Opinion
No. CV 03-0475239
January 7, 2004
MEMORANDUM OF DECISION ON HEARING HELD PURSUANT TO SECTION 8-8(N) OF THE GENERAL STATUTES
In this case a hearing was held before the court pursuant to § 8-8(N) of the general statutes. An appeal had been taken from the board's denial of a variance but the parties entered into a proposed agreement to settle the matter and withdrew the appeal. The statutory subsection in relevant part says that an appeal under § 8-8(N):
. . . shall (not) be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the Superior Court and such court has approved such proposed withdrawal or settlement.
The court will review the procedural and factual history of this matter. It will then discuss § 8-8(N) and what the cases indicate as to how it is to be applied. The court will then review what was said by neighbors and interested parties at the hearing required by § 8-8(N). It will then try to apply what it understands to be the appropriate statutory standards to determine whether the proposed settlement agreement should be approved by the court.
On March 14, 2003 an appeal was filed by the plaintiff against the Zoning Board of Appeals of Branford. The complaint alleges that the plaintiff owned property known as 102 Pine Orchard Road, a parcel of about 10.7 acres of which 4.3 acres are designated as inland wetlands.
The property is in a residential zone designated in the Branford Zoning Regulation as R-4. It is partially abutted on the east by property designated as "Reserved for Future Road Use" as indicated on the subdivision map known as "Knollwood Section One." This subdivision was accepted and approved by the town of Branford. The town assessor's map indicates this area is a roadway but the parcel was never conveyed to the town as part of the road system for the subdivision and has not been formally accepted as a street by the town.
The town's planning and zoning regulations provide that interior lots may be developed in an R-4 zone if a twenty-five-foot-wide fee strip is part of the lot and "extends to an accepted public street."
The plaintiff intends to develop this property by building four houses on town interior lots; two of the interior lots would utilize fee strips extending to the area designated as "Reserved for Future Road" on subdivision map. On January 28, 2003, the plaintiff applied to the zoning board of appeals for variance relief to "(1) vary section 25, schedule B, line 4 by reducing the frontage requirements in an R-4 zone from 110 feet to zero feet or (2) waive that portion of § 25.2.1(2) which requires a fee strip to "extend to an accepted public street" in order to allow the two interior lots to extend to, or abut, an area `Reserved for Future Road' as designated on the accepted division map" (par. 9 of complaint).
Three members of the board voted in favor of granting the variance and two voted against doing so but this was not a sufficient majority to permit the variance. The appeal was denied February 18, 2003 and the decision was published in a local paper on February 26, 2003. As noted appeal to the Superior Court was filed March 14, 2003.
The complaint sets forth several allegations to the effect that the board acted illegally, arbitrarily and in abuse of its discretion when it denied the variances. On April 29, 2003 the court entered scheduling orders for filing the answer and record and the parties' briefs. On May 13, 2000 the answer and a return of record were filed with the court. On June 23, 2003 a new scheduling order was entered extending the time within which the parties were to file their briefs. On. June 23rd the plaintiff and the defendant board through their attorneys filed a statement concerning mediation in which pursuant to § 8-8a of the general statutes they advised the court that they agreed to mediate the board's decision which was the subject of the appeal and that mediation may resolve the dispute.
What brings this matter to the court now is that according to representations by counsel for the plaintiff and the board after "considerable discussion" the parties to this dispute agreed to settle the matter and pursuant to the settlement the appeal was to be withdrawn. It was indicated that discussions were held between the attorneys and with the board regarding settling the matter and a proposed agreement was entered into between the litigants. The proposed settlement was read into the record. The proposed agreement referenced to the history of the dispute and why suit was filed. It then acknowledged that both parties recognized the burden would be upon the plaintiff in any litigation to show the board's action was illegal but also recognized that the plaintiff may have established a legal hardship and that statements made by board members at the hearing which resulted in the denial of the variance "could jeopardize the validity of the board's decision on appeal" and neither side could predict the outcome of the appeal. The proposed agreement then refers to the previously mentioned § 25.2.1(2) of the regulations and indicates the proposed agreement would rest on a variance to this regulation so as "to allow two interior lots located on the property known as 102 Pine Orchard Road to have a fee strip extend to an area designated as "reserved for future road" on an approved and accepted subdivision map of Knollwood Subdivision thereby eliminating the requirements that the 25 foot fee strip extend to an accepted public street for this property only." The proposed agreement goes on to say that upon granting of the variance the appeal would be withdrawn and the town would be provided by the plaintiff with a release of claim including any claim of right, or right to compensation arising by virtue of taking or confiscation of property. Plaintiff's counsel and counsel for the town signed the proposed agreement.
