2011 Ct. Sup. 20188
No. FST CV10-6006012SConnecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
September 16, 2011
Memorandum of Decision on Appeal from the Zoning Board of Appeals
ALFRED J. JENNINGS, JR., Judge Trial Referee.
The plaintiffs Roy A. Abramowitz and Janice Schaefer Abramowitz appeal to this court from a decision of the defendant Zoning Board of Appeals (ZBA) of the Town of New Canaan which, following a public hearing on June 22, 2010, denied their appeal from the decision of Senior Enforcement Officer Steven Kleppin who determined, following an investigation spurred by a complaint from the plaintiffs, that two exterior lighting fixtures on the front of the garage of the Marvin property at 612 Laurel Road, New Canaan, Connecticut did not violate Section 6.11 of the New Canaan Zoning Regulations.
Procedural/Factual Background
Respondents Jeffrey and Christine Marvin have had exterior lights on their detached garage since they bought their home in 2005, and their predecessor had those lights for many years prior to the purchase of the home by the Marvins. In response to a complaint from their across-the-street neighbor Roy Abramowitz about glare from the lights, the Marvins in 2009 replaced their old unshielded light fixtures with shielded cannister lights and also reduced the wattage of the bulbs, but Mr. Abramowitz continued to complain about glare from the lights which he says sometimes remained on until 2 o’clock in the morning, casting a glare into his bedroom and hallway and causing light trespass. Mr. Abramowitz made a complaint to the zoning enforcement officer. Senior Enforcement Officer Steven Kieppin conducted an investigation which included discussions with all parties and multiple e-mail communications to and from Mr. Abramowitz, an examination of closeup photos of the Marvin’s lighting fixtures taken in daylight, and several trips to the property at night to observe the lights while they were lit. He concluded that the lights are fully shielded with recessed bulbs and shine downward and not towards the Abramowitz house, which he found to be about 275 feet away from the Marvin garage, and at a higher elevation, and that the lights are only visible from the bottom of the fixture and do not cast a CT Page 20189 glare to the Abramowitz house. He concluded that the light fixtures do not violate Section 6.11 of the New Canaan Zoning Regulations, and so advised the parties by his letter of April 16, 2010 with a copy to Mr. Roy Abramowitz. (Return of Record “ROR” Ex. 17.) Mr. and Mrs. Abramowitz appealed to the ZBA from the issuance of the April 16, 2010 letter. (ROR Ex. 24.) The ZBA conducted a duly noticed public hearing on the appeal on June 22, 2010 at which Mr. Abramowitz, Mr. And Mrs. Marvin, Mr. Kleppin and several other witnesses testified. After the hearing closed, the board decided by a 4-1 vote to deny the Abramowitz appeal (ROR Ex. 39.) This appeal to the Superior Court followed. The Return of Record and a Supplemental Return of Record (transcript of hearing) have been filed. Briefs have been filed by the plaintiffs and the ZBA. On May 19, 2011 the court heard evidence of aggrievement and arguments of counsel. This memorandum of decision is the court’s judgment on the appeal.
Jurisdiction
General Statutes § 8-8 governs an appeal taken from a decision of a zoning board of appeals. “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, 1989).
Aggrievement
“It is well settled that pleading and proof of aggrievement to a trial court’s jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved.” Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38
(2003). The plaintiffs have pleaded aggrievement based upon their ownership of property at 581 Laurel Road, New Canaan, Connecticut, which they allege to be “adjacent” to the property owned by the defendants Jeffrey H. Marvin and Christine J. Marvin at 612 Laurel Road, New Canaan, Connecticut, which is the subject property involved in this appeal. (Appeal, ¶ 2.) Conn. Gen. Stat. § 8-8(a)(1) provides that an “aggrieved person” includes “any person owning land that abuts or is within a radius of 100 feet of any portion on the land involved in the decision of the board.” The court has reviewed the warranty deed by which the plaintiffs acquired title to the premises at 581 Laurel Road (Pl. Ex, 1,) and finds that the plaintiffs do in fact own that property. The court has also reviewed the tax assessor’s record for 612 Laurel Road (ROR, Ex. 16) and finds that property to be owned by the defendants Jeffrey H. Marvin and Christine J. Marvin. There was testimony that 581 Laurel Road is across the street from the Marvin property at 612 Laurel CT Page 20190 Road, which road Mr. Abramowitz testified to be 15-20 feet wide. Based on this undisputed testimony the court finds that the plaintiffs Roy A. Abromowitz and Janice Schaeffer Abromowitz are statutorily aggrieved in that they own property which is within a radius of 100 feet of any portion on the land involved in the decision of the board.
