One Elmcroft Stamford, LLC v. Zoning Board of Appeals ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
ONE ELMCROFT STAMFORD, LLC v. ZONING
BOARD OF APPEALS OF THE CITY
OF STAMFORD ET AL.
(AC 41208)
Sheldon, Elgo and Lavery, Js.*
Syllabus
The plaintiff appealed to the trial court from the decision by the defendant
zoning board of appeals granting the application of the defendant P,
filed on behalf of the defendant P Co., for approval of the location of
a used car dealer on certain real property. The plaintiff claimed, inter
alia, that the board failed to conduct the requisite suitability analysis,
as required by the applicable statute (§ 14-55). The court agreed with
the plaintiff’s argument that § 14-55 applied and acknowledged that the
board’s certificate of approval looked and read like a variance, but
concluded that the board gave due consideration to the suitability of
the proposed use and that the board’s decision was, thus, akin to an
approval under § 14-55. The trial court subsequently rendered judgment
denying the plaintiff’s appeal from the board’s decision, from which the
plaintiff appealed to this court. On appeal, the plaintiff claimed, inter
alia, that although published editions of the General Statutes have stated
that § 14-55 has been repealed, in actuality, it has not been repealed,
and that had the board properly followed § 14-55, it would have consid-
ered the suitability factors set forth therein. Although Public Acts 2003,
No. 03-184, § 10 (P.A. 03-184), repealed § 14-55, effective October 1,
2003, Public Acts 2003, No. 03-265, § 9 (P.A. 03-265), which also became
effective October 1, 2003, repealed and replaced § 14-55. Held:
1. The plaintiff could not prevail on its claim that the trial court improperly
concluded that the named applicant, P, had standing to apply to the
board for location approval and, accordingly, was a proper party, which
was based on its claim that P Co., in its business capacity, sought a
used car dealer’s license from the Department of Motor Vehicles, but
the certificate of approval of the location application and subsequent
hearing notification listed P as the applicant and, thus, the board’s
approval of P’s application was improper because its decision was ren-
dered in favor of a person rather than in the name of the proposed
licensee; the record revealed that although P Co. was not the named
applicant on the certificate of approval application, the totality of the
circumstances sufficiently linked P to P Co., such that no one was misled
or misunderstood the nature of the application, and, thus, the trial court
did not err in concluding that P, as a representative of P Co., had standing
to apply to the board for location approval.
2. Because § 14-55 has not been repealed, the board should have reviewed
P’s application under the standard set forth therein; given that there
was no mention in P.A. 03-265, which repealed and replaced § 14-55,
effective October 1, 2003, of P.A. 03-184, which ostensibly repealed § 14-
55, effective October 1, 2003, and it was impossible to simultaneously
give effect to both of those public acts, they were in irreconcilable
conflict, and, thus, pursuant to statute (§ 2-30b), the later public act,
P.A. 03-265, was deemed to have repealed and replaced the older public
act, P.A. 03-184.
3. The board mistakenly treated P’s application as if it were an application
for a variance and, thus, failed to comply with the requirements set
forth in § 14-55 in granting that application; even though P’s application
was a matter to which § 14-55 applied and even though the board heard
evidence and issued several conditions of approval that, to some extent,
could pertain to suitability, the record revealed that on several occasions
P’s application was referred to and treated as an application for a vari-
ance, the reasons that the board provided in its certificate of approval
and the conditions provided therein were made with reference to an
application for a variance, the board issued only one factual finding, in
which it expressly applied variance standards provided in the local
zoning regulations, and the board issued no findings as to the suitability
factors enumerated under § 14-55.
4. The trial court erred in searching beyond the board’s stated reason for
approval to find a basis for the board’s decision and improperly upheld
the board’s decision on alternative grounds; because the board had
stated its reason for approval, the trial court was not permitted to search
the record for evidence that could support alternative grounds on which
the board could have granted P’s application, and, thus, when the court
reviewed the record to determine whether the evidence could support
a conclusion that the suitability requirement of § 14-55 was satisfied,
even though the board did not make any findings on that point, the
court was incorrect in substituting its own judgment for that of the board.
Argued February 13—officially released September 3, 2019
Procedural History
Appeal from the decision by the named defendant
granting the application of the defendant Pasquale
Pisano for approval of the location of a used car dealer
on certain real property, brought to the Superior Court
in the judicial district of New Britain and transferred
to the judicial district of Stamford-Norwalk, where the
matter was tried to the court, Hon. Taggart D. Adams,
judge trial referee; judgment denying the plaintiff’s
appeal, from which the plaintiff appealed to this court.
Reversed; further proceedings.
Jeffrey P. Nichols, with whom was John W. Knuff,
for the appellant (plaintiff).
James V. Minor, special corporation counsel, with
whom was Kathryn Emmett, director of legal affairs,
for the appellee (named defendant).
Gerald M. Fox III, for the appellees (defendant Pas-
quale Pisano et al.).
