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Maluccio v. East Lymezoning Board of Appeals

Court of Appeals of Connecticut

July 18, 2017

FORTUNATA MALUCCIO
v.
EAST LYMEZONING BOARD OF APPEALS

          Argued February 7, 2017

         Appeal from Superior Court, judicial district of New London, Hon. Robert C. Leuba, judge trial referee.

          Mark S. Zamarka, with whom, on the brief, was Edward B. O'Connell, for the appellant (defendant).

          Eugene C. Cushman, for the appellee (plaintiff).

          Sheldon, Mullins and Pellegrino, Js.

         Syllabus

         The plaintiff property owner appealed to the trial court from the decision of the defendant, the East Lyme Zoning Board of Appeals, upholding the denial by the zoning enforcement officer of the plaintiff's application for a permit to build a single family residence on certain of her real property in the town of East Lyme. The plaintiff's property was originally designated on a subdivision plan map as a recreation area. When the developer of that subdivision submitted the plan to the East Lyme Planning Commission, the subdivision regulations gave the commission the discretion to require that the developer provide land to the town for open space for parks and playgrounds. The commission approved the subdivision plan as submitted, but did not explicitly require that it contain a recreation area as the commission deemed proper. On two occasions, the town rejected offers from the subdivision's developers to deed the property to the town, and the plaintiff later acquired the property at a tax sale. The zoning enforcement officer denied the plaintiff's subsequent application for a building permit for a single family residence because the property had been designated as a recreation area on the original subdivision plan. The plaintiff then appealed that decision to the defendant, which concluded that the zoning enforcement officer had properly denied the building permit on that ground. On the plaintiff's appeal from that decision, the trial court found that the defendant's decision was illegal and not supported by the record. Specifically, the trial court reasoned that the recreation area notation on the subdivision plan created, if anything, a private right or restriction that could not be enforced by the zoning enforcement officer or the defendant. The court sustained the plaintiff's appeal and directed the defendant to reverse the decision of the zoning enforcement officer, and the defendant, on the granting of certification, appealed to this court. The defendant claimed that the trial court had improperly found that the recreation area designation on the subdivision map created only a private right or restriction unenforceable by zoning law. The defendant specifically argued that the subdivision regulations had required the developer to label the property as a recreation area and, therefore, the zoning enforcement officer had the power to deny the plaintiff's building permit application because the property was currently a recreation area. Held that the trial court properly sustained the plaintiff's appeal, as the defendant's decision to uphold the denial of the building permit application was illegal and unsupported by the record: the subdivision regulations did not require an open space parcel, but merely required that a developer allocate a parcel as open space so that the commission could decide whether such a parcel should be required, and here, based on the commission's silence in that regard, it could not be assumed that the commission had required that the parcel remain open space; moreover, because the subdivision regulations made no mention of the commission's power to require that a developer set aside a recreation area, and only allowed the commission to require open space for parks and playgrounds, the commission had lacked the authority to require the developer to designate a recreation area and, therefore, the plaintiff's building permit could not be denied on that ground; furthermore, the defendant could not prevail on its claim that the trial court erred in determining that the town was required to accept title to the property to effectuate the recreation area designation, as that claim was based on a misguided reading of that court's decision, which had focused on the illegality of the action taken and not what action the town could have taken to effectuate the recreation area designation.

         Procedural History

         Appeal from the decision of the defendant upholding the denial by the zoning enforcement officer of the plaintiff's application for a building permit, brought to the Superior Court in the judicial district of New London and tried to the court, Hon. Robert C. Leuba, judge trial referee; judgment sustaining the appeal, from which the defendant, on the granting of certification, appealed to this court. Affirmed.

          OPINION

          PELLEGRINO, J.

         This appeal is brought by the defendant, the East Lyme Zoning Board of Appeals (board), from a decision of the trial court sustaining an appeal from the board's decision denying a building permit for a parcel of land owned by the plaintiff, Fortunata Maluccio, that was designated as a ‘‘recreation area'' on an original subdivision plan. The defendant claims that the trial court improperly found that the designation of the parcel as a ‘‘recreation area'' did not preclude the development of that parcel for residential use. We affirm the judgment of the trial court.

         The following facts and procedural history are relevant to this appeal. The plaintiff purchased a lot with the address of 6 Red Fox Road (parcel) in the Green Valley Lakes subdivision in East Lyme (town) at a tax sale on May 26, 2006. The Green Valley Lakes subdivision was originally approved on July 13, 1970, by the East Lyme Planning Commission (commission). The East Lyme Subdivision Regulations (regulations), as they existed in 1970, gave the commission discretion to require developers to provide land to the town for ‘‘open space for parks and playgrounds as it may deem proper . . . .'' East Lyme Subdivision Regs. (Rev. to June 5, 1967), § 3.5. Accordingly, the developer of Green Valley Lakes designated one lot as a ‘‘recreation area'' on the subdivision plan he submitted for approval to the commission. The lot labeled ‘‘recreation area'' is the parcel at issue in this appeal.

         At its meeting on July 13, 1970, the commission approved the subdivision plan that included the parcel labeled as a ‘‘recreation area.'' The vote on the subdivision, however, did not explicitly mention whether a recreation area would be required. On February 14, 1972, the developer recorded on the land records of the town a ‘‘Declaration of Restrictions'' relating to the subdivision. No mention was made of the parcel, any special restrictions regarding the parcel, or any rights created for the use of the parcel by any lot owners.

         On July 5, 1973, the original developer offered to deed the parcel to the town. The minutes of the town Board of Selectmen meeting state that, following a discussion, the selectmen voted unanimously to reject the offer. Once more, in1979, a subsequent developer also offered to deed the parcel to the town, but the offer was rejected. The parcel has remained in its natural state since 1970, has not been classified as open space by the assessor, and does not appear as open space on the town's plan of development or comprehensive plan. No rights in the parcel were deeded to lot ...


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