SOUTH LYME PROPERTY OWNERS : NO.: 300CV97 (EBB)

ASSOCIATION, INC., CHARLES AND :

VICTORIA PARSONS AND JOAN BYER :

:

V. :

:

TOWN OF OLD LYME, TOWN OF OLD :

LYME ZONING COMMISSION, ERIC :

FRIES, GEORGE JAMES, JANE :

MARSH, THOMAS RISOM, WALTER :

SEIFERT, SHARON COLVIN AND :

MARILYN OZOLS : MAY 11, 2000

1. OVERVIEW

The plaintiffs, an association of several hundred Old Lyme property owners and two individually named property owners, commenced this action in response to efforts of the Town of Old Lyme (hereinafter "Town") and certain Town officials to prohibit the use of hundreds of residential properties during several months of the year. The complaint, filed in the Connecticut Superior Court and later removed by the defendants to the United States District Court, seeks declaratory and injunctive relief regarding certain zoning regulations of the Town and actions by Town officials that violate both state and federal law. The complaint also seeks damages pursuant to 42 U.S.C. § 1983 for the violation of the plaintiffs' constitutional rights.

The action filed in the state court included a request for a temporary restraining order to halt the Town’s Zoning Enforcement Officer (hereinafter "ZEO"), Marilyn Ozols, from issuing preliminary and final "seasonal use only" determinations during the pendancy of this proceeding. After the matter was removed to the Federal District Court, this Court scheduled a hearing on that request.

Although the plaintiffs’ complaint seeks relief on a variety of grounds including a claim that the regulations adopted during 1995 fail to comport with requirements of substantive due process, the plaintiffs limited the scope of their request for a preliminary injunction to their claim that procedures implemented by the Town for applying the "seasonal" zoning regulations violate fundamental requirements of due process of law. Based on the evidence offered in support of that claim, the plaintiffs seek an order restraining the Town from issuing further systematic seasonal-use-only determinations until the merits of the case are heard and decided.

 

 

 

 

2. STANDARD OF REVIEW

A party seeking a preliminary injunction generally must show (i) that it is likely to suffer irreparable harm if temporary injunctive relief is not granted, and (ii) (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of the hardships tipping decidedly in its favor. Polymer Tech. Corp. v. Mimran, 37 F.3d 74, 77-78 (2d Cir.1994).

The Second Circuit Court of Appeals has offered differing views of the standard to be applied when a movant seeks to enjoin governmental action. In Time Warner Cable of New York v. Bloomberg L.P., 118 F. 3^rd 917 (2d. Cir. 1997), the Second Circuit noted that it had sometimes required the plaintiff to demonstrate the likelihood of success (prong ii (a), above) when an injunction seeks to stay governmental action. Id. at 923, citing, e.g., Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989). The court further noted, however, that a lesser standard may also be appropriate to enjoin governmental action. Id., citing, e.g., Haitain Centers Council, Inc. v. McNary, 969 F. 2d 1326, 1339 (2d Cir. 1992). After describing the two different standards, the court ruled that the lesser standard may be applied as long as the trial court considers the public interests on both sides of the controversy, and balances the threatened irreparable injury against the potential harm to the public interest that may result from the issuance of the temporary injunction if the plaintiff’s claim is ultimately unsuccessful. Id., at 923 and 929-930.

3. ARGUMENT
1. Statement of Facts

Old Lyme, like many shoreline towns in Connecticut, contains relatively dense communities of homes along the beach. Most of the homes and lots pre-existed the adoption of zoning regulations in Old Lyme. For decades, the Town has held the steadfast view that homes located on such pre-existing lots were not permitted to be used during winter months unless the property owner actually used the home during winter months prior to the adoption of zoning regulations in Old Lyme. The Town has taken that position despite the fact that the residential use of a single-family dwelling has been expressly permitted by the Old Lyme zoning regulations regardless of the time of year the use occurs.

In accordance with the mistaken belief that "off-season" use of residential property was prohibited by the zoning regulations, zoning enforcement actions were commenced against a number of property owners during the late 1980's and early 1990's to halt use of residential dwellings between the dates of November 15 and April 1. See, e.g., Arcata v. Zoning Board of Appeals of Town of Old Lyme, 1993 WL 394500 (Hurley, J., Sept. 21, 1993); Habicht v. Zoning Board of Appeals of Town of Old Lyme, 1993 WL 284791 (Austin, J., July 22, 1993); and French v. Zoning Board of Appeals of Town of Old Lyme, 1993 WL 284789 (Austin, J., July 22, 1993)(decisions attached); See also, Transcript of April 12 hearing (hereinafter Tr. 4/12) at 45. In each of those cases, the Connecticut Superior Court ruled, in accordance with the provisions of the zoning regulations and fundamental principles of zoning law, that the Old Lyme Zoning regulations did not prohibit residential use of residential property during any time of the year. See, Joint Exhibit 1, section A.