The court will now attempt to discuss whether the proposed agreement which the parties to the pending appeal seek to have approved should be approved pursuant to the present § 8-8(N) of the general statutes. Never adverse to repetition, the court will quote the language of that statutory subdivision once again:
(N) No appeal taken under subsection (b) of this section shall be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the Superior Court and such court has approved such proposed withdrawal or settlement.
In examining all the issues presented by this case and preliminary to such a discussion the court must first discuss what our Appellate Courts have said about the meaning and purpose of this statute.
The Appellate Courts have examined the legislative history of this provision and have given various descriptions of its purpose. In Sendak v. Ridgefield Planning and Zoning Commission, 7 Conn. App. 238 (1986), in footnote 1 described what was then this "recent legislation" and said that: "It recognizes both the legitimacy of settlement of zoning cases and the need for judicial scrutiny in order to avoid abuse of the process." In Levine v. Planning Zoning Commission, 25 Conn. App. 199 (1991), the court said the purpose of § 8-8(N) was to prohibit "`side' or secret settlements by the parties once there has been an appeal to the trial court . . . The purpose of the statute is to ensure that zoning matters can be scrutinized by the public by means of a public record." Commenting on the legislative history of the statute in footnote 10 the court in Willimantic Car Wash, Inc. v. Zoning Board, 247 Conn. 732 (1999), said that "the requirement of court approval was designed to guard against surreptitious dealings between zoning boards and applicants, to avoid frivolous appeals initiated for `leverage' and to ensure settlements are fair." In Brookridge District Assn. v. Planning Zoning Comm., 259 Conn. 607 (2002), the court referred to the foregoing language in the Willimantic Car Wash case and also said "that the legislature, in enacting (§ 8-8(N)) recognized the need to protect parties from fraud, collision or improper conduct and therefore, a hearing held pursuant to (§ 8-8N) is the proper forum for Brookridge to raise any allegations of fraud.
Given the purposes of § 8-8(N) the court must now address several questions. What notice must be given to abutting owners and other interested parties prior to the hearing before the court under the statute? Then the court must discuss the nature of the hearing to be held and the criteria the court must use in deciding whether or not to approve a proposed settlement. Finally, the court must of course decide whether given those criteria the proposed settlement should be approved.
(a)
The court will first address the issue of the required notice under § 8-8(N). Is such notice necessary, at what point in the litigation is it necessary, and of what must it consist?
From a due process perspective it has generally been said that "parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. Consequently, notice is an essential element of due process, inasmuch as the right to be heard, ensured by the guarantee of due process, has little reality or worth unless one is informed that a matter is pending and can choose for himself or herself whether to appear or default, acquiesce or contest," 16B Am.Jur.2d "Constitutional Law," § 931, pp. 533-34. But procedural due process "is required where it is designed to protect some liberty or property interest . . . The Fourteenth Amendment does not create protected property interest. Its purpose is to provide procedural safeguards to ensure that rights otherwise created are protected," Lai Chun Chan Jin v. Board of Estunate, 460 N.Y.S.2d 28, 31 (1983), aff'd., 478 N.Y.S.2d 859 (1984) (Ct of App.).
But it is not even necessary to get into a complicated discussion about whether the battery of cases regarding notice under the heading of procedural due process are applicable or controlling in the § 8-8(N) context. Given our Appellate Court's explanation of why the legislature adopted § 8-8(N) and how it is designed to protect the public against unfair and surreptitious agreements designed to avoid scrutiny by that public, the spirit of the statute itself mandates notice sufficient to accomplish the legislative purpose.
