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JEROME RAPOPORT v. ZONING BOARD OF APPEALS OF THE CITY OF STAMFORD ET AL. (SC 18439)
Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan, Eveleigh and Vertefeuille, Js. Argued January 3--officially released May 24, 2011

Brenden P. Leydon, for the appellant (plaintiff). John W. Mullin, assistant corporation counsel, with whom, on the brief, was James V. Minor, former assistant corporation counsel, for the appellees (named defendant et al.). Andrew J. McDonald, with whom, on the brief, was Charles K. Campbell, Jr., for the appellees (defendant Southfield Point Association, Inc., et al.).

Opinion

ZARELLA, J. The principal issue in this administrative appeal is whether the trial court properly upheld the decision of the named defendant, the zoning board of appeals of the city of Stamford (board),1 affirming the decision of the defendant James J. Lunney III, the city zoning enforcement officer,2 that a dock3 located on the waters of Stamford Harbor was a neighborhood dock rather than a marina and, therefore, that improvements to the dock were not subject to the city's zoning regulations. The plaintiff, Jerome Rapoport, appeals from the judgment of the trial court upholding the board's decision on the ground that all of the dock improvements were located waterward of the mean high water line4 and that certain adjoining property (Cook Road Extension) was used exclusively as a road to provide access to the dock. The plaintiff claims that the trial court improperly upheld the board's decision because (1) the use of a property for any purpose, riparian or otherwise, must have a basis in the regulations in order to be allowed under a permissive zoning scheme like that of the city of Stamford (city), and (2) the use of Cook Road Extension to secure the dock to the land and to serve as the sole means of access to and parking for the dock is itself a use that must have a foundation in the zoning regulations. The defendants respond that the trial court properly upheld the board's decision because (1) a municipality normally has no jurisdiction to regulate activities waterward of the mean high water line, (2) the connection between the dock and Cook Road Extension is waterward of the mean high water line, and (3) the city's zoning regulations do not apply to Cook Road Extension. We affirm the judgment of the trial court. The following relevant facts and procedural history are set forth in the trial court's memorandum of decision. ``The property in question is located in [a residential] zone . . . in an area commonly known as Southfield Point. The Southfield Point subdivision map recorded in the Stamford land records lays out [several] roads . . . . They are private roads. Southfield Avenue services a portion of the subdivision. Residential lots are laid out fronting on each of those streets. Cook Road runs in an easterly direction from Southfield Avenue to its intersection with Davenport Drive. Cook Road then continues beyond Davenport Drive easterly a short distance between two lots to the shorefront of Stamford Harbor, a portion of Long Island Sound. . . . [T]his section of Cook Road [is known] as Cook Road Extension. . . . Sometime after the subdivision was recorded, single-family houses were built on the subdivision lots. . . . [A]ssociations were later formed with [their] membership limited to the property owners in the Southfield Point subdivision. There are eighty-seven association members. These owners, as members of

the . . . [a]ssociations, use Cook Road Extension for access to Stamford Harbor . . . . Various docks, pilings and other improvements were constructed over the years at the end of Cook Road Extension. The members of the . . . associations alone have the right to use Cook Road Extension and the dock,5 not the general public. . . . ``Directly to the south of Cook Road Extension is the single-family house . . . owned by the plaintiff . . . . The plaintiff's property abuts and is within 100 feet of Cook Road Extension and the dock. At all times referenced and to this date, the plaintiff has been the record title owner of [this property].''6 ``On June 17, 2004 . . . an attorney . . . acting on behalf of the plaintiff . . . wrote a six page letter to . . . the zoning enforcement officer . . . regarding Southfield Point Association [Inc., and its recent expansion of the dock]. The letter was headed: `Southfield Point Association, Inc., Multi User Dock/Marina Extension End of Cook Road, Stamford, CT.' The letter concluded as follows: `` `Without question, the [Southfield Point] multi-user dock presents a complicated zoning compliance question. While the actual dock structures themselves are primarily beyond the high water line, the impact on the uplands and surrounding properties caused by the expanded use of the dock should not be ignored. The dock must be investigated, and I am confident you will agree that zoning enforcement action should be taken. If your office determines the previous dock to be a preexisting, nonconforming use, then the new dock is an illegal expansion of that nonconformity, and your office should issue a cease-and-desist order requiring [Southfield Point Association, Inc.] to remove the new dock and return the site to its previous condition. If, on the other hand, you determine the dock to be an existing use permitted as a special exception, then you should still issue a cease-and-desist order pending approval of a special exception by the [board]. Either way, this dock should not escape scrutiny by the city's zoning officials. . . .' ``The June 17, 2004 letter also discussed the eastern end of Cook Road. It mentions [Cook Road Extension] at that location as being 60 feet wide and approximately 200 feet long from Davenport Drive to Stamford Harbor. . . . ``A May 3, 2005 opinion from [the zoning enforcement officer] was issued in response to that June 17, 2004 letter. In its final paragraph, the May 3, 2005 letter states: `The result of corporation counsel's review was that the dock was not governed by this office because it is governed by the state. It is also the determination of the [city office of legal affairs]7 that the dock was a neighborhood dock and not a marina and, therefore,

