Opinion
No. CV 05-4002629 S
February 21, 2007
MEMORANDUM OF DECISION
Plaintiff, William Egner (Egner) appeals the defendant Zoning Board of Appeals' denial of his appeal regarding a cease and desist order of the town zoning enforcement officer. That order stated Egner must "discontinue the use of the property `as year-round' or in excess of six months."
The property is known as 99-A Lakeside Drive, North Stonington. The property consisted of four lots with a residence thereon. Each lot was 25 feet by approximately 100 feet. The area of the property was approximately 10,000 square feet. Egner purchased the property in September 1976. He took up residence shortly thereafter. In 1978, Egner purchased four additional lots adjacent to those he bought in 1976. His property now has an area of approximately 20,000 square feet.
Egner's property is in a zone designated as "R80 Rural Preservation District." Zoning Regulations, § 304.3. Single-family residences are permitted in the R80 zone. Zoning Regulations, § 403.1. The minimum lot area in the R80 zone is 80,000 square feet. Zoning Regulations, § 502.
The property is also in a Seasonal Use Overlay Area. Seasonal use is provisionally permitted in the Seasonal Use Overlay Area. Zoning Regulations, §§ 305.3, 407. "Seasonal use" is defined in the regulations. "Permitted use is seasonal; that is, occupancy is limited to a maximum of 6 months in any one year." Zoning Regulations, § 407.
The regulations establishing the R80 zone with its 80,000 square foot minimum lot area requirement and the Seasonal Use Overlay Area became effective on May 21, 1964.
Egner readily admitted to the Zoning Enforcement Officer that he used the property more than six months a year. Memorandum from Zoning Enforcement Officer to Zoning Board of Appeals, February 8, 2005, p. 1. ROR 8. "He has resided there on a year round basis since 1976." Plaintiff's Brief On Appeal from Zoning Board of Appeals, February 28, 2005, p. 2. [110]
On December 13, 2004, the zoning enforcement officer issued a cease and desist order to Egner. Egner was ordered "to discontinue the use of [his] property as `year-round or in excess of six months." Egner appealed the order to the defendant zoning board of appeals as permitted by C.G.S. § 8-6(a)(1).
The zoning board of appeals held a public hearing on February 8, 2005. On February 8, 2005, the board upheld the order of the zoning enforcement officer.
Egner appealed the zoning board of appeals' action to this court. C.G.S. § 8-8.
AGGRIEVEMENT
A person appealing a ruling by the Zoning Board of Appeals to the superior court must establish he is aggrieved by the decision appealed. Defendant board does not contest aggrievement. Egner is the owner of the subject property. The court finds Egner is aggrieved. C.G.S. § 8-8(a); Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 308 (1991)
LACK OF PRESCRIBED NOTICE
Egner claims the defendant board did not send him written notice of its decision by certified mail as prescribed by C.G.S. § 8-7. Complaint (Appeal), March 1, 2005, ¶ 6(a). Defendant board has not furnished the court with proof of such written mail notice. The court finds "notice of the decision of the board [was not] addressed by certified mail to any person who appeals to the board [Egner] . . . within fifteen days after such decision has been rendered." C.G.S. § 8-7.
Plaintiff contends the board's failure to provide him with the written notice of its decision by certified mail renders the decision null and void. Plaintiff's Brief On Appeal from Zoning Board of Appeals, February 28, 2006, pp. 6-7.
Plaintiff cites Greenberg v. Haddam Zoning Board of Appeals. In that case, the plaintiff was not given the written notice by certified mail; he was given timely notice by regular mail. The court held the purpose of the statute was satisfied because the "applicant received timely, actual notice." Greenberg v. Haddam Zoning Board of Appeals, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 99-0087811 (November 19, 1999, Shapiro, J.).
Present counsel for Egner conceded at the hearing before this court that the plaintiff and his then counsel were present when the vote was taken on his case and the decision of the board made known. The transcript reveals that just after the board's vote denying his appeal was taken, and the date of publication thereof stated, Egner's lawyer said: "The appeal period runs 15 days." Counsel then said: "The appeal will be filed." [26]
Egner filed a timely appeal to this court. The purpose of § 8-7 having been satisfied, the board's failure to send Egner written notice of its decision by certified mail does not render its decision null and void.
BOARD DID NOT STATE REASONS FOR ITS ACTION
In his Complaint (Appeal), Egner states: "The Board did not state its reasons on the record for its denial of Plaintiff's appeal as required by Connecticut General Statute § 8-7." Complaint (Appeal), March 1, 2005, ¶ 6(b).
Egner is correct. No reasons were given by the board. Transcript, February 8, 2005, p. 26. ROR 9.
Egner's brief does not mention this claim. Where a claim is not briefed, it is considered abandoned.
We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned. (Citations omitted; internal quotation marks omitted.) Merchant v. State Ethics Commission, 53 Conn.App. 808, 818, 733 A.2d 287 (1999) These same principles apply to claims raised in the trial court. (Emphasis added.) Connecticut Light Power Co. v. Department of Public Utility Control, 266 Conn. 108, 120 (2003)
Furthermore, our law is clear. Where a zoning board of appeals does not state the reason(s) for its decision, it is the court's obligation to search the entire record to find the basis for the board's decision. Harris v. Zoning Commission, 259 Conn. 402, 423-4 (2002); Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208 (1995); West Hartford Faith Coalition, Inc. v. Town Council, 228 Conn. 498, 514 (1994).
The board's not stating the reason(s) for its decision is not of dispositive consequence here.
SCOPE OF COURT REVIEW MD AUTHORITY
In this matter, the court is called upon to review the action of the zoning board of appeals which in turn had reviewed the action of the zoning enforcement officer.
[F]ollowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82 (1993).
This court must review the record made before the zoning board of appeals and judge the board's action in the light thereof. "The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings." Conetta v. Zoning Board of Appeals, 42 Conn.App. 133, 138 (1996). "The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995)
PRE-EXISTING NONCONFORMING USE
At the board hearing, Egner's primary position was that his property had been used year-round before the zoning regulations became effective in May 1964. If this were so, Egner's property would have a valid, preexisting nonconforming use.
Historical background regarding the adoption of the Seasonal Use Overlay Regulations was presented to the board.
