2007 Ct. Sup. 14624
No. CV 06 4006676 SConnecticut Superior Court Judicial District of Ansonia-Milford at Derby
August 20, 2007
MEMORANDUM OF DECISION
GERARD F. ESPOSITO, JUDGE.
I STATEMENT OF APPEAL
The plaintiffs, 112 Merwin Avenue, LLC (LLC) and the Joan Abeshouse Grossman Family Limited Partnership (LP), appeal from the decision of the defendant, the Planning and Zoning Board of the city of Milford (board), which had denied the plaintiffs’ applications for a special exception and coastal site plan review.
II FACTUAL BACKGROUND
The plaintiffs are owners of two adjacent parcels of land in Milford. The LLC owns property known as 112 Merwin Avenue, and the LP owns property known as 106 Merwin Avenue. (Return of Record [ROR], Item i; Plaintiffs’ Exhibits 1 2.) Although two separate legal entities own these properties, the sole owner of the LLC is the LP. (ROR, Item t; Item cc, p. 20.)
The property located at 112 Merwin Avenue consists of approximately 13,600 square feet or 0.312 acres. (ROR, Item e.) The city lists the property as vacant except for a one-story barn. (ROR, Item i.) Nevertheless, an unoccupied structure that was once a three-family residence is situated on this parcel. (ROR, Item r, p. 5.) In 1993, an explosion occurred at the property, destroying the front unit. (ROR, Item r, p. 26.) During the public hearings before the board, conflicting information was presented concerning whether one or two dwelling units were destroyed by the explosion. Board member F. Goodrich noted that on February 24, the board had received a map showing “two units in the back as being destroyed and only one being left.” (ROR, Item cc, p. 26.) Ray CT Page 14625 Oliver, an architect hired by the applicants, responded that “whoever [indicated that on the drawing] is incorrect.” (ROR, Item cc, p. 26.) Oliver also explained at the public hearing that he visited the site and that two units remain at 112 Merwin Avenue. (ROR, Item cc, p. 24.) Also, Joan Grossman, the general partner of the LP, testified that the explosion in 1993 destroyed only one of the three units at 112 Merwin Avenue. (ROR, Item r, p. 26.)
The property located at 106 Merwin Avenue consists of approximately 6,400 square feet or 0.147 acres. (ROR, Item e.) On this property is located a one-story residential dwelling with a living area of 1978 square feet, consisting of five bedrooms and three bathrooms. (ROR, Item i.) The record contains uncontroverted testimony explaining that the dwelling located at 106 Merwin Avenue is a three-family residence. (ROR, Item r, pp. 5 and 26.)
On March 24, 2006, the plaintiffs filed a petition for a special exception; (ROR, Item b); and an application for coastal site plan review; (ROR, Item c); (collectively, the application). The application requested permission to demolish the existing structures located at 106 and 112 Merwin Avenue and to construct three detached, two-family, two and one-half story residences. (ROR, Items b and c.) Evidently, the same application was made previously, but had been withdrawn after a public hearing, and was resubmitted. (ROR, Item a; Item r, p. 11.)
Notice of a public hearing on the application was made by way of publication in the New Haven Register, a newspaper of general circulation in the greater Milford area. (ROR, Items f and g.) Public hearings were held on the application on May 16, 2006; (ROR, Items q and r); and June 6, 2006; (ROR, Items bb and cc). At the June 20, 2006, meeting, nine members of the board voted to deny the plaintiffs’ application, with one member abstaining. (ROR, Item ff, p. 254; Item gg, p. 6.)
The plaintiffs appealed from the board’s decision to the Superior Court. Both the plaintiffs and the defendant filed trial briefs. In addition, the plaintiffs filed a reply brief. The trial was held on May 14, 2007. At the trial, all counsel proposed that the court and counsel visit the site of the property that is the subject of this litigation. This court agreed, and all counsel and the court visited the site on Thursday, May 24, 2007, at approximately 8:00 a.m.
III JURISDICTION CT Page 14626
General Statutes § 8-8(b) governs appeals from decisions of planning and zoning boards to the Superior Court. “A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.” (Internal quotation marks omitted.)Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
“[P]leading and proof of aggrievement are prerequisites to a trial court’s jurisdiction over the subject matter of a plaintiff’s appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved.” (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.” Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003). A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953
(1991); or “by the production of the original documents or certified copies from the record.” (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
“Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency’s decision has specially and injuriously affected that specific personal or legal interest . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest . . .
“Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.” (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665.
