Opinion
No. FST CV 05 4005886 S
May 15, 2008
MEMORANDUM OF DECISION
Background
The parties presented evidence and argument at a hearing on March 27, 2008. Proposed findings and orders were submitted.
The court had remanded this case to the planning and zoning commission to determine if the mean high water mark was more than 200 feet from the plaintiff's property. The commission found it was more than 200 feet after reviewing of the report of the surveyor/engineer selected by the parties.
With that fact established, the court is now asked to determine if the appeal of the plaintiff should be sustained.
Law
A property located more than 200 feet from the mean high water mark is exempt from coastal site plan review based on General Statutes § 22a-109(b) and § 31-10.6 of the Westport Zoning Regulations. In addition, exemptions in the zoning regulations which favor the property owner are liberally construed to exempt the property from regulation. Goldreyer v. Board of Zoning Appeals, 144 Conn. 641, 646, 136 A.2d 789 (1957).
"Administrative agencies are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves." Castro v. Viera, 207 Conn. 420, 428, 541 A.2d 1216 (1988). Subject matter jurisdiction of a court or administrative agency cannot be created through consent or waiver, and lack of subject matter jurisdiction can be raised at any time. Johnson v. Commissioner of Correction, 258 Conn. 804, 813, 786 A.2d 1091 (2002); Castro v. Viera, supra, 207 Conn. 428-30; see also Windsor Locks Associates v. Planning Zoning Commission, 90 Conn.App. 242, 247-48, 876 A.2d 614 (2005).
Section 8-26a(b)(1) of the Connecticut General Statutes provides: "Notwithstanding the provisions of any general or special act or local ordinance, when a change is adopted in the zoning regulations or boundaries of zoning districts of any town, city or borough, no lot or lots shown on a subdivision or resubdivision plan for residential property which has been approved, prior to the effective date of such change, by the planning commission of such town, city or borough, or other body exercising the powers of such commission, and filed or recorded with the town clerk, shall be required to conform to such change."
In Poirier v. Zoning Board of Appeals, 75 Conn.App. 289, 815 A.2d 716, cert. denied, 263 Conn. 912, 821 A.2d 766 (2003), the Appellate Court held that the statute protected lots shown on an approved and recorded subdivision map from changes in the zoning regulations as well as what was on the approved subdivision map.
Discussion
Since the property is located more than 200 feet from the mean high water mark, the property was exempt from coastal site plan review pursuant to Connecticut General Statutes § 22a-109(b) and § 31-10.6 of the Westport Zoning Regulations. The zoning officials had no subject matter jurisdiction over any of the coastal site plan applications, even though they were filed by the plaintiff at the direction of the commission's agent. Subject matter jurisdiction of an administrative agency cannot be created through consent or waiver and can be raised at any time. Castro v. Viera, supra, 207 Conn. 428-30.
The same situation applies to the first site plan appeal. Since the commission had no jurisdiction over it and no statutory authority to regulate it, the plaintiff's property did not have to conform to and was exempt from regulation. Noncompliance with a zoning regulation which cannot be applied to the property or a condition of approval of an application imposed by the commission cannot be a zoning violation.
The property is also exempt from any zoning regulations enacted by the commission after October 21, 1965, the date when a subdivision map approved by the commission was filed in the Westport Land Records as Map #6054, as a result of General Statutes § 8-26a(b).
The plaintiff's agent claimed, and the town's zoning officer, her assistant, and the town attorney all agreed, that the 1964 version of the Zoning Regulations applied because the coastal site plan was filed prior to June 1, 2004, the effective date of an amendment to § 8-26a, which was not retroactive. The town officials also conceded that General Statutes § 8-2h also protected the application from a change in the regulations.
The fact that three coastal site plan applications were filed by the plaintiff is not a waiver of the claim that the property was exempt from regulation because this is a jurisdictional claim. The record also does not show that the plaintiff was aware of the statutory exemptions. Waiver requires the intentional relinquishment of a known right. C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 87, 919 A.2d 1002 (2007).
The town's zoning officer also agreed that the application complied with the 1964 version of the Zoning Regulations. The defendant board's resolution of denial of the application did not state or identify any noncompliance with any of those regulations. The provisions in § 31-10 concerning coastal site plans, § 31-11 concerning flood plain regulations, and recent amendments providing for the exclusion of land areas with slopes of 25% or more and driveways when calculating lot coverage in the zoning regulations did not exist in 1965. The coastal site plan statutes were not effective until July 1, 1979.
The zoning enforcement officer and the zoning board of appeals also have no statutory authority to enforce state statutes or federal law, including FEMA provisions which are not a regulatory statute but only a method of allowing flood insurance to property owners and a program which did not exist in 1965.
The appeal can be sustained on other grounds.
None of the reasons assigned by the board were sufficient to support the cease and desist order issued by the zoning enforcement officer. The zoning enforcement officer did not make an actual inspection of the property and did not attend the public hearing to testify about any zoning violation. The board's decision does not identify any specific zoning violation and the section of the zoning regulations that allegedly was not complied with.
One of the reasons for denying the appeal was that the owner refused to grant permission for an interior inspection of the house. While the denial by the owner of permission to enter his house is troubling, it is not a ground for upholding the cease and desist order or speculating that there was a zoning violation. There was no refusal to allow exterior inspection of the house or the lot. The plaintiff refused permission for an interior inspection for several reasons, including the exemption claims, right of privacy, and the fact that interior inspections were not customary or done at other properties. A property owner does not have to prove that his use of the land conforms to zoning; the municipal officials must prove that it does not. The plaintiff disputes that there was a violation of the regulations but the court does not have to resolve that factual issue.
The town officials reviewed and approved the plans, including an as-built plan, several times before issuing a certificate of zoning compliance and a certificate of occupancy. The amount of fill and grading met the zoning regulations and the town officials signed off on it. The topographical map in the record showed all the grades, and it was approved by the zoning enforcement officer, which was required in order to obtain the certificate of occupancy. The concept of municipal estoppel applies here also.
Order
The appeal is sustained since the construction of the house was exempt from coastal site plan review and the zoning officials had no jurisdiction over it. The appeal is also sustained and the cease and desist order directed to be vacated because the construction complied with any applicable zoning regulations, was inspected and approved several times by town officials, the board did not identify any specific zoning violation, and the zoning officials were precluded and estopped under the facts of this case from revoking the prior zoning approval. The property was only required to comply with zoning regulations in effect in 1965 when the subdivision lot was approved. General Statutes § 8-26a also precluded the board from upholding the cease and desist order based on subsequently enacted regulations.
So ordered.