The question remains as to what point in the settlement process or the attempt to get any settlement approved, must notice be given and what type of notice. Section 8-8(N) does not specify any particular type of notice but if a statute is silent as to this matter it is generally held that the type of notice chosen will be upheld if the notice is "given in any form that is reasonably adapted to inform the public generally that the application (zoning matter) will be heard," Lai Chun Chan Jin, supra at 478 N.Y.S.2d page 861. Thus the court in Willimantic Car Wash, Inc. v. Zoning Board, 247 Conn. 732 (1992), reviewed the zoning statutes and said the role of the hearing required under § 8-8(N) is to respect and enforce the overall statutory scheme governing the zoning and planning process. The court said hearings "feature prominently in the zoning process because land use decisions are quintessentially decisions impacting the public." Because of this our statutory scheme "particularly provides for public hearings with substantial procedural safeguards." The court was referring to adequate notice because it then went on to review situations in the statutory scheme where people who might be affected by zoning regulations and decisions have a right to "register their approval or disapproval and to state their reasons therefore," id. p. 739. Thus, the court noted a municipality may not establish zoning regulations without the protection of a public hearing and § 8-3 provides that notice of a public hearing concerning this matter may be published in a newspaper having substantial circulation in the community. The court referred to § 8-7 which requires that "a local zoning board of appeals reviewing the decision of a municipal zoning officer must hold an open hearing"; the statute also provides that notice of the hearing may be given by a newspaper, generally pp. 739-40.
From the foregoing the court concludes that not only must notice of the time, date, and purpose of any court hearing under § 8-8(N) to determine whether a settlement should be approved be given but also notice should be given of board meetings where the proposed settlement is to be discussed and voted upon — public scrutiny is a great aid in discouraging collusion and surreptitious dealing.
Here the counsel for the board submitted a notice in a local paper to the effect that on September 16, 2003 the zoning board would meet "to consider pending litigation in regards to the property of William K. Reed." Papers attached to the newspaper notice indicate the chairman of the board, in requiring notice of the September meeting, ordered that the notice be published September 3rd and 10th for the September 16, 2003 meeting (these papers were not alluded to in the October 27, 2003 court hearing). At the October 27th hearing lawyers for the parties represented that the board discussed the proposed settlement in executive session at the September 16, 2003 meeting then the board went into open session "to vote on the desireability of resolving this matter by way of settlement."
As to the October 27, 2003 § 8-8(N) hearing now before the court notice of this hearing was published in the Branford Review on October 15, 2003 and in addition certified letters were sent to abutting owners and other interested parties before the hearing. Three people did not pick up their letters. One of the three, Mr. Cohen, spoke to the Board's attorney on Friday before this Monday October 27th hearing and she telecopied him a copy of the letter sent by certified mail. The notification letter informed these people of the date and time of the October 27th hearing with the exact location of the courtroom. It informed people that the hearing would delve into the proposed settlement agreement "relating to a variance for property located at 102 Pine Orchard Road, Branford." This notice also included a draft of the proposed settlement agreement.
A Mr. Cohen who appeared at the hearing and is apparently an abutting land owner asked the court to note that "the return date hasn't even come up yet for the post office to send anything back" with regard to the certified letter. He opined that if anyone was not in court for the October 27th hearing "it is very likely that they have not gotten notification or had a chance to get to the post office, yet." The court finds this position difficult to credit. The notification letter submitted to the court is dated October 15, 2003. The postal service green cards for certified mail all indicated that the date of delivery was October 16, 17, 18, 20, 21. Cards with no date of delivery were signed for, two of those three have a post office stamp with the dates October 16 on one and October 17, on the other. Mr. Cohen did not pick up his letter but a copy of the notice was sent to him before the hearing as noted. As to the two other people who did not pick up their notice the court has no reason to doubt counsel's representation that the letters were sent according to the pattern of the other letters. The court is writing this portion of the opinion on December 29, 2003. In the two months that have passed since the October 27, 2003 hearing no communication has been sent to the court from either of the two individuals who the town attorney identified as not picking up their certified letter.
Under all the circumstances the court concludes notice was adequate under § 8-8(N) of the general statutes. The court will now discuss the nature of any § 8-8(N) hearing.
(b)
As the court said in the Willimantic Car Wash case the statute "does not specify the nature of the hearing that it requires." 247 Conn. at page 737. Turning to the definition of "hearing" in Black's Law Dictionary the court said it is "a proceeding of relative formality . . . generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and evidence presented." The court went on to say that at the same time, the term `hearing' leaves room for flexibility in responding to variations in the required due process. Not all situations call for the same level of procedural safeguards," id. pp. 737-38.
As indicated in the previous discussion the Appellate Courts seem to agree that the following concerns which were predicates for passing the statute must be addressed at any hearing:
(1) The public scrutiny provided by § 8-8(N) hearings were designed to guard against surreptitious dealing between zoning boards and applicant. The court must assure itself that the proposed settlement was not motivated by collusion, fraud, or improper conduct.
(2) A court conducting such a hearing must satisfy itself that frivolous appeals are not filed in order to gain "leverage" before zoning boards.