In the complaint, the plaintiffs allege that they own the subject CT Page 14627 properties. (Appeal, ¶¶ 1 and 2.) They allege that they are both classically aggrieved, as owners of the subject properties whose application to use those properties has been denied; (Appeal, ¶ 15); and statutorily aggrieved, as each plaintiff owns land that abuts land involved in the decision of the board; (Appeal, ¶ 16). At trial, the plaintiffs introduced two deeds: plaintiffs’ exhibit 1, which shows that the plaintiff LP is the owner of 106 Merwin Avenue, and plaintiffs’ exhibit 2, which shows that the plaintiff LLC is the owner of 112 Merwin Avenue. “[A] plaintiff’s status as owner of the property establishes that she has `a specific personal and legal interest in the subject matter of the decision.’ The fact that the agency’s decision resulted in the denial to the plaintiff of the ability to use this property as proposed establishes that `this specific personal and legal interest has been specially and injuriously affected.'” (Internal quotation marks omitted.) Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987). From this undisputed evidence, therefore, the court finds that the plaintiffs are classically aggrieved by the commission’s decision. As the court finds that the plaintiffs are classically aggrieved, it is not necessary to consider whether they are also statutorily aggrieved.
B Timeliness and Service of Process
Pursuant to General Statutes § 8-8(b), an “appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes . . .”
General Statutes § 8-8(1) provides in relevant part: “Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows . . . (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57 . . .” General Statutes § 52-57(b) provides that “[p]rocess in civil actions against the following-described classes of defendants shall be served as follows . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . .”
Notice of the commission’s decision was published in the New Haven Register on June 23, 2006. (ROR, Item ii.) The plaintiffs commenced this CT Page 14628 appeal on July 6, 2006, within fifteen days from the date of publication, by service of process upon the board, by leaving two copies of the summons, citation and appeal with the city clerk of the city of Milford, Alan H. Jepson. (Marshal’s Return.) Accordingly, the court finds that this appeal is timely and that service of process was proper.
IV SCOPE OF REVIEW
“It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own.” (Internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). “In appeals from administrative zoning decisions, the commission’s conclusions will be invalidated only if they are not supported by substantial evidence in the record.” (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001).
“Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when [an] agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [i]t is for the courts, and not administrative agencies, to expound and apply governing principles of law.” (Emphasis in original; internal quotation marks omitted.) Trumbull Falls, LLC v. Planning Zoning Commission, 97 Conn.App. 17, 22, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006). “Because the interpretation of the regulations presents a question of law, [the court’s] review is plenary.” (Internal quotation marks omitted.) Id., 21.
The parties agree that the board has not stated a formal, collective reason for its decision in the record. “When a zoning commission has not stated on the record the basis of its determination, the reviewing court must search the record to determine the basis for the commission’s decision . . . If any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld . . . A reviewing court may not substitute its own judgment for that of the commission. The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached . . . The evidence, however, to support any such decision must CT Page 14629 be substantial . . . In light of the existence of a statutory right of appeal from the decisions of local zoning authorities, however, a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) Clifford v. Planning Zoning Commission, 280 Conn. 434, 452-53, 908 A.2d 1049 (2006).
In support of their appeal, the plaintiffs make the following three arguments: (1) The application should have been approved because it meets all of the requirements in the statutes and regulations; (2) the nonconforming use of the subject properties as multifamily dwellings has not been abandoned; and (3) the board acted illegally and arbitrarily in disregarding the only expert evidence in the record regarding flood control. These arguments are addressed in turn.
A Special Exception
The plaintiffs first argue that their special exception application satisfied all of the requirements in the statutes and regulations and that, accordingly, it should have been approved. Specifically, they argue that § 7.3.5 of the Milford zoning regulations requires approval of special exception applications by owners of legal nonconforming two-, three-or four-family dwellings to extend, enlarge or alter such structure or use if the applicants satisfy the minimum development standards for the zone. They maintain that the application for a special exception does not turn on whether the application is special or exceptional.
The defendant board maintains that it properly denied the plaintiffs’ application because it does not comply with § 6.2 et seq. of the zoning regulations. It argues that § 6.2.1 prohibits enlargement, extension, movement or change of nonconforming uses beyond the footprint of the existing nonconforming structure. It further notes that § 6.2.1 provides: “No non-conforming use of a structure shall be extended to occupy land outside such structure or space in another structure.” Milford Zoning Regs., Art. VI, § 6.2.1. The defendant contends that the proposal violates this prohibition because it requires the merger of the CT Page 14630 two lots at 106 and 112 Merwin Avenue. Further, it notes that § 6.2.6 of the regulations requires a nonconforming structure to be restored within two years of its partial destruction and that such restoration may be made only if 50 percent or less of the structure has been destroyed; it argues that because more than 50 percent of the structure at 112 Merwin Avenue was destroyed, the plaintiffs are prohibited from restoring the property regardless of whether the nonconforming use had been abandoned. Moreover, it argues, the three-family structure located at 112 Merwin Avenue was partially destroyed more than ten years prior to the plaintiffs’ submission of their application, which exceeds the two-year limitation for restoration set forth in § 6.2.6.
