Opinion
CV186034407
09-24-2019
Shawn Michael WARD v. TOWN OF NORTH STONINGTON ZONING BOARD OF APPEALS
UNPUBLISHED OPINION
Swienton, J.
I
STATEMENT OF APPEAL
This is an appeal by the plaintiff, Shawn Michael Ward, from the decision of the town of North Stonington Zoning Board of Appeals (Board, ZBA, or the defendant) dated March 21, 2018, which resulted in upholding a cease and desist order against the plaintiff. That order precluded the plaintiff from continuing the operation of his "commercial landscape construction business including any activity that may be considered a commercial service." Because the court has determined that the ZBA acted arbitrarily, illegally or unreasonably in reaching its decision, the appeal is sustained.
II
BACKGROUND
The plaintiff owns property at 79 Pine Woods Road, North Stonington, (the Property), which property consists of 114 acres of land with buildings and improvements. The entire property lies within the R-80 rural preservation zoning district. The plaintiff purchased the property on February 15, 1996, which then included a farm house, accessory outbuildings, and two large farms fields. The property has been primarily used for farming or other agricultural/horticultural purposes for over 100 years.
Thereafter, the plaintiff met with George Brown, who was North Stonington’s zoning enforcement official, to discuss the possibility of starting a tree farm and related landscaping business in one of the back fields of the property. The plaintiff was advised by Brown that the historic use of the property had always been agriculture, and that a tree farm with incidental landscaping services was considered agriculture and was permitted as of right within the R-80 district. Therefore no approval was required. The plaintiff incorporated his business, Field of Dreams Tree Farm and Landscaping, Inc., in February 2000, and opened for business the following spring at the property within the back fields. The zoning regulations that were in place at that time provided that a zoning permit was only required for a change of use, and not the continuation of an existing use. Exh. 12f, Zoning Regulations, § 202. The 1999 Zoning Regulations also provided that agriculture, agricultural facilities, and accessory structures and uses were all permitted as of right in the R-80 zoning district. Id., § 403.3. The plaintiff claims that he was advised by Brown that he was not required to obtain a zoning permit for any use for which Field of Dreams was established, as all uses conformed with the existing zoning regulations and the pre-existing, principal agricultural use of the property.
There is no record of this conversation between Brown and the plaintiff, and no written evidence was submitted to corroborate the claim that the plaintiff spoke with Brown prior to establishing his tree farm. There is no dispute, however, that the historic use of the property had been agriculture.
"Agricultural Use. The act of cultivation of land for the growing of vegetables, grains, grasses, trees, herbs, fruit, or other horticultural products; the raising of livestock, farm animals, and fowl; the producing of milk and other similar pursuits. Gardens, livestock, or fowl, grown or raised mainly for home use, shall not be classified as agricultural. Agricultural Facility. A facility consisting of at least 5 acres of land with buildings, which are mainly used for and incidental to agricultural use." Id., Appendix A-1. "Use, Accessory. A use customarily incidental and subordinate to the principal use of a structure or lot; or a use, not the principal use, that is located on the same lot; or a use, not the principal use, that is located on the same lot as the principal structure." Id., Appendix A-17.
Shortly thereafter, in May 2000, the zoning enforcement official and the board of selectmen received an anonymous complaint alleging that the plaintiff was conducting an illegal landscape construction business on his property without the necessary approvals. The town’s then ZEO, Marc Benjamin, investigated the complaint and in his investigative report noted that he conducted an inspection of the property- "did site walk." Exh. 12i. Benjamin concluded that it was a "start up tree farm, legitimate agriculture use," and no action was taken. Over the next three years, the plaintiff sought three zoning permits for a pool, a barn, and an addition on his residence. All approvals were granted without any enforcement action against the plaintiff or his business operations during this period.
The plaintiff contends that these projects would have required inspection of the site, and thus the business operations would have been visible.
