No. FST CV 09 4015861 S
September 22, 2010
MEMORANDUM OF DECISION
On July 1, 2008 the plaintiff filed with the defendant commission an application for a zoning permit pursuant to Section 410 of the Weston Zoning Regulations. In this application the plaintiff sought to establish a right to operate an automobile repair facility as a nonconforming use in an RA-2 zone. (Two Acre Residential and Farming District). In 2009 the defendant denied the application on two grounds. The first ground rested on a 2007 decision of the defendant which determined that the plaintiff's right to use of the property as a nonconforming automobile repair facility had terminated. The second ground was based on the plaintiff's failure to produce any compelling evidence which would cause the defendant to disturb its 2007 decision.
Section 410 provides in pertinent part as follows: No building or structure shall be erected, constructed, reconstructed, enlarged, altered or moved, or excavation made therefore, [sic] or work begun thereon, or use made of any land, until a zoning permit therefore has been issued by the Planning and Zoning Commission.
The plaintiff alleges that the defendant acted illegally, arbitrarily and in abuse of its discretion because (i) its determination that the plaintiff and its predecessor in title intended to abandon the nonconforming use is not supported by substantial evidence, and (ii) the defendant's denial constitutes an unconstitutional financial burden on the plaintiff by restricting its use for any reasonable purpose. The defendant counters that (i) the defendant had no authority to grant the plaintiff's application, (ii) the 2007 decision has collateral estoppel effect, (iii) the defendant's factual finding of abandonment is supported by the record evidence, and (iv) the plaintiff's taking claim is premature.
The court's jurisdiction is furnished by the plaintiff's aggrieved status as owner of the property at all times relevant to this proceeding, including at the time of the 2007 proceeding. Goldfeld v. Greenwich Planning and Zoning Commission, 3 Conn.App. 175 (1985).
The court dismisses the appeal on the first and second grounds asserted by the defendant thereby obviating the need to consider the remaining grounds.
The court begins by reviewing the general principles applicable to the action of a zoning authority which has acted in its administrative capacity. It is well settled that the burden of overturning the decision of an administrative agency rests upon the plaintiff. Spero v. Zoning Board of Appeals, 217 Conn. 435, 440 (1991). The standard which governs this court's review of the defendant's action is whether the board acted illegally, arbitrarily or in abuse of its discretion in reaching its decision. Doyan v. Zoning Board of Appeals, 67 Conn.App. 597 (2002). The court may not substitute its judgment for that of the board. Moreover, there must be substantial evidence in the record to support the board's decision. Torsiello v. Zoning Board of Appeals, 3 Conn.App. 475 (1984). "Evidence 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 . . . The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion." Pelliccione v. Planning and Zoning Commission, 64 Conn.App. 320, 320, 326-28 (2001).
I. Lack of Authority
The defendant argues that it had no authority to reinstate a nonconforming use that had been terminated. The defendant's claim of lack of authority stems from the fact that in 2007 the defendant made a factual finding that the nonconforming use as an automobile repair facility had been abandoned. The record of that proceeding which has been incorporated into the record in the present case shows that the issue was fully and fairly presented to the defendant by the plaintiff who was represented by counsel at the hearing.
The plaintiff counters as follows. The defendant's denial of plaintiff's application in 2007 was based upon a regulation which at the time was contrary to the penultimate sentence of Section 8-2 of the General Statutes. The regulation in question provided that any nonconforming use that had been discontinued for six months shall be considered to have been abandoned. Such a provision obviously contravenes the unambiguous meaning of Section 8-2 which mandates that loss of a nonconforming use be based not on nonuse but on the intent of the property owner. Between the 2007 and 2008 hearings the defendant amended the regulation to conform to Section 8-2 by making loss of nonconformity depend upon intent rather than nonuse. However, no appeal was ever taken from the 2007 decision and as a result it became final.
When the defendant stated that it "does not have authority under the regulations to issue the permit" it undoubtedly meant that the Weston Zoning Regulations do not permit it to authorize a commercial use in a residential zone. That statement is undeniably true provided the commercial use is not a legally nonconforming use. The court notes that the defendant was also without authority to grant the permit because of the prior application rule.
Ordinarily, after an administrative board has made a decision it is powerless to reverse itself; nevertheless it may do so either if there has been a material change of circumstances or if the considerations materially affecting the merits of the subject matter have intervened and no vested rights have arisen. Atlantic Refining Co. v. Zoning Board of Appeals, 142 Conn. 64, 68 (1955).
