Heim v. ZONING BD. OF APPEALS OF TOWN OF NEW CANAAN
Heim v. ZONING BD. OF APPEALS OF TOWN OF NEW CANAAN
Opinion of the Court
Opinion
The present case arises from the decision of the named defendant, the zoning board of appeals (board) of the town of New Canaan (town), denying the appeal of the plaintiffs, Quentin Heim and Sandy Deasi, from the issuance of a zoning permit for the operation of a veterinary clinic to the defendant Gen Three, LLC, which had applied for the permit on behalf of the intervening defendants, veterinarians Andrew Rappaport and Daniel Hochman.
The record reveals the following undisputed facts and procedural history that are relevant to our resolution of this appeal. Gen Three, LLC, owns property at 73 Grove Street in New Canaan (property). The property, which consists of 0.57 acres of land and a two-story wood frame building, is located within a business zone that borders a residential neighborhood. Gen Three, LLC, submitted an application for a zoning permit to the New Canaan zoning enforcement officer to allow the operation of a veterinary clinic on the property. The application proposed no modification or expansion of any kind to the exterior of the existing building, and showed only interior improvements to ready the space for use as a veterinary clinic, such as the installation and placement of “cabinets, exam tables, etc.”
The zoning enforcement officer thereafter referred the application to the town planning and zoning commission (commission) because he concluded that the regulations “were unclear as to whether [the operation of a veterinary clinic] was allowed in the zone . . . .” The commission discussed the issue at length and on more than one occasion; and ultimately approved Gen Three, LLC’s application for the zoning permit,
The plaintiffs, who own property adjacent to Gen Three, LLC’s property, thereafter appealed to the board from the commission’s decision approving the application. The board held two public hearings on the appeal and thereafter denied the plaintiffs’ appeal by unanimous vote. The board did not agree formally on the reasons for its decision.
The plaintiffs thereafter appealed from the board’s decision to the Superior Court pursuant to General Statutes § 8-8 (b).
I
The plaintiffs first claim that the trial court improperly concluded that the town’s zoning regulation for the
In response, the defendants contend that the phrase “medical, dental or similar health-oriented” facilities in § 60-10.1 (B) of the town’s zoning regulations is ambiguous. The board relies on the dictionary definitions of the terms “similar,” “health” and “orient” to demonstrate the broad meaning of the words and their failure to discriminate between human beings and animals. The defendants also assert that the trial court properly considered the board’s determination in making its decision, and thus properly concluded that veterinary clinics fall within the purview of “medical, dental or similar health-oriented” offices within the meaning of § 60-10.1 (B) of the town’s zoning regulations. We agree with the defendants.
The following additional facts are necessary to our resolution of this claim. The proposed veterinary clinic called for limited hours of operation and examinations by appointment only. Animals would be seen on an outpatient basis only, and “after-hours emergencies were to be referred elsewhere.” Additionally, “no boarding or grooming services would be available. Two cages maintained inside the building would be available on those nonroutine occasions when an animal recovering from a medical procedure would require an overnight stay.” This information evidenced the intent of Rappa
We begin our analysis of the plaintiffs’ claim by first addressing the appropriate standard of review. “Under our well established standard of review, [w]e have recognized that [a]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . We have determined, therefore, that . . . deference ... to an agency’s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] ... a governmental agency’s time-tested interpretation . . . .” (Internal quotation marks omitted.) Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102, 108-109, 942 A.2d 396 (2008).
The zoning regulation at issue in the present case has not been subjected previously to judicial scrutiny. Moreover, the board did not indicate that it had applied a time-tested interpretation of the regulation. “Accordingly, we do not defer to the board’s construction and exercise plenary review in accordance with our well established rules of statutory construction.” Pasquariello v. Stop & Shop Cos., 281 Conn. 656, 663, 916 A.2d 803 (2007).
“Resolution of this issue requires us to review the relevant town regulations. Because the interpretation of the regulations presents a question of law, our review is plenary.”
We begin with the text of the regulation.