Standard of Decision
Zoning boards are endowed with liberal discretion. Cumberland Farms v. Zoning Board of Appeals for the Town of Groton, 74 Conn.App. 622, cert. denied, 263 Conn. 901 (2003). “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.” Raymond v Zoning Board of Appeals for Norwalk, 76 Conn.App. 222, 228 (2003). “Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . .” (Internal citations and quotation marks omitted.) Adolphson v. Zoning Board of Appeals for Fairfield, 205 Conn.703, 707 (1988). As stated i Hoffer v. Zoning Board of Appeals of Town of Oxford, 64 Conn.App. 39, 41 (2001):
Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing . . . The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs.
Thus, this court may interfere only if the board acted arbitrarily or illegally or so unreasonably as to have abused its discretion. Culinary Institute of America v. Board of Zoning Appeals, 143 Conn. 257, 262
(1956).
The zoning board of appeals hears and decides an appeal from the decision of a zoning enforcement officer “de novo.” Caserta v. Zoning Board of Appeals, 226 Conn. 80, 88-89 (1993).The trial court reviews the record to determine whether the board acted fairly or with proper motives or upon valid reasons. Spero v. Zoning Board of Appeals, 217 Conn. 535, 440
(1991). Where a zoning board of appeals does not formally state the reasons for its decision, the trial court must search the record for a basis of the board’s decision. Bloom v Zoning Board of Appeals, 233 Conn. 198, 208 (1995). Although individual members of the board may CT Page 20191 discuss or articulate their reasons for granting a variance, that cannot stand as the formal, official collective reason for the board’s action, which must include an ultimate decision with express reason behind that decision, Harris v. Zoning Commission, 259 Conn. 402, 420-21 (2002). In this case, although the transcript contains some statements by individual board members in their questioning and their deliberations, there is no collective official statement of the reason or reasons for denying the Abramowitz appeal from the decision of the zoning enforcement officer. The court will therefore search the record for a basis of the board’s decision. In doing this, the courts “must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions.” Samperi v. Inland Wetlands Agency, 226 Conn. 579, 596 (1993). The credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency. Stankiewicz v. Zoning Board of Appeals of the Town of Montville, 15 Conn.App. 729, 732 (1988). “A local board or commission is the most advantageous position to interpret its own regulations and apply them to situations before it.” Farrior v. Zoning Board of Appeals, 70 Conn.App. 86, 89 (2002). Ultimately, however, the interpretation of an ordinance or regulation is an issue of law for the court, Meldoy v. Zoning Board of Appeals of Glastonbury, 158 Conn. 516, 518, (1995), and should be guided by the normal principles of statutory construction:
[R]egulations must be interpreted in accordance with the principle that a reasonable and rational result was intended . . .
Whenever possible, the language of zoning regulations will be construed so that no clause is deemed superfluous, void or insignificant . . . The regulations must be interpreted so as to reconcile their provisions and make them operative so far as possible . . . When more than one construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizzare results. (Citations and internal quotation marks omitted.) Graff v. Zoning Board of Appeals, 277 Conn. 645, 652-53 (2006).
Discussion
The court’s search of the record begins with the plaintiffs’ July 15, 2010 Appeal from Zoning Board of Appeals, (No. 100.31) in which the plaintiffs allege in ¶ 9 that the ZBA acted illegally, arbitrarily, and in abuse of its discretion, in that: (a) the Board ignored evidence of a viable solution to the problem in that the Marvins could put their lights on a timer or sensitivity detector as required by the zoning CT Page 20192 regulations, under § 6.11B7 and 8; (b) the Board’s decision is not in harmony with the purpose of the zoning regulations, under § 6.11A, which is intended to avoid unnecessary upward illumination and illumination of adjacent properties, and to reduce glare, while the Marvin’s lights reflect off their garage and cause glare problems in the plaintiffs’ home; (c) the Board’s decision in is violation of the Town’s Zoning Regulations, under § 6.11B.1 in that all exterior lights shall be designed, located, installed and directed in such a manner as to: prevent objectionable glare or light trespass; be shielded to the extent possible; employ soft, transitional light levels which are consistent from area to area; minimize contras between light sources, lit areas and dark surroundings; and be confined within the target area; (d) the Board’s decision allows the Marvins to maintain light fixtures that are causing light to trespass on plaintiffs’ property, cause an objectionable glare, that is so intense that if looked into directly have caused the plaintiffs’ eyes to hurt and have caused yellow spots to appear, and lights are illuminating the interior of the plaintiffs’ home at 3:00 a.m.; (f) [there is no allegation (d)] the Board’s decision is in violation of the purpose of the zoning regulations, under § 6.11B.1.2 in that all residential zones and in all areas adjacent to residential property, no externally-mounted, direct light source directed toward the property line shall be visible at the property line at ground level or above; (g) the Board’s decision has impaired the plaintiffs’ right to reasonable use of the property and quiet enjoyment; (h) for such other reasons as a complete review of the record may reveal.[1] The plaintiffs’ brief of January 31, 2011 (No. 112) additionally argues that Mr. Kleppin of the zoning enforcement office was derelict in his duties in that he did not properly investigate the complaint of a violation of § 6.11B.2. by the defendants, and that the ZBA’s decision of June 22, 2010 was not grounded on a complete investigation and is thus useless.