On January 1, 1992, prior to the issuance of the above-referenced decisions, the provisions of the Old Lyme regulations regarding nonconforming uses were amended to provide:

8.7 nonconformity - use: the following provisions and limitations shall apply to a nonconforming use of land, building or other structure:

8.7.1 enlargement: no nonconforming use of land shall be enlarged, extended or altered, and no building or other structure or part thereof devoted to a nonconforming use shall be enlarged, extended, reconstructed or structurally altered, except where the result of such changes is to reduce or a limit the nonconformity. This prohibition specifically includes the occupancy of a seasonal use beyond the period of April 1 to November 15 and winterization, refurbishment or remodeling of a seasonal dwelling to accommodate other than seasonal use.

(emphasis added).

As discussed more particularly below, a "nonconforming use" is one that is prohibited by the zoning regulations but that can be lawfully continued if the use had been in existence prior to the time when the regulations prohibiting the use were first adopted. Although the January 1, 1992 amendments to the Old Lyme regulation on nonconforming uses purported to treat year-round residential use of residentially-zoned property as a "nonconforming use," no provision of the Old Lyme zoning regulations delineating the uses permitted or prohibited in residential zoning placed any restrictions against year-round use of residential dwellings. In fact, regulations in existence until at least 1995 provided that residential use of residential properties is expressly permitted regardless of the time of year. See, Joint Exhibit 1, Sections A and B, Article II (describing residential use of property, without regard to season, as a fully permitted use); Tr. (4/12) 54.

During 1995, the Planning and Zoning Commission adopted a number of amendments to the regulations in an effort to place additional restrictions on the use of residential properties. Although a member of the Planning and Zoning Commission suggested that the 1995 amendments merely clarified restrictions already imposed by the zoning regulations, it is apparent that substantial new restrictions were, in fact, imposed. Tr. (4/12) 55, 58. As a result of the 1995 amendments, the zoning regulations, for the first time in Old Lyme, amended the schedule of permitted uses in residential zones to provide that year-round residential use of property in a residential zone is permitted only if "additional standards" imposed in Paragraph 21.2 are satisfied. Joint Exhibit 1, attachment C.

The standards of the newly adopted Paragraph 21 include an outright prohibition of the year-round use of any residentially-zoned dwelling located on a nonconforming lot in the R-10 zone. Id. The prohibition applies even if the property has year-round water service and a septic system that fully complies with the public health code. Id; Tr. (4/12) 68. The regulation prohibits the year-round use of nonconforming lots in the R-10 zone even if the property is serviced by a sewer system or other off-site septage treatment facility.

The 1995 regulations include provisions enabling the ZEO, in her discretion, to issue determinations that residentially zoned property can be used only on a seasonal basis. Joint Exhibit 1, Section C, Section 21.2.5 (b). The ZEO, in conjunction with the Planning and Zoning Commission, devised a procedure for applying the "seasonal use dwelling" designation to existing properties. The procedure results in the issuance of both preliminary and final seasonal use determinations based entirely on a review of public records of the Town of Old Lyme. Tr. (4/12) at 154. If, upon this paper review, a property is deemed seasonal, the property cannot be used for any purpose during off-season months unless a permit to "convert" is issued pursuant to Section 21.2.5 of the regulations. Joint Exhibit 1, attachment C. Section 21.25 prohibits the conversion of any lot lacking 10,000 square feet of area. Id.

The ZEO acknowledged that the question of whether a property owner is entitled to year-round use of an undersized lot hinges upon whether the property was actually used during off-season months prior to January 1, 1992. Tr. (4/12) 156-157. The ZEO has also acknowledged that no public official of the Town is charged with the duty of inspecting and recording whether properties are actually used during "off-season" months. Tr. (4/12) 154. Despite that fact, the ZEO relies on the records of municipal officials to reach her determination.

The public records upon which the ZEO relies do not, and cannot answer the question of whether residential properties were, in fact, utilized during off-season months at any time prior to 1992. The records upon which the ZEO primarily relies are the assessor’s records and "health department determinations" indicated by a stamp affixed to those same assessor’s records. Tr. (4/12) 155; Plaintiffs’ exhibit 16 and exhibits 7-11. Neither of those categories of records provides any probative evidence upon which a seasonal determination could reasonably be based.

The assessor’s records relied upon by the ZEO are "field cards" that show a drawing of the dimensions of the lot and building and that list improvements that are relevant to assessing real property taxes. Plaintiffs’ Exhibits 7-11; Tr. (4/12) 114. The Assessor, Walter Kent, testified that unless new construction requiring a building permit occurs, the information contained on the Assessor’s card would be derived from, at most, a single inspection of the particular property prior to March, 1990. Tr. (4/12) 115; 119-120. He further testified that many of the properties were not inspected for the 1990 revaluation and would, therefore, contain information gathered during a single inspection that occurred no later than 1980. Tr. (4/12) 113, 115.

