DRISCOLL, JUDGE TRIAL REFEREE.
The plaintiff, Nicole S. Graff, appeals from a decision of the town of Killingworth zoning board of appeals (board). On June 18, 2001, the board voted to uphold the zoning enforcement officer's (ZEO) cease-and-desist order dated April 27, 2001, which required Graff within thirty days of its receipt, "to remove all dogs in excess of four to bring your property into compliance with the Killingworth Zoning Regulations." (Return of Record [ROR], Items 2, 16, 20, 21.)
Graff's husband, Andrew Graff who was a plaintiff at the commencement of this appeal, filed a withdrawal with the court on June 17, 2002.
BACKGROUND
The plaintiff Graff owns a single-family home on a nine-acre parcel located at 566 Route 148 in Killingworth's rural residential district. (Fourth Amended Appeal ¶¶ 1, 2.) This appeal arises out of a series of complaints from Graff's neighbors regarding the fourteen dogs that Graff maintains as pets on her property. (Supplemental ROR, Items 6, 13.) These complaints led the ZEO of the town of Killingworth, Cathie Jefferson, to become involved with the situation, culminating in the issuance of a cease-and-desist order to Graff (ROR, Item 2; Supplemental ROR, Item 9.)
On January 5, 2001, the ZEO sent a letter to Robert Bartner, Graff's father and the record owner of the property until May 14, 2001, advising him of a complaint that she had received regarding the, operation of a dog kennel at 566 Route 148 and requesting that Bartner contact her to assess whether a permit for a kennel was required for the dogs. (Supplemental ROR, Item 4.) On March 2, 2001, Shawn and Kerry O'Connell, the intervenors in this appeal whose property abuts the property owned by Graff, also complained to the ZEO regarding the number of dogs on Graff's property, as well as the frequency and duration of their barking. (Supplemental ROR, Item 5.) CT Page 5796
Graff's neighbors, Kerry and Shawn O'Connell, moved to CT Page 5819 intervene in this appeal as party defendants on the ground that they are aggrieved pursuant to General Statutes § 8-8 because the property they own at 570 Route 148 in Killingworth abuts Graff's property. Their ownership of this property is evidenced by a quitclaim deed recorded in the Killingworth land records on October 8, 1997. (Plaintiff's Exhibit 1.) Moreover, the O'Connells contend that if Graff's appeal is sustained, the fair market value of their property will be greatly reduced because her dogs produce excessive noise and odors. Their motion to intervene was granted by the court, Robinson, J., on October 22, 2002.
Shortly thereafter, the ZEO sent Graff a certified letter referencing the receipt of another complaint regarding the number of dogs and the degree of noise produced by them on her property. (Supplemental ROR, Item 6.) According to the ZEO, the Killingworth animal control officer responded to numerous complaints about Graff's dogs and issued a summons requiring the registration of all of her dogs with the town clerk. (Supplemental ROR, Item 6.) The ZEO further stated that she believed that Graff was operating a kennel as defined by General Statutes § 22-342(a), and, therefore, was in violation of zoning regulation § 61A.2(I). (Supplemental ROR, Item 6.) Graff was required to contact the ZEO within ten days to show compliance with state and local regulations or her noncompliance would result in the ZEO issuing a formal cease-and-desist order. (Supplemental ROR, Item 6.)
The complaint tickets and notices of dog law violations for Graff's dogs, which were issued by animal control officers are among the documents found in the supplemental return of record. (Supplemental ROR, Item 13.) These complaint tickets set forth statements made by Graff's neighbors regarding the nuisance created by her dogs' barking and roaming. (Supplemental ROR, Item 13.) The court notes that there is also a restraint and quarantine order for Graff's dog, Horst, issued by an animal control officer after Horst bit Graff's neighbor, Richard Henry.
In response, Graff wrote a letter to the ZEO dated March 9, 2001. (Supplemental ROR, Item 7.) The letter stated that she had never operated a commercial boarding or breeding kennel on her property and that she would update the town's records regarding the sterilized status of some of her pet dogs. She also asserted that, according to statutory and municipal laws, she was under no obligation to inform the commission or the ZEO when she either obtained, or lost, a pet dog. Moreover, Graff maintained that she was under no obligation to spay or neuter her pet dogs. At the conclusion of this letter, Graff claimed that she has at all times complied with relevant zoning regulations concerning her pet dogs.
On March 14, 2001, Graff wrote an additional letter to the ZEO documenting that she had obtained licenses for three pet dogs with proof of their neutered status and that she had supplied the town clerk with proof of neutered status for five of her dogs that were licensed with the town. (Supplemental ROR, Item 8.) Graff further informed the ZEO that she would be updating the town's records during the following week regarding some of her other dogs.
The planning and zoning commission (commission) held a regular meeting on April 17, 2001. (Supplemental ROR, Item 1.) The minutes of this meeting reflect that when the commission considered new business, it reviewed information supplied by the ZEO showing the current number of dog licenses per residential property in Killingworth. (Supplemental ROR, Item 1, p. 5; Item CT Page 5797 2, pp. 1-4.) At the conclusion of the meeting, the commission voted in favor of a resolution that any household keeping less than four dogs constituted an accessory use of the property and that any homeowner keeping four or more dogs would be in violation of the regulations. (Supplemental ROR, Item 1, p. 5; Item 2, pp. 19-20.)
In accordance with the resolution passed by the commission on April 17, 2001, the ZEO issued a cease-and-desist order to Graff on April 27, 2001, stating that there were fourteen licensed dogs residing on Graff's property and ordering Graff to remove all dogs in excess of four from her property to bring it into compliance with the town's zoning regulations. (ROR, Item 2; Supplemental ROR, Item 9.) In this order, the ZEO explained that "[a]t the April 17, 2001 Killingworth Planning Zoning Commission meeting there was discussion regarding the keeping of dogs as an accessory use. The Commission reviewed the information gathered from the Town Clerk's office regarding dog licensing and decided that any household housing more than four dogs is in violation of the Killingworth Zoning Regulations." (ROR, Item 2)
Graff requested clarification from the ZEO regarding the information contained in the cease-and-desist order. (Fourth Amended Appeal ¶ 20.) The ZEO replied to Graff on May 4, 2001, stating: "The Killingworth zoning regulation that you are in violation of is 61A.1 General Principle Uses. Specifically what is considered an accessory use therein." (Supplemental ROR, Item 10.)
