One Elmcroft Stamford, LLC v. Zoning Board of Appeals ( 2022 )

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ONE ELMCROFT STAMFORD, LLC v. ZONING
BOARD OF APPEALS OF THE CITY
OF STAMFORD ET AL.
(AC 41208)
Elgo, Moll and Lavery, Js.
Syllabus
The plaintiff appealed to the Superior Court from the decision by the defen-
dant Zoning Board of Appeals of the City of Stamford granting the
application of the defendant P, filed on behalf of the defendant P Co.,
for approval for the location of an automotive repair business on certain
real property. The board had referred P Co.’s application to the city’s
Planning Board and Engineering Bureau for comment. The Planning
Board recommended that the application be denied. The Engineering
Bureau did not object to the application but expressed various concerns.
The board thereafter published notice of a public hearing on the applica-
tion, which stated that P Co. sought to operate a used car dealership
on the property. The board approved the application subject to certain
conditions, which included concerns expressed by the Engineering
Bureau. The plaintiff, which owned property that abutted the site at
issue, claimed, inter alia, that the board failed to conduct a suitability
analysis, as required by statute ([Rev. to 2003] § 14-55). The Superior
Court concluded that the board had given due consideration to the
suitability of the property and rendered judgment denying the appeal.
The plaintiff then appealed to this court, which concluded that the
General Assembly had not repealed § 14-55 in 2003, and reversed the
Superior Court’s judgment and remanded the case for further proceed-
ings. The defendants then appealed to the Supreme Court, which deter-
mined that the General Assembly had repealed § 14-55 in 2003 and
reversed in part this court’s judgment and remanded the case to this
court to consider the plaintiff’s remaining claims. Held:
1. The plaintiff’s claim that the notice of the public hearing on P Co.’s
application was defective and, thus, deprived the board of jurisdiction
to consider the application, was unavailing; because the legislature has
not enacted a proper substitute for § 14-55, which had set forth the
requirements for prehearing notice regarding location approval applica-
tions, the board could not have lacked jurisdiction to hear the applica-
tion, as it was not statutorily required to provide such notice at the time
P Co. filed its application in 2016.
2. The plaintiff could not prevail on its contention that the board violated
its right to fundamental fairness because the notice of the public hearing
was misleading in that it did not sufficiently describe P Co.’s intended
use of the property: although the notice stated that the property would
be used for the sale of used cars, P clarified at the public hearing that,
although used cars occasionally would be sold on the property, the
primary intended use of the property was for general automotive repair,
and, because the applicable zoning regulation (§ 19.A.3.b) referred to
the statute (§ 14-54) applicable to the board’s authority to hear and
decide location approval applications, the defendants sufficiently
apprised the plaintiff of the proposed use of the property, as the statutory
(§ 14-51 (a) (2)) definition of used car dealer, which encompassed auto-
motive repair and used car sales, accurately described the proposed
use of the property; moreover, in accordance with the applicable zoning
regulation (§ 20.B.1), the board provided written notice of the public
hearing to all owners of property, including the plaintiff, within the
applicable boundary area of the property at issue, which described the
proposed use of the property as automotive repair and used car dealer.
3. The board applied an incorrect legal standard in ruling on P Co.’s location
approval application and mistakenly believed it could not deny such
application because the proposed use was permitted in the zone at
issue: the board’s collective statement of its basis for granting P Co.’s
application expressly applied the legal standard under the regulation
(§ 19.B.2.a (2)) that governs variance approvals rather than § 19.A.3.b,
which is applicable to location approval applications; moreover, the
board’s assertion that its error was merely clerical was belied by the
record, which demonstrated that it exceeded its statutory authority and
its authority under § 19.A.3 when it referred P Co.’s application to the
city’s engineering and planning agencies, and, as the board was required
by § 19.A.3 to hear and decide the application, its error in treating the
application as a variance request was exacerbated by the terms of its
approval, which required P Co. to comply with all concerns articulated
by the Engineering Bureau; furthermore, because the members of the
board were obligated as agents of the state to make a determination in
reviewing P Co.’s location approval application, they were mistaken in
their belief that they lacked the authority to deny the application because
P Co.’s proposed use was permitted in the zone at issue.
4. The board did not commit an error of law by failing to distinguish the
denial by a different municipal entity seven years earlier of a location
approval application for a different business to operate a used car dealer-
ship on the property at issue; the plaintiff’s reliance on the ‘‘impotent
to reverse’’ rule, which precludes a municipal agency from revisiting its
prior decisions and revoking its duly enacted action, was unavailing
because the board did not make any prior determinations or render a
decision on the earlier application, as that denial was rendered by a
different municipal entity that, at that time, had powers and duties
distinct from those of the board, and P Co.’s application was filed after
the legislature’s amendment (Public Acts 2016, No. 16-55, § 4) of § 14-
54, which transferred from that different municipal entity to the board
the authority to act on location approval applications.
(One judge concurring in part and dissenting in part)
Argued September 13, 2021—officially released June 14, 2022
Procedural History
Appeal from the decision by the named defendant
granting the application of the defendant Pisano Broth-
ers Automotive, Inc., et al. for approval to locate an
automotive repair business on certain real property,
brought to the Superior Court in the judicial district of
New Britain and transferred to the judicial district of
Stamford-Norwalk, where the case was tried to the
court, Hon. Taggart D. Adams, judge trial referee; judg-
ment denying the plaintiff’s appeal, from which the
plaintiff appealed to this court, Sheldon, Elgo and
Lavery, Js., which reversed the trial court’s judgment
and remanded the case to that court for further proceed-
ings, and the defendant Pasquale Pisano et al., on the
granting of certification, appealed to the Supreme
Court, which reversed this court’s judgment and
remanded the case to this court for further proceedings.
Reversed in part; further proceedings.
Jeffrey P. Nichols, with whom was Amy Souchuns
and, on the brief, John W. Knuff, for the appellant
(plaintiff).
Gerald M. Fox III, for the appellees (defendant Pas-
quale Pisano et al.).
Opinion
ELGO, J. This administrative appeal returns to us on
remand from our Supreme Court. One Elmcroft Stam-
ford, LLC v. Zoning Board of Appeals, 337 Conn. 806,
256 A.3d 151 (2021) (Elmcroft II). In One Elmcroft
Stamford, LLC v. Zoning Board of Appeals, 192 Conn.
App. 275, 283–89, 217 A.3d 1015 (2019) (Elmcroft I),
rev’d, 337 Conn. 806, 256 A.3d 151 (2021), this court
concluded, inter alia, that General Statutes (Rev. to
2003) § 14-551 had not been repealed and required the
defendant Zoning Board of Appeals of the City of Stam-
ford (board) to consider the suitability of the location
in question as a prerequisite to the granting of a certifi-
cate of location approval in accordance with General
Statutes § 14-54. Following its grant of certification to
the defendants, Pisano Brothers Automotive, Inc., and
Pasquale Pisano; see One Elmcroft Stamford, LLC v.
Zoning Board of Appeals, 333 Conn. 936, 218 A.3d 594(2019); the Supreme Court concluded, as a matter of
law, that § 14-55 had been repealed by Public Acts 2003,
No. 03-184, § 10. See One Elmcroft Stamford, LLC v.
Zoning Board of Appeals, supra, 337 Conn. 809–10.
The court thus reversed the judgment of this court and
remanded the matter to us with direction to consider
the remaining claims of the plaintiff, One Elmcroft
Stamford, LLC. See id., 826.
In accordance with that order, we now consider
whether the Superior Court properly rejected the plain-
tiff’s claims that the board (1) lacked subject matter
jurisdiction to hear the application due to defective legal
notice, (2) violated the plaintiff’s right to fundamental
fairness in administrative proceedings, (3) applied an
improper legal standard in granting the certificate of
location approval, and (4) failed to ‘‘consider or distin-
guish’’ a prior denial of a certificate of approval applica-
tion for the location in question. We affirm in part and
reverse in part the judgment of the Superior Court.
The relevant facts are largely undisputed. On June 1,
2016, Pisano Brothers Automotive, Inc., entered into a
lease for a 6500 square foot parcel of real property
known as 86 Elmcroft Road (property), which is located
in the ‘‘M-G General Industrial District’’ in Stamford.2
On that same date, Pisano, acting on behalf of Pisano
Brothers Automotive, Inc., applied for a ‘‘used car
dealer’’ license from the Department of Motor Vehicles
(department).3 In that application, Pisano listed himself
as vice president of Pisano Brothers Automotive, Inc.
Pursuant to § 14-54, ‘‘[a]ny person who desires to
obtain a license for dealing in or repairing motor vehi-
cles’’ must first obtain ‘‘a certificate of approval of the
location for which such license is desired’’ (location
approval) from the applicable municipal zoning agency,
which, in this case, was the board. In accordance with
that statutory imperative, Pisano filed an application
with the board for a location approval on July 14, 2016
(Pisano application),4 on a preprinted form furnished
by the board. The first page of that form asks applicants
to provide the requested information ‘‘in ink’’ and then
lists boxes for five distinct applications: ‘‘Variance(s),’’
‘‘Special Exception,’’ ‘‘Appeal from Decision of Zoning
Enforcement Officer,’’ ‘‘Extension of Time,’’ and ‘‘Motor
Vehicle’’; Pisano checked ‘‘Motor Vehicle.’’ Pisano then
provided handwritten details regarding the location of
the property, the owner of the property, and the appli-
cant on page one of the form.
The second page of the application form contains a
section titled ‘‘VARIANCES’’ and directs applicants to
‘‘complete this section for variance requests only. See
a Zoning Enforcement Officer for help in completing
this section.’’ (Emphasis added.) Unlike the information
provided on page one of the application, which is set
forth in an upright block script, the variance section
on page two contains the following in a strikingly larger
and italicized cursive script: ‘‘APA TAB II #55 to allow
a used car dealer to be located in an MG zone.’’5 Although
it is unclear from the record exactly who made that
notation on the application form, Pisano explained at
the subsequent public hearing that, in preparing the
application, he had met with the city’s land use officials,
including the zoning enforcement officer, who worked
with him to complete the application. That testimony
is confirmed by the fact that the variance section of the
application submitted by Pisano is stamped ‘‘ZONING
ENFORCEMENT APPROVAL For Submission to Zoning
Board of Appeals’’ and contains the signature of that
official.6
Section 19.B of the Stamford Zoning Regulations (reg-
ulations) governs variance applications, and § 19.B.1
memorializes the board’s ‘‘power after public notice
and hearing to determine and vary the application of
these regulations in harmony with their general purpose
and intent and with due consideration for conserving
the public health, safety, convenience, welfare and prop-
erty values.’’7 Notably, § 19.B.3.d authorizes the board
to refer variance applications to the Stamford Planning
Board, which, ‘‘in reviewing such matters, shall set forth
its opinion as to whether or not the proposed use or
feature is in reasonable harmony with the various ele-
ments and objectives of the Master Plan and the com-
prehensive zoning plan . . . .’’ Stamford Zoning Regs.,
§ 19.B.3.d (2). The regulations also authorize the board
to refer variance applications ‘‘to other [a]gencies.’’