Opinion
LAVERY, J. The plaintiff, One Elmcroft Stamford,
LLC, appeals from the judgment of the Superior Court
denying its appeal from the decision of the defendant
Zoning Board of Appeals of the City of Stamford
(board), approving the application of the defendant Pas-
quale Pisano (defendant) to locate the defendant used
car business, Pisano Brothers Automotive, Inc. (Pisano
Brothers), at 86 Elmcroft Road in Stamford. On appeal,
the plaintiff claims that the court improperly (1) deter-
mined that the defendant had standing to apply to the
board for approval of the application, (2) upheld the
board’s decision, despite the board’s failure to review
the application in accordance with General Statutes
§ 14-55,1 and (3) searched beyond the board’s stated
reason for approval of the application.2 We disagree
with the plaintiff’s first claim but agree with the plain-
tiff’s second and third claims. Accordingly, we reverse
the judgment of the Superior Court.
The following facts and procedural history are rele-
vant. Pisano Brothers is the lessee of the 6500 square
foot parcel located at 86 Elmcroft Road in Stamford
(property), in a General Industrial (M-G) zone. The
plaintiff owns abutting property at 126 Elmcroft Road.
In June, 2016, the defendant, on behalf of Pisano
Brothers, applied for a used car dealer license from the
Department of Motor Vehicles, listing himself as vice
president and his brother as president. Pursuant to Gen-
eral Statutes § 14-54, a license for ‘‘dealing in or
repairing motor vehicles’’ requires a ‘‘certificate of
approval of the location’’ (certificate of approval) from
the appropriate local board. Accordingly, the defendant
additionally applied to the board for its approval of a
‘‘used car dealer’’ on the M-G zoned property (Pisano
application).
The board referred the Pisano application to various
city agencies and boards. The record contains advise-
ments from the Planning Board of the City of Stamford
(planning board) and the Engineering Bureau of the
City of Stamford (engineering bureau). In a letter to
the board dated September 8, 2016, the planning board
‘‘unanimously recommended denial of [the Pisano appli-
cation],’’ opining ‘‘that the proposed application does
not keep with the character of the neighborhood and
. . . [is] not consistent with the 2015 Master Plan Cate-
gory #9 (Urban Mixed-Use).’’ The engineering bureau
advised that it found the proposal ‘‘will not result in any
adverse drainage impacts’’ and, further, that approval
of the Pisano application should be conditioned on the
installation of a ‘‘[n]ew concrete curb and sidewalk
. . . along the frontage of the property.’’
On September 14, 2016, the board held a public hear-
ing on the Pisano application. The board posed several
questions to the defendant and his attorney, Gerald
M. Fox III. Two individuals spoke against the Pisano
application. They were concerned about the inability
to conceal the building and parking lot on the property
with fencing, the lack of sidewalks, and the potential
for a crowded parking lot. The plaintiff did not offer
comment. The board, during its deliberations, noted
that the defendant seemed amenable to complying with
various conditions of approval that would make the
property compatible with the local neighborhood. The
board unanimously voted to approve the Pisano applica-
tion. Subsequently, on September 29, 2016, the board
issued a letter to the defendant, stating its approval and
setting forth several conditions.
Pursuant to General Statutes § 14-57 and the Uniform
Administrative Procedure Act (UAPA), General Stat-
utes § 4-183 et seq., the plaintiff appealed to the Superior
Court. The plaintiff advanced three claims: (1) the
defendant was not a proper party and lacked standing
to apply to the board for location approval, (2) the
board did not comply with hearing notice requirements,
and (3) the board failed to conduct the requisite suitabil-
ity analysis, as prescribed in § 14-55. As to the first two
claims, the court disagreed. As to the third claim, the
court agreed with the plaintiff’s argument that § 14-55
applied and further acknowledged that ‘‘the board’s
certificate of approval looks and reads like a variance.’’
Upon its review of the transcript from the September
14, 2016 public hearing, however, the court concluded
that the board, nonetheless, gave due consideration to
the suitability of the proposed use. It, therefore, rea-
soned that the board’s decision was akin to an approval
under § 14-55.3 Accordingly, the court, in its memoran-
dum of decision dated December 13, 2017, denied the
plaintiff’s appeal. Subsequently, pursuant to General
Statutes § 4-184, the plaintiff appealed to this court.4
Additional facts and procedural history will be set forth
as necessary.
I
We first address the plaintiff’s claim that the court
improperly concluded that the named applicant, the
defendant, had standing to apply to the board for loca-
tion approval and, accordingly, was a proper party. The
plaintiff notes that Pisano Brothers, in its business
capacity, sought a used car dealer’s license from the
Department of Motor Vehicles, but the certificate of
approval application and the subsequent hearing notifi-
cation listed the defendant as the applicant. Accord-
ingly, the plaintiff contends that the board’s approval
of the Pisano application was improper because its
decision was rendered in favor of a person rather than
in the name of the proposed licensee. The plaintiff cited
no authority in support of this proposition. We are
not persuaded.
