Parker v.Zoning Commision ( 2022 )

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ROBERT PARKER ET AL. v. ZONING COMMISSION
OF THE TOWN OF WASHINGTON ET AL.
(AC 44130)
Elgo, Moll and Sheldon, Js.
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 agree-
ment 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 (§ 8-8 (n)). The court approved the
settlement agreement, thereby memorializing W’s ability to construct
the inn. W Co. then filed its application with the commission to modify
the special permit that was approved in the commission’s special meet-
ing. The application was accompanied by, inter alia, a new site develop-
ment plan for the inn that was revised to 2018. The commission con-
ducted a hearing during which members of the public opined that the
2018 site development plan constituted an expansion of the nonconform-
ing structure that was memorialized in the 2012 plan and approved as
part of the settlement agreement. The commission thereafter approved
W Co.’s application to modify the special permit in accordance with the
2018 site development plan and attached twenty-five conditions to that
approval. The plaintiff property owners appealed to the Superior Court,
claiming, inter alia, that the commission improperly authorized the
expansion of a nonconforming structure and a nonconforming use in
contravention of the zoning regulations. The court rejected that con-
tention and dismissed the plaintiffs’ appeal, concluding that the commis-
sion had substantial evidence before it to approve and modify W Co.’s
application. On the granting of certification, the plaintiffs appealed to
this court. Held:
1. 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:
a. 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 noncon-
forming, 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.
b. 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 architec-
tural 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 plain-
tiffs’ 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 applica-
tion 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.
2. 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 contem-
plated 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 associ-
ated 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 grant-
ing 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.
3. The plaintiffs’ claim that the Superior Court failed to require compliance
with the special permit standards in the zoning regulations was unavail-
ing, 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 regula-
tions 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 author-
ized use of the property as an inn, the settlement agreement plainly
permitted the use of the property in that manner and provided a mecha-
nism 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)), noncompli-
ance with that imperative was commonplace and condoned by decades
of appellate authority; furthermore, the commission gave ample atten-
tion 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 proce-
dural history of the proposed use, and the changes in the special permit
application did not materially alter those considerations.
Argued March 15, 2021—officially released January 11, 2022
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 dismiss-
ing 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 defen-
dant).
Paul V. Gelderman, for the appellee (defendant Erika
Klauer et al.).
Teresa R. Peacocke, self-represented, the appellee
(defendant).
Opinion
ELGO, J. The plaintiffs, Robert L. Parker, Peter E.
Rogness, and Randi M. Solomon, trustee for the Randi
M. Solomon Revocable Trust, appeal from the judgment
of the Superior Court denying their appeal from the
decision of the defendant Zoning Commission of the
Town of Washington (commission) to grant the applica-
tion of the defendant 101 Wykeham Road, LLC (appli-
cant), to modify a special permit previously approved
by the commission in 2013 pursuant to a settlement
agreement.1 On appeal, the plaintiffs claim that the court
improperly concluded that the application did not con-
stitute an impermissible expansion of both a noncon-
forming structure and a nonconforming use. The plain-
tiffs further claim that the court ‘‘failed to require
compliance with [the] special permit standards’’ con-
tained in the Washington Zoning Regulations (regula-
tions).2 We affirm the judgment of the Superior Court.3
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 (prop-
erty). The property is located in the ‘‘R-1 Farming and
Residential’’ zoning district.4 Among the uses authorized
by special permit in that zone is an ‘‘Inn or Tourist
home.’’ Washington Zoning Regs., § 4.4.1. The regula-
tions, however, provide no definition of the terms ‘‘inn’’
or ‘‘tourist home.’’
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 commis-
sion’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 Uni-
versity,’’ it does not contain copies of any such special
permit applications or the commission’s formal deci-
sion to approve such a special permit. The record
nonetheless indicates that Wykeham agreed, as a condi-
tion 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 agree-
ment was ratified. See footnote 7 of this opinion.
In October, 2011, the Superior Court issued its memo-
randum of decision on Wykeham’s appeal from the com-
mission’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 . . . Com-
missioner Friedman, as a sitting member of the commis-
sion, created the appearance, in form, if not in sub-
stance, of predetermination and, therefore,
contradicted the spirit of the statutory mandate of Gen-
eral Statutes § 8-11. The court further observes that the
participation by [two] alternate commission members
. . . in the deliberative process by way of comment or
submission on why the application should be denied,
was inappropriate.’’ The court concluded with the fol-
lowing admonition: ‘‘The court . . . strongly advises
that Chairman [David] Owen, along with all of the com-
missioner members, should undertake some remedial
training and orientation concerning their duties as
municipal public officials sitting on boards and commis-
sions, including their obligation to remain impartial and
nonjudgmental during such proceedings, and to with-
hold judgment until all of the evidence and arguments
have been presented for their deliberation.’’ Wykeham
Rise, LLC v. Zoning Commission, Superior Court, judi-
cial district of Litchfield, Docket No. CV-XX-XXXXXXX-S
(October 11, 2011).
Wykeham then filed a petition for certification, seek-
ing 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 settle-
ment agreement noted that Wykeham ‘‘desires to con-
struct 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 7, 2013,8 the commission, by
a vote of four to one, approved the settlement agree-
ment ‘‘per the site development plan by Arthur H. How-
land and Associates, dated July 8, 2011, revised to
December 17, 2012, 32 sheets’’ (2012 plan). The commis-
sion also incorporated by reference into its approval
‘‘[t]he architectural renderings [marked] ‘A’ and ‘B’ ’’9
and six conditions of approval that were contained in
its previous special permit approval to operate a school
on the property.10
Following the commission’s approval of the settle-
ment agreement, a motion for approval was filed with
the Superior Court pursuant to General Statutes § 8-8
(n), as the appeal of the commission’s 2008 decision
to deny Wykeham’s special permit request remained
pending.11 Through legal counsel, the plaintiffs in the
present action—who were not parties to the settlement
agreement or the proceeding before the Superior
Court—opposed the settlement agreement.12 After hear-
ing from all interested parties, the court concluded that
the settlement agreement ‘‘reflects honest, good faith
compromise on the part of all parties to this appeal.’’
Wykeham Rise, LLC v. Zoning Commission, Docket
No. CV-XX-XXXXXXX-S, 2013 WL 951156, *1 (Conn. Super.
February 5, 2013). The court further emphasized that
‘‘[t]he settlement reflects a substantially reduced proj-
ect, which should be much more acceptable to the
neighbors. The settlement includes the following: (1)
the removal of some buildings which were part of the
original proposal; (2) reduced parking; (3) reduced res-
taurant; (4) a prohibition on amplified music; (5) closure
of one means of access and egress; (6) limitation on
the number of events which can be held; [and] (7) plant-
ings to screen the activities of the project.’’ Id. Accord-
ingly, the court approved the settlement agreement,
thereby memorializing Wykeham’s ability to construct
an inn on the property, as depicted on the 2012 plan.13
See footnote 7 of this opinion.
The settlement agreement also contemplates modifi-
cation 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 settle-
ment agreement further provides that ‘‘[a]ll modifica-
tions to the approved plans must be approved by the
[commission] or its authorized agent prior to implemen-
tation.’’
On March 22, 2018, the applicant, as successor in title
to the property, filed an application for the ‘‘modifica-
tion of [the] existing special permit’’ that had been
approved by the commission at its January 7, 2013 spe-
cial meeting (modification application). That applica-
tion was accompanied by several documents, including
a new site development plan prepared by Arthur H.
Howland & Associates, P.C., dated December 2, 2016,
revised to February 5, 2018 (2018 plan),14 a copy of the
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]ppli-
cant [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 architec-
tural style of the main building, the [s]ettlement [a]gree-
ment/[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 modifi-
cation application on April 17, and July 19 and 23, 2018,
at which it received documentary and testimonial evi-
dence.17 One contentious issue concerned the appli-
cant’s proposal to permit individual ownership of guest
room units at the inn, as multifamily housing was not
permitted under the regulations. Another major issue
with the 2018 plan was the proposed addition of a 2000
square foot ballroom and parking concerns related
thereto. Some members of the public also opined that
the 2018 plan constituted an expansion of the noncon-
forming structure memorialized in the 2012 plan and
approved as part of the settlement agreement. In
response, Peacocke, who had opposed Wykeham’s 2008
special permit application and who was a party to the
settlement agreement, stated at the public hearing: ‘‘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 compre-
hensive agreement . . . .’’
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 [Wash-
ington]’’ 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 Washing-
ton.’’ 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 pre-
sented with evidence as to how the applicant’s proposal
compared with that existing inn.18
The commission deliberated the merits of the appli-
cant’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 General Statutes § 8-
2 (a) (special permits may be subject ‘‘to conditions
necessary to protect the public health, safety, conve-
nience and property values’’); Carpenter v. Planning &
Zoning Commission, 176 Conn. 581, 594, 409 A.2d 1029(1979) (§ 8-2 ‘‘expressly’’ provides that municipal ‘‘com-
mission[s] [are] authorized to impose conditions as a
prerequisite to certain uses of lands’’); St. Joseph’s High
School, Inc. v. Planning & Zoning Commission, 176
Conn. App. 570, 576, 170 A.3d 73 (2017) (‘‘in granting
a special permit, the commission has the authority to
place reasonable restrictions on the proposed use’’).