not addressable under the zoning regulations.' At the August 24, 2005 public hearing, [the zoning enforcement officer] restated his decision: `The decision was that I'm not going to tell them that they have to come before the board.' `I did not have the authority to make them come before the board.' . . . ``On June 1, 2005, the plaintiff . . . filed an appeal with the [board] stating: `Decision of the zoning enforcement officer dated May 3, 2005 is appealed because . . . Southfield Point Association, Inc., acting alone or in concert with Davenport Point Association, Inc., has over time expanded a nonconforming use, all as more specifically set forth in schedule A attached hereto and made a part hereof.' Attached as schedule A appears to be the June 17, 2004 plaintiff's attorney's letter and [the zoning enforcement officer's] May 3, 2005 letter. The application described the subject premises: `[Cook Road Extension] . . . and littoral rights beyond.' The application further indicated that the following structures and uses presently exist: `Bulkheads, pilings, piers, gangways, docks, launching ramp.' A legal notice was published by the [board] for the public hearing, which stated: `Application . . . of [the plaintiff] of an appeal of the zoning enforcement officer's decision in determining the dock . . . was a neighborhood dock and not a marina and not addressable under the zoning regulations. [The] property [is] located on the east side of [the] Davenport Drive-Cook Road intersection comprising the [Cook Road Extension] and littoral rights beyond in a [residential] zone.' The [board] held public hearings on August 24, 2005, and September 19, 2005 . . . [and subsequently] upheld the decision of the zoning enforcement officer that the dock and immediate area [were] not subject to the . . . zoning regulations. ``The formal decision of the [board] dated November 10, 2005, is as follows: `The [board] voted to uphold the zoning enforcement officer's decision . . . in determining the dock . . . was a neighborhood dock and not a marina and not addressable under the zoning regulations.' '' The plaintiff appealed to the trial court from the board's decision. In its memorandum of decision, the court identified ``three specific areas that were the subject of the zoning enforcement officer's decision, the [board] hearing and decision, and [the] appeal [to the trial court].'' These three areas were (1) Cook Road Extension, (2) the dock improvements lying directly on the waters of Stamford Harbor, and (3) the connection between the dock and Cook Road Extension. After determining that the plaintiff was aggrieved, the trial court stated, with respect to Cook Road Extension, that there was substantial evidence in the record to support the board's determination that Cook Road Extension was a road used exclusively for vehicular and pedestrian access to the dock. The court then made

the legal determination that the board properly had applied the law of permissive zoning in upholding the zoning enforcement officer's determination that, because Cook Road Extension contained ordinary and routine egress and access improvements and was used exclusively as a road, it was not subject to the city's zoning regulations. The court next considered the dock improvements located on the waters of Stamford Harbor and concluded that there was substantial evidence in the record to support the board's determination that the dock, floats, fingers and pilings were waterward of the mean high water line. The court also concluded that the dock improvements were not subject to the city zoning regulations as a matter of law because the city had not approved a harbor management plan pursuant to statutory authority,8 and, therefore, the state had exclusive jurisdiction over activities waterward of the mean high water line. The trial court finally addressed the connection between the dock and the area landward to the terminus of Cook Road Extension. The court reiterated its prior conclusion that the city lacked authority under its zoning regulations to control structures waterward of the mean high water line and concluded that the record contained substantial evidence that the connection between the dock and Cook Road Extension was waterward of the mean high water line. The court thereafter determined as a matter of law that none of the areas examined was governed by the city's zoning regulations. The plaintiff subsequently filed a motion to reargue. The trial court granted the motion but denied the relief requested. The trial court thereafter rendered judgment denying the plaintiff's appeal. This appeal followed.9 On appeal, the plaintiff claims that the trial court improperly upheld the board's decision that the associations' construction of a 196 foot dock and the use of Cook Road Extension for access to and connection with the dock are entirely immune from local zoning regulation merely because they relate to a water dependent use. The defendants respond that the trial court properly upheld the board's decision because the dock and its intersection with Cook Road Extension are located waterward of the mean high water line, where the city normally has no jurisdiction, and because the zoning regulations do not apply to activities that take place on Cook Road Extension. We agree with the defendants that the trial court properly upheld the board's decision. We first set forth the standard of review. Judicial review of an administrative agency's decision differs depending on whether the court is reviewing a factual or a legal determination. When ``the administrative agency has made a factual determination, the scope of review

ordinarily is expressed in such terms as substantial evidence or sufficient evidence.'' (Emphasis in original; internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 721, 780 A.2d 1 (2001). Under this standard, the ``[c]onclusions reached by [the board] must be upheld by the [reviewing] court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board]. . . . The question is not whether the [reviewing] court would have reached the same conclusion . . . but whether the record before the [board] supports the decision reached. . . . If a [reviewing] court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board. . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission. . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.'' (Internal quotation marks omitted.) Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294, 947 A.2d 944 (2008). When the administrative agency has made a legal determination, however, the scope of review is ordinarily plenary. Quarry Knoll II Corp. v. Planning & Zoning Commission, supra, 256 Conn. 721. ``Generally, it is the function of a zoning board . . . 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 turn] [t]he trial court ha[s] to decide whether the board correctly interpreted the [applicable regulations] and applied [them to the facts] with reasonable discretion . . . . In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal. . . . [T]he plaintiffs bear the burden of establishing that the board acted improperly.'' (Citations omitted; internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 697

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