‘‘[T]he standard for determining whether a party has
standing to apply in a zoning matter is less stringent
[than the standard that applies to a determination of
whether a party is aggrieved]. A party need have only
a sufficient interest in the property to have standing to
apply in zoning matters. . . . [I]t is not possible to
extract a precise comprehensive principle which ade-
quately defines the necessary interest . . . .’’ (Internal
quotation marks omitted.) RYA Corp. v. Planning &
Zoning Commission, 87 Conn. App. 658, 663, 867 A.2d
97 (2005). Here, the issue is not whether Pisano Broth-
ers has standing but, instead, whether standing, in
effect, was voided by virtue of a technical glitch in
listing the defendant as the applicant.
RYA Corp. v. Planning & Zoning Commission,
supra, 87 Conn. App. 658, presented similar circum-
stances as in the present case. In that case, the applica-
ble zoning regulations required that an applicant be a
‘‘record owner or developer . . . .’’ (Emphasis omitted;
internal quotation marks omitted.) Id., 669. Although the
plaintiff subdivision applicant, The RYA Corporation
(RYA), did not qualify as such, the plaintiff record
owner, Myers Nursery, Inc. (Myers, Inc.), consented in
writing to RYA filing the application. Id., 667–68. The
defendant planning and zoning commission claimed
that the trial court improperly concluded that Myers,
Inc., had standing to appeal the planning and zoning
commission’s decision, arguing that RYA had not
‘‘established definitively by the terms of the consent
form’’ that it was acting under the authority of Myers,
Inc. Id., 668.
This court concluded that the property owner require-
ment set forth in the applicable zoning regulations was
satisfied, stating: ‘‘As a matter of law, we are not per-
suaded that the trial court was required to read these
documents as narrowly as do[es] the [planning and
zoning commission]. Taking into account the totality
of the relationship between Myers, Inc., and RYA, the
court had the authority to conclude that the physical
linkage between the application and the consent form
gave Myers, Inc., a sufficient interest to have standing
to contest the denial of the proposed subdivision. This
conclusion is supported not only by the nature of the
documentation itself but because, as noted previously,
the court reasonably might have found that RYA was
acting as Myers, Inc.’s agent in filing the subdivision
application.’’ Id.; see also Loew v. Falsey, 144 Conn. 67,
73–74, 127 A.2d 67 (1956) (fact that owner of corpora-
tion, E. M. Loew, applied for permit in his own name,
rather than in name of his corporation, E. M. Loew,
Inc., did not mislead anyone and there was no reason
why permit could not have been granted under name
provided, and, accordingly, no jurisdictional defect
resulted simply by incorrectly using name of owner in
permit application).
Similarly, the record in the present case reveals that
although Pisano Brothers was not the named applicant
on the certificate of approval application, the totality
of the circumstances sufficiently link the defendant to
Pisano Brothers, such that no one was misled or misun-
derstood the nature of the application. The application
for a used car dealer license from the Department of
Motor Vehicles lists ‘‘Pisano Brothers Automotive Inc.’’
as the name under which the business was to be con-
ducted, with the defendant and his brother identified
as officers of the company. The proposed improvement
location survey identified ‘‘Pisano Brothers Automo-
tive, Inc.,’’ as the prospective user. Additionally, at the
outset of the public hearing, the defendant was intro-
duced as one of the owners of Pisano Brothers, along
with his brother. Accordingly, we conclude that the
court did not err in concluding that the defendant, as
a representative of Pisano Brothers, had standing to
apply to the board for location approval.
II
The plaintiff claims that the court erred in upholding
the board’s decision, despite the board’s failure to apply
the standard set forth in § 14-55. Although the plaintiff
did not offer comment or argument before the board
during the public hearing, the plaintiff argued before
the trial court that despite the fact that the then current
edition of the General Statutes provided that § 14-55
had been repealed, in actuality, it had not been repealed.
The plaintiff contended that had the board properly
followed § 14-55, it would have considered the suitabil-
ity factors set forth therein, namely, ‘‘due consideration
to [the proposed use’s] location in reference to schools,
churches, theaters, traffic conditions, width of highway
and effect on public travel.’’ The plaintiff, therefore,
contended that the board not only failed to issue any
findings as to these suitability factors, but, further, it
improperly treated the Pisano application as one for a
variance. The court concluded that the record reflected
that the board gave due consideration to the requisite
suitability factors. The court, therefore, denied the
plaintiff’s appeal.
Before this court, the plaintiff maintains that, despite
the fact that published editions of the General Statutes
have stated that § 14-55 has been repealed, in actuality,
it has not been repealed. The board agrees that the
statute has not been repealed but argues, nonetheless,
that it substantially complied with the statute’s require-
ments in granting the Pisano application. The defendant
and Pisano Brothers argue that § 14-55 was repealed but
that, even if it was not repealed, the board substantially
complied with the statute. We conclude that (1) § 14-
55 had not been repealed at the time of the board’s
action on the Pisano application, and (2) the board
mistakenly treated the Pisano application as if it were
an application for a variance and, thus, failed to comply
with the requirements set forth in § 14-55 in granting
that application. We will address both matters in turn.