The adoption of the Seasonal Use Area Overlay Zone was put in the Regulations as a method of accommodating the question of nonconforming uses of undersized lots in the lakes areas. You gotta remember in 1964 most of the lots along the three lakes, actually the four lakes that we have seasonal use overlay zones on very small lots that were used on a seasonal basis, fishing camps, summer camps, summer camps for people that spent their summer vacations. There were very few people living on a year-round basis at that time. That's why when they put these seasonal use regulations into effect, they didn't feel they were effecting a whole lot of people at the time because there were very few people living there year round. All the people in the area were notified of the zone change designation to seasonal use and were given the opportunity to establish to preexisting, nonconforming use. That being said, that was back in 1964. Who knows what happened to them. Those people that were there, that had a preexisting, nonconforming use, demonstrated it (changed sides of tape) for seasonal use you have to have a lot of at least 20,000 square feet and to meet certain other bulk requirements and you were allowed to use the property no more than 6 months out of the year. [Internal quotation marks omitted.] Transcript of the Hearing of the Zoning Board of Appeals of the Town of North Stonington, Tuesday, February 8, 2005, pp. 16-17. ROR 9.
A board member stated it was common knowledge that lake property was seasonal before the adoption of the zoning regulations. [5] Egner's attorney conceded as much. [5]
By statute, zoning regulations "shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations." C.G.S. § 8-2.
A non-conforming use is merely an existing use the continuance of which is authorized by the zoning regulations . . . Such a use is permitted because its existence predates the adoption of the zoning regulations . . . It is well established that [t]o be a nonconforming use the use must be actual. It is not enough that it be a contemplated use [or] that the property was bought for the particular use. The property must be so utilized as to be irrevocably committed to that use . . . Francini v. Zoning Board of Appeals, 228 Conn. 785, 789 (1994). AF Const., Inc. v. Zoning Board of Appeals, 60 Conn.App. 273, 275-76 (2000)
Egner did not acquire his property until 1976. If the property was used year-round before May 1964, i.e., before the regulations became effective, that would establish a valid nonconforming use. Succeeding owners, including Egner, could use the property year round because it had been so used before the regulations became effective.
The plaintiff bears the burden of proving the existence of a nonconforming use. [Internal citation omitted] Francini v. Zoning Board of Appeals, 228 Conn. 785, 789 (1994).
It was incumbent on Egner to prove to the zoning board of appeals that there had been year-round use before the regulations were adopted in 1964.
Egner did not meet this burden of proof. He could not. When addressing this issue, i.e., proof of the pre 1964 year-round use via testimony or documentary evidence, Egner's lawyer, Brian Woolf, commendably conceded there was no such evidence available.
Brian Woolf: "40 years later, the zoning enforcement officer wants Mr. Egner to prove that prior to 1964 it was a year-round property. It's impossible to do so." Transcript of the Hearing of the Zoning Board of Appeals of the Town of North Stonington, Tuesday, February 8, 2005, p. 2. ROR 9.
Later, and to like effect:
Brian Woolf: ". . . I think we're concerned about the people, quite honestly, prior to 1964. There's no way he can show them that it was year round properties." Transcript of the Hearing of the Zoning Board of Appeals of the Town of North Stonington, Tuesday, February 8, 2005, p. 7. ROR 9.
There was no evidence before the board to establish a pre May 1964 use of the property year-round. In fact, the only evidence on the subject was to the opposite; the property was used only on a seasonal basis.
The board correctly could have determined the property was not used year-round before the seasonal use proscription became a part of the zoning regulations in May 1964. Plaintiff had not established the property enjoyed a valid preexisting nonconforming use as a year-round residence as of May 1964.
MUNICIPAL ESTOPPEL
There was evidence before the board that the seasonal use regulations for some years had been enforced, if at all, only sporadically. However, beginning approximately in 2003, the planning and zoning commission had directed the zoning enforcement officer to enforce the seasonal use regulations.
Egner argued before the board that the failure to enforce the regulations, or failing to enforce them uniformly, estopped the town from enforcing the regulations against him.
Municipal estoppel is recognized by our law.
The contours of the application of the doctrine of municipal estoppel to zoning regulations are well established in our jurisprudence. [I]n special circumstances, a municipality may be estopped from enforcing its zoning regulations . . . In municipal zoning cases, however, estoppel may be invoked (1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations . . . Moreover, it is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge . . . To summarize, in order for a court to invoke municipal estoppel, the aggrieved party must establish that: (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief; (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents. (Citations omitted; internal quotation marks omitted.) Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 246-47, 662 A.2d 1179 (1995)
Furthermore, because municipal estoppel should be invoked only with great caution, our case law clearly imposes a substantial burden of proof on the party who seeks to do so. Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 636, 646 A.2d 772 (1994). (Citations omitted; internal quotation marks omitted.) Cortese v. Planning and Zoning Commission, 274 Conn. 411, 418-19 (2005)
Egner's invocation of the municipal estoppel doctrine must be considered for two different time frames. The first relates to the time when he purchased the property in 1976.
Egner does not claim, and he has presented no evidence, that he was misled by any town officer to believe he could use the property year-round before he purchased the property in 1976.
When purchasing the property, neither the seller or the real estate agent told him the property was for seasonal use only. Nor did his attorney. A title search was done. A title insurance policy was issued. At the hearing, Brian Woolf, Egner's attorney, told the board "whoever did the title search ought to have picked up something but in fact it never was." [9]
A proper examination of the land records and the zoning regulations and map readily would have disclosed the property was for seasonal use only.
There was no evidence before the board of any action or statement by the town or any of its officials upon which Egner relied to his detriment when buying the property. Furthermore, the zoning map and regulations were public records readily available to Egner and those acting on his behalf; they afforded a "convenient means of acquiring that knowledge" of the seasonal use restriction on the property. Egner did not demonstrate that he or those acting on his behalf exercised due diligence to ascertain whether or not there was a restriction on the use of the property.
Although Egner told the board he had made "vast improvements" to the property over the years, the improvements were never identified or described. There was no evidence of the cost or value of the improvements. And, of course, there was no showing that the improvements became substantially less valuable because the property could not be used year-round.
With this record before the board, it could properly find the doctrine of municipal estoppel should not be invoked with respect to his purchase of the property in 1976.