On May 19, 2001, Graff appealed the ZEO's order to the board. (ROR, Item 1.) The board held a public hearing on June 18, 2001, to consider Graff's appeal of the ZEO's order. (ROR, Items 21, 22.) At the end of the public hearing, the board adjourned and voted four to one to uphold the ZEO's order and to deny Graff's appeal. (ROR, Item 21, p. 5.) Thereafter, the board sent Graff a letter dated June 29, 2001, stating that a legal notice of the decision was published in the Hartford Courant on June 21, 2001. (ROR, Items 19, 20.) A copy of this legal notice was included with its June 29, 2001 letter to Graff. (ROR, Items 16, 20.) Graff now appeals from the board's decision.
JURISDICTION
General Statutes § 8-8 governs an appeal from the decision of a planning and zoning commission to the Superior Court. "A CT Page 5798 statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
AGGRIEVEMENT
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). A plaintiff, such as Graff must "[establish] standing on the basis of either classical or statutory aggrievement." Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 436, 829 A.2d 801 (2003).
Aggrievement is a factual issue, "and credibility is for the trier of the facts." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001). An owner of property that is the subject of an application is aggrieved for the purpose of bringing an appeal, and a plaintiff may prove aggrievement by testimony at the time of trial. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991). A plaintiff may also prove aggrievement "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 703.
Graff alleges that she is aggrieved because she is the owner of the property for which a certificate of occupancy was granted pursuant to General Statutes § 8-3(f) and because she was the appellant in the appeal to the board, which denied her appeal of the ZEO's cease-and-desist order. (Fourth Amended Appeal ¶ 28.) The board and Graff filed a stipulation of facts and exhibits with the court on May 13, 2003, which includes a warranty deed recorded on May 14, 2001, evidencing that Graff is the owner of record for the property located at 566 Route 148 in Killingworth. (Plaintiff's Exhibit 1; Supplemental ROR, Item 12.) The O'Connells were not parties to this stipulation, and have left Graff to her proof with respect to aggrievement. (O'Connells' Answer to Fourth Amended Appeal ¶¶ 27-28.) CT Page 5799
The court concludes that Graff is aggrieved because she is the record owner of the property, as well as the owner of the dogs located at 566 Route 148, which are affected by the ZEO's cease-and-desist order, as well as by the board's decision to uphold the ZEO's order. (Plaintiff's Exhibit 1; Supplemental ROR, Item 12.)
TIMELINESS SERVICE OF PROCESS
An "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." General Statutes § 8-8(b). Moreover, subsection (f) mandates that service "shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality." General Statutes § 8-8(f).
The record contains an affidavit of publication attesting that notice of the board's decision was published on June 21, 2001, in the Hartford Courant newspaper. (ROR, Items 18, 19.) Graff commenced this appeal on June 28, 2001, by service of process on the Killingworth town clerk and at the usual place of abode of the chairman of the board. Accordingly, the court finds that this appeal was commenced in a timely manner by service of process upon the proper parties.
SCOPE OF REVIEW
Pursuant to General Statutes § 8-6(a)(1), a board may hear and decide appeals from decisions made by a ZEO. General Statutes § 8-6(a)(1) authorizes a board "[t]o hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter." "[I]t is clear from both the entire statutory scheme and our zoning case law that the zoning board hears and decides such an appeal de novo, and that the action of the zoning enforcement officer that is the subject of the appeal is entitled to no special deference by the court." (Internal quotation marks omitted.) Caserta v. Zoning Board of Appeals, 226 Conn. 80, 88-89, 626 A.2d 744 (1993). CT Page 5800
"An adverse decision by the board may be appealed to the Superior Court under General Statutes § 8-8(b). The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Citations omitted; internal quotation marks omitted.) RR Pool Patio v. Zoning Board of Appeals, 257 Conn. 456, 469-70, 778 A.2d 61 (2001).
"Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995). "[T]he appealing aggrieved party [must] marshal the evidence in the record, and . . . establish that the decision was not reasonably supported by the record." (Emphasis in original; internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 716. "The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." Irwin v. Planning Zoning Commission, 244 Conn. 619, 629, 711 A.2d 675 (1998).
"If a board has nonetheless failed to state its reasoning, reviewing courts must themselves search the record of the land use proceedings to determine the sufficiency of the evidence to support the decision of the board." Mohican Valley Concrete Corp. v. Zoning Board of Appeals, 75 Conn. App. 45, 51, 815 A.2d 145 (2003). "The evidence, however, to support any such reason must be substantial." (Internal quotation marks omitted.) DeBeradinis v. Zoning Commission, 228 Conn. 187, 199, 635 A.2d 1220 (1994). "An administrative agency can find that substantial evidence exists if the administrative record affords a substantial basis of fact for which the fact in issue can be reasonably inferred." (Internal quotation marks omitted.) Vicino v. Zoning Board of Appeals, 28 Conn. App. 500, 505, 611 A.2d 444 (1992). See also New Haven College, Inc. v. Zoning Board of Appeals, 154 Conn. 540, 542-44, 227 A.2d 427 (1967).
CLAIMS CT Page 5801
On June 18, 2001, the board voted to uphold the ZEO's cease-and-desist order. (ROR, Item 21.) The board did not specify its reasons for upholding the ZEO's order in the legal notice of decision published in the Hartford Courant on June 21, 2001, or in its June 29, 2001 letter to Graff. (ROR, Items 16, 18, 20.)
Graff now appeals from the board's decision to uphold the ZEO's order. Graff alleges in her fourth amended appeal that the board's decision to uphold the ZEO's order was ultra vires for the following reasons: "a. the Killingworth Zoning Regulations do not contain a limitation on the keeping of dogs as household pets; b. the PZC's resolution/motion of April 17, 2001 did not amend the Killingworth Zoning Regulations or adopt an enforceable limit on dogs as household pets; c. Killingworth's accessory use regulation does not apply to household pets or dogs; and d. neither the ZEO's cease-and-desist order of April 27, 2001 nor her letter of May 4, 2001 identified a specific regulation that Ms. Graff was allegedly violating." (Fourth Amended Appeal, ¶ 29 (a)-(d).)
In addition, Graff offers three additional allegations in her appeal. First, she asserts that the board's decision to uphold the commission's resolution to set a four-dog limit as part of the town's accessory use regulation was unconstitutional as applied to Graff because it is void for vagueness and violates substantive and procedural due process pursuant to clauses of article I §§ 8 and 10 of the Connecticut constitution and the fourteenth amendment of the United States constitution. (Fourth Amended Appeal, ¶ 30(a)-(c).) Second, Graff maintains that the ZEO's enforcement of the commission's determination to set a four-dog limit against her, without similarly enforcing this same limit on other individuals keeping more than four dogs as pets, constitutes selective enforcement in violation of the equal protection guarantee of the fourteenth amendment of the United States constitution. (Fourth Amended Appeal, ¶ 31.) Third, Graff claims that if the commission validly amended its accessory use regulation to include a four-dog limit, that limit may not be enforced against her because she established a vested right under General Statutes § 8-2h and a nonconforming use prior to April 17, 2001 to maintain fourteen dogs on her property. (Fourth Amended Appeal, ¶ 32(a)-(b).) Graff also insists, as part of this claim, that the ZEO is estopped from enforcing the four-dog limit against her because, after due inquiry, she reasonably relied on the lack of a limit in the zoning regulations on the number of dogs that could reside on her property. (Fourth Amended Appeal, ¶ CT Page 5802 32(c).)