Stamford Zoning Regs., § 19.B.3.e.
Upon receiving the Pisano application, the board
referred it to other Stamford land use agencies ‘‘[i]n
accordance with [§] 19 of the [regulations],’’ including
the Planning Board and the Engineering Bureau. Those
referrals expressly sought ‘‘comments’’ on what the board
labeled a variance request.8
In a subsequent correspondence dated August 4,
2016, the Engineering Bureau informed the board that
it had ‘‘reviewed plans for a variance to allow for a
used car dealer to be located in the M-G Zone’’ and that
it ‘‘has found the [proposed use] will not result in any
adverse drainage impacts as there will be no increase
in impervious coverage.’’ The Engineering Bureau thus
indicated that it ‘‘does not object to [the Pisano] applica-
tion proceeding with the approval process with the
following condition: New concrete curb and sidewalk
shall be installed along the frontage of the property.’’ The
Engineering Bureau concluded by noting that ‘‘[c]ur-
rently there is no sidewalk at this location and adjacent
properties are equipped with sidewalks. Measures shall
be taken to prevent vehicles from parking within the
City [right-of-way].’’
The board also received a letter from the Planning
Board dated September 8, 2016, which stated that it
had reviewed the Pisano application ‘‘in accordance
with the provisions of the Stamford Zoning Regula-
tions.’’ The letter continued: ‘‘The Planning Board unani-
mously recommended DENIAL of [the Pisano applica-
tion]. It is the opinion of the [Planning] Board that the
proposed application does not keep with the character
of the neighborhood and finds these requests are not
consistent with the 2015 Master Plan Category #9
(Urban Mixed-Use).’’9 (Emphasis in original.)
The board scheduled a public hearing on the Pisano
application and published legal notice in a local newspa-
per on September 1 and 7, 2016.10 The board then held
the public hearing on the Pisano application on Septem-
ber 14, 2016. At its outset, Chair Claire D. Friedlander
read the correspondence from the Engineering Bureau
and the Planning Board into the record, which began
by noting that the Engineering Bureau ‘‘has reviewed
the plans for a variance to allow for a used car dealer
to be located in the MG zone . . . .’’11
Attorney Gerald M. Fox III then appeared on behalf
of the applicant and explained that Pisano Brothers
Automotive, Inc., had been in business as an automobile
repair shop in Stamford for more than twenty years.
Fox further indicated that ‘‘[t]he used car dealer aspect
of this application is not one that is something that
[the applicant] uses very often . . . . [Pisano Brothers
Automotive, Inc.] probably sells . . . less than five
[cars] a year.’’ Pisano also appeared at the hearing and
stated that, although there would be occasional used car
sales, the primary business conducted on the property
would be general automotive repair.12 Pisano confirmed
that the property contained a total of six parking spaces,
as depicted on an ‘‘improvement location survey’’ that
he submitted to the board. Pisano also confirmed that
his business provided towing services for its customers
‘‘from eight [a.m.] to five [p.m.]’’ but was ‘‘not triple
AAA.’’ Pisano acknowledged that a tow truck would be
stored inside the existing building on the property.
At the hearing, multiple board members raised public
safety concerns in light of the limited parking available
on the 6500 square foot property. For example, prior
to opening the floor for public comment, Friedlander
emphasized to the applicant that, ‘‘we’ve had tow truck
issues in this neighborhood over the years, and I think
that’s why we have people who are concerned about
that. Tow trucks have been over the streets. They
haven’t been [stored completely] on the property, and
there’s a real concern that there’s not—that’s why
you’re getting the questions that you’re getting . . . .
[I]f [the Pisano application is] going to be approved,
there has to be some kind of blood faith oath that
nothing will be [parked] off the property at any time.’’
Another board member, John A. Sedlak, expressed his
concern that, when he recently visited the property,
‘‘there were ten cars parked in front—well, actually,
eleven cars—[and] the parking lot was totally full.
There was one car parked out on [a] sidewalk so you
couldn’t—you had to go out and walk out in the street.’’
Sedlak then asked who was ‘‘storing all these cars there,’’
to which Pisano replied, ‘‘I am.’’ Sedlak responded, ‘‘Well,
you’re parking a car on the sidewalk right now.’’ When
Friedlander asked Pisano if he would ‘‘be comfortable
with a limitation [on the number of] cars on the outside
of the property at any time,’’ Fox responded, ‘‘[t]hat’s
no problem, yes,’’ and Pisano agreed, stating, ‘‘[w]e
could do that.’’
During the public comment portion of the hearing,
the board heard from John Darosa, a neighbor who
resided at 62 Elmcroft Road. Darosa began his remarks
by stating in relevant part: ‘‘I am totally against the
proposal. A few years ago, East Coast Towing wanted
that building. They wanted to lease [the property], and
we had some serious concerns as residents. . . . I’m
hearing some of the same things tonight that I heard
with East Coast Towing. I don’t know if there’s any
kinfolk or not with this operation and East Coast Tow-
ing, but it seems like it’s pretty much the same type
of thing.’’ Darosa contrasted the property with other
businesses in the area, noting that those properties were
‘‘secluded’’ from the ‘‘main roads’’ and were not ‘‘eye-
sores . . . .’’ Darosa noted that parking was ‘‘a mess’’
on the property and that it ‘‘looks terrible,’’ emphasizing
that the sidewalk ‘‘disappears’’ in front of the property.
Darosa thus opined that, ‘‘to put a car dealership [on
the property], whether he’s bringing in ten cars or fixing
. . . cars, there’s no way to hide them. The property
is too small, at least that’s what I think, and we went
over this with East Coast Towing a few years ago and
I think you guys realized that. . . . [I]t’s just not a fit
for the area.’’
The board also heard from Stamford resident Al
Sgritta, who noted that cars were being stored on a
property on Taff Avenue that was ‘‘not being attended
to by the local authorities. They just came to look the
other way. And I’m sure the same thing [will occur on
the property] with vehicles being stored and towing
trucks being stored. And you said, well, it’s just there
temporarily, and it’s temporarily every day. . . .
[W]hat will happen there on [the property] is a strong
possibility.’’
When public comment concluded, Fox addressed the
board and emphasized that the property was located
in the M-G zone. He continued: ‘‘A lot of things can
go there as of right because of the way the state of
Connecticut has chosen to deal with used car dealers
and car repair, [so] this board does have to approve
the location.’’ (Emphasis added.) At the same time, Fox
stated that the board had ‘‘the opportunity to put some
limitations on what [the applicant] can do that, hope-
fully, will alleviate some of the concerns that you’ve
heard tonight,’’ and then noted several potential condi-
tions that the board could attach to its approval. In his
comments, Pisano likewise indicated that he was open
to the board’s attaching conditions to its approval and
emphasized that the property was in the M-G zone,
where an automobile repair business is a permitted use.
After Pisano concluded his remarks, the public hearing
was closed.
When deliberations on the Pisano application began,
board member Georgiana White stated in relevant part:
‘‘I feel that this has been made more complicated than it
is. . . . Because there’s a misunderstanding, perfectly
understandable but, nonetheless, a misunderstanding, a
misconception . . . . I don’t think the neighbors really
understand it, but the key here, to me . . . is [that the
property is in] an MG zone, and there are businesses
that can move in tomorrow that would not appear here.’’
White further opined that the ‘‘only reason’’ the appli-
cant was before the board was because of the ‘‘label’’
of its business as a car repair shop. White also noted
that what she saw as ‘‘advantageous’’ was that the board
had ‘‘the opportunity to try to make it even more accept-
able to the neighborhood here’’ by attaching certain
conditions to its approval. In his remarks, Sedlak agreed
with White that the board’s hands were tied in light
of the fact that an automobile repair business was a
permitted use in the M-G zone under the regulations.
As he stated, ‘‘unfortunately, this . . . property is a
lousy property for a repair shop, terrible. . . . It’s
lousy, but it’s permitted.’’13 Board member Nino Anto-
nelli similarly stated that ‘‘this is a good opportunity
[to] improve the building [on the property]. . . .
Because again, it’s an MG zone. Anybody can move in.’’
After discussing various conditions of approval, the
board granted the location approval subject to fourteen
detailed conditions. The board’s certificate of decision,
which was signed by Friedlander and recorded on the
Stamford land records, contained an explicit ‘‘statement
of its findings and approval,’’ which states: ‘‘The board
finds . . . [t]hat the aforesaid circumstances of condi-
tions is/are such that the strict application of the provi-
sions of these [r]egulations would deprive the [appli-
cant] of the reasonable use of such land or building(s)
and the granting of the application is necessary for the
reasonable use of the land or building(s). The [b]oard
GRANTS a Motor Vehicle approval of Table II, Appendix
A, #55 (Auto Sales Requirements) of the Zoning Regula-
tions in order to allow a Used Car Dealer to operate
and be located in an [M-G] zone.’’ The board attached
fourteen conditions to its approval, which it character-
ized as ‘‘restrictions’’ in its certificate of decision.14
At all relevant times, the plaintiff was the owner of
abutting property at 126 Elmcroft Road. Following the
board’s decision to grant the location approval applica-
tion, the plaintiff commenced an administrative appeal
in the Superior Court pursuant to General Statutes
§§ 14-57 and 4-183.15 The plaintiff claimed, inter alia,
that the board (1) lacked subject matter jurisdiction to
hear the Pisano application due to defective legal notice,
(2) violated its right to fundamental fairness in adminis-
trative proceedings, (3) ‘‘acted illegally, arbitrarily, and
in abuse of discretion’’ by applying an improper legal
standard to the location approval request, and (4) failed
‘‘to consider or distinguish the Zoning Board’s decision,
dated December 14, 2009, that the [p]roperty was
unsuitable for use as a used car dealership.’’ The court,
Hon. Taggart D. Adams, judge trial referee, rejected
the plaintiff’s claims and concluded that substantial
evidence existed to support the board’s decision. From
that judgment, the plaintiff appealed to this court.