The principal municipal estoppel claim here is predicated on the actions or inactions of the town and/or its officials during the period following the adoption of the new zoning regulations which created the Seasonal Use Overlay Area in May 1964 until early 2004. Egner contends: "North Stonington has not, until this case arose, enforced this regulation [section 407]." Plaintiff's Brief On Appeal From Zoning Board Of Appeals, February 28, 2006, p. 3. [110]
The attorney for Mr. Egner informed the board of Egner's position. "I submit to the Zoning Board of Appeals that by the mere lack of enforcement of a regulation, for forty years, that nullifies the regulation." Transcript of the Hearing of the Zoning Board of Appeals of the Town of North Stonington, Tuesday, February 8, 2005, p. 3. ROR 9.
The board was informed that for many years Egner had served as a town police officer. His pay checks were mailed to him at the subject property. This inferentially tended to show the town, or at least the police authorities payroll personnel, knew Egner was using the property for his year-round residence.
There was evidence before the board that the zoning enforcement officer had been a part-time position until approximately 2003. Enforcement of the seasonal use regulations was therefore limited or nonexistent. The board was also told that variances had been granted apparently permitting year-round use. How many or the specifics of the same was not discussed or disclosed. The board was told "the last person granted the variance was a town official serving on the commission just before the enforcement started up." Transcript, February 8, 2005, p. 5. But, several years ago, the town attorney advised that variances should not be granted to allow year-round use of seasonal properties. No variances for year-round use have been issued since. More currently, property owners named Lowy whose property was only seasonal were granted permission to use their property year-round; this permission was limited to the Lowy's lifetimes or until they sold the property. The regulations do not provide for such temporary permission for year-round use.
There was evidence that the Planning and Zoning Commission had authorized the zoning enforcement officer to issue permits or certificates for year-round use if it could be established the property had been year use round before May 1964. Egner was given this opportunity. He readily acknowledged he could not establish pre May 1964 year-round use. See discussion at pages 8 — 12, above.
The board was told by Egner's attorney:
One of the problems here is, that had the town enforced this regulation in a timely manner would have given many people the opportunity to hopefully produce information record that mean that these particular properties were grandfathered in prior to 1964. They can't do that. 28 years later, the people who lived there probably 40 years ago are no longer alive. So that's the problem. And we can't look at the record . . . the past 40 years of this regulation . . . [5]
The court understands this to be a claim that had the town enforced the seasonal use regulation earlier, Egner, or one or more of those who had owned his property, might have then been able to gather evidence which established year-round use prior to May 1964, i.e., the pre-existing year-round nonconforming use. This claim is founded upon raw speculation. The board justifiably could have rejected this claim.
"An estoppel rests on the misleading conduct of one party which operates to the prejudice of another." (Internal quotation marks omitted, citations omitted.) Bianco v. Darien, 157 Conn. 548, 555 (1969). There was no evidence before the board that any town official said or did anything which caused Egner to take any action to his prejudice during the period commencing with his purchase of the property in 1976 to the time he was notified in 2004 that his property was approved for seasonal use only.
Egner claims "to have made vast improvements over the years." Transcript of the Hearing of the Zoning Board of Appeals of the Town of North Stonington. Tuesday, February 8, 2005, p. 7. ROR 9. There was no evidence of the cost or value of the improvements. In fact, the improvements were not described for the board. And, there was no evidence that the "vast improvements" would not have value if the property were used only seasonally. There was no evidence upon which the board could have found Egner suffered a "substantial loss." See Cortese v. Planning and Zoning Board, supra, 274 Conn. 419-20.
No evidence was presented to the board on whether the seasonal use had any effect on the tax assessment.
Plaintiff has not referred the court to any case in which municipal estoppel was invoked solely on the basis of inaction by town officials. The court is not aware of any.
It "is the general rule that the law of estoppel will not be applied to prevent a municipality from exercising its police power." [Citations omitted.] Bianco v. Darien, 157 Conn. 548, 556, (1969). "Zoning is an exercise of the police power." Builders Service Corp. v. Planning and Zoning Commission, 208 Conn. 267, 274 (1988).
As a matter of law, on the record before it, the board could not have invoked municipal estoppel on Egner's behalf.
In Bianco v. Darien, 157 Conn. 548, 554-55 (1969), "the Supreme Court held that equitable claims, such as estoppel, should be decided by a court of law rather than by a zoning board of appeals composed of laypersons." Collins Group, Inc. v. Zoning Board of Appeals, 78 Conn.App. 561, 581 (2003).
The court holds, the zoning board of appeals did not have the authority to decide Egner's municipal estoppel claim(s).
The court finds that the defendant zoning board of appeals did not err in rejecting plaintiff's appeal of the cease and desist order. Its action was not illegal, arbitrary, or an abuse of discretion. It acted within its lawful prerogatives.
The Bianao v. Darien, Cause of Action
The Appeal alleges:
6. In denying the Plaintiff's appeal, the Board acted illegally, arbitrarily and in abuse of the discretion vested in it in that:
(a) . . .
(b) . . .
(c) The Board is estopped from enforcing section 407 of the zoning regulations of the Town of North Stonington due to a long-standing pattern of conduct permitting year round residence proscribed by said regulation and for administering a policy, unsupported by any provision of the regulations, exempting property from the provisions of Section 407 if a lot upon which a residence is situated in the seasonal overlay zone consists of more than 80,000 square feet, which policy has been enforced by Notice of Violation of the Zoning Officer of North Stonington which is the subject of this appeal.
(d) The Board denied plaintiff his right of due process and equal protection afforded him under the Constitution of the United States and the State of Connecticut by administering a policy, unsupported by any provision of the regulations, exempting property from the provisions of Section 407 if a lot upon which a residence is situated in the seasonal overlay zone consists of more than 80,000 square feet, which policy has been enforced by Notice of Violation of the Zoning Officer of North Stonington which is the subject of this appeal.
(e) The regulation, Section 407 of the North Stonington Zoning Regulations is confiscatory and arbitrary as applied to plaintiff due to the Board's administering a policy, unsupported by any provision of the regulations, exempting property from the provisions of Section 407 if a lot upon which a residence is situated in the seasonal overlay zone consists of more than 80,000 square feet, which policy has been enforced by Notice of Violation of the Zoning Officer of North Stonington which is the subject of this appeal.
Appeal, March 1, 2005, ¶ 6, pp. 2-3.