Since the central issue involved in this appeal is whether or not the ZBA properly determined that the lights on the front of the Marvins’ garage were not in violation of § 6.11 (Outdoor Lighting) of the New Canaan Zoning Regulations, [2] the court will set forth that section of the regulations in its entirety:
A. Purpose. These regulations are intended to provide specific standards in regard to lighting, in order to maximize the effectiveness of site lighting to enhance public safety and welfare, to raise public awareness of energy conservation, to avoid unnecessary upward illumination and illumination of adjacent properties, and to reduce glare.
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B. Standards
1. All exterior lights and sign illumination shall be designed, located, installed and directed in such a manner as to: a. prevent direct or objectionable glare or light trespass, b. be shielded to the extent possible, c. employ soft, transitional light levels which are consistent from area to area, d. minimize contrast between light sources, lit areas, and dark surroundings, and e. be confined within the target area.
2. In all residential zones and in all areas adjacent to residential property, no externally-mounted, direct light source directed towards the property line shall be visible at the property line at ground level or above.
3. To reduce off-site glare, lighting fixtures for all parking and pedestrian areas shall be: a. full cut-off type fixtures, or b. fully shielded recessed fixtures where the lens is recessed or flush with the bottom surface.
4. Lighting fixtures for building security or aesthetics and any display purposes shall, except as may otherwise be approved, be: a. top downward (not upward or sidewise), and b. full cut-off or fully shielded/ recessed.
5. Where outdoor playing fields or other special outdoor activity areas are to be illuminated, lighting fixtures shall be specified, mounted, and aimed so that: a. their beams fall within the primary playing area and immediate surroundings, and b. no direct illumination is directed off the site.
6. Lighting designed to highlight flagpoles shall be low level and shall be targeted directly at the flag.
7. All non-essential lighting (such as display, aesthetic, parking, and sign illumination) shall be configured for “photocell on-time clock off” operation.
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8. Where necessary, lighting for site security may be configured for motion or infrared sensor operation.
9. The height of luminaries, except streetlights in public right-of-ways, shall be the minimum height necessary to provide adequate illumination, but shall not exceed a height of thirty (30) feet.
Section 6.11 has an attachment consisting of two boxes of drawings of typical outside lighting fixtures, entitled: “Fixtures Which Might
Produce Glare or Light Trespass” (23 sample drawings of various labeled categories) and “Fixtures Which Might Not Produce Glare or Light Trespass” (19 sample drawings of various labeled categories) Additionally, there are certain definitions of terms in Section 2.2 of the Zoning Regulations which relate to an understanding of § 6.11. They are:
Light, Direct — Light emitted directly from the lamp, off of a reflector or reflector or reflector diffuser, or through the refractor or diffuser lens, of a luminaire.
Light Fixture, Full Cut-Off Type — A luminaire or light fixture that, by design of the housing, does not allow any light dispersion or direct glare to shine above a 90 degree horizontal plane from the base of the luminaire.
Light, Fully Shielded — Fully shielded luminaire light fixtures which can control the glare in any direction
Light Glare — Light emitting from a luminaire with intensity great enough to reduce a viewer’s ability to see.
Light, Indirect — Direct light that has been reflected or has scattered off of surfaces other than those associated with the light fixture.
Light Trespass — Direct light from an artificial light source on one property that is intruding into an area where it is not wanted and does not CT Page 20195 belong.
There is also a diagram accompanying the definitions, which graphically illustrates the various types of light. (“The § 6.11 light definition diagram”).
