text:
    THE CHILDREN’S SCHOOL, INC. v. ZONING BOARD OF APPEALS OF THE CITY OF STAMFORD
    (AC 20469)
    Lavery, C. J., and Schaller and Hennessy, Js.
    Argued February 22
    officially released November 6, 2001

      James V. Minor, assistant corporation counsel, with whom, on the brief, was Andrew McDonald, director of legal affairs, for the appellant (defendant).

      Charles E. Coates III, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, the zoning board of appeals of the city of Stamford (board), appeals from the judgment of the trial court reversing its denial of an application for a special exception submitted by the plaintiff, The Children’s School, Inc. On appeal, the board claims that the court improperly (1) concluded that the board lacks the discretion to deny a special exception for the expansion of a private school in a residential district and (2) substituted its judgment for that of the board in concluding that the board did not have substantial evidence on which to deny the special exception. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The plaintiff school is located on approximately one acre of land in a residential section of Stamford that is zoned for single-family residences with a minimum lot area of one acre. In 1997, the plaintiff acquired an approximately 1.3 acre adjoining parcel of land. The plaintiff applied to the board for a special exception to construct an addition to the existing school, to install a new septic system and to construct a new parking area and driveways. If granted, the size of the school building would have increased from 3572 square feet to 11,573 square feet and the enrollment of the school from 103 students to 160 students.

Public hearings were held on the application on four separate days. The board received 116 letters in opposition to the application, 85 letters in favor of the application and 281 signatures on a petition in opposition to the application. Forty-three families in the area opposed the proposed expansion of the school.

The board denied the plaintiff’s application on February 11, 1998. In its certificate, the board found “that the intensity of the proposed utilization would be in conflict with the orderly development and basic character of the residential neighborhood.”

On March 6, 1998, the plaintiff appealed from the board’s decision to the trial court. The plaintiff contended that the board failed to give proper reasons for denying the application and that the decision was not supported by reliable, probative and substantial evidence. The court reversed the board’s decision, concluding that the board possessed limited discretion to deny an application for a special permit and that the decision of the board was not supported by substantial evidence. Thereafter, the board brought this appeal. Additional facts will be provided as necessary.

I

Before reaching the merits of the appeal, we must first address the jurisdictional question of whether this appeal is properly before us from a final judgment. The court “remanded [the] case back to the board of appeals for proceedings consistent with [its] opinion,” further indicating that it had “not approved the application.” When counsel for the plaintiff sought clarification on the scope of the remand as to whether the hearing on remand would be “de novo” or “just for consideration of the question of conditions to its approval,” the court replied that “the underlying agency ... is required to do what the remand says. . . . That’s what they’re required to do. No more and no less.”

Because of the uncertainty surrounding the role of the board on remand, this court sua sponte ordered articulation concerning the trial court’s remand to the board to determine whether the decision constituted a final judgment. The trial court responded that “[o]n remand the [board] of the city of Stamford shall consider the application approved, and the remand ... is limited to considering only the conditions of approval.” The court also stated that “[e]ven though the remand to the [board] of the city of Stamford is limited to considering only the conditions of approval, the board’s decision may be based not only on the evidence submitted at the original hearing but additional evidence of events or conditions that have occurred since the original hearing.”

“The lack of final judgment is a threshold question that implicates the subject matter jurisdiction of this court. ... If there is no final judgment, we cannot reach the merits of the appeal.” (Citation omitted; internal quotation marks omitted.) Dacey v. Commission on Human Rights & Opportunities, 41 Conn. App. 1, 4, 673 A.2d 1177 (1996). Our Supreme Court has stated that “[wjithout dictating the outcome of the further administrative proceedings, the [trial] court may insist on further administrative evidentiary findings as a precondition to final judicial resolution of all the issues between the parties. . . . Such an order is not a final judgment.” (Internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Commissioner of Environmental Protection, 233 Conn. 486, 499, 659 A.2d 714 (1995).

Unlike the order before this court in Dacey in which we held that an order that “explicitly directs the [agency] to make further evidentiary findings that will lead to a final administrative resolution of the issues raised by the parties” is not a final judgment; Dacey v. Commission on Human Rights & Opportunities, supra, 41 Conn. App. 7; the order in the present case specified that the decision “may be based . . . on . . . additional evidence of events or conditions that have occurred since the original hearing.” (Emphasis added.) As our Supreme Court stated in Kaufman v. Zoning Commission, 232 Conn. 122, 130, 653 A.2d 798 (1995), “[w]e attach significance to the fact that the trial court’s judgment did not order further evidentiary determinations on remand. Although the trial court’s remand may have allowed the commission to hear additional evidence in order to determine whether to impose ‘reasonable conditions’ on or to make ‘reasonable changes’ in the application, the remand in no way required the commission to conduct such an inquiry.” (Emphasis in original.) We conclude that the decision of the trial court in this case does constitute a final judgment because, although further evidentiary determinations may be made by the board, such determinations are not required; see Wisniowski v. Planning Commission, 37 Conn. App. 303, 310-11, 655 A.2d 1146, cert. denied, 233 Conn. 909, 658 A.2d 981 (1995); and because the decision instructs the board to approve the application and to consider only the conditions of approval. See Kaufman v. Zoning Commission, supra, 131. We now proceed to the merits of the claims.

II

The board first claims that the court improperly concluded that the applicable zoning regulations did not accord the board the discretion to deny a special exception for the expansion of a private school located in a residential district. We agree.

“When considering an application for a special exception, a zoning authority acts in an administrative capacity, and its function is to determine whether the proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and statutes are satisfied. ... It has no discretion to deny the special exception if the regulations and statutes are satisfied. . . .

“The general considerations such as public health, safety and welfare, which are enumerated in zoning regulations, may be the basis for the denial of a special permit. . . . [Bjefore the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood. . . . Connecticut courts have never held that a zoning commission lacks the ability to exercise discretion to determine whether the general standards in the regulations have been met in the special permit process. ... If the special permit process were purely ministerial there would be no need to mandate a public hearing. . . .

“Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. ... In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal. . . .

“If, in denying the special permit, the zoning commission construed the special exception regulations beyond the fair import of their language, then the zoning commission acted in an arbitrary and illegal manner. ... In situations in which the zoning commission does state the reasons for its action, the question for the court to pass on is simply whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations. . . . [0]n factual questions ... a reviewing court cannot substitute its judgment for that of the agency.” (Citations omitted; internal quotation marks omitted.) Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, 55 Conn. App. 533, 537-39, 738 A.2d 1157 (1999).

The board’s denial of the application for the special exception rested on the “intensity” of the proposed use. The court’s decision rested on the interpretation of two subsections, § 19-3.2 (a) and (e), of the Stamford zoning regulations, which were referred to as “general” and “specific” intensity regulations, respectively.

Section 19-3.2 (a) provides that the exception “shall be granted by the reviewing board only upon a finding that the proposed use or structure or the proposed extension or alteration of an existing use or structure is in accord with the public convenience and welfare . . . " The board may grant a special exception after considering, where appropriate, “the nature and intensity of the proposed use in relation to its site and the surrounding area. ...” Stamford Zoning Regs., § 19-3.2 (a) (2). Both the board and the court referred to the “intensity” consideration as relevant to their determinations.

The board went no further than its consideration of § 19-3.2 (a) in denying the application. The court, however, found § 19-3.2 (e), titled “Special Standards for Single Family Districts,” significant in reversing the decision of the board. We disagree with the court’s interpretation and application of the two zoning regulations.

“[T]he interpretation of provisions in the ordinance is ... a question of law for the court. . . . The court is not bound by the legal interpretation of the ordinance by the [board]. . . . Rather, the court determines legislative intent from the language used in the regulations. . . . We interpret an enactment to find the expressed intent of the legislative body from the language it used to manifest that intent. . . . Zoning regulations, as they are in derogation of common law property rights, cannot be construed to include or exclude by implication what is not clearly within their express terms. . . . The words used in zoning ordinances are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms.” (Citations omitted; internal quotation marks omitted.) Northeast Parking, Inc. v. Planning & Zoning Commission, 47 Conn. App. 284, 293, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998).