Notably, the commission prohibited both the proposed
ballroom and individual ownership of guest room units.
See footnote 20 of this opinion. Although the commis-
sion did not provide a collective statement of the basis
of its decision,21 the motion it granted to approve the
modification application concluded by stating: ‘‘The
[c]ommission finds that all of the foregoing conditions
must be met in order for the proposed use to be success-
fully accommodated on the chosen site in accordance
with the applicable [regulations]. Therefore, if a court
should determine that any of the foregoing conditions
are invalid or unlawful, this approval shall be null and
void . . . .’’
The plaintiffs, all of whom are owners of property
located within 100 feet of the applicant’s property,22
filed a timely appeal with the Superior Court, challeng-
ing the propriety of the commission’s decision to grant
the modification application. The plaintiffs claimed,
among other things, that the commission improperly
authorized the expansion of both a nonconforming
structure and a nonconforming use in contravention of
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 § 8-8 (o).23 We
granted the plaintiffs’ petition, and this appeal followed.
Before considering the claims advanced by the plain-
tiffs 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, sub-
ject 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 permit-
ted 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 con-
clusion . . . but whether the record before the [com-
mission] 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 sup-
ports 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 evidence standard affords a commis-
sion, the court has described it as an important limita-
tion on the power of the courts to overturn a decision of
an administrative agency . . . [that] provide[s] a more
restrictive standard of review than standards embody-
ing review of weight of the evidence or clearly errone-
ous action. . . . [O]n appeal, judicial review [of a com-
mission’s denial of a special permit application] is
confined to the question of whether the commission
abused its discretion in finding that an applicant failed
to demonstrate compliance with the requirements of
applicable zoning regulations. When there is evidence
in the record to substantiate the commission’s deter-
mination, the determination must stand.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) McLoughlin v. Planning & Zoning Commis-
sion, 200 Conn. App. 307, 318–20, 240 A.3d 709, cert.
granted, 335 Conn. 978, 241 A.3d 131 (2020). At the
same time, when a question of law is presented, such
as the proper interpretation of a zoning regulation, our
review is plenary. See, e.g., Reardon v. Zoning Board
of Appeals, 311 Conn. 356, 364, 87 A.3d 1070 (2014);
Zimnoch v. Planning & Zoning Commission, 302
Conn. 535, 547, 29 A.3d 898 (2011).
This appeal concerns the alleged expansion of a ‘‘non-
conforming 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 nonconfor-
mity: ‘‘(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 struc-
ture, 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 expan-
sion 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 noncon-
forming structure. To resolve that claim, we must deter-
mine, 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 the Superior
Court in 2013 but, also, the undisputed fact that, at all
relevant times, no structure proposed by the applicant
existed on the property, nor had construction of any
such structure commenced.
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 noncon-
formity 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 General Statutes § 8-2 (a) (prohibiting municipality
from amortizing or eliminating nonconformities
through enactment or amendment of zoning regula-
tions); General Statutes § 8-13a (a) (providing statutory
protection to certain nonconforming ‘‘building[s] or
other structure[s]’’); General Statutes § 8-26a (b) (3)
(providing that change in subdivision or zoning regula-
tions, or boundaries of districts, ‘‘shall not alter or affect
a nonconforming use or structure as provided in [§]
8-2’’).
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 omit-
ted.) 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. Plan-
ning & 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 aug-
mented except as permitted by the ordinance’’); Guil-
ford 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 & Zon-
ing 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’’), cert. denied, 205 Conn. 804, 531 A.2d
937 (1987). Those principles are memorialized in the
regulations at issue here, which provide in relevant part
that ‘‘[i]t is . . . the intent of these regulations that
the nonconforming aspects of [any nonconforming] lots
and structures shall not be enlarged, expanded, or
extended . . . . A nonconforming use of a structure
or lot shall not be extended, expanded, or enlarged
. . . .’’26 Washington Zoning Regs., § 17.1.
1
Under the traditional analysis applicable to noncon-
forming uses, ‘‘[f]or a use to be considered nonconform-
ing . . . [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., § 17.4 (permitting ‘‘a lawfully constructed, but
currently nonconforming, structure’’ to be ‘‘continued
so long as it remains otherwise lawful’’); Washington
Zoning Regs., § 17.1 (intent of nonconforming use regu-
lations is to permit nonconforming structures that
existed ‘‘before the [r]egulations as currently amended
were passed’’ to ‘‘continue until they are removed’’).
The proposed structure in question here, known as the
‘‘main building,’’ possesses neither characteristic.
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., § 13.9.C.
The footprint28 of the main building, as depicted on the
2012 plan that was incorporated by reference into the
settlement agreement, was, at its closest point, to be
located thirty-one feet from the property line. That loca-
tion thus resulted in a nineteen foot intrusion into the
setback area. Accordingly, the main building depicted
on the 2012 plan cannot be deemed a lawful structure,
as it does not comply with the setback requirements
of the regulations. See Helicopter Associates, Inc. v.
Stamford, supra, 712.
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.’’ (Empha-
sis 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 irrevoca-
bly 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 commit-
ted to a particular use, there must have been a signifi-
cant amount of preliminary or preparatory work done
on the property prior to the enactment of the zoning
regulations which unequivocally indicates that the prop-
erty 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’’ qual-
ified 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 com-
mitted’ to development,’’ it ‘‘was not a nonconforming
use’’); MacKenzie v. Town Planning & Zoning Com-
mission, 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 pur-
pose.’’ (Citations omitted.)); DeFelice v. Zoning Board
of Appeals, 130 Conn. 156, 161, 32 A.2d 635 (1943)
(‘‘[a]ctual use as distinguished from merely contem-
plated 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 result, it does not satisfy the com-
mon-law standard for a nonconforming use.
2
That determination does not end our inquiry, as that
common-law standard evolved in cases concerning non-
conforming uses that ‘‘antedate the enactment of zon-
ing’’ 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 origi-
nates not from a preexisting use on the property but,
rather, a settlement agreement regarding a proposed
use. That crucial distinction requires us to more care-
fully 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 ille-
gal uses . . . allowed by variance granted by the zon-
ing board of appeals.’’ R. Fuller, 9B Connecticut Prac-
tice 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 § 13.9
of the regulations. It also is not an illegal use authorized
by a variance issued by the Zoning Board of Appeals
of the Town of Washington. Rather, the use here is
something altogether different and is perhaps best
described as a lawful use resulting from the approval
of a settlement agreement by both the municipal zoning
commission and the Superior Court.
‘‘[S]ettlement of disputes . . . is to be encouraged
as sound public policy.’’ (Internal quotation marks omit-
ted.) 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 promo-
tion of settlement of litigation by agreement of the par-
ties.’’ 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 Com-
mission, 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 § 8-8 (n) ‘‘indicates that the
requirement of court approval was designed to guard
against surreptitious dealing between zoning boards
and applicants, to avoid frivolous appeals initiated for
‘leverage,’ and to ensure that settlements are fair’’). That
statutory requirement ‘‘recognizes . . . the legitimacy
of settlement of zoning cases . . . .’’ Brookridge
District Assn. v. Planning & Zoning Commission,
supra, 617.
As was the case in Brookridge District Assn., the
settlement agreement in the present case resolved a
pending appeal involving the commission and an appli-
cant that had been denied an application for a special
permit. See Wykeham Rise, LLC v. Zoning Commis-
sion, 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 § 8-8 (n). Because all
statutory requirements were followed and the settle-
ment agreement was ratified by both the commission
and the Superior Court, we agree with the plaintiffs
that the proposed main building, as depicted in the 2012
plan, constitutes a lawful use of the property.29
Although lawful, the main building does not comply
with the setback requirements for structures con-
structed on property that is used as an inn. At all rele-
vant times, § 13.9.C of the regulations required a fifty
foot setback ‘‘from any lot line.’’30 The regulations define
a ‘‘nonconforming building’’ as ‘‘[a] building, which does
not conform to all the applicable provisions of these
[r]egulations.’’ Washington Zoning Regs., § 21.1.49.
Because it does not comply with the lot line setback
requirements of § 13.9.C of the regulations, the main
building is nonconforming under the regulations.
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 improp-
erly 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 deter-
mined that the modification application did not consti-
tute 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 noncon-
forming structures.31 To determine whether the com-
mission improperly approved the expansion of the non-
conforming 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 § 8-8 (n) is a stipulated judg-
ment, as it is ‘‘a contract of the parties acknowledged in
open court and . . . recorded by a court of competent
jurisdiction . . . [and] is binding to the same degree as
a judgment obtained through litigation . . . .’’ (Citation
omitted; internal quotation marks omitted.) Doe v. Roe,
246 Conn. 652, 664–65 n.22, 717 A.2d 706 (1998). We
thus interpret the settlement agreement before us
‘‘according to general principles governing the con-
struction of contracts. . . . [T]he language used [in a
contract] must be accorded its common, natural, and
ordinary meaning and usage where it can be sensibly
applied to the subject matter of the contract. . . .