I
We first consider the plaintiff’s claim that the board
lacked subject matter jurisdiction to hear the Pisano
application due to an alleged defect in the prehearing
notice published in a local newspaper. It is well estab-
lished that ‘‘subject matter jurisdiction is a threshold
matter that we must resolve in order to address [a
party’s] other claims.’’ In re Joshua S., 260 Conn. 182,
191 n.11, 796 A.2d 1141 (2002). A determination regard-
ing subject matter jurisdiction presents a question of
law, over which our review is plenary. See, e.g., Vitale
v. Zoning Board of Appeals, 279 Conn. 672, 678, 904
A.2d 182 (2006).
Not all claims of improper notice are jurisdictional
in nature. See, e.g., Lauer v. Zoning Commission, 220
Conn. 455, 462, 600 A.2d 310 (1991) (failure to give
personal notice to specific individual not jurisdictional
defect); Mohican Valley Concrete Corp. v. Zoning Board
of Appeals, 75 Conn. App. 45, 52, 815 A.2d 145 (2003)
(emphasizing that ‘‘notice requirements may be jurisdic-
tional’’). At the same time, our Supreme Court has ‘‘long
held that failure to give newspaper notice is a subject
matter jurisdictional defect . . . . Noncompliance
with the statutory requirement of public notice invali-
dates the subsequent action by the zoning board . . . .’’
(Citations omitted.) Koepke v. Zoning Board of Appeals,
223 Conn. 171, 175, 610 A.2d 1301 (1992); see also Wright
v. Zoning Board of Appeals, 174 Conn. 488, 491, 391
A.2d 146 (1978) (‘‘[c]ompliance with prescribed notice
requirements is a prerequisite to a valid action by a
zoning board of appeals and failure to give proper notice
constitutes a jurisdictional defect’’); Koskoff v. Plan-
ning & Zoning Commission, 27 Conn. App. 443, 447,
607 A.2d 1146 (‘‘[s]trict compliance with statutory man-
dates regarding notice to the public is necessary’’), cert.
granted, 222 Conn. 912, 608 A.2d 695 (1992) (appeal
withdrawn November 10, 1992); R. Fuller, 9B Connecti-
cut Practice Series: Land Use Law and Practice (4th
Ed. 2015) § 46:1, p. 3 (‘‘[c]ompliance with the statutory
requirement as to notice of the public hearing is a pre-
requisite to valid action by the agency’’). Our analysis
begins, therefore, with the statutory notice require-
ments for location approval applications.
As this court has observed, § 14-55 set forth ‘‘the
jurisdictional requirements for a prehearing notice’’
regarding location approval applications.16 Mohican
Valley Concrete Corp. v. Zoning Board of Appeals,
supra, 75 Conn. App. 52. The General Assembly, how-
ever, repealed that statute in 2003; see One Elmcroft
Stamford, LLC v. Zoning Board of Appeals, supra, 337
Conn. 809; and it has not enacted a proper substitute of
any kind.17 As a result, no statutory notice requirements
have existed for location approval applications filed
pursuant to § 14-54 in the nearly nineteen years since
§ 14-55 was repealed.
When Pisano filed his application for a location
approval in 2016, the board was not statutorily obligated
to provide notice of the public hearing on that applica-
tion. A fortiori, the board could not have lacked subject
matter jurisdiction over the Pisano application due to
noncompliance with statutory notice requirements.
II
The plaintiff alternatively argues that, even if the
board had subject matter jurisdiction to hold a public
hearing on the Pisano application, it violated the plain-
tiff’s right to fundamental fairness by insufficiently
describing the proposed use of the property in its pre-
hearing notice. We do not agree.
The procedural right involved in administrative pro-
ceedings properly is described as the right to fundamen-
tal fairness, as distinguished from the due process rights
that arise in judicial proceedings. Grimes v. Conserva-
tion Commission, 243 Conn. 266, 273 n.11, 703 A.2d
101 (1997). ‘‘While proceedings before [administrative
agencies] are informal and are conducted without
regard to the strict rules of evidence . . . they cannot
be so conducted as to violate the fundamental rules of
natural justice. . . . Fundamentals of natural justice
require that there must be due notice of the hearing
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Megin v. Zoning Board of Appeals, 106 Conn.
App. 602, 608, 942 A.2d 511, cert. denied, 289 Conn. 901,
957 A.2d 871 (2008). Whether the right to fundamental
fairness has been violated in an administrative proceed-
ing is a question of law over which our review is plenary.
See id. Moreover, ‘‘the burden of proving that the notice
was defective rests on the persons asserting its insuffi-
ciency.’’ Peters v. Environmental Protection Board, 25
Conn. App. 164, 170, 593 A.2d 975 (1991).
As this court observed in a case involving a location
approval application, ‘‘the purpose of a prehearing
notice is to permit members of the general public to
prepare intelligently for a public hearing at which they
may be heard about the merits of a pending application.
. . . [I]mperfections in the contents of a notice do not
automatically deprive a zoning board of the authority
to act on an application. A notice is not misleading even
though it does not describe the proposed action in detail
or with exactitude. . . . Presumably, our courts have
allowed zoning boards and administrative agencies
some latitude with respect to such defects so as to
avoid the harsh consequences of a jurisdictional defect,
which permits a disappointed litigant to question a zon-
ing board decision long after board proceedings have
concluded . . . .’’ (Citations omitted; internal quota-
tion marks omitted.) Mohican Valley Concrete Corp. v.
Zoning Board of Appeals, supra, 75 Conn. App. 52–53.
‘‘A notice is proper . . . if it fairly and sufficiently
apprises the public of the action proposed, making pos-
sible intelligent preparation for participation in the hear-
ing.’’ Cocivi v. Plan & Zoning Commission, 20 Conn.
App. 705, 708, 570 A.2d 226, cert. denied, 214 Conn. 808,
573 A.2d 319 (1990).
The prehearing notice published in the local newspa-
per stated in relevant part that a public hearing would be
held on the Pisano application ‘‘for a [m]otor [v]ehicle
approval of Table II, Appendix A, #55 (Auto Sales
Requirements) of the [regulations] in order to allow a
[u]sed [c]ar [d]ealer to operate and be located in an
MG zone. . . .’’ See footnote 10 of this opinion. At the
public hearing, Pisano clarified that the primary intended
use of the property was not used car sales, but general
automotive repair. In light of that admission, the plain-
tiff contends that the legal notice provided by the board
was misleading, as it did not sufficiently describe the
intended use of the property.
As this court has noted, ‘‘zoning boards of appeal are
creatures of statute’’ that ‘‘possess a limited authority,
as circumscribed by statute, the scope of which cannot
be enlarged or limited by either the board or the local
zoning regulations.’’ Komondy v. Zoning Board of
Appeals, 127 Conn. App. 669, 679, 16 A.3d 741 (2011).
The municipal regulations here specify the limited duties
of the board, which include review of location approval
applications. See Stamford Zoning Regs., § 19.A.3. With
particular respect to ‘‘Dealers’ and Repairers’ Licenses,’’
the regulations refer to § 14-54 and recognize the board’s
authority to ‘‘hear and decide’’ location approval applica-
tions in accordance therewith. Stamford Zoning Regs.,
§ 19.A.3.b. That authority derives exclusively from title
14, chapter 246, part III (d) of the General Statutes, which
governs the issuance of dealers’ and repairers’ licenses
in this state.
Significantly, that statutory scheme delineates only
four types of licensees—‘‘[n]ew car dealer, ‘‘[u]sed car
dealer,’’ ‘‘[r]epairer,’’ and ‘‘[l]imited repairer.’’18 General
Statutes § 14-51. For licensing purposes, a repairer is
defined as ‘‘any person, firm or corporation qualified to
conduct such business in accordance with the require-
ments of [§] 14-52a, having a suitable facility and having
adequate equipment, engaged in repairing, overhauling,
adjusting, assembling or disassembling any motor vehi-
cle, but shall exclude a person engaged in making repairs
to tires, upholstering, glazing, general blacksmithing,
welding and machine work on motor vehicle parts when
parts involving such work are disassembled or reassem-
bled by a licensed repairer.’’ General Statutes § 14-51
(a) (3). By contrast, a used car dealer is defined in relevant
part as ‘‘any person, firm or corporation engaged in the
business of merchandising motor vehicles other than
new who may, incidental to such business, repair motor
vehicles.’’19 General Statutes § 14-51 (a) (2). In light of
the undisputed fact that the applicant’s intended use
of the property included both general automotive repairs
and the sale of used cars, the latter definition more
accurately describes that proposed use, as it encom-
passes both automotive repair and used car sales.20
Furthermore, it is undisputed that, in addition to the
legal notice that the board published in a local newspa-
per, the applicant provided written notice of the public
hearing to all owners of property within ‘‘100 feet . . .
of the boundary area’’ of the property—including the
plaintiff—in accordance with § 20.B.1 of the regulations.
In that notice, the applicant described the proposed
use of the property as follows: ‘‘Automotive repair/used
car dealer.’’ The record contains a certificate of mailing
from the United States Postal Service, which indicates
that the applicant mailed that notice to the plaintiff on
September 2, 2016, almost two weeks prior to the public
hearing.21 At no time has the plaintiff alleged that it did
not receive that written notice or description of the
proposed use of the property.
In light of the foregoing, we conclude that the appli-
cant sufficiently apprised the plaintiff of the proposed
use of the property. The plaintiff, therefore, cannot
establish a violation of its right to fundamental fairness.
III
We turn next to the plaintiff’s contention that the
board applied an improper legal standard in granting
the certificate of location approval. Because that claim
involves a question of law, our review is plenary. See
St. Joseph’s High School, Inc. v. Planning & Zoning
Commission, 176 Conn. App. 570, 586–87, 170 A.3d
73 (2017).
