ROBERT PARKER ET AL. v. ZONING COMMISSION OF THE TOWN OF WASHINGTON ET AL.
(AC 44130)
Appellate Court of Connecticut
January 11, 2022
Elgo, Moll and Sheldon, Js.
Argued March 15, 2021
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Syllabus
The plaintiffs, owners of real property located within 100 feet of that of the defendant W Co., appealed to the Superior Court from the decision of the defendant Zoning Commission of the Town of Washington granting W Co.‘s application to modify a special permit for the construction of an inn. W Co.‘s predecessor in title, W, had sought a special permit in 2008 to construct the inn. The commission denied the request in 2011, and W appealed to the Superior Court. While the appeal was pending, the commission granted W a special permit to operate a school on the property. The Superior Court thereafter upheld the commission‘s denial of the request for the special permit to construct the inn, and W appealed to this court. While W‘s appeal was pending before this court, the parties in that appeal entered into a settlement agreement in 2013 that permitted W to pursue construction of the inn, known as the main building, and associated appurtenances. The settlement agreement also contained sixteen conditions regarding the construction, and W agreed to surrender the special permit approval that it had obtained for a school. At a special meeting in January, 2013, the commission approved the settlement agreement and incorporated into it a 2012 revision of an architect‘s site plan for the inn, two architectural renderings and conditions that were contained in the special permit approval for the school. Thereafter, a motion for approval of the settlement agreement was filed with the Superior Court pursuant to statute (
- The plaintiffs could not prevail on their claim that the Superior Court improperly concluded that the commission‘s approval of W Co.‘s special permit modification did not constitute an impermissible expansion of a nonconforming structure:
- Although the main building depicted in the 2012 site plan did not satisfy the common-law standard for a nonconforming use, insofar as it did not comply with the lot line setback requirements in the zoning regulations and was not in existence in 2012 when it was merely a contemplated use of the property, because the commission and the court ratified the settlement agreement and all statutory requirements were satisfied, the proposed main building constituted a lawful, albeit nonconforming, structure that could not be expanded or enlarged within the setback area in the absence of a variance from the town‘s Zoning Board of Appeals.
- The plaintiffs’ claim that the commission authorized an impermissible vertical expansion of the nonconforming main building was unavailing, notwithstanding the plaintiffs’ assertion that a height limitation could be found in W‘s proposed plan for the school and sewage discharge plans W had submitted for state approval: the Superior Court properly determined that the commission did not authorize an impermissible expansion when it approved W Co.‘s special permit modification, as the plans for the school and sewer discharge were not part of the settlement agreement, which described the 2012 site development as the complete site plan, and the settlement agreement did not specify a height limitation, which was never discussed at the special meeting; moreover, the architectural renderings did not contain dimensions or numerical specifications, the record contained no indication that the commission considered those renderings as accurate depictions of the height of the proposed main building, and the commission was entitled to credit testimony that the architectural renderings were offered merely for illustrative purposes and that the parties to the settlement agreement did not undertake to create a comprehensive agreement; furthermore, contrary to the plaintiffs’ contention, the commission did not authorize an expansion of the floor area or volume of the main building, as the settlement agreement did not contain a restriction as to the floor area or volume of the main building, and the commission members who approved W Co.‘s application to modify the special permit in 2018 and were members of the commission in 2013 when it approved the settlement agreement were entitled to rely on their personal knowledge of the settlement agreement and the special meeting.
- The plaintiffs could not prevail on their claim that the Superior Court improperly concluded that W Co.‘s special permit application did not constitute an impermissible expansion of a nonconforming use, which was based on their assertions that only accessory uses mentioned in the settlement agreement were permitted and that the inclusion of a bar, a prefunction meeting area and a meeting room/library were not permitted accessory uses: the record contained substantial evidence that the parties to the settlement agreement did not intend to restrict accessory uses to only those specifically mentioned in the settlement agreement and did not include floor plans that depicted the uses contemplated for the interior of the main building, as the transcript of the special meeting contained no discussion of the scope of accessory uses, no floor plans were presented at that hearing, and the commission heard testimony from a party to the settlement agreement, which it was entitled to credit, that the parties to that agreement never undertook to create a comprehensive agreement; moreover, the bar, prefunction meeting area and meeting room/library were permitted accessory uses, as the commission reasonably could have found that those uses had commonly, habitually and by long practice been established as reasonably associated with the primary use of an inn in Washington, the commission used the only existing inn in town as a de facto model of what the term “inn” meant, as the zoning regulations did not define “inn,” there was uncontroverted evidence that the existing inn featured a bar, libraries and meeting areas, and the commission reasonably could have found that W Co.‘s use of the property would not result in a substantial difference in effect on the surrounding neighborhood, there having been evidence that all of the accessory uses W Co. proposed were typical of what inns do and that the proposed uses were of a smaller scale than those at the existing inn; furthermore, the proposed accessory uses in the settlement agreement were the same as those approved in the commission‘s granting of W Co.‘s motion to modify the special permit, and the commission required as a condition of its approval of the special permit modification that the approval was subject to all of the conditions and limitations in the settlement agreement as well as the more restrictive limitations the commission imposed in its approval of the settlement agreement.
- The plaintiffs’ claim that the Superior Court failed to require compliance with the special permit standards in the zoning regulations was unavailing, as the plaintiffs failed to rebut the strong presumption of regularity that attaches to the conduct of zoning commissions: the commission reasonably could have concluded that W Co.‘s proposed use of the property comported with the intent and objectives of the zoning regulations and the town‘s plan of conservation and development, and was in harmony with the orderly development of the town and surrounding neighborhood; moreover, the zoning regulations previously had authorized use of the property as an inn, the settlement agreement plainly permitted the use of the property in that manner and provided a mechanism for modification of the plans contained in that agreement, and, although the commission did not render an official, collective statement of reasons for its action, as required by statute (
§ 8-3c (b) ), noncompliance with that imperative was commonplace and condoned by decades of appellate authority; furthermore, the commission gave ample attention to the propriety and the impact of W Co.‘s proposed use of the property, the commission was cognizant of the fact that the only other inn in Washington had featured comparable primary and accessory uses for decades, the commission was well aware of the protracted procedural history of the proposed use, and the changes in the special permit application did not materially alter those considerations.