The key term in § 60-10.1 (B) of the regulations, “health-oriented,” is not defined or explained anywhere in the regulations. General Statutes § 1-1 (a) provides: “In the construction of statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.” “If a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.” (Internal quotation marks omitted.) Jim’s Auto Body v. Commissioner of Motor Vehicles, 285 Conn. 794, 808, 942 A.2d 305 (2008). The word “health” is defined with substantial similarity in a number of dictionaries, each embracing a broad interpretation of the term. “Health” is defined as the state or condition of an organism-, it is not limited to the health of a person or a human being. See, e.g., American Heritage Dictionary of the English Language (4th Ed. 2000) (health is “[t]he overall condition of an organism at a given time”); Webster’s Third New International Dictionary (health is “the condition of an organism or one of its parts in which it performs its vital functions normally or properly”); Black’s Law Dictionary (8th Ed. 2004) (health is “[t]he state of being sound or whole in body, mind or soul”). The common usage of “health-oriented” therefore appears to include the health of animals.
We always must construe a regulation in light of its purpose. See West Hartford Interfaith Coalition v.
Given the text, meaning and purpose of § 60-10.1 of the town’s zoning regulations, we conclude that the proposed veterinary clinic in the present case is a “similar health-oriented” office permitted in the business A zone.
II
The plaintiffs next claim that the trial court improperly severed the illegal conditions imposed by the permit, rather than sustaining their appeal in its entirety and reversing the board’s decision. The plaintiffs assert that the trial court failed to apply the appropriate test for determining whether illegal conditions are integral to, and thus not severable from, a zoning permit. More specifically, the plaintiffs contend that the trial court improperly failed to consider whether the commission would have granted the permit without the imposed conditions.
In response, the defendants claim that the trial court’s conclusion that the attached conditions were illegal does not mean automatically that the conditions are not severable from the permit. The defendants point out that the conditions were imposed on the permit in order to assuage the neighboring property owners’ concerns about noise and other potential problems related to a veterinary clinic, and they assert that if Gen Three, LLC, had contested the imposition of the conditions, it would have succeeded in obtaining the permit without the conditions. We agree with the plaintiffs.
The following additional facts and procedural history are necessary to our resolution of this claim. When the commission approved Gen Three, LLC’s application for
In examining the conditions attached to the permit, the trial court first looked to whether the commission had the authority to impose the conditions or whether the imposition of the conditions was an ultra vires act.
The trial court then considered whether the illegal conditions were severable from the permit. It concluded that the conditions were not “ ‘significant’ ” to the permit. In making its determination, the trial court considered a “principal purpose” of the conditions, which it stated was “to address the concerns of numerous homeowners from the adjacent residential zone relating to potential noise from barking dogs.” The trial court therefore concluded that the illegal conditions were not integral to the permit itself, and thus were severable from the permit.
We begin our analysis of this claim by setting forth the appropriate standard of review. A question regarding the severability of illegal conditions to a zoning permit is an issue of law; therefore, our review is plenary. See Parish of St. Andrew’s v. Zoning Board of Appeals, 155 Conn. 350, 353-55, 232 A.2d 916 (1967) (conducting plenary review of severability of invalid conditions to exception); see also Wood v. Zoning Board of Appeals, supra, 258 Conn. 699 (issue of law requires plenary review).