The defendant also argues that the board has broad discretion in determining whether an application for special permit or special exception meets the requirements set forth in the regulations. It maintains that § 7.3.5 of the regulations does not supercede § 6.2.6, and that § 7.3.5 simply authorizes owners of nonconforming multifamily structures to apply for special exceptions, but does not require the board to approve such applications. It also contends that § 7.3.5 does not apply to the plaintiffs’ property because its right to continue the nonconforming use has been extinguished pursuant to § 6.2.6. It further maintains that the property at 106 Merwin Avenue does not meet the minimum requirements of the SFA-10 district, specifically the minimum lot width of fifty feet, because that parcel is merely thirty-eight feet wide. They note that the plaintiffs’ proposal would combine the two parcels into one lot, arguably meeting this requirement, but that combining these lots would violate the prohibition against expanding a nonconforming use or structure set forth in § 6.2.1. It notes that the regulations contain no provision that would allow the plaintiffs to combine their land to meet the requirements of the SFA-10 district for the purposes of § 7.3.5.
In their reply brief, the plaintiffs note that only one of the three units at 112 Merwin Avenue was destroyed in the explosion, not two. They further maintain that issues of abandonment or merger of lots are irrelevant. They contend that § 7.3.5 of the regulations grants a specific right to owners of legal two-, three-or four-family dwellings to extend, enlarge or alter such nonconforming lot, structure or use. Finally, they argue that they are not prohibited from combining their parcels to meet the standards for the SFA-10 district. They maintain that their application meets the standards of § 7.3.5 and that the board had no discretion to deny it.
Before the court can address the issue of whether the plaintiffs were otherwise entitled to the special exception, the court first must CT Page 14631 address whether the plaintiffs’ nonconforming use had been extinguished. Section 7.3.5 provides in relevant part that “[a]n owner of a legal nonconforming Q, 3, or 4-family dwelling, office or restaurant use of land or structure . . . shall be authorized to make application for a Special Exception to extend, enlarge or alter said legal non-conforming lot, structure or use, provided that the applicant meets the minimum development standards of the SFA-10 District for a 2, 3 or 4-family use . . .” (Emphasis added.) As this regulatory provision applies only to owners of legal nonconforming uses or structures, the court must determine whether the plaintiffs’ properties meet this requirement. The parties do not dispute that the structures on these parcels were legal nonconforming structures in the past, but they disagree as to whether the nonconforming use of 112 Merwin Avenue has been extinguished. Accordingly, the court must consider whether the nonconforming use of that property has been abandoned.
B Abandonment of Nonconforming Uses
The plaintiffs contend that the record does not contain evidence demonstrating that their nonconforming use of the subject property has been abandoned under § 6.2.7 and that the board did not make a finding of abandonment. They further argue that the specific requirements of § 7.3.5, which authorizes expansion of nonconforming uses, supercede those of § 6.2.6, pertaining to restoration, and § 6.2.7, pertaining to abandonment of nonconforming uses. They contend that abandonment is a question of fact and that the board could not reasonably have concluded from the facts in the record that the plaintiffs intended to abandon their nonconforming use. They maintain that the evidence shows that 106 Merwin Avenue has been continuously occupied as a multifamily dwelling for over thirty years, that 112 Merwin Avenue was partially destroyed through no fault of the owner, and that the owner testified that she never intended to abandon the nonconforming use of that property. The defendant counters that the plaintiffs have abandoned their nonconforming use of the property at 112 Merwin Avenue.