Graff's primary ground for this appeal is that the board acted in an ultra vires manner when it voted to uphold the ZEO's order. As set forth previously, Graff also raises three alternative constitutional grounds for her appeal.
Traditionally, a party challenging the constitutionality of a zoning regulation was required to do so by seeking a declaratory judgment rather than by attacking its validity in a zoning appeal. See Bombero v. Planning Zoning Commission, 218 Conn. 737, 742, 591 A.2d 390 (1991). "This rule requiring the validity of a zoning regulation to be independently challenged in a declaratory judgment action serves the important policy of ensur[ing] that all affected landowners would be provided with an opportunity to become involved in the proceedings." Spero v. Zoning Board of Appeals, 217 Conn. 435, 446, 586 A.2d 590 (1990).
The Supreme Court explained: "We hold only that where, as here, the plaintiff mounts a general attack on the legislative enactment of a regulation, primarily based on constitutional vagueness grounds, and combines therewith nonconstitutional grounds for the regulation's invalidity, he must do so by a declaratory judgment action rather than by an appeal from the enactment." Bombero v. Planning Zoning Commission, supra, 218 Conn. 745.
More recently, the Supreme Court has abandoned this requirement. See Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 582, 715 A.2d 46 (1998). The court explained that the rationale of requiring parties to challenge the constitutionality of regulations by obtaining a declaratory judgment was unnecessary to protect the interests of third parties. "In our view, in challenges to the validity of municipal or agency legislation, the interests of the municipality or agency in upholding its legislation provide sufficient protection to the interests of third parties in that legislation and, therefore, it is not necessary to require that such challenges be brought as declaratory judgment actions." Id., 582.
Although Graff has asserted constitutional claims in her appeal, the primary basis for Graff's appeal is derived from her nonconstitutional claim that the board's decision was ultra vires. (Fourth Amended Appeal ¶ 29(a)-(d).) "Because we resolve the plaintiff's appeal on nonconstitutional grounds, we need not address its constitutional claim. It is well settled that we need not reach an appellant's constitutional claims if the appeal can be sustained on nonconstitutional grounds." Bethlehem Christian Fellowship, Inc. v. Planning Zoning Commission, 73 Conn. App. 442, 444 n. 2, 807 A.2d 1089, cert. denied, 262 Conn. 928, 814 A.2d 379 (2002). See also R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (1999) § 36.6, pp. 246-47. Accordingly, the court declines to address Graff's alternative CT Page 5803 constitutional claims as this appeal may be decided on nonconstitutional grounds.
Essentially, Graff raises two nonconstitutional claims. Initially, she claims that the board's action upholding the ZEO's cease-and-desist order was ultra vires because the regulations contain no numerical limit on the keeping of dogs as household pets. Graff further claims that the commission's April 17, 2001 resolution, defining the keeping of four (or fewer) pet dogs as an accessory use, constituted an impermissible attempt to adopt a regulation by setting an enforceable limit on the number of dogs that may be kept as household pets.
The board counters that it properly upheld the ZEO's issuance of the cease-and-desist order because the ZEO appropriately determined that the keeping of fourteen dogs at a residence in the rural residential district was not a permitted accessory use. In addition, the board maintains that the commission's April 17, 2001 resolution was merely a clarification of existing regulations.
Graff filed a reply brief on December 6, 2002. In her reply, Graff states that she is not operating a kennel and that she has fully responded to the initial complaint against her in April 2001. (Supplemental ROR, Items 3, 6.) In addition, Graff reasserts her claim that the zoning regulations expressly exclude dogs from regulation; therefore, the town's accessory use regulation is inapplicable to her pet dogs. Similarly, Graff suggests that Sherman v. Westbrook Zoning Board of Appeals and Lawrence v. Zoning Board of Appeals, cases relied upon by the board, are not controlling precedent because these cases address accessory uses and the Killingworth regulations allow her to own dogs as a general principal use.
Graff originally asserted this claim in support of her allegation that the board's decision to uphold the ZEO's order was ultra vires. (Fourth Amended Appeal, ¶ 29(a)-(c).)
The board also filed a reply brief on April 11, 2003. In its reply, the board addresses Graff's argument that the keeping of dogs as pets constitutes a general principal use and is governed by § 61A.1(G) of Killingworth's zoning regulations. According to the board, a proper reading of § 61A.1(G) of the regulations leads to the conclusion that household pets, such as dogs, do not constitute a permitted general principal use in the rural residential district. The board asserts that the keeping of dogs as household pets constitutes an accessory use. Therefore, the board maintains that § 61A.3 and § 20 of the regulations and the principles of Lawrence v. Zoning Board of Appeals are CT Page 5804 applicable to the facts.
DISCUSSION
Specifically, Graff argues that the board's decision to uphold the ZEO's cease-and-desist order was ultra vires because the Killingworth zoning regulations do not contain a numerical limit on the keeping of dogs as household pets. As part of this argument, Graff maintains that dogs are expressly excluded from Killingworth's zoning regulations on accessory uses because they do not apply to household pets. Graff also contends in her reply brief that the court is not required to defer to the board regarding questions of statutory interpretation.
In response, the board argues that it did not act in an ultra vires manner when it upheld the ZEO's cease-and-desist order. The board further asserts that Graff misinterprets the regulations when she states that household pets, such as dogs, are expressly excluded from the regulations. The board insists that pet dogs are an accessory use of land and as such, are subject to regulation by the town.
The board held a public hearing on June 18, 2001, to consider Graff's appeal. At this public hearing, the board heard presentations from Graff's attorney, the town attorney, and the ZEO. (ROR, Item 22.) In addition, the board heard testimony from residents. (ROR, Item 22.)