Mr. Kent testified that the field card information was gathered solely for the purposes of performing real estate assessments for property tax purposes. Tr. (4/12) 122. He testified that the use of property during off-season months bears no relationship to the duties of performing real estate assessment for property tax purposes. Id. Furthermore, the Assessor does not, and had no reason to perform inspections to determine if properties were, in fact, used for residential purposes during off-season months. Accordingly, the information on the cards was never meant to provide, and does not provide sufficient information upon which to base a determination as to a property’s actual use during off-season months at any time prior to 1992.

The second primary basis for a seasonal finding is "health department determinations." These "determinations" are actually stamps affixed to certain assessor’s street cards at the direction of the former health director, Frank Kneen, prior to 1990. Plaintiffs’ exhibits 7-11; Tr. (4/12) 133-134. Prior to her decision to rely on such "determinations," the ZEO made no inquiry regarding the criteria utilized for fixing such a stamp to an assessor’s card. Tr. (4/12) 156. The ZEO did not know and did not care whether the "seasonal use only" stamp was affixed to signify whether the property was, in fact, used during winter months. Id. In fact, she testified that "purpose of the [health department’s] stamp isn’t relative to my determination." Id. An inquiry would have revealed that the stamp could not be relied upon to demonstrate that the property was not, in fact, actually used during off-season months.

According to the current sanitarian for the Town, Ron Rose, Mr. Kneen informed him that the stamp was affixed to those properties that, in Mr. Kneen’s opinion, lacked sufficient size or appropriate soil conditions to accommodate a code-compliant underground septic system. Tr. (4/12) 135. Mr. Rose has no reason to believe that the stamp was affixed to denote properties that were not actually used during off-season months. Tr. (4/12) 135 and 139.

Marilyn Swaney, a former assistant to Mr. Kneen, affixed the stamps to the assessor’s cards at Mr. Kneen’s direction. Transcript of April 13, 2000 hearing (hereinafter Tr. (4/13)) at 127. She was not certain what criteria were used by Mr. Kneen to direct her to affix the stamp. Tr. (4/13) 135. She testified, as did Mr. Rose, that the purpose of the stamp was to indicate the properties that Mr. Kneen believed would not accommodate code compliant septic systems. Tr. (4/13) at 129. She testified that all of the designations, probably more than 1000, were added to the cards during 1988 and 1989. She testified that Mr. Kneen performed some inspections of property but was uncertain whether the inspections were of septic systems or whether it was to determine if the properties were actually occupied during off-season months. Tr. (4/13) 127-130. Since Mr. Kneen’s "inspections" occurred during seasonal months, it is apparent that the inspections were to evaluate the adequacy of septic systems rather than to determine if actual off-season use occurred. Tr. (4/13) 132. She testified that Mr. Kneen would direct her to place the "seasonal use only" stamps on properties that were, in fact, utilized during off-season months if Mr. Kneen believed that the property was too small to contain a code compliant septic system. Tr. (4/13) at 142. Although the criteria and motivation for the "seasonal use only" stamp by the health department is, at best, murky, the stamp is based on information available prior to 1990 and could not serve to establish the properties had not been used during winter months during 1990 and 1991.

In addition to making the determinations based on records that have little, if any, relevance to the question of whether a vested right exists, the Town adopted a policy that no testimonial evidence could be accepted either to prove a valid nonconforming use or to rebut the "findings" based on the ZEO’s public record review. 4/13 Tr. at 109. The ZEO and Zoning Board of Appeals only accepts documentary evidence such as utility bills, leases or written proof of oil deliveries, to rebut the seasonal findings that hinge on a few public records. Tr. (4/12) 150-151; 168.

By following a "no testimony" policy, the Town necessarily issues erroneous final determinations. For example, a final determination was issued that property known as 20 Swan Avenue was seasonal despite the fact that the property owner indicated to the ZEO that the property was used periodically during off-season months prior to January 1, 1992. Plaintiffs’ exhibit 14; Tr. (4/13) 143-146. Despite that testimony, and letters by numerous persons informing both the ZEO and the Zoning Board of Appeals that the property was so used, the ZEO, in accordance with the policy established by the Planning and Zoning Commission, refused to credit such evidence to establish the nonconforming use. Id. A final determination that the property was seasonal was issued and affirmed without any witness testifying that the property remained vacant during winter months prior to 1992. Tr. (4/12) at 175-177. Tr. (4/12) 168-169.

As a result of their flawed procedures, the ZEO and the Zoning Board of Appeals erroneously determined that property known as 9 Avenue A was seasonal. They rejected a claim by the property owner, Frank Zenobi, supported by sworn affidavits of several persons and his testimony that the property had been used during winter months. Defendants’ exhibit S. Despite that testimony and evidence, the ZEO issued a final decision that the property is "seasonal" and that decision was affirmed by the Zoning Board of Appeals in accordance with the policy of the Planning and Zoning Commission that testimony cannot be accepted to establish a nonconforming use. Tr. (4/13) 111-113. The erroneous decision that the property was seasonal was not reversed by the ZEO until the property owner was able to locate a single document showing utilization of the property during winter months in 1988. Defendants’ exhibit S.