Egner claims "[a] lot in the seasonal use overlay zone that is 80,000 or more square feet has been determined by the zoning enforcement officer not to be subject to the seasonal use restrictions." Plaintiff's Brief On Appeal From Zoning Board Of Appeals, February 28, 2006, p. 4. [110] "The Board has not provided any legal opinion or citation to its regulations that support an0 exemption of lots of more than 80,000 square feet from the seasonal use restrictions in the overlay zone." Id., 6. Egner contends "the town has determined that the seasonal use restrictions do not apply to lots in the seasonal use overlay zone that are at least 80,000 square feet." Id., 10. "The exemption of lots of 80,000 square feet is but another example of the arbitrary and capricious application of the North Stonington zoning regulations to properties in the seasonal use overlay zone." Id., 11.
The plaintiff says the defendant Board is estopped from enforcing Section 407, and has "denied plaintiff his right of due process and equal protection by administering a policy exempting property from the provisions of Section 407 if a lot . . . situated in the seasonal use overlay zone consists of more than 80,000 square feet." Appeal, March 1, 2005, ¶ ¶ 6(c) and 6(d), pp. 2-3. Plaintiff also alleges "Section 407 is confiscatory and arbitrary as applied to plaintiff due to the Board's administering a policy . . . exempting property from the provisions of Section 407 if a lot upon which a residence is situated in the seasonal use overlay zone consists of more than 80,000 square feet . . ." Id., ¶ 6(e).
These claims, estoppel [¶ 6(c)], due process [¶ 6(d)] equal protection [¶ 6(d)], and arbitrary and capricious action [¶ 6(e)] are predicated on a claimed policy "exempting property from the provisions of Section 407 if a lot . . . situated in the seasonal use overlay zone consists of more than 80,000 square feet." These claims must be denied for a variety of reasons.
None of these claims were presented to the defendant Board. They first appear in the Appeal filed in this court. The record before the Board does not contain even a mention of any policy or the like exempting property from the provisions of Section 407 if a lot upon which a residence is situated in the seasonal use overlay [area] consists of more than 80,000 square feet. Nothing was presented to the board about lots of 80,000 or more square feet. There was no evidence presented to the Board to support these claims. No argument was presented to the Board concerning these claims. There is nothing in the record to show these claims were considered by the Board. The court concludes the Board did not decide these claims.
This is an appeal from the decision of the Board pursuant to C.G.S. § 8-8. As such, this court can only review the action of the Board; such review being based on the record before the Board. Since these claims were not presented to or decided by the Board, they are not properly before the court. Any relief sought from this court based on these claims must be denied.
In this court, Egner moved pursuant to C.G.S. 8-8(k) to "allow evidence in addition to the contents of the record to be presented which is necessary for the equitable disposition of this appeal." Motion To Present Evidence In Addition To The Contents Of The Record, August 19, 2005, p. 1. [105] In the motion, the plaintiff states:
Plaintiff has alleged in his appeal that the defendant North Stonington Zoning Board of Appeals acted illegally, arbitrarily and in abuse of the discretion vested in it, in that Defendant is estopped from enforcing the1 restrictions of said Seasonal Use Overlay Zone, due to a long-standing pattern of conduct permitting year round residence in said zone. North Stonington has failed to enforce the regulation creating the Seasonal Overlay Zone for forty years and has instead granted variances, created lifetime exemptions and exempted properties in the Seasonal Overlay Zone if the lot upon which a residence is situated is 80,000 square feet or more, which is not provided for in the North Stonington Zoning Regulations. The enforcement of the regulation creating the Seasonal Overlay Zone against the plaintiff is, as alleged in plaintiff's complaint, a denial of his right of due process and equal protection and is confiscatory and arbitrary as applied to plaintiff. The record in this matter does not contain the evidence and information necessary for an equitable disposition of this appeal.
Motion To Present Evidence In Addition To The Contents Of The Record, August 19, 2005, pp. 1-2. [105] The court (Hurley, J.T.R.) granted the motion.
The relevant statute, C.G.S. § 8-8(k), provides:
The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it, pursuant to section 8-7a, or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. C.G.S. § 8-8(k)
Egner expressly relied on the second ground only, the additional evidence is "necessary for the equitable disposition of the appeal."
A section of Egner's brief is entitled: " The Board has denied Plaintiff his right to due process and equal protection." Plaintiff's Brief On Appeal From Zoning Board Of Appeals, February 28, 2006, p. 11. Egner argues therein:
The plaintiff claims that the enforcement of the seasonal use overlay zone restriction against him is a denial of his due process rights and equal protection under the law.
. . . mere laxity in the administration of the law, no matter how long continued, is not and cannot be held a denial of the equal protection of the law. To establish arbitrary discrimination inimical to constitutional equality, there must be something more, something which amounts to an intentional violation of the essential principle of practical uniformity. (Citations omitted.) For the plaintiffs to prevail, they must "show a pattern of discrimination consciously practiced." (Citations omitted.) [Internal quotation marks omitted.]
Bianco v. Darien, 157 Conn. 548, 254 A.2d 898, pp. 903-04.
In addition to the laxity of administration of the law set forth in the proceeding [Sic] section of this brief there has been and continues to be a pattern of discrimination consciously practiced. In addition to a history of granting variances to property owners similarly situated to plaintiff, there remains the special treatment of particular property owners explicitly stated in the Policy Statement (Record 8 Exhibit G) resulting, for example, in the2 Temporary Year Round Use granted to Mr. and Mrs. Lowy, and on a much larger scale, in the exemption of lots of 80,000 or more square feet from the restrictions of the seasonal use overlay zone. This is a clear pattern of discrimination consciously practiced. New homes are being permitted to be built on lots of over 80,000 square feet in the seasonal use overlay zone around Blue Lake and Billings Lake. Notices of violation are not being given to year round residents with lots of over 80,000 square feet in the seasonal use overlay zones. The discriminatory treatment of plaintiff in comparison to the treatment of property owners of these larger lots is not supported by the North Stonington Zoning Regulations, as discussed in the previous section. [Internal quotation marks omitted.]