(3) The court must assure itself that the proposed settlement is fair.
The first two criteria are fairly straightforward in setting guidelines. The last consideration must be examined further. Must a court conducting a § 8-8(N) hearing concern itself with whether a proposed settlement is "fair" to people directly affected by it — just abutting owners or others to be defined on a case by case basis? Should the court also consider some general public interest that might be impacted? To what extent should a court address the strength or weakness of the applicant's claim which is the subject of the appeal and which a board has agreed to settle? What does fairness really mean? These questions are difficult because the Appellate Courts have not had a chance to flesh out the considerations that must be taken into account in deciding whether a proposed settlement is fair under § 8-8(N), see concurring opinion of Justice Borden in Willimantic Car Wash, Inc., 247 Conn. at page 745 et seq.
In this court's opinion at least a case that preceded the effective date of the statute offers guidance in resolving the question of how and to what extent an § 8-8(N) trial court should address the fairness issue. That case is Sendak v. Ridgefield Planning and Zoning Commission, 7 Conn. App. 238 (1986). On the one hand there is a powerful interest in promoting the settlement of cases. In the ordinary civil case nonparties cannot, except in the most unusual circumstances, derail a settlement reached by adversary parties in litigation. On the other hand zoning cases are conducted in the context of a detailed statutory scheme. Therefore, there is a "need for protection of the integrity of the land use planning process. This interest derives from the recognition, that where an initially unsuccessful applicant before a planning commission (or this court might add before a zoning board charged with maintaining the integrity of zoning regulations) takes an appeal to the court, the applicant and the commission (board) could abuse the entire process by collusively stipulating to a judgment in the applicant's favor and thus, evade both judicial review and effective scrutiny by potentially aggrieved neighbors." 7 Conn. App. at page 243. The entire process could also be abused in situations where for example the granting of a variance would clearly interfere with some established public policy such as inland wetland regulations, pollution control, or flooding concerns.
One way to deal with the proper ambit of the task of trial courts in determining whether a proposed settlement is "fair" is to first say that if a claim of an applicant who has been denied a variance is so palpably devoid of merit that a reasonable zoning board would never consider granting it, this is some evidence and perhaps convincing evidence that any settlement in the applicant's favor is based on collusion, an abuse of the process, and even perhaps fraud. Perhaps a settlement cannot be considered "fair," if, for example, statutorily mandated environmental or flood control policies are ignored or unarguably threatened by a proposed settlement. A more difficult question is presented if at a § 8-8(N) hearing an abutting owner or even one who does not technically meet that definition presents persuasive evidence that a proposed settlement as to a particular piece of property would have a direct and harmful effect on his or her interests. Does that sanction an invitation to courts to examine the merits of the claim that led to the settlement? In any event how is harm defined — are we talking about considerations outside the zoning regulatory system? There is in fact an interest in promoting settlements so what does a trial court do if it can entertain these concerns especially as to the merits of the appeal? Does it order briefs prepared by non-parties wherein they must set forth how and to what extent their interest are adversely affected by a settlement? Can the court appoint a special master to investigate the claims revolving around the issue of substantive fairness? At what point would the trial court be usurping the discretion granted to local municipalities and boards in conducting their own affairs with regard to zoning? Later in this decision the court will discuss at greater length whether and to what extent it should examine the strength of the case on appeal in deciding whether it was "fair" for the board to have settled it.
(c)
The court will now discuss the various issues raised by people who appeared at the October 27th hearing and were opposed to the court approving this settlement. First, it should be noted that three people spoke against the settlement who were abutting land owners. Also, a member of the Branford Conservation Commission and an officer in Citizens for Branford's Environment joined the abutting land owners in opposing the settlement. Two people who were sent notice of this hearing did not pick up the certified mail, but fifteen others who were sent notice and signed for the mail either did not appear in court or chose not to speak. It should also be noted that the variance that would be granted by the proposed settlement was approved by the Inland Wetland authority according to counsel's representations which was not disputed at the hearing.
The court will discuss the positions taken by various people who spoke at the hearing in opposition to the proposal.