Procedural History
Appeal from the decision of the named defendant granting the application of the defendant 101 Wykeham Road, LLC, for the modification of a special permit for the construction of an inn, and for other relief, brought to the Superior Court in the judicial district of Litchfield at Torrington and transferred to the judicial district of Waterbury, Complex Litigation Docket; thereafter, the case was tried to the court, Bellis, J.; judgment dismissing the appeal, from which the plaintiffs, on the granting of certification, appealed to this court. Affirmed.
Gail E. McTaggart, for the appellants (plaintiffs).
Michael A. Zizka, for the appellee (named defendant).
Paul V. Gelderman, for the appellee (defendant Erika Klauer et al.).
Teresa R. Peacocke, self-represented, the appellee (defendant).
Opinion
ELGO, J. The
This appeal concerns the development of a 26.9 acre parcel of real property owned by the applicant and known as 101 Wykeham Road in Washington (property). The property is located in the “R-1 Farming and Residential” zoning district.4 Among
In May, 2008, an entity known as Wykeham Rise, LLC (Wykeham), the predecessor in title to the applicant, applied for a special permit to construct an “inn and associated appurtenances” on the property. Following a lengthy hearing over the course of several months, the commission, by a vote of three to two, denied that application.5 Wykeham appealed from that decision to the Superior Court, claiming that (1) the commission lacked a valid reason for its denial, and (2) the commission‘s decision must be reversed due to the improper participation of alternate members in its deliberations and the improper predetermination of the merits of the application by one regular member of the commission.
While that appeal was pending before the Superior Court, Wykeham alternatively sought special permit approval to operate a school on the property,6 and it is undisputed that the commission granted such approval. Although the record before this court is voluminous and contains materials that reference “Wykeham University,” it does not contain copies of any such special permit applications or the commission‘s formal decision to approve such a special permit. The record nonetheless indicates that Wykeham agreed, as a condition to the settlement agreement at issue in this appeal, to surrender the special permit approval that it had obtained for a school once the settlement agreement was ratified. See footnote 7 of this opinion.
In October, 2011, the Superior Court issued its memorandum of decision on Wykeham‘s appeal from the commission‘s denial of its request for a special permit to construct an inn on the property. The court concluded that none of Wykeham‘s claims constituted reversible error. At the same time, the court noted its concern about the conduct of the commission, stating in relevant part: “The court observes . . . that certain commission members engaged in a level of conduct that skirted the boundaries of what is appropriate for municipal public officials sitting on a commission. First, during the course of the five public hearings held on Wykeham‘s application . . . Commissioner [Valerie] Friedman made observations and comments that might lead one to believe that the application was being predetermined and prejudiced in such a way that the principles of fundamental fairness during the proceedings were being undercut. . . . The court finds that . . . Commissioner Friedman,
Wykeham then filed a petition for certification, seeking appellate review of the propriety of that judgment, which this court granted. In addition to Wykeham and the commission, the parties to that appeal included three neighboring property owners—Eric A. Federer, Wendy R. Federer, and Teresa Rosen Peacocke.
While that appeal was pending, the parties settled their differences and entered into an agreement dated January 9, 2013 (settlement agreement). That settlement agreement noted that Wykeham “desires to construct and operate an inn” on the property and then set forth sixteen “terms and conditions by and under which neither [the Federers] nor Peacocke would oppose Wykeham in its efforts to obtain [c]ommission approval [of] an [i]nn on the [p]roperty.”7 At a special meeting held on January
a vote of four to one, approved the settlement agreement “per the site development plan by Arthur H. Howland and Associates, dated July 8, 2011, revised to December 17, 2012, 32 sheets” (2012 plan). The
Following the commission‘s approval of the settlement agreement, a motion for approval was filed with the Superior Court pursuant to
The settlement agreement also contemplates modification of the 2012 plan. In this regard, the agreement requires that “[a]ny amendments to this [s]ettlement [a]greement must be consented to by all the parties herein or their heirs, successors or assigns.” The settlement agreement further provides that “[a]ll modifications to the approved plans must be approved by the [commission] or its authorized agent prior to implementation.”
On March 22, 2018, the applicant, as successor in title to the property, filed an application for the “modification of [the] existing special permit” that had been approved by the commission at its January 7, 2013 special meeting (modification application). That application was accompanied by several documents, including a new site development plan prepared by Arthur H.
applicant‘s February 8, 2018 application for a building permit and related documentation,15 and copies of both the settlement agreement and the commission‘s January 7, 2013 approval thereof.16
In accordance with the instructions provided by the commission on its special permit application form, the application also included a written description of the proposed modification. In that correspondence, the applicant‘s legal counsel stated in relevant part: “The [a]pplicant‘s goal is to build the [i]nn that it is entitled to build as a result of the settlement agreement reached with the [commission] in January of 2013 and approved by the court on February 5, 2013. To do that, the [a]pplicant [is requesting] a modification to the [2012 plan] incorporated into the [s]ettlement [a]greement. This modification is in part necessary in order to comply with newer building code requirements for fire egress. It is also discretionary in part as the [a]pplicant wishes to add grading and stone walls in the rear of the main building. . . . It is noted that there is an inconsistency between the [2012 plan] footprint . . . which defines the footprint of the main building, and [r]enderings A & B, (incorporated into the [commission‘s] approval of the [s]ettlement [a]greement). To wit, the footprint of the [r]enderings (to the extent that it is discernable) does not comply with the [s]ettlement [a]greement/[2012 plan]. Understanding the limited purpose of the [r]enderings was merely to demonstrate the architectural style of the main building, the [s]ettlement [a]greement/[2012 plan] was used for the footprint and the [r]enderings for the architectural [style; therefore, the] plans submitted substantially comply with both.”