In October 2003, another complaint was filed against the plaintiff for "running landscape business from home." Exh. 12 o . ZEO Craig Grimord made an initial inspection on November 4, 2003, and noted that "no activity seen at this time- will keep under observation." Id. Because the complainant indicated that the truck activity and employees left and entered the site in the late afternoon, Grimord performed a second inspection, and found "[n]o evidence of any violations. Closing file." Exh. 12p. In the letter to the complainant, Grimord stated: "The site was investigated on two different occasions and no violations of the Zoning Regulations were observed at either time. There is an active agricultural use of this property as a tree farm. Activities associated with this use are permitted as of right. Based on my observations I would have to conclude that there are no zoning violations on this site at this time." Exh. 12q.
The plaintiff constructed a horse barn on the property in 2004, for which he received zoning approval. Exh. 12r. Aerial photos from 2004 to 2008 indicate that the nursery and related operation remained the same. Exh. 12 s-u. In 2009, a complaint was made because the plaintiff was planning to hold an auction on his property. ZEO Hodge did a site inspection and wrote a report of her findings. Hodge indicated that the plaintiff owns two properties on Pinewoods Road- 79 Pinewoods Road, consisting of the plaintiff’s residence, horse farm, and buildings used in conjunction with his landscaping business, and 108 Pinewoods Road where the tree farm is located. The landscaping business takes place off site: "i.e. his employees go to the clients, and not the other way around. No direct retail activity takes place on site. The business has been operated from that location for 13 years. The Town had knowledge of its existence. Former ZEO Craig Grimord inspected the site in 2003 to see if there was any Zoning violation and found none ... The earliest complaint/inquiry found on file was from May of 2000. No violation was found at that time either." Exh. 12v.
The defendant ZBA takes liberal interpretation of the record when it argues that the plaintiff "intentionally chose to not allow Zoning Enforcements Officers liberal access to the site (as evidenced by the roadside inspection, the drive by inspection and the controlled visitation with Juliet Leeming [Hodge] in 2009." Brief of the Defendant, p. 25. The record does not support this statement. Further, the defendant’s contention that this notice of "Possible Zoning Violation" served as a warning to the [plaintiff] that the Town did not consider the site to be in compliance was also not supported by the record since there was nothing to substantiate that the plaintiff ever received this report. Id., 11. The plaintiff was aware of the previous ZEO’s activity with regard to the construction on the property.
The report makes no conclusions as to whether there was any present violation, but states that she was "postponing further enforcement measures until the outcome of the Planning and Zoning meetings to determine the scope of commercial activities that will be allowed as accessory to an active agricultural operation." Id. These statements would seem to indicate that the ZEO was discussing the possible need to bring the property into compliance with the current regulations.
In the subsequent ten years, no actions were taken with respect to the plaintiff’s property or his operations until the filing of the Notice of Violation on November 17, 2017. In the notice, ZEO Hodge notes that "complaints have been coming in again about the commercial operation [at 79 Pinewoods]." Her notice does not specify what those complaints were, and they are not part of the record. She did not conduct a site inspection, but based her decision to issue the notice of violation on her prior inspection ten years earlier, an inspection from the road only, aerial photographs, and the undocumented complaints which supported her finding that the plaintiff had expanded his use of what was occurring in 2009. ZEO Hodge testified that she had "observed ... parking of commercial business vehicles and machinery on site, parking of employee vehicles on site, and mustering of employees on the property at the start and the end of the workday, and had reports of high volumes of truck traffic." Tr. 19. She ordered him to cease all activity related to the operation of the commercial landscape construction business, including any activity that may be considered a commercial service. Further, she ordered that he remove all vehicles not associated with the agricultural use of the property. Id.
During this time, Hodge was not the ZEO, but was reappointed some time prior to the notice of violation being issued. Hodge issued the Notice of Violation.
Without admitting any wrongdoing, the plaintiff chose to relocate some of his business operations to a new location in Rhode Island, including his commercial vehicles and equipment. The vehicles still have to travel to the Property in order to pick up trees or other vegetation for planting. In addition, the landscape stone which had been stored on the Property was also moved. At the hearing, it was pointed out by the plaintiff that a majority of his neighbors, including many of his immediate abutting neighbors, supported his business, several testifying at the hearing and several submitting letters. Tr. 54.