It is well established that “[w]here a condition, which was the chief factor in the granting of [a permit], is invalid, the [permit] must fall . . . .” (Internal quotation marks omitted.) Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 66, 574 A.2d 212 (1990). “[T]he dispositive consideration [for the court] is whether the condition was an ‘integral’ part of the zoning authority’s decision to grant the [permit] and, if so, the [permit], even if valid in all other respects, cannot be upheld.” Id.; see also Reid v. Zoning Board of Appeals, 235 Conn. 850, 858, 670 A.2d 1271 (1996) (“[W]e have held that if a zoning board would have refused to grant a variance without a particular condition, the condition is an inte
In Vaszauskas v. Zoning Board of Appeals, supra, 215 Conn. 62, this court concluded that the trial court improperly determined that certain invalid conditions could be severed from the zoning variance granted to the plaintiff landowner to allow him to enlarge an existing pond on his property and to excavate a second pond. Specifically, this court stated: “The [zoning board of appeals of the town of Southbury (board of appeals)], during the several hearings conducted on the plaintiffs application, was told by the plaintiff that his intended project would involve the removal of [more than] 300,000 cubic yards of soil from his property and that this would require between three and five truck loads per hour leaving the plaintiffs property, for a period of between two and three years. Under these circumstances, we conclude that the [board of appeals’] decision to grant the plaintiffs application was reached only after it had assured itself that this massive amount of soil would be removed from the plaintiffs property in accordance with the procedures required by the town’s applicable soil extraction regulations and, therefore, that the condition was an ‘integral’ part of its decision to grant the variance. We cannot assume that the board [of appeals] would have granted the variance if it had been aware that the condition it imposed, the receipt of a temporary extraction permit from the planning commission, could not be fulfilled." (Emphasis added.) Id., 67. Thus, the test enunciated in Vaszauskas requires that, when we encounter conditions improperly imposed by a zoning authority, we must determine whether the conditions are severable from an otherwise valid zoning permit by asking “if the removal of the condition would in no way destroy the value or effec
In the present case, given the undisputed illegality of the two conditions attached to the issued zoning permit, we must ask, in compliance with Vaszauskas, whether the commission would have refused to grant the permit without the conditions, or whether it would have made the same decision upholding the permit even if it had known that the conditions could not be satisfied. In light of the substantial neighborhood opposition to the veterinary clinic, principally based on noise concerns, we cannot conclude that the commission would have granted the permit if it had known that the conditions attached to it could not be satisfied. The wording of the commission’s approval reinforces our conclusion. The commission found the clinic to be an acceptable use only “¿/'certain conditions are met.” (Emphasis added.) We therefore conclude that the conditions, which are both invalid and integral to the permit, are not severable from the remainder of the permit. “Where a condition, which was the chief factor in the granting of [a permit], is invalid, the [permit] must fall . . . .” (Internal quotation marks omitted.) Vaszauskas v. Zoning Board of Appeals, supra, 215 Conn. 66. Accordingly, we conclude that the trial court improperly severed the conditions imposed on the permit and in turn improperly affirmed the issuance of the permit.
The judgment is reversed and the case is remanded to the trial court with direction to render judgment sustaining the plaintiffs’ appeal.
Gen Three, LLC, the applicant for the zoning permit, was a defendant in the plaintiffs appeal to the board, as well as in the appeal to the trial court, but did not participate in the appeal in this court. Accordingly, we refer to Rappaport, Hochman and the board jointly as the defendants.
The plaintiffs filed in the Appellate Court a petition for certification to appeal from the judgment of the trial court. General Statutes §§ 8-9 and 8-8 (o). Following the Appellate Court’s grant of certification, we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
The plaintiffs also claim that Gen Three, LLC’s application was procedurally defective. The plaintiffs did not raise this issue in their petition for certification to appeal filed with the Appellate Court, however, and the issue therefore is beyond the scope of this certified appeal. We decline to address it.
General Statutes § 8-8 (b) provides in relevant part: “Except as provided in subsections (c), (d) and (r) of this section and sections 7-147 and 7-1471, any person aggrieved by any decision of a board, including a decision to approve or deny a site plan pursuant to subsection (g) of section 8-3, may take an appeal to the superior court for the judicial district in which the municipality is located. . . .”
Any person who owns land “within a radius of one hundred feet of any portion of the land involved in the decision of the board” is aggrieved. General Statutes § 8-8 (a) (1). It is undisputed that both plaintiffs satisfy this statutory requirement for aggrievement.
Rappaport and Hochman operated a larger veterinary facility with boarding and grooming services in a nearby town.
The plaintiffs recognized in their brief, and ail parties conceded at oral argument, that the correct standard of review for this issue is plenary.
We acknowledge that General Statutes § l-2z requires a threshold determination whether the regulation is ambiguous. In both their brief and at oral argument, the plaintiffs claimed that the language of the zoning ordinance is clear and unambiguous and that “medical, dental and similar health-oriented” offices includes only those offices treating human health. We disagree. It is not at all clear to us that the regulation refers only to human health.
The New Canaan zoning regulations are permissive, rather than prohibitive, in nature. Specifically, the regulations provide: “No building or structure shall be erected, altered or used nor any land used for any other than a purpose or use permitted by these regulations in the zone in which such building or land is located.” New Canaan Zoning Regs., c. 60, art. I, § 60-1.4. Permissive zoning regulations require that “[t]he uses which are permitted in each type of zone are spelled out. Any use that is not permitted is automatically excluded.” Gordon v. Zoning Board, 145 Conn. 597, 604, 145 A.2d 746 (1958); see also R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 4.10, p. 64 (“a use is automatically excluded unless it is expressly permitted in the zoning regulations”).
