         FORTUNATA MALUCCIO v. EAST LYME
            ZONING BOARD OF APPEALS
                    (AC 38680)
                    Sheldon, Mullins and Pellegrino, Js.

                                   Syllabus

The plaintiff property owner appealed to the trial court from the decision
   of the defendant, the East Lyme Zoning Board of Appeals, upholding
   the denial by the zoning enforcement officer of the plaintiff’s application
   for a permit to build a single family residence on certain of her real
   property in the town of East Lyme. The plaintiff’s property was originally
   designated on a subdivision plan map as a recreation area. When the
   developer of that subdivision submitted the plan to the East Lyme Plan-
   ning Commission, the subdivision regulations gave the commission the
   discretion to require that the developer provide land to the town for
   open space for parks and playgrounds. The commission approved the
   subdivision plan as submitted, but did not explicitly require that it
   contain a recreation area as the commission deemed proper. On two
   occasions, the town rejected offers from the subdivision’s developers
   to deed the property to the town, and the plaintiff later acquired the
   property at a tax sale. The zoning enforcement officer denied the plain-
   tiff’s subsequent application for a building permit for a single family
   residence because the property had been designated as a recreation
   area on the original subdivision plan. The plaintiff then appealed that
   decision to the defendant, which concluded that the zoning enforcement
   officer had properly denied the building permit on that ground. On
   the plaintiff’s appeal from that decision, the trial court found that the
   defendant’s decision was illegal and not supported by the record. Specifi-
   cally, the trial court reasoned that the recreation area notation on the
   subdivision plan created, if anything, a private right or restriction that
   could not be enforced by the zoning enforcement officer or the defen-
   dant. The court sustained the plaintiff’s appeal and directed the defen-
   dant to reverse the decision of the zoning enforcement officer, and the
   defendant, on the granting of certification, appealed to this court. The
   defendant claimed that the trial court had improperly found that the
   recreation area designation on the subdivision map created only a private
   right or restriction unenforceable by zoning law. The defendant specifi-
   cally argued that the subdivision regulations had required the developer
   to label the property as a recreation area and, therefore, the zoning
   enforcement officer had the power to deny the plaintiff’s building permit
   application because the property was currently a recreation