At the conclusion of the public hearing, the board voted 4 to 1 to uphold the ZEO's cease-and-desist order. (ROR, Item 21, p. 5.) In the legal notice of decision published in the Hartford Courant on June 21, 2001 and in the board's June 29, 2001 letter to Graff, the board did not specify its reasons for upholding the ZEO's order. (ROR, Items 16, 18, 20.) The minutes of the public hearing on June 18, 2001, and the board's post-adjournment discussions provide the only source in the record of the board's deliberative process regarding Graff's appeal prior to its vote, a vote which upheld the ZEO's cease-and-desist order.
The minutes of the board's post-adjournment discussion provide in pertinent part: "Board members reviewed the application and testimony submitted during the public hearing. Chairman Dodson noted the Sherman case in Westbrook was upheld by the ZBA and the Superior Court. Ms. Ahern noted that if the regulations are going to be changed, then there should have been a hearing. She CT Page 5805 was not in favor of this and didn't think this was fair. Chairman Dodson noted that was his first reaction. Mr. Sipples and Ms. Usakewicz both noted they have trouble with not grandfathering. Ms. Ahern noted she would like to hear from the Dog Warden. Ms. Albrecht noted there is nothing in the regulations on dogs. Ms. Ahern noted they are talking noise and one dog can make noise. Mr. Auer noted the ZEO used the best means at her disposal to come up with a reasonable number based on the facts available to her. Mr. Sipples indicated he felt there was enough in the current regulations to allow C. Jefferson to do what she did and he didn't see how her decision could be overturned. Ms. Usakewicz noted she felt C. Jefferson [the ZEO] did everything right. Mr. Auer noted the regulations are there so that this sort of thing doesn't occur. Board members briefly reviewed the kennel regulations. Mr. Auer noted the question here is whether the ZEO used the resources available to her in the right manner, and he felt she did. Chairman Dodson agreed." (ROR, Item 21, p. 5.) The board then voted 4-1 to uphold the ZEO's cease-and-desist order. (ROR, Item 21, p. 5.)
"[The minutes do not reveal] that the zoning [board] members individually stated consistent reasons behind their votes, either prior or subsequent to the vote, from which we could infer a collective reason." Harris v. Zoning Commission, supra, 259 Conn. 422. Rather, the minutes merely contain statements made by various members of the board on several issues including: changing the regulations, noise made by various numbers of dogs, one member's desire to hear from animal control, another member's preference for grandfathering, and the town's regulations on kennels. (ROR, Item 21, p. 5.) "The principle that a court should confine its review to the reasons given by a zoning agency . . . applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action . . . It does not apply to mere utterances of individual members of the agency." Id., 420.
Here, the board did not express a "formal, official, collective" statement with grounds supporting its decision. "If a board has nonetheless failed to state its reasoning, reviewing courts must themselves search the record of the land use proceedings to determine the sufficiency of the evidence to support the decision of the board." Mohican Valley Concrete Corp. v. Zoning Board of Appeals, supra, 75 Conn. App. 51. "The evidence, however, to support any such reason must be substantial." (Internal quotation marks omitted.) DeBeradinis v. CT Page 5806 Zoning Commission, supra, 228 Conn. 199. Therefore, the court is required to search the record to determine if the record provides a substantial basis of fact to support the board's decision. See Vicino v. Zoning Board of Appeals, supra, 28 Conn. App. 505. See also New Haven College, Inc. v. Zoning Board of Appeals, supra, 154 Conn. 542-44.
During the public hearing before the board, Graff's attorney argued that there was no regulation that expressly prohibits an individual from owning more than four dogs in Killingworth. (ROR, Item 22, p. 3.) He also asserted that § 61A.l of the regulations, which governs the keeping of animals, expressly excludes household pets. (ROR, Item 22, p. 3.) Graff's attorney also suggested that nuisance would be the correct remedy for problems produced by people's pets. (ROR, Item 22, pp. 4, 9, 38-40.) Furthermore, he labeled the commission's action as a de facto zoning amendment which was created without proper notice and a public hearing. (ROR, Item 22, pp. 5, 38-40.)
In response, the town's attorney asserted that the commission did not create a new regulation, rather the commission interpreted the existing regulation which defines accessory uses. (ROR, Item 22, p. 17.) He also stated that, based upon the standard articulated in Lawrence v. Zoning Board of Appeals, the keeping of fourteen dogs does not constitute an accessory use because it is unique and rare. (ROR, Item 22, p. 18.) The town attorney also contended that it is unnecessary for the regulations to define with specificity each and every situation that is an accessory use because the facts determine whether something is customary and incidental at that time. (ROR, Item 22, p. 20.) During the public hearing, he suggested to the board that the "issue before you specifically is whether or not 14 dogs are a permitted accessory use on a residential lot." (ROR, Item 22, p. 22.)
The attorney for the Graff's abutting neighbors and intervenors, the O'Connells, was the attorney for the Westbrook board in the Sherman appeal. He claimed that, here, the Killingworth commission merely interpreted existing regulations on accessory uses and did not promulgate a new regulation. (ROR, Item 22, pp. 29-33.) For this reason, he requested that the board uphold the ZEO's cease-and-desist order. (ROR, Item 22, p. 33.)
The board also heard testimony from a number of residents. One resident, a veterinarian, inquired whether Graff was given any CT Page 5807 choices other than getting rid of her 10 dogs and commented that she herself owns 4 dogs, which create a lot of noise. (ROR, Item 22, pp. 24-25.) Three other residents complained about the noise created by the dogs. (ROR, Item 22, pp. 27-29, 35, 36.) A long-term resident of Killingworth, who was in favor of the ZEO's decision, thought that this situation could have been better addressed through noise regulations and not zoning regulations on accessory uses. (ROR, Item 22, p. 34.)
The transcript of the board's public hearing on June 18, 2001 reflects that the primary focus of the board, and of the residents' testimony, concerned the noise produced by Graff's dogs. During the public hearing, the only individuals who discussed the issue of whether Graff's fourteen dogs constituted a permissible accessory use under the zoning regulations were Graff's attorney, the town attorney, and the O'Connells' attorney.
A zoning board of appeals decides an appeal from an action of a zoning enforcement officer de novo. See Caserta v. Zoning Board of Appeals, supra, 226 Conn. 88-89. Moreover, the court is not required to give any special deference to the ZEO's decision. See Caserta v. Zoning Board of Appeals, supra, 226 Conn. 88-89. According to the transcript of the board's public hearing, however, the board, itself, did not examine the issue of whether Graff's fourteen dogs constituted a permissible accessory use under the zoning regulations. (ROR, Item 22.)