Under the clear and unambiguous language of § 6.2.6 of the regulations, if the court were to limit its analysis to the application of that provision to the evidence in the record, the plaintiffs’ right to continue their nonconforming use of 112 Merwin Avenue has been extinguished. Although the record supports the plaintiffs’ assertion that one unit, not two, was destroyed in the gas explosion in 1993; (ROR, Item r, p. 5: Leo Carroll, p. 26: Joan Grossman); and, consequently, the provision in § 6.2.6 of the regulations, prohibiting CT Page 14632 restoration of nonconforming structures where more than 50 percent of the nonconforming structure has been destroyed, would not apply to the property at 112 Merwin Avenue, the record contains substantial evidence to support the board’s assertion that the structure was not restored within two years of sustaining the damage. In fact, the record shows that it has not been restored for approximately thirteen years, between when the damage occurred and submission of the present application. Consequently, under the two-year time limitation set forth in § 6.2.6, the plaintiffs’ right to restore and continue that nonconforming use has been extinguished.
Nevertheless, as the defendant concedes, zoning “regulations shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of the property owner to maintain that use . . .” General Statutes § 8-2. Consequently, despite the language in § 6.2.6 of the regulations prohibiting the restoration or continuation of the nonconforming use of 112 Merwin Avenue solely on the basis of the plaintiffs’ nonuse for more than two years, the court must consider the plaintiffs’ argument that they nevertheless have not abandoned their nonconforming use of the property.
“A nonconformity has been defined as a use or structure [that is] prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations [were] adopted . . . For a use to be considered nonconforming . . . that use must possess two characteristics. First, it must be lawful and second, it must b in existence at the time that the zoning regulation making the use nonconforming was enacted . . .
“Nonconforming uses are protected by the express language of General Statutes § 8-2. To be sure, [i]t is the indisputable goal of zoning to reduce nonconforming to conforming uses with all the speed justice will tolerate . . . While [t]he accepted policy of zoning . . . is to prevent the extension of nonconforming uses . . . legally existing nonconforming uses are property rights vested in the land . . . [T]he rule concerning the continuance of a nonconforming use protects the right of a user to continue the same use of the property as it existed before the date of the adoption of the zoning regulations . . .
“Once a nonconforming use is established, the only way it can be lost is through abandonment . . . The issue of a specific intent to relinquish a nonconforming use presents a question for the trier of fact.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Campion v. Board of Aldermen, 85 Conn.App. 820, 842-43, CT Page 14633 859 A.2d 586 (2004), rev’d on other grounds, 278 Conn. 500, 899 A.2d 542
(2006). “Abandonment is a question of fact which implies a voluntary and intentional renunciation. Nevertheless, the intent to abandon may be inferred as a fact from the circumstances . . . To establish abandonment, the intention on the part of the owner [must be] to relinquish permanently the nonconforming use.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 93, 527 A.2d 230 (1987). Section 126.96.36.199 of the regulations establishes that “[t]he term abandonment, as used herein, shall mean the voluntary discontinuance of a use, when accompanied by an intent not to re-establish such use . . .” Milford Zoning Regs., Art. VI, § 188.8.131.52. “Thus, under the [Milford zoning] regulations, two criteria must be satisfied in order to establish abandonment of a nonconforming use: (1) that there was a voluntary discontinuance of the use; and (2) that the voluntary discontinuance was accompanied by an intent not to reestablish that use.” Caserta v. Zoning Board of Appeals, 41 Conn.App. 77, 82, 674 A.2d 855 (1996).
The plaintiffs have the burden of proving the existence of a nonconforming use. Taylor v. Zoning Board of Appeals, 65 Conn.App. 687, 694, 783 A.2d 526 (2001). To meet this burden, the plaintiffs point to the testimony of Joan Grossman, the general partner of the LP, presented at the May 16, 2006, public hearing. That testimony can be summarized as follows: After the 1993 explosion, which was caused by a faulty connection by the gas company, Grossman never abandoned her efforts to remodel and rent the units at 112 Merwin Avenue. She kept notes of planning meetings with Peter Crabtree and the planning and zoning staff, as well as notes with her attorney, Leo Carroll. (ROR, Item r, pp. 26-27.) She further testified, “I have also spent considerable time negotiating with prospective buyers and developers interested in re-establishing six unit use. I have never taken any action whatsoever to abandon my determination to preserve the re-establishment of the original six two-bedroom units.” (ROR, Item r, p. 27.)
Although no testimony was presented at any of the zoning hearings to directly contradict Grossman’s testimony, the defendant counters that the assessor’s field card for the property describes the property as vacant land and notes that it is taxed as such. (ROR, Item I.) The board argues that the record contains no evidence that the plaintiffs ever attempted to challenge the assessment and that they “have reaped the benefit for property assessed as vacant land . . .” (Defendant’s brief, p. 10.) It notes that the record shows that the property has been a “boarded up derelict structure that has not been used for any purpose for years.” (ROR, Item z.) Moreover, it notes that pursuant to § 184.108.40.206 (1) of the regulations, “[a]ny failure to take all reasonable steps to CT Page 14634 resume the non-conforming use with reasonable dispatch in the circumstances, including advertising of the property for sale or lease” constitutes “prima facie evidence of intent to abandon” a nonconforming use.