The commission held a public hearing on the modification application on April 17, and July 19 and 23, 2018, at which it received documentary and testimonial evidence.17 One contentious issue concerned
The commission also was presented with evidence as to how the applicant‘s proposal compared with the Mayflower Inn, which was located “right down the road” from the property and was “the only inn in [Washington]” at that time. Commission members were reminded that, because the regulations do not define the term “inn,” the commission had “repeatedly said [that] it uses the Mayflower Inn . . . as a de facto model of what [constitutes] an inn . . . in Washington.” Due to the similarity of the Mayflower Inn to the applicant‘s proposal, Paul S. Szymanski, a civil engineer, testified that the Mayflower Inn provided “a wonderful basis for comparison,” and the commission was presented with evidence as to how the applicant‘s proposal compared with that existing inn
The commission deliberated the merits of the applicant‘s modification request over the course of three nights on August 7, 27 and 28, 2018. At the conclusion of those deliberations, the commission, by a vote of three to two, approved the application to modify the existing special permit in accordance with the 2018 plan.19 The commission attached twenty-five detailed conditions to that approval.20 See
The plaintiffs, all of whom are owners of property located within 100 feet of the applicant‘s property,22 filed a timely
the regulations. The court rejected that contention and further concluded that the commission “had substantial evidence to approve and modify the application and did so only after imposing certain conditions to protect the public health and safety. The court finds that the commission did not act arbitrarily or illegally . . . .” Accordingly, the court dismissed the appeal.
The plaintiffs thereafter filed a petition with this court for certification to appeal pursuant to
Before considering the claims advanced by the plaintiffs in this appeal, we note certain well established principles. “[T]he function of a special permit is to allow a property owner to use his property in a manner expressly permitted under the zoning regulations, subject to certain conditions necessary to protect the public health, safety, convenience, and surrounding property values. . . . The basic rationale for the special permit [is] . . . that while certain [specially permitted] land uses may be generally compatible with the uses permitted as of right in particular zoning districts, their nature is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site.” (Citation omitted; internal quotation marks omitted.) St. Joseph‘s High School, Inc. v. Planning & Zoning Commission, supra, 176 Conn. App. 585–86.
Judicial review of a commission‘s decision to grant or deny a special permit must be mindful of “the significant discretion that a commission is afforded . . . . In reviewing a decision of a zoning [commission], a reviewing court is bound by the substantial evidence rule, according to which . . . [c]onclusions reached by [a zoning] commission must be upheld by the [Superior Court] if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission]. . . . The question is not whether the [Superior Court] would have reached the same conclusion . . . but whether the record before the [commission] supports the decision reached. . . . If [the Superior Court] finds that there is substantial evidence to support a zoning [commission‘s] findings, it cannot substitute its judgment for that of the [commission]. . . . If there is conflicting evidence in support of the zoning commission‘s stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission. . . . The [commission‘s] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given. . . . Moreover, [s]ubstantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [T]he substantial evidence standard is highly defer-
ential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review. In light of the significant amount of deference that the substantial
This appeal concerns the alleged expansion of a “nonconforming use,” a term of art with both general and specific meaning. In Munroe v. Zoning Board of Appeals, 75 Conn. App. 796, 818 A.2d 72 (2003), this court, citing a noted treatise on land use in this state, observed that, “[t]he term nonconforming uses is often used without consideration as to what aspect of the use of property is nonconforming, and in determining whether an activity is an expansion or change of a nonconforming use, the nature of the nonconformity is important.” (Internal quotation marks omitted.) Id., 806. The court then detailed four distinct types of nonconformity: “(1) nonconforming use—the use of the land or structure on it is nonconforming (e.g., commercial use in a residential zone); (2) a nonconforming lot—the lot is undersized, irregularly shaped, has inadequate width or depth or inadequate frontage; (3) nonconforming building or structure—the structure does not meet the minimum or maximum size requirements, floor area ratio, height or bulk requirements of the existing zoning regulations; (4) nonconformity as to location of structure, i.e., it does not conform with one or more of the setback requirements.” (Internal quotation marks omitted.) Id.; see also Verrillo v. Zoning Board of Appeals, 155 Conn. App. 657, 690 n.20, 111 A.3d 473 (2015). In the present case, the first and fourth types of nonconformity are implicated, as the plaintiffs claim that the commission improperly approved the expansion of both a nonconforming structure and a noncon-
forming use on the property. We address each claim in turn.