The ZEO issued her cease-and-desist order in reliance upon the commission's April 17, 2001 resolution, which substantively changed the zoning regulations of Killingworth. This alteration in the zoning regulations was created by the commission in violation of General Statutes § 8-3(a). The record does not afford a substantial basis of fact to support the board's decision to uphold the ZEO's cease-and-desist order. See Vicino v. Zoning Board of Appeals, supra, 28 Conn. App. 505 (substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred). See also New Haven College, Inc. v. Zoning Board of Appeals, supra, 154 Conn. 542-44. Thus, the court finds that the board improperly upheld the decision of the ZEO because the board's decision is not supported by substantial evidence in the record.
On April 27, 2001, the ZEO issued a cease-and-desist order to CT Page 5808 Graff which stated that there were fourteen licensed dogs residing on Graff's property and ordered Graff to remove all dogs in excess of four from her property to bring it into compliance with the town's zoning regulations. (ROR, Item 2; Supplemental ROR, Item 9.) In this order, the ZEO explained that "[a]t the April 17, 2001 Killingworth Planning Zoning Commission meeting there was discussion regarding the keeping of dogs as an accessory use. The Commission reviewed the information gathered from the Town Clerk's office regarding dog licensing and decided that any household housing more than four dogs is in violation of the Killingworth Zoning Regulations." (ROR, Item 2.)
Graff requested clarification from the ZEO regarding the information contained in the cease-and-desist order. (Fourth Amended Appeal ¶ 20.) The ZEO replied to Graff on May 4, 2001, stating, "The Killingworth zoning regulation that you are in violation of is 61A.1 General Principle Uses. Specifically what is considered an accessory use therein." (Supplemental ROR, Item 10.)
The ZEO issued her cease-and-desist order in reliance upon the resolution adopted by the commission on April 17, 2001 during its regular meeting, which limited the number of dogs to four that a household may keep as an accessory use. (ROR, Item 2.) At its April 17, 2001 meeting, the commission considered the issue of the number of dogs that a property owner in the rural residential district may keep as an accessory use pursuant to the zoning regulations. (Supplemental ROR, Items 1, p. 5; Item 2.) During its consideration of this issue, the chairman indicated that Sherman v. Westbrook Zoning Board of Appeals (the Sherman appeal), governed the disposition of this issue. (Supplemental ROR, Item 2, pp. 2-4.) See Sherman v. Westbrook Zoning Board of Appeals, Superior Court, judicial district of Middlesex at Middletown (April 1, 1996, Lavine, J.) ( 16 Conn.L.Rptr. 395.) For this reason, the chairman introduced to the commission information provided by the ZEO regarding the number of dogs licensed by property owners throughout the rural residential district. (Supplemental ROR, Item 2, pp. 1-2.) This information included a list of individuals, their addresses, and the number of dogs that were owned at those addresses. (Supplemental ROR, Item 2, pp. 1-2; Item 3.) The commission then voted in favor of a motion that any individual owning more than four dogs was in violation of the zoning regulations that governed accessory uses. (Supplemental ROR, Item 2, pp. 12-19.) As will be discussed, infra, the board ultimately upheld the ZEO's issuance of the CT Page 5809 cease-and-desist order, an order that was based upon this motion. (ROR, Item 21, p. 5.)
As a preliminary matter, the court finds that the Sherman appeal is distinguishable from the present appeal. In Sherman, the ZEO issued a cease-and-desist order to the plaintiff, ordering him to find placement for five of his eight dogs, whereupon he appealed to the board. Sherman testified that he had applied for a private kennel license, that he wanted to begin a K-9 academy, he was seeking a commercial kennel license, and that he had twenty-five dogs when he moved to Westbrook. Conversely, the commission's attorney claimed that Sherman had no permit to operate a commercial kennel, and that the dogs were for his personal use. The attorney further stated that the ZEO, upon examination of the dog licenses of other Westbrook residents, discovered that the maximum number of dog licenses issued to other townspeople was three. The attorney, therefore, advised the ZEO that she "would be within her rights to issue a cease-and-desist order limiting the maximum number of dogs to three." Id., 395. On appeal, the trial court dismissed the appeal, concluding that, pursuant to the Westbrook regulations, and based upon the record, the ZEO "had a basis to determine that having in excess of three dogs was neither customary nor incidental and was wholly out of character in the neighborhood involved given the noise, safety, and financial issues involved . . ." Id., 397.
In the Sherman appeal, the ZEO issued a cease-and-desist order upon the "advice" of commission's counsel and upon her own investigation, framing "the inquiry in the parlance of zoning regulations of whether it was the customary and incidental use of a landowner to own in excess of three dogs in the area in question." Id., 396. Ultimately, the ZEO "determined that it was not." Id. In the present appeal, however, as will be discussed, infra, the ZEO issued a cease-and-desist order in reliance upon a formal commission resolution, voted upon and adopted by the commission at its April 17, 2001 meeting that "the keeping of 4 or less pet dogs is considered an accessory use in a residential zone." (Supplemental ROR, Item 1, p. 5; Item 2, pp. 19-20.) Although the transcript of the meeting reveals that the commission believed that "[w]e are simply clarifying the regulations," and that the resolution represented a "guideline," and "not a regulation," prior to this resolution, the Killingworth regulations contained no limitations with respect to the keeping of pets. (Emphasis added.) (Supplemental ROR, Item 2, CT Page 5810 pp. 16-17.)
During the commission's meeting on April 17, 2001, the chairman acknowledged that there was no limit on the number of dogs that can be licensed per property. (Supplemental ROR, Item 2, pp. 6-7.) The commission's review of the dogs licensed in Killingworth revealed that there were five residents who owned in excess of four dogs. (Supplemental ROR, Item 2, pp. 6, 8.) The commission was unaware of the respective acreages involved for the properties owned by these five residents. (Supplemental ROR, Item 2, p. 8) The chairman observed that he did not think that looking into the situations regarding the properties of these other five residents would make much of a difference. (Supplemental ROR, Item 2, p. 8.)
Later, the commission determined how many dogs should be allowed as an accessory use. (Supplemental ROR, Item 2, pp. 10-12.) At the chairman's suggestion, the commission utilized a "pick a number" method to determine that any household owning more than four dogs would be in violation of the accessory use regulations. (Supplemental ROR, Item 2, p. 12.) According to the record, the entire discussion by the commission of this issue was brief and no testimony was considered. (Supplemental ROR, Item 2, p. 13.) The remainder of the meeting was spent drafting the actual motion. (Supplemental ROR, Item 2, pp. 14-19.) The commission then voted to approve this motion, which simply stated: "The keeping of 4 or less pet dogs is considered an accessory use." (Supplemental ROR, Item 1, p. 5; Item 2, p. 20.)
