University of Vermont AAHS

Babbitt v. Cromwell Zoning Board of Appeals

Connecticut Superior Court
2000 WL 277187
March 1, 2000

Summary of Opinion

The Town of Cromwell compliance officer issued an order to Messer and DiVicino to remove one of their two horses from property they own because keeping both was not in compliance with zoning provisions. The Zoning Board of Appeals set aside this order on the ground that the keeping of two horses on the property is authorized as a nonconforming use.

Babbitt, owner of abutting property, appealed this decision to the Superior Court. That court in this opinion upholds the decision of the Zoning Board of Appeals that keeping both horses on the property is lawful as a nonconforming use. To determine compliance with prior law, the compliance officer did not use the actual weight of the horses in question but estimated their weights from a book. In doing so, he made a mistake because keeping both horses would have been permitted under prior law if their actual weights had been used. If lawful under prior law, keeping the horses was lawful under current law as a nonconforming use.

Text of Opinion

I. Facts

On June 24, 1998, the plaintiff, Stanley L. Babbitt, brought this appeal against the defendants, the Cromwell Zoning Board of Appeals (the board), Carol J. Messer and Sheri DiVicino. The appeal challenges the board's decision to reverse a cease and desist order issued by a development compliance officer ordering Messer and DiVicino to remove a horse from the property located at 8 Greendale Avenue, Cromwell, Connecticut (the property).

The return of record reveals the following facts. At all times pertinent to this appeal, Messer was the owner of the property and DiVicino resided at the property. (Return of Record [ROR], Item 3.) DiVicino continuously maintained two horses on the property since July 17, 1996. (ROR, Items 4a; 6.)

On August 19, 1997, Cromwell Code 11.10 became effective. (ROR, 4a.) This section establishes a minimum requirement of three acres of land in order to keep one "large domestic animal pet" and one half acre for each additional large animal pet. (ROR, Item 22c.) Prior to that time, Cromwell Code 82-7 regulated the amount of land necessary for the maintenance of a large animal pet. (ROR, Item 4b.) Section 82-7 provides that "a large animal pet may be kept ... [on] a contiguous area behind the building line ... equivalent to ten (10) times the standard adult weight of the animal (as set forth in breed standards) expressed in square feet," excluding land within ten feet of common property lines and areas containing leaching fields. Under this section, additional large animal pets require an additional fifty percent of that area per animal. (ROR, Item 4b.) [FN1]

FN1. The parties are in agreement that 11.10 is inapplicable to the present matter and that in order for the board to have found that DiVicino was in compliance with the Cromwell regulations, she had to establish that her property was a prior nonconforming use under 82-7.

On March 6, 1998, the development compliance officer, Fred Curtain, issued a cease and desist order upon DiVicino and Messer ordering the removal of one horse from the property. (ROR, Item 4a.) The cease and desist order stated that "[t]he amount of land ... on your property for the use of grazing large animal pets is approximately 13,500 square feet, by using the previous Chapter 82 calculations." (ROR, Item 4a.) It further stated that "[t]he amount of useable grazing land ... is for one (1) horse and only one horse, since this is what you were grandfathered for." (ROR, Item 4a.)

Curtain calculated the amount of square feet necessary for one horse using a book he obtained from the local library entitled "The Horseman's Bible," which gives the weights of different breeds of horses. (ROR, Items 5; 25, p. 10.) Based on the weights of several different breeds of horses in the book, Curtain estimated that the weight of the first horse on the property was 1,000 pounds and then added fifty percent of that weight for a total of 1,500 pounds. (ROR, Item 25, pp. 10-11.) This weight thereby required 15,000 square feet of land for the maintenance of two horses on the property under 82-7. Curtain did not use the actual breeds of the horses on the property, but based his decision on a "horse that could possibly be" on the property. (ROR, Item 25, p. 10.)

On March 17, 1998, DiVicino filed an appeal from the cease and desist order to the board on the ground that her maintenance of two horses on the property constituted a prior nonconforming use under 82-7. (ROR, Item 3.) DiVicino argued that based on the estimated weight of her largest horse by a veterinarian, which was 900 pounds, the amount of land required for two horses under 82-7 was 13,500 square feet, which was the amount of land Curtain found available for one horse under 82-7. (ROR, Item 6.)