The court will address each of the plaintiff’s allegations of error:
A. Adequacy of the Investigation
Plaintiff makes two allegations about the investigation by the Zoning Enforcement Officer which was the source of most of the evidence at the hearing. The first claim is that Mr. Kleppin did not properly investigate the claimed violation of § 6.11B2 (direct light source directed toward the property line visible at or above ground level at the property line.), which is also incorporated into the second claim that the ZBA decision “was not grounded on a complete investigation and is thus baseless.” The gist of these claims is the undisputed fact that Mr. Kleppin declined the request to enter the Abramowitz house at night and look out at the Marvin lights from the Abramowitz bedroom windows, and his testimony why he did not enter the home in order to determine that there was no “light trespass”:
His [Marvin’s lights are shielded within a fixture that is recessed. You can’t — unless you are looking up from underneath, you can’t see the light source. You can’t stand on his road, you can’t stand at Mr. Abramowitz’s property and see the light bulb. Impossible. (ROR Ex. 44, p. 36.)
Direct light, if you look at the picture, [ROR Ex. 4] pointing directly down from the light source. Indirect light is a reflection of the light off that light source. And also, if you look at that, the diagram [the § 6.11 light definition diagram] has a red dash line, to the left of that would be considered light trespass if the direct lighting entered the person’s property. You can see from the diagram that direct lighting, and conveniently for this picture [the diagram] stops at the property line. Anything that’s seen beyond that is considered indirect light, which obviously is not a violation. (ROR Ex. 44, p. 38-39.)
Mr. Kleppin’s testimony then shifted to claims that indirect light was coming into the Abramowitz bedroom windows: CT Page 20196
I think two [§ 6.11B2. — direct light source directed toward the property line] that the light’s direct light source is not directed toward the property line. Now whether somehow it bounces off the paint or the garage and hits the driveway and bounces back up into his bedroom window, which is at a different elevation. How do you regulate that? How do you expect town staff to say, well, this, you know, looks at some point it would hit this rock and hit this tree and bounce into his window and cause some light to enter his house. It would be putting Town staff, any staff, in an impossible situation to try to figure that out. (ROR Ex 44, pp. 38-39.)
Not saying you can’t have a close fixture somehow the light bounces off of something, bounces off of something else and somehow somebody several 100′ away is seeing yellow spots. I don’t know how — I think for us to try to get involved in the middle of these things, is a little much to ask. (ROR Ex 44, p. 39.)
Plaintiffs focus entirely on the fact Mr. Kleppin did not enter their home to investigate their claim of direct light trespass, and on the very last off-the-cuff remark last quoted above — perhaps made somewhat in frustration — that further investigation (of indirect light infiltration) “is a little too much to ask.” But Mr. Kleppin has adequately explained why it was not necessary to enter the home to investigate the claimed § 6.11B2 (direct light trespass). He could see that the fixtures were shielded, with recessed bulbs and that the fixtures were pointed directly down. He knew that the Abramowitz house was at a higher elevation than the Marvin house. He knew that he could not see the light source from the road between the two homes. He concluded very logically, without any need to go further into the Abramowitz property and enter their home, that “you can’t stand at Mr. Abramowitz’s property and see the light bulb. Impossible.”[3] With this background, the ZBA acted well within its discretion in accepting the investigation of the claimed § 6.11B2 investigation. The “little too much to ask” comment cannot detract from the validity of the direct light investigation, which is a matter of record. And, the remark clearly did not relate at all to direct light, but to plaintiff’s claims of indirect light coming into their home.
Furthermore, the record is replete with facts of a thorough and appropriate investigation. Mr. Kleppin was familiar with the Abramowitz CT Page 20197 home and neighborhood from a previous light infiltration complaint filed against a different neighbor. He had daytime photographs taken of the Marvin light fixtures including closeups which show design detail. (ROR Ex. 4.) He interviewed all parties He was very familiar with the provisions of § 6.11 of the regulations. He communicated with Mr. Abramowitz by multiple emails for over a month while this claim was pending. (ROR Ex. 5-15, Ex. 18.)
The court therefore rejects the claims about the inadequacy of the Kleppin investigation.
B. Claimed Violations of § 6.11
The court has already discussed the claim of a § 6.11B2, direct light violation, which has no merit. The plaintiffs also allege that the Marvin lights violate § 6.11B.1.a, requiring that all exterior lights be designed, located, installed, and directed in such a manner as to “prevent direct or objectionable glare or light trespass.” Plaintiff allege that “The Marvins’ lights reflect off their garage and cause glare problems in the plaintiffs’ home” (Appeal ¶ 9b); and “The Board’s decision allows the Marvins to maintain light fixtures that . . . cause an objectional glare that is so intense that if looked into directly have caused the plaintiffs’ eyes to hurt and have caused yellow spots to appear.” (Id. ¶ 9e.) The Zoning Enforcement position is summed up in Mr. Kleppin’s memorandum of his site inspection on April 15, 2010:
I conducted an inspection of the exterior lights on the Marvin’s detached garage @ 612 Laurel Road. This was my third attempt to view the lights at night. As I approached from the south towards the Marvin’s, the Arramowitz home was clearly visible as you descended the hill. It appeared that the Abramowitz house had every single interior light on within their house. The house was clearly the most visible house on the entire extent of Laurel Road I traveled on.