Plaintiff's Brief on Appeal from Zoning Board of Appeals, February 28, 2006, pp. 10-11. [110]
During the oral argument before this court, Egner vigorously reiterated this position:
Probably the biggest issue in this case is that the Town of North Stonington is saying that if you have a two acre lot, which is the minimum requirement, the zone for a lot, you're then exempt from the seasonal use. They're allowing as an exception to the seasonal use limitation lots of more than two acres or more. And that testimony was elicited to show that the Town of North Stonington has made a determination that they want to eliminate the small lots. Even though they're permitted under the zoning, they decided they wanted to see larger lots, more taxes as a result. And I have his quote in my brief, Your Honor. Transcript of Court Proceeding, October 27, 2006, pp. 9-10.
And I think, Your Honor, the most significant example of discrimination which has no support in the regulations or otherwise is the determination by the enforcement officer, it's in his deposition, and apparently the policy of North Stonington that has been determined by the planning and zoning commission to exempt lots of more than two acres.
There is nothing in the regulations that exempts those — properties from the seasonal use limitation. The regulations that pertain to the seasonal use limitation, the only mention is that the lot must be at least 20,000 square feet. There is nothing that says that a property that is more than two acres will not be subject to the seasonal use limitation. Transcript of Court Proceeding, October 27, 2006, pp. 14-15.
It is clear from Egner's brief and from his stance at oral argument before this court that the additional evidence was presented to the court in order to establish his "arbitrary discrimination inimical to constitutional equality" cause of action as recognized in Bianco v. Darien, 157 Conn. 548, 559-60 (1969).3
Bianco v. Darien was not an appeal from an action of the zoning board of appeals pursuant to C.G.S. § 8-8. Bianco was an action for an injunction restraining the defendants from interfering with the plaintiffs' garbage collection business on their premises. The defendants were the Town of Darien and its Building and Zoning Inspector. The zoning board of appeals was not a party. A-487 Supreme Court Record and Briefs, December Term 1968, p. 3
Section 8-8(k), and specifically its "additional testimony is necessary for the equitable disposition of the appeal" provision, cannot and do not transmogrify this statutorily created administrative appeal into an equitable action for injunctive relief such as that in Bianco v. Darien. The language in § 8-8(k), "additional testimony is necessary for the equitable disposition of the appeal," does not enlarge the jurisdiction of the zoning board of appeals or this court.
The court holds it does not have jurisdiction or authority to determine whether Egner has been subject to "arbitrary discrimination inimical to constitutional equality."
These claims, estoppel, due process, equal protection, and arbitrary and capricious action predicated on the claimed policy "exempting property from the provisions of Section 407 if a lot . . . situated in the seasonal use overlay zone consists of more than 80,000 square feet" are equitable causes of action. As was held above, see page 20, equitable claims should not be decided by a zoning board of appeals but by a court of law. Bianco v. Darien, 157 Conn. 548, 554-55 (1969); Collins Group, Inc. v. Zoning Board of Appeals, 78 Conn.App. 561, 581 (2003).
Two recent cases, read in tandem, hold that the superior court in an administrative appeal does not have jurisdiction or authority to decide issues which the administrative authority had no authority or jurisdiction to decide. Fullerton v. Administrator, Unemployment Compensation Act, 280 Conn. 745 (December 26, 2006) and Rayhall v. Akim Co., 263 Conn. 328 (2003).
Fullerton was an appeal from the employment security review board. Rayhall was an appeal from the Workers' Compensation Review Board. In both cases, a constitutional issue arose in the proceedings before the respective administrative boards. In both cases the administrative board had not decided the constitutional issue. In both cases the question arose whether the court on appeal could decide the constitutional issue which the agency appealed from had not decided because the agency had no jurisdiction to do so.
Appeals from the Workers' Compensation Review Board are taken to the Appellate Court, C.G.S. § 31-301b. Appeals from the unemployment security review board are taken to the superior court, C.G.S. § 31-24gb.
The Supreme Court described the interplay of its Fullerton and Rayhall decisions:
In Rayhall, the issue was whether this court had jurisdiction in an administrative appeal from the workers' compensation review board to consider a constitutional challenge to the validity of a statute that was not part of the workers' compensation scheme when the compensation review board itself lacked jurisdiction to hear the claim. See Rayhall v. Akim Co., supra, 263 Conn. 338. We concluded that § 31-301b provided a jurisdictional basis to consider the challenge because that statute provides that "[a]ny party aggrieved by the decision of the Compensation Review4 Board upon any question or questions off law arising in the proceedings may appeal the decision of the Compensation Review Board to the Appellate Court. (Emphasis added.) General Statutes § 31-301b; see Rayhall v. Akim Co., supra, 339-40. The statutory language regarding workers' compensation thus expressly permits the court to consider those issues actually decided by the compensation review board and those issues that present themselves in the proceedings or become operative as a result of the compensation review board's decision. See Rayhall v. Akim, Co., supra, 340.
There is no analogous provision in the unemployment compensation scheme. An appeal to the Superior Court from a decision of the board is permitted pursuant to General Statutes § 31-249b, which simply provides that [a]t any time before the board's decision has become final, any party, including the administrator, may appeal to the superior court . . .
There is no language in this or any other unemployment compensation statute suggesting that the court may hear claims on appeal from the board over which the board lacks jurisdiction. Accordingly, Rayhall does not support the plaintiffs' view that the trial court had subject matter jurisdiction to consider their constitutional and statutory claims regarding the validity of the challenged regulation.
"The judgments are reversed and the cases are remanded with direction to dismiss the plaintiffs' appeals. In this opinion the other justices concurred." Fullerton v. Administrator, Unemployment Compensation Act, 280 Conn. 745, 762-63 (December 26, 2006).
The court has held above that the zoning board of appeals did not have jurisdiction to decide plaintiff's Bianco v. Darien equitable claim that the seasonal use regulations were applied arbitrarily and in a discriminatory manner inimical to constitutional equality.
Since the zoning board of appeals lacked jurisdiction to decide these claims, this court is likewise constrained. The court has no jurisdiction or authority to decide plaintiff's Bianco v. Darien cause of action in the context of this appeal pursuant to C.G.S. § 8-8.
Egner seeks to disembowel the Seasonal Use Overlay Area regulations. The sole defendant in this appeal is the zoning board of appeals. The real parties in interest here are the Town of Stonington and the Planning and Zoning Commission. Without these necessary parties the court should not decide the "biggest issue in this case," i.e., "if you have a two acre lot . . . you're then exempt from seasonal use" restriction.