More recently, in Richards v. Zoning Commission, 107 Conn.App. 36, 43-44 (2008), our Appellate Court distinguished the rule governing variances from the rule which applies to special permits. "When a party files successive applications for the same property, a trial court's inquiries may vary depending on whether the application before the zoning agency is an application for a variance or an application for a permit. `In considering a subsequent variance application where it has already denied a similar prior one, [a] zoning board of appeals is generally precluded from reversing a prior decision unless there has been a material change of conditions, or other considerations have intervened affecting the merits, and no vested rights have arisen . . . The board is disallowed from revisiting its prior determination that the requirements for a variance are not present because, if a reversal of that determination was allowed, there would be no finality to the proceeding [and] the result would be subject to change at the whim of members or due to the effect of influence exerted upon them, or other undesirable elements tending to uncertainty and impermanence . . .
`Finality of decision is just as desirable in the case of an exception [or permit] as in one involving a variance. Because of the nature of an exception [or permit], however, the power of a zoning board to review a prior decision denying the exception [or permit] is not limited, as it is when a variance is sought, to the two situations mentioned above. An additional situation arises when the owner requesting an exception [or permit] files a subsequent application altering the plan under which he previously sought the exception [or permit], in order to meet the reasons for which the board denied the prior one . . . To justify a special exception [or permit] . . . it must appear that the manner in which the owner proposes to use his property will satisfy the conditions imposed by the regulations. If, therefore, upon a second request for a special exception [or permit], there is a substantial change in the manner of use planned by the owner, the board is faced with an application materially different from the one previously denied. It may well be that the new plan, by reason of the changes made therein, will succeed, where the former failed, in satisfying the conditions enumerated in the regulations. Under such circumstances, the board is not precluded from granting the second application merely because it has denied the first . . .
` A subsequent [permit] application made in order to bring a prior application into compliance with applicable regulations, no matter how minor the work involved may be, is clearly not minor in regard to its significance and effect . . . The board may grant the exception [or permit] once it finds that all the requirements of the ordinance have been satisfied . . .' (Citations omitted; emphasis added; internal quotation marks omitted.) Grasso v. Zoning Board of Appeals, 69 Conn.App. 230, 244-46; 794 A.2d 1016 (2002). The same concept applies to a site plan application. Id., 246."
In a case more analogous to the zoning permit involved in the present case, the plaintiff sought from the zoning board of appeals a certificate of approval for the location of a gasoline station. Following the required hearing, the board voted to deny the application. After taking an appeal from the denial, the applicant filed a second application with the board for a certificate of approval. The board held a hearing on the second application and subsequently granted it. In setting aside the board's decision, the court observed that it has been repeatedly recognized in this state that a zoning board of appeals in acting on an application for a permit "could not properly reverse its first decision since it did not appear that there had been a change of conditions or that other considerations materially affecting the merits of the subject matter had intervened and no vested rights had arisen." (Citation omitted.) Mynyk v. Board of Zoning Appeals, 151 Conn. 34 (1963).
As the plaintiff in the present case did, "each side merely took advantage of the opportunity thus afforded to offer further and more extensive evidence, all of which could have been produced at the first hearing. The trial court properly sustained the plaintiffs' appeal. The situation falls clearly within the language of St. Patrick's Church Corporation v. Daniels, supra, 137: [I]t appears to be well established that a zoning board of appeals or adjustment should not ordinarily be permitted to review its own decisions and revoke action once duly taken. Otherwise there would be no finality to the proceeding; the result would be subject to change at the whim of members or due to the effect of influence exerted upon them, or other undesirable elements tending to uncertainty and impermanence." Id. at 38-39.