On this occasion the Marvin’s lights for their detached garage were on, as opposed to my 2 prior inspections. The Marvin’s lights shine directly down. In my opinion they do not pose any glare and definitely do not project towards any neighboring property.
As I observed on previous inspections, there are numerous residences on Laurel Road who have exterior CT Page 20198 lights where the light source is visible as well as being significantly brighter than the light emanating from the lights at the Marvin’s garage. (ROR Ex. 12.)
There was significant factual evidence before the board, supportive of Mr. Kleppin’s opinion of no glare violation. One is the fact that Mrs. Abramowitz herself, a plaintiff in this case, admitted to Mr. Kleppin on April 12, 2010 that “. . . she did not feel that the lights were a zoning issue, but were a `good neighbor’ issue . . .” (ROR Ex. 20.) Also, there is the testimony by Mr. Marvin that he voluntarily replaced the original unshielded lights that had been on the garage for fifteen years in response to a complaint from Mr. Abramowitz. He selected the present shielded and recessed lights at Home Depot, after consulting the zoning code, and installed them himself pointing directly down. When Mr. Abramowitz continued to complain Mr. Marvin replaced the 100 watt bulbs in each fixture with 32 watt bulbs. (ROR Ex 44, p. 48.) When one compares the present Marvin lights (pictured at ROR Ex. 4) to the diagram of lights in the box for “Fixtures Which Might Not Produce Glare or Light Trespass,” contained in ¶ 6.11 (ROR, Ex. 43, p. 127) the drawing appearing strikingly similar to the Marvin shielded recessed cannister light fixtures is shown in the center of the box under the heading “Fully Shielded Fixtures.” And there was testimony from Mr. Kleppin that he measured the distance from the Marvin garage to the Abramowitz home using the Town’s GIS system, at about 275 feet. (ROR Ex. 17.) It is also relevant that three of the ZBA members (Chairperson Yanicelli and members Barfuss and Ziotas) had inspected the Marvin lights in darkness, while lit, and gave their impressions to the Board, all saying that the lights were not a zoning violation. (ROR Ex. 44, pp. 11, 51-52,) All of these factors corroborate Mr. Kleppin’s position that there was no glare violation of § 6.11.
The other violation complaint is that the ZBA “ignored evidence of a viable solution to the problem in that the Marvins could put their lights on a timer or sensitivity detector” as required by § 6.11B7 and 8. (Appeal, ¶ 9a.) Mrs. Marvin testified that “. . . if I would be safer and I want to leave my lights on at night, I should have the right to do so.” (ROR Ex. 44, p. 47.) Section 6.11B.7 says that “[a]ll non-essential lighting (such as display, aesthetic, parking, and sign lighting) shall be configured for “photocell on — time clock off operation.” (Emphasis added.) There was credible evidence from which the ZBA could reasonably find that the Marvin garage exterior lighting was not “non-essential.” Mrs. Marvin testified that the lights are there for safety reasons:
My husband and I are parents of three children and they are all of driving age and yes, we enter and exit CT Page 20199 our home at all hours of the day, mostly my kids at night, we’re usually in bed at night. Thus, it is imperative that our property be visibly lit to ensure our safety and security for anything as innocuous as walking from the garage to our front door, putting our key in the lock, to discourage intruders or trespassers. (ROR Ex. 44, p. 44.)
The ZBA therefore had evidence from which it could reasonably conclude that the Marvins were within their rights under § 6.11 in electing not to install any timer or clock device.
Section 6.11.B.8 provides that “Where necessary, lighting for site security may be configured for motion or infrared sensor operation.” (Emphasis added.) As a matter of law, the Marvins had no obligation to comply with that voluntary suggestion, and their decision not to have a motion detector was not a violation of § 6.11.
Conclusion and Order
For all these reasons the court concluded that the plaintiffs have not met their burden of showing that the New Canaan ZBA failed to act fairly or with proper motives or upon valid reasons in rejecting their appeal from the decision of the Zoning Enforcement Officer. The court has searched the record and has found evidence before the board which reasonably supports its conclusions. The court therefore finds in favor of the defendant Zoning Board of Appeals of the Town of New Canaan. The plaintiffs’ appeal is dismissed.
SO ORDERED
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