The court believes it does not have jurisdiction to decide plaintiff's Bianco v. Darien cause of action. However, the court is not as clear on this as it would like. Therefore, to save the parties and the court the time, expense, and delay which would follow if this court is found to have jurisdiction, the court will5 consider the Bianco v. Darien issue. In doing so, the court does not impose any further burden on the parties; the court decides the issue on the record already established before the board and in this court.
See Justice Borden's concurrence in Giaimo v. New Haven, 257 Conn. 481, 516 (2001).
Egner's Bianco v. Darien cause of action is based on Egner's factual claims that (1) a history of granting variances to property owners similarly situated to the plaintiff, (2) the special treatment of particular property owners explicitly stated in the Policy Statement (Record 8 Exhibit G) resulting, for example in the `Temporary Year Round Use' granted to Mr. and Mrs. Lowy and (3) on a much larger scale, in the exemption of 80,000 or more square feet from the restriction of the seasonal use overlay zone. "This is a clear pattern of discrimination consciously practiced. New homes are being permitted to be built on lots of over 80,000 square feet in the seasonal use overlay zone around Blue Lake and Billings Lake. Notices of violation are not being given to year round residents with lots of over 80,000 square feet in the seasonal use overlay zones. The discriminatory treatment of plaintiff in comparison to the treatment of property owners of these larger lots is not supported by the North Stonington Zoning Regulations, as discussed in the previous section." Plaintiff's Brief On Appeal from Zoning Board Of Appeals, February 28, 2006, p. 12. [110.]
The court finds there is no credible history of variances being granted for year-round use to property owners similarly situated to plaintiff. The court finds that no variances by the zoning board of appeals have been granted for year-round use since at least 1997. Egner agreed this was true. Transcript of Court Proceedings, October 27, 2006, p. 56. The parties so stipulated. Id., 57. There was testimony presented to the board and the court that variances which allowed year-round use had been granted by the board in years past i.e., before 1997. There was no evidence of the number of such variances. No documentary evidence was presented on even one such case. The court believes such evidence necessary for the court to find that variances allowing year-round use were granted to property owners similarly situated to plaintiff. The evidence of the claimed variances in the main came from the present zoning enforcement officer testifying about events which occurred before he held that position. His testimony on this subject was hearsay. Neither he nor anyone else testified about the number of such variances. The court would need specific evidence at least consisting of the record of the proceedings of the zoning board of appeals in each instance in which plaintiff claims year-round use variances were granted to property owners similarly situated to the plaintiff. The court did not have evidence of this quality that year-round use variances had been granted improperly in such numbers as to support a conclusion that arbitrary discrimination inimical to constitutional equality had been established. Plaintiff did not present evidence sufficient to establish his factual allegation that there was a history of granting year-round use variances to property owners similarly situated to plaintiff. Further, the court finds that the town attorney advised the board some ten years ago that variances for year-round use should not granted. Whatever had been done in this regard before was stopped.6 The court finds that there is no history of special treatment of particular property owners being allowed year-round use. Egner makes reference to the "Policy Statement (Record 8 Exhibit . . ." This is a document distributed by the Planning and Zoning Commission in October 2004 regarding "Seasonal Use Regulations and Enforcement . . ." The pertinent part reads:
It is the consensus of the Commission that the current regulations and enforcement procedures are consistent with the purpose of the Seasonal Use Overlay Zone and the Plan of Conservation and Development. The Commission is committed to achieving the important land use and public health goals the Seasonal Use Overlay Zone regulations are designed to accomplish. Therefore, the investigation and enforcement process in which Mr. Grimord has been involved will continue. Under that process, each property in the zone has been and will be treated according to the facts pertaining to its historical and current uses. The Commission recognizes that individual circumstances might call for it to consider different remedies for particular properties found to be in violation and not found to be legal, nonconforming uses. It is willing to work with individual property owners in that regard, but cautions them to be aware that the Commission's ultimate goal is compliance with the regulations throughout the zone. Policy Statement, Planning and Zoning Commission, 10/08/04. ROR 8, Exhibit G.
The court finds nothing untoward in this statement. It says no more than that the planning and zoning commission was willing to work with the owners of properties not permitted year-round use. It specifically cautioned "the Commission's ultimate goal is compliance with the regulations." Nothing in the Policy Statement hints that the commission would allow year-round use of properties in violation of the Seasonal Use Overlay Area regulations.
The only evidence of "special treatment of property owners similarly situated to the plaintiff" was the temporary year-round use granted to a Mr. and Mrs. Lowy. The Lowy's property had code compliant water supply and septic systems. The Lowys agreed to pump the septic system annually. They also agreed to install water saving devices, not to have washing machines or disposals, nor to have additional bedrooms. Agreement to Terminate Zoning Violation At and to Allow Temporary Year Round Use of 106 Lakeside Drive, Exhibit 37 to Deposition of Craig Grimord. The court gathers that the Lowys are quite elderly and out of humanitarian compassion the planning and zoning commission granted them a lifetime year-round use. The treatment of the Lowys contributes little to proving that the seasonal use restrictions have been applied arbitrarily and discriminately in a manner inimical to constitutional equality.
Plaintiff's principal claim is that the seasonal use restrictions should be, but have not been, applied to lots of 80,000 or more square feet located in the Seasonal Use Overlay Area.
This position is based on plaintiff's misreading of the regulations.
All of the Seasonal Use Overlay Areas are in an R-80 zone.7
The Seasonal Use Overlay Areas include properties near Blue Lake, Wyassup Lake, and Billings Lake.
Plaintiff contends that Section 407 of the zoning regulations, the principal Seasonal Use Overlay Area regulation, totally supersedes the regulations of the underlying R-80 zone. According to Egner, no property within the Seasonal Use Overlay Area may be used year-round unless it had been used year-round before May 1964. Apparently this position is based on his reading of section 407. But section 407 is silent as to year-round use; it contains no express prohibition of year-round use. It permits seasonal use "on lots [which] existed before the date of this revision of Regulations, and the lots and principal structure meet the requirements indicated in Section 502.10 and 503.5." Zoning Regulations, § 407. Section 407 does not flat-out prohibit year-round use in the Seasonal Use Overlay Area.