After duly published notice, the board held a public hearing regarding DiVicino's appeal on April 2, 1998. (ROR, Items 2; 25.) The board held further hearings on the matter on May 5, 1998 and June 2, 1998, respectively, and on June 2, 1998, voted to sustain DiVicino's appeal. (ROR, Items 23; 24.)

Babbitt, an abutting landowner of the property, seeks, inter alia, a reversal of the board's decision upholding DiVicino's appeal of the cease and desist order on the ground that the board acted illegally, arbitrarily and in abuse of its discretion in overturning it.

II. Aggrievement

"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). Section 8-8(b) of the General Statutes provides, in pertinent part, that "any person aggrieved by any decision of a [zoning] board may take an appeal to the superior court ..." Section 8-8(a)(1) of the General Statutes provides that an aggrieved person, for purposes of 8-8, "includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."

Babbitt is the owner of the property located at 9 Laurel Drive, Cromwell, Connecticut, which abuts the property located at 8 Greendale Avenue, Connecticut. Accordingly, Babbitt is statutorily aggrieved.

III. Timeliness

An appeal of a zoning board of appeal's decision must "be commenced by service of process ... within fifteen days from the date that notice of the decision was published ..." General Statutes 8-8(b). The return of record reveals that the board published notice of its decision in the Hartford Courant on June 5, 1998. (ROR, Item 1.) On June 19, 1998, Peter Doolittle, Chairman of the Town of Cromwell Zoning Board of Appeals, and Darlene DiProto, Town Clerk of Cromwell, were served. Messer and DiVicino were additionally served on June 19, 1998. Accordingly, the appeal is timely.

IV. Scope of Review

On review of a decision of a zoning board of appeals, the Superior Court "may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from." General Statutes 8-8(1). "[F]ollowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board." Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82, 626 A.2d 744 (1993).

Where a board fails to give the reasons for its decision or the reasons are insufficient to support the decision, the court must search the record to determine whether it contains substantial evidence from which the ultimate finding could be inferred. See Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988); Connecticut Building Wrecking Co., Inc. v. Carothers, 218 Conn. 580, 601, 590 A.2d 447 (1991). "Courts are not to substitute their judgment for that of the board ... and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised ..." (Citation omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). The plaintiff has the burden of demonstrating that the board acted improperly. See id. The court is limited to determining whether the board's act was "arbitrary, illegal or an abuse of discretion." Id., 205-06.

V. Discussion

A. Site inspection

Babbitt argues that the board acted illegally, arbitrarily and in abuse of its discretion in overturning the cease and desist order because the board's determination that the property complied with 82-7 was based on an inspection of the property by a board member, Dave Beauchemin. [FN2] Babbitt further contends that Beauchemin's statement, at the June 2, 1998 meeting of the board, that the property complied with 82-7, was an evidentiary matter made after the public hearing was closed, thereby depriving him of the opportunity to refute Beauchemin's conclusion and present evidence at a duly noticed public hearing.

FN2. Babbitt further argues that Beauchemin's statement regarding his inspection was the sole reason for the board's decision, and as such, the board's decision was not supported by the record. As noted, where a board fails to give the reasons for its decision or the reasons are insufficient to support the decision, the court must search the record to determine whether it contains substantial evidence from which the ultimate finding could be inferred. See Grillo v. Zoning Board of Appeals, supra, 206 Conn. 369; Connecticut Building Wrecking Co., Inc. v. Carothers, supra, 218 Conn. 601. For the reasons discussed, infra, the court finds that the record contains substantial evidence which supports the board's decision.

"[P]roceedings before an administrative board are informal and the board is not bound by strict rules of evidence and may act upon facts which are known to it, even though they are not produced at the hearing." (Citation omitted; internal quotation marks omitted.) Grimes v. Conservation Comm. of the Town of Litchfield, 243 Conn. 266, 276, 703 A.2d 101 (1997). "The principal procedural limitations on the hearing are that there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary or to be fairly apprised of the facts upon which the board is asked to act." (Citation omitted; internal quotation marks omitted.) Conetta v. Zoning Board of Appeals, 42 Conn.App. 133, 137, 677 A.2d 987 (1996).