A
As a threshold matter, we address whether § 14-55
had been repealed at the time of the board’s action.
This precise issue was addressed by our Superior Court
in 2011 in an opinion authored by the court, D. Tobin,
J., which concluded that § 14-55 was not repealed. See
East Coast Towing, Ltd. v. Zoning Board of Appeals,
Superior Court, judicial district of Stamford-Norwalk,
Docket No. CV-XX-XXXXXXX-S (March 2, 2011) (51 Conn.
L. Rptr. 572). The plaintiff submits that the court’s deci-
sion in East Coast Towing, Ltd., was sound and, accord-
ingly, that the court correctly concluded that § 14-55
remained in effect, despite its apparent repeal. We agree
with Judge Tobin’s well reasoned decision in East Coast
Towing, Ltd., and, accordingly, conclude that § 14-55
has not been repealed.
‘‘The meaning of a statute shall, in the first instance,
be ascertained from the text of the statute itself and
its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered.’’ General Statutes § 1-2z. Following the
apparent repeal of § 14-55, we are left with no text
to consider. Accordingly, to determine whether this
statute remains in effect, we will look to extratextual
evidence, such as the legislative history. See State v.
Russo, 259 Conn. 436, 447–48, 790 A.2d 1132 (process
of statutory interpretation involves, inter alia, searching
legislative history to discern legislative intent), cert.
denied, 537 U.S. 879, 123 S. Ct. 79, 154 L. Ed. 2d 134
(2002). Although compilations of the General Statutes
list § 14-55 as having been ‘‘repealed,’’ this fact is not
dispositive of the issue at hand.5
Judge Tobin’s decision in East Coast Towing, Ltd.,
provides a well reasoned and principled basis upon
which we also conclude that § 14-55 has not been
repealed. Judge Tobin’s reasoning was as follows. In
2003, the legislature made a series of changes to § 14-
55. First, in Public Acts 2003, No. 03-184, § 10 (P.A. 03-
184), the legislature ostensibly repealed § 14-55 of our
General Statutes, effective October 1, 2003. East Coast
Towing, Ltd. v. Zoning Board of Appeals, supra, 51
Conn. L. Rptr. 575. The legislature then, in Public Acts
2003, No. 03-265, § 9 (P.A. 03-265), repealed and
replaced § 14-55, also effective October 1, 2003.6 Id.,
575–76. Finally, in Public Acts 2003, No. 03-278, § 40,
which took effect from passage on July 9, 2003, the
legislature repealed and replaced the then current ver-
sion of § 14-55, making a minor, technical correction
to it without any mention of either P.A. 03-184, § 10, or
P.A. 03-265, § 9, both of which were to become effective
on October 1, 2003.7 See id., 576.
Pursuant to General Statutes § 2-30b (a), ‘‘[w]hen two
or more acts passed at the same session of the General
Assembly amend the same section of the general stat-
utes, or the same section of a public or special act, and
reference to the earlier adopted act is not made in the
act passed later, each amendment shall be effective
except in the case of irreconcilable conflict, in which
case the act which was passed last in the second house
of the General Assembly shall be deemed to have
repealed the irreconcilable provision contained in the
earlier act . . . .’’ Our Supreme Court has held that the
term ‘‘amendment,’’ as used in § 2-30b, applies ‘‘to all
acts which expressly change existing legislation,’’
including public acts. (Internal quotation marks omit-
ted.) State v. Kozlowski, 199 Conn. 667, 676, 509 A.2d
20 (1986).
In the present case, there is no mention in P.A. 03-
265 of P.A. 03-184, and it is impossible to give effect to
both public acts, simultaneously. Accordingly, P.A. 03-
184 and P.A. 03-265 are in ‘‘irreconcilable conflict.’’
Thus, pursuant to § 2-30b, the later public act must be
deemed to have repealed and replaced the older public
act. See also footnote 7 of this opinion.
Public Act 03-184 was passed by the House of Repre-
sentatives on May 13, 2003, then by the Senate on June
2, 2003, and, subsequently was signed into law by the
governor on June 26, 2003. Public Act 03-265 was passed
by both houses of the legislature on June 4, 2003, and,
subsequently was signed into law by the governor on
July 9, 2003. With both public acts being in irreconcil-
able conflict, and with P.A. 03-265 being enacted last,
P.A. 03-265 sets forth the version of the statute that
went into effect.
We are aware of no laws that have been passed to
repeal or otherwise amend § 14-55 since Judge Tobin’s
decision in East Coast Towing, Ltd. Additionally, no
appeal was taken from Judge Tobin’s decision and, oth-
erwise, there have been no appellate decisions
addressing whether the version of § 14-55 set forth in
P.A. 03-265 has been repealed. We are persuaded that
Judge Tobin’s analysis is correct, and, therefore, we
adopt his reasoning.
