Opinion
HHBCV196051459
01-15-2020
Liam T. Mitchell et al. v. Berlin Zoning Board of Appeals
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Cordani, John L., J.
MEMORANDUM OF DECISION
John L. Cordani, Judge.
INTRODUCTION
This is an appeal from a final decision of the Berlin Zoning Board of Appeals (Board) rejecting an appeal from Liam T. Mitchell and Cynthia M. Mitchell (plaintiffs) and allowing the enforcement of a cease and desist order issued by the Town of Berlin Zoning Enforcement Officer (Zoning Officer) on December 10, 2018 (Cease and Desist Order). The Cease and Desist Order found that the plaintiffs’ basement at 1005 Kensington Road, Berlin, Connecticut was an unauthorized and unpermitted use of a basement apartment in an R-43 single-family zone.
FACTS AND PROCEDURAL HISTORY
The plaintiffs own a dwelling located at 1005 Kensington Road in Berlin (Dwelling). The plaintiffs’ Dwelling has structures in the basement, including plumbing, kitchen, bedroom and bathroom, which are capable of being used as an apartment (Basement Apartment). The record contains evidence supporting, and the plaintiffs assert, that the Basement Apartment has existed in the Dwelling since the 1950s. The plaintiffs assert that the Basement Apartment has essentially remained unchanged and has been continuously used since the 1950s.
When the Dwelling was built in the 1950s it was located in a farm zone which allowed occupancy by not more than two families. The plaintiffs assert that when the initial farm zone ordinance was changed to residential in 1962, the Dwelling with the Basement Apartment already existed and was in use. There is evidence in the record to support the foregoing assertions.
On December 10, 2018, the Zoning Officer issued the plaintiffs the Cease and Desist Order, finding the Basement Apartment to be an unauthorized and unpermitted use, and requiring the plaintiffs to cease use of the Basement Apartment as a separate apartment. The plaintiffs appealed the Cease and Desist Order to the Board. On February 26, 2019, the Board held a public hearing and denied the plaintiffs’ appeal, upholding the Cease and Desist Order. The plaintiffs then appealed the Board’s decision to this court.
The plaintiffs are classically aggrieved because the Cease and Desist Order, as upheld by the Board’s final decision, impairs the use of their Dwelling. Mr. Mitchell testified at the hearing on the merits that he and his wife have owned the Dwelling at all times relevant to this appeal and continue to own the Dwelling.
STANDARD OF REVIEW
This appeal is brought pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-183. Judicial review of an administrative decision in an appeal under the UAPA is limited. See Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000). "[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable ... Neither [our Supreme Court] nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact ... Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Id.
Section 4-183(j) provides in relevant part: "The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law: (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings."
Although the courts ordinarily afford deference to the construction of a statute applied by the administrative agency empowered by law to carry out the statute’s purposes, "[c]ases that present pure questions of law ... invoke a broader standard of review than is ... involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 716, 6 A.3d 763 (2010).
ANALYSIS
The plaintiffs appealed to the Board asserting that the Basement Apartment: (i) legally existed prior to the implementation of the residential zoning currently in effect, (ii) has been in continuous use as an apartment since the 1950s prior to the implementation of the current residential zoning ordinance, (iii) was known to the town since the 1950s when it was originally constructed, and (iv) is a permitted non-conforming use. The plaintiffs presented evidence to the Board supporting the foregoing assertions. The Board rejected the plaintiffs’ appeal. The plaintiffs then appealed the Board’s final decision to this court.
The plaintiffs have timely filed a brief supporting their appeal with this court. The defendant Board has not timely filed a brief with this court. The defendant Board has also not timely filed a complete copy of the record. The court issues this decision without considering the defendant’s brief which was filed about six weeks late and without requesting permission to make the late filing. This decision is also being made based upon the portion of the record that has been timely filed and was in the court records at the time of the hearing on the merits.
This appeal was filed on March 22, 2019. A proposed scheduling order was adopted by the court on April 15, 2019. The record was due to be filed by May 31, 2019. A partial record was timely filed but was known to the Board to be incomplete. As of the hearing on the merits, the missing portions of the record still had not been filed. With extensions, the defendant’s brief was due on November 27, 2019. The defendant filed its brief on the morning of the hearing (January 14, 2020) without asking permission to make a late filing.
The final decision of the Board denies the plaintiffs’ appeal without stating the Board’s reasons for its denial. It is the Board’s final decision that is being appealed to this court. Because the Board did not provide official reasoning for its decision, the court must review the record to discern whether a reasonable basis for the Board’s decision exists in the record. See Malone v. Zoning Board of Appeals, 134 Conn.App. 716, 723-24, 39 A.3d 1233 (2012). It was the Board’s responsibility to find the facts applicable to the situation and to apply the pertinent zoning law to the facts. See Caserta v. Zoning Board of Appeals, 226 Conn. 80, 90, 626 A.2d 744 (1993).
Here the record does not contain any specific facts officially found by the Board as a body and does not contain the specific reasons for the Board’s final decision as a body. The plaintiffs presented the Board with substantial evidence of a legal nonconforming structure and use. The Board did not properly consider and address the evidence of a legal non-conforming structure and use. A preexisting legal non-conforming use, if proven, would be an appropriate defense to, and would undermine, the Cease and Desist Order. See General Statutes § 8-2.
Questions asked and comments made by individual members of the Board are not facts found or reasons given by the whole Board as a body.
General Statutes § 8-2 generally authorizes zoning regulations but specifies that: "Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations ..."
This court finds that the Board has not properly considered the plaintiffs’ assertion and evidence of a preexisting legal non-conforming structure and use concerning the Basement Apartment. As such, the court remands this matter to the Board for further consideration. Upon remand, the Board should consider the evidence presented by the plaintiffs concerning the timing of the construction of the Basement Apartment in relation to the applicability of the zoning regulations as they changed over time. The parties may present new evidence at the remand hearing. If the Board determines that the Basement Apartment was initially constructed as a permitted legal structure and use, then the Board should further consider whether the Basement Apartment has remained so constructed and used over time. The Board should make reasonable inferences from the evidence presented. In considering the evidence presented, the Board should consider that the word "dwelling" at the time of the initial construction of this house provided for up to two families. Based upon the Board’s factual findings after further consideration at the remand hearing, using the evidence presented and reasonable inferences therefrom, the Board should then conclude whether the Basement Apartment is a preexisting legal nonconforming structure and use, or not. Only after determining and considering all of the foregoing, can the Board determine whether or not to uphold the Cease and Desist Order.
The current record contains evidence to support a finding that the structure of the Basement Apartment was legally constructed in the 1950s and has remained so over time. Concerning the use of the structure, reasonable inferences may be made, and consideration should be given to the regulatory definition of dwelling at the time that the Basement Apartment was originally permitted and constructed. However, the Board is the finder of fact here and may make any reasonable findings of fact that find substantial support in the evidence. In this regard, the Board is reminded of its statutory obligation as provided for in General Statute § 8-7(3).
ORDER
This matter is remanded to the Board for further consideration consistent with this decision.