I
We begin with the plaintiffs’ contention that the court improperly concluded that the applicant‘s proposal did not constitute an impermissible expansion of a nonconforming structure. To resolve that claim, we must determine, as a threshold matter, whether the principles that govern nonconforming uses are applicable under the unique facts and circumstances of this case.24 That inquiry entails consideration of not only the undisputed fact that the alleged nonconformity was the direct result of the settlement agreement ratified by
A
“A nonconformity is a use or structure prohibited by the zoning regulations [that] is 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). “Where a nonconformity exists, it is a vested right which adheres to the land itself. . . . A vested right . . . to continue the nonconforming use is in the land . . . . [T]he right to a nonconforming use is a property right and . . . any provision of a statute or ordinance which takes away that right in an unreasonable manner, or in a manner not grounded on the public welfare, is invalid. A lawfully established nonconforming use is a vested right and is entitled to constitutional protection.” (Citation omitted; internal quotation marks omitted.) Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483-84, 408 A.2d 243 (1979). As this court has noted, “[o]ur General Statutes recognize and protect this bedrock principle.” Verrillo v. Zoning Board of Appeals, supra, 155 Conn. App. 684; see
Although the right to continue a nonconforming use is statutorily protected, it is equally well established that, absent extraordinary circumstances warranting variance of the zoning regulations by a municipal zoning board of appeals,25 such nonconformity cannot be expanded or enlarged. As our Supreme Court has explained, “nonconforming uses should be abolished
or reduced to conformity as quickly as the fair interest of the parties will permit—[i]n no case should they be allowed to increase.” (Internal quotation marks omitted.) Adolphson v. Zoning Board of Appeals, supra, 205 Conn. 710; see also Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 243, 662 A.2d 1179 (1995) (“a nonconforming structure cannot be increased in size in violation of zoning ordinances“); Blum v. Lisbon Leasing Corp., 173 Conn. 175, 181, 377 A.2d 280 (1977) (noting “the indisputable goal of zoning to reduce nonconforming to conforming uses with all the speed justice will tolerate“); Kleinsmith v. Planning & Zoning Commission, 157 Conn. 303, 314, 254 A.2d 486 (1968) (“[t]he advantages which the owners of nonconforming property acquire by the enactment of a zoning ordinance are not to be subsequently augmented except as permitted by the ordinance“); Guilford v. Landon, 146 Conn. 178, 182, 148 A.2d 551 (1959) (“the accepted policy of zoning . . . is to prevent the extension of nonconforming uses“); Planning & Zoning Commission v. Craft, 12 Conn. App. 90, 96, 529 A.2d 1328 (“[z]oning regulations in general seek the elimination of nonconforming uses, not their creation or enlargement“),
1
Under the traditional analysis applicable to nonconforming uses, “[f]or a use to be considered nonconforming . . . [it] 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.” (Emphasis in original.) Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 712, 519 A.2d 49 (1986); see also Washington Zoning Regs.,
A “lawful” use is one that complied with both “state law” and all zoning regulations that were in effect when the use commenced. Helicopter Associates, Inc. v. Stamford, supra, 201 Conn. 712. At all relevant times, the applicable regulation governing a “Tourist Home
or Inn” provided in relevant part that “the minimum setback of any structure . . . shall be . . . [fifty] feet from any lot line.”27 Washington Zoning Regs.,
In addition, to constitute a nonconforming structure under established case law, the main building had to ”be in existence at the time that the zoning regulation making the use nonconforming was enacted.” (Emphasis in original.) Id. The precedent of our Supreme Court instructs that “[t]o be a nonconforming use the use must be actual. It is not enough that it be a contemplated use [or] that the property was bought for the particular use. The property must be so utilized as to be irrevocably committed to that use.” (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 789, 639 A.2d 519 (1994); see also Karls v. Alexandra Realty Corp., 179 Conn. 390, 399, 426 A.2d 784 (1980) (explaining that, “to be irrevocably committed to a particular use, there must have been a significant amount of preliminary or preparatory work done on the property prior to the enactment of the zoning regulations which unequivocally indicates that the property was going to be used for that particular purpose“); Petruzzi v. Zoning Board of Appeals, supra, 176 Conn. 482-83 (“[t]he lot and building in question” qualified as legally protected nonconforming uses because they were in existence prior to enactment of zoning regulations and had not “changed in size or shape“); Lebanon v. Woods, 153 Conn. 182, 197, 215 A.2d 112 (1965) (because tract of land “was not ‘irrevocably committed’ to development,” it “was not a nonconforming use“); MacKenzie v. Town Planning & Zoning Commission, 149 Conn. 678, 684, 183 A.2d 619 (1962) (“a contemplated use cannot constitute an actual use“); Corsino v. Grover, 148 Conn. 299, 308, 170 A.2d 267 (1961) (“[a] proposed use cannot constitute an existing nonconforming use“); Fairlawns Cemetery Assn., Inc. v. Zoning Commission, 138 Conn. 434, 444, 86 A.2d 74 (1952) (To establish a nonconforming use, “[i]t is not enough that it be a contemplated use, even though plans for that have been put on paper. . . . It is not enough that the property was bought for the particular purpose.” (Citations omitted.)); DeFelice v. Zoning Board of Appeals, 130 Conn. 156, 161, 32 A.2d 635 (1943) (“[a]ctual use as distinguished from merely contemplated use” is required).
Although the main building was a contemplated use
of the property, and its footprint was memorialized in the 2012 plan, there is no basis in the record to conclude that the property was irrevocably committed to that use. There is no evidence that construction of that structure ever commenced, nor has any party so argued. The main building was merely contemplated but did not actually exist. As a
2
That determination does not end our inquiry, as that common-law standard evolved in cases concerning nonconforming uses that “antedate the enactment of zoning” regulations. Petruzzi v. Zoning Board of Appeals, supra, 176 Conn. 482; see also Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 271-73, 588 A.2d 1372 (1991); Helicopter Associates, Inc. v. Stamford, supra, 201 Conn. 711; Poneleit v. Dudas, 141 Conn. 413, 419–20, 106 A.2d 479 (1954); Lane v. Cashman, 179 Conn. App. 394, 438-39, 180 A.3d 13 (2018); Verrillo v. Zoning Board of Appeals, supra, 155 Conn. App. 683–87. Given that context, the present case is fundamentally distinct, in that it originates not from a preexisting use on the property but, rather, a settlement agreement regarding a proposed use. That crucial distinction requires us to more carefully consider the precise nature of the use at issue in this appeal.