Where the language of the contract is clear and unam-
biguous, the contract is to be given effect according to
its terms. . . . [Additionally], in construing contracts,
we give effect to all the language included therein, as
the law of contract interpretation . . . militates
against interpreting a contract in a way that renders a
provision superfluous.’’ (Citation omitted; internal quo-
tation marks omitted.) Awdziewicz v. Meriden, 317
Conn. 122, 129–30, 115 A.3d 1084 (2015). Furthermore,
‘‘[t]he 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, 219 Conn.
51, 66–67, 591 A.2d 1231 (1991).
The settlement agreement consists of five compo-
nents: (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 dimen-
sional 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 circum-
scribes 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 improp-
erly approved a vertical expansion of the nonconform-
ing main building. Whether the vertical extension of an
existing footprint constitutes an impermissible expan-
sion of a nonconformity depends on the particular lan-
guage 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 expan-
sion of the building within the applicable setbacks con-
stituted 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 caused ‘‘a
substantial increase in the nonconformity’’ in contra-
vention of Branford zoning regulations); Doyen v. Zon-
ing Board of Appeals, 67 Conn. App. 597, 602, 612, 789
A.2d 478 (vertical expansion of nonconforming struc-
ture permitted under Essex zoning regulations), cert.
denied, 260 Conn. 901, 793 A.2d 1088 (2002).
The regulations here proscribe the vertical expansion
of nonconforming structures.34 The settlement agree-
ment, 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 nei-
ther the conditions included in the settlement agree-
ment 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 refer-
ence 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 com-
mission 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] architec-
tural 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, those ‘‘representative’’
renderings do not contain any dimensions or numerical
specifications. Moreover, the transcript of the January
7, 2013 special meeting indicates that those renderings
were offered merely for illustrative purposes regarding
the design of the main building. See footnote 9 of this
opinion. There is no indication whatsoever in the record
before us that the commission considered those render-
ings as accurate depictions of the height of the proposed
main building; indeed, the height of the main building
never was discussed at the commission’s January 7,
2013 special meeting.
At the public hearing held on the modification appli-
cation 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 restric-
tion on the main building stemming therefrom. We reit-
erate 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 admin-
istrative assistant as to the design of the main building.
Szymanski unequivocally stated at the 2018 public hear-
ing that the architectural renderings were provided sim-
ply to illustrate ‘‘the architectural style’’ of the main
building. The commission, as the sole arbiter of credibil-
ity, 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 uncon-
troverted 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 exclusion-
ary 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 cir-
cumstances, we presume the parties used definitive
language to describe their agreement.’’ (Citations omit-
ted.) 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 limita-
tion 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 modifica-
tion 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.
For those same reasons, the plaintiffs’ claim that the
commission improperly approved an expansion of the
floor area or volume of the main building is unavailing.
Significantly, no floor plans were included in the settle-
ment agreement. Moreover, no floor plans were pre-
sented to the commission in its review of the settlement
agreement. The January 7, 2013 transcript indicates that
the floor area and volume of the main building were
never discussed at the special meeting.
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 exer-
cise room no larger than 3,800 square feet and con-
taining 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 com-
bined 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 demon-
strates 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 delibera-
tions 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 settle-
ment agreement in 2013, the commission ‘‘didn’t even
deliberate over . . . any elevations or any . . . floor
plans’’ and stated that the commission ‘‘never approved
specific floor plans.’’39 Solley also stated that, for pur-
poses of comparing the 2018 plan to the settlement
agreement, ‘‘we simply have no baseline from which
to, other than [the 2012] plan, from which to draw a
comparison . . . .’’ Commissioner David Werkhoven,
who also was a member of the commission in 2013,
similarly stated that the commission ‘‘never discussed
volume requirements’’ during the special meeting to
approve the settlement agreement. Werkhoven further
noted that a ‘‘floor plan shows you rooms and how
they’re divided . . . . We didn’t . . . get any of that.
. . . We didn’t talk about that. . . . We talked about
the general outline of the [main] building. . . . We
didn’t say how they could use it or how they couldn’t
use it.’’ In voting to approve the modification applica-
tion, those commissioners were free to rely on their
personal knowledge of the 2013 settlement agreement
proceeding.
On our review of the record, we conclude that sub-
stantial evidence exists from which the commission
could conclude that no floor area or volume restrictions
were included in the settlement agreement. The Supe-
rior Court thus properly determined that the commis-
sion did not authorize an impermissible expansion of
a nonconforming structure when it approved the modifi-
cation application.
II
The plaintiffs also claim that the court improperly
concluded that the applicant’s proposal did not consti-
tute 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 high-
way’’ for any ‘‘Tourist Home or Inn’’; see Washington
Zoning Regs., § 13.9.B; which the property here conced-
edly lacks. As a result, the operation of an inn on the
property is a nonconforming use. Although that noncon-
forming use is entitled to protection under state law;
see General Statutes §§ 8-2 (a) and 8-26a; it cannot be
expanded under established precedent and §§ 17.1 and
17.3.A of the regulations. See part I A of this opinion.
A
On appeal, the plaintiffs contend that the commis-
sion, in granting the modification application, improp-
erly 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 commis-
sion.
The regulations in the present case define an ‘‘acces-
sory use’’ as ‘‘[a] use customarily incidental and subordi-
nate to a main use and located on the same lot with
such main use.’’ Washington Zoning Regs., § 21.1.7; see
also O & G Industries, Inc. v. Planning & Zoning
Commission, 232 Conn. 419, 421 n.1, 655 A.2d 1121(1995) (‘‘[a]ccessory uses are, by definition, uses
located on the same lot, and must be subordinate and
customarily incidental to, the principal use’’ (internal
quotation marks omitted)). The regulations do not con-
tain an explicit list of permitted accessory uses for inns
in Washington. At the same time, the regulations define
a ‘‘lot’’ in relevant part as a ‘‘parcel of land occupied
or capable of being occupied by one principal building
and the accessory buildings or uses customarily inci-
dental to it . . . .’’ Washington Zoning Regs., § 21.1.38.
The parties agree that accessory uses are permitted on
a lot used principally as an inn. They disagree about the
extent to which the settlement agreement here limits
accessory uses on the property.
As we have noted, the proper construction of a settle-
ment 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 con-
tract 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 con-
tract 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 prop-
erty. 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 prop-
erty.42 No other accessory uses are specified in that
agreement. Because the settlement agreement is sus-
ceptible to more than one reasonable interpretation as
to the scope of permitted accessory uses, we agree
with the commission that the settlement agreement is
ambiguous in that regard.
‘‘When a contract is ambiguous the [finder of fact]
must consider extrinsic evidence and make factual find-
ings as to the parties’ intent.’’ Chiulli v. Chiulli, Supe-
rior Court, judicial district of Hartford, Docket No. CV-
XX-XXXXXXX-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 substanti-
ate 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 indi-
cates 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 discus-
sion 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 commis-
sion heard testimony during the public hearing on the
modification application from Peacocke, who was a
party to the settlement agreement. Peacocke empha-
sized 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 prov-
ince 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 deferen-
tial 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 accessory uses. On appeal,
the plaintiffs maintain that the inclusion of a bar, a
‘‘prefunction’’ meeting area, and a ‘‘meeting room/
library’’ in the 2018 plan approved by the commission
are not permitted accessory uses for inns in Washing-
ton.44 We do not agree.
‘‘[I]n the land use context, the term ‘accessory use’
traditionally connotes a relationship with the primary
use.’’ Morgenbesser v. Aquarion Water Co. of Connecti-
cut, 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 inci-
dental, 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 subordi-
nate; 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 inciden-
tal in the two meanings of that word as discussed [pre-
viously]. The use must be further scrutinized to deter-
mine 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 prohibi-
tion 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. Plan-
ning & 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 Wash-
ington.’’ The record includes uncontroverted evidence
that the Mayflower Inn featured a bar, two libraries, and
‘‘six separate’’ meeting areas.45 The record also contains
evidence that ‘‘all’’ of the accessory uses proposed by
the applicant ‘‘are typical of what [i]nns do’’ and that
the proposed uses in question were of ‘‘a smaller scale
than what is currently offered [and] what has been
offered at [the Mayflower Inn] for decades.’’ On that
evidence, the commission reasonably could find that
the three uses in question had commonly, habitually,
and by long practice been established as reasonably
associated with the primary use of an inn in Washington.
See Loring v. Planning & Zoning Commission, supra,
287 Conn. 754.
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 agree-
ment and the use approved by the granting of the modifi-
cation application are one and the same: an inn on the
property with accessory uses typical of inns in Wash-
ington. 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 settle-
ment 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 modifi-
cation application would not result in a substantial dif-
ference 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 settle-
ment 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 with [the] special permit
standards’’ contained in the regulations. We do not agree.