The court, in its decision, discussed the effect of § 19-3.2 (e), which specifically delineates requirements for applications for special exceptions within the zone at issue in this case. The court characterized § 19-3.2 (a), describing relevant considerations in granting a special application, as a general requirement imposed on the relevant zone, and § 19-3.2 (e) as a specific or numerical requirement.

The court described the issue as “whether or not a zoning board is entitled to take a look at the general regulations and determine that the special exception standards have not been complied with, or whether or not a zoning board is limited to such, as in a site plan, to the specific numerical type regulations, and if they meet those numerical type regulations, then the board has no discretion and must grant them.” The court concluded that Irwin v. Planning & Zoning Commission, 244 Conn. 619, 627, 711 A.2d 675 (1998), stands for the proposition that “there are two sets of conditions that must be met, the numerical conditions and those of the general conditions, and that when a board or commission puts in specific numerical conditions and specific standards for staff review and other matters to take in care of the general conditions, that the board still has [the] discretion to make a determination as to whether the general conditions have been complied with. But they must — that discretion, by definition, must be narrowly construed by reason of the fact that the issue of intensity is already specifically dealt with in the regulation.” The trial court thus concluded that, because the application failed only one of the criteria in § 19-3.2 (e), and the proposal was later modified to accommodate the deficiency in the application, the board did not have the discretion to deny the application.

In interpreting the regulations provided in § 19-3.2 (a) and (e), the court treated the specific requirements of the latter as virtually replacing the general requirements of the former. The court thereby construed “intensity” in § 19-3.2 (a) (2) as being defined and limited by the “specific” considerations listed in § 19-3.2 (e). This restrictive interpretation of “intensity” is not apparent from the plain meaning of the regulations. Section 19-3.2 (e) imposes requirements “[i]n addition to the other standards and requirements of these Regulations,” which would necessarily include those imposed by § 19-3.2 (a) (2). Section 19-3.2 (e) cannot be reasonably construed as limiting language, as it provides no express reference to § 19-3.2 (a) and expressly incorporates standards from other portions of the zoning regulations. See Santini v. Zoning Board of Appeals, 149 Conn. 290, 291, 179 A.2d 621 (1962) (no limitation where not expressed in or implied from plain language of regulation). The language, therefore, permits the board to grant or deny applications for special exceptions based on the “general” considerations provided in § 19-3.2 (a) and (e), which do not expressly limit the board’s review in the special application process. The trial court, therefore, improperly restricted the board’s discretion through its interpretation of the relevant regulations.

The court’s interpretation had the effect of limiting the discretion of the board to deny an application for a special exception. It is settled law that a board “has no discretion to deny [a] special exception if the regulations and statutes are satisfied.” (Internal quotation marks omitted.) Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, supra, 55 Conn. App. 537. By restricting the board’s review to the considerations under § 19-3.2 (e), the court unduly restricted the criteria for granting or denying a special exception and similarly restricted the discretion of the board. The trial court thus concluded that the board’s determination was arbitrary. The court found that “the board did have the discretion to make a determination as to the general considerations and, failing to take in the specific findings in the staff recommendations [as to whether the criteria in the specific regulation was met], was violative of [its] discretionary function.” Furthermore, the court concluded that “[t]he board failed to consider the benefit of the intensity regulations [in § 19-3.2 (e)] that were imposed in 1994 on the board’s discretion.” By interpreting the regulations as it did, the trial court improperly limited the discretion of the board to deny the application for a special exception.

Ill

The board next claims that the court improperly substituted its judgment for that of the board when the court concluded that the board did not have substantial evidence on which to deny the special exception. We agree.

“The settled standard of review of questions of fact determined by a zoning authority is that a court may not substitute its judgment for that of the zoning authority as long as it reflects an honest judgment reasonably exercised. . . . The court’s review is based on the record, which includes the knowledge of the board members gained through personal observation of the site ... or through their personal knowledge of the area involved.” (Internal quotation marks omitted.) Raczkowski v. Zoning Commission, 53 Conn. App. 636, 643, 733 A.2d 862, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999).

“Ordinarily, the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing ... as the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. . . . The trial court’s findings will be upheld unless we find that they are unsupported by the evidence or . . . are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Osborne v. Zoning Board of Appeals, 41 Conn. App. 351, 354, 675 A.2d 917 (1996).

“The evidence, however, to support any such reason must be substantial .... This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. . . . The substantial evidence rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration. . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action.” (Citation omitted; internal quotation marks omitted.) Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, supra, 55 Conn. App. 540.

The court described a number of relevant considerations in determining whether a proposed use is too intense for the surrounding area. The court noted, and we agree, that “traffic considerations, traffic safety, health considerations such as adequate drainage and adequacy of septic system, are considerations that are subsumed in the phrase ‘intensity.’ ” We, therefore, review the record to determine whether the board’s conclusion that the proposed use is too intense for the surrounding area is supported by substantial evidence.

The board, in denying the application, made a number of observations on the proposed plan. It stated that “the number of children going in and out of that small piece of property in that small neighborhood, in that confined neighborhood, is just . . . too many.” The board conceded that the engineering plan for the proposed expansion was “a well done plan.” One board member stated that she had visited the site on three occasions and had encountered heavy traffic at the intersection near the school. The board voted four to one to deny the application.

The court, in reviewing the decision of the board, considered that the “current use of the property is nonconforming for the reason that it does not have special exception approval . . . .” Additionally, “if the board found somehow or other that the intensification of this use was an expansion of a nonconforming use, in fact, that finding finds no support whatsoever in the law and the record.” The court held the board’s decision to be arbitrary for the following reasons: (1) the board failed to consider the relevant intensity limitations contained in § 19-3.2 (e) in arriving at its conclusion on intensity, as it was bound to do; (2) the board failed to consider the staff recommendation on the application as it was bound to do under § 19-3.2 (e); (3) the board failed to consider that granting the application would render most of the nonconforming features conforming; (4) the board failed to consider a student enrollment cap recommended by the planning board at 125 as compared to the present enrollment of 103; (5) the board failed to consider the student per acre figure of a neighboring school with that of the plaintiff and the still lower figure resulting from the application when granted; (6) the board improperly considered the “neighborhood” rather than the surrounding area as required by the regulations; and (7) there was no evidence that the proposed expansion would adversely affect property values.

Our review of the evidence before the board does not lead us to conclude that the board was clearly erroneous in determining that the proposed expansion was too intense for the surrounding area. The trial court placed undue emphasis on § 19-3.2 (e) and the factors listed therein in concluding that the board improperly found the proposed use too intense for the area. Although “[i]t is the indisputable goal of zoning to reduce nonconforming to conforming uses with all the speed justice will tolerate”; (internal quotation marks omitted) Northeast Parking, Inc. v. Planning & Zoning Commission, supra, 47 Conn. App. 294; the mere fact that the proposed exception would result in compliance with § 19-3.2 (e) does not override the noise, safety and area considerations of § 19-3.2 (a). As discussed in part I of this opinion, the express meaning of § 19-3.2 (e) does not remove the consideration of the factors in § 19-3.2 (a) from the board.

With respect to the remaining bases for the court’s reversal of the decision of the board, the court apparently found evidence offered by the plaintiff more credible than that offered by the board. Such credibility determinations are left to the board. The board was entitled to credit the testimony and evidence adduced during the four days of public hearings in arriving at its ultimate conclusion that the proposed use was too intense for the surrounding area. It cannot be said that the conclusion of the board did not comport with law and logic in light of the nature of the area, noise concerns, traffic concerns and health concerns. We conclude that the board properly exercised its discretion in denying the application for the special exception and that there was substantial evidence to support its finding that the use was too intense for the surrounding area under the zoning regulations. The court, therefore, improperly reversed the decision of the board.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment affirming the decision of the zoning board of appeals.

In this opinion the other judges concurred.