As one treatise notes, a variety of uses of land are entitled to protection under our law, including special permit uses, nonconforming uses, and “[a]uthorized illegal uses . . . allowed by variance granted by the zoning board of appeals.” R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (4th Ed. 2015) § 52:1, p. 219. The use at issue here—the operation of an inn on the property with a main building partially inside the setback area—technically is not the proper subject of a special permit, as the application did not strictly comply with the setback requirements of
“[S]ettlement of disputes . . . is to be encouraged as sound public policy.” (Internal quotation marks omitted.) Yale University v. Out of the Box, LLC, 118 Conn. App. 800, 809 n.7, 990 A.2d 869 (2010). In the context of a municipal land use agency‘s settlement of a pending appeal, there exists a “powerful interest in the promotion of settlement of litigation by agreement of the parties.” Sendak v. Planning & Zoning Commission, 7 Conn. App. 238, 242, 508 A.2d 781 (1986). Moreover, the statutory requirement that any settlement involving
a municipal land use agency must be approved by the Superior Court following a hearing; see footnote 11 of this opinion; “provides a forum for the presentation of any challenges to a settlement, including any allegations of bad faith, collusion or other improper conduct by the parties to the settlement,” and “serves to protect the public interest by guarding against any attempt on the part of the settling parties to evade judicial review and scrutiny by potentially aggrieved landowners.” Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 607, 616, 793 A.2d 215 (2002); see also Willimantic Car Wash, Inc. v. Zoning Board of Appeals, 247 Conn. 732, 742 n.16, 724 A.2d 1108 (1999) (legislative history of
As was the case in Brookridge District Assn., the settlement agreement in the present case resolved a pending appeal involving the commission and an applicant that had been denied an application for a special permit. See Wykeham Rise, LLC v. Zoning Commission, supra, 2013 WL 951156. The settlement agreement was formally approved by the commission at a special meeting held on January 7, 2013, and thereafter was approved by the Superior Court following a hearing conducted in accordance with
Although lawful, the main building does not comply with the setback requirements for structures constructed on property that is used as an inn. At all relevant times,
We therefore conclude that the main building depicted in the 2012 plan and incorporated into the settlement agreement constitutes a lawful, albeit nonconforming, structure as a result of the approval of the settlement agreement by the Superior Court. The principles that govern nonconforming uses in this state thus apply to such lawful nonconforming structures. Like any non-
conforming structure, the main building depicted in the 2012 plan cannot be expanded or enlarged within the setback area in the absence of a variance from the Zoning Board of Appeals.
B
The question, then, is whether the commission improperly authorized the expansion of that nonconforming structure when it approved the modification application in 2018. In its memorandum of decision, the Superior Court concluded that the commission properly determined that the modification application did not constitute an impermissible expansion of a nonconforming structure. Our review of that determination is guided by the substantial evidence standard. See, e.g., Zachs v. Zoning Board of Appeals, 218 Conn. 324, 329-30, 589 A.2d 351 (1991); Woodbury Donuts, LLC v. Zoning Board of Appeals, 139 Conn. App. 748, 760 n.11, 57 A.3d 810 (2012).
The regulations prohibit the expansion of nonconforming structures.31 To determine whether the commission improperly approved the expansion of the nonconforming main building within the setback area, we must determine, as a preliminary matter, the extent of the nonconformity that was memorialized in the 2013 settlement agreement.
1
“A settlement agreement . . . is a contract among the parties.” Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 532, 4 A.3d 288 (2010). At its essence, a settlement agreement that resolves a pending zoning appeal in accordance with
we review such a determination by an administrative agency to determine if it is supported by substantial evidence.” (Citation omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 219 Conn. 51, 66-67, 591 A.2d 1231 (1991).
The settlement agreement consists of five components: (1) the settlement agreement document itself, which contains sixteen conditions; see footnote 7 of this opinion; (2) the commission‘s January 7, 2013 approval of the settlement agreement;32 (3) the 2012 plan, which was incorporated by reference into both the settlement agreement document and the commission‘s motion to approve the settlement agreement; (4) six additional conditions that the commission attached to its approval; see footnote 10 of this opinion; and (5) the two architectural renderings. See footnote 9 of this opinion.
Those materials contain little in the way of dimensional limitation on the proposed main building. The 2012 plan is pivotal in that regard, as it was incorporated by reference into both the settlement agreement and the commission‘s approval. The 2012 plan circumscribes the parameters of the footprint of the main building. It is undisputed that the main building depicted in the 2018 plan sat on the same footprint as it did in the 2012 plan and did not intrude farther into the setback area, and the commission was presented with evidence to that effect.33 Accordingly, there was no horizontal expansion of that lawful nonconforming structure, nor has any party so claimed.
Rather, the plaintiffs claim that the commission improperly approved a vertical expansion of the nonconforming main building. Whether the vertical extension of an existing footprint constitutes an impermissible expansion of a nonconformity depends on the particular language employed in the applicable zoning regulations. See E & F Associates, LLC v. Zoning Board of Appeals, 320 Conn. 9, 12 n.3, 127 A.3d 986 (2015) (noting that “variances were required because the vertical expansion of the building within the applicable setbacks constituted a prohibited expansion of the nonconforming use under the [Fairfield] zoning regulations“); Munroe v. Zoning Board of Appeals, supra, 75 Conn. App. 811 (concluding that vertical expansion of nonconforming structure through addition of second story
The regulations here proscribe the vertical expansion of nonconforming structures.34 The settlement agreement, however, contains no restriction on the height of the main building. Notably, the 2012 plan does not
specify the height or volume of that building, and neither the conditions included in the settlement agreement document nor the conditions imposed by the commission contain any such dimensions or height restrictions.35
Although no height limitation is specified anywhere in the settlement agreement materials, the plaintiffs submit that such a limitation may be found in two other materials, namely, Wykeham‘s proposed “university” plans from a previous special permit application (school plans) and a set of plans that were submitted to the Department of Energy and Environmental Protection in December, 2012, as part of an application for a general permit to discharge from subsurface sewage disposal systems on the property (discharge permit plans).36 It nonetheless remains that the commission did not reference the school plans or the discharge permit plans in either its motion to approve the settlement agreement or the conditions attached to its approval. Had the commission wanted to incorporate those plans into its approval of the settlement agreement, it certainly knew how to do so, as it had done with both the 2012 plan and the two architectural renderings. See Joseph General Contracting, Inc. v. Couto, 317 Conn. 565, 579, 119 A.3d 570 (2015). In this regard, we note that the settlement agreement document that was before the commission described the 2012 plan as the “complete site plan” for the proposed inn. Yet, the commission chose to incorporate only “the [2012 plan], the [two] architectural renderings . . . and the [six] conditions of approval” into its approval of the settlement agreement. Put simply, the school plans and the discharge permit plans are not part of the settlement agreement that was approved by the commission and the Superior Court.