Accordingly, we conclude, in accordance with the
language of P.A. 03-265, § 9, that the current revision
of § 14-55 of the General Statutes, which remains in
effect to this date, provides: ‘‘In any town, city or bor-
ough the local authorities referred to in section 14-54
shall, upon receipt of an application for a certificate of
approval referred to in said section, assign the same
for hearing within sixty-five days of the receipt of such
application. Notice of the time and place of such hearing
shall be published in a newspaper having a general
circulation in such town, city or borough at least twice,
at intervals of not less than two days, the first not more
than fifteen, nor less than ten days, and the last not
less than two days before the date of such hearing and
sent by certified mail to the applicant not less than
fifteen days before the date of such hearing. All deci-
sions on such certificate of approval shall be rendered
within sixty-five days of such hearing. The applicant
may consent to one or more extensions of any period
specified in this section, provided the total extension
of any such period shall not be for longer than the
original period as specified in this section. The reasons
for granting or denying such application shall be stated
by the board or official. Notice of the decision shall be
published in a newspaper having a general circulation
in such town, city or borough and sent by certified mail
to the applicant within fifteen days after such decision
has been rendered. Such applicant shall pay a fee of
ten dollars, together with the costs of publication and
expenses of such hearing, to the treasurer of such town,
city or borough. No such certificate shall be issued until
the application has been approved and such location
has been found suitable for the business intended, with
due consideration to its location in reference to schools,
churches, theaters, traffic conditions, width of highway
and effect on public travel. In any case in which such
approval has been previously granted for any location,
the local authority may waive the requirement of a
hearing on a subsequent application. In addition, the
local authority may waive the requirement of a hearing
on an application wherein the previously approved loca-
tion of a place of business is to be enlarged to include
adjoining or adjacent property.’’
In light of the foregoing analysis, we conclude that
§ 14-55 was not repealed. Accordingly, the board should
have reviewed the Pisano application under the stan-
dard set forth therein.
B
We now address whether the board, despite errone-
ously treating the Pisano application as one for a vari-
ance, complied with the requirements of § 14-55. The
plaintiff claims that the board approved the Pisano
application under the wrong standard. It contends that
the board mistakenly treated the Pisano application as
though it was an application for a variance and, in so
doing, applied a set of criteria that did not comport
with the analysis required under § 14-55. The board
contends that the court correctly determined that the
board gave due consideration to the necessary factors.
The defendant and Pisano Brothers essentially contend
that the use of variance language by the board was
merely a clerical error. We agree with the plaintiff.
The record reveals that on several occasions the
Pisano application was referred to and treated as an
application for a variance. On his certificate of approval
application, the defendant requested a variance for the
following section of the Stamford zoning regulations:
‘‘APA TAB II #55 to allow a used car dealer to [b]e
[l]ocated in . . . [M-G] zone.’’ In reviewing the Pisano
application, the engineering bureau referred to the
application as a ‘‘variance to allow for a used car dealer
to be located in the M-G [z]one . . . .’’ At the outset
of the public hearings, a board member further stated,
without correction, that ‘‘[t]he engineering bureau has
reviewed the plans for a variance to allow for a used
car dealer to be located in the [M-G] zone . . . .’’ Fur-
ther, the board’s certificate of decision regarding the
Pisano application certified that it granted ‘‘the applica-
tion . . . for a variance of Motor Vehicle approval of
Table II, Appendix A, #55 (Auto Sales Requirements)
of the Zoning Regulations . . . .’’
In approving the Pisano application, the board issued
one finding, in which it directly quoted the following
variance standard provided in the Stamford zoning regu-
lations: ‘‘[S]trict application of the provisions of these
Regulations would deprive the applicant of the reason-
able use of such land or building and the granting of
the variance is necessary for the reasonable use of the
land or building.’’8 Stamford Zoning Regs., art. v, § 19
(2.2) (a) (2). In so finding, as the plaintiff contends, the
board expressly (1) applied variance standards pro-
vided in the local zoning regulations, instead of certifi-
cate of approval standards provided in § 14-55, and (2)
based its decision on the defendant’s private ‘‘depriva-
tion,’’ instead of basing its decision on the suitability
of the proposed use. We agree with the court that ‘‘the
board’s certificate of approval looks and reads like a
variance.’’9
‘‘[W]here a board is acting pursuant to a statute or
an ordinance which requires a specific finding made
after a consideration of enumerated factors, the
minutes of the board should show that due consider-
ation was given to those factors and that the conclusion
reached was within the power given to the board.’’
Dubiel v. Zoning Board of Appeals, 147 Conn. 517,
522–23, 162 A.2d 711 (1960); see also New Haven Col-
lege, Inc. v. Zoning Board of Appeals, 154 Conn. 540,
543–44, 227 A.2d 427 (1967); Ferreira v. Zoning Board
of Appeals, 48 Conn. App. 599, 603–604, 712 A.2d 423
(1998).