The Notice of Violation also noted an "illegal construction of a structure- no Zoning or Building permits on file." Exh. 1. At the hearing, the plaintiff stated that he believed he obtained a permit for the building, and could not explain the lack of such with the town. He submitted a zoning permit application that day to the town to address the issue.
On March 20, 2018, the ZBA upheld the cease and desist order. The members that voted to uphold the Notice of Violation found that the property was being used for commercial activity which they found not acceptable in a residential zone. Tr. 132. The dissenting majority noted that the prior ZEOs had ruled the uses permissible, and determined that the town was estopped from the enforcement of the Notice of Violation against the plaintiff based upon the actions of the prior ZEOs. Noted was the plaintiff’s reliance on those actions, and the substantial effort and money put into the property by the plaintiff.
General Statutes § 8-7 states that four votes are required to reverse a ZEO’s enforcement order, and therefore the motion to overturn the Notice of Violation, while passed by a majority of the ZBA members present, failed by one vote.
The plaintiff filed this appeal pursuant to General Statutes § 8-8(b), which governs appeals from zoning boards of appeals to the Superior Court. All necessary parties have appeared and briefs have been filed. The plaintiff contends that he has been aggrieved by the Board’s decision, and its decision is illegal, arbitrary, and capricious and constitutes an abuse of its discretion because (a) the commercial landscaping activities are legal, pre-existing nonconforming uses accessory to the principal agricultural use of the property; (b) the ZEO was municipally estopped from issuing the Notice of Violation; and (c) the ZBA improperly exercised its discretion in upholding the cease and desist order because it failed to conclude that prior determinations by its zoning enforcements officers of permissible uses of the property prevented a contrary determination by its current zoning officer.
III
STANDARD OF REVIEW
"In reviewing the actions of a zoning board of appeals, we note that the board is endowed with liberal discretion and that its actions are subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal ... The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board’s decision.
"It is well settled that ... [t]he 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.
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission’s decision. Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Citations omitted; internal quotation marks omitted.) Maluccio v. East Lyme Zoning Board of Appeals, 174 Conn.App. 750, 752 (2017).
"[T]here is a strong presumption of regularity in the proceedings of a public body such as a municipal planning and zoning commission ..." (Internal quotation marks omitted.) Clifford v. Planning & Zoning Commission, 280 Conn. 434, 441, 908 A.2d 1049 (2006). "[A zoning] board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994). "The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Internal quotation marks omitted.) E & F Associates, LLC v. Zoning Board of Appeals, 320 Conn. 9, 15, 127 A.3d 986 (2015). "In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] ... The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached ... If a trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot substitute its judgment for that of the board ... If there is conflicting evidence in support of the zoning commission’s stated rationale, the reviewing court ... cannot substitute its judgment as to the weight of the evidence for that of the commission ... The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) RuralWater Co. v. Zoning Board of Appeals, 287 Conn. 282, 294, 947 A.2d 944 (2008).
IV
JURISDICTION
"A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995).
General Statutes § 8-8 provides in relevant part that an [a]ggrieved person’ means a person aggrieved by a decision of a board ... In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, ‘aggrieved person’ includes any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." "Aggrievement presents a question of fact for the trial court." Lucas v. Zoning Commission of Harwinton, 130 Conn.App. 587, 590, 23 A.3d 1261 (2011). "If, on the basis of the entire record, the court determines that the plaintiffs have proven statutory aggrievement, then, the court should reach the merits of the plaintiffs’ appeal." Id., 598-99.
Here, the plaintiff has alleged that he owns the property directly affected by this appeal and has submitted a deed establishing his ownership of the property. Accordingly, this court finds that the plaintiff is aggrieved pursuant to § 8-8, and therefore has jurisdiction to determine this appeal.
The defendant in its brief reserved the right to argue the issue of aggrievement, however, the issue was not presented to the court during argument. The court finds based upon the record presented that the plaintiff is an aggrieved person and has standing to bring this appeal.