Although the settlement agreement did incorporate two architectural renderings,
At the public hearing held on the modification application five years later, Reese Owens, an architect, opined that the height of the main building that was approved as part of the settlement agreement could be extrapolated from a comparison of the architectural renderings and the discharge permit plans.37 Although that may be true, there is no indication in the record before us that commission members in 2013 ever made
that comparison or intended to impose a height restriction on the main building stemming therefrom. We reiterate that the height of the main building was a topic never broached at the January 7, 2013 special meeting.
Moreover, the commission heard testimony at the 2018 public hearing from Szymanski, a civil engineer who (1) was involved in the drafting of both the 2012 and 2018 plans, (2) had participated in the 2013 special meeting, and (3) offered the architectural renderings in response to a question from the commission‘s administrative assistant as to the design of the main building. Szymanski unequivocally stated at the 2018 public hearing that the architectural renderings were provided simply to illustrate “the architectural style” of the main building. The commission, as the sole arbiter of credibility, was entitled to credit that testimony.38 See, e.g., Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 443, 941 A.2d 868 (2008).
The commissioners also were presented with uncontroverted evidence that the settlement agreement was a compromise between the parties intended to resolve the pending appeal of the denial of Wykeham‘s special permit application, to which the commission was a party. In addition, the commission heard testimony from Peacocke, who also was a party to the settlement agreement. Peacocke stated: “I just [want] to remind members of the commission . . . that there were four attorneys who negotiated and drafted the [settlement agreement]. If we had intended to create an exclusionary agreement itemizing all and only those matters, we‘d have said so, and we didn‘t. . . . [W]e . . . never undertook to create a comprehensive agreement . . . .” As our Supreme Court has observed, “[w]e will not insert limitations into a contract when the parties did not do so themselves. . . . This is especially so when, as here, the agreement is between sophisticated parties represented by counsel. . . . In these circumstances, we presume the parties used definitive language to describe their agreement.” (Citations omitted.) Salce v. Wolczek, 314 Conn. 675, 690–91, 104 A.3d 694 (2014); see also Williams v. Lilley, 67 Conn. 50, 59, 34 A. 765 (1895) (“[w]e assume no right to add a new term to a contract“). Those maxims apply here, as the settlement agreement was crafted by multiple attorneys and subjected to scrutiny at hearings before both the municipal zoning commission and the Superior Court.
That settlement agreement contains no height limitation on the main building, and the record does not reveal an intent on the part of the commission to impose such a restriction in 2013. There is substantial evidence from which the commission, in approving the modification application in 2018, reasonably could conclude that no height restriction was intended to be included in the settlement agreement. We therefore reject the plaintiffs’
claim that the commission improperly approved the vertical expansion of a nonconforming structure.
The settlement agreement likewise does not contain a restriction as to the floor area or volume of the main building. It is noteworthy that the settlement agreement does specifically address the maximum floor area of a different structure proposed on the property. Paragraph five of the settlement agreement states in relevant part: “The Inn‘s spa and fitness center will be limited to the area within the building that is labeled ‘Fitness Building’ on the Site Plan and cannot exceed floor area totaling more than 11,400 square feet SAVE THAT a single exercise room no larger than 3,800 square feet and containing only exercise equipment may be located within the ‘Main Building,’ labeled as such as depicted on the Site Plan. If the single exercise room is located in the Main Building, the size of the Fitness Building would then be reduced by the same amount so that the combined floor area devoted to spa and fitness facilities in the Fitness Building and Main Building cannot exceed 11,400 square feet in total.” That restriction demonstrates that the parties to the settlement agreement were mindful of floor area considerations and knew how to incorporate such restrictions into that contract. They nevertheless did not include a floor area limitation for the main building in the settlement agreement, and we decline to insert such a limitation into that contract now. See, e.g., Salce v. Wolczek, supra, 314 Conn. 690-91 (“[w]e will not insert limitations into a contract when the parties did not do so themselves“); R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co., 171 Conn. App. 61, 279 n.104, 156 A.3d 539 (2017) (“if the parties had intended that the [contract] would provide defense coverage . . . they easily could have said so expressly“), aff‘d, 333 Conn. 343, 216 A.3d 629 (2019).
We also note that all three commissioners who voted to approve the modification application in 2018 were members of the commission when it approved the 2013 settlement agreement. See footnote 19 of this opinion. Those commission members were entitled to rely on their personal knowledge of the settlement agreement and the January 7, 2013 special meeting. See, e.g., Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 570, 538 A.2d 1039 (1988) (“commission members may legitimately utilize their personal knowledge in reaching a decision“); Burnham v. Planning & Zoning Commission, 189 Conn. 261, 267, 455 A.2d 339 (1983) (“members of [a zoning commission] are entitled to take into consideration whatever knowledge they acquire by personal observation“); Atlantic Refining Co. v. Zoning Board of Appeals, 150 Conn. 558, 562, 192 A.2d 40 (1963) (“[o]bviously, the members of the board had personal knowledge of the situation, and they were entitled to take that knowledge into consideration“). One of those members, Nicholas N. Solley, voted against the approval of the settlement agreement in 2013. During deliberations on the 2018 modification application, another member who was not on the commission in 2013 stated to Solley, “You were there [in 2013] . . . and I would like to hear . . . what you were thinking” at that time. In response, Solley noted that, in considering the settlement agreement in 2013, the commission “didn‘t even deliberate over
On our review of the record, we conclude that substantial evidence exists from which the commission could conclude that no floor area or volume restrictions were included in the settlement agreement. The Superior Court thus properly determined that the commission did not authorize an impermissible expansion of a nonconforming structure when it approved the modification application.
II
The plaintiffs also claim that the court improperly concluded that the applicant‘s proposal did not constitute an impermissible expansion of a nonconforming use. We disagree.
The following additional facts are relevant to that claim. Subsequent to the commission‘s approval of the settlement agreement, the regulations were amended to require at least 500 feet of frontage “on a state highway” for any “Tourist Home or Inn“; see
A
On appeal, the plaintiffs contend that the commission, in granting the modification application, improperly expanded the scope of that nonconforming use. They argue that only those accessory uses specifically mentioned in the settlement agreement are permitted on the property. See footnote 7 of this opinion. The commission counters that the settlement agreement neither explicitly nor implicitly limited the scope of permissible accessory uses. We agree with the commission.