Pursuant to § 14-55; see P.A. 03-265; the board must
consider a number of suitability factors: ‘‘No [certificate
of approval] shall be issued until the application has
been approved and such location has been found suit-
able for the business intended, with due consideration
to its location in reference to schools, churches, the-
aters, traffic conditions, width of highway and effect
on public travel.’’ See New Haven College, Inc. v. Zoning
Board of Appeals, supra, 154 Conn. 543 (zoning board
of appeals should consider ‘‘suitability of the proposed
location in view of the proximity of schools, churches,
theaters, or other places of public gatherings, inter-
secting streets, traffic conditions, width of the highway
and the effect of public travel . . . [and should also
indicate] that use of the proposed location will not
imperil the safety of the public’’). Although the board
need not ‘‘exalt technicality’’ in the manner in which it
states its findings, it is in the interests of ‘‘facilitat[ing]
judicial review . . . assur[ing] a more careful adminis-
trative consideration, and . . . keep[ing] the adminis-
trative agency within the bounds of its functions and
powers’’; Dubiel v. Zoning Board of Appeals, supra,
147 Conn. 523; to ensure that the record evinces the
board’s due consideration of the requisite suitability
factors.
Although the suitability factors prioritize public con-
cerns, a variance application does not require the board
to consider those same factors. ‘‘[T]he authority of a
zoning board of appeals to grant a variance . . .
requires the fulfillment of two conditions: (1) the vari-
ance must be shown not to affect substantially the com-
prehensive zoning plan, and (2) adherence to the strict
letter of the zoning ordinance must be shown to cause
unusual hardship unnecessary to the carrying out of the
general purpose of the zoning plan.’’ (Internal quotation
marks omitted.) Grillo v. Zoning Board of Appeals, 206
Conn. 362, 368, 537 A.2d 1030 (1988).
In this case, the board issued only one factual finding,
in which it referenced the need to permit the defendant
to make reasonable use of the land. Although the board
heard evidence that, to some extent, could pertain to
suitability, and also issued several conditions of
approval that accommodate potential concerns within
the neighborhood, the board issued no findings as to
the suitability factors enumerated under § 14-55. The
reasons that the board provided in its certificate of
approval and the conditions provided therein were
made with reference to an application for a variance,
even though the Pisano application was a matter to
which § 14-55 applies. We, therefore, direct the board
on remand to consider the Pisano application in accor-
dance with § 14-55.10
III
The plaintiff claims that the court erred in searching
beyond the board’s stated reason for approval to find
a basis for the board’s decision. It argues that the court
improperly upheld the board’s decision on alternative
grounds, not stated in the board’s decision. In response,
the defendant and Pisano Brothers essentially maintain
that the court’s reasoning and conclusion were sound.
We agree with the plaintiff.
‘‘When considering [an] application for [a certificate
of approval] . . . [a] zoning board of appeals act[s] as
a special agent of the state. . . . When receiving, hear-
ing and eventually deciding whether to grant the appli-
cation, the [board] does not act pursuant to either the
municipal zoning ordinance or the zoning statutes. . . .
Thus, the [board] does not act as the voice of the people
. . . . Rather, it acts in a special capacity, serving as
the local agency named by the General Assembly to
determine whether a certificate of approval should be
issued . . . .
‘‘As an agent of the state, the [board] must follow
the statutory criteria in determining whether to issue
the certificate of approval. . . . [Section] 14-55 sets
forth the criteria to be followed by an agency when
making its decision. The [board] cannot grant a certifi-
cate until the application has been approved and such
location has been found suitable for the business
intended, with due consideration to its location in refer-
ence to schools, churches, theaters, traffic conditions,
width of highway, and effect on public travel. . . .
‘‘Because the [board] acts as a special agent of the
state in issuing certificates of approval, the trial court’s
scope of review of the [board’s] decision is governed
by the [UAPA].’’ (Citations omitted; internal quotation
marks omitted.) Vicino v. Zoning Board of Appeals, 28
Conn. App. 500, 504–505, 611 A.2d 444 (1992). Section
4-183 (j) provides in relevant part that the trial court
‘‘shall not substitute its judgment for that of the agency
as to the weight of the evidence on questions of fact.
The court shall affirm the decision of the agency unless
the court finds that substantial rights of the person
appealing have been prejudiced because the administra-
tive findings, inferences, conclusions, or decisions are
. . . (5) clearly erroneous in view of the reliable, proba-
tive, and substantial evidence on the whole record
. . . .’’ ‘‘When a [board] states its reasons in support
of its decision on the record, the court goes no further,
but if the [board] has not articulated its reasons, the
court must search the entire record to find a basis
for the [board’s] decision.’’ (Internal quotation marks
omitted.) Azzarito v. Planning & Zoning Commission,
79 Conn. App. 614, 618, 830 A.2d 827, cert. denied, 266
Conn. 924, 835 A.2d 471 (2003). ‘‘Neither this court nor
the trial court may retry the case . . . .’’ (Internal quo-
tation marks omitted.) Okeke v. Commissioner of Pub-
lic Health, 304 Conn. 317, 324, 39 A.3d 1095 (2012).
