well established standards that govern our review. ''Generally, it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. . . . In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal.'' (Citations omitted; internal quotation marks omitted.) Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988); accord Irwin v. Planning & Zoning Commission, 244 Conn. 619, 627-28, 711 A.2d 675 (1998); Double I Ltd. Partnership v. Plan & Zoning Commission, 218 Conn. 65, 72, 588 A.2d 624 (1991); see also Pascale v. Board of Zoning Appeals, 150 Conn. 113, 117, 186 A.2d 377 (1962) (on appeal from zoning board's application of regulation to facts of case, trial court must decide whether ''the board correctly interpreted the regulation and applied it with reasonable discretion''). Moreover, the plaintiffs bear the burden of establishing that the board acted improperly. E.g., Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995); see Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).

''Ordinarily, this court affords deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute's purposes. . . . [A]n agency's factual and discretionary determinations are to be accorded considerable weight .... Cases that present pure questions of...