The ZEO intends to issue as many as several hundred determinations over the course of the next few months, on an alphabetical street by street basis. Tr. (4/13) 36. The ZEO could not articulate any adverse consequences to the Town or the public that would result from a temporary order to refrain from issuing further systematic determinations. Tr. (4/13) 49-56. Id. The proposed order would not enable or extend any new year- round use of residential dwellings. Any person wishing to "convert" a dwelling not previously used during off-season months would be required to apply to convert. Joint Exhibit 1, Section C, 21.2.5. Any unlawful conversion or use can be halted at any time notwithstanding the issuance of a temporary order. A delay in continuing the systematic issuance of seasonal determinations does not prejudice the Town in any way and will not undermine any of the concerns offered by the Town as justification for the seasonal use regulations.

2. Irreparable Harm

The Second Circuit Court of Appeals has clearly and unequivocally held that the alleged deprivation of a constitutional right constitutes irreparable harm. Mitchell v. Cuomo, 748 F. 2d 804, 806 (2d Cir. 1984); Jolly v. Coughlin, 76 F. 3d 468, 482 (2d Cir. 1996); Abdul Wali v. Coughlin, 754 F.2d 1015, 1026 (2d Cir. 1985); Deeper Life Christian Fellowship, Inc. v. Board of Education, 852 F.2d 676, 679 (2d Cir. 1988). Although two other circuit courts of appeal have held that a court must analyze whether the alleged constitutional violation constitutes irreparable harm, the Second Circuit rule affords the plaintiff temporary relief if it demonstrates likelihood of success on the merits and alleges that a constitutional violation will occur if that relief is not granted. Id., Scelsa v. City Univ. of New York, 806 F.Supp. 1126, 1135, 1146 (S.D.N.Y.1992) (holding that any constitutional violation constitutes per se irreparable harm and granted a preliminary injunction barring employment discrimination against Italian Americans), but see, Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir.), cert. denied, 493 U.S. 848, 110 S.Ct. 144, 107 L.Ed.2d 102 (1989)(the mere assertion of a First Amendment right does not automatically require a finding of irreparable harm; rather, the movant must show a "chilling" effect on protected activity); Public Serv. Co. of N.H. v. Town of W. Newbury, 835 F.2d 380, 382 (1st Cir.1987)(not all allegations of constitutional violations are sufficiently important to be irremediable by subsequent relief).

Several district courts within the Second Circuit have properly applied the rule set forth in Mitchell v. Cuomo and Jolly v. Coughlin, and granted relief upon a showing of likelihood of success coupled with allegations that constitutional rights will be violated absent a temporary order. Streetwatch v. National Railroad Passenger Corp., 875 F. Supp. 1055 (S.D.N.Y. 1995) (the court issued temporary restraining order issued based on allegations of due process violations related to regulations adopted and implemented by Amtrak); Aregano v. Costello, 1997 WL 567962 (N.D.N.Y. 1997) (plaintiffs established irreparable harm based on the allegation of denial of right of access to courts but failed to demonstrate likelihood of success on the merits); New York State National Organization for Women v. Cuomo, 182 F.R.D. 30 (S.D.N.Y. 1998) (court granted injunction based on proof that procedures for processing complaints were arbitrary and failed to satisfy basic elements of procedural due process); Williams v. Salerno, 792 F.2d 323 (2d Cir. 1986)(court affirmed district court’s ruling that an allegation that constitutional right to vote may be impaired warranted a temporary injunction).

Notwithstanding the holdings of Mitchell v. Cuomo and Jolly v. Coughlin, some district courts within the Second Circuit have held that the court must analyze whether the particular constitutional violation warrants temporary relief. Air Transport International Limited Liability Company v. Aerolease Financial Group, Inc., 993 F. Supp 118 (D.Conn. 1998)(alleged due process violation associated with the replevin of a single airplane engine is not "a systemic or ongoing constitutional violation that could not be remedied with a monetary award, but rather a single claim . . . under Connecticut law") ; Pinckney v. Board of Education of Westbury, 920 F. Supp. 393 (E.D.N.Y. 1996)(claim for reinstatement of wages is, at its core, a monetary damages claim that does not warrant temporary injunctive relief despite claim of due process violation).

In this case, the Town implemented arbitrary procedures that have the dual effect of depriving individuals of vested property rights, and of subjecting property owners to a patently unconstitutional quasi-judicial process. Since these due process violations are significant, systematic and ongoing, temporary relief should be granted under either analysis.

1. Due Process of Law

The Fourteenth Amendment provides, in relevant part: "[n]or shall any State deprive any person of life, liberty, or property without due process of law." A constitutionally cognizable property interest is a prerequisite to the attachment of constitutional procedural and substantive due process rights. Board of Regents v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 2708-09, 33 L.Ed.2d 548 (1972).