V
ISSUES PRESENTED
The plaintiff filed his brief in support of his appeal on November 27, 2018. The defendant responded with a brief filed on March 15, 2019. The plaintiff replied to that brief on April 12, 2019. The hearing on the appeal took place on August 6, 2019, when both parties appeared before the court to present their arguments.
A
The Plaintiff’s Position
The crux of the plaintiff’s claim in support of his appeal is that there were multiple determinations by zoning enforcement officers over the past 18 years that the alleged violations were permissible uses. He argues that it was his reliance upon the former ZEO Brown’s advice that he established Field of Dreams. It is his position that the historic use of the property had always been agriculture, that his agriculture use is permitted as of right, and that a tree farm with ancillary landscaping services is permitted within the R-80 zone. The landscaping services are an accessory to the agricultural use of the property in the cultivation of the property as a tree farm. He states that the accessory landscaping services which are in dispute consist of landscape maintenance and masonry work all performed offsite at customer locations. There is no commercial processing of stone which occurs on the property, but the landscaping stone is stored on the property for delivery to customers. There were also three subsequent ZEOs who investigated complaint and no violations were ever found.
This is the R-80 rural preservation district. "This is a district that’s specifically- if you look at [the town’s] Zoning Regulations back in 1999 and you look at [the town’s] regulations now today in 2018, it’s supposed to support agriculture. It’s supposed to be flexible. It’s supposed to allow farms to succeed and to stay rural and not be carved up into subdivision." Argument of plaintiff, Tr. 82-83.
Because of these prior determinations that the property was in compliance with the 1999 zoning regulations, the contested uses of his property are pre-existing, non-conforming uses. Further, the plaintiff argues that the town is municipally estopped from enforcing its 1999 zoning regulations. Moreover, he contends that the cease and desist order to the plaintiff is wrongly premised upon an application of the town’s current zoning regulations to the contested uses.
B
The Board’s Position
In reply to the plaintiff’s argument that the town is estopped from enforcing the zoning regulations, the board’s position is that the plaintiff fails to meet the legal requirements necessary to support a basis for municipal estoppel. The board contends that the claims which the plaintiff has relied on heavily by ZEO Brown are unsupported, and the actions by the other ZEOs do not support a claim for reliance. The board also argues that the plaintiff failed to exercise due diligence to confirm the legality of the uses on his property.
In addition, the board states that the plaintiff’s "reluctance to allow Zoning Enforcement Officers to conduct liberal site inspections confirms that he did not want the truth of his activity to be ascertained by the Town." Deft.’s brief, pg. 25. This is a mischaracterization of the evidence, and there is no support in the record for this statement. As previously stated, in the brief filed by ZBA, there are multiple mischaracterizations of the facts which facts are not supported in the record.
The Board argues that the landscaping business does not meet the definition of "agriculture use" per the 1999 Zoning Regulations. It is also the position of the minority voters upholding the cease and desist order that the landscaping business is a commercial use which is "not acceptable by all in a residential zone." Tr., pg. 132, lines 4-20. Their two minority voters focused their attention on what they determined to be the commercial activity taking place on the property, i.e., truck activity, mustering of employees.
The defendant also argued that a screen print from the website www.fieldofdreams.info dated October 28, 2009, printed by ZEO Hodge was some sort of evidence that the plaintiff was in fact operating a landscape construction business and had been for some amount of years. Thus, he did not act in reliance from any statements from zoning enforcement officers because his business was already in existence. The business was established at the 79 Pine Woods Road, North Stonington, site in 2000. The property was inspected in 2000, 2003, and 2009 by zoning officials, and no violations were found. The plaintiff had been in this line of work for over 30 years in Rhode Island prior to the purchase of the Property.
The Board takes the position that the tree farm is the allowable accessory use to the property- a use it does not challenge. However, the landscaping use was never determined by any zoning enforcement officer as reasonably related to the residential use or the use as a tree farm. The Board contends that the determinations by the prior zoning enforcement officers made limited visits, and never expressly validated the landscape use on the property.