       Section 19-3.2 of the Stamford zoning regulations provides in relevant part:
      “a. Special Exceptions shall be granted by the reviewing board only upon a finding that the proposed use or structure or the proposed extension or alteration of an existing use or structure is in accord with the public convenience and welfare after taking into account, where appropriate:
      •‘(1) the location and nature of the proposed site including its size and configuration, the proposed size, scale and arrangement of structures, drives and parking areas and the proximity of existing dwellings and other structures.
      “(2) the nature and intensity of the proposed use in relation to its site and the surrounding area. Operations in connection with special exception uses shall not be injurious to the neighborhood, shall be in harmony with the general purpose and intent of these Regulations, and shall not be more objectionable to nearby properties by reason of noise, fumes, vibration, artificial lighting or other potential disturbances to the health, safety or peaceful enjoyment of property than the public necessity demands.
      “(3) the resulting traffic patterns, the adequacy of existing streets to accommodate the traffic associated with the proposed use, the adequacy of proposed off-street parking and loading, and the extent to which proposed driveways may cause a safety hazard, or traffic nuisance.
      “(4) the nature of the surrounding area and the extent to which the proposed use or feature might impair its present and future development.
      "(5) the Master Plan of the City of Stamford and all statements of the purpose and intent of these regulations.
      “b. In granting a Special Exception the reviewing board may attach reasonable conditions and safeguards as it deems necessary to protect the general health, safety, welfare and property values of the neighborhood. Failure to comply with any such conditions shall constitute a violation of these Regulations. . .

       Section 19-3.2 (e) of the Stamford zoning regulations provides: “In addition to the other standards and requirements of these Regulations, all applications for special exception uses within the RA-3, RA-2, RA-1, R-20, R-10 and R-7.5 single family districts shall conform to the review standards of Section 7.2-C Site Plan Review Standards for Review, and to the following additional special standards. The special standards of this section shall not however apply to Group Day Care Home (#22), Hospital Complex (#47) or Senior Housing & Nursing Home Facility Complex (#92.1). Existing non-residential uses and non-residential structures, established or erected prior to September 13, 1993 which do not conform to the standards of this Section 19-3.2 (e), maybe continued, rehabilitated, altered, extended, expanded or changed to a new special exception use provided that required approvals are obtained and provided that existing non-conformities with the standards of this Section shall not be increased and no new non-conformities shall be created.
      “(1) Minimum Lot Size: the area of the lot shall be not less than twice the minimum lot size required for a single family dwelling.
      “(2) Floor Area Ratio: the total gross floor area of all uses contained within buildings,including residential use and parking structures, divided by the area of the lot shall not exceed the following standards: RA-3 and RA-2 Districts 0.10; RA-1 and R-20 Districts 0.15; R-10 District 0.20; R-7.5 District 0.25.
      “(3) Ground Coverage: the total percentage of a lot occupied by buildings, parking areas, driveways, walkways, patios, terraces and other impervious surface areas shall not exceed the following standards: RA-3 and RA-2 Districts 25 [percent]; RA-1 and R-20 Districts 35 [percent]; R-10 District 45 [percent]; R-7.5 District 60 [percent],
      “(4) Building Setbacks: All buildings shall be setback from front and side property boundaries by an amount not less than the minimum setback specified in Appendix B plus six (6) inches for each foot of building length in excess of forty (40) feet, such length measured parallel to the property boundary. Building setback from a side property line shall not be required to exceed forty (40) feet and setback from a front property line shall not be required to exceed twice the minimum front setback standard of Appendix B.
      “(5) Landscape Buffers: Landscaped buffer areas shall be provided along the front properly line with a width not less than 50 [percent] of the minimum front setback standard of Appendix B, and shall be provided along all side and rear property boundaries with a width of not less than ten (10) feet. Required buffer areas shall be maintained as unoccupied landscaped open space and shall not be used for parking, driveways, or accessory structures, other than required curb cuts necessary to access the site and pedestrian walkways and similar improvements as approved by the reviewing board. The perimeter of all buildings shall be suitably landscaped with a planted area an average width of not less than ten (10) feet for not less than 75 [percent] of the building perimeter, provided that up to 6 feet of this buffer width may consist of pedestrian walkways. Not less than 10 [percent] of the interior area of vehicle parking areas shall be devoted to landscaped islands and dividers which shall be planted with not less than one shade tree with a minimum caliper of 2.5 inches (dbh) for every ten parking spaces or fraction thereof.
      “(6) Separation of Uses: In order to preserve the essential character of residential neighborhoods and avoid undue concentration of non-residential uses, no special exception application shall be approved authorizing a new nursing home (#69), church (#23), clinic (#23.1) or public charitable institution (#79) within 1000 feet of any other such uses. Existing uses authorized prior to the effective date of this regulation shall be exempt from this separation requirement and may be continued, altered, changed in use or expanded in conformance with applicable standards of these Regulations.
      “(7) Staff Review: All applications for special exception within single family districts shall be referred to the Planning and Zoning Director for staff review of site and architectural plans at least thirty (30) days prior to the scheduling of a public hearing on such application.”

       The court refers to Irwin as “a major change in the way courts and zoning boards and commissions viewed their obligations.” The court quoted the following language in analyzing whether the board should have accorded § 19-3.2 (e) greater weight: “Although it is true that the zoning commission does not have discretion to deny a special permit when the proposal meets the standards, it does have discretion to determine whether the proposal meets the standards set forth in the regulations.” Irwin v. Planning & Zoning Commission, 244 Conn. 628. We further note that, in Irwin, the Supreme Court reversed this court’s judgment that reversed the Litchfield planning and zoning commission’s denial of an application for a special exception. It is further worth noting that the “general” and “specific” regulations in Irwin were as follows: “Interior lots may be permitted in a subdivision only where the application meets the following criteria and requirements . . .

        “a. General: The applicant shall show that the design and layout of the subdivision with the proposed interior lots will be in keeping with the Town Plan of Development.
      “b. Specific: The applicant shall show that the subdivision with the proposed interior lots will preserve important natural resource features as identified on the Town Plan of Development maps and other studies adopted by the Commission, including, but not limited to streambelt lands, farmlands (especially active farmland), land on ridge lines, and will result in the preservation of the natural landscape along a Town road or the view from a Town road or proposed subdivision road. . . .” Id., 620 n.2.
      We cannot read Irwin as justification for the court’s interpretation in this case. The Supreme Court in Irwin agreed with the defendants’ claim that “the Appellate Court improperly concluded that the zoning commission cannot exercise any discretion in deciding a special exception application, and that the Appellate Court substituted its own judgment for that of the trial court and the zoning commission, resulting in an improper remand of the case.” Id., 626. Irwin, if applicable at all to the interpretation in this case, would appear to caution against construing regulations in a manner that unduly restricts the discretion of a zoning board.


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    TRIMAR EQUITIES, LLC v. PLANNING AND ZONING BOARD OF THE CITY OF MILFORD
    (AC 21074)
    Lavery, C. J., and Mihalakos and O’Connell, Js.
    Argued June 6
    officially released November 6, 2001

      George F. Martelon, Jr., for the appellant (plaintiff).

      Matthew B. Woods, trial counsel, with whom, on the brief, was Cynthia C. Anger, assistant city attorney, for the appellee (defendant).
   Opinion

LAVERY, C. J.

The plaintiff, Trimar Equities, LLC, appeals, following this court’s grant of certification, from the judgment of the trial court dismissing its appeal from the decision of the defendant planning and zoning board of the city of Milford (board). On appeal, the plaintiff claims that the trial court improperly held that an applicant in an affordable housing appeal brought under General Statutes (Rev. to 1997) § 8-30g must show that it is aggrieved, as required under General Statutes § 8-8 (b). We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. On October 28, 1998, the plaintiff filed a petition with the defendant to change the zone of a parcel consisting of 5.7 acres of land on White Oaks Road in Milford from R-12.5 single-family housing to RMF-16 multifamily housing. In its petition, the plaintiff stated that it was “the contract purchaser” and “the intended developer” of the land in question, intending to develop a sixty-two unit apartment community with a 25 percent affordable housing component in accordance with § 8-30g. On December 1, 1998, the board met and denied the plaintiff’s petition.

