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Bob Bishop Builder, LLC v. Zoning Board of Appeals of the Town of Orange

Superior Court of Connecticut, Judicial District of Ansonia-Milford, Milford

October 28, 2015

Bob Bishop Builder, LLC
v.
Zoning Board of Appeals of the Town of Orange

MEMORANDUM OF DECISION RE PLAINTIFF'S APPEAL FROM ORANGE ZONING BOARD OF APPEALS

Hon. John W. Moran, Judge

The plaintiff, Bob Bishop Builder, LLC, appeals from the decision of the defendant the Zoning Board of Appeals of the Town of Orange (ZBA), to uphold the decision of the zoning enforcement officer (ZEO) to deny a certificate of zoning compliance to construct a single-family dwelling on the property known as 939 Grassy Hill Road. For the reasons set forth below, the court finds that (1) the ZBA and ZEO properly concluded that there had been a merger of two adjoining parcels of land pursuant to § 383-13(K)(3) of the Orange Zoning Regulations, thereby denying the plaintiff's application for a certificate of zoning compliance, and (2) the plaintiff has failed to demonstrate that the defendant should be precluded from applying § 383-13(K)(3) under the doctrine of municipal estoppel. The plaintiff's appeal is thereby dismissed.

A review of the record reveals the following facts. On February 10, 2010, the plaintiff purchased two adjacent parcels of land known as 939 and 941 Grassy Hill Road in Orange, Connecticut (941 and 939 Grassy Hill) from the estate of Priscilla Schummrick. Priscilla Schummrick's husband, William Schummrick, obtained the land that is now 941 Grassy Hill on October 12, 1936, and built a house on this lot in 1938. William Shummrick later obtained the land that is now 939 Grassy Hill in 1939. These parcels are situated north to south with 941 Grassy Hill being the northern most parcel. Nine hundred forty-one Grassy Hill is a fully developed residential lot that includes the house built by William Schummrick whereas 939 Grassy Hill is fully wooded and undeveloped.

In 2010, the plaintiff began repairing the house at 941 Grassy Hill and became interested in developing 939 Grassy Hill. The plaintiff consulted his attorney at the time, Ted Shumaker, to determine whether 939 Grassy Hill could be developed as a separate lot. Shumaker informed the plaintiff that he could develop 939 Grassy Hill because 941 and 939 were actually two separate lots. The plaintiff proceeded to contact the ZEO, Paul Dinice, regarding a certificate of zoning compliance. Dinice informed the plaintiff that 941 and 939 Grassy Hill were separate lots, and it was his opinion that 939 Grassy Hill was an approved lot and could be developed as a residential property provided that the plaintiff apply for and receive a certificate of zoning compliance and building permit. The ZEO informed the town tax assessor, and the parcels were taxed as two separate lots.

The plaintiff continued rehabilitating 941 Grassy Hill and transferred the parcel of land and house to Grassy Hill, LLC, an entity owned and operated solely by the plaintiff. The plaintiff then prepared to develop 939 Grassy Hill by hiring engineers and architects. He also obtained approval from the town engineer and sanitarian for a septic tank design. In the course of his preparation, the plaintiff sought a front yard variance for 939 Grassy Hill, which was met with significant opposition from the neighborhood at the zoning board's January 2013 meeting. The plaintiff withdrew his request and created a new plan that was compliant with town zoning regulations. During the meeting, and later via e-mail, the town attorney, Vincent Marino, opined that the two lots had merged pursuant to the town's zoning regulations: " [A]t the time Mr. Schummrick purchased the two lots in 1938 and 1939, both lots were considered 'building lots' at that time; however, since he held both lots in identical ownership since that time, under section 383-13(K)(3) of the town's zoning regulations, for purposes of zoning, the two lots have merged and the side lot can no longer be developed as an independent building lot."

On June 17, 2013, the plaintiff submitted a new application for a certificate of zoning compliance to build a single-family home at 939 Grassy Hill. The ZEO denied this application in a letter dated July 2, 2013. The letter states that 939 Grassy Hill is a nonconforming lot and that it has merged with 941 Grassy Hill pursuant to § 383-13(K)(3) of the town's zoning regulations. Therefore, " if 939 Grassy Hill Road was developed, the existing dwelling on what is known as 941 Grassy Hill Road would fail to meet the required setback from [the] 'other' (side) property line."

The plaintiff appealed to the ZBA, which held a hearing on September 9, 2013. The ZBA affirmed the ZEO's decision and denied the plaintiff's appeal. The plaintiff then commenced the instant appeal by service of process on September 26, 2013, on the grounds that (1) the ZEO misapplied and misinterpreted the town's zoning regulations, and (2) even if the ZEO and ZBA properly applied § 383-13(K)(3), the defendant is precluded from applying the regulation under the doctrine of municipal estoppel. This court held a hearing on the matter on July 31, 2015.

I

AGGRIEVEMENT

General Statutes § 8-8(b) provides in relevant part: " any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located . . ." " In the case of a decision by a . . . 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." General Statutes § 8-8(a)(1). " Those persons who come within § 8-8(a)(1) are statutorily aggrieved and are not required to plead and to prove the elements of classical aggrievement." Lucas v. Zoning Commission, 130 Conn.App. 587, 591, 23 A.3d 1261 (2011).

In the present case, the record indicates that the plaintiff owns property located at 941 and 939 Grassy Hill in Orange, Connecticut, which the ZEO and ZBA deemed to have merge into a single lot thereby preventing the plaintiff from developing 939 Grassy Hill. As previously stated on the record, this court finds that the plaintiff is statutorily aggrieved.

II

STANDARD OF REVIEW

General Statutes ยง 8-6(a)(1) enables the ZBA " [t]o hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any [town zoning] bylaw, ordinance or regulation adopted under the provisions of this chapter." " [A] zoning board of appeals hears and decides an appeal de novo . . . It is the board's responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts . . . In doing so, the board is endowed with a liberal discretion . . . Indeed, under appropriate circumstances, the board may act upon facts which are known to it even though they are not produced at the hearing . . . Upon an appeal from the board, ...


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