Mr. Iannuzzi was understandably concerned with the fact, according to his claim, that if the settlement were to go through and the variance were to be granted, a right of way on his property would be used to access the applicant's proposed subdivision; his property on the right of way would in effect become part of the subdivision. This gentleman's concerns are certainly valid but a zoning board or commission, not being courts of law cannot determine issues of title to land, see Cybulski v. Planning and Zoning Commission, 43 Conn. App. 105 (1996), Gagison v. Municipal Planning Commission, 10 Conn. App. 54 (1987), Dwyer v. Zoning Board of Appeals, 1997 Ct. Sup. 1545 (New Haven judicial district, Blue, J.). Mr. Iannuzzi's concerns could perhaps be addressed in a quiet title action which he would have to bring. All of this being the case the board here cannot be faulted for failing to take account of a question concerning title to property when it agreed to the proposed settlement — that decision had to be made only in the context of the zoning regulations and the appropriate discretion given under them to for example grant variances or agree to settlements of disputes with applicants for variances.
Mr. Iannuzzi also raised concerns about the fact that the settlement would bring about "hardship in the use of (his) property, condition of (his) property and value of (his) property." But beyond the statement of his concern, he offered no evidence or explanation as to why any of these concerns were true.
A gentleman named Cliff Cohen also addressed the court. He had some problems with the notice that was given which have previously been mentioned. He also expressed doubt about the strength of the applicant's case for a variance. The court will address this issue later in the decision; Mr. Cohen's remarks in this regard were brief.
Mr. Cohen's property abuts the subdivision which is the subject of the proposed settlement. He said his concerns were "about that road, about drainage issues, future development." The court asked Mr. Cohen how he claimed the proposed settlement adversely affected him and his enjoyment of his property. Mr. Cohen referred to a drawing of the area. He noted how quickly the land drops off into the wetlands. He said he has drainage issues already and "every time somebody in the neighborhood takes down a tree, I have additional drainage issues." Mr. Cohen, however, never explicitly explained how the development of the two interior lots would cause a drainage problem. Would any development on this subdivision cause drainage problems? Would any development on this subdivision cause drainage problems even if the variance were net to be granted? Are the interior lots in fact wooded? He expressed concern about wildlife but what wildlife would be threatened and to what extent were never really explained beyond the statement of the concern. As noted the Inland Wetland authority already has approved the proposed development according to counsel.
As to the concern for future development, such development cannot be blanketly prevented merely because it is perceived as having an adverse effect on certain property by the owner of the property. Furthermore, the proposed settlement has no precedential value as far as changing the zoning regulations of the town. The variance is limited to this particular piece of land and was necessitated by the peculiar circumstance that the 25-foot strip ran to an "approved road" but not one that was "accepted public street." As counsel for the applicant said the variance that would be granted under the proposed settlement "is specific to this particular piece of property where you'd have this very unusual situation where you have something that's been reserved for a road for forty years which abuts now on wetland property. So, its not something you're going to be able to do on every street corner. This is very specific to this piece of property."
Mr. Cohen was also upset with the notion that the parties could settle the matter between themselves and in effect reverse a decision originally made by the zoning board to deny the request for a variance. The settlement short circuited his ability to go back and contest this before the board. A party could threaten to go to court thereby achieve a settlement and short circuit the whole process. But the problem is that § 8-8(N) exists in a universe that values the desirability of settlements and courts are limited to the relief or review that can rationally be permitted under that statute in light of that policy.
A Mr. Vetrano also spoke in opposition to the settlement and said his "entire concern" was as to one of the proposed reasons for the variance advanced by the applicant. The attorney for the board pointed out that the variance pursuant to the agreement was not being granted on the grounds to which he objected.
Carol Hall also spoke against court approval of the proposed settlement. She is a member of the Branford Conservation Commission and is vice president of Citizens for Branford's Environment. Her basic position really seemed to be that there was not much merit to the applicant's request for a variance in the first place so that the settlement and the reasons for it are not worthy of credit. She did not allude to any threat to the environment, the wetlands or the public interest if the settlement were approved and the variance allowed; she did not speak to any burdens that would be placed on abutting landowners or indicate why the settlement would be unfair to them in the enjoyment of their property. She simply opined there was no basis to find hardship and thus granted a variance. In. fact Ms. Hall argues "the applicant is making an end run. A strategic move around the requirements for a variance by threatening litigation, and therefore receiving a settlement that doesn't require him to prove hardship." She noted that the applicant Reed bought the property a year or two ago but did not do his homework; he should have examined the zoning regulations and examined "more carefully the status of the road, buyer beware." Ms. Hall also criticized one of the reasons advanced by counsel for the parties as to why settlement was a good option for the board. Upon reading the transcript two of the board members gave reasons for denying the variance which appeared to be based on a misunderstanding of the law as to the hardship necessary to permit a variance and how this played in with the motive of financial gain as a reason to seek a variance. Ms. Hall seemed to argue that this would have been an inappropriate grounds to appeal the denial of the variance. The courts would be full if selected comments of board members during a hearing could form the basis of an appeal at least if the statements did not indicate actual bias.