A
Before considering the specific claims advanced by
the plaintiff, additional context is necessary. Under
Connecticut law, the approval of the proposed location
by a municipal zoning board is a prerequisite to the
issuance of a state license to deal in or repair motor
vehicles. See General Statutes § 14-54; Mohican Valley
Concrete Corp. v. Zoning Board of Appeals, supra, 75
Conn. App. 45. When a municipal zoning board reviews
a location approval application pursuant to § 14-54, it
acts as ‘‘a special agent of the state.’’ Vicino v. Zoning
Board of Appeals, 28 Conn. App. 500, 504, 611 A.2d 444(1992). As the Supreme Court explained, ‘‘[i]n receiving
and hearing and, eventually, in denying the application,
the [municipal zoning board] was not functioning under
either the municipal zoning ordinance or the zoning
statutes. . . . It was acting in a special capacity. It was
serving as the local agency named by the General
Assembly to determine whether a certificate of approval
should be issued.’’ (Citations omitted.) Mason v. Board
of Zoning Appeals, 143 Conn. 634, 637, 124 A.2d 920(1956); see also Sun Oil Co. v. Zoning Board of Appeals,
154 Conn. 32, 35, 221 A.2d 267 (1966) (‘‘[o]btaining a
certificate of approval . . . is not a zoning matter’’);
Dubiel v. Zoning Board of Appeals, 147 Conn. 517, 520,
162 A.2d 711 (1960) (when acting on location approval
application, ‘‘the board is not dealing primarily with
zoning but is performing a separate function delegated
to it as an agency of the state’’); Charchenko v. Kelley,
140 Conn. 210, 213, 98 A.2d 915 (1953) (‘‘the determina-
tion of the propriety of utilizing the plaintiff’s premises
as a location for his proposed business is an administra-
tive matter’’).
Because it is acting as an ‘‘agent of the state,’’ a munici-
pal zoning board ‘‘must follow the statutory criteria in
determining whether to issue the certificate of approval.’’
Vicino v. Zoning Board of Appeals, supra, 28 Conn.
App. 505; accord Mason v. Board of Zoning Appeals,
supra, 143 Conn. 637–38 (explaining that ‘‘[i]t is to [the
General Statutes], then, that we must turn to find the
test for the [municipal zoning board] to apply in reach-
ing its determination’’ on location approval application
and emphasizing that zoning board ‘‘could legally go
no further than to apply the test incorporated in the
statute’’). For more than one-half century, location
approval applications were evaluated pursuant to a stat-
utory standard that required consideration of the suit-
ability of the location in question, as most recently
codified in § 14-55. See, e.g., New Haven College, Inc.
v. Zoning Board of Appeals, 154 Conn. 540, 542–43, 227
A.2d 427 (1967); Atlantic Refining Co. v. Zoning Board
of Appeals, 142 Conn. 64, 66, 111 A.2d 1 (1955); Colonial
Beacon Oil Co. v. Zoning Board of Appeals, 128 Conn.
351, 354, 23 A.2d 151 (1941). Pursuant to that statutory
standard, a municipal zoning agency was not permitted
to grant a location approval unless ‘‘such location has
been found suitable for the business intended, with due
consideration to its location in reference to schools,
churches, theaters, traffic conditions, width of highway,
and effect on public travel.’’ (Internal quotation marks
omitted.) Vicino v. Zoning Board of Appeals, supra,
505. As our Supreme Court noted, ‘‘the language of the
statute [was] explicit in stating what the board [was]
to consider when it acts on an application.’’ New Haven
College, Inc. v. Zoning Board of Appeals, supra, 543.
In light of the legislature’s repeal of § 14-55 in 2003;
see One Elmcroft Stamford, LLC v. Zoning Board of
Appeals, supra, 337 Conn. 809; that statutory standard
no longer exists. As a result, municipal zoning boards
are left in a precarious predicament: pursuant to § 14-
54, they remain obligated to act on location approval
applications as administrative agencies of the state, yet
are bereft of any statutory standard to apply to such
applications.22 The challenge in acting on such applica-
tions is compounded by the fact that ‘‘members of a
[municipal] zoning board typically are laypersons more
familiar with their community than with the niceties of
applicable law’’ and that ‘‘[z]oning boards ordinarily
conduct their proceedings with some degree of infor-
mality.’’ (Internal quotation marks omitted.) Mohican
Valley Concrete Corp. v. Zoning Board of Appeals, supra,
75 Conn. App. 50. As this court has observed, ‘‘[i]n light
of these institutional realities, the legislature may well
have thought it useful to provide specific statutory guid-
ance for the manner in which zoning boards should
conduct their proceedings . . . .’’ Id. With the repeal
of § 14-55, such legislative guidance no longer is pro-
vided to municipal zoning boards.
As our Supreme Court emphasized in One Elmcroft
Stamford, LLC v. Zoning Board of Appeals, supra, 337
Conn. 825, the courts of this state cannot act as plenary
lawgivers. See Ashmore v. Hartford Hospital, 331 Conn.
777, 787, 208 A.3d 256 (2019); Hayes v. Smith, 194 Conn.
52, 65, 480 A.2d 425 (1984). ‘‘We are not in the business
of writing statutes; that is the province of the legisla-
ture.’’ State v. Rupar, 293 Conn. 489, 511, 978 A.2d 502(2009). Only the General Assembly can fill the legislative
void created by the repeal of § 14-55.
The question, then, is what standard remains follow-
ing the repeal of § 14-55. In this regard, we note the
observation in Charchenko v. Kelley, supra, 140 Conn.
212–13, that ‘‘[w]hether or not a location for repairing
automobiles and for dealing in used cars should be
approved is to be determined upon the basis of the
situation actually existing when the certificate of
approval is sought. . . . An inquiry to resolve this ques-
tion involved a consideration of all relevant circum-
stances.’’ (Citation omitted.) In the absence of statutory
criteria like those previously specified in § 14-55; see
footnote 1 of this opinion; it is left to municipal zoning
boards to determine, in their discretion, the factors
relevant to their decision on whether to grant a location
approval.23
Because municipal zoning boards act on location
approval applications as administrative agencies of the
state, appeals of such decisions are ‘‘governed not by
General Statutes § 8-8, but by [§] 14-57.’’ Mohican Valley
Concrete Corp. v. Zoning Board of Appeals, supra, 75
Conn. App. 47 n.6. Section 14-57, in turn, ‘‘incorporates
the rules contained in [§] 4-183 of the Uniform Adminis-
trative Procedure Act [General Statutes § 4-166 et seq.].’’
Id.; see footnote 15 of this opinion. Pursuant to § 4-183
(j), a reviewing court ‘‘shall not substitute its judgment
for that of the agency as to the weight of the evidence
on questions of fact. The court shall affirm the decision
of the agency unless the court finds that substantial
rights of the person appealing have been prejudiced
because the administrative findings, inferences, conclu-
sions, or decisions are: (1) In violation of constitutional
or statutory provisions; (2) in excess of the statutory
authority of the agency; (3) made upon unlawful proce-
dure; (4) affected by other error of law; (5) clearly
erroneous in view of the reliable, probative, and sub-
stantial evidence on the whole record; or (6) arbitrary
or capricious or characterized by abuse of discretion
or clearly unwarranted exercise of discretion.’’ Accord-
ingly, a municipal zoning board’s decision on a location
approval application will be reversed only when it vio-
lates the precepts outlined in § 4-183 (j). With that con-
text in mind, we turn to the plaintiff’s claims.
B
On appeal, the plaintiff contends that the board com-
mitted an error of law by applying an improper legal
standard to the location approval application submitted
by Pisano.24 More specifically, the plaintiff submits that
the board (1) improperly treated the Pisano application
as a variance request and (2) operated under the mis-
taken belief that a municipal zoning board lacks author-
ity to deny a location approval application when the
proposed use is permitted in the zone in question.
We agree.
1
In One Elmcroft Stamford, LLC v. Zoning Board
of Appeals, supra, 192 Conn. App. 293–96, this court
concluded that the board had rendered a formal, offi-
cial, collective statement of the reason for its decision
in its certificate of decision on the Pisano application,
which was recorded on the Stamford land records on
September 29, 2016.25 See generally Verrillo v. Zoning
Board of Appeals, 155 Conn. App. 657, 672–76, 111 A.3d
473 (2015). For that reason, this court determined that
the Superior Court improperly had searched beyond
that stated reason in contravention of the maxim that
a court ‘‘should not go behind the official statement of
the board.’’ Chevron Oil Co. v. Zoning Board of Appeals,
170 Conn. 146, 153, 365 A.2d 387 (1976); see also DeMa-
ria v. Planning & Zoning Commission, 159 Conn. 534,
541, 271 A.2d 105 (1970) (when zoning agency has ‘‘for-
mally stated’’ reason for its decision, court should not
go behind that official, collective statement to search
record for other reasons supporting decision); Mohican
Valley Concrete Corp. v. Zoning Board of Appeals,
supra, 75 Conn. App. 51 (noting that ‘‘[t]he same rule’’
applicable to land use appeals applies in administrative
appeals involving location approvals). Following our
decision in Elmcroft I, no party petitioned for certifica-
tion to appeal to the Supreme Court to challenge the
propriety of that determination. We concur with, and
are bound by, that settled determination. See State v.
Joseph B., 187 Conn. App. 106, 124 n.13, 201 A.3d 1108(‘‘we cannot overrule a decision made by another panel
of this court absent en banc consideration’’), cert.
denied, 331 Conn. 908, 202 A.3d 1023 (2019).
In its certificate of decision on the Pisano application,
the board set forth an explicit ‘‘statement of its findings
and approval,’’ stating in relevant part: ‘‘The board finds
. . . [t]hat the aforesaid circumstances or conditions
is/are such that the strict application of the provisions
of these [r]egulations would deprive the [applicant] of
the reasonable use of such land or building(s) and the
granting of the application is necessary for the reason-
able use of the land or building(s).’’ That language is
identical to the standard contained in § 19.B.2.a (2) of
the regulations for variance requests.26 As the Superior
Court noted in its memorandum of decision, the board’s
certificate of decision ‘‘looks and reads like a variance’’
approval. Our Supreme Court agreed with that observa-
tion. See One Elmcroft Stamford, LLC v. Zoning Board
of Appeals, supra, 337 Conn. 812 n.8.