‘‘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 author-
ized 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 com-
mission 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 commis-
sion ‘‘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 & Pollu-
tion, Inc. v. Planning & Zoning Commission, 220
Conn. 527, 544, 600 A.2d 757 (1991); as required by
General Statutes § 8-3c (b), and did not issue a detailed
decision with explicit findings. See footnote 21 of this
opinion. We are hesitant to ascribe fault in that regard,
as noncompliance with that statutory imperative is com-
monplace in practice and condoned by decades of
appellate authority.48
As our Supreme Court has observed, ‘‘an agency’s
statutorily required finding cannot be overruled simply
because the agency’s decision is not explicitly stated
on the record.’’ Samperi v. Inland Wetlands Agency,
226 Conn. 579, 595, 628 A.2d 1286 (1993). When a trial
court’s decision lacks specificity, this court presumes
that the trial court made all necessary findings that are
supported by the record. See, e.g., Brett Stone Paint-
ing & Maintenance, LLC v. New England Bank,
143 Conn. App. 671, 681, 72 A.3d 1121 (2013); Young v.
Commissioner of Correction, 104 Conn. App. 188, 190
n.1, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907,
942 A.2d 416 (2008). That precept applies equally to our
review of the decisions of municipal land use agencies,
whose conduct carries ‘‘a strong presumption of regu-
larity . . . .’’ Murach v. Planning & Zoning Commis-
sion, 196 Conn. 192, 205, 491 A.2d 1058 (1985); see also
Hills v. Zoning Commission, 139 Conn. 603, 608, 96
A.2d 212 (1953) (zoning commission action entitled to
‘‘every reasonable presumption of validity’’); Levine v.
Zoning Board of Appeals, 124 Conn. 53, 57, 198 A. 173(1938) (‘‘[t]here is a presumption that [municipal land
use agencies] have acted . . . upon valid reasons’’).
When a zoning commission fails to articulate explicit
factual findings to support its decision, a reviewing
court is obligated to ‘‘search the entire record to find
a basis for the commission’s decision . . . . [I]f any
reason culled from the record demonstrates a real or
reasonable relationship to the general welfare of the
community, the decision of the commission must be
upheld.’’ (Emphasis in original; internal quotation
marks omitted.) Graff v. Zoning Board of Appeals, 277
Conn. 645, 670, 894 A.2d 285 (2006); see also Azzarito
v. Planning & Zoning Commission, 79 Conn. App. 614,
618, 830 A.2d 827 (reviewing court must search record
to find basis for decision when commission ‘‘did not
make specific factual findings to support its approval
of the application’’), cert. denied, 266 Conn. 924, 835
A.2d 471 (2003).
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
gave significant consideration to the intensity of the
proposed use, which fostered disagreement among
some commissioners. In addition, the commission con-
sidered the proposed use in relation to its rural setting,
consistent with the stated purpose of the R-1 Farming
and Residential zoning district. See footnote 4 of this
opinion.
The record also indicates that the commission was
cognizant of the fact that the only other inn in Washing-
ton 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 conser-
vation and development. See Washington Zoning Regs.,
§§ 13.1.C.1 and 13.1.C.2.
Moreover, with respect to the impact on adjacent
property, the commission was well aware of the pro-
tracted procedural history of this proposed use of the
property and the fact that owners of surrounding prop-
erties 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 com-
missioners 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; Washington Zoning Regs.,
§ 13.1.C.2; had been the subject of various proceedings
before the commission, as well as the Superior Court,
over the course of a decade. On the evidence before
it, the commission reasonably could conclude that the
changes memorialized in the 2018 plan; see footnote 15
of this opinion; did not materially alter those considera-
tions.
It is true that the commission did not explicitly refer-
ence 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 commis-
sion 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 considera-
tions memorialized in §§ 13.1.C.1 and 13.1.C.2 of the
regulations. To the contrary, the commission reason-
ably could conclude, on the basis of the documentary
and testimonial evidence before it, that the use pro-
posed 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 pro-
posed use was in harmony with the orderly develop-
ment 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 (pre-
sumption of regularity rebutted when record estab-
lished 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.
1
In their complaint, the plaintiffs also named Erika Klauer and Teresa
Rosen Peacocke as defendants, as they were either parties to the settlement
agreement at issue or successors to parties thereto.
2
Unless otherwise indicated, all references to the regulations in this opin-
ion pertain to the September 12, 2017 revision thereof.
3
‘‘In hearing appeals from decisions of a planning and zoning commission,
the Superior Court acts as an appellate body.’’ North Haven Holdings Ltd.
Partnership v. Planning & Zoning Commission, 146 Conn. App. 316, 319
n.2, 77 A.3d 866 (2013).
4
The regulations contain an explicit statement of purpose regarding the
‘‘R-1 Farming and Residential’’ zoning district. Section 4.1 of the regulations
provides: ‘‘It is intended that development in this district, which covers most
of the Town of Washington, will consist primarily of scattered residential,
agricultural and related uses, open space, low intensity recreational activi-
ties, and other uses that will retain the rural character and natural beauty
of the Town.’’
5
The commission did not provide a collective statement of the reasons
for its denial of the special permit, as required by General Statutes § 8-3c
(b). See Wykeham Rise, LLC v. Washington, Superior Court, judicial district
of Litchfield, Docket No. CV-XX-XXXXXXX-S (October 11, 2011).
6
For almost one century, the property was used for educational purposes.
‘‘From 1907 until 1988, the property was the site of the Wykeham Rise
School, a private college preparatory boarding school for girls. In 1988, the
property was sold to Swiss Hospitality Institute, which operated a postsec-
ondary residential hotel school between 1992 and 2003.’’ Peacocke v. Zoning
Commission, Superior Court, judicial district of Litchfield, Docket No. CV-
XX-XXXXXXX-S (February 7, 2013).
7
The sixteen conditions contained in the settlement agreement state:
‘‘1. The Inn’s complete site plan is represented in the attached document
as Overall Site Plan for Applicant Matthew & Erika Klauer Development:
Wykeham Project Date: July 8, 2011 Scale 1’’ = 60’ SHEET 050.1 Revised to
11/19/12, Prepared by Arthur H. Howland & Associates P.C. (‘Site Plan’).
‘‘2. The Inn will contain a maximum of fifty-four (54) guest room units
(‘Units’).
‘‘3. There will be a maximum of one hundred (100) parking spaces provided
on the Property. There will be no ‘overflow’ parking.
‘‘4. The Inn’s restaurant shall be open to the public but shall have a total
maximum seating capacity of sixty-eight (68) seats during normal operations,
excluding weddings, or ‘paid for events.’ Of the maximum seating capacity,
no more than thirty (30) seats shall be outdoor seating.
‘‘5. 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. There shall be no treatment rooms in the Main Building under any
circumstances and treatment rooms in the Fitness Building may not be used
for overnight stays. Wykeham will not issue ‘day passes’ for the spa and
fitness center or for any such exercise room.
‘‘6. The existing driveway of the Property that intersects Bell Hill Road
will be permanently abandoned.
‘‘7. There will be no amplified sound on the grounds or outside the foot-
prints of all fully constructed and enclosed buildings at any time. Non-
amplified sound is allowed; however, non-amplified music must cease 30
minutes after local sunset.
‘‘8. The pool house shall be permitted to serve alcohol but will not have
any grill or cooking equipment. There shall be no outside grill on the Prop-
erty. The pool house and pool shall open no earlier than 8:00 a.m. and close
no later than at 8:00 p.m. each day. Wykeham shall use best efforts to
minimize noise or raucous behavior at the pool house or pool. All exterior
lights shall be subject to the lighting standards of the [regulations] in effect
at the time this Agreement is fully executed by the parties herein.
‘‘9. There shall be no more than twenty-four (24) tented events between
and only during the period from May 1 through October 31 of each calendar
year and no more than one (1) tented event may be held per day. Tented
events may be held in two general locations, the first being north of the
Main Building (as those specific locations are depicted on the Site Plan)
and the second being south of the Main Building (the specific south side
locations are as depicted on the Site Plan.) Of the twenty-four (24) tented
events, up to but no more than twelve (12) tented events may occur on the
south side of the Main Building during any one calendar year. The balance
of the twenty-four (24) total number of tented events that may be held in
a calendar year, less the actual number of tented events not to exceed
twelve (12) that occur on the south side in any calendar year, shall be
allowed on the north side. No buildings, tents or other structures shall be
constructed, placed or erected above, or on the ground in the Restricted
Area as depicted on the Site Plan. No permanent or temporary parking is
permitted in the Restricted Area. No food or beverages, including but not
limited to, alcohol beverages, shall be prepared or served in the
Restricted Area.
‘‘10. A separate ‘Stipulated Judgment’ by and between Wykeham and
Federer relating to Wykeham Rise LLC v. Eric A. Federer, et ux., Docket
No. LLI-CV-XX-XXXXXXX-S, [judicial district] of Litchfield at Litchfield, will be
signed by the parties therein and filed with the court for approval contempo-
raneously with the submission for approval of this Agreement by the court.
‘‘11. Any amendments to this Settlement Agreement must be consented
to by all the parties herein or their heirs, successors or assigns.