In the present case it is apparent that the 2007 application and hearing satisfied none of the requirements in Atlantic Refining or Richardson but rather reflects the deficiencies noted in Mynyk. The defendant noted in the 2009 decision that "no compelling evidence or testimony was presented in the course of this application to disturb the findings set forth in the . . . 2007 decision." In fact, at the applicant's request the 2007 record was incorporated into the 2009 proceeding. In addition, the applicant was represented by different counsel in the second proceeding and the record shows that Attorney Weisman took the same facts that were presented in 2007 and placed a new legal spin on them. Similar to the applicant in Mynyk, Attorney Weisman took advantage of the opportunity to offer his refutation of the five reasons assigned by the defendant for the 2007 denial. The only new evidence that was presented in 2009 was an affidavit from the former owner, Nancy Dillon dated October 20, 2008 in which she declared her intent not to abandon the use. There is nothing in the record that suggests that the applicant was unable to produce that affidavit at the prior hearing. Applying the principles enunciated in Atlantic Refining Co., Richardson, and Mynyk, supra, the record discloses no material change of circumstances which occurred between the first and second application. Likewise, other than Attorney Weisman's legal arguments which could have been made at the first hearing by other counsel, the record discloses no "other considerations materially affecting the merits of the subject matter" which intervened between the two hearings. To summarize, although the defendant was probably bound to accept and hear the second application, under the circumstances of this case, it had no authority to reverse itself.
II. Collateral Estoppel
The defendant has raised the special defenses of collateral estoppel and res judicata. The former is applicable here. "A valid and final adjudicative determination by an administrative tribunal has the same effect under the rules of res judicata, subject to the same exceptions and qualifications as a judgment of a court." New England Rehabilitation Hospital of Hartford, Inc. v. CHHC, 226 Conn. 105, 129 (1993).
"Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim . . . Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit . . . issue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment." (Citation omitted; internal quotation marks omitted.) Byars v. Berg, 116 Conn.App. 843, 846 (2009)." Massey v. Branford, 119 Conn.App. 453, 465 (2010).
As noted in Part I, the parties, facts and legal issues were identical in both 2007 and 2009. Only the spin was different. The same issues were not only litigated but they were necessarily determined in the prior case.
Plaintiff relies on the New England Rehabilitation case, supra in an effort to bring this case under one of the exceptions to the rule. Specifically, the plaintiff argues that the case fits within the exception noted in that case where "a zoning board after hearing amends a regulation." The court notes that the New England Rehabilitation case did not involve a zoning regulation or zoning hearing, or for that matter, an amendment to a regulation of any sort. Neither the court in that case nor the plaintiff offer any analysis of how that exception would work in that case. Moreover, the statement is dictum.
The court's research has uncovered what appears to be the rule in at least the Fourth Federal Circuit. In Collins v. Pond Creek Mining Co., 468 F.3d, 213, 217-18 (4th Cir. 2006), the court announced the following exception to the doctrine. "The doctrine of collateral estoppel does not bar the relitigation of factual issues "where the party against whom the doctrine is invoked had a heavier burden of persuasion on that issue in the first action than he does in the second, or where his adversary has a heavier burden in the second action than he did in the first." Newport News Shipbldg. Dry Dock Co. v. Dir., OWCP, 583 F.2d 1273, 1279 (4th Cir. 1978). Additionally, the doctrine of collateral estoppel does not apply to a legal ruling if there has been a major change in the governing law since the prior adjudication that "could render [the] previous determination inconsistent with prevailing doctrine." See Montana v. United States, 440 U.S. at 161, 99 S.Ct. 970 (citing Comm'r v. Sunnen, 333 U.S. 591, 599, 68 S.Ct. 715, 92 L.Ed. 898 (1948))."
It would appear that this rule is similar to the New England Rehabilitation exception but offers some clarification of the manner in which it should be applied. In the present case, the first possibility is clearly inapplicable because the burden of persuasion was the same in 2009 as it was in 2007.
Burden of persuasion is sustained if evidence "induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact in issue is true." Dacey v. Conn. Bar Assn, 170 Conn. 520, 534 (1976).
The plaintiff argues that because the 2007 application was denied pursuant to a regulation that was in conflict with the penultimate sentence of Section 8-2, that conflict rendered the defendant's decision "illegal." The record however, is clear that in 2007 the defendant explicitly found that the prior owner of the property, Nancy Dillon, intended to abandon the use as an automobile repair facility, but also found that the use had been abandoned for more than six months as the regulation then stated. The plaintiff never appealed the decision and as a result, the defendant's decision became final and binding on the property.
The second exception which is based upon a material change in the governing law is equally inapplicable because the second part of the exception requires that the change create the potential to "render the previous determination inconsistent with prevailing doctrine." Id. at 218. While clearly in the present case there was a material change in the zoning regulation in order to bring it into conformity with the statute, that change did not create the potential to render the 2007 decision inconsistent with the relevant provision of Section 8-2. This is so because the defendant's decision in 2009 and 2007 were both predicated on a finding of an intent to abandon the use thereby rendering the discontinuance of use finding surplusage.