The property rights at stake in this case are, among others, the right to maintain a nonconforming use. "A nonconformity is usually defined as a then legally permissible use or structure 'in existence' on the date regulations are adopted, which regulations would make such a use illegal if it were begun thereafter." Tondro, Connecticut Land Use Regulation (2d Ed. 1992), 149-150, citing Helicopter Associates v. City of Stamford, 201 Conn. 700, 519 A. 2d 49 (1986); Melody v. Zoning Board of Appeals of Glastonbury, 158 Conn. 516, 519, 264 A.2d 572 (1969). "A lawfully established nonconforming use is a vested right ... entitled to constitutional protection" Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483-84, 408 A.2d 243 (1979); see also Helbig v. Zoning Commission, supra, 185 Conn. at 306, 440 A.2d 940 (1981); James J.F. Loughlin Agency, Inc. v. West Hartford, 166 Conn. 305, 311, 348 A.2d 675 (1974); Lampasona v. Planning & Zoning Commission, 6 Conn.App. 237, 239, 504 A.2d 554 (1986)

For a particular use to be considered "nonconforming," the use itself must first be prohibited by the zoning regulations. The Old Lyme zoning regulations have always considered the residential use of residentially zoned property to be permitted as of right in the R-10 zone. The only potential limitation on the permissibility of that use in the zone is found in the 1995 amendments to the zoning regulations. Although those amendments continue to delineate year round residential use as "P" (a permitted as of right use under the schedule of uses), the description of that use includes a provision that the use is only permitted subject to the conditions contained in Paragraph 21. Those regulation amendments are the first zoning regulations in Old Lyme that would suggest to any property owner that year round use of a residential dwelling is not a permitted use of a residentially zoned property.

The Town has long confused the important distinction between a nonconforming use and a nonconformity with respect to bulk requirements. The distinction between nonconformities as to bulk requirements and nonconformities as to use of land was discussed by the Connecticut Supreme Court in Petruzzi v. Zoning Commission of Oxford, 176 Conn. 479, 408 A. 2d 243 (1979). In that case, a church was constructed on a lot of just over 10,000 square feet in size. Zoning regulations were subsequently adopted that imposed a building set back requirement that the building did not meet. Later zoning regulations also imposed area and frontage requirements that the lot and building did not meet. As a result, both the lot and building were nonconforming with respect to bulk requirements of the zoning regulations. However, the use of the property as a church was expressly permitted in that zone by the zoning regulations.

During 1976, the building was sold and the new owners applied to use the building as a single-family residence, another use expressly permitted in that zone. The town denied the application, contending that it sought to convert one nonconforming use to another. The trial court agreed on appeal. The Supreme Court reversed, holding that the applicant did not propose to establish a nonconforming use, but instead, sought to use a nonconforming building and lot in accordance with a permitted use under the zoning regulations. The court noted:

[b]ecause a nonconforming lot and building have a vested right in continued existence, a purchaser who seeks to use such lot and building for a permitted use cannot be said to be seeking relief from hardship brought upon himself by virtue of his purchase. His right to use the lot and building for a permitted use is protected by law. Schultz v. Zoning Board of Appeals, 144 Conn. 332, 130 A.2d 789 (1957).

The Court’s decision recognized that the use of the building did not alter or extend the nonconformity of the lot size or the building size and location.

The Connecticut Appellate Court applied the same principle in the context of the use of a residential building during so-called "off-season" months in the case of Seaside v. Zoning Board of Appeals of the Town of Fairfield, 14 Conn. App. 638, 542 A. 2d 746 (1988). In that case, the ZEO issued a cease and desist order to halt the use of a residential property during off-season months. The residential dwelling had been used for residential purposes prior to the adoption of zoning but was nonconforming due to lot size and setback requirements. The Fairfield zoning regulations permitted residential use of residential properties without regard to season.

The Appellate Court, citing the analysis of Petruzzi, noted that no nonconformity existed with respect to the use of the property. Since the residential use was permitted by the zoning regulations, the provisions regarding nonconforming uses did not apply and the Town had no basis to limit year round use of the nonconforming building and lot. Specifically, the Court held:

As in Petruzzi, the nonconforming building here was not changed in any way; only the use of the building has been altered from one permitted use to another permitted use. See Singh Sukthankar v. Hearing Board of Radnor Township, 2 Pa.Commw. 489, 280 A.2d 467 (1971), cited with approval in Petruzzi v. Zoning Board of Appeals, supra, 176 Conn. at 481, 408 A.2d 243. Under these circumstances, we conclude that Petruzzi controls, and that § 2.5.3 of the Fairfield zoning regulations does not prohibit a change from seasonal to year-round use of the plaintiff's houses.

Those cases holding that a change from the seasonal use of a structure to its year-round use is prohibited by applicable local zoning regulations; see Cummings v. Tripp, 204 Conn. 67, 527 A.2d 230 (1987); Weyls v. Zoning Board of Appeals, 161 Conn. 516, 290 A.2d 350 (1971); Beerwort v. Zoning Board of Appeals, 144 Conn. 731, 137 A.2d 756 (1958); are not inconsistent with the decision we reach in this case. Those cases are distinguishable from the present case because each involved a nonconforming use of land, while this case involves a permitted use of land with respect to a building or lot having a condition of nonconformity. Petruzzi v. Zoning Board of Appeals, supra, recognizes that this distinction is genuine. In the present case, it is critical. See Id., 176 Conn. at 481 n. 2, 408 A.2d 243; 1 R. Anderson, American Law of Zoning (3d Ed.) § 6.01, p. 448.