The record indicates that the town attorney, William Howard, was not present at this meeting. (Supplemental ROR, Item 2.) The record reveals, however, that while the commission had in its possession an opinion letter from the town attorney to the first selectman, the commission did not discuss or review the letter during the hearing. (Supplemental ROR, Item 2; ROR, Item 3, "Exhibit A.") The chairman merely observed that the town attorney had sent a letter and that "[a]ttorney Howard told me that I should be prepared to enforce all properties over the limit that you set in which case four seems to be a manageable number leaving only five properties in violation." (Supplemental ROR, Item 2, p. 5.)
The town attorney noted that the Superior Court, relying on a "numbers-oriented analysis," dismissed the Sherman appeal. (ROR Item 3, pp. 3-4.) The town attorney appears to rely on the Sherman appeal's "numbers-oriented analysis," in his opinion that it would be within the law for the ZEO to issue Graff a cease-and-desist order.
Although the commission failed to consider the town attorney's letter during its decision-making process when it determined the number of pet dogs constituting an accessory use under the CT Page 5811 regulations, this letter not only sets forth the applicable regulations but it also references the seminal case of Lawrence v. Zoning Board of Appeals, as well as the Superior Court decision of Sherman v. Westbrook Zoning Board of Appeals. (ROR, Item 3.)
In his letter, the town attorney stated that § 61A.1 of the zoning regulations sets forth the principal uses permitted as of right in the rural residential district and that § 61A.3 of the CT Page 5820 regulations addresses accessory uses. (ROR, Item 3, p. 2.) He also mentioned that § 20A of the regulations provides a definition for the term "accessory use." (ROR, Item 3, p. 2.) He discussed the facts of the Sherman appeal (ROR, Item 3, pp. 2-3); explaining that the Superior Court in Sherman "reviewed and analyzed the above facts in relation to Lawrence v. Zoning Board of Appeals, 158 Conn. 509 (1969)." (ROR, Item 3, p. 3.)
The town attorney then advised: " Lawrence sets forth helpful and specific standards with which to assess a claim that a use is `accessory' to the principal use on a lot. The Lawrence Court addresses the meaning of the terms ` customarily' and ` incidental' as employed in a definition of `accessory use' . . ." (Emphasis in original.) (ROR, Item 3, p. 3.) After quoting from portions of Lawrence v. Zoning Board of Appeals which set forth the Supreme Court's analysis of the terms "customarily" and "incidental," the town attorney ultimately concluded that case should be applied to the facts here. (ROR, Item 3, pp. 3-5.)
Here, the record reveals that the commission did not determine the number of pet dogs that would constitute an accessory use under the regulations by expressly utilizing the definitions employed by the court in Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 264 A.2d 552 (1969). The sole references to the "customary" and "incidental" tests from Lawrence v. Zoning Board of Appeals for evaluating an accessory use consist of the chairman's statements observing that the keeping of fourteen dogs is unique and rare and that the maintenance of lesser numbers appears to be a more common practice in Killingworth. (Supplemental ROR, Item 2, pp. 4, 5.)
The principles established by the Supreme Court in Lawrence v. Zoning Board of Appeals are applicable to Graff's appeal because it is the leading case on accessory uses, and the primary issue before the Killingworth commission was the number of pet dogs that constitutes a valid accessory use of an individual's property in the rural residential district of Killingworth. (Supplemental ROR, Item 2, pp. 1-4.)
In Lawrence v. Zoning Board of Appeals, the Supreme Court defined "accessory use" as follows: "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 pertaining to the principal or main use. (Citations omitted; internal quotation marks omitted.) Lawrence v. Zoning Board of Appeals, supra, 158 Conn. 511-12. The court then explained the factors to be considered when determining whether a use is "customary" and "incidental." Id., 512-14.
According to the court, "[t]he word `incidental' as employed in a definition of `accessory use' incorporates two concepts. It means that the use must not be the primary use of the property but rather one which is subordinate and minor in significance . . . But `incidental' when used to define an accessory use, must also incorporate the concept of reasonable relationship with the primary use. It is not enough that the use be subordinate; it must also be attendant or concomitant." Id., 512.
"The word `customarily' is even more difficult to apply. Although it is used in this and many other ordinances as a modifier of `incidental,' it should be applied as a separate and distinct test. Courts have often held that use of the word, `customarily' places a duty on the board or court to determine whether it is usual to maintain the use in question in connection with the primary use of the land . . . The use must be further scrutinized to determine whether it has commonly, habitually and by long practice been established as reasonably associated with the primary use." (Citation omitted.) Id., 512-13. "[S]ome of the factors which should be taken into consideration are the size of the lot in question, the nature of the primary use, the use CT Page 5812 made of the adjacent lots by neighbors and the economic structure of the area. As for the actual incidence of similar uses on other properties, geographical differences should be taken into account, and the use should be more than unique or rare, even though it is not necessarily found on a majority of similarly situated properties." Id., 513.
The cease-and-desist order upheld by the board found Graff in violation of § 61A.1, "[s]pecifically what is considered an accessory use therein." (Supplemental ROR, Item 10.) Killingworth zoning regulation § 61A.1 lists the general principal uses permitted in the rural residential district. Graff claims in her reply brief that the keeping of dogs as pets is a general principal use in the rural residential district and, therefore, governed by § 61A.1(G) of the regulations.
Section 61A.1(G) permits a property owner to keep animals as a general principal use and provides: "Animals. The keeping of animals other than household pets shall be permitted subject to the following conditions and limitations. All animals shall be kept in such a manner so as not to create a public health hazard or have an adverse effect on the environmental quality of the surrounding area and the community in general. Manure and other excrement piles shall be located and maintained so as to prevent runoff of manure and other polluting materials onto adjacent properties, roads, wells, or watercourses. Adequate fencing and structures shall be installed and maintained so as to confine all animals within the premises of the owner. The keeping of animals shall conform to all applicable regulations of The Connecticut State Department of Health Public Health Code, The Department of Environmental Protection, The State Department of Agriculture, and the General Statutes." (Emphasis added.)
Section 61A.1(G) of the regulations also specifically addresses the keeping of certain types of animals, such as, poultry, rabbits, swine, horses, and cattle. Regarding these animals, § 61A.1(G) states: "Poultry and rabbits. Not more than 100 such animals may be kept on any premises at any one time. Swine. The keeping of swine for personal use is permitted providing that no more than three mature pigs, ten weeks or older, and no more than one litter consisting of suckling pigs, ten weeks of age or less are kept. Certain other animals. The keeping of horses, ponies, burros, donkeys, llamas, sheep, goats and cattle is permitted providing that no more than three such animals are kept on a lot of not less than two acres. Three additional animals are CT Page 5813 permitted for each acre in addition to two acres. Any barn or shelter for such animals shall be located not less than fifty (50) feet from any property line."