In this case, the board found that strict application
of the municipal zoning regulations would deprive the
defendant of reasonable use of the land and that grant-
ing the Pisano application would be necessary to afford
the defendant such reasonable use. Because the board
stated its reason for approval, the court was not permit-
ted to search the record for evidence that could support
alternative grounds on which the board could have
granted the Pisano application. See Azzarito v. Plan-
ning & Zoning Commission, supra, 79 Conn. App. 618.
In the present case, having concluded that § 14-55
applied, the court, thereafter, provided its own infer-
ences as to how the board might have classified and
weighed the public hearing testimony. On the basis of
the transcript of the September 14, 2016 public hearing,
the court was satisfied that the board had given due
consideration to the effect the proposal would have
on neighboring residences, and, accordingly, the court
concluded that the proposal would constitute a suit-
able use.
Although the board heard testimony that, to some
extent, could pertain to the suitability of operating a
business at the given location, the board did not make
any findings on that point. When the court reviewed the
record to determine whether the evidence, nonetheless,
could support a conclusion that the suitability require-
ment was satisfied, the court was incorrect in substitut-
ing its own judgment for that of the board. See id. By
reviewing the evidence beyond the board’s finding, the
court conducted its own de novo review of the Pisano
application rather than reviewing the board’s decision
under the appropriate abuse of discretion standard.
Moreover, it was incumbent upon the board to make
the requisite suitability findings. See New Haven Col-
lege, Inc. v. Zoning Board of Appeals, supra, 154 Conn.
543–44 (concluding that trial court did not err in sus-
taining plaintiff’s appeal where board failed to consider
specific suitability factors). We, therefore, conclude
that the court employed an incorrect standard of
review.
The judgment is reversed and the case is remanded
to the trial court with direction to remand the case
to the board for further proceedings consistent with
this opinion.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Although § 14-55 is reported as ‘‘repealed,’’ effective October 1, 2003, in
our official state statute books, the parties dispute whether § 14-55 has been
repealed. This matter will be discussed in part II A of this opinion.
2
The plaintiff advances a number of additional claims that are collateral
or inconsequential to our decision. Accordingly, we do not address them.
See footnote 10 of this opinion.
3
The court, in its memorandum of decision, indicated: ‘‘[T]he court finds
that the [board] properly considered the suitability of locating the Pisano
business at 86 Elmcroft Road. The court has reviewed the full transcript of
the [board] hearing and subsequent deliberations of the board on September
14, 2016 . . . and finds more than substantial evidence of the board’s careful
scrutiny of, and resulting conditions on, the Pisano application.’’ (Citation
omitted.) The court then referenced instances in which ‘‘board members
questioned [the defendant] about the scope of his towing operation, the
hours of operation and the location and the type of his repair work,’’ the
board noted that Pisano Brothers was ‘‘not a general towing operation,’’
and that ‘‘repairs would take place inside the building.’’ Additionally, the
court noted that, during deliberations, the board considered that other busi-
nesses within the parameters of M-G zoning ‘‘could move in tomorrow’’
without board approval, considered several conditions of approval that
would make the use more ‘‘acceptable to neighbors,’’ and that the board
even issued several conditions of approval. (Internal quotation marks omit-
ted.) The court concluded that the board’s conditions of approval constituted
‘‘stark evidence of the careful attention paid by the [board] to the issue
of suitability.’’
4
General Statutes § 4-184 provides: ‘‘An aggrieved party may obtain a
review of any final judgment of the Superior Court under this chapter. The
appeal shall be taken in accordance with section 51-197b.’’
5
This court has held that compilations of public acts prepared by the
Legislative Commissioners’ Office do not constitute the actual law of this
state: ‘‘[T]he compilations of the public acts are not published on the day
a law effective on passage is approved by both houses and signed by the
governor, allowed to become law without signature of the governor or
repassed by a two-thirds majority of the legislature following a gubernatorial
veto. . . . [I]t is not the publication of these acts in the [p]ublic [a]cts
compilations that makes them effective against members of the public, but
their lawful passage by the General Assembly.’’ Figueroa v. Commissioner
of Correction, 123 Conn. App. 862, 870, 3 A.3d 202 (2010), cert. denied, 299
Conn. 926, 12 A.3d 570 (2011).
