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Looney v. Zoning Board of Appeals

Superior Court of Connecticut, Judicial District of New London, New London

October 23, 2015

Patrick Looney et al.
v.
Zoning Board of Appeals of the Town of Old Lyme et al

MEMORANDUM OF DECISION

James J. Devine, J.

The present zoning dispute was heard by the court on September 22, 2015, as a result of an appeal by the plaintiffs, Patrick Looney and Diane Looney (" Plaintiffs"), from the decision of the Old Lyme Zoning Board of Appeals (" Board") to uphold a cease and desist order issued on January 17, 2014, by Anne Brown, the then acting Zoning Enforcement Officer of the Town of Old Lyme (" ZEO"). This appeal was brought pursuant to C.G.S. § § 8-8 and 8-6(a)(1) from a cease and desist order issued on January 17, 2014. Said appeal was timely filed by the plaintiffs, with briefs filed and arguments heard on the hereinbefore stated date.

The plaintiffs are the owners of certain real property in the R-10 Zone of Old Lyme, known as 2 Moss Trail, Old Lyme, Connecticut (" Property"). The Property is in the Rogers Lake West Shore Association, Inc., a special chartered municipality pursuant to 22 Spec. Acts 761, No. 364 § 1 (1937).

On January 17, 2014, the ZEO issued a Cease and Desist Order alleging the maintenance of a junkyard and storing rubbish, machinery, trash, refuse, debris and/or junk motor vehicles on the Property in violation of Zoning Regulations 6.1.2, 6.1.5 and 6.1.24 of the Old Lyme Zoning Regulations (" Regulations"). On February 14, 2014, Plaintiffs filed an appeal of the cease and desist order to the Board. A public hearing on the appeal was held on March 18, 2014, and continued on May 20, 2014, with notice of the public hearing being published in The Day on March 5, 2014, and March 12, 2014.

The appeal was presented to the Board by the Plaintiffs' attorney. At the presentation to the Board at the public hearing, Plaintiffs contended that the objects being stored were not junk, but useful personal property including motor vehicles, motorcycles, lawn mowers, blowers, boats, tools, miscellaneous parts, toys, etc.

After the close of the public hearing, the Board entered its open voting session and voted to uphold the decision of the ZEO in the cease and desist order by a unanimous vote. Notice of the Board's decision was published in The Day on May 23, 2014. On June 5, 2014, the Plaintiffs served the Board with their appeal of its decision to uphold the ZEO's cease and desist order.

At the hearing, the Plaintiffs presented evidence of ownership of the subject property with this court finding the Plaintiffs were classically aggrieved by the actions of the Board.

Upon appeal, the scope of judicial review of a decision of the Board is narrowly circumscribed. Conclusions reached by the Board must be upheld by the trial court if they are reasonably supported by the record. Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-60, 916 A.2d 5 (2007). Where no reason for its decision is expressly stated, the court must search the entire record to find a basis to uphold the decision. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988).

The proper focus of the court is on the evidence that supports the decision of the Board, rather than the contentions of the opponent. See Caserta v. Zoning Board of Appeals, 226 Conn. 80, 626 A.2d 744 (1993); Pleasant View Farms Development v. Zoning Board of Appeals of Wallingford, 218 Conn. 265, 269, 588 A.2d 1372 (1991). " The plaintiff has the burden of proof to show that the record does not support action of the agency." Laufer v. Conservation Commission, 24 Conn.App. 708, 715, 592 A.2d 392 (1991). Additionally, evidence is to be construed most favorably to upholding the ruling of the Board. Grady v. Katz, 124 Conn. 525, 1 A.2d 137 (1938).

" The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached." Primerica v. Planning and Zoning Commission, 211 Conn. 85, 96, 558 A.2d 646 (1989). In fact, even the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Vine, supra, 281 Conn. 559-60; Property Group, Inc. v. Planning and Zoning Commission, 226 Conn. 684, 697-98, 628 A.2d 1277 (1993).

Moreover, the credibility of witnesses and the determination of factual issues are matters solely within the province of the administrative agency. Vine, supra, 281 Conn. 559-60; Conetta v. Zoning Board of Appeals, 42 Conn.App. 133, 137-38, 677 A.2d 987 (1996); Protect Hamden/North Haven from Excessive Traffic and Pollution, Inc. v. Planning and Zoning Commission of the Town of Hamden, 220 Conn. 527, 600 A.2d 757 (1991). The court cannot substitute its judgment for that of the board or make factual determinations on its own. Farrington v. Zoning Board of Appeals, 177 Conn. 186, 190, 413 A.2d 817 (1979); Cumberland Farms, Inc. v. Zoning Board of Appeals of Westbrook, 74 Conn.App. 622, 814 A.2d 396 (2003). Decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing. Santos v. Zoning Board of Appeals, 100 Conn.App. 644, 647, 918 A.2d 303 (2007); Conetta, supra, 42 Conn.App. 137-38.

" Zoning boards of appeal are entrusted with the function of deciding within prescribed limits and consistent with the exercise of a legal discretion, whether a regulation applies to a given situation and the manner of its application." Molic v. Zoning Board of Appeals, 18 Conn.App. 159, 165, 556 A.2d 1049 (1989). The Appellate Court has frequently held that a local board is in the most advantageous position to interpret its own regulations and apply them to the situations before it. Doyen v. Zoning Board of Appeals of Essex, 67 Conn.App. 597, 603, 789 A.2d 478 (2002), cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002) (citing New London v. Zoning Board of Appeals, 29 Conn.App. 402, 405, 615 A.2d 1054, cert. granted, 224 Conn. 921, 618 A.2d 528 (1992) (appeal withdrawn March 18, 1993).

The Plaintiffs argued and briefed five issues in support of their appeal:

(1) The Board lacked authority to regulate zoning matters in the Rogers Lake West Shores Association, Inc. (" Association") and no valid delegation of zoning powers were made to the Town of Old Lyme (" Town");

(2) The subject regulations were too vague to enforce and in violation of their due process rights;

(3) The Board's decision was based upon selective enforcement in violation of their equal protection rights;

(4) The Board admitted photographs taken by the ZEO without a warrant; and

(5) The zoning regulations are preempted by C.G.S. § § 7-148(c)(7)(H)(xv), 7-148aa ...


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