Administrative agency members "are permitted to base their decisions in part on facts within their peculiar knowledge, including information gleaned from a site inspection ... A site visit is therefore an appropriate investigative tool ..." (Citations omitted; internal quotation marks omitted.) Id., 277. The failure of an administrative agency to give notice of a site inspection to an interested party does not violate administrative fundamental fairness. See id., 281. "[A] rule requiring [an administrative agency] to give personal notice of site inspections to interested persons when one of the parties is in attendance would be unnecessarily burdensome." Id.

Based on the foregoing, Beauchemin's inspection of the property was a proper method for determining whether it complied with 82-7. Moreover, the board published notice of the public hearing scheduled for April 2, 1998 and the record reveals that Babbitt, as well as his son, attended this public hearing. (ROR, Item 25.) At the April 2, 1998 public hearing, Babbitt and his son argued against the reversal of the cease and desist order and submitted documentation in support of their position. (ROR, Items 7; 8; 9; 25 .) Additionally, the public hearing was continued from April 2, 1998 to the May 5, 1998 meeting of the board. (ROR, Items 23; 25, p. 17.) The return of record indicates that Babbitt did not attend the May 5, 1998 meeting where the board voted to close the public hearing. (ROR, Items 19; 23.) Accordingly, the court finds that Babbitt was afforded ample opportunity to present evidence in support of his position and that the hearing complied with the applicable procedural limitations. [FN3]

FN3. The chairman of the board received a letter from Babbitt on June 2, 1998, the date of the last hearing regarding this matter. The board properly declined to consider the letter on the ground that the public hearing had already been closed on May 5, 1998.

B. Lawful prior nonconforming use

Babbitt argues that DiVicino's use of the property is not a lawful prior nonconforming use under 82-7 because: (1) she did not present evidence to the board that she complied with 82-7 using the weight standard set forth in the regulation; and (2) the land she claims available for the maintenance of her two horses violates the regulation.

Under General Statutes 8-2, a zoning authority may not prohibit the continuance of a nonconforming use which existed at the time of the adoption of a new regulation. A nonconforming use is a "use or structure prohibited by the zoning regulations but ... permitted because of its existence at the time that the regulations [were] adopted." Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 710, 535 A.2d 799 (1988). "For a use to be considered nonconforming ... that use must possess two characteristics. First, it must be lawful and second, it must be in existence at the time that the zoning regulation making the use nonconforming was enacted ..." (Citation omitted; internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 91-92, 527 A.2d 230 (1987).

1. Section 82-7 weight standard

Babbitt argues that the board's decision was illegal, arbitrary and capricious because DiVicino did not demonstrate that she was in compliance with 82-7 using the standard of measurement provided for in the regulation. Section 82-7 provides that the standard weight of a large animal pet, for purposes of determining the requisite minimum square feet available for the maintenance of a large animal pet, is to be determined as set forth in breed standards.

DiVicino presented evidence to the board that she complied with 82-7 based on the actual weight of her horses estimated by a veterinarian using weight tapes. (ROR, Item 6.) The veterinarian determined that the larger horse did not exceed 900 pounds and that the smaller horse did not exceed 750 pounds. (ROR, Item 6.) Thus, DiVicino argued that using the weight of the largest horse under the formula provided in 82-7, the greatest amount of land required was 13,500 square feet. As the board found that DiVicino's property was a prior nonconforming use under 82-7, it implicitly approved the use of the veterinarian's estimated weights for purposes of 82-7.

"Regulations ... are construed in accordance with accepted rules of statutory construction." Caron v. Inland Wetlands & Watercourses Commission, 25 Conn.App. 61, 65-66, 592 A.2d 964 (1991), aff'd, 222 Conn. 269, 610 A.2d 584 (1992). In construing a statute, the court's "initial guide is the language of the statute itself ... Furthermore, [the court interprets] statutory language in light of the purpose and policy behind the enactment ... In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended ..." (Citations omitted; internal quotation marks omitted.) Willow Springs Condominium Association, Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 26, 717 A.2d 77 (1998). "Although the construction and interpretation of a statute is a question of law for the courts to decide ... it is well established practice [for the] court to accord great deference to the construction given [a] statute by the agency charged with its enforcement ..." (Citations omitted; internal quotation marks omitted.) Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 372, 627 A.2d 1296 (1993). "A local board is in the most advantageous position to interpret its own regulations and apply them to the situations before it." New London v. Zoning Board of Appeals, 29 Conn.App. 402, 405, 615 A.2d 1054, cert. denied, 224 Conn. 922, 618 A.2d 528 (1992). "The practical construction placed over the years upon ambiguous language ... by those charged with its administration becomes weighty evidence of what the law is." Clark v. Town Council, 145 Conn. 476, 485, 144 A.2d 327 (1958).