Ms. Hall's comments went directly to the merits of the appeal and asked the court in a § 8-8(N) hearing to consider approving or disapproving the property of any proposed settlement based on its assessment of the strengths of the parties' positions as to whether the variance should be granted. To find justification for such an approach in the admonition of our Appellate Courts that one of the tasks of a trial court in conducting an § 8-8(N) hearing is to determine if the proposed settlement is "fair" would seem to go too far. What incentive would parties to these disputes have to settle matters if they knew that at the end of the § 8-8(N) road some judge without benefit of briefs could make a judgment call that the proposed settlement should not be approved because on the merits the appeal was not very strong? How is that fair to the judge who has to make a decision under these circumstances? It can also be said that allowing the review of these matters on the merits is basically unfair to the parties trying to settle the case. As counsel for the zoning board pointed out at this hearing she felt somewhat constrained about setting forth her reasons for supporting the settlement since they would have to be based in part on a critical analysis of the weakness of her own case. The reason for this is apparent. If a judge rejects the proposed settlement, she would have to face an adversary in ensuing litigation who might very well be armed with arguments she made as the zoning board attorney when she was trying to convince a judge that the board had good reason to settle the case. Furthermore, given such an understandable constraint is it fair to the judge to have to decide if the settlement should be approved without benefit of briefs as mentioned but also without benefit of a thorough presentation by counsel for the board?"
But as suggested earlier, this is not to say that a court should not address the issue of the merits of the respective positions in these cases in an § 8-8(N) hearing. If an applicant's case is so lacking in merit as to be completely frivolous then questions about collusion between the parties or the possibility that suit was filed just to gain leverage for the granting of a variance would present themselves.
The court has read the transcript of the proceedings before the board at which the variance was denied. Apart from whether two comments of the board members which appear to not reflect an appreciation on the concept of hardship can be considered as a basis for appeal, they do underline the real problems with the defendant board's case. We do not appear to have a self-imposed hardship here and it does not appear to be a relevant consideration that the plaintiff could have determined before he bought the land whether the zoning regulations would have prevented development of the property according to his present wishes. As Fuller says "A person who buys a non-conforming lot or who acquires property with a non-conforming use caused by a change in the zoning regulations has the same right to obtain a variance as the seller of the property and is not barred from obtaining a variance by the purchase with knowledge rule," Conn. Practice, Vol. 9 "Land Use Law and Practice," 2d Ed § 9.4, page 190, see cases cited in footnote 3. In other words the hardship runs with the land and that is exactly what apparently happened here according to counsel — a change in the zoning regulations and wetland regulations around 1960 present the problem which necessitates the variance. This latter assertion by counsel for the plaintiff was not disputed and in light of Fuller's statement of what appears to be basic law it is somewhat circular to say the subdivision "became non-conforming when he (the plaintiff) wanted four lots instead of two." Of course, because of the defendant's plans, the lot is presently nonconforming but then the question must be asked when and as a result of what regulatory action can the claim be made that four-lot use would be non-conforming — at which point, see Fuller supra. On this basis alone the court cannot find this appeal was frivolous or that good reason does not exist to make settlement a reasonable course of action for the board. It should be noted that the court arrives at this conclusion without even considering the topographical situation which would form a separate reason to find hardship or the fact that upon granting of the variance the plaintiff agreed by way of settlement to give the town a release "of claim including claim of right or right to compensation arising by virtue of taking or confiscation of property" due to questions about the roadway.
In addition the court would note that there has not been an iota of evidence and the court believes there is no actual claim that the proposed settlement came about as the result of side or secret dealing between the parties or that the settlement was reached for any other reason than an independent and rational evaluation by the plaintiff and the town of their respective interests. Interestingly enough suit was filed in March 2003, the settlement proposal was approved by the board September 16, 2003 but at the end of June the parties submitted to the court a "statement Re: Mediation" under § 8-8a. Under that statute the parties share the cost of mediation. Subsequent to that the parties apparently settled the case without benefit of mediation. But that it was considered by the parties underlines the fact that both sides realized there was a real dispute here worthy of consideration for settlement.
In any event the proposed settlement is approved for the foregoing reasons.
CORRADINO, JUDGE.