‘‘12. If any provision of this settlement agreement is deemed unenforceable
or against public policy by a court of competent jurisdiction, such provision
shall be deemed severable from the remainder of the Agreement and shall
not affect any other provision or, if such provision should not be wholly
severable then, to the maximum extent possible, the remainder of this
Agreement shall be modified so as to maintain the original intent and remain
in full force and effect.
‘‘13. Each of the parties represent that he, she or it has the complete
authorization and power to execute this Agreement in an individual capacity,
on behalf of an LLC, or Commission as the case may be and that all necessary
approvals, signatures or consents of any other person or entity has been
obtained and that this Agreement is a valid and binding obligation of the
individuals, Wykeham Rise, LLC and the Commission and such Agreement
does not violate any law, rule, regulation, contract or agreement otherwise
enforceable against the respective parties.
‘‘14. This settlement agreement shall be construed in accordance with the
laws of the State of Connecticut.
‘‘15. Once this Settlement Agreement has its Approval, Wykeham shall
give up and surrender its two existing approvals for a school granted by
the Commission on December 27, 2010, and February 14, 2012.
‘‘16. This Settlement Agreement may be signed in counterparts and the
parties may rely on facsimile or email copies provided to each as long as
the originals are thereafter provided so that an original composed of all
original counterparts may be presented to the Court for approval.’’
8
The record before us contains the minutes of the January 7, 2013 special
meeting and a partial transcript that was provided to the commission by
Attorney Gail E. McTaggart as part of her memorandum to the commission
dated July 23, 2018. In that memorandum, McTaggart states: ‘‘[E]xcluded
[from the special meeting transcript] are [forty] minutes of public comment
(and the few replies by [the commission’s counsel and Wykeham’s engi-
neer]). Once public comment was closed, the remainder is fully transcribed,
except for one [thirteen] minute discussion about construction on Sundays
(and a brief discussion of building materials).’’
9
The transcript of the January 7, 2013 special meeting indicates that two
architectural renderings were provided to the commission to illustrate the
look of the proposed inn. Those renderings were offered in response to a
question from the commission’s administrative assistant, Janet M. Hill, who
asked: ‘‘I thought the rustic country kind of architecture would be back,
but now it sounds like we’re at the school application [design] and you’ve
got a factory warehouse. Which is it? For the architecture?’’ In response,
Paul S. Szymanski, a civil engineer and president of Arthur H. Howland &
Associates, P.C., stated: ‘‘We can give a—would you like a representative
rendering for the record? It doesn’t look exactly like the school.’’ When Hill
replied in the affirmative, Szymanski shared those renderings and explained
that, ‘‘what we did was we significantly . . . improved the rooflines, adding
gable ends throughout . . . breaking up the windows . . . adding addi-
tional glass in several places. . . . [A]nd breaking up what previously looked
like one extended building.’’ When the commission later prepared to make
a motion to approve the settlement agreement, its legal counsel suggested
referencing those ‘‘renderings,’’ which were marked as ‘‘rendering ‘A’ and
rendering ‘B.’ ’’
10
A printed copy of one page of the commission’s prior motion to approve
the special permit to operate a school on the property, which contained
seven conditions of approval, was marked ‘‘1/7/13 Proposed Conditions—
No #5’’ and was signed by Chairman Gary Fitzherbert. One condition, which
was listed as number five on that document and pertained to the sale of
liquor, was crossed out. The remaining six conditions state:
‘‘1. All modifications to the approved plans must be approved by the
[commission] or its authorized agent prior to implementation,
‘‘2. As-built drawings shall be submitted to the [commission] upon the
completion of the foundations and again upon completion of framing. The
as-built drawings must be approved by the [c]ommission or its authorized
agent before commencement of further construction. The [c]ommission
may, at the expense of the applicant, submit such drawings to a professional
for evaluation,
‘‘3. Outside construction may take place only between 7:00 a.m. and 5:00
p.m. Monday through Friday and between 8:00 a.m. and 4:00 p.m. on Saturday
and Sunday. No blasting, no operation of heavy equipment, and no site
work, are permitted on Saturday or Sunday, before 8:00 a.m. on Monday
through Friday, and on Memorial Day, Fourth of July, and Labor Day,
‘‘4. A performance bond, in the form of an irrevocable letter of credit
from a financial institution with offices in Connecticut, in an amount to be
determined in consultation with the [c]ommission’s attorney, by an engineer
approved by the [c]ommission and paid for by the applicant, shall be secured
before disturbance of the site begins,
‘‘[5.] The applicant shall, in addition to the proposed buffering, intersperse
a sufficient number of evergreen trees with the existing and proposed vegeta-
tion to reasonably buffer the lower parking lot visibility from Wykeham
Road, and
‘‘[6.] Benchmark elevations for the building height shall be established
for each building per Section 11.7.2.3 of the [regulations].’’
11
General Statutes § 8-8 (n) provides in relevant part: ‘‘No [zoning] appeal
. . . shall be withdrawn and no settlement between the parties to any such
appeal shall be effective unless and until a hearing has been held before
the Superior Court and such court has approved such proposed withdrawal
or settlement.’’
12
On January 3, 2013, mere weeks before the settlement agreement was
approved by the court; see Wykeham Rise, LLC v. Zoning Commission,
Docket No. CV-XX-XXXXXXX-S, 2013 WL 951156 (Conn. Super. February 5,
2013); the plaintiffs, along with Mitchell J. Solomon, trustee for the Mitchell
J. Solomon Revocable Trust, filed a motion to intervene in the pending
appeal of the commission’s 2008 decision to deny Wykeham’s special permit
request. In denying that motion, the court stated in relevant part: ‘‘The
appeal began on December 29, 2008, and the motion to intervene was not
filed until January 3, 2013, a delay of four years. The appeal has already
been heard and decided by the Superior Court and appealed to the Appellate
Court. The proposed intervenors admit in their motion to intervene that
they ‘have a track record of involvement in various zoning applications filed
by the plaintiff for the same property as the subject appeal.’ They make the
extremely weak argument that they decided not to intervene in this case
because it involves a denial of the project. They must have been well aware
that three other neighbors intervened and that the appeal to the Appellate
Court would involve a preargument conference for the purpose of trying
to settle the matter. It is hard to imagine a more untimely motion to intervene.
The delay and prejudice to the present parties would be extreme if the
motion to intervene is granted. The parties have spent considerable time
and expense to bring the appeal to the point that . . . it can be settled.
The intervention would prevent the settlement from taking place because
the proposed intervenors oppose it and there can be no settlement if one
or more of the parties to the case do not support it.’’ Wykeham Rise, LLC
v. Zoning Commission, Superior Court, judicial district of Litchfield, Docket
No. CV-XX-XXXXXXX-S (February 4, 2013) (55 Conn. L. Rptr. 479, 480).
13
No appeal was taken from the judgment approving the settlement agree-
ment. In all subsequent proceedings before the commission and the Superior
Court, the parties agreed that the commission’s 2013 approval of the settle-
ment agreement was tantamount to special permit approval to construct
an inn on the property in accordance with the 2012 plan and the conditions
specified in the settlement agreement, and no claim to the contrary has
been raised in this appeal. Indeed, the plaintiffs repeatedly refer to the ‘‘2013
special permit’’ in their principal appellate brief.
14
The 2018 plan was revised further on March 20, June 18 and July 2,
2018, in ways immaterial to the present appeal.
15
As part of that application, the applicant submitted a letter from Paul S.
Szymanski, a civil engineer and president of Arthur H. Howland & Associates,
P.C., ‘‘to clarify and note all modifications [contained in the 2018 plan] in
comparison to the original approved site plan as part of the settlement
agreement. These are the only modifications to the [2012 plan] requested:
‘‘1. Regrading along the rear and east side of the Main Building.
‘‘2. Addition of a retaining wall on the east side of the building and minor
modification to the existing retaining wall already approved on the east side
of the Main Building.
‘‘3. Removal of the [twenty air conditioning] pads at the rear of the
Main Building.
‘‘4. Addition of [three] emergency egress landings at the Main Building,
[three] emergency egress landings at the Pool House (added since last Public
Hearing) and [one] emergency egress landing at the Spa House (added since
last Public Hearing) with associated gathering areas and pathways to comply
with the Building Code.
‘‘5. Since the last Public Hearing, addition of a pull-off area approximately
[five foot by twenty foot] adjacent to the driveway in front of the Spa House
to satisfy Building Code requirements [of the Americans with Disabilities
Act of 1990, 42 U.S.C. § 12131 et seq.]. This necessitated moving the Spa
House [five] feet closer to the drive.’’
Paul S. Szymanski concluded that letter by stating that ‘‘[t]hese are the
only revisions being requested and are graphically represented on [the 2018
plan].’’ (Emphasis in original.)
16
The commission’s notice of approval of the settlement agreement was
filed in the Washington land records at volume 231, pages 1131–32.
17
Meetings scheduled for May 15 and June 25, 2018, were cancelled due
to a tornado warning in the area and a continuance request, respectively.