The regulations in the present case define an “accessory use” as “[a] use customarily incidental and subordinate to a main use and located on the same lot with such main use.”
As we have noted, the proper construction of a settlement agreement is governed by principles of contract interpretation. See part I B 1 of this opinion. “A contract is unambiguous when its language is clear and conveys a definite and precise intent. . . . In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. . . . If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous.” (Internal quotation marks omitted.) Santos v. Massad-Zion Motor Sales Co., 160 Conn. App. 12, 18, 123 A.3d 883, cert. denied, 319 Conn. 959, 125 A.3d 1013 (2015).
The settlement agreement here lacks any language addressing accessory uses generally or indicating that unspecified accessory uses are prohibited on the property. At the same time, the settlement agreement does contain explicit limitations on three accessory uses, namely, the proposed restaurant,40 the proposed spa and fitness center,41 and tented events held on the property.42 No other accessory uses are
“When a contract is ambiguous the [finder of fact] must consider extrinsic evidence and make factual findings as to the parties’ intent.” Chiulli v. Chiulli, Superior Court, judicial district of Hartford, Docket No. CV-12-6036551-S (July 8, 2014) (reprinted at 161 Conn. App. 639, 650, 127 A.3d 1147), aff‘d, 161 Conn. App. 638, 127 A.3d 1146 (2015). “The interpretation of the intention of the parties to the settlement agreement is a question of fact . . . and we review such a determination by an administrative agency to determine if it is supported by substantial evidence.” (Citation omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, supra, 219 Conn. 66-67.
The record before us contains evidence to substantiate a finding that the parties did not intend to restrict accessory uses on the property to only those addressed in the settlement agreement. Although the record indicates that the parties deliberately incorporated specific plans into that agreement, such as the 2012 plan and the architectural renderings, they did not include any floor plans depicting the uses contemplated for the interior areas of the main building.43 The transcript of the January 7, 2013 special meeting contains no discussion of the scope of accessory uses on the property, and the main building in particular, nor were any floor plans presented at that hearing. In addition, the commission heard testimony during the public hearing on the modification application from Peacocke, who was a party to the settlement agreement. Peacocke emphasized that “there were four attorneys who negotiated and drafted the [settlement agreement]. If we had intended to create an exclusionary agreement itemizing all and only those matters, we‘d have said so, and we didn‘t. . . . [W]e . . . never undertook to create a comprehensive agreement . . . .” The commission was entitled to credit that testimony by a party to the settlement agreement. See, e.g., Gerlt v. Planning & Zoning Commission, 290 Conn. 313, 322, 963 A.2d 31 (2009) (assessing credibility of witnesses is sole province of zoning commission); see also Landry v. Spitz, 102 Conn. App. 34, 49 n.9, 925 A.2d 334 (2007) (“[t]his court will not revisit credibility determinations” in case regarding interpretation of settlement agreement).
The substantial evidence standard “is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review.” (Internal quotation marks omitted.) Palomba-Bourke v. Commissioner of Social Services, 312 Conn. 196, 202, 92 A.3d 932 (2014). On our review of the whole record, we conclude that substantial evidence exists to support a finding that the parties to the settlement agreement did not intend to restrict accessory uses on the property to only those specifically mentioned therein.
B
We turn next to the question of whether the uses at issue constitute permissible
“[I]n the land use context, the term ‘accessory use’ traditionally connotes a relationship with the primary use.” Morgenbesser v. Aquarion Water Co. of Connecticut, 276 Conn. 825, 831, 888 A.2d 1078 (2006). As our Supreme Court has explained, “[a]n accessory use is determined specifically by reference to the primary use of the property to which it is incidental.” Loring v. Planning & Zoning Commission, 287 Conn. 746, 767, 950 A.2d 494 (2008). “[An] accessory use [is] a use which is customary in the case of a permitted use and incidental to it. . . . An accessory use under a zoning law is a use which is dependent on or pertains to the principal or main use. . . . The word incidental as employed in a definition of accessory use incorporates two concepts. It means that the use must not be the primary use of the property but rather one which is subordinate and minor in significance. . . . But incidental, when used to define an accessory use, must also incorporate the concept of reasonable relationship with the primary use. It is not enough that the use be subordinate; it must also be attendant or concomitant. To ignore this latter aspect of incidental would be to permit any use which is not primary, no matter how unrelated it is to the primary use. . . . In examining the use in question, it is not enough to determine that it is incidental in the two meanings of that word as discussed [previously]. The use must be further scrutinized to determine whether it has commonly, habitually and by long practice been established as reasonably associated with the primary use. . . . In situations where there is no specific provision in the ordinance, the question is the extent to which the principal use as a matter of custom . . . carries with it an incidental use so that as a matter of law, in the absence of a complete prohibition of the claimed incidental use in the ordinance, it will be deemed that the legislative intent was to include it.” (Internal quotation marks omitted.) Id., 753-54.
“[W]hether a particular use qualifies as an accessory use is ordinarily a question of fact for the zoning author- ity, to be determined by it with a liberal discretion.” (Internal quotation marks omitted.) Clifford v. Planning & Zoning Commission, 280 Conn. 434, 451, 908 A.2d 1049 (2006). On appeal, a zoning commission‘s determination “is subject to a very narrow, deferential scope of review“; id.; and must be sustained if there is substantial evidence in the record to support it. Id., 452; see also Loring v. Planning & Zoning Commission, supra, 287 Conn. 756.