We conclude that the collective statement of the basis
of the board’s decision indicates that the board improp-
erly applied the legal standard that governs variance
approvals under the regulations. Although the board
alleges that this collective statement was a mere clerical
error, the record belies that claim and demonstrates
that the board misunderstood its proper role in acting
on location approval applications. For example, upon
its receipt of the Pisano application, the board referred
it to, among other Stamford agencies, the Engineering
Board and Planning Board and requested their ‘‘com-
ments’’ on what the board characterized as a variance
request. See footnote 8 of this opinion. Nothing in the
General Statutes authorizes a municipal zoning board,
when acting on a location approval application as an
agent of the state, to solicit feedback on the application
from other municipal agencies. Furthermore, although
the regulations permit the board to make such referrals
when variances are requested; see Stamford Zoning
Regs., § 19.B.3; they confer no such authority with
respect to location approval requests. To the contrary,
the regulations specifically require the board to ‘‘hear
and decide’’ location approval applications for dealers’
and repairers’ licenses ‘‘in accordance with . . . [§§]
14-54 and [14-55] . . . .’’27 Stamford Zoning Regs.,
§ 19.A.3.b. By referring the Pisano location approval
application to other municipal agencies, the board
exceeded its authority under § 19.A.3 of the regulations.28
The board’s error in treating the Pisano application
as a variance request was exacerbated by the terms of
its subsequent approval. In its August 4, 2016 memoran-
dum on the Pisano application, sent in response to the
variance referral issued by the board, the Engineering
Bureau informed the board that it had ‘‘reviewed plans
for a variance to allow for a used car dealer to be
located in the M-G Zone’’ and indicated that it ‘‘does
not object to [the Pisano] application proceeding with
the approval process with the following condition: New
concrete curb and sidewalk shall be installed along the
frontage of the property.’’29 The Engineering Bureau
also stated that ‘‘[c]urrently there is no sidewalk at
this location and adjacent properties are equipped with
sidewalks. Measures shall be taken to prevent vehicles
from parking within the City [right-of-way].’’ In its certif-
icate of decision, the board specifically conditioned its
approval of the Pisano application on ‘‘[a]ll concerns
of the Engineering [Bureau being] adhered to.’’30 See
footnote 14 of this opinion.
In the present case, the board issued a formal, official,
collective statement of its decision, in which it
expressly applied the legal standard that governs vari-
ance approvals under § 19.B.2.a (2) of the regulations
to its review of a location approval application pursuant
to § 19.A.3.b of the regulations. The board also issued
a ‘‘variance’’ referral of the Pisano application to other
municipal agencies, despite the fact that the board had
no authority to do so under the regulations or the Gen-
eral Statutes. Moreover, the terms of the board’s deci-
sion required the applicant to comply with ‘‘[a]ll con-
cerns’’ articulated by a separate municipal agency.
Those transgressions constitute errors of law that com-
promised the integrity of this administrative proceed-
ing.
2
The plaintiff also contends that the board applied an
incorrect legal standard by operating under the mis-
taken belief that a municipal zoning board lacks author-
ity to deny a location approval application when the
proposed use is permitted in the zone in question. The
record substantiates that contention.
During the public hearing, the board heard from Dar-
osa, a neighbor who opined that the 6500 square foot
property was ‘‘too small’’ for the applicant’s proposed
use and that such use was ‘‘not a fit for the area.’’ In
light of his concerns, an unidentified board member
asked Darosa: ‘‘Is there something [the applicant] can
do that would make [the proposed use] acceptable . . .
if you could say, this is what I want, and we make
that a condition [of approval] before [the applicant]
proceeds, what would be on your wish list, or is there
nothing?’’ Darosa responded in the negative, stating that
the proposed use ‘‘just doesn’t fit.’’ Friedlander then
explained to Darosa that she thought the question about
potential conditions was asked ‘‘because [the appli-
cant’s proposed use] does have a right to exist’’ in the
M-G zone. When Darosa replied, ‘‘Mm hmm, okay,’’
Friedlander noted that ‘‘the question is how could it be
made more palatable . . . .’’31
The board’s deliberations on the Pisano application
began with White’s statement that ‘‘this [application]
has been made more complicated than it is. . . .
Because there’s a misunderstanding, perfectly under-
standable but, nonetheless, a misunderstanding, a mis-
conception . . . . I don’t think the neighbors really
understand it, but the key here, to me . . . is [that the
property is in] an MG zone, and there are businesses
that can move in tomorrow that would not appear here.’’
(Emphasis added.) White opined that the ‘‘only reason’’
the applicant was before the board was because of the
‘‘label’’ of its business as a car repair shop and stated
that the board nevertheless had ‘‘the opportunity to try
to make [the proposed use] even more acceptable to
the neighborhood here’’ by attaching certain conditions
to its approval. Friedlander agreed that the board could
impose conditions but emphasized that ‘‘[t]hey have to
be reasonable.’’ At that point, Sedlak agreed with White
that the board’s hands were tied in light of the fact that
an automobile repair business was a permitted use in
the M-G zone under the regulations. As he stated, ‘‘unfortu-
nately, this property is a lousy property for a repair
shop, terrible. . . . It’s lousy, but it’s permitted.’’ When
Friedlander asked Antonelli if he had ‘‘anything you
want to say’’ on the Pisano application, Antonelli simi-
larly stated that ‘‘this is a good opportunity [to] improve
the building [on the property]. . . . Because, again, it’s
an MG zone. Anybody can move in.’’ Sedlak then replied:
‘‘Wait a second. We’re still discussing this case. . . .
There’s conditions to be put on this.’’ The board then
discussed various potential conditions and granted the
location approval.32
The transcript of the public hearing supports the
plaintiff’s contention that the board members mistak-
enly believed that a municipal zoning board lacks dis-
cretion to deny a location approval application when
the proposed use is permitted in the zone in question.
That perception is contrary to established precedent.
In Mrowka v. Board of Zoning Appeals, 134 Conn.
149, 149–51, 55 A.2d 909 (1947), the applicants sought
licenses to sell gasoline and to conduct automobile
repairs on a property in Plainville, both of which required
them to obtain a location approval from the municipal
zoning board of appeals. The zoning board denied the
application due to traffic and safety concerns, and the
plaintiffs appealed to the Superior Court. Id., 149–52.
In reversing the determination of the zoning board, the
Superior Court predicated its conclusion on the fact
that ‘‘the lot in question is in an industrial zone’’ where
‘‘the use the plaintiffs propose to make of it is permissi-
ble in such a zone . . . .’’ Id., 152. The court empha-
sized that other commercial uses of nearby properties
existed in the zone and opined that ‘‘no greater hazard
would be created by the use of the premises for a
gasoline station than by other uses permitted in such
a zone.’’ Id., 153. The court thus concluded that ‘‘[t]o
exclude a gas station as a traffic hazard and yet regard
the other enumerated uses as less likely to add to those
traffic congestions or hazards inherent in any built up
industrial zone seems to the court to be unsupported
by rationality and therefore unreasonable and arbitrary
and so to that extent unlawful.’’ (Internal quotation
marks omitted.) Id. The Supreme Court disavowed that
reasoning, stating in relevant part: ‘‘To approve the
court’s reasoning would not only go against the judg-
ment of the legislature but would destroy the right of
a zoning board ever to refuse a certificate of approval
for a gasoline station the proposed location of which
was in an industrial zone, a conclusion which cannot
be sound.’’ Id., 154. The Supreme Court further charac-
terized the Superior Court’s reasoning as an ‘‘error in
the fundamental basis of [its] decision . . . .’’ Id.This court reached a similar conclusion in Ferreira
v. Zoning Board of Appeals, 48 Conn. App. 599, 712
A.2d 423 (1998). Like the applicant here, the plaintiff
in Ferreira sought a used car dealer license and, accord-
ingly, filed a location approval application with the zon-
ing board pursuant to § 14-54. Id., 600. Following a hear-
ing, the zoning board denied the application, concluding
that the proposed location was not suitable for such
use. Id., 602. On appeal, the Superior Court ‘‘reasoned
that, because the proposed use was permitted by
existing zoning laws of the city of Shelton, it was pre-
sumed to be suitable.’’ Id., 602–603. The Superior Court
thus reversed the decision of the zoning board. Id., 602.
From that judgment, the zoning board appealed to this
court, which rejected the reasoning of the Superior
Court. In reversing its judgment, we concluded that the
Superior Court had ‘‘improperly substituted its judg-
ment for that of the board’’ and that substantial evidence
existed in the record to support the board’s conclusion
that the location was not suitable for the plaintiff’s
proposed use. Id., 604–605.
Mrowka and Ferreira stand for the proposition that
the fact that a proposed use is permitted in a particular
zone does not obligate a zoning board to grant a location
approval application. Indeed, all applications filed pur-
suant to § 14-54 necessarily involve uses that are permit-
ted to some degree, as ‘‘[a] certificate of approval for
a particular use cannot be issued if that use would
violate zoning regulations.’’ Raymond v. Zoning Board
of Appeals, 164 Conn. 85, 89, 318 A.2d 119 (1972).
The General Assembly, in designating municipal zon-
ing boards as agents of the state, entrusts in them the
responsibility ‘‘to determine whether a certificate of
approval should be issued.’’ (Emphasis added.) Mason
v. Board of Zoning Appeals, supra, 143 Conn. 637; see
also id., 638 (‘‘under the statute, the [zoning board] was
to give or refuse to give its approval of a geographical
site’’); Charchenko v. Kelly, supra, 140 Conn. 212(‘‘[w]hether or not a location for repairing automobiles
and for dealing in used cars should be approved is to
be determined upon the basis of the situation actually
existing when the certificate of approval is sought’’ and
should entail ‘‘consideration of all relevant circum-
stances’’); Mohican Valley Concrete Corp. v. Zoning
Board of Appeals, supra, 75 Conn. App. 59–60 (§ 14-54
‘‘requires local zoning boards to decide the suitability of
the location of an automobile dealership’’); East Coast
Towing, Ltd. v. Stamford, Superior Court, judicial dis-
trict of Stamford-Norwalk, Docket No. CV-XX-XXXXXXX-
S (June 30, 2010) (50 Conn. L. Rptr. 225, 227) (‘‘The
intention of § 14-54 is to have some relevant review of
the placement of such a business. To allow an interpre-
tation of the statutory requirement that approval is sim-
ply a ‘rubber stamp’ would ignore the purpose of the
statute, that is, to permit the local authority that has
knowledge and familiarity with the location to analyze
. . . whether the operation is suitable for the location.
It would be meaningless to enact a statute requiring a
permit process if there was no discretion afforded the
local authority to determine if the use ‘fits’ within the
surrounding area.’’). When a zoning board is presented
with a location approval application, it acts not in its
zoning capacity, but as an agent of the state. See, e.g.,
Sun Oil Co. v. Zoning Board of Appeals, supra, 154
Conn. 35; Dubiel v. Zoning Board of Appeals, supra,
147 Conn. 520. Accordingly, in reviewing a location
approval application, a municipal zoning board is obli-
gated to make a determination, irrespective of the per-
mitted nature of the proposed use, on whether a certifi-
cate of approval should issue. As a matter of law, the
members of the board were mistaken in concluding
otherwise during their deliberations.