On December 16, 1998, the plaintiff appealed to the Superior Court from the board’s decision, claiming that the decision was contrary to § 8-30g. The plaintiff claimed that it had standing to bring the appeal because it had submitted the affordable housing application. The court, during an evidentiary hearing, then told the plaintiff that unless it was able to produce additional evidence regarding its ownership and interest in the property, the court would be unable to find the aggrievement necessary for the plaintiff to prevail in its appeal.

The plaintiff, thereafter, submitted into evidence a copy of the contract for the sale of the property entered into between S.C. Communications, LLC, and the four property owners, and an assignment of that contract from S.C. Communications, LLC, to the plaintiff. The plaintiff also presented testimony that the principals of S.C. Communications, LLC, and the plaintiff were the same persons. Also submitted into evidence by the plaintiff was a signed consent from the sellers, consenting to the assignment of the sales contract from S.C. Communications, LLC, to the plaintiff. Only one of the four owners of the property, however, signed that document. The original contract provided that any assignment of the contract must be agreed to by all sellers, or else it would be void.

After receiving the evidence and testimony previously outlined, the court found that it was insufficient to establish the plaintiffs aggrievement with respect to the defendant’s decision denying the requested zoning change. The court found that the assignment of the contract was not agreed to in writing by all of the sellers and was, therefore, void. Accordingly, the court dismissed the plaintiffs appeal for lack of aggrievement. This court subsequently granted the plaintiffs petition for certification to appeal. This appeal followed.

The principal issue raised in the plaintiffs appeal is whether an affordable housing appeal brought by an applicant under § 8-30g requires that the applicant prove that it is aggrieved pursuant to § 8-8 (b). We conclude that it does.

We first set forth our standard of review. “Statutory construction . . . presents a question of law over which our review is plenary. . . . According to our long-standing principles of statutory construction, our fundamental objective is to ascertain and give effect to the intent of the legislature. ... In determining the intent of a statute, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) King v. Sultar, 253 Conn. 429, 437-38, 754 A.2d 782 (2000). “Common sense must be used [when construing statutes] and courts will assume that the legislature intended to accomplish a reasonable and rational result.” (Internal quotation marks omitted.) South End Plaza Assn., Inc. v. Johnson, 62 Conn. App. 462, 466, 767 A.2d 1267, cert. denied, 256 Conn. 922, 774 A.2d 138 (2001).

“The fundamental test by which the status of aggrievement ... is determined encompasses a well-settled twofold determination. First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision .... Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision. Aggrievement is an issue of fact ... for the trier of the facts.” (Citations omitted; internal quotation marks omitted.) Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307-308, 592 A.2d 953 (1991). “The question of aggrievement is one of fact to be determined by the trial court on appeal.” Primerica v. Planning & Zoning Commission, 211 Conn. 85, 93, 558 A.2d 646 (1989).

If the plaintiff has such a specific, personal and legal interest in the subject property that it meets the first requirement, it appears from the record that the defendant’s decision denying the plaintiff’s affordable housing application is sufficient to meet the second requirement that the plaintiffs interest has been “injuriously affected” by the defendant’s decision. Our analysis here, therefore, centers on the first requirement, namely, that the plaintiff have such a “specific, personal and legal” interest in the property. We conclude that it does not.

“The terms aggrievement and standing have been used interchangeably throughout most of Connecticut jurisprudence. We previously have stated that [t]he question of aggrievement is essentially one of standing .... Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). Although these two legal concepts are similar, they are not, however, identical. Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected. . . . Proof of aggrievement is, therefore, an essential prerequisite to the court’s jurisdiction of the subject matter of the appeal.” (Citations omitted; internal quotation marks omitted.) Gladysz v. Planning & Zoning Commission, 256 Conn. 249, 255-56, 773 A.2d 300 (2001).

Our Supreme Court has also applied that standard specifically in cases involving zoning disputes. “In Munhall v. Inland Wetlands Commission, 221 Conn. 46, 51, 602 A.2d 566 (1992), [that court] rejected the claim that dissenting members of a zoning commission have the personal interest required to be considered sufficiently aggrieved. . . . [T]he plaintiffs claimed an interest in the strict enforcement of the inland wetlands and watercourses regulations as the basis for their aggrievement. . . . [Our Supreme Court] rejected that argument, concluding that neither their interest as dissenting commission members nor their general interest as residents and taxpayers rises to the level of the personal interest required in order to fall within the meaning of a person aggrieved. . . . Because aggrievement is a jurisdictional question, and therefore, the key to access to judicial review, the standard for aggrievement is rather strict.” (Citations omitted; internal quotation marks omitted.) Gladysz v. Planning & Zoning Commission, supra, 256 Conn. 256-57.

The Supreme Court in Gladysz thus held that “a party claiming aggrievement submits to the court a jurisdictional question requiring the demonstration of a legally cognizable interest, i.e., a specific, personal legal interest in the subject property that is injured by a zoning decision . . . .” Id., 258. By contrast, “a party who claims standing to apply submits an issue requiring an examination of many factors, including the balancing of present and possibly future interests that require a showing that the applicant is a real party in interest.” (Internal quotation marks omitted.) Id. That discussion sets forth the key point that standing to file the zoning application, which is subsequently denied, does not alone give a party the aggrievement necessary to pursue an appeal of that decision in the courts.

The plaintiff does not question that § 8-8 requires proof of aggrievement to bring an appeal of a zoning decision to the Superior Court. The plaintiff claims, however, that its appeal is governed not by § 8-8 but rather by § 8-30g. The plaintiff contends that § 8-30g requires only that one be an applicant to bring an affordable housing appeal.

The plaintiff points to our Supreme Court’s decision in Ensign-Bickford Realty Corp. v. Zoning Commission, 245 Conn. 257, 715 A.2d 701 (1998), as providing support for its assertion that § 8-30g provides a procedure for appeals in cases involving affordable housing applications separate and distinct from that provided by § 8-8. In Ensign-Bickford Realty Corp., the issue before the Supreme Court was whether the right of appeal contained in § 8-30g required that a petition for certification be filed before an appeal could be brought to this court.

Concluding that § 8-30g did not create aright of direct appeal, but rather that certification, as provided in § 8-8, was required, the Supreme Court stated: “Section 8-30g (b) [now (f)] embodies the general rule that ‘appeals involving an affordable housing application’ are to proceed in conformance with the provisions of [General Statutes] §§ 8-8, 8-9, 8-28 and 8-30a, as applicable. Section 8-8, in turn, specifically provides in subsection (o) that an appeal may be taken to the Appellate Court only upon a grant of certification by that court, and §§ 8-9, 8-28 and 8-30a all incorporate § 8-8, and consequently § 8-8 (o), by specific reference. We conclude, therefore, that the general rule of § 8-30g (b) [now (f)] governing ‘appeals involving an affordable housing application’ encompasses the certification requirement of § 8-8 (o). Moreover, nowhere does § 8-30g otherwise provide that such appeals are not subject to the certification requirement of § 8-8 (o). Because the legislature did not except § 8-8 (o) from the general rule embodied in § 8-30g (b) [now (f)], we also conclude that the language of § 8-30g (b) [now (f)] manifests the legislature’s intention that ‘appeals involving an affordable housing application’ proceed in conformance with § 8-8 (o), as applicable. By its terms, § 8-8 (o) is applicable to land use appeals to the Appellate Court from judgments of the Superior Court, but not to appeals to the Superior Court from decisions of commissions. We therefore further conclude that the language of § 8-30g (b) [now (f)] indicates that the legislature intended that affordable housing appeals to the Appellate Court be subject to the certification requirement of § 8-8 (o). ” Ensign-Bickford Realty Corp. v. Zoning Commission, supra, 245 Conn. 268-69.