The primary use of the property here is an inn. Although the regulations do not define the term “inn,” the evidence in the record before us indicates that the commission had used the Mayflower Inn, which, at all relevant times, was the only existing inn in town, “as a de facto model of what [the term] inn means in Washington.” The record includes uncontroverted evidence that the Mayflower Inn featured a bar, two libraries, and “six separate”
The plaintiffs further claim that the court misapplied the precedent of our Supreme Court in Zachs v. Zoning Board of Appeals, supra, 218 Conn. 324. We disagree. In Zachs, the court explained that, “[i]n deciding whether [a] current activity is within the scope of a nonconforming use consideration should be given to three factors: (1) the extent to which the current use reflects the nature and purpose of the original use; (2) any differences in the character, nature and kind of use involved; and (3) any substantial difference in effect upon the neighborhood resulting from differences in the activities conducted on the property.” Id., 332. Here, the original use memorialized in the settlement agreement and the use approved by the granting of the modification application are one and the same: an inn on the property with accessory uses typical of inns in Washington. Indeed, the commission required, as the very first condition attached to its 2018 approval, that “[t]his approval remains subject to all of the conditions and limitations set forth in the settlement agreement approved by the commission on January 7, 2013, together with the conditions of approval that were incorporated into the commission‘s motion for approval of the settlement agreement.” (Emphasis added.) Moreover, in approving the modification application, the commission imposed additional, more restrictive limitations on the use of the property.46 Last, from the evidence adduced at the public hearing, the commission reasonably could find that the use of the property proposed in the modification application would not result in a substantial difference in effect on the surrounding neighborhood.
In light of the foregoing, we conclude that there is evidence in the record to substantiate a finding that the proposed uses in question were within the scope of the lawful nonconforming use memorialized in the settlement agreement. The commission‘s determination that those uses constituted permissible accessory uses, therefore, was proper.
III
As a final matter, the plaintiffs claim that the court “failed to require compliance
“In an appeal from a decision of a zoning commission, the burden of overthrowing the decision . . . rest[s] squarely upon the appellant.” (Internal quotation marks omitted.) St. Joseph‘s High School, Inc. v. Planning & Zoning Commission, supra, 176 Conn. App. 602; see also Blaker v. Planning & Zoning Commission, 212 Conn. 471, 478, 562 A.2d 1093 (1989) (party challenging action of zoning commission bears burden of proving commission acted improperly); Chouinard v. Zoning Commission, 139 Conn. 728, 731, 97 A.2d 562 (1953) (“[t]he burden of proof is always on the plaintiff” who challenges zoning commission determination). On our review of the record before us, we conclude that the plaintiffs have not met that burden.
The plaintiffs contend that the commission‘s approval of the modification application contravened § 13.1.B of the regulations. That claim requires little discussion. Section 13.1.B of the regulations provides in relevant part: “[T]he Commission may approve, modify, or renew a Special Permit in a district where such uses are permitted. . . .” The regulations previously authorized the use of the property as an inn, and the settlement agreement approved by the Superior Court and filed in the Washington land records; see footnote 16 of this opinion; plainly permits the use of the property in that manner. The settlement agreement, to which the commission was a party, also provided a mechanism for the modification of the plans contained in that agreement, which required commission approval. See footnote 10 of this opinion. In light of those undisputed facts, the plaintiff‘s claim that the commission could not entertain an application to modify the plans contained in the settlement agreement is untenable.
The plaintiffs also argue that the commission failed to consider the standards set forth in §§ 13.1.C.1 and 13.1.C.2 of the regulations47 and claim that the commission “did not make findings” related thereto. With respect to the latter contention, we already have noted that the commission did not render a “formal, official, collective statement of reasons for its action“; Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 544, 600 A.2d 757 (1991); as required by
The record here indicates that the commission, over the course of three lengthy nights of deliberations, gave ample attention to both the propriety and the impact of the proposed use of the property. The commission debated the impact of the proposed use on the sur- rounding neighborhood and discussed in detail both parking and traffic concerns.49 The commission also
The record also indicates that the commission was cognizant of the fact that the only other inn in Washington was located “right down the road” from the property and had featured comparable primary and accessory uses “for decades.” The commission reasonably could find, on the evidence adduced at the public hearing, that the existence of a similar inn in the same area of town supported a conclusion that the use proposed by the applicant comported with the intent and objectives of the regulations, as well as the town‘s plan of conservation and development. See
Moreover, with respect to the impact on adjacent property, the commission was well aware of the protracted procedural history of this proposed use of the property and the fact that owners of surrounding properties had been involved in the 2008 special permit application proceedings, the 2013 settlement agreement proceedings, and the modification application now at issue. The record of both the public hearing and the commission‘s deliberations demonstrates that the commissioners were sensitive to the impact of the proposed use on the neighborhood, which led them to impose additional restrictions on the use of the property as conditions of their approval. See footnote 46 of this opinion.
In that vein, it bears emphasis that the proposal before the commission in 2018 was not a novel one. Both the use of the property as an inn and the “location, type, character, size, scale, proportion, appearance, and intensity” of that use;
It is true that the commission did not explicitly reference each and every special permit standard contained in the regulations during its many hours of deliberations on August 7, 27 and 28, 2018. It remains that the commission engaged in detailed discussion as to the propriety of the proposed use, particularly with respect to its impact on the surrounding area, and imposed additional restrictions on the use of the property. On our thorough review of the record, we cannot agree with the plaintiffs’ contention that the commission ignored the considerations memorialized in §§ 13.1.C.1 and 13.1.C.2 of the regulations. To the contrary, the commission reasonably could conclude, on the basis of the documentary and testimonial evidence before it, that the use proposed by the applicant comported with the intent and objectives of the regulations, as well as the town‘s plan of conservation and development, and that the proposed use was in harmony with the orderly development of the town and surrounding neighborhood.
The plaintiffs, who bore the burden of proof in this administrative appeal, have not demonstrated that the modification application violated any special permit standard contained in the regulations. They thus have not rebutted the strong presumption of regularity that attaches to the conduct of zoning commissions in this state. See Murach v. Planning & Zoning Commission, supra, 196 Conn. 205; cf. Frito-Lay, Inc. v. Planning & Zoning Commission, supra, 206 Conn. 572-73 (presumption of regularity rebutted when record established that commission did not act within prescribed legislative powers). Accordingly, we conclude that the Superior Court properly dismissed the plaintiffs’ appeal.
The judgment is affirmed.
In this opinion the other judges concurred.