Daily Development for Friday, June 8, 2001

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

CONSTITUTIONAL LAW; DUE PROCESS; PROCEDURAL DUE PROCESS; ZONING: Court will enjoin enforcement of land use regulation where zoning agency fails to use a fair and accurate method identify those properties qualified for an exemption based upon preexisting nonconforming use and thus may apply regulation to owners who qualify for exemption.

South Lyme Property Owners Assoc. Inc. v. Town of Old Lyme, No. 3:

OOcfv97 (EBB) http://www.ctd.uscourts.gov/Opinions/101000.EBB.SouthLyme.pdf (D. Conn. 10/00)

The Town of Old Lyme is a Connecticut Shore community where many persons have maintained summer residences. In recent years, apparently, there has been a trend to convert these residences to year round use.

The Town determined that such conversions placed an unacceptable burden upon the capacity of the ground to absorb sewage waste in septic systems, and that continuing conversions would poison the ground for other residents, flora and fauna.

Connecticut law requires that land use regulation grant variances to preexisting nonconforming uses, so Old Lyme was faced with the problem of identifying those houses which were being used already for regular residency and which houses were, in the words of the regulation, "seasonal." In a 1982 regulation, the Town defined "seasonal dwelling" as: "a dwelling unit, designed, used, or intended to be used for "seasonal use," and defined "seasonal use" as "the use of a structure for dwelling purposes between April 1, and November 15, only." (sic). But the 1982 regulation did not prohibit or regulate seasonal use differently from regular residential use or identify seasonal use as nonconforming.

In 1992, the Town adopted the regulation that was the source of conflict here. That regulation provided as follows:

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

One area in which this regulation would apply had previously been zoned residential, fully developed, and included houses that were occupied full time and "seasonal" houses. Because of this somewhat awkward approach of regulating undesirable uses, three Connecticut trial court decisions had concluded that the 1992 Regulations did not prohibit the year round use of seasonal dwellings in this area.

In 1995, however, the Town got serious about this issue, and adopted a regulation providing that the year round use of single family dwellings in residential zones is permitted only "subject to the additional standards . . . of the Regulation." These "additional standards" provided that there could be no conversion of a seasonal dwelling to a year round dwelling without compliance with requirements related to water supply and septic capacity, including specifically that the lot contain a minimum of 10,000 square feet. The Zoning Compliance Officer was designated to identify those properties which were "seasonal use dwelling." The 1995 provision also established that a landowner could contest application of the regulation by demonstrating that the dwelling was a year round dwelling as of the 1992 regulation and thereafter.

The ZEO proceeded to identify "seasonal use dwellings" by resort to assessor's cards, health department determinations and, in some cases, building permit applications. The preliminary procedure, however, did not include interview of the property owners themselves. As the last assessment of the property was concluded in 1980, obviously the assessment cards, even if accurate, did not evaluate the usage patterns of the property as of 1992. Similarly, the health department determinations and building permits were not clear evidence of the seasonal use, even where they used the term, as "seasonal use" was not defined in these documents and they were prepared for entirely different purposes. For instance, the health department identified properties as "seasonal use" by making an informal spot determination of the absorption capacity of the septic system given year round use, without regard to any preexisting use patterns.

Landowners were given notice and 60 days to challenge the ZEO's determination, but they were permitted to do so only with documentary evidence such as bills. The ZEO refused to consider afficavits, testimony, and other evidence from witnesses who had observed the nature of the use of a given dwelling. So, if the owner had not retained an elaborate set of records and filed all prior bills, the owner could not overcome the ZEO determination. There was an appeal permitted, with a hearing that included the right to testify, call witness, and present affidavits and letters, but the appeal process had not resulted in any overturning of the ZEO judgment.

It seemed clear, then that the ZEO was using a flawed procedure to identify "seasonal use" properties. Not only did the preliminary determination reflect an investigative technique that was unlikely to produce accurate results, but those affected were restricted unfairly from contesting the determination. "The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

This case deals only with whether the enforcement of the ordinance should have been enjoined as a consequence of this alleged denial of Procedural Due Process of Law under the U.S. Constitution, and does not address numerous other interesting issues of zoning law, administrative law, and Constitutional law raised by the facts. But the Procedural Due Process issues are interesting enough. Parties affected by the determination of the ZEO that their properties were "seasonal dwellings"sought an injunction prohibiting the enforcement of the regulation against them because of a denial of Procedural Due Process. The court in this case granted a temporary restraining order, based upon the substantial probability that the landowners would be successful ultimately in a trial of the issues.

The court acknowledged that a court, in reviewing a request to enjoin a public agency from carrying out actions in the public interest, must give some consideration to the balance of such interest in deciding whether a plaintiff's threatened irreparable injury and probability of success warrants such relief.

As to the requirement of irreparable harm, the plaintiffs argued that Second Circuit cases had established that such injury is conclusively presumed when there is an alleged violation of a Constitutional right.

No further factual showing of actual injury is necessary where there is evidence that a Constitutional right probably is being violated. The court agreed, to an extent, but pointed out that recent cases in the Circuit had concluded that there is no enjoinable government activity when the party seeking the injunction can be made whole by money damages.

As to the Constitutional violation itself, the court first had to conclude whether the plaintiffs had vested property rights at stake. It was not necessary to conclude that the right to recognition of a preexisting nonconforming use is itself a protected property interest under the U.S.

Constitution, because Connecticut law had already conferred a property right upon such uses by state law. In fact, the Connecticut Supreme Court had already determined that such rights are to be treated as "vested property rights" for Constitutional purposes. Petruzzi v. Bd. of Zoning Appeals, 408 A.2d 242, 246 (Conn. 1979).

The Town contended that the plaintiffs were attempting to create a benefit for all residents, and not just for themselves, in obtaining the injunction, but the court concluded that the plaintiffs' individual interest was sufficient to warrant the requested relief, since them themselves owned property that had been found to be "seasonal" in use. The Town also argued that the determination that a property is not "seasonal" is a benefit, and not a right. The court had little difficulty with this contention in light of the fact that plaintiffs were seeking to protect their claimed preexisting nonconforming use a benefit declared to be a property right by Connecticut law.

Comment 1: Old Lyme may be a small town used to doing things informally, but the procedure it adopted here fairly reeks of unfairness, and it is not surprising that the court "threw the book" at the Town.

Comment 2: Although the court makes a finding that the appeal from the ZEO determination can take into account on, apparently, a de novo basis all the evidence excluded by the ZEO, it makes nothing of this fact in evaluating the plaintiff's claim of irreparable injury. In fact, it doesn't discuss the question at all. One would think that an adequate appeal process, involving a de novo hearing, would cure the procedural due Process issue. Perhaps some administrative law maven can demonstrate why this is not the case, but the editor remains perplexed.

Comment 3: Of course, the general finding that is of most interest is the conclusion that, absent a case in which money damages would be sufficient, a violation of a Constitutional Due Process right is per se "irreparable injury" giving rise to an injunction.

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