The reasoning of the Supreme Court in Ensign-Bickford Realty Corp., by which it concluded that certification was required for appeals to this court in cases involving affordable housing, as with other zoning cases, applies equally to the issue before us, namely, whether aggrievement is required to maintain an appeal from a decision of a zoning commission in cases involving applications for affordable housing. Because § 8-8 provides that only ‘aggrieved parties’ may appeal, and because § 8-30g does not alter that requirement for appeals involving affordable housing applications, we conclude that an appeal under § 8-30g of a denial of an affordable housing application requires proof of aggrievement.

That conclusion is further supported by the analysis of the issue of aggrievement provided by one commentator, Robert Fuller: “Even though the statute does not expressly include a provision requiring the appellant to prove aggrievement in order to have standing to maintain the appeal, section 8-30g (b) [now (f)] states that the appeal proceeds in accordance with the above mentioned statutes, including section 8-8 and 8-9. The clear implication is that compliance with the two part test for aggrievement must be proven the same as in conventional appeals under section 8-8. . . .

“As with a conventional appeal, if the plaintiff fails to produce evidence of aggrievement, such as ownership of the property for which the affordable housing application was made, the appeal will be dismissed.” (Emphasis added.) R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 51.5, pp. 534-35.

Because the question is one of fact, we apply our familiar standard for reviewing issues of fact. “We do not . . . disturb such a finding on appeal unless the subordinate facts do not support it or it is inconsistent with the law. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 496, 400 A.2d 726 (1978). ‘We will reverse the trial court only if its conclusions are clearly erroneous and violate law, logic, or reason or are inconsistent with the subordinate facts.’ Zoning Board of Appeals v. Planning & Zoning Commission, 27 Conn. App. 297, 301, 605 A.2d 885 (1992).” Lewis v. Planning & Zoning Commission, 62 Conn. App. 284, 287, 771 A.2d 167 (2001).

The trial court found as a fact that the plaintiff was not aggrieved by the decision of the defendant board. We conclude that this finding is not clearly erroneous and is not inconsistent with the law.

The judgment is affirmed.

In this opinion the other judges concurred.

       The contract provides in relevant part:
      “VIII. ASSIGNMENT OF CONTRACT RIGHTS
      “This Agreement and the BUYER’S right hereunder may not be assigned by the BUYER without the prior written consent of the SELLERS, which consent shall not be unreasonably withheld; and any puiported assignment without such written consent shall be void and of no effect. . . .”

       General Statutes (Rev. to 1997) § 8-30g (b), now (f), provides in relevant part: “Any person whose affordable housing application is denied or is approved with restrictions which have a substantial adverse impact on the viability of the affordable housing development . . . may appeal such decision pursuant to the procedures of this section. . . . Except as otherwise provided in this section, appeals involving an affordable housing application shall proceed in conformance with the provisions of . . . section 8-8 .. . .”

       General Statutes § 8-8 provides in relevant part: “(a) As used in this section:
      “(1) ‘Aggrieved person’ means a person aggrieved by a decision of a board ....
      “(b) . . . [A]ny person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located. . . .”

       After Ensign-Bickford Realty Corp. was decided, General Statutes § 8-30g was amended by Public Act 00-206, § 1, of the 2000 Public Acts, which added new subsections, causing the previous subsection (b) to be relettered as subsection (f).


text:
    LAUREL BEACH ASSOCIATION v. ZONING BOARD OF APPEALS OF THE CITY OF MILFORD ET AL.
    (AC 20905)
    Lavery, C. J., and Landau and Peters, Js.

      Argued June 5
    officially released November 6, 2001

      George F. Martelon, Jr., for the appellant (plaintiff).

      Brian A. Lema, for the appellee (defendant Elizabeth Stevens).
   Opinion

LAVERY, C. J.

The plaintiff, Laurel Beach Association, appeals from the judgment of the trial court dismissing its appeal from the decision of the defendant zoning board of appeals of the city of Milford (zoning board). The plaintiff claims that the zoning board acted improperly in upholding the decision of its zoning enforcement officer, who granted a permit to the defendant Elizabeth Stevens (Stevens) for one of her parcels to be considered a legally nonconforming lot. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs appeal. Stevens is the owner of adjacent lots, numbered twenty-six and twenty-seven, on Seaview Avenue in Milford. From 1968 until 1994, she and William Stevens, who was then her husband, held title to lot 27. William Stevens alone held title to lot 26. On September 13, 1994, as part of a dissolution settlement, he transferred the title to both lots to Stevens.

Lots 26 and 27 were created during the formation of a Laurel Beach subdivision in 1901. The first zoning regulations were adopted in Milford in 1928. Lot 26, as with the other twenty-two lots along Seaview Avenue from Third Avenue through Eighth Avenue, does not conform to the requirements of R-10, the zone in which those lots are located. Eight of the lots have the same fifty foot frontage as does lot 26. Of the twenty-three lots, only lot 26 does not have a house constructed on it.

In 1988, William Stevens applied to the zoning board for a zoning permit and special exception to build a house on lot 26. The zoning board, by a four to one

vote, denied his request. The decision was upheld in an appeal to the Superior Court in 1988.

Effective February 1,1989, Milford enacted new regulations under § 6.4.2 that removed the requirement of special exception approval. In December, 1998, Stevens submitted an application under § 6.4.2 to build a house on lot 26. On December 16, 1998, the zoning enforcement officer determined that lot 26 was a legal nonconforming lot. The plaintiff appealed to the zoning board, which affirmed the decision, by a three to two vote, on January 12, 1999. The plaintiff next appealed to the court, which rendered a judgment of dismissal in a March 15, 2000 memorandum of decision. We granted certification to appeal, and this appeal followed. Additional facts will be provided as necessary.

The plaintiff claims that the court improperly (1) concluded that the plaintiff did not sustain its burden of proof that the zoning board acted illegally, arbitrarily and in abuse of its discretion in reversing the decision that it made in 1988, (2) concluded that collateral estoppel and res judicata were inapplicable to the 1999 approval, (3) refused to find that the recognition of lot 26 as legally nonconforming resulted in making lot 27 nonconforming and (4) failed to find that the lots had merged for zoning purposes in accordance with the city’s ordinance.

I

The plaintiff first asserts that the court improperly concluded that the plaintiff failed to carry its burden of proof that the zoning board in 1999 improperly reversed the decision that it made in 1988 without evidence of a material change between the time of the 1988 application and the time of Stevens’ 1998 application. We disagree.

Trial courts defer to zoning boards and should not disturb their decisions so long as “honest judgment has been reasonably and fairly exercised after a full hearing.” Molic v. Zoning Board of Appeals, 18 Conn. App. 159, 164, 556 A.2d 1049 (1989). The trial court should reverse the zoning board’s actions only if they are unreasonable, arbitrary or illegal. Irwin v. Planning & Zoning Commission, 244 Conn. 619, 628, 711 A.2d 675 (1998). If the zoning board has not given the reasons for its decision, the trial court must search the entire record to find a basis for its decision. Paige v. Town Plan & Zoning Commission, 235 Conn. 448, 464, 668 A.2d 340 (1995). “Where it appears from the record that the action of a zoning authority rested on more than one ground, the authority’s action must be sustained so long as the record supports at least one of the grounds.” Hoagland v. Zoning Board of Appeals, 1 Conn. App. 285, 290, 471 A.2d 655 (1984). The burden of proof is on the plaintiffs to demonstrate that the zoning board acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988).

When a party files successive applications for the same property, a court makes up to two inquiries. The first is to determine whether the two applications seek the same relief. The zoning board determines that question in the first instance, and its decision may be overturned only if it has abused its discretion. Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 279, 129 A.2d 619 (1957). If the applications are essentially the same, the second inquiry is whether “there has been a change of conditions or other considerations have intervened which materially affect the merits of the matter decided.” Malmstrom v. Zoning Board of Appeals, 152 Conn. 385, 390-91, 207 A.2d 375 (1965); Bradley v. Inland Wetlands Agency, 28 Conn. App. 48, 50-51, 609 A.2d 1043 (1992). For an appellate court, the only question is whether the trial court’s finding as to the zoning board’s decision is clearly erroneous. See Fernandes v. Zoning Board of Appeals, 24 Conn. App. 49, 53-54, 585 A.2d 703, rev’d on other grounds, 218 Conn. 909, 591 A.2d 811 (1991).