The properties in the Seasonal Use Overlay Area are also in the R-80 zone. Within the R-80 zone, single-family residences may be built on any lot having a minimum of 80,000 square feet. Moreover, in the Seasonal Use Overlay Area, the Regulations, namely §§ 305.3 and 407, specifically permit seasonal use of lots existing before May 1964 which are at least 20,000 square feet in area. Nothing in the Regulations, including those concerning the Seasonal Use Overlay Zone, prohibits the construction of single-family, year-round residences in the Seasonal Use Overlay Area provided the property has an area of at least 80,000 square feet.
Egner states:
The Board has not provided any legal opinion or citation to its regulations that support an exemption of lots of more than 80,000 square feet from the seasonal use restrictions in the overlay zone. An opinion of the North Stonington town attorney in 1997 in fact states otherwise. "The zoning regulations expressly distinguished between seasonal and year-round dwellings and permits seasonal use only on the lots in the Seasonal Use Area Overlay Zone." (Deposition of Craig Grimord, Plaintiff's Exhibit 32.) A document entitled "Overview of North Stonington Zoning" distributed with copies of the North Stonington Zoning Regulations states: "More than one zoning district may exist in an overlay area; however, the land use8 requirements of the overlay area always supercedes those of the zoning districts within it." (Deposition of Craig Grimord, Plaintiff's Exhibit 14.) Plaintiff's Brief On Appeal From Zoning Board Of Appeals, February 28, 2006, p. 6. [110.]
Egner reads Attorney Wilson's statement, "The zoning regulations . . . permit[s] seasonal use only on the lots in the Seasonal Use Area Overlay Zone" to mean that only seasonal use, and no other use, is allowed in a Seasonal Use Overlay Area.
Support for this idea is mined from two sources. A document entitled "An Overview of North Stonington Zoning" was distributed briefly with copies of the North Stonington Zoning Regulations. It contains a statement: "More than one Zoning District may exist in an Overlay Area; however the land use requirements of the Overlay Area always supersedes those of the Zoning Districts within it." Exhibit 41, Deposition of Craig Grimord, November 10, 2005. In 1997, the attorney for the Planning and Zoning Commission wrote its Chairman regarding the Seasonal Use Overlay Area. That letter contained a statement: "The zoning regulations expressly distinguish between seasonal and year-round dwellings, and permits seasonal use only on the lots in the Seasonal Use Overlay Zone." Letter, Attorney Thomas B. Wilson to Arthur Pintauro, Chairman, Planning and Zoning Commission, February 13, 1997, pp. 1-2. Exhibits 32 and 40, Deposition of Craig Grimord, November 10, 2005. See also, Plaintiff's Brief on Appeal From Zoning Board of Appeals, February 28, 2006, p. 6. [110.]
First, the court notes that the "Overview of North Stonington Zoning" does not have the force of law. It apparently was distributed briefly "to familiarize the public with land use zoning in North Stonington." It contains a statement in its introductory paragraph that it is NOT part of the zoning regulations "and has no force of law." Exhibit 41, Deposition of Craig Grimord, November 10, 2005.
The statement in the Overview: "the land use requirements of the Overlay Area always supersedes those of the Zoning Districts within it" is a correct statement which Egner misconstrues. The Seasonal Use Overlay Area regulations do not completely negate the regulations of the underlying R-80 zone. The correct meaning of the sentence is that when there is a conflict between the Seasonal Use Overlay Area regulations and the R-80 regulations, the Seasonal Use Overlay Area regulations prevail.
The statement in Attorney Wilson's letter, "The zoning regulations expressly distinguish between seasonal use and year-round dwelling, and permits seasonal use only on the lots in the Seasonal Use Overlay Zone" can be construed two ways. The first is that only seasonal use, and no other use, is allowed in the Seasonal Use Overlay Area, i.e., year-round use is not permitted in Seasonal Use Overlay Area. Egner says this is the correct construction. The second interpretation is that only in the Seasonal Use Overlay Area is seasonal use expressly permitted; year-round use is not barred in the Seasonal Use Overlay Area.
For the reasons that follow, the court holds that the second interpretation of Attorney Wilson's letter correctly construes the zoning regulations.
Three regulations address the Seasonal Use Overlay Areas:
305 Restrictive Overlay Areas. Overlay areas are especially defined areas of the Town in which there are specific restrictions or qualifications as to permitted use. The areas so defined may encompass more than one zoning district, and are delineated by an overlay to the Zoning Map.
305.3 SU Seasonal Use Overlay Area. This overlay area concerns the previously permitted residential-seasonal zoning district in which seasonal use was permitted but is not now provided for in this revision to these Regulations. The purpose of the overlay area is to identify areas of the Town9 in which seasonal use is permitted on qualified lots of at least 20,000 square feet. See Section 407 for qualifications on use.
CT Page 3279
407 Seasonal Use Overlay Area. Seasonal use of properties within this overlay area is permitted provided the lots existed before the date of this revision of these Regulations, and the lots and principal structure meet the requirements indicated in Section 502.10 and 503.5. Permitted use is seasonal; that is, occupancy is limited to a maximum of 6 months in any one year.
There are three Seasonal Use Overlay Areas, one each adjacent to Blue Lake, Wyassup Lake, and Billings Lake. As of May 1964, when the present zoning revision was adopted, many properties near these lakes were quite small. Most, if not all, were used only seasonally.
Section 305.3 of the Zoning Regulations enlightens on the origins and purposes of Seasonal Use Overlay Areas:
305.3 SU Seasonal Use Overlay Area. This overlay area concerns the previously permitted residential-seasonal zoning district in which seasonal use was permitted but is not now provided for in this revision to these Regulations. The purpose of the overlay area is to identify areas of the Town in which seasonal use is permitted on qualified lots of at least 20,000 square feet. See Section 407 for qualifications on use.
From the first sentence, it is clear the Seasonal Use Overlay Areas were established to accommodate those owners of properties of lots having less than 80,000 square feet in the former residential-seasonal zoning district. Many of the lots near the lakes had far less area than 80,000 square feet. Absent the new Seasonal Use Overlay Area regulations, the lots in the new Seasonal Use Overlay Area would be subject solely to the R-80 zone regulations. Lots could not be used for any residential use if the area of the lot was less than 80,000 square feet. The Seasonal Use Overlay Area regulations permitted seasonal use of qualified lots.
The court notes that Egner never mentioned § 305.3 in his brief or in his argument before this court.
Unless it could be established that the lot had been used for residential use before May 1964, a non conforming use.