IV
The plaintiff also contends that the board committed
an error of law by failing to ‘‘consider or distinguish’’
a prior denial of a location approval application to oper-
ate a similar business on the property. That claim
requires us to consider the proper application of the
‘‘impotent to reverse’’ rule, which presents a question
of law subject to plenary review.33 See Purnell v. Inland
Wetlands & Watercourses Commission, 209 Conn. App.
688, 719, 269 A.3d 124, cert. denied, 343 Conn. 908,
A.3d (2022).
A
In many ways, the impotent to reverse rule operates
as the administrative agency equivalent of the doctrine
of stare decisis.34 As this court recently explained, ‘‘[t]he
impotent to reverse rule has governed the conduct of
municipal administrative agencies in this state for more
than ninety years. . . . [F]rom the inception of [land
use regulation] to the present time, [our appellate
courts] have uniformly held that a [municipal land use
agency] should not ordinarily be permitted to review
its own decisions and revoke action once duly taken.
. . . Otherwise . . . there would be no finality to the
proceeding and the decision would be subject to change
at the whim of the board or through influence exerted
on its members. . . .
‘‘At the same time . . . although [f]inality of decision
is . . . desirable in the administrative context . . .
that principle is by no means inflexible. . . . The impo-
tent to reverse rule thus embodies an important limita-
tion on the ability of an administrative agency to recon-
sider its prior determinations, while at the same time
affording a degree of flexibility in limited circum-
stances. The rule dictates that an administrative agency
cannot reverse a prior decision unless there has been
a change of conditions or other considerations have
intervened which materially affect the merits of the
matter decided. . . . Mere change in conditions or
other factors is not enough; only proof of material
change permits an agency to reconsider its prior deter-
mination. . . . Moreover, the impotent to reverse rule
applies . . . only when the subsequent application
seeks substantially the same relief as that sought in the
former. And it is for the administrative agency, in the
first instance, to decide whether the requested relief in
both applications is substantially the same.’’35 (Citations
omitted; internal quotation marks omitted.) Id., 719–21.
Accordingly, in applying the impotent to reverse rule,
a municipal administrative agency must make two dis-
tinct factual determinations. The agency must deter-
mine (1) whether the application in question seeks sub-
stantially the same relief as that sought in a previous
application that was decided by that agency and (2)
whether a change of conditions or other considerations
have intervened that materially affect the merits of the
agency’s decision on that prior application. See id., 720–
21. Those factual questions must be answered by the
municipal administrative agency in the first instance
and cannot be decided by a reviewing court. See Fiori-
lla v. Zoning Board of Appeals, 144 Conn. 275, 279, 129
A.2d 619 (1957); Hoffman v. Kelly, 138 Conn. 614, 618,
88 A.2d 382 (1952); see also Purnell v. Inland Wetlands
& Watercourses Commission, supra, 720–21; cf. Hunter
Ridge, LLC v. Planning & Zoning Commission, 318
Conn. 431, 445, 122 A.3d 533 (2015) (Superior Court
sits as appellate tribunal when hearing administrative
appeal); Shanahan v. Dept. of Environmental Protec-
tion, 305 Conn. 681, 716 n.23, 47 A.3d 364 (2012) (appel-
late tribunal cannot find facts).
B
The plaintiff’s claim is predicated on the undisputed
fact that, in 2009, a company known as East Coast
Towing, Ltd. (East Coast), applied for a location approval
to operate a used car dealership on the property, which
business included the ‘‘repair of vehicles and the storage
of tow trucks’’ on the property. East Coast Towing,
Ltd. v. Zoning Board, Superior Court, judicial district
of Stamford-Norwalk, Docket No. CV-XX-XXXXXXX-S
(March 2, 2011) (51 Conn. L. Rptr. 572, 573). Following
a public hearing at which ‘‘members of the public
opposed the application claiming that the [property]
was unsuitable for the proposed use’’; id.; the Zoning
Board of the City of Stamford (agency) denied the loca-
tion approval application. Id. East Coast appealed the
propriety of that decision to the Superior Court, which
concluded that there was substantial evidence to sup-
port the reasons stated by the agency for its denial of
the application on suitability grounds pursuant to § 14-
55.36 Id., 578. The court, therefore, dismissed the admin-
istrative appeal. See id.
Like the East Coast application, the Pisano applica-
tion here seeks a location approval to conduct used car
sales, automotive repair, and the storage of a tow truck
on the property. Because it involves a similar location
approval request, the plaintiff posits that the board
‘‘committed legal error when it failed to address its 2009
decision [on the East Coast application] denying [a]
location approval at the exact same site.’’ The plaintiff
further submits that, pursuant to the impotent to reverse
rule, the board ‘‘should have compared the two [applica-
tions], and it was legal error for the [board] to reverse
its prior denial without giving due consideration to
whether circumstances had changed.’’ (Emphasis added.)
On the particular facts of this anomalous case, we dis-
agree.
The impotent to reverse rule precludes a municipal
administrative agency from revisiting ‘‘its own deci-
sions and revok[ing] action once duly taken.’’ (Empha-
sis added.) Mitchell Land Co. v. Planning & Zoning
Board of Appeals, 140 Conn. 527, 533, 102 A.2d 316 (1953);
see also Malmstrom v. Zoning Board of Appeals, 152
Conn. 385, 390, 207 A.2d 375 (1965) (‘‘[o]rdinarily, an
administrative agency cannot reverse a prior decision’’);
Fiorilla v. Zoning Board of Appeals, supra, 144 Conn.
279 (specifying when administrative agency is justified
‘‘in reversing itself’’). The impotent to reverse rule ‘‘thus
embodies an important limitation on the ability of an
administrative agency to reconsider its prior determi-
nations . . . .’’ (Emphasis added.) Purnell v. Inland
Wetlands & Watercourses Commission, supra, 209
Conn. App. 720.
Contrary to the plaintiff’s contention before both the
Superior Court and this court, the board did not make
any prior determinations or render a decision on the
East Coast location approval application in 2009.
Rather, that decision was made by the agency, which,
at the time, was the entity designated by statute to act
on location approval applications. See General Statutes
(Rev. to 2003) § 14-54 (a). Critically, the agency and the
board are separate municipal administrative agencies
with distinct powers and duties under the city charter.
See Stamford Charter §§ C6-40-1 and C6-50-1.
In 2016, the General Assembly amended § 14-54. See
Public Acts 2016, No. 16-55, § 4. As a result of that
amendment, the authority to act on approval location
applications in Stamford was transferred from the
agency to the board, effective July 1, 2016. The Pisano
application was filed two weeks later. The fact that the
board and its members had no previous involvement,
and made no determinations, with respect to the East
Coast location approval application undermines any
claim that, in granting the Pisano application, the board
improperly reversed itself in contravention of the impo-
tent to reverse rule.
In its reply to the supplemental appellate brief filed
by the applicant, the plaintiff suggests that the fact that
the agency, rather than the board, decided the East
Coast location approval application is a ‘‘distinction
without a difference.’’ The plaintiff has provided no
authority to support that assertion, nor are we aware
of any. The concurring and dissenting opinion likewise
has identified no authority in which the impotent to
reverse rule has been applied against a municipal agency
that did not itself act on a prior application.
Furthermore, the record in the present case indicates
that, although the use of the property by East Coast
was vaguely alluded to by Darosa during the public hear-
ing, the board never was apprised that the agency had
rendered a decision on a location approval application
for the property. Neither the agency’s decision on the
East Coast application nor the Superior Court’s decision
upholding the agency’s determination was furnished to
the board. In such circumstances, it would be imprudent
and inequitable to impute constructive notice on the
part of board members of the substance of the proceed-
ing before, and the decision of, a separate municipal
agency seven years earlier. In this regard, we are mind-
ful that members of municipal administrative agencies
like the board ‘‘typically are laypersons more familiar
with their community than with the niceties of applica-
ble law’’; Mohican Valley Concrete Corp. v. Zoning
Board of Appeals, supra, 75 Conn. App. 50; and that their
‘‘procedural expertise may not always comply with the
multitudinous statutory mandates under which they
operate.’’ Gagnon v. Inland Wetlands & Watercourses
Commission, 213 Conn. 604, 611, 569 A.2d 1094 (1990).
On the particular circumstances of this case, we con-
clude that the board did not commit an error of law by
failing to distinguish the agency’s 2009 denial of the
location approval application by East Coast.37
V
As a final matter, we briefly address an ancillary
issue raised sua sponte in the concurring and dissenting
opinion regarding the ability of a municipal zoning board
to conditionally approve a location approval applica-
tion. Our Supreme Court has explained that ‘‘[w]ell
established principles govern further proceedings after
a remand by this court. In carrying out a mandate of
[the Supreme Court], the [lower] court is limited to the
specific direction of the mandate as interpreted in light
of the opinion. . . . This is the guiding principle that
the [lower] court must observe.’’ (Internal quotation
marks omitted.) Bauer v. Waste Management of Con-
necticut, Inc., 239 Conn. 515, 522, 686 A.2d 481 (1996).
In Elmcroft II, our Supreme Court remanded the case
to this court with specific direction to ‘‘consider the
plaintiff’s remaining claims.’’ One Elmcroft Stamford,
LLC v. Zoning Board of Appeals, supra, 337 Conn. 826.
In this administrative appeal, the plaintiff has not raised
any claim regarding the authority of a municipal zoning
board, in acting on a location approval application pur-
suant to § 14-54, to condition its approval on an appli-
cant’s compliance with particular restrictions. Accord-
ingly, that issue is beyond the scope of the remand
ordered by our Supreme Court.
We recognize that municipal zoning agencies rou-
tinely attach conditions to location approvals. See, e.g.,
Mohican Valley Concrete Corp. v. Zoning Board of
Appeals, supra, 75 Conn. App. 56 n.11; id., 62 (noting, in
case in which board attached conditions to its approval,
that ‘‘the board might have taken account of the willing-
ness of the defendants to accept a certificate of approval
with conditions designed to mitigate some of the con-
cerns raised by the plaintiffs’’); University Realty, Inc.
v. Planning Commission, 3 Conn. App. 556, 558, 490
A.2d 96 (1985) (affirming decision to grant location
approval that ‘‘was subject to certain conditions, one
of which was approval from the defendant of the site
development of the property as required by the city
zoning regulations’’); Modern Tire Recapping Co. v.