18
In addition to testimonial evidence presented at the public hearing, the
commission received a written ‘‘side-by-side comparison’’ of the applicant’s
proposal and the Mayflower Inn, which states in relevant part: ‘‘Mayflower
has thirty units while [the applicant’s proposal] plans to have thirty-seven
units. Fifty-four units were approved by the settlement agreement . . . yet
only thirty-seven are planned—seven more than the Mayflower. Mayflower
has nine buildings while [the applicant’s proposal] will have six. Both [the
applicant’s proposal] and Mayflower have a restaurant with an accompa-
nying bar—Mayflower has eighty-five dining seats while [the applicant’s
proposal] has sixty-eight. Mayflower is able to have outdoor dining as well
on its porch which would add seats—but [the applicant’s proposal] is limited
to sixty-eight seats and only thirty of those can be moved outside. [The
applicant’s proposal] is limited to twenty-four maximum outdoor events such
as weddings per year while Mayflower has indicated nearly 100 weddings
are held every year. Mayflower has two gyms—one in its main building and
one in its spa. Mayflower offers memberships at both venues. [The appli-
cant’s proposal] has only one spa. The dedicated spa building at Mayflower
is 20,000 square feet (this does not include the square footage of gym space
in the main building) while [the applicant’s proposed] spa and gym will be
under 11,000 square feet. The Mayflower has tennis courts—[the applicant’s
proposal] will have none. The Mayflower has two libraries and reading
rooms—[the applicant] plans to have one. Mayflower has six separate venues
for ballroom/meeting rooms while [the applicant’s proposal] will have two.
The total square footage of the various Mayflower meetings spaces is over
5000 square feet while [the applicant’s proposal] is 3500 [square feet]. May-
flower also has a dedicated business center; one is not planned at this time
[in the applicant’s proposal]. Mayflower has two gift shops—[the applicant’s
proposal] has . . . one. Mayflower has two swimming pools—one indoor
and one outdoor—[the applicant’s proposal] will have only one. The total
number of parking spaces is ninety-five at Mayflower and 100 for [the
applicant’s proposal]. What is clear here is that all of these offerings and
attributes are typical of what Inns do. As the Chairman [of the commission]
says—the definition of an ‘inn’ is governed by the one that still exists in
Washington. [The applicant] is not proposing to do anything that the May-
flower is not already [doing, and in] every [instance] save room count, [the
applicant’s] planned activities are [of] a smaller scale than what is currently
offered—and what has been offered at Mayflower for decades.’’
19
Of the eight members on the commission, only three—Nicholas N. Sol-
ley, David Werkhoven, and Raymond W. Reich—had served on the commis-
sion when the settlement agreement was approved in 2013. Those three
members all voted to approve the 2018 modification request.
20
The conditions attached to the commission’s approval state:
‘‘1. This 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.
‘‘2. The commission finds that the separate ownership of guest room
units is inconsistent with its interpretation of the word ‘inn’ as used in the
[regulations]. An ‘inn’ is a lodging facility owned and managed by a single
ownership entity, with rooms available for transient occupancy by lessees.
Therefore, a condition of approval is that the ‘inn’ must be owned as an
undivided property. Guest room units, however they may be designated,
may not be separately owned.
‘‘3. No guest room units shall have a kitchen.
‘‘4. No guest room unit shall contain a refrigerator having a capacity larger
than 4.0 cubic feet.
‘‘5. No guest room unit shall have a stove, stove top, oven or convec-
tion oven.
‘‘6. No guest room unit shall have any cooking facilities, including micro-
wave ovens.
‘‘7. No guest room unit shall have a dishwasher.
‘‘8. No guest room unit shall have a washing machine or dryer.
‘‘9. The interior floor plans shall be modified to eliminate the ballroom,
because that use was neither contemplated nor approved in 2013 and, [with-
out reductions in the uses actually approved in 2013], would expand or
extend the nonconforming nature of the principal use. In addition, the
applicant failed to prove that 100 parking spaces allowed under the 2013
approval would be adequate to accommodate the additional use.
‘‘10. The emergency accessway shall be used for emergency purposes
only and shall not be used to service the pool, poolhouse, or tented vans.
‘‘11. As-built drawings shall be submitted to the [commission] upon the
completion of the foundations and again upon the completion of framing.
The as-built drawings must be approved by the commission or its authorized
agent(s) before commencement of further construction. The commission
shall, at the expense of the applicant, refer such drawings to a professional
engineer and/or a surveyor for review.
‘‘12. Outside construction may take place only between 7:00 a.m. and 5:00
p.m. Monday through Friday and between 8:00 a.m. and 4:00 p.m. Saturday
and Sunday. No blasting, no operation of heavy equipment, and no site work
are permitted on Saturday or Sunday, before 8:00 a.m. Monday through
Friday, and on Memorial Day, Fourth of July, and Labor Day.
‘‘13. In accordance with Section 13.4 of the [regulations], a performance
bond, in the form of a cash bond or an irrevocable letter of credit from a
financial institution with offices in Connecticut, in an amount and for items
to be determined by the commission in consultation with the commission’s
attorney and/or by an engineer approved by the commission and paid for
by the applicant, shall be secured before disturbance of the site begins.
‘‘14. No day passes or memberships of any kind may be issued for the
spa, which is to be used by overnight guests only.
‘‘15. No day passes or memberships of any kind may be issued for the
pool, which is to be used by overnight guests only.
‘‘16. The finish floor levels for the main inn building shall not exceed
those shown on Sheet SD.1, revised to 12/17/12 as was approved in the
[settlement agreement].
‘‘17. The main inn building is limited to five levels: two underground and
three above ground.
‘‘18. Outdoor lighting must comply with the requirements of Section 12.15
of the [regulations]. A plan for all such lighting must be submitted to and
approved by the [commission] prior to the commencement of any construc-
tion.
‘‘19. All cottages shall be limited to two floors only per Sheet SD.1, revised
to 12/17/12.
‘‘20. There shall be no kitchen in the pool house.
‘‘21. Written approval by the fire marshal shall be submitted to the commis-
sion prior to the issuance of the special permit.
‘‘22. Written approval by the [Department of Energy and Environmental
Protection] of the final septic plans shall be submitted to the commission
prior to the issuance of the special permit.
‘‘23. Written approval by Aquarion Water Company of the final plans for
the water supply shall be submitted to the commission prior to the issuance
of the special permit and shall include (a) determination that the water
supply is adequate to service the ‘inn’ and sprinkler systems, and (b) a
statement of how many additional wells will be needed and where they will
be located. The applicant must also provide the commission with a signed
statement that it agrees to pay for all required system improvements. . . .
‘‘24. Any further modifications to any of the approved plans . . . must
be submitted to and approved by the [commission] prior to implementation.
‘‘25. No passenger drop offs by buses carrying fifteen passengers or more.’’
(Citation omitted.)
21
While the record indicates that commission members engaged in exten-
sive deliberations over several nights during which they expressed their
individual views on a variety of issues, the commission nonetheless did not
furnish ‘‘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);
see also Verrillo v. Zoning Board of Appeals, 155 Conn. App. 657, 673–76,
111 A.3d 473 (2015) (neither individual reasons stated by land use agency
members during deliberations nor remarks of member in making motion to
grant application constitute collective statement). As a result, this court is
obligated, pursuant to well established precedent, to search the entire record
to ascertain whether the evidence reveals any proper basis for the commis-
sion’s decision to approve the modification application. See Harris v. Zoning
Commission, 259 Conn. 402, 423, 788 A.2d 1239 (2002).
22
‘‘[P]ursuant to . . . § 8-8 (a), a person may derive standing to appeal
based solely upon his status as an abutting landowner or as a landowner
within 100 feet of the subject property.’’ Pierce v. Zoning Board of Appeals,
7 Conn. App. 632, 635–36, 509 A.2d 1085 (1986).
23
Although § 8-8 (o) has been amended since the events at issue, that
amendment is not relevant to this appeal. We therefore refer to the current
revision of § 8-8 (o).
24
In its appellate brief, the commission maintains that, given the particular
facts and circumstances now before us, the principles governing noncon-
forming uses do not apply to this appeal.
25
See, e.g., McMahon v. Board of Zoning Appeals, 140 Conn. 433, 101
A.2d 284 (1953); cf. MacKenzie v. Planning & Zoning Commission, 146
Conn. App. 406, 427–30, 77 A.3d 904 (2013) (variance power rests exclusively
with zoning board of appeals).