Pursuant to § 61A.1(G), for the first two acres an individual resident owns, the resident is permitted to keep three sheep, goats, cows, or horses. For each additional acre that the resident owns above these first two acres, the resident is allowed an additional three animals per acre. Thus, a resident may own an additional 21 of such animals for the other seven acres owned, amounting to a total of 24 cows, horses, goats, etc. for the entire nine acres.
In addition to these 24 animals, a resident could also keep 100 poultry and rabbits, as well as 3 pigs and one litter of suckling pigs less than ten weeks of age as a principal use pursuant to § 61A.1(G) of the regulations without first obtaining special permission from the town. Section 61A.1(G) also does not place a CT Page 5821 temporal limit on an individual's ability to keep the maximum number of each type of animal. Presumably, an individual could contemporaneously own all of the following animals on her property: 3 pigs and a litter of suckling pigs, plus 100 chickens or rabbits, as well as an assortment of sheep, goats, cows, and horses numbering up to 24 animals. An individual resident also has the option under the regulations of several other special principal uses by permission of the town involving large numbers of animals, such as a kennel, § 61A.2(I); commercial hatchery, private fishery, game breeding, regulated hunting dog area, regulated private shooting preserve, § 61A.2(N); livery, boarding or riding stables, § 61A.2(F).
The court agrees with the board's assertion in its reply that § 61A.1(G) is inapplicable to household pets, such as dogs, because the keeping of household pets does not constitute a general principal use in the rural residential district. Section 61A.1(G) provides details on how other types of animals are to be maintained, yet it contains no requirements regarding the keeping of "household pets." Therefore, § 61A.1(G) does not apply to household pets because § 61A.1(G) expressly excludes household pets.
Both Graff and the board correctly emphasize that the only section of Killingworth's regulations which specifically addresses the keeping of household pets, such as dogs, is § 20A. Section 20A is the definitional section of the Killingworth zoning regulations. "Household pet" is defined in § 20A as "any domesticated animal kept for pleasure rather than utility or profit which is normally kept within a residence and includes among others dogs, cats, gerbils, guinea pigs, hamsters, reptiles, birds, turtles, and tropical fish." Section 20A generally defines "accessory use" as "any use, which is attendant, subordinate and customarily incidental to the principal use on the same lot," but does not explicitly state whether a dog kept as a household pet constitutes an accessory use under the regulations.
Whether the keeping of certain numbers of pet dogs is an accessory use depends upon the resolution of two separate factors. First, the use must be customary. "The use must be further scrutinized to determine whether it has commonly, habitually and by long practice been established as reasonably associated with the primary use." Lawrence v. Zoning Board of Appeals, supra, 158 Conn. 512-13. Second, the use must be incidental. In other words, "the use must not be the primary use of the property but rather one which is subordinate and minor in significance . . . `incidental,' when used to define an accessory use, must also incorporate the concept of reasonable relationship with the primary use." Id., 512.
The Killingworth zoning regulations are very generous in allowing property owners, such as Graff, residing in the rural residential district to keep large numbers of several different CT Page 5814 types of animals on their property as a primary use without first obtaining permission from the town. Moreover, the regulations place few restrictions on how these animals must be maintained. The keeping of more than four dogs on a large rural property, such as Graff's nine-acre parcel, therefore, may be reasonably associated as "incidental" and subordinate to the allowed primary uses of land involving large numbers of animals and livestock in the rural residential district of Killingworth.
The Supreme Court has emphasized: "As for the actual incidence of similar uses on other properties . . . the use should be more than unique or rare, even though it is not necessarily found on a majority of similarly situated properties." (Emphasis added.) Lawrence v. Zoning Board of Appeals, supra, 158 Conn. 513. The record does not reveal how many dogs that property owners have customarily maintained as pets, or for other permitted uses, throughout the history of Killingworth. It would be pure conjecture for this court to attempt to place a particular number on how many dogs the residents of Killingworth have customarily kept as pets because the commission did not investigate beyond a cursory inspection of the current dog licensing list the practice of keeping dogs in Killingworth. (Supplemental ROR, Item 2, pp. 6-7; Item 3.) Nevertheless, the record reflects that at least five individuals in Killingworth currently own more than four pet dogs; (Supplemental ROR, Item 2, pp. 6-7; Item 3.); indicating that the ownership of more than four dogs, although not commonplace, is not a singularly unique occurrence. The record, however, neither reveals whether these individuals live on properties located in the rural residential district nor provides information regarding the size and uses of these properties. Thus, the keeping of more than four pet dogs, while not a use adopted by the majority of Killingworth's residents, may be properly considered an allowed accessory use because it constitutes more than a unique or rare occurrence.
As a potential accessory use under the zoning regulations, the keeping of pet dogs is subject to any limitations otherwise specified in the zoning regulations for accessory uses. In its reply brief, the board contends that the keeping of dogs as household pets constitutes an accessory use, which is governed by § 61A.3 of the regulations. Section 61A.3 of the regulations, entitled, "Accessory Uses," contains the only limitations in the regulations for accessory uses in the rural residential district. For example, § 61A.3 allows "[a]ny accessory use or improvement but not including: (A) Signs . . . (B) Vehicles; Residence Uses . . . CT Page 5815 (C) Vehicles Other Uses . . ." Among the limitations and prohibitions on accessory uses in the rural residential district provided by § 61A.3, however, there are no limitations or prohibitions regarding the keeping of pets, or on the keeping of dogs, in particular.
The use regulations applicable to properties located in the rural residential district of Killingworth do not contain any numerical limitations on pets. The board conceded this fact during its public hearing on June 18, 2001. (Supplemental ROR, Item 2, pp. 6-7.) The town could have chosen to define a "household pet" as a type of "accessory use" and to place limits upon the numbers of household pets that an individual may keep on a property as a residential use. The town, however, chose not to place numerical limitations on pets, as it had done for the commercial keeping of dogs and livestock.
Section 20A defines a "commercial kennel" as follows: "Shall mean the housing of one or more dogs overnight for a fee or the keeping of three or more dogs with the purpose of selling their progeny." In contrast to the generality of the definition of "household pet" found in § 20A, which does not include the numbers of dogs a property owner may keep as pets, § 20A of the regulations specifies with particularity the number of dogs and the conditions in which they are to be maintained within the definition of "commercial kennel."
Based upon the foregoing analysis, the court finds that the board's decision to uphold the ZEO's issuance of the cease-and-desist order was improper to the extent that such decision was predicated on the commission's adoption of a four-dog limit on the keeping of pet dogs as a permissible accessory use.