Town Plan & Zoning Commission, Superior Court,
judicial district of Hartford, Docket No. CV-XX-XXXXXXX-
S (December 30, 2013) (commission granted location
approval ‘‘with conditions’’); Gibson v. New Haven City
Plan Commission, Superior Court, judicial district of
New Haven, Docket No. CV-XX-XXXXXXX-S (October 27,
2008) (zoning board granted location approval subject
to multiple conditions); Zaldumbide v. Zoning Board
of Appeals, Superior Court, judicial district of Fairfield,
Docket No. CV-90-270866 (July 23, 1992) (same). More-
over, the ‘‘application for automobile dealer’s or repair-
er’s license’’ form prepared by the department specifi-
cally asks whether ‘‘there are any restrictions placed
on the licensee’s uses of the property’’ by the municipal
zoning agency.
At the same time, we are aware of no statutory author-
ity for such conditional approval. Although the General
Assembly expressly has conferred authority on munici-
pal agencies to render conditional approval in certain
contexts; see, e.g., General Statutes § 8-2 (a) (special
permits granted by zoning agency may be subject ‘‘to
conditions necessary to protect the public health,
safety, convenience and property values’’); General
Statutes § 22a-42a (d) (1) (inland wetlands agency may
impose conditions on permit to conduct regulated activ-
ity); it has not done so with respect to location approv-
als granted pursuant to § 14-54. Nonetheless, our
Supreme Court has recognized, in another context, that
‘‘[a] zoning board of appeals may, without express [stat-
utory] authorization, attach reasonable conditions to
the grant of a variance.’’ (Emphasis added.) Burlington
v. Jencik, 168 Conn. 506, 509, 362 A.2d 1338 (1975).
Mindful of the limited scope of our review on remand,
we leave for another day the question of a zoning board’s
authority to render conditional approval on an applica-
tion filed pursuant to § 14-54.
The judgment is reversed in part and the case is
remanded to the Superior Court with direction to remand
the case to the Zoning Board of Appeals for further pro-
ceedings consistent with this opinion; the judgment is
affirmed in all other respects.
In this opinion MOLL, J., concurred.
1
General Statutes (Rev. to 2003) § 14-55 provides in relevant part: ‘‘No
such certificate shall be issued until the application has been approved and
such location has been found suitable for the business intended, with due
consideration to its location in reference to schools, churches, theaters,
traffic conditions, width of highway and effect on public travel.’’
All references to § 14-55 in this opinion are to the 2003 revision of the
General Statutes.
2
In the various materials in the record before us, that district is described
interchangeably as the ‘‘M-G zone’’ and the ‘‘MG zone.’’
3
The application form provided by the department asks applicants to
specify the ‘‘type of license’’ being requested and contains four boxes labeled
‘‘new car dealer,’’ ‘‘used car dealer, ‘‘general repairer,’’ and ‘‘limited repairer.’’
On the application completed by Pisano, he checked ‘‘used car dealer.’’
4
In Elmcroft I, this court concluded that Pisano ‘‘had standing to apply
to the board for location approval.’’ One Elmcroft Stamford, LLC v. Zoning
Board of Appeals, supra, 192 Conn. App. 283. No party petitioned for certifica-
tion to appeal to the Supreme Court with respect to the propriety of that
determination. For clarity, we refer to Pasquale Pisano and Pisano Brothers
Automotive, Inc., collectively as the applicant and individually by name.
5
The ‘‘APA TAB II #55’’ notation ostensibly is a reference to ‘‘Appendix
A—Table II’’ of the Stamford Zoning Regulations, which pertains to permitted
uses in commercial and industrial districts. ‘‘Auto Sales Area, Used’’ is listed
as number fifty-five on that table.
6
The record before us also contains an ‘‘application packet’’ review form,
which specifies that ‘‘all applications must be reviewed by zoning enforce-
ment prior to ZBA submittal.’’ That form also contains the signature of the
zoning enforcement officer.
7
That regulatory provision comports with the statutory mandate of Gen-
eral Statutes § 8-6 (a), which provides in relevant part: ‘‘The zoning board
of appeals shall have the following duties . . . (3) to determine and vary
the application of the zoning bylaws, ordinances or regulations in harmony
with their general purpose and intent and with due consideration for conserv-
ing the public health, safety, convenience, welfare and property values solely
with respect to a parcel of land where, owing to conditions especially
affecting such parcel but not affecting generally the district in which it is
situated, a literal enforcement of such bylaws, ordinances or regulations
would result in exceptional difficulty or unusual hardship so that substantial
justice will be done and the public safety and welfare secured . . . .’’
8
The record before us contains the board’s formal referral of the Pisano
application to various land use agencies. Appended to that referral is a
document titled ‘‘Zoning Board of Appeals Referrals,’’ next to which ‘‘86
Elmcroft Road’’ is handwritten. Under the section titled ‘‘Variances,’’ the
boxes corresponding to several municipal agencies are checked, including
the Planning Board and the Engineering Bureau.
9
We reiterate that the regulations require the Planning Board, in reviewing
a variance application, to ‘‘set forth its opinion as to whether or not the
proposed use or feature is in reasonable harmony with the various elements
and objectives of the Master Plan . . . .’’ Stamford Zoning Regs.,
§ 19.B.3.d (2).
10
The notice published by the board stated:
‘‘CITY OF STAMFORD
‘‘ZONING BOARD OF APPEALS
‘‘LEGAL NOTICE
‘‘The [board] will hold a public hearing and meeting on Wednesday, Sep-
tember 14, 2016, at 7 PM in the Cafeteria located on the 4th floor of the
Stamford Government Center Building, 888 Washington Boulevard, Stamford
at which time and place the following application will be considered:
‘‘Application #059-16 of [Pisano] for a [m]otor [v]ehicle approval of Table
II, Appendix A, #55 (Auto Sales Requirements) of the [regulations] in order
to allow a [u]sed [c]ar [d]ealer to operate and be located in an MG zone.
Said property is located on the east side of Elmcroft Road in an MG zone
and is known as 86 Elmcroft Road. This application is exempt from Coastal
Area Management Approval, Exemption Number 10C.
‘‘At the above mentioned time and place a public hearing will be held
and all interested parties are invited to attend. After the public hearing,
there may be a meeting to discuss and possibly decide the application and
any other business pending before the [b]oard.’’ (Emphasis omitted.)
11
That statement mirrors the notation on the ‘‘variance’’ section of the
Pisano application.
12
With respect to the used car dealer aspect of his business, Pisano stated
that there would be ‘‘no prices, no signs, no nothing’’ on any used cars
stored on the property. He further explained that, ‘‘if I do sell a car, it’s
usually to a customer that comes in and asks, do you have anything for
sale. That’s the only reason. Otherwise, there’s no banners or anything like
that. I’m not—if I do sell cars, it would be anywhere from one to five a year
at the most.’’
13
Sedlak also articulated his frustration with the zoning classification of
the area in question, stating: ‘‘Why the hell hasn’t the Planning Board and
the Zoning Board over the many, many years changed that side of the street
to something different from [the] MG zone. . . . [T]he Zoning Board and
the Planning Board have not done a good job. . . . [T]he zoning should
have been changed on this [area] years ago.’’
14
The conditions attached to the board’s approval were:
‘‘1. All concerns of the Engineering [Bureau] shall be adhered to.
‘‘2. There shall be no more than [six] cars parked in the front.
‘‘3. The [applicant] shall make an effort to contact the Engineering Bureau
and discuss having [it] add sidewalks to the area.
‘‘4. The hours of operation shall be [8 a.m. to 6 p.m.], Monday through Satur-
day.
‘‘5. There shall be no vehicular parking between the front property line
and the curb on Elmcroft Road.
‘‘6. There shall be one tow truck only on the premises.
‘‘7. There shall be year round evergreen screening around the property.
‘‘8. There shall be no auto body shop or painting of cars on the premises.
‘‘9. All cars belonging to visitors, patrons or employees shall be parked
on the site at all times.
‘‘10. No vehicle repairs shall be permitted outside of the building.
‘‘11. No impact tools shall be used outside of the building.
‘‘12. No storage of inoperative vehicles shall be permitted outside of
the building.
‘‘13. Outside visible storage of any automotive equipment including tires,
batteries, auto parts, etc., shall not be permitted.
‘‘14. The location, size, and appearance of the building and improvements
shall be as per plan depicted on IMPROVEMENT LOCATION SURVEY, dated
revised [July 15, 2016], copies of which are on file in the office of the [board].’’
15
General Statutes § 14-57 provides: ‘‘Any person aggrieved by the perfor-
mance of any act [regarding the issuance of dealers’ and repairers’ licenses]
by such local authority may take an appeal therefrom to the superior court
for the judicial district within which such town or city is situated, or in
accordance with the provisions of [§] 4-183. Any such appeal shall be privi-
leged.’’
16
General Statutes (Rev. to 2003) § 14-55 provides in relevant part: ‘‘In
any town, city or borough the local authorities referred to in [§] 14-54 shall,
upon receipt of an application for a certificate of approval . . . assign the
same for hearing within sixty-five days of the receipt of such application.
Notice of the time and place of such hearing shall be published in a newspa-
per having a general circulation in such town, city or borough at least twice,
at intervals of not less than two days, the first not more than fifteen, nor
less than ten days, and the last not less than two days before the date of
such hearing and sent by certified mail to the applicant not less than fifteen
days before the date of such hearing. . . .’’
17
We recognize that, on June 4, 2003, the legislature passed No. 03-265,
§ 9, of the 2003 Public Acts, which ‘‘purported to amend § 14-55 by appending
two new sentences to the previously existing language.’’ One Elmcroft Stam-
ford, LLC v. Zoning Board of Appeals, supra, 337 Conn. 810. For the reasons
discussed in its comprehensive decision, our Supreme Court concluded
that this attempted amendment of § 14-55 was ineffective in light of the
legislature’s repeal of § 14-55 days earlier. Id., 817–22. The Supreme Court
thus held that ‘‘despite having passed multiple amendments to the statutory
scheme governing certificates of approval of the location . . . the legisla-
ture has not yet seen fit to reenact the provisions previously set forth in
§ 14-55.’’ (Citation omitted.) Id., 825.
18
It is undisputed that Pisano Brothers Automotive, Inc., is not a new car
dealer or a limited repairer.