The plaintiff first alleges that the Stevens’ applications sought the same relief: To build a house on lot 26. Assuming that the applications were essentially the same, the plaintiff next alleges that the 1989 zoning regulation changes were “ministerial,” not material. Noting that neither the zoning board nor the court discussed specifically whether the amendment of § 6.4.2 of the zoning regulations was a material change, the plaintiff argues that the court abdicated its responsibility to expressly search the record for substantial evidence that the zoning board correctly interpreted and applied its regulations.

Stevens responds that the 1988 application is not substantially the same as the approved 1998 application because of the “substantive” changes in § 6.4.2 of the zoning regulations, which the court expressly recognized in its March 15, 2000 memorandum of decision. Relying on Baron v. Planning & Zoning Commission, 22 Conn. App. 255, 257, 576 A.2d 589 (1990), she argues that the zoning board is entrusted with the function of applying its regulations, and that zoning boards of appeal generally hear and decide appeals de novo. Conetta v. Zoning Board of Appeals, 42 Conn. App. 133, 137, 677 A.2d 987 (1996).

The court’s conclusion, based on Bradley v. Inland Wetlands Agency, supra, 28 Conn. App. 51, that it is solely for the board and not the court to determine whether the codefendant’s petition was a new application or substantially the same as the earlier application; see Hotchkiss Grove Assn., Inc. v. Water Resources Commission, 161 Conn. 50, 58, 282 A.2d 890 (1971); seems to give a zoning board absolute discretion. Such a statement glosses over the court’s inquiry as to whether the agency abused its discretion. See Fiorilla v. Zoning Board of Appeals, supra, 144 Conn. 279. That realization, however, does not change the outcome.

It is indeed unclear whether the zoning board considered Stevens’ proposal to be substantially the same as the 1988 application. There is some language in the court’s decision to support the proposition that the zoning board considered Stevens’ application to be different. For instance, the court properly found that the revised § 6.4.2 of the zoning regulations no longer required an owner to get a special exception and shifted the approval responsibility from the zoning board to a zoning enforcement officer. The court also noted the public hearing testimony of the zoning enforcement officer, who gave his opinion that § 6.4.2 was changed because the old regulation created inconsistent results and that the changes “liberalized” the former version of § 6.4.2.

Even if the zoning board concluded that those applications were essentially the same, it does not necessarily follow that it abused its discretion in granting the permit. See Malmstrom v. Zoning Board of Appeals, supra, 152 Conn. 390-91. The court found that the record before the zoning board that was submitted by Stevens included several photographs of the lots, copies of checks and tax bills showing that both lots are taxed separately by the city and by the plaintiff, subdivision maps and a certificate of title with related documentation showing the property’s chain of title. As stated more fully in our discussion of the plaintiffs collateral estoppel claim in part II, that information was not presented to the zoning board when William Stevens applied for a permit in 1988. As a result, the zoning board could have properly granted the permit in 1998 even if it did view the relief requested as substantially similar.

II

The plaintiff next contends that the court improperly concluded that the theories of issue preclusion (collateral estoppel) and claim preclusion (res judicata) were inapplicable to this case. We disagree.

“Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum. [C]laim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits. . . . [I]ssue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit.” (Internal quotation marks omitted.) Dowling v. Finley Associates, Inc., 248 Conn. 364, 373, 727 A.2d 1245 (1999).

“Both doctrines . . . express no more than the fundamental principle that once a matter has been fully and fairly litigated and finally decided, it comes to rest.” (Citation omitted; internal quotation marks omitted.) Id. “If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. . ; . Thus, statements by a court regarding a nonessential issue are treated as merely dicta.” (Citations omitted; internal quotation marks omitted.) Gladysz v. Planning & Zoning Commission, 256 Conn. 249, 260-61, 773 A.2d 300 (2001). Because collateral estoppel “has dramatic consequences for the party against whom the doctrine is applied . . . the court must specifically determine that an issue that is presented in the second case was necessary to the judgment in the first case . . . .” (Citations omitted.) Id., 261-62.

The plaintiff claims that the 1988 court decision addressed the underlying fact of whether the properties had merged by use, thereby precluding the 1998 application. Specifically, it highlights statements made by a member of the zoning board to the effect that the property had merged by use and argues that the merger issue was “central” to the 1988 court’s memorandum of decision.

Stevens argues that her later application was not barred by either claim preclusion or issue preclusion. First, she argues that the court correctly concluded that the 1988 court did not deny the permit application on the basis of merger, but on the basis of the zoning board’s discretion to deny a zoning permit subject to a special exception. Although the zoning board discussed merger in 1988, she argues that it did not necessarily find that the two lots had merged. Second, Stevens argues that the court did not improperly conclude that collateral estoppel was inapplicable because merger was not key to the 1988 court’s determination. Instead, she argues that any mention of merger was mere dictum. Third, Stevens argues that the merger issue was not actually litigated in the 1988 case. To the extent that it was, she argues that it was not “fully and fairly litigated.”

As to the collateral estoppel claim, the court properly found that the 1988 court did not necessarily determine the merger issue. Instead, the court found that the 1988 court dismissed William Stevens’ appeal because he had not carried his burden of proving that he was entitled to a zoning permit subject to a special exception. Although the court found that zoning board members had voiced their opinion in 1988 that there had been merger by use, the court found that it would have been improper for the 1988 court to agree because the only issue before it was whether the zoning board had abused its discretion in denying the special exception.

Furthermore, Stevens is correct that merger was not fully and fairly litigated in 1988. William Stevens’ architect was not prepared to make a presentation before the zoning board regarding either the need for a special exception or the merger doctrine. By contrast, the plaintiff hired an attorney who made a presentation, submitted aerial photographs and other exhibits, presented fourteen neighbors to speak in opposition and submitted letters of opposition from six neighbors. The 1988 court merely reviewed and recited the facts that were before the zoning board. In 1999, Stevens retained an attorney, who made a formal presentation, which included the introduction of exhibits and case law. The plaintiff again retained an attorney, who made a presentation, submitted aerial photographs and other exhibits, had eight neighbors speak in opposition and submitted three letters in opposition.

Rejecting the plaintiffs claim that res judicata applied, the court found that because the amended § 6.4.2 of the zoning regulations did not exist at the time of the 1988 appeal, a claim could not be brought under that amended regulation. Reid v. Zoning Board of Appeals, 235 Conn. 850, 856 n.4, 670 A.2d 1271 (1996). Therefore, it found that res judicata was inapplicable.

The court properly found that neither the theory of collateral estoppel nor the theory of res judicata applied to bar Stevens’ application. That is especially true in light of the dramatic consequences of issue preclusion. As to its res judicata analysis, the court’s reasoning properly was predicated on its finding that Stevens’ application was based on a materially changed provision of § 6.4.2 of the zoning regulations. We point out, however, that this reasoning applies only to amendments that materially change a provision on which a later appeal is based. Not every minor amendment or technical change will foreclose the application of res judicata.

Ill

The plaintiffs third contention is that the court improperly refused to conclude that the recognition of lot 26 as legally nonconforming resulted in making lot 27 nonconforming in violation of the side line setback requirement. In 1969, William Stevens petitioned the city for a building permit to construct a deck off of the house on lot 27 extending toward lot 26. No variance was required. At the 1988 and 1999 hearings, the plaintiff submitted for review William Stevens’ 1969 application, which stated that the lot area was 100 feet by 120 feet, the area of lots 26 and 27 combined. The plaintiff alleges that if lot 26 is considered to be a legally nonconforming lot, the deck on lot 27 would be within the four foot setback for side lines in violation of § 6.4.1 of the zoning regulations. The plaintiff argues that this is inconsistent with the goal of zoning to reduce the number of nonconforming lots, citing Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 740, 626 A.2d 705 (1993).