Seaside, 14 Conn. App. 638, at 641.

The same principle has been applied by the Connecticut Superior Court to hold that the Old Lyme ZEO lacked the legal authority to restrict the use of residentially zoned properties during "off-season" months. See, e.g., Arcata v. Zoning Board of Appeals of Town of Old Lyme, 1993 WL 394500 (Hurley, J., Sept. 21, 1993); Habicht v. Zoning Board of Appeals of Town of Old Lyme, 1993 WL 284791 (Austin, J., July 22, 1993); and French v. Zoning Board of Appeals of Town of Old Lyme, 1993 WL 284789 (Austin, J., July 22, 1993)(copies attached). Since the zoning regulations expressly permitted residential use of property, the use of the property at any time of the year was expressly permitted in the zone and could not be considered a "nonconforming use."

The January 1, 1992 amendments to the nonconforming use provisions of the Old Lyme zoning regulations did not change that analysis in any respect. For the provisions of those paragraphs regarding "nonconforming use" to apply, the use must be prohibited by the zoning regulations. Since the 1992 zoning regulations expressly permitted residential use of a residential property regardless of season, the use does not qualify as "nonconforming" and is not subject to subsections 8-7 and 8-8. Joint Exhibit 1, attachment B.

In the case of Menillo v. Zoning Board of Appeals of Trumbull, 1991 WL 194276 (Conn. Super. 1991)(copy attached), the Superior Court considered the scenario in which year-round residential use was expressly permitted by the zoning regulations but zoning provisions regarding nonconforming uses suggested, like the 1992 Old Lyme regulations, that year-round use was prohibited. In that case, the Trumbull ZEO issued a cease and desist order to discontinue the off-season use of a dwelling located on a nonconforming lot. The Superior Court, in a cogent analysis of the distinction between nonconformities with respect to bulk and nonconformities with respect to use, determined that the use of the property was permitted in the zone. After noting that a goal of zoning regulations is to eliminate nonconforming uses, the court held that "this stated goal would not be served if the ZBA were to prevail in the present case, because the area in question is and was expressly zoned for residential purposes. Phasing out residential use in a residential zone would be antithetical to the purpose and goal of zoning." Accordingly, despite the existence of provisions regarding nonconforming use which purported to limit non-seasonal use, the court correctly concluded that the use was permitted and not subject to such regulations regarding nonconformities. For that same reason, the 1992 amendments to the Old Lyme regulations did not in any way prohibit residential use in a residential zone at any time of the year.

The amendments adopted in 1995 present the first instance in which the regulations governing uses allowed in the residential zones in Old Lyme placed a distinction between seasonal and year-round use. Those amendments suggest that year-round use remains as a permitted use. However, the text accompanying the schedule of uses provides that such a use is permitted in the zone only upon the satisfaction of additional conditions. That amendment constitutes the first moment in time when the year-round use of residential property could arguably be considered prohibited by the zoning regulations.

Since a protected property right to maintain a nonconforming use is at stake, the question is what process is due to protect that right. The determination of what process is due is not a fixed concept, but rather a flexible one that depends on the particular circumstances. Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990); Merchant v. State Ethics Com'n, 53 Conn.App. 808, 733 A 2d 287 (1999); citing Tedesco v. Stamford, 222 Conn. 233, 242 (1992). "[D]ue process . . . is not a technical conception with a fixed content unrelated to time, place and circumstances . . . . [D]ue process is flexible and calls for such procedural protections as the particular situation demands." Id.

The extent of the process due when there is the possible deprivation of a protected property interest by an administrative action is analyzed under Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In Matthews, the Supreme Court established a three-factor calculus or balancing test for determining what process is due. First, the court must balance the private interest affected by the agency action; second, it must assess the risk of erroneous deprivation of such interest through the present procedure and the probable value of an alternate procedure; and third, it must balance the government interest and administrative burdens that an alternate notice or procedure would impose. Id. at 335; see also Petrowski v. Norwich Free Academy, 199 Conn. 231, 235, 506 A.2d 139, appeal dismissed, 479 U.S. 802, 107 S.Ct. 42, 93 L.Ed.2d 5 (1986). Applying the Matthews test, there can be no doubt that the procedures adopted by the Town in implementing the 1995 seasonal regulations are unconstitutional.

Property owners in Old Lyme have a vested right to the year-round use of their residential homes if that use existed at the time the Old Lyme regulations adopted a regulation prohibiting that use in the zone. Furthermore, that vested right continues even during periods of nonuse unless the owner actually intends to abandon that nonconforming use. Conn. Gen. Stat. § 8-2.