6
P.A. 03-265, § 9, provides: ‘‘Section 14-55 of the general statutes is
repealed and the following is substituted in lieu thereof (Effective October
1, 2003):
‘‘In any town, city or borough the local authorities referred to in section
14-54 shall, upon receipt of an application for a certificate of approval
referred to in said section, assign the same for hearing within sixty-five days
of the receipt of such application. Notice of the time and place of such
hearing shall be published in a newspaper having a general circulation in
such town, city or borough at least twice, at intervals of not less than two
days, the first not more than fifteen, nor less than ten days, and the last
not less than two days before the date of such hearing and sent by certified
mail to the applicant not less than fifteen days before the date of such
hearing. All decisions on such certificate of approval shall be rendered
within sixty-five days of such hearing. The applicant may consent to one
or more extensions of any period specified in this section, provided the
total extension of any such period shall not be for longer than the original
period as specified in this section. The reasons for granting or denying such
application shall be stated by the board or official. Notice of the decision
shall be published in a newspaper having a general circulation in such town,
city or borough and sent by certified mail to the applicant within fifteen
days after such decision has been rendered. Such applicant shall pay a fee
of ten dollars, together with the costs of publication and expenses of such
hearing, to the treasurer of such town, city or borough. No such certificate
shall be issued until the application has been approved and such location
has been found suitable for the business intended, with due consideration
to its location in reference to schools, churches, theaters, traffic conditions,
width of highway and effect on public travel. In any case in which such
approval has been previously granted for any location, the local authority
may waive the requirement of a hearing on a subsequent application. In
addition, the local authority may waive the requirement of a hearing on
an application wherein the previously approved location of a place of
business is to be enlarged to include adjoining or adjacent property.’’
(Emphasis added.) The italicized sentences indicate the portions that were
added to the 2003 revision of § 14-55.
7
Because this amendment to § 14-55 was effective on July 9, 2003, and
P.A. 03-265, § 9, took effect on October 1, 2003, we conclude that P.A. 03-
265, § 9, replaced the July amendment on October 1, 2003.
8
The board’s certificate of decision stated: ‘‘THE BOARD FINDS:
‘‘1. That the aforesaid circumstances of conditions is/are such that the
strict application of the provisions of these Regulations would deprive the
[defendant] of the reasonable use of such land or building(s) and the granting
of the application is necessary for the reasonable use of the land or
building(s).
‘‘The [b]oard GRANTS a Motor Vehicle approval of Table II, Appendix A,
#55 (Auto Sales Requirements) of the Zoning Regulations in order to allow
a Used Car Dealer to operate and be located in an [M-G] zone. This applica-
tion is exempt from Coastal Area Management Approval, Exemption Number
10C, subject to the following restrictions:
‘‘1. All concerns of the [e]ngineering [bureau] shall be adhered to.
‘‘2. There shall be no more than [six] cars parked in the front.
‘‘3. The [defendant] shall make an effort to contact the [e]ngineering
[b]ureau and discuss having [it] add sidewalks to the area.
‘‘4. The hours of operation shall be [8 a.m. to 6 p.m.], Monday through
Saturday.
‘‘5. There shall be no vehicular parking between the front property line
and the curb on Elmcroft Road.
‘‘6. There shall be one tow truck only on the premises.
‘‘7. There shall be year round evergreen screening around the property.
‘‘8. There shall be no auto body shop or painting of cars on the premises.
‘‘9. All cars belonging to visitors, patrons or employees shall be parked
on the site at all times.
‘‘10. No vehicle repairs shall be permitted outside of the building.
‘‘11. No impact tools shall be used outside of the building.
‘‘12. No storage of inoperative vehicles shall be permitted outside of
the building.
‘‘13. Outside visible storage of any automotive equipment, including tires,
batteries, auto parts, etc., shall not be permitted.
‘‘14. The location, size, and appearance of the building and improvements
shall be as per plan depicted on IMPROVEMENT LOCATION SURVEY, dated
revised [July 15, 2016], copies of which are on file in the office of the [board].
‘‘The applicant is allowed one year from the effective date of approval in
which to obtain a building permit.’’ (Emphasis omitted.)
9
During the pendency of the plaintiff’s appeal to the Superior Court, the
board issued a ‘‘Revised Certificate of Decision’’ (revised decision), stating:
‘‘NOTE—This corrected Certificate eliminates ‘variance’ language on the
original Certificate of Decision . . . since [the Pisano application] . . . is
an application for [certificate of approval] of a Used Car Dealership.’’ This
revised decision was submitted to the Superior Court in a supplemental
return of record. The record contains no indication as to how this revised
decision was made, and it does not appear to have been issued in accordance
with the modification procedures set forth in General Statutes § 4-181a et
seq. It does not appear that the Superior Court considered the revised
decision when rendering its judgment. We also have not considered it in
rendering our opinion.
10
Our conclusion that § 14-55 was not repealed and sets forth the applica-
ble certificate of approval application procedures, in effect, resolves several
of the plaintiff’s remaining claims. Therefore, we do not reach their merits.
See First Church of Christ, Scientist v. Friendly Ice Cream, 161 Conn. 223,
228–29, 286 A.2d 320 (1971) (‘‘The plaintiffs have pursued several other
assignments of error. We need not review these conclusions, however, since
they would not affect the final result.’’).