Besides advocating that this case falls under the above noted exception, the plaintiff also seems to argue that the defendant's 2007 decision was tainted by the existence of an illegal regulation and therefore its decision was "illegal" and therefore of no force and effect. The decision of an administrative board, like that of a court, whether right or wrong, is "an exercise of jurisdiction. If the decision was wrong, that did not make the judgment void, but merely left it open to reversal or modification in an appropriate and timely appellate proceeding. Unless and until so reversed or modified, it would be an effective and conclusive adjudication." Rooker v. Fidelity Trust Company, 263 U.S. 413 (1923).
With narrow exception, one may not institute a collateral attack challenging the decision of a zoning authority. "To the extent that a party seeks to attack collaterally a previously unchallenged zoning decision on the basis of the zoning authority's lack of subject matter jurisdiction, "there may be exceptional cases in which a previously unchallenged condition was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it, or in which the continued maintenance of a previously unchallenged condition would violate some strong public polity. It may be that in such a case a collateral attack on such a condition should be permitted." Torrington v. Zoning Commission, 261 Conn. 750, 768 (2002). It is obvious and no contrary claim is made that any attack on the "legality" of the defendant's 2007 decision did not implicate the defendant's subject matter jurisdiction.
"The concept of finality of judgments . . . comes up where a party that could have pursued an appeal fails to do so and attempts to raise similar issues in another type of proceeding. The case law holds that this cannot be done." 9A Fuller, Connecticut Land Use and Practice, Section 36.4 at 344.
In conclusion, this action is barred by both the prior application rule and the doctrine of collateral estoppel.
III. Taking Claim
The second and final count of the plaintiff's complaint contains a taking claim. In it the plaintiff alleges that the defendant's action has "deprived the property of all practical use and value." The defendant responds by arguing that the claim is premature because the plaintiff has not sought regulatory approval for residential use in accordance with the zoning regulations. The record is barren of any attempt on the part of the plaintiff or its predecessor to seek and obtain approval for an alternate use to an automobile repair facility. The court is not persuaded that the defendant's denial of the plaintiff's application for a zoning permit rules out any reasonable use of this property. The court notes that Section 321 of the Weston Zoning Regulations authorizes certain nonresidential uses by special permit in the RA-2 zone. The plaintiff is also free to apply for a use variance. Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, 606 (1991). By failing to pursue available alternative remedies the plaintiff has failed to comply with the finality requirement.
"The plaintiff may prevail on his claim of a constitutional deprivation if the board's denial . . . constituted a taking, either as a practical confiscation of his property or by application of a balancing test . . . As we have recently reiterated, however, the plaintiff is not entitled to judicial review of the merits of his regulatory takings claim until he has met the requirement of establishing the finality of the agency determination . . . To demonstrate the requisite finality, a property owner asserting a regulatory takings claim bears the burden of proving that the relevant government entity will not allow any reasonable alternative use of his property." (Citations omitted; emphasis in original; internal quotation marks omitted.) Francini v. Zoning Board of Appeals, supra, 228 Conn. 792; A F Construction Co. v. Zoning Board of Appeals, 60 Conn.App. 273, 279 (2000).
Although there is nothing in the record to support it the plaintiff makes a statement in its brief that if the property cannot be utilized as a repair facility its value "will severely decrease." Whether such a decrease is so severe as to amount to a practical confiscation or whether under the balancing test introduced in Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 257-58 (1995), the defendant's action has impermissibly infringed upon the plaintiff's reasonable investment-backed expectations so as to constitute a taking cannot be determined from the record as it now stands. Additionally, the plaintiff has not sought to expand the record or present additional evidence pursuant to G.S. Section 8-8(k).
Notwithstanding the failure of the plaintiff to offer evidence on the subject of a taking, in reply to the court's question, defense counsel stated that he would seek such an opportunity without specifying the vehicle he would choose to employ. Because of the lack of record evidence of finality as described above, the court does not deem it proper, sua sponte, to order such an evidentiary hearing. D'Addario v. Planning and Zoning Commission, 25 Conn.App. 137, 140, n. 3 (1991).
For the foregoing reasons the appeal is dismissed.