Since the year-round residential use was purportedly first prohibited by regulations adopted during 1995, the regulations necessarily deprive owners of vested property rights by utilizing January 1, 1992 as the date that ended vesting of the right to use residential properties on a year-round basis. The procedures implemented by the Town necessarily infringe on vested private property rights of all persons who used their property during winter months after January 1, 1992 and before the 1995 regulations were adopted. Furthermore, even if the 1992 zoning regulations actually prohibited year-round residential use, the procedures utilized to evaluate claims of nonconforming use fail to satisfy minimal requirements of due process.

The critical question upon which the vested property right hinges is whether, as a matter of fact, persons used the property during off-season months at any time prior to January 1, 1992, and, if so, whether the property owner ever intentionally abandoned that use at a subsequent time. The procedure used by the Town utterly fails to address that factual question. The ZEO does not investigate whether the property was actually used during winter months by, for example, any inquiry to the property owner or neighboring property owners as to whether the property was actually used during off-season months prior to 1992. Rather than conduct such an investigation, the ZEO merely reviews public records that cannot under any circumstance provide relevant and probative evidence on the question.

For example, every preliminary and final determination of the ZEO was based in whole or in part upon a review of the assessor’s records. Those records reflect information gathered solely for the purpose of assessing values for property tax purposes. Whether property was actually lived in during winter months is entirely irrelevant to the assessment of real estate taxes. Furthermore, any information shown on the card was gathered from, at most, one single visit to the dwelling that occurred prior to 1990. Similarly, indications on assessor’s cards that property does not have a central heating system or year round water does not indicate whether property was actually used during winter months. The small homes at issue in this case could easily be heated with electric space heaters and/or wood stoves and could be supplied with bottled water.

The health department determinations are equally immaterial. The ZEO may not assume that the health department "determinations" are tantamount to a factual finding that properties were not used prior to 1992. Further, the ZEO, upon minimal inquiry, would have learned that all of the determinations were issued prior to 1990 and that they cannot establish that property was not used during winter months in 1990 and 1991. Furthermore, it is apparent from the testimony of Town officials that the health department purpose and criteria were not clear and that stamps were certainly placed on properties regardless of their actual use during off-season months.

The Town’s erroneous reliance on irrelevant records is compounded by its refusal to consider actual sworn testimony and affidavits that property was used during off-season months prior to 1992. That evidence may be the only evidence before the ZEO and Zoning Board of Appeals that actually relates to the question the existence of nonconforming use. As a result of that procedure, risk of erroneous property deprivation is profound.

Alternative procedures that are not unduly burdensome are available. Other municipalities have recognized that such information from landowners is essential to determining whether a vested nonconforming right exists. For example, the Town of Beacon Falls provides the following procedure for determining the existence and scope of nonconforming uses:

10.6 Registration of non-conforming use of land or structure:

Any non-conforming use of land or structures shall be registered in the office of the Planning and Zoning Commission within one (1) year after the adoption of the Zoning Regulations. Such registration shall include the identifications of the premises, a description of the nature and extent of the non-conforming use and, if necessary to description, a plot plan, drawn to scale, showing property lines, all structures and any other pertinent information, and an affidavit by the owner as to the date since which such nonconforming use has existed. Failure to so register shall place the burden of proof on the property owner that any alleged non-conforming use of land or structure legally existed at the time this ordinance or any amendment thereto became effective."

See, O & G Industries, Inc. v. Planning and Zoning Com'n of Town of Beacon Falls, 655 A.2d 1121, 232 Conn. 419, fn 4 (1995)

Under this system, property owners register their nonconforming use and that registration can only be challenged if the Town has actual evidence that the registration was in error.

A registration system similar to that implemented by Beacon Falls would enable identification of nonconforming uses in Old Lyme without imposing undue burden on the Town. If, rather than registration, a determination process is necessary, the Town must be required to issue final determinations based on some actual evidence that property was not utilized during winter months prior to 1992. Furthermore, in issuing final determinations, the Town must consider testimonial evidence of previous off-season use. Such procedures are not unduly burdensome and are the minimum necessary to avoid arbitrary and erroneous seasonal determinations under the current unconstitutional procedures.

3. Likelihood of Success on the Merits

The likelihood of success on the merits on the procedural due process claim has been discussed above. The plaintiffs are also likely to succeed in demonstrating that the 1995 regulations are unlawful under both state and federal law.

1. The 1995 Amendments Violate Connecticut’s zoning enabling act

The plaintiffs are likely to succeed in establishing that the 1995 amendments violate the Connecticut zoning enabling statute that provides that zoning regulations "shall be uniform for each class or kind of buildings, structure or use of land throughout each district . . ." Conn. Gen. Stat. § 8-2. That uniformity requirement, among other things, requires that zoning regulations "preapprove" the uses permitted within each district without reference to particular owners. Tondro, Connecticut Land Use Regulation (2d Ed. 1992), at 73; see also, Biet Havurah, supra. For that reason, zoning regulations in Connecticut generally include a list of permitted uses in each zone. See, schedule of uses, Joint Exhibit 1.

In addition to establishing pre-approved, permitted as of right uses, the enabling act provides that the regulations:

. . . may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, whichever commission or board the regulations may, notwithstanding any special act to the contrary, designate, subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values.