26
See also Washington Zoning Regs., § 17.3.A (‘‘no such nonconforming
use shall be enlarged or increased, nor extended to occupy a greater area
of the lot than was occupied at the time such use became nonconforming
under these [r]egulations’’); Washington Zoning Regs., § 17.4.A (‘‘[N]o such
nonconforming structure may be enlarged, extended, or otherwise altered
in such a way as to increase the area, volume, or percentage of the structure
that is nonconforming or to create, increase, enlarge, or extend any other
nonconformity as to the structure or the lot. This prohibition includes, but
is not limited to, any horizontal or vertical extension or expansion of a
structure within a required setback area.’’). The regulations similarly provide
that, ‘‘[o]n any nonconforming structure or portion of a structure containing
a nonconforming use, repairs and maintenance may be done provided that
the nonconforming aspects of the structure (e.g., setbacks from lot lines,
height), as well as the cubic content of the nonconforming portions of the
structure shall not be increased. . . . Any nonconforming structure that
has been damaged by fire, explosion, or act of nature may be repaired,
rebuilt, or replaced within two years of such damage, provided that such
repairs, rebuilding, or replacement does not extend nor expand any noncon-
forming aspect of the affected building.’’ (Emphasis added.) Washington
Zoning Regs., § 17.8.
27
A setback is ‘‘a zoning limitation that prohibits construction’’ within a
specified distance from a property line. Bloom v. Zoning Board of Appeals,
233 Conn. 198, 200 n.2, 658 A.2d 559 (1995); see also Vivian v. Zoning Board
of Appeals, 77 Conn. App. 340, 350, 823 A.2d 374 (2003) (‘‘[t]he setback is
the distance between the point where a building touches the ground and
the property line’’); Black’s Law Dictionary (9th Ed. 2009) p. 1496 (defining
setback as ‘‘[t]he minimum amount of space required between a lot line and
a building line’’). The regulations here define ‘‘setback’’ in relevant part as
‘‘the shortest distance from a structure to a lot line, public right of way, or
wetland or watercourse. . . .’’ Washington Zoning Regs., § 21.1.60.
28
See Simko v. Ervin, 234 Conn. 498, 509, 661 A.2d 1018 (1995) (Berdon,
J., dissenting) (‘‘the term ‘footprint’ . . . is commonly used, and universally
understood, to refer to the boundaries of a building’’); Campbell v. Tiverton
Zoning Board, 15 A.3d 1015, 1020 (R.I. 2011) (defining footprint as ‘‘the
exterior perimeter of the foundation’’ of structure); Black’s Law Dictionary
(9th Ed. 2009) p. 717 (defining footprint in land use context as ‘‘[t]he shape
of a building’s base’’).
29
The plaintiffs concede that the main building depicted in the 2012 plan
is a lawful use. In their principal appellate brief, they state in relevant
part: ‘‘The main building . . . stands approved in 2013, and is therefore
‘lawful’ . . . .’’
30
Our review of the record indicates that all parties that participated in
the commission’s review of Wykeham’s 2008 special permit application, as
well as all parties to the 2013 settlement agreement and the hearing before
the Superior Court, overlooked this specific setback requirement. The regula-
tions in this regard may have contributed to the confusion, as they contain
multiple setback requirements that ostensibly could apply to the property.
Section 11 of the regulations is titled ‘‘Density, Lot Size, and Other Dimen-
sional Requirements.’’ Section 11.6.1.A then specifies a thirty foot ‘‘[r]ear’’
and a fifteen foot ‘‘[s]ide’’ setback requirement ‘‘[f]or buildings and structures
used in part or wholly for [b]usiness.’’ The site plans submitted as part of
Wykeham’s proposal, and the 2012 plan in particular, contain a yellow
boundary that is labeled ‘‘30 [Foot] Side Yard.’’
Section 11.6.1 nonetheless includes a crucial condition to those setback
requirements, stating that they apply ‘‘[u]nless otherwise specified in the
particular zone for a commercial lot . . . .’’ Section 13.9.B, in turn, specifies
the minimum setback requirements for ‘‘any structure’’ constructed as part
of a ‘‘Tourist Home or Inn.’’ Because the proposed use of the property
indisputably is as an inn, the fifty foot lot line setback of § 13.9.C applies
to the main building, which lies thirty-one feet from the side lot line on the
2012 plan.
In Torrington v. Zoning Commission, 261 Conn. 759, 770, 806 A.2d 1020(2002), a municipal zoning commission entered into a settlement agreement
that ‘‘varied to some extent the zoning regulations applicable to the property
in question’’ despite the fact that the variance power is statutorily allocated
to the zoning board of appeals. In rejecting a challenge to the propriety of
that settlement agreement, our Supreme Court explained that ‘‘[i]t is not
enough that the conduct in question was in violation of the applicable zoning
statutes or regulations. It must be shown that the conduct was so far outside
what could have been regarded as a valid exercise of zoning power that
there could not have been any justified reliance on it.’’ Id., 768. The court
emphasized that the zoning commission’s decision to enter into the settle-
ment agreement ‘‘served to settle a vigorously contested appeal’’; id., 770;
and that the plaintiff challenging the propriety of that agreement ‘‘does
not contend that the [settlement agreement] was the product of bad faith,
collusion, or other improper conduct.’’ Id., 771. Perhaps most importantly,
the court noted that ‘‘it was not entirely obvious that the [zoning] commis-
sion’s conduct in entering into the [settlement agreement] was outside its
purview.’’ Id., 770. For those reasons, the court concluded that the parties
reasonably could rely on that settlement agreement. See id., 776. That logic
applies equally to the present case.
31
See Washington Zoning Regs., § 17.1 (‘‘It is . . . the intent of these
Regulations that the nonconforming aspects of [any nonconforming] lots
and structures shall not be enlarged, expanded, or extended . . . . A non-
conforming use of a structure . . . shall not be extended, expanded, or
enlarged . . . .’’); Washington Zoning Regs., § 17.4.A (‘‘[N]o such noncon-
forming structure may be enlarged, extended, or otherwise altered in such
a way as to increase the area, volume, or percentage of the structure that
is nonconforming or to create, increase, enlarge, or extend any other noncon-
formity as to the structure or the lot. This prohibition includes, but is not
limited to, any horizontal or vertical extension or expansion of a structure
within a required setback area.’’).
32
The January 7, 2013 motion to approve the settlement agreement states
in relevant part: ‘‘The [commission] hereby approves the [s]ettlement [a]gree-
ment . . . per the [2012 plan], the architectural renderings, A and B . . .
and the [six] proposed conditions of approval . . . .’’
33
The 2018 plan contained two minor alterations that are not in dispute.
Three emergency egress landings and a five by twenty foot pull-off area
were added to comply with building code requirements and the Americans
with Disabilities Act of 1990, 42 U.S.C. § 12131 et seq. On appeal, the plaintiffs
do not claim that those additions constituted an impermissible expansion
of a nonconforming structure. Indeed, such modifications of nonconforming
structures are permitted under the regulations. See Washington Zoning Regs.,
§ 17.8 (‘‘[n]othing in these Regulations shall be deemed to prohibit any
modifications that are determined . . . to be necessary to strengthen or
restore to a safe condition any structure or part thereof’’).
34
See Washington Zoning Regs., § 17.4.A (‘‘[N]o such nonconforming struc-
ture may be enlarged, extended, or otherwise altered in such a way as to
increase the area, volume, or percentage of the structure that is nonconform-
ing . . . . This prohibition includes . . . vertical extension or expansion
of a structure within a required setback area.’’).
35
The one condition tangentially related to the issue of height pertained
to its method of calculation. When the commission approved the settlement
agreement on January 7, 2013, the sixth condition imposed by the commis-
sion stated: ‘‘Benchmark elevations for the building height shall be estab-
lished for each building per Section 11.7.2.3 of the [regulations].’’ Section
11.7.2.3 of the regulations provides: ‘‘For purposes of determining the total
vertical height and mean height of a structure, please refer to the definitions
in Section 21 of ‘Average Finished Grade’ and ‘Average Pre Existing Grade.’
This average must be determined in the field prior to any site disturbance.
A benchmark elevation distinguished and defined from the pre existing
average grade must be marked on site and mapped prior to any land distur-
bance. This benchmark shall be maintained throughout the duration of
construction and used to confirm the total vertical height and mean height
of the structure after construction.’’
36
Neither the school plans nor the discharge permit plans were submitted
to the commission in connection with the January 7, 2013 special meeting.
37
In a letter to the commission that was submitted as part of the 2018
public hearing on the modification application, Owens stated in relevant
part that the architectural renderings ‘‘are computer generated, [three]-
dimensional depictions of a specific building design . . . . They convey
quantifiable height, shape, volume and number of stories. The renderings
correlate directly to [the discharge permit plans]. There is NO INTENT to
suggest that the [discharge permit plans] are relevant to any issue other
than establishing architectural characteristics of [the architectural render-
ings]. [The discharge permit] plans were not part of the settlement agree-
ment.’’ (Emphasis in original.) In comparing his analysis of the dimensions
of the architectural renderings, Owens opined that the main building
depicted on the 2018 plan was approximately six feet and seven inches
taller than the architectural renderings.
38
Our decisional law commonly refers to the ‘‘testimony’’ offered at the
public hearings of municipal land use agencies in this state without regard
to whether it was offered under oath. See, e.g., Anatra v. Zoning Board of
Appeals, 307 Conn. 728, 745, 59 A.3d 772 (2013) (explaining that ‘‘the testi-
mony at the hearing’’ is relevant to proper construction of variance granted
by board); Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn.
