133 Conn. App. 359
Conn. App. Ct.2012Background
- Cease and desist order issued July 24, 2006 by the zoning enforcement officer for Mountain Brook residents planting recreational equipment, sheds, and fences on properties within the Mountain Brook open space residential district.
- The Mountain Brook development is an open space planned residential district created under § 4.3 of Wallingford zoning regulations; permitted uses are one-, two-, and multi-family dwellings in principal buildings.
- DeVoe concluded that the recreational equipment, sheds, and fences were not permitted for individual lot owners in the district and that approval from the planning and zoning commission was required.
- The ZBA, by a 3-2 vote, denied the plaintiffs’ appeal from the cease and desist order on September 18, 2006.
- The trial court sustained the plaintiffs’ appeal in 2009, and the case proceeded on certified questions of regulation interpretation and whether the record supported the board’s decision; the appellate court reversed in part and remanded for dismissal on the sheds and fences issues while affirming in other respects.
- The court emphasizes de novo review of the board’s interpretation of the regulations and the need to interpret the regulations to yield a reasonable, rational result, given the sparse record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether individual owners may place children’s recreational equipment in Mountain Brook. | Mountain Brook argues § 4.3.B.2.c permits such facilities for individuals. | Board contends facilities must be centrally located and may not be placed per unit. | Children’s recreational equipment not supported by substantial evidence; not permitted per-unit. |
| Whether a shed placed by individual unit owners is permitted in the district. | Sheds fit under utility/building allowances or fall within § 4.3.B.2 as permitted structures. | Sheds not expressly listed; special permit may be required; otherwise prohibited. | Sheds violate regulations; not authorized without proper permit. |
| Whether fences placed by individual unit owners violate the district’s regulations. | Fences are not listed as a permitted use or accessory use; may be allowed with site plan/permitting. | Fences require site plan and possibly special permit; not properly authorized. | Fences violate regulations; not permitted without compliance. |
| Whether retroactive application of § 4.3.D.5.E (open space use limits) is applicable to preexisting Mountain Brook units. | § 4.3.D.5.E cannot be retroactively applied to preexisting uses. | Most items not in open space; § 4.3.D.5.E does not apply to limited common area. | Court did not determine preexisting nonconforming use status; relied on preexisting record; remanded for dismissal on sheds/fences. |
Key Cases Cited
- Caserta v. Zoning Board of Appeals, 226 Conn. 80 (1993) (board review focus on its record, not officer's findings; de novo board determination)
- Moon v. Zoning Board of Appeals, 291 Conn. 16 (2009) (statutory interpretation; use of common meaning in regulation construction)
- Goulet v. Zoning Board of Appeals, 117 Conn.App. 333 (2009) (principles of statutory/regulatory interpretation; deference to agency not appropriate for pure questions of law)
- Trumbull Falls, LLC v. Planning & Zoning Commission, 97 Conn.App. 17 (2006) (interpretation of zoning regulations; guidance on statutory construction and rational results)