Id. Unlike the permitted uses that are uniformly allowed on all properties within the zone, special permit uses are considered on a case-by case basis and are allowed only on those properties that satisfy conditions of the regulations. See, Barberino, Irwin, supra. Accordingly, a special permit use is a statutory exception to the uniformity rule of Conn. Gen. Stat. § 8-2. Tondro, supra at 74.

Under the plain language of Conn. Gen. Stat. § 8-2, any use that is permitted on a case-by-case basis subject to "standards set forth in the regulations" must be a special permit use. Such a use is subject to statutory requirements imposed by Conn. Gen. Stat. § 8-3, including the requirement that no special permit may be issued unless a public hearing is held on the request.

The 1995 amendments create a hybrid use that is not authorized by the enabling act. Those amendments provide that seasonal residential use is permitted as of right in the zone but allow year-round residential use only on a case-by-case basis upon showing that certain standards contained in the regulations are satisfied. For that reason, the year-round use should be listed as a special permit use and subject to statutory requirements such as a public hearing. Accordingly, the year-round classification conflicts with the zoning enabling act and is void. The schedule of uses in residential zones has, therefore, never been effectively amended to prohibit year-round use. Absent such a prohibition, the plaintiffs are likely to succeed in demonstrating their right to maintain year-round use of residentially zoned property.

2. The 1995 Amendments Constitute a Deprivation of Property without Compensation

In addition to the likelihood of the success on the merits of the procedural due process claim and per se violations of Connecticut zoning law, the plaintiffs are likely to succeed on their claim that the regulation effects a taking that that has not been compensated in violation of the Fifth Amendment of the United States Constitution. The Fifth Amendment provides that the government may not take private property for public use without providing just compensation. U.S. Const.Amend. §V. The takings clause of the Fifth Amendment is made applicable to the states through the Fourteenth Amendment. See, Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160 (1980); Pennsylvania Central Transportation Co. v. New York City, 438 U.S. 104, 122 (1978). Furthermore, Section 11 of Article First of the Connecticut Constitution provides: "The property of no person shall be taken for public use, without just compensation therefor." Cumberland Farms, Inc. v. Groton, 46 Conn.App. 514 n.2 (1997).

The prohibition against takings without compensation encompasses two distinct types of regulatory action that may result in a compensable taking. Yee v. City of Escondido, CA, 503 U.S. 519, 522-23, 530(1992); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982). First, regulations that compel a physical invasion of an owner’s property are takings, no matter how slight the invasion or how weighty the public interest advanced to support them. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992). Second, it is well established and the courts have consistently held that regulations denying "all economically beneficial or productive use of land" are compensable takings. Lucas, 505 U.S. at 1015. See, e.g., Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987); Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470 (1987). It is well established that a taking exists where the owner of real property is forced to "sacrifice all economically beneficial uses…that is, to leave his property economically idle." Lucas, 505 U.S. at 1019 (emphasis in original).

Temporary, but total, regulatory takings are also compensable under the Fifth Amendment. See First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 321 (1987). The court in First Lutheran stated that "’temporary’ takings which . . . deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation." Id. at 318. In the present case, plaintiffs are denied total use of their properties for five months each year. Therefore, the defendant’s actions constitute a temporary regulatory taking and the plaintiffs are entitled to just compensation for their loss.

When a regulation effects a taking, the government has a choice: it may abandon the regulation or it may continue to regulate and compensate those whose property it takes. First Lutheran, 482 U.S. at 329. The proper measure of just compensation for the temporary taking of private property under the Fifth Amendment is the fair market rental value of that property, which is the price that a willing lessee would pay to a willing lessor, for the period of the taking. See, e.g., First Lutheran, 482 U.S. at 315, (1987); Kimball Laundry Co. v. United States, 338 U.S. 1,7 (1949); Yuba Natural Resources, Inc. 904 F.2d 1577,1580-81 (Fed.Cir. 1990); Yaist v. United States, 17 Cl.Ct. 246, 257 (1989).

4. Conclusion

If not ordered to halt systematic seasonal determinations, countless individuals in Old Lyme will be subjected to an arbitrary and unconstitutional administrative proceeding that will result in the erroneous deprivation of vested property rights. A temporary order imposes no prejudice upon the Town and does not interfere with any of the interests that the 1995 seasonal zoning regulations purport to serve. The determination process is merely a scheme to identify those properties that were not used during off-season months prior to 1992. Halting that identification process during the pendency of this action does not permit any person to begin a year-round use of residential property or otherwise extend the use of a dwelling not already permitted by Connecticut law and the regulations. For those reasons, temporary relief should be granted.

Fed. Bar #ct09451

This is to certify that a copy of the foregoing was mailed, postage prepaid, on this 11th day of May 2000 to the following counsel of record:

Thomas R. Gerarde, Esq.

David S. Monastersky, Esq.

Howd & Ludorf

65 Wethersfield Avenue

Hartford, CT 06114

and

Mark K. Branse, Esq.

124 Hebron Avenue

Glastonbury, CT 06033