After first noting that the deck does not encroach onto lot 26, Stevens responds that she informed the zoning board in her 1998 application that she was willing to reduce or remove the deck to comply with side lot regulations. In any event, she argues that the nonconforming nature of the deck began with its creation in 1969 and is now protected by General Statutes § 8-13a (a), which grants the deck legally existing nonconforming status.

Neither party cites anything in the record to support the assertion that the zoning board made an explicit determination regarding the deck. The trial court also did not rule on the issue. Both fact finders may have relied on Stevens’ representation that she would reduce or remove the deck if she were granted a permit. The record reflects that this was her position before the zoning board, the trial court and in her statement in opposition to the plaintiffs petition for certification to this court. Stevens’ alternative defense that the deck is protected by statute, raised for the first time in her appellate brief, is rejected. We do not review claims where a party waives or concedes them during trial and attempts to raise them before an appellate court; see State v. Cobb, 251 Conn. 285, 342-43, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); nor do we do so where a party attempts to raise them for the first time on appeal. See Adolphson v. Zoning Board of Appeals, supra, 205 Conn. 716-17.

IV

The plaintiffs final argument is that the court improperly failed to find that, despite the difference in title, lots 26 and 27 had merged for zoning purposes. We disagree.

Merger occurs in two situations. In the absence of a change in the zoning provisions, merger is determined by a party’s intent to treat multiple lots as a single property. Johnson v. Board of Zoning Appeals, 35 Conn. App. 820, 826-27, 646 A.2d 953 (1994). Additionally, as in Milford, merger may be found to exist by operation of law, where a town changes zoning ordinances to implicitly or explicitly merge nonconforming lots with contiguous land owned by the same owner. Molic v. Zoning Board of Appeals, supra, 18 Conn. App. 164; Neumann v. Zoning Board of Appeals, 14 Conn. App. 55, 60, 539 A.2d 614 (merger doctrine adopted by implicit zoning change), cert. denied, 208 Conn. 806, 545 A.2d 1103 (1988). “Once merged, the lots form one lot that meets or more closely approximates the zoning requirements and the separate lots lose their exception for nonconformance.” Johnson v. Board of Zoning Appeals, supra, 826.

In 1988, § 6.4.2 (3) of the zoning regulations simply proscribed the granting of a special exception if a lot’s identity had merged with an adjoining one. In the 1989 amendments to § 6.4.2, the merger description was greatly expanded. Section 6.4.2 (3B) now expressly provides in relevant part that whether a property’s “identity as a separate lot has ceased and it has merged with the adjacent property is a factual determination to be made on a case by case basis upon the facts and circumstances of each individual application. Therefore, no fixed set of criteria can be said to establish such a merger for all cases. ...” Subsection 3B further provides several illustrations of facts that may be indicative of a merger, and subsection 3C lists factors that are not themselves sufficient evidence of merger.

The owner’s intent under the common law to merge lots is inferred from his or her conduct with respect to the land and the use made of it. Molic v. Zoning Board of Appeals, supra, 18 Conn. App. 164. No single factor is dispositive. See Marino v. Zoning Board of Appeals, 22 Conn. App. 606, 610, 578 A.2d 165, cert. denied, 216 Conn. 817, 580 A.2d 58 (1990), citing Molic v. Zoning Board of Appeals, supra, 164. Thus, there is no merger simply because the tracts are taxed as one or even because the owner fails to take any actions physically to demonstrate that he desires to keep them separate. Id.; see also Schultz v. Zoning Board of Appeals, 144 Conn. 332, 337, 130 A.2d 789 (1957) (zoning board found no merger even though property had “never, in the chain of title up to the time of its conveyance to the plaintiff, been transferred as a separate lot and had never been assessed as such for taxation”). Those factors may, however, be considered probative by a zoning board in making its determination whether the properties have been merged. Marino v. Zoning Board of Appeals, supra, 609.

Generally, merger is found where the adjacent tracts have been used as a single property over a long period, even where the deed description references multiple lots from a map filed in the land records. See, e.g., id. (upholding zoning board determination that merger occurred where property was developed in 1920 as single parcel and used that way since); Neumann v. Zoning Board of Appeals, supra, 14 Conn. App. 57-58 (upholding zoning board determination of merger where separate houses on adjacent lots had been used as single parcel since 1953). The mere intent to develop the lots as a single property, however, does not automatically trigger the merger doctrine where the plan is rejected by the town; a developer could then submit plans to use the properties as separate lots. Carbone v. Vigliotti, 222 Conn. 216, 227-28, 610 A.2d 565 (1992). Once two lots have merged, the merged lot cannot be redivided. Iannucci v. Zoning Board of Appeals, 25 Conn. App. 85, 90, 592 A.2d 970 (1991).

At the municipality level, only the zoning board of appeals has the authority to determine whether merger has occurred. Id., 88 (rejecting trial court conclusion that building inspector’s issuance of permit to move house meant defendant town abandoned its merger finding).

The plaintiff argues that lot 26 was incorporated into lot 27 in 1969 when William Stevens submitted an application for a deck that listed the dimensions of his property as including both lots. Because neither the zoning board nor the court in this case addressed the matter of the 1969 deck or the applicability of the legal doctrine of merger or the illustrations in § 6.4.2 of the zoning regulations to lot 26, the plaintiff argues that those indicia of error require reversal of the judgment.

Stevens correctly responds that § 6.4.2 (3B) of the zoning regulations expressly provides that there is no fixed merger criteria and that reference to the lots as a single property to get a building permit is only one factor to be considered. She points to exhibits that she submitted in conjunction with her application, including the certificate of title, the lot 26 building plan, photographs, and separate tax bills and subdivision maps. In any event, she argues that the zoning board has the discretion to examine all of the surrounding circumstances.

The plaintiffs argument that the lots merged in 1988 fails for a more fundamental reason. From their creation in 1901 until 1994, the lots were under separate ownership. In addition to the provisions previously cited, merger applies to “contiguous substandard lots under common ownership . . . .” (Emphasis in original.) 3 A. Rathkopf & D. Rathkopf, The Law of Zoning and Planning (4th Ed. 1994) § 32.04; see also Schultz v. Zoning Board of Appeals, supra, 144 Conn. 338; R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 53.6, p. 580 (“contiguous land all owned by the same proprietor does not necessarily constitute a single lot” [emphasis added]). Indeed, Connecticut courts have addressed the merger doctrine only where the same parties own or have owned both properties.

Accordingly, absent a showing that a party originally owned adjacent lots and transferred one solely to avoid merger by a newly enacted zoning change; see Corsino v. Grover, 148 Conn. 299, 170 A.2d 267 (1961); formerly conforming lots cannot later merge without unity of title. That is true regardless of whether the parties are related. See, e.g., Barkus v. Kern, 160 App. Div. 2d 694, 696, 553 N.Y.S.2d 466 (1990) (“mere fact that the petitioners are related, either by blood or by marriage, is not dispositive of the issue”); Stenzler v. Commerdinger, 50 Misc. 2d 235, 237-38, 269 N.Y.S.2d 865 (1966) (no merger between wife’s lot, adjacent lot held by husband even though lots purchased at same time and husband financed wife’s purchase); Barbara Homes, Inc. v. Michaelis, 14 Misc. 2d 620, 621-22, 178 N.Y.S.2d 543 (1958) (no merger where one lot held by tenancy in entirety, adjacent lot by one spouse alone).

In addition to the separate titles, the record shows that Stevens and her husband purchased the lots at the same time and originally put them in separate ownership. The properties remained that way until the transfer of property in 1994. The zoning board reasonably could find on that basis and from other factors that the Stevenses did not intend to merge their properties. Furthermore, as previously noted, seven other lots of the twenty-three in the area have the same frontage as does lot 26; all have houses on them. See 83 Am. Jur. 2d, Zoning and Planning § 185 (1992) (“requirement that adjacent substandard lots be merged may be unreasonable if the lots are the same size as most other lots in the area”).

The judgment is affirmed.

In this opinion the other judges concurred.

       Stevens is the only defendant to have filed an appellate brief and argued before this court.