393, 415, 920 A.2d 1000 (2007) (‘‘the issue was raised in the testimony
before the board at the public hearing’’ (emphasis omitted)); Jalowiec Realty
Associates, L.P. v. Planning & Zoning Commission, 278 Conn. 408, 411,
898 A.2d 157 (2006) (zoning commission continued public hearing ‘‘[a]fter
hearing testimony from the plaintiff’s experts and from members of the
public’’); Cameo Park Homes, Inc. v. Planning & Zoning Commission, 150
Conn. 672, 678, 192 A.2d 886 (1963) (‘‘[n]o testimony was offered at the
hearing before the commission’’); Cornacchia v. Environmental Protection
Commission, 109 Conn. App. 346, 353, 951 A.2d 704 (2008) (noting that
‘‘the court relied on testimony from the public hearing’’ in concluding that
substantial evidence existed to support commission’s denial of permit);
Urbanowicz v. Planning & Zoning Commission, 87 Conn. App. 277, 297,
865 A.2d 474 (2005) (‘‘the commission heard testimony on the [special permit]
application’’); Children’s School, Inc. v. Zoning Board of Appeals, 66 Conn.
App. 615, 630, 785 A.2d 607 (noting that zoning board ‘‘was entitled to credit
the testimony . . . adduced during the four days of public hearings’’), cert.
denied, 259 Conn. 903, 789 A.2d 990 (2001).
In Parsons v. Board of Zoning Appeals, 140 Conn. 290, 292–93, 99 A.2d
149 (1953), our Supreme Court explained that ‘‘[p]roceedings before an
administrative board are informal. . . . Such a board is not bound by the
strict rules of evidence. . . . The only requirement is that the conduct of
the hearing shall not violate the fundamentals of natural justice. That is,
there must be due notice of the hearing, and at the hearing no one may be
deprived of the right to produce relevant evidence or to cross-examine
witnesses produced by his adversary . . . .’’ (Citations omitted.) For that
reason, ‘‘[t]here is no legal requirement that witnesses before a municipal
land use agency must take an oath before testifying.’’ 9 R. Fuller, Connecticut
Practice Series: Land Use Law and Practice (4th Ed. 2015) § 20:11, p. 611;
see also Loring v. Planning & Zoning Commission, 287 Conn. 746, 758, 950
A.2d 494 (2008) (‘‘[a]n unsworn statement of a party’s counsel is competent
evidence before a zoning body’’); Parsons v. Board of Zoning Appeals, supra,
293 (board entitled to accept unsworn statements); Wheeler v. Cosgrove,
Superior Court, judicial district of New Haven, Docket No. CV-XX-XXXXXXX-
S (December 12, 2019) (zoning hearings ‘‘do not require the swearing in of
witnesses so long as an opportunity to refute their testimony is provided’’);
1 P. Salkin, American Law of Zoning (5th Ed. 2021) § 8:16 (‘‘[u]nsworn
testimony may be received’’ at zoning hearing). Because the record reflects
that the parties were afforded the opportunity to refute the unsworn testi-
mony offered by Szymanski and others at the public hearing, the commission
was entitled to consider that testimony.
39
The minutes of the commission’s August 7, 2018 deliberations likewise
indicate that Solley ‘‘stated that [in 2013, the commission] did not deliberate
over elevations or [floor plans] because there were none submitted with
the site plan.’’
40
With respect to the proposed restaurant, the settlement agreement states
in relevant part: ‘‘The Inn’s restaurant shall be open to the public but shall
have a total maximum seating capacity of sixty-eight (68) seats during normal
operations, excluding weddings, or ‘paid for events.’ Of the maximum seating
capacity, no more than thirty (30) seats shall be outdoor seating.’’
41
With respect to the proposed spa and fitness center, 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. There shall be no treatment rooms in
the Main Building under any circumstances and treatment rooms in the
Fitness Building may not be used for overnight stays. Wykeham will not issue
‘day passes’ for the spa and fitness center or for any such exercise room.’’
42
With respect to tented events, the settlement agreement states in rele-
vant part: ‘‘There shall be no more than twenty-four (24) tented events
between and only during the period from May 1 through October 31 of each
calendar year and no more than one (1) tented event may be held per day.
Tented events may be held in two general locations, the first being north
of the Main Building (as those specific locations are depicted on the Site
Plan) and the second being south of the Main Building (the specific south
side locations are as depicted on the Site Plan.) Of the twenty-four (24)
tented events, up to but no more than twelve (12) tented events may occur
on the south side of the Main Building during any one calendar year. The
balance of the twenty-four (24) total number of tented events that may be
held in a calendar year, less the actual number of tented events not to
exceed twelve (12) that occur on the south side in any calendar year, shall
be allowed on the north side. No buildings, tents or other structures shall
be constructed, placed or erected above, or on the ground in the Restricted
Area as depicted on the Site Plan. No permanent or temporary parking is
permitted in the Restricted Area. No food or beverages, including but not
limited to, alcoholic beverages, shall be prepared or served in the
Restricted Area.’’
43
Detailed floor plans are not required for the issuance of a special permit
under the regulations. See Washington Zoning Regs., §§ 13.4 and 14.3.
44
The proposed bar, ‘‘prefunction’’ meeting area, and meeting room/library
all are located in the main building.
45
The modification application approved by the commission here con-
tained a bar, one ‘‘meeting room/library,’’ and one ‘‘prefunction’’ meeting
area.
46
For example, the commission required the applicant to eliminate the
proposed ballroom from the 2018 plan, prohibited the issuance of day passes
for the spa and pool areas, and prohibited ‘‘passenger drop offs by buses
carrying [fifteen] passengers or more.’’ The commission required the main
building to be ‘‘limited to five levels’’ and further specified that its ‘‘finished
floor levels . . . shall not exceed those shown on Sheet SD.1 . . . .’’ The
commission also prohibited individual ownership of guest room units and
mandated that guest room units shall not have (1) ‘‘a kitchen’’; (2) ‘‘any
cooking facilities,’’ including ‘‘a stove, stove top, oven or convection oven’’;
(3) ‘‘a dishwasher’’; (4) ‘‘a washing machine or dryer’’; or (5) a ‘‘refrigerator
having a capacity larger than 4.0 cubic feet.’’ See footnote 20 of this opinion.
47
Subparagraph 1 of § 13.1.C.1 provides in relevant part: ‘‘That the pro-
posed use and any building or other structure in connection therewith are
consistent with the objectives of the Plan of Conservation and Development
. . . and the intent and requirements of the Zoning Regulations as such
documents may be amended.’’ Washington Zoning Regs., § 13.1.C.1.
Subparagraph 2 of § 13.1.C.2 provides: ‘‘That the location, type, character,
size, scale, proportion, appearance, and intensity of the proposed use and
any building or other structure in connection therewith shall be in harmony
with and conform to the appropriate and orderly development of the Town
and the neighborhood and will not hinder or discourage the appropriate
development and use of adjacent property or substantially or permanently
impair the value thereof.’’ Washington Zoning Regs., § 13.1.C.2.
48
See, e.g., Rapoport v. Zoning Board of Appeals, 301 Conn. 22, 34, 19
A.3d 622 (2011); Harris v. Zoning Commission, 259 Conn. 402, 420–21, 788
A.2d 1239 (2002); Paige v. Town Plan & Zoning Commission, 235 Conn.
448, 464, 668 A.2d 340 (1995); Protect Hamden/North Haven from Excessive
Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 220
Conn. 544–45; Ward v. Zoning Board of Appeals, 153 Conn. 141, 144, 215
A.2d 104 (1965); Turek v. Zoning Board of Appeals, 196 Conn. App. 122,
136–37, 229 A.3d 737, cert. denied, 335 Conn. 915, 229 A.3d 729 (2020);
Verrillo v. Zoning Board of Appeals, supra, 155 Conn. App. 672–76; Malone
v. Zoning Board of Appeals, 134 Conn. App. 716, 724, 39 A.3d 1233 (2012);
200 Associates, LLC v. Planning & Zoning Commission, 83 Conn. App.
167, 177–78, 851 A.2d 1175, cert. denied, 271 Conn. 906, 859 A.2d 567 (2004).
As one commentator has observed, ‘‘Connecticut’s various land regulation
statutes all provide . . . that commissions ‘shall’ state the reasons for their
decisions on the record. However, Connecticut courts have consistently
refused to void decisions made without a statement of reasons, even though
all these statutes use ‘shall’ rather than ‘may.’ ’’ (Footnote omitted.) T. Ton-
dro, Connecticut Land Use Regulation (2d Ed. 1992) pp. 473–74; cf. Gagnon
v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 611, 569
A.2d 1094 (1990) (public policy reasons make it ‘‘practical and fair’’ for
reviewing court to search record of ‘‘a local land use body . . . composed
of laymen whose procedural expertise may not always comply with the
multitudinous statutory mandates under which they operate’’).
49
During the public hearing, the commission heard expert testimony from
Szymanski that the 100 parking spaces reflected on the 2018 plan would be
adequate to accommodate the proposed use of the property. That testimony
was acknowledged during the commission’s deliberations.