VI
DISCUSSION
As stated previously, it is the "court’s function ... to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings ... [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Citation omitted; internal quotation marks omitted.) Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547-48, 684 A.2d 735 (1996). Thus, this court’s task is to ensure that "honest judgment has been reasonable and fairly exercised after a full hearing ... Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons." (Internal quotation marks omitted.) Durkin Village Plainville, LLC v. Zoning Board of Appeals, 107 Conn.App. 861, 867, 946 A.2d 916 (2008); Hoffer v. Zoning Board of Appeals, 64 Conn.App. 39, 41, 779 A.2d 214 (2001).
Has the plaintiff met his burden of proof with regard to the claims that the defendant is estopped from enforcing its zoning regulations as to the use of the plaintiff’s property for a tree farm with accessory landscaping business?
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).
The court agrees with the plaintiff that the doctrine of municipal estoppel prevents the defendant from requiring him to conform with its current regulations. The activity giving rise to the alleged violations had been undertaken only after ZEO Brown advised the plaintiff that the use was permitted and was ruled permissible for over 18 years by various zoning enforcements officers. The record of the hearing indicates that the conversation took place. Even if the court does not give much weight to the plaintiff’s claim that he had conversations with ZEO Brown, the Town over the past 18 years investigated at least three complaints that the plaintiff’s landscaping business were in violation of the 1999 Zoning Regulations. None of these investigations resulted in enforcement actions. ZEO Benjamin inspected the property, observed no illegal uses, noted "landscaping const[ruction] business," and declined action in May 2000. ZEO Grimord, three years later, investigated a complaint of "running landscape business from home." Exh. 12 o . Grimord made an initial inspection and observed no violations from the road, and because the complainant said that the impermissible activity took place in the late afternoon, Grimord went on a second inspection and found "no evidence of any violations." "Based on my observations I would have to conclude that there are no zoning violations on the site at this time." Exh. 12q.
Even the present ZEO, Hodge, failed to take any enforcement action when she received a complaint in 2009. Although she noted concerns with the presence of heavy equipment and multiple employee vehicles onsite, she concluded that "the primary use of both property clearly appears to be agricultural." Exh. 12v. ZEO Hodge was aware of the operation of the business from 79 Pinewoods Road, and aware that it had been operated from that location for 13 years. Id.
There was nothing in the record supporting a finding that in 2009 the plaintiff had been operating the tree farm for 13 years.
The plaintiff relied on these actions (or inactions) by the three ZEOs for over 18 years. The ZBA is correct in stating that the plaintiff had ample notice that complaints were being made about the use of his property, and he had ample notice that the ZEOs found that the activities were permitted. After the ZEOs made their findings, it is not reasonable to suggest that the plaintiff should have gone back to the ZEO and asked, "are you sure it is okay?" A finding of the Board that the plaintiff failed to exercise his due diligence is arbitrary and not grounded in the record.
If you count the advice given to the plaintiff by ZEO Brown, that would make four prior ZEO’s findings that the plaintiff relied upon.
Again the defendant gives its own "spin" that the plaintiff was somehow "reluctant to allow Zoning Enforcement Officers to conduct liberal site inspections" and somehow this "confirms that he did not want the truth of his activity to be ascertained by the Town." Deft.’s brief, pg. 25. As the court is bound by the record, so, too, is the Board.