Section 82-7 does not define the term "breed standards," nor does it reference any authority from which breed standards can be determined for purposes of 82-7. The regulation does not cite to "The Horseman's Bible" and the regulation had never before been interpreted based on this book. Indeed, there was information presented to the board that the regulation had previously been applied using actual weights. (ROR, Items 6; 25, p. 13.)

In interpreting 82-7, Curtain failed to determine the breed of the horses on the property. (ROR, Item 25, p. 12.) He arbitrarily selected various breeds and estimated the weight for a horse that could possibly be on the property and then computed the square foot requirement under 82-7. (ROR, Item 25, pp. 10 12.) Further, there is no evidence that Curtain informed DiVicino of the standard that he used in making his calculation.

In light of the ambiguity of the definition of "breed standard," the board's determination that the property complied with 82-7 based on a veterinarian's estimation of the actual weights of the horses is reasonable. Accordingly, the court cannot find that the board's reversal of the cease and desist order was illegal, arbitrary or an abuse of its discretion.

2. Land claimed available for the maintenance of two horses

Babbitt argues that DiVicino's property is not a lawful prior nonconforming use under 82-7 because the portion of DiVicino's land that she claims is available for two horses is in violation of 82-7, and therefore, that the board's decision is not supported by the record. Specifically, Babbitt argues that: (1) a plot plan submitted to the board showed that leaching fields exist in the area claimed by DiVicino as available for the two horses and; (2) that the land claimed available for the horses violates the fence line buffer requirement. (ROR, Items 7b; 14.) [FN4]

FN4. Babbitt also argues that the land DiVicino claims is available for two horses is not a lawful prior nonconforming use because: (1) the barn used for the horses was only permitted by the building department of the Town of Cromwell for use as a garage; (2) the barn and land claimed available for the horses is in violation of Cromwell Code 146.16.B., requiring that barns and yards for domestic animals be located at least one hundred feet from a common property line; (3) the existence of manure on DiVicino's property constituted a nuisance under Cromwell Code 146- 9(A)(3) and (6); and (4) DiVicino is in violation of several other Cromwell Code sections pertaining to sanitation. These additional alleged violations are irrelevant with respect to the present matter. On an appeal from a zoning board of appeals decision, a court may only "reverse or affirm, wholly or partly, or may modify or revise the decision appealed from." General Statutes 8-8(1). This action is an appeal of the board's reversal of the cease and desist order, which was limited to the issue of whether DiVicino complied with 82-7. The allegations of violations other than 82-7, therefore, will not be considered because they are not proper issues on appeal to this court. Lastly, in his brief, Babbitt argues that DiVicino was not aggrieved so as to give her standing to appeal the cease and desist order to the board because she had no legal title to the property and stated in her appeal application that the horses were her children's, not hers. At the hearing on this matter, Babbitt's attorney stipulated that there was no issue as to aggrievement.

Part of the space designated as a leaching area on the plot plan submitted by Babbitt, dated 1973, actually states "area reserved for future leaching fields." (ROR, Item 7b.) Moreover, Curtain determined that DiVicino had 13,500 square feet available for a large animal pet excluding the front yard, leaching fields and side encumbrances. (ROR, Item 25, pp. 10-12.) Furthermore, Beauchemin also found that the land available for the horses complied with 82-7.

A trial court has "no authority to weigh the evidence and determine the issues of fact involved." Horn v. Zoning Board of Appeals, 18 Conn.App. 674, 677, 559 A.2d 1174 (1989). "[T]he proper focus of a reviewing court is on the decision of the zoning agency and, with regard to its factual determinations, on the evidence before it that supports, rather than contradicts, its decision." Caserta v. Zoning Board of Appeals, supra, 226 Conn. 87. The court finds that substantial evidence supports the board's decision that DiVicino's use of the property complies with 82-7. Accordingly, the court cannot find that the board's decision was arbitrary, illegal or an abuse of its discretion.

VI. Conclusion

For the reasons herein stated, the decision of the board is affirmed and Babbitt's appeal is dismissed.

It is so ordered.


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