19
At the public hearing, Fox explained that he had asked the zoning
enforcement officer about the proper classification of the proposed use on
the property. The zoning enforcement officer informed him that he thought
that a ‘‘repair shop would be a less intrusive use than a used [car dealer],
so it would fall into that category’’ as a used car dealer.
20
For that reason, we reject the plaintiff’s ancillary contention that the
‘‘use described at the hearing was different than the license sought from
the [department] . . . .’’
21
No member or representative of the plaintiff participated in the public
hearing on the Pisano application.
22
As one judge noted, ‘‘[w]e have the perhaps odd situation where these
local zoning boards are posited as agents of the state but do not apply state
mandated criteria in deciding to issue certificates of location approval.’’
Glenn v. Zoning Board of Appeals, Superior Court, judicial district of New
Haven, Docket No. CV-XX-XXXXXXX-S (March 30, 2006) (Corradino, J.) (41
Conn. L. Rptr. 140, 143).
23
Due to the repeal of § 14-55, zoning boards no longer are obligated to
conduct a suitability analysis by applying the factors specified therein. At the
same time, we are aware of no authority that would preclude consideration
of those factors, notwithstanding repeal of that statute. As the plaintiff’s
counsel noted at oral argument before this court, ‘‘I don’t think [a zoning
board] could be faulted for applying a suitability analysis.’’ We concur with
that observation. A zoning board likewise is free to consider whether ‘‘the
use of the proposed location will . . . imperil the safety of the public.’’
Atlantic Refining Co. v. Zoning Board of Appeals, 150 Conn. 558, 561, 192
A.2d 40 (1963).
24
In the principal appellate brief that it filed when this appeal was com-
menced, the plaintiff claimed that the board ‘‘decided the [Pisano] applica-
tion under the wrong standard.’’ After the Supreme Court remanded the
case to this court with direction to consider the plaintiff’s remaining claims;
see One Elmcroft Stamford, LLC v. Zoning Board of Appeals, supra, 337
Conn. 826; the plaintiff requested permission to file ‘‘an expedited, supple-
mental brief addressing how the Supreme Court’s partial reversal . . .
affects the scope of the Appellate Court’s review on remand.’’ This court
subsequently ordered the parties to file supplemental briefs addressing, inter
alia, the question of whether, ‘‘irrespective of the issue of compliance with
the repealed § 14-55,’’ the board committed reversible error by applying an
improper legal standard. The plaintiff and the applicant thereafter filed
supplemental briefs in accordance with that order; the board did not file a
supplemental brief or response of any kind.
25
Friedlander signed that certificate of decision in her official capacity
as chair of the board.
26
Section 19.B.2.a of the regulations provides in relevant part: ‘‘In consider-
ing a variance application, the [b]oard shall state upon its record the specific
written findings regarding all of the following conditions . . . . (2) . . .
[T]he aforesaid circumstances or conditions are such that the strict applica-
tion of the provisions of these [r]egulations would deprive the applicant of
the reasonable use of such land or [b]uilding and the granting of the variance
is necessary for the reasonable use of the land or [b]uilding.’’
27
The regulations in effect at the time that Pisano filed his application in
2016 antedate the decision of our Supreme Court in Elmcroft II, which
clarified that § 14-55 had been repealed by the legislature in 2003. Following
its repeal, § 14-55 ‘‘must be considered . . . as if it never existed.’’ (Internal
quotation marks omitted.) One Elmcroft Stamford, LLC v. Zoning Board
of Appeals, supra, 337 Conn. 821; see also State v. Daley, 29 Conn. 272, 275
(1860) (‘‘[t]he effect of [the] repeal was, for the most obvious reason, that
the law, as to any proceedings under it which were not past and closed,
must be considered as if it had never existed’’).
28
In that respect, the board’s referral more aptly is characterized as an
unlawful procedure in contravention of § 4-183 (j) (3).
29
That correspondence was read into the record at the public hearing.
30
We also are troubled by the board’s belated effort to minimize its reliance
on the variance standard contained in § 19.B.2.a (2) of the regulations. The
plaintiff commenced this administrative appeal on November 14, 2016. The
plaintiff filed a memorandum of law in support thereof on February 27,
2017; the board and the applicant filed their respective memoranda in opposi-
tion on April 20 and 21, 2017. On September 18, 2017—two days before
argument on the appeal was scheduled in the Superior Court—the board
recorded a ‘‘revised certificate of decision’’ on the Stamford land records
regarding the Pisano application. That certificate is identical to the one
recorded one year earlier, with one exception. The statement of the board’s
findings is omitted, with the following language inserted in its place:
‘‘NOTE—This corrected [c]ertificate eliminates ‘variance’ language on the
original [c]ertificate of [d]ecision . . . since [the Pisano application] is not
a variance application, it is an application for [c]ertificate of [a]pproval for
location of a [u]sed [c]ar [d]ealership.’’ As this court noted in Elmcroft I,
that revised certificate ‘‘was submitted to the Superior Court in a supplemen-
tal return of record. The record contains no indication as to how this revised
decision was made, and it does not appear to have been issued in accordance
with the modification procedures set forth in General Statutes § 4-181a et
seq. It does not appear that the Superior Court considered the revised
[certificate] when rendering its judgment.’’ One Elmcroft Stamford, LLC v.
Zoning Board of Appeals, supra, 192 Conn. App. 291 n.9. Although we agree
that this purported correction cannot properly be considered the formal,
collective statement of the basis of the board’s decision on the Pisano
application, the recording of that document nonetheless suggests a tacit
acknowledgment by the board that an improper standard was specified as
the collective basis of its decision in the original certificate.
31
After the public comment portion of the hearing concluded, Fox similarly
stated: ‘‘[O]ne of the things that strikes me is that it is [in] an MG zone, this
property. A lot of things can go there as of right because of the way the
state of Connecticut has chosen to deal with used car dealers and car repair,
[so] this board does have to approve the location.’’ (Emphasis added.) Fox
then noted that the board had ‘‘the opportunity to put some limitations on
what [the applicant] can do that, hopefully, will alleviate some of the con-
cerns that you’ve heard tonight,’’ and then discussed several potential condi-
tions that the board could attach to its approval.
32
The record indicates that, at the time of the hearing, the board was
comprised of four regular members—Friedlander, Sedlak, White, and Anto-
nelli—and two alternate members, Ernest Matarasso and Matthew Tripolitsi-
otis. Although the transcript of the public hearing does not indicate that
Tripolitsiotis was designated to act on the Pisano application in accordance
with General Statutes § 8-5a; see, e.g., Komondy v. Zoning Board of Appeals,
supra, 127 Conn. App. 675–76; and Tripolitsiotis is not identified in any
manner in that transcript, the minutes of the board’s September 14, 2016
meeting state that Tripolitsiotis voted to approve the Pisano application
along with the four regular members of the board.
The transcript of the September 14, 2016 meeting also indicates that the
members of the board never formally voted on the Pisano application, nor
was any motion to approve the application made by any member. Rather,
following a discussion of potential conditions, Friedlander simply declared:
‘‘Application 059-16, 86 Elmcroft Road has been approved, five votes in
favor, none in opposition with the following conditions.’’
33
Although our conclusion in part III of this opinion that the board errone-
ously applied an incorrect legal standard is dispositive of the appeal and
necessitates a remand to the board for a new hearing, the plaintiff’s impotent
to reverse claim is almost certain to arise on remand. We, therefore, deem
it appropriate to address that claim. See, e.g., Oudheusden v. Oudheusden,
338 Conn. 761, 778, 259 A.3d 598 (2021); Total Recycling Services of Connecti-
cut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312, 325,
63 A.3d 896 (2013). By contrast, we decline to address the plaintiff’s claim
that the conditions that were attached to the board’s approval; see footnote
14 of this opinion; are impossible to satisfy. We decline to speculate as to
(1) whether the board, on remand, will grant the location approval applica-
tion, (2) whether the board, on remand, will attach any conditions to such
approval, and (3) the nature of any such conditions. See New Hartford v.
Connecticut Resources Recovery Authority, 291 Conn. 502, 510, 970 A.2d
578 (2009) (speculation and conjecture have no place in appellate review).
34
‘‘The doctrine of stare decisis counsels that a court should not overrule
its earlier decisions unless the most cogent reasons and inescapable logic
require it. . . . Stare decisis is justified because it allows for predictability
in the ordering of conduct, it promotes the necessary perception that the
law is relatively unchanging, it saves resources and it promotes judicial
efficiency. . . . It is the most important application of a theory of [decision-
making] consistency . . . and . . . is an obvious manifestation of the
notion that [decision-making] consistency itself has normative value.’’ (Inter-
nal quotation marks omitted.) Spiotti v. Wolcott, 326 Conn. 190, 201, 163
A.3d 46 (2017).
35
Our Supreme Court has held that the impotent to reverse rule applies
in the specific context of location approval applications. See Mason v.
Board of Zoning Appeals, supra, 143 Conn. 639 (observing, in case involving
location approval application, ‘‘that, after an administrative agency has made
a decision relating to the use of real property, it is ordinarily powerless to
reverse itself, although it may do so if a change in circumstances has occurred
since its prior decision, or other considerations materially affecting the
merits of the subject matter have intervened and no vested rights have
arisen’’).
36
In light of the legislature’s repeal of § 14-55 in 2003, the propriety of
the agency’s December 14, 2009 denial of the East Coast application is
questionable. We note in this regard that the Superior Court, in its 2011
decision affirming that denial, erroneously concluded that ‘‘§ 14-55 was
actually not repealed in [2003] and that the statute remains in effect . . . .’’
East Coast Towing, Ltd. v. Zoning Board, supra, 51 Conn. L. Rptr. 577;
contra One Elmcroft Stamford, LLC v. Zoning Board of Appeals, supra,
337 Conn. 809 (concluding that § 14-55 was repealed in 2003).
37
This opinion should not be construed to preclude the parties, on remand,
from providing the board with evidence regarding the East Coast location
approval application and the agency’s decision to deny that request in 2009.
The board, as arbiter of credibility, is entitled to assign whatever weight it
deems appropriate to such evidence. See Cadlerock Properties Joint Ven-
ture, L.P. v. Commissioner of Environmental Protection, 253 Conn. 661,
676, 757 A.2d 1 (2000) (‘‘[n]either this court nor the [Superior Court] may
. . . substitute its own judgment for that of the administrative agency on
the weight of the evidence’’ (internal quotation marks omitted)), cert. denied,
531 U.S. 1148, 121 S. Ct. 1089, 148 L. Ed. 2d 963 (2001).