The court finds that the plaintiff relied not only on the discussion with ZEO Brown, but on the three subsequent determinations by three separate ZEOs in conducting his tree farm and landscaping business. Because of that reliance, the plaintiff developed his tree farm and landscaping business, investing substantial time and money. The speculation by the defendant that due to the advertising in an expired 2009 website that Field of Dreams was "already operational, possibly for years," prior to the plaintiff obtaining the opinion from ZEO Brown is another mischaracterization and misleading supposition. There is no question that the plaintiff had engaged in the business of landscaping for over 30 years, a business he operated in Rhode Island before his purchase of the Property. However, with the purchase of the Property, and his reliance on the actions of three separate ZEOs, it is a reasonable conclusion that he would incur substantial financial loss if he was unable to conduct his business as he has done for the past 18 years. He would lose his capital investments, incur costs to relocation, not to mention a disruption in his business. At present, the plaintiff has leased property in Rhode Island for purposes of equipment storage and related activities for his business. Exh. 12p. But, as the plaintiff argues, transporting the heavy equipment from the leased Rhode Island site to service the plaintiff’s tree farm would be major and expensive. Moreover, he has been growing trees on the property for over 18 years as a tree farm in order to sell the trees offsite. How will these trees be transplanted and utilized without equipment and manpower?
The court is mindful of the Supreme Court’s direction that municipal estoppel "should be invoked only with great caution ..." Cortese v. Planning & Zoning Board of Appeals, 274 Conn. 411, 418-19, 876 A.2d 540 (2005). The court finds that the plaintiff has met its burden to establish the elements of estoppel. The record clearly supports these elements.
Even if the court were to conclude that the doctrine of municipal estoppel does not lie in this case, the court finds that the landscaping services in dispute are protected by General Statutes § 8-2 as pre-existing, non-conforming uses. Section 8-2 prohibits the retroactive application of zoning regulations by stating that "[s]uch regulations shall not prohibit the continuance of any non-conforming use ... existing at the time of the adoption of such regulations." ZEO Hodge premised her cease and desist order upon the application of the Town’s current zoning regulations to the contested uses. Her conclusion that the plaintiff had "expanded" his use of what was occurring in 2009 is unsupported by the record.
ZEO Hodge declined enforcement action in 2009, stating "[t]he primary use of both properties clearly appears to be agricultural." (Emphasis added.) Exh. 12v. Even after making that determination, governed by the 1999 Regulations, she goes on to state that "... if the equipment were also used for agricultural operations ... then the home occupation classification still may work to bring the site into complete compliance with our current regulations." Id. The plaintiff had no legal obligation to comport his non-conforming uses with current zoning regulations, and the Town had no legal authority to compel such compliance.
From a review of the record which includes aerial photos of the Property, confirms the plaintiff’s commercial tree farm operation. Any trucks and equipment parked upon the Property, entering or exiting the Property have never been identified by the zoning officials as being utilized for the plaintiff’s landscaping service rather than the operation of his tree farm. Nothing in the aerial photos would indicate an expansion of the activity onsite, and is not found in the record. ZEO Hodge’s statements regarding "high volumes of truck traffic" is not based upon her own observations, but from "reports," and is nothing more than unsupported hearsay which is not only unsupported, but does not distinguish the traffic associated with the tree farm operation- which the Board concedes is permissible, from the accessory use of the landscaping business. The conclusion that the plaintiff had illegally expanded Field of Dreams is lacking in substantial evidence.
Even the statements made by the board members who voted in favor of sustaining the cease and desist order are lacking in support from the record. "Mr. Leonard: In terms of employees’ vehicles on the site and high volume of trucks, I mean, we’ve had a lot of people corroborating the volume of the trucks, if not the nuisance or lack of nuisance of it." Tr. 132. The statement made by board member Murphy also is indicative of the arbitrary nature of the board’s decision. "I’d be inclined to uphold the decision of the ZEO in that [the plaintiff is] clearly admitting that it’s a commercial activity which is not acceptable by all in a residential zone. It causes- I mean, it causes problems. As a former selectman, I listened to those complaints." Id.
The continuation of the activities associated with the plaintiff’s landscaping services as accessory to the agriculture use of the tree farm which was permitted as of right had been ruled on previously. These services are protected as pre-existing, nonconforming uses.
VII
CONCLUSION
The court concludes that there is substantial evidence in the record that supports a finding that the decision of the defendant should be reversed. The decision of the defendant is arbitrary, capricious or unreasonable based upon an examination of the record in this appeal. For all of the foregoing reasons, the court reverses the ZEO’s determination to issue the 2017 cease and desist order. The appeal is sustained.