       The minimum requirement for lot area in an R-10 zone in Milford is 10,000 square feet, with a minimum lot depth of 100 feet and a minimum lot width of seventy feet. Lot 26 has a lot depth of 100 feet and a lot width of fifty feet.

       In 1988, § 6.4.2 of the zoning regulations, titled, “Use of Non-Conforming Lots When Applicants or Predecessor Own/Owned AcUacent Land,” provided:
      “A zoning permit may be issued subject to a Special Exception granted by the Zoning Board of Appeals for an allowable use on a lot which does not meet the standards for lot area and/or width of the particular zone in which said lot is located if:
      “(1) The present owner or his predecessors in title did not illegally create this non-conforming lot and that the lot was of legal size when it was created as a lot.
      “(2) The present owner or his predecessors in title, as determined by an attorney, do now or have owned acjjacent land since the time the lot was caused to become non-conforming by virtue of a revised zoning regulation.
      “(3) Since the time the lot was caused to become non-conforming by virtue of a revised zoning regulation, the lot has never been utilized in conjunction with adjacent property so that the identity of the lot in question has not merged with adjacent property.
      “(4) All yard setback, coverage and other zone requirements can be met; and further provided the owner or his agent presents satisfactory evidence of compliance with this Section.

        “(5) The lot was never sold by the City of Milford with any stipulation that would prohibit its use as a separate building lot.
      “(6) Notice. Upon application for a zoning permit under this Section 6.4.2, a Special Exception application shall be made to the Zoning Board of Appeals in accordance with the requirements of Section 9.2.3 Special Exceptions.”

       Effective February 1, 1989, § 6.4.2 was amended. The relevant changed provisions provide:
      “A zoning permit may be issued subject to a [sic] application granted by the Zoning Officer for an allowable use on a lot which does not meet the standards for lot area and/or width of the particular zone in which said lot is located if . . .
      “(3A) Since the time the lot was caused to become non-conforming by virtue of a revised zoning regulation, the lot has never been utilized in conjunction with adjacent property so that the identity of the lot in question has not merged with adjacent property.
      “(3B) The determination of whether a lot has been so utilized in conjunction with adjacent property so that its identity as a separate lot has ceased and it has merged with the adjacent property is a factual determination to be made on a case by case basis upon the facts and circumstances of each individual application. Therefore, no fixed set of criteria can be said to establish such a merger for all cases. Listed below by way of example only, and not of limitation are some factors which may be indicative of a merger, depending upon the surrounding circumstances of the particular case.
      “(a) If, at the time the house was constructed, the minimum lot size required by the Zoning Regulations exceeded the size of the house lot, itself, the vacant lot will be considered merged with the original house lot, i.e., if the minimum lot size could only be achieved by utilizing both lots together at the time the house was constructed, a merger will have occurred. . . .
      “(b) The vacant lot is regularly utilized to provide off street parking for the existing dwelling on the adjacent house lot.
      “(c) A structure on the ac[jacent house lot encroaches over onto the vacant lot, or hearing evidence establishes that the vacant lot has been cleared of such an encroachment.
      “(d) The vacant lot contains some non-temporary structure or improvement used in relationship with the adjacent house lot; e.g., storage shed, garage, tennis court, swimming pool, barbecue facility, patio, etc.
      “(e) The applicant or his predecessor characterized the adjacent house lot and the vacant lot as one lot for purposes of some prior building or zoning approval; e.g., to construct a deck on the house without violating side yard setback requirements.
      “(3C) Some factors which are not sufficient in and of themselves to constitute a merger of a vacant lot with an adjoining house lot include, but are not limited to:
      “(a) The fact that the grass on the vacant lot has been mowed and leaves have been raked.
      “(b) The fact that a vegetable or flower garden has existed on the vacant lot.
      “(c) The fact that the vacant lot has been used for occasional recreational pursuits, e.g. picnics, baseball, badminton, volleyball, etc.
      “(d) The fact that the vacant lot has been utilized for overflow parking for the house lot, on an occasional, non-frequent basis. . . .”

       According to the testimony of the zoning enforcement officer before the zoning board, the regulations were adopted in part to clarify the process, to avoid the inconsistent and arbitrary results that occurred under the prior regulations, and to “liberalize” the approval process.

       The following colloquy between the zoning board of appeals and William Stevens’ architect is illustrative:
      “[Board Chairman]: In order to hear a special exception, I would like you to comment on our regulation 9.2.3, which lists five different things that you should be informing yourself concerning this property. OK? Such as the nature of location, size intensity, with regulations 9.2.3 (1), (2), (3), (4), (5). Would you care to go ahead with that at all?
      “[Architect]: No, I think not.”

       In Reid v. Zoning Board of Appeals, supra, 235 Conn. 850, the plaintiff homeowner based his appeal on a statutory codification of judicial practice that became General Statutes § 8-6 (b).

       General Statutes § 8-13a (a) provides: “When a budding is so situated on a lot that it violates a zoning regulation of a municipality which prescribes the location of such a building in relation to the boundaries of the lot or when a building is situated on a lot that violates a zoning regulation of a municipality which prescribes the minimum area of the lot, and when such building has been so situated for three years without the institution of an action to enforce such regulation, such building shall be deemed a nonconforming building in relation to such boundaries or to the area of such lot, as the case may be.”

       As presented by the plaintiffs counsel, this claim may be academic. At oral argument, he stated that there are procedures in the Milford zoning regulations for an owner of merged properties to “basically separate them,” allowing even a merged lot to be built on. The problem in this case, the plaintiff argues, is that Stevens did not apply under the correct zoning provision.

       See, e.g., Carbone v. Vigliotti, supra, 222 Conn. 216; Dowling v. Zoning Board of Appeals, 187 Conn. 689, 447 A.2d 1172 (1982); Bankers Trust Co. v. Zoning Board of Appeals, 165 Conn. 624, 345 A.2d 544 (1974); Jenkins v. Zoning Board of Appeals, 162 Conn. 621, 295 A.2d 556 (1972); Schultz v. Zoning Board of Appeals, supra, 144 Conn. 332; Miller v. Zoning Board of Appeals, 36 Conn. App. 98, 647 A.2d 1050 (1994); Johnson v. Board of Zoning Appeals, supra, 35 Conn. App. 820; Bell v. Zoning Board of Appeals, 27 Conn. App. 41, 604 A.2d 379 (1992); Iannucci v. Zoning Board of Appeals, supra, 25 Conn. App. 85; Marino v. Zoning Board of Appeals, supra, 22 Conn. App. 606; Horn v. Zoning Board of Appeals, 18 Conn. App. 674, 559 A.2d 1174 (1989); Molic v. Zoning Board of Appeals, supra, 18 Conn. App. 159; Neumann v. Zoning Board of Appeals, supra, 14 Conn. App. 55; Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 484 A.2d 483 (1984).

       Our Supreme Court’s conclusion in Corsino v. Grover, supra, 148 Conn. 299, regarding the transfer of lots in the face of a zoning change is in accordance with cases from a neighboring jurisdiction. See, e.g., Sorenti v. Board of Appeals, 345 Mass. 348, 187 N.E.2d 499 (1963) (transfer of adjacent lot to “straw” purchaser one day before zoning bylaw change); DiStefano v. Stoughton, 36 Mass. App. 642, 634 N.E.2d 584 (1994) (transfer of adjacent lots in “checkerboard” arrangement sixteen days before more restrictive zoning change); Planning Board v. Serena, 27 Mass. App. 689, 542 N.E.2d 314 (1989) (transfer of adjacent lot to trust controlled by owner four days before zoning bylaw change), aff'd, 406 Mass. 1008, 550 N.E.2d 1390 (1990). Recently, however, the Massachusetts Appeals Court interpreted those same cases for the proposition that whether a common party has “control” of both parcels is the key inquiry, regardless of title. See Preston v. Board of Appeals, 51 Mass. App. 236, 744 N.E.2d 1126 (2001). That case concerned an interpretation of a state statute, not common-law merger. In any event, we hold that merger requires unity of title.