Even where the evidence of abandonment in the record is contradictory, “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” (Internal quotation marks omitted.)Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588, 628 A.2d 1286
(1993). Accordingly, the court must determine based on the conflicting evidence in the record whether substantial evidence in the record would support a finding by the board that the plaintiffs intended to abandon their nonconforming use of 112 Merwin Avenue.
The record contains no evidence that the plaintiffs challenged the description of the property in the tax assessor card as vacant land, and the lower assessment and taxes that were concomitant with that description. (See ROR, Item I.) Although it may be contrary to human nature to bring to the attention of tax assessors or tax collectors the fact that property is being undervalued, as that would undoubtedly bring the undesired result of increasing the property tax assessment, allowing the property to be described as vacant land would support a finding that the plaintiffs intended not to reestablish their nonconforming use. If the plaintiffs intended to reestablish the use, they could have challenged that assessment. Moreover, the record is devoid of any evidence, other than Grossman’s conclusory assertions, showing any specific actions that the plaintiffs took to reestablish their nonconforming use of their property prior to submission of the present application. This inaction by the plaintiffs, therefore, constitutes substantial evidence of their intent to abandon the nonconforming use.
Although Grossman’s testimony could arguably constitute evidence of her lack of intent to abandon the nonconforming use of the property at 112 Merwin Avenue, the court’s role is not to substitute its judgment for that of the board, but merely to examine the record to determine whether it contains substantial evidence in support of the board’s decision. Moreover, even if the board had credited Grossman’s testimony that she had taken affirmative steps to preserve the nonconforming use, that testimony does not state specifically what she did or whether those efforts were more than sporadic or intermittent, especially in light of the evidence showing that the property has been unoccupied for roughly thirteen years, and that, other than their prior submission of an identical application which had been withdrawn and subsequently re-filed as the present application; (ROR, Item a); this application is the only CT Page 14635 such application that has been filed by the plaintiffs concerning these properties during that thirteen-year period. (ROR, Item b.) For these reasons, the defendant’s implicit finding that the nonconforming use of the property at 112 Merwin Avenue has been abandoned is supported by substantial evidence in the record.
The plaintiffs also argue that § 7.3.5 of the zoning regulations supercedes § 6.2.6 and that § 6.2.7 is inapplicable. The plaintiffs contend that not only was there no abandonment, but the express and specific authorization contained in § 7.3.5 renders abandonment a non-issue. The plaintiffs contend that the only requirements for approval of their application are (1) that the nonconforming use predates the adoption of any municipal regulation rezoning the area to single-family residences and (2) that the applications meet the minimum standards for the SFA-10 district.
The simple answer to this argument is that § 7.3.5 is applicable only to legally valid nonconforming uses or structures, and, as discussed above, such use of 112 Merwin Avenue has been abandoned. The plaintiffs cannot successfully argue that the property is nonconforming while maintaining that the nonconformity is not subject to the legal analysis of abandonment. The court has found that the nonconforming use of 112 Merwin Avenue was abandoned. As such, the property does not qualify for a special exemption under § 7.3.5 of the zoning regulations.
Moreover, the plaintiffs do not contend that 106 Merwin Avenue would quality for a special exception without being combined with 112 Merwin Avenue. Accordingly, the appeal is not sustained on the ground that the plaintiffs are entitled to approval of their application.
C Flooding/Expert Witness
The plaintiffs also contend that the board disregarded the only expert evidence available regarding the issue of flood control, a technically complex matter outside the expertise of the board members. They maintain that this expert presented evidence or testimony showing that the proposed project would bring the property up to present day flood control standards and would not significantly alter the flooding characteristics of the site or of adjacent properties. They contend that their decision, therefore, was not based on the evidence in the record and that the board acted arbitrarily in disregarding that evidence. The defendant does not address this argument in its brief. Because the court has concluded that the nonconforming use of 112 Merwin Avenue has been abandoned, and that, consequently, it does not qualify for a special CT Page 14636 exception under § 7.3.5 of the regulations, the issue of whether the board inappropriately disregarded expert evidence on flooding issues is irrelevant and will not be addressed.
The decision of the board is supported by substantial evidence in the record. Therefore, the court dismisses the plaintiffs’ appeal.
(1996) (“[i]ssues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided”).
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