Graff further appeals on the ground that the commission's April 17, 2001 resolution did not constitute a proper amendment to the regulations or otherwise adopt an enforceable limit on dogs as household pets. The court finds that by adopting such a resolution, the commission attempted to adopt a regulation, as opposed to merely clarifying an existing regulation. Section 123A of the Killingworth zoning regulations states: "These Regulations and the District boundaries established may, from time to time, be amended, changed or repealed by the Commission in accordance with the provision of the Zoning Enabling Act." (Emphasis added.) The Zoning Enabling Act is found in General Statutes § 8-2. See Capalbo v. Planning Zoning Board of Appeals, 208 Conn. 480, 489, 547 A.2d 528 (1988). "The zoning enabling act delegates broad authority to municipalities to enact local zoning regulations." (Internal quotation marks omitted.) Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 595, 604, 539 A.2d 101 (1988). This authority to enact local zoning regulations is not without limits. A commission action is "ultra vires . . . [when it acts] beyond its power under the zoning enabling act in General Statutes 8-2." Builders Service Corp. v. Planning Zoning Commission, 208 Conn. 267, 278, 545 A.2d 530 (1988). CT Page 5816
Pursuant to General Statutes § 8-2(a): "The zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes, including water-dependent uses as defined in section 22a-93, and the height, size and location of advertising signs and billboards." In addition to delegating to the zoning commissions of each town or city in Connecticut the power to make regulations, General Statutes § 8-2 also includes an extensive array of different considerations, details, and mandates that a zoning authority must take into account in enacting certain types of regulations.
The minutes from the commission's April 17, 2001 meeting reflect that when the commission adopted its resolution limiting the number of dogs to four that may be kept in a rural residential zone as an accessory use, "[i]t was decided that any household in excess of 4 dogs would be in violation." (Supplemental ROR, Item 1, p. 5.) In addition, the chairman informed the commission that "Attorney Howard [the town attorney] told me that I should be prepared to enforce all properties over the limit that you set in which case four seems to be a manageable number leaving only five properties in violation." (Supplemental ROR, Item 2, p. 5.) The other members of the commission agreed that the ZEO would have to be prepared to prosecute anyone in violation of the commission's resolution. (Supplemental ROR, Item 2, p. 7.) One commissioner even commented that the commission was setting a standard. (Supplemental ROR, Item 2, p. 16.) Other commissioners expressed concern about whether the commission was clarifying or interpreting the existing zoning regulations, or if it was enacting a new regulation or guideline by limiting the number of dogs to four that are permitted as an accessory use in the rural residential district. (Supplemental ROR, Item 2, pp. 16-17.)
This court acknowledges that a commission is entitled to great discretion when it enacts or amends a town's zoning regulations because it is acting in a legislative capacity. See Harris v. Zoning Commission, supra, 259 Conn. 416-17. Here, the record demonstrates that the commission intended for its April 17, 2001 resolution to be enforceable by the ZEO against anyone who owns CT Page 5817 more than four pet dogs. The applicability of this resolution adopted by the commission on April 17, 2001 to all residents in the town's rural residential district who own pet dogs is of great concern. The fact that only five property owners are currently in violation of the resolution or that the ZEO may not yet have chosen to enforce it against anyone but Graff is irrelevant because its scope has far-reaching implications for many individuals and their pet dogs in Killingworth. (Supplemental ROR, Item 2, pp. 7, 9.) By setting a new, enforceable limit on the number of dogs each residence may own without violating the zoning regulations where there was no limit previously, the Killingworth zoning commission enacted a substantive change to the town's zoning regulations.
General Statutes § 8-3(a) provides in pertinent part: "Such zoning commission shall provide for the manner in which regulations under section 8-2 or 8-2j and the boundaries of zoning districts shall be respectively established or changed. No such regulation or boundary shall become effective or he established or changed until after a public hearing in relation thereto, held by a majority of the members of the zoning commission or a committee thereof appointed for that purpose consisting of at least five members at which parties in interest and citizens shall have an opportunity to be heard. Notice of the time and place of such hearing shall be published in the form of a legal advertisement appearing in a newspaper having a substantial circulation in such municipality at least twice at intervals of not less than two days, the first not more than fifteen days nor less than ten days, and the last not less than two days, before such hearing, and a copy of such proposed regulation or boundary shall be filed in the office of the town, city or borough clerk, as the case may be, in such municipality, but, in the case of a district, in the offices of both the district clerk and the town clerk of the town in which such district is located, for public inspection at least ten days before such hearing, and may be published in full in such paper. In addition to such notice, such zoning commission may, by regulation, provide for notice by mail to persons who are owners of land which is included in or adjacent to the land which is the subject of the hearing . . ."
Public Act 03-177 amended General Statutes § 8-3(a) and is applicable to applications filed after October 1, 2003.
When a commission amends or creates regulations, pursuant to General Statutes § 8-3(a), the public is entitled to notice and the opportunity to be heard at a public hearing. The commission's substantive change in the accessory use regulations, which was CT Page 5818 essentially an amendment, was made at a regular meeting of the commission. Regular meetings of the commission are not public hearings. For this reason, residents of the town had no notice or opportunity to be heard prior to the commission's adoption of this new rule limiting the number of dogs that a resident may own without violating the regulations.
Furthermore, as the commission failed to publish a legal notice of the change created by its resolution as required by General Statutes § 8-3, residents of the town still do not have notice of this important change in dog ownership in Killingworth. This poses an additional notice problem, which would likely affect the ability of the town to enforce it against residents. For this reason, the court believes that it would be fundamentally unfair to the residents of Killingworth.
"Compliance with prescribed notice requirements is a prerequisite to a valid action by a Zoning [authority] and failure to give proper notice constitutes a jurisdictional defect . . . The fundamental reason for the requirement of notice is to advise all affected parties of their opportunity to be heard and to be apprised of the relief sought." (Citations omitted; internal quotation marks omitted.) Wright v. Zoning Board of Appeals, 174 Conn. 488, 491, 391 A.2d 146 (1978). "Without proper public notice, zoning authority actions are null and void." Cocivi v. Plan Zoning Commission, 20 Conn. App. 705, 707, 570 A.2d 226, cert. denied, 214 Conn. 808, 573 A.2d 319 (1990). Thus, the court finds that the board's decision to uphold the ZEO's order was ultra vires because the ZEO's order was issued in reliance upon the commission's resolution that was adopted without adherence to the notice and public hearing requirements of General Statutes § 8-3(a).
CONCLUSION
For the foregoing reasons, the court sustains Graff's appeal.
John C.Driscoll Judge of the Superior Court