Egner says the zoning regulations, and particularly § 407, permit only seasonal use in the Seasonal Use Overlay Areas and prohibit all other uses in the Seasonal Use Overlay Areas no matter what the size of the lot or lots.
Zoning regulations are municipal legislative enactments. Under our law, the interpretation of zoning regulations involves the principles of statutory construction. Aid in determining the meaning of zoning regulations can be gained from the words used in the regulations, the circumstances surrounding the enactment, the public policy they were designed to implement, and the interplay of all the regulations governing the same general subject matter. Barbieri v. Planning and Zoning Commission, 80 Conn.App. 169, 174 (2003).0
Section 305.3 states the legislative reason for the creation of the Seasonal Use Overlay Area. Evidence was presented to the board of like import. The lots in the areas surrounding the several lakes were generally very small and any buildings thereon were relatively small and used only during the summer season. In order to accommodate the owners of these lots, the Seasonal Use Overlay Areas were established. See Transcript of Board Proceedings, February 8, 2005, pp. 16-18. See also Memorandum dated 02/05/05 from Craig Grimord, Senior Planner and Zoning Enforcement Officer, to Zoning Board of Appeals. ROR Item 8.
Similar evidence was presented to this court. Letter, Attorney Thomas B. Wilson to Arthur Pintauro, Chairman, Planning and Zoning Commission, February 13, 1997, pp. 1-2. Exhibits 32 and 40, Deposition of Craig Grimord, November 10, 2005.
Zoning regulations are to be read together. If Egner's construction were correct, there would be no need for the overlay area device. There would be no reason for having the overlay area applicable to parts of another zone. If the overlay area regulations completely supercede all the regulations of the underlying zone, each overlay area would be a separate and distinct zone and have appropriate regulations defining and applicable to it. Implicitly, the regulations of the underlying zone have continued vitality except where conflicted with the overlay area regulations.
Section 305 of the Zoning Regulations, Restrictive Overlay Areas, provides that "[o]verlay areas are especially defined areas of the Town in which there are specific restrictions or qualifications as to permitted use." Zoning Regulations, § 305. The Seasonal Use Overlay Areas are examples for which there are specific qualifications as to permitted use. A relevant regulation specifically says: "The purpose of the overlay area is to identify areas of the town in which seasonal use is permitted on qualified lots . . ." [Emphasis added.] Zoning Regulations, § 305.3. The specific use in the seasonal use overlay areas is seasonal use. To qualify, "the lots [had to] exist before the date of this revision to these Regulations, and the lots and principal structure [have to] meet the requirements of Section 502.10 and 503.5." Zoning Regulations, § 407. Section 502.1 requires a minimum lot area of 20,000 square feet, a minimum width of 100 feet, frontage on a public road, and front, side, and rear setbacks of 40, 20, and 25 feet respectively. Zoning Regulations, § 502.10.
Thus, the specific qualifications for seasonal use in the Seasonal Use Overlay Areas are (1) the lots existed before the adoption of the Seasonal Use Overlay Area regulations, and (2) the 20,000 square feet area requirement, and the frontage and setback requirements.1
The Seasonal Use Overlay Zone has specific qualifications as to permitted use, i.e., seasonal use. On the other hand, the VP Village Preservation Overlay Area contains specific restrictions as to permitted use. Zoning Regulations, § 305.1. That section says: "See Section 405 for restrictions regarding use."
Evidence of the circumstances existing at the time the Seasonal Use Overlay Areas were established was presented to the board and this court. At that time, the new regulations established the R-80 Rural Preservation District. A major objective was to maintain the "density of development in this area." Zoning Regulations, § 304.3. The minimum lot size for residential use was 80,000 square feet. It was realized that there were many lots in the lake areas of town with established lots of far less area than 80,000 square feet. All these lots could not be used for residential use because they did not meet the minimum 80,000 square foot requirement of the R-80 zone. So the new regulations included Seasonal Use Overlay Areas. These overlay areas overlaid the existing underlying R-80 zone. Many, perhaps most, of these lots had no buildings on them. Such buildings as did exist were used only during the summer season.
Nothing in the new regulations nullified the underlying R-80 zone regulations. The Seasonal Use Overlay Area regulations added the provisions for seasonal use on those lots in the Seasonal Use Overlay Area and the R-80 zone which "existed before the date [May 21, 1964] of this revision of the regulations and the lots and principal structure meet the requirements indicated in Section 502.10 and 503.5." Zoning Regulations, § 407.
Nothing in the regulations even hints that the R-80 regulations are of no force or effect in those parts of the R-80 zone which are overlaid by a Seasonal Use Overlay Area. The regulations do not say the Seasonal Use Overlay Area regulations supersede the R-80 regulations. Thus, a major premise of plaintiff's argument, "the use land requirements of the [Seasonal Use] Overlay Area always supersede those of the Zoning Districts within it," is not countenanced by the zoning regulations.
The court holds that the Seasonal Use Overlay Area regulations and those of the R-80 zone coexist and are of equal vitality in the Seasonal Use Overlay Areas. The R-80 zone requirement that residential use requires a minimum lot area of 80,000 square feet remains in full force and effect in the Seasonal Use Overlay Areas. Lots of at least 80,000 square feet area are not effected by the Seasonal Use Overlay Area regulations. Residential use, including year-round use, is permitted on lots of at least 80,00 square feet located in the Seasonal Use Overlay Area. The court rejects plaintiff's contention that seasonal use, and seasonal use only, is permitted in the Seasonal Use Overlay Areas. Seasonal use is permitted in the Seasonal Use Overlay Areas, despite the 80,000 square foot requirement for residential use of the underlying R-80 Zone, on those lots which do not meet the 80,000 square foot requirement provided such lots are qualified under the Seasonal Use Overlay Area Regulations, i.e., the lots existed before the adoption of the present zoning regulation in May 1964 and the lots and building meet the requirement indicated in Section 502.10 and 503.5, i.e., the 20,000 square foot area requirement, and the frontage and setback requirements.
The court holds that lots with an area of at least 80,000 square feet located in a Seasonal Use Overlay Area are not subject to the Seasonal Use Overlay Area regulations. The court expressly rejects Egner's contention that North2 Stonington had and administered "a policy . . . exempting property from the provisions of Section 407 if a lot upon which a residence is situated in the seasonal use overlay zone consists of more than 80,000 square feet."
For the reasons set forth above, the plaintiff Egner's appeal is dismissed.