In his concurrence, Justice Zarella correctly states that “[ujnder the doctrine of ejusdem generis, when a statute or ordinance sets forth a specific
The American Heritage Dictionary of the English Language (4th Ed. 2000) defines “medical” as “of, or relating to, the study or practice of medicine” and defines “medicine” as the “science of diagnosing, treating, or preventing disease and other damage to the body or mind.” Similarly, Webster’s Third New International Dictionary defines “medical” as “of, relating to, or concerned with physicians or with the practice of medicine often as distinguished from surgery,” and defines “medicine” as the “science and art dealing with the maintenance of health and the prevention, alleviation, or cure of disease . . . .”
The definition of “dental” also is not limited to humans. The American Heritage Dictionary of the English Language (4th Ed. 2000) defines “dental” as “of, or relating to, or for the teeth . . . .” Webster’s Third New International Dictionary defines “dental” almost identically as “of or relating to the teeth or dentistry . . . .”
Applying the doctrine of ejusdem generis to the term “similar health-oriented offices” in the regulation in the present case therefore does not preclude veterinary offices.
The plaintiffs rely on Tanner v. Board of Appeals, 61 Mass. App. 647, 813 N.E.2d 578 (2004), to assert that “medical, dental and similar health-oriented offices” include only those treating humans, not animals. See id., 650 (“we think reasonable [the board’s] interpretation of the word ‘hospital,’ as used in the by-law, to describe a facility for the medical treatment of
On appeal, none of the defendants claim that either condition was validly imposed.
We cannot help but point out the inherent irony of this situation: the plaintiffs are prevailing here by invalidating conditions originally imposed to address their concerns. In Floch v. Planning & Zoning Commission, 38 Conn. App. 171, 175 n.5, 659 A.2d 746 (1995), the Appellate Court faced a similar situation: “We note that this is an unusual situation, where an abutting landowner, and not the party to be bound, complains of the illegal conditions, especially where the illegal conditions were designed to benefit the complaining landowner. Nevertheless, we find that reversal of the commission’s decision is necessary to preserve the integrity of the zoning process.” We reach the same conclusion today.
Concurring Opinion
concurring. Although I concur in the majority’s decision to reverse the trial court’s judgment, I respectfully disagree with the majority’s conclusion in part I of its decision that the term “medical, dental or similar health-oriented offices” in chapter 60, article X, § 60-10.1 (B), of the New Canaan zoning regulations includes a veterinary facility. Under the doctrine of ejusdem generis, when a statute or ordinance sets forth a specific enumeration of things, “general terms will be construed to embrace things of the same general kind or character as those specifically enumerated.” (Internal quotation marks omitted.) Hackett v. J.L.G. Properties, LLC, 285 Conn. 498, 513-14, 940 A. 2d 769 (2008). Rather than looking at the definition of “health,” the majority should more appropriately look to the spe
The named defendant, the zoning board of appeals of the town of New Canaan, apparently recognized these differences because it granted the zoning permit application of the defendant Gen Three, LLC, subject to certain conditions, including (1) limited hours of operation, (2) that it would refer after-hour emergencies to other veterinary clinics, (3) that it would not have boarding or grooming facilities on site, and (4) that it would limit to two the number of facilities for animals that require overnight stays. The trial court appropriately determined that these conditions were illegal, a determination with which the majority agrees.
Concurring Opinion
concurring. Although I concur with the decision of the majority to reverse and direct judgment in this case, I agree generally with the rationale expressed in Justice Zarella’s concurrence, which I join. I write separately to emphasize that the key term in chapter 60, article X, § 60-10.1 (B), of the New Canaan zoning regulations
Chapter 60, article X, § 60-10.1 (B), of the New Canaan zoning regulations provides that “medical, dental or similar health-oriented offices shall be permitted” in a business A zone.
Reference
- Full Case Name
- Quentin Heim Et Al. v. Zoning Board of Appeals of the Town of New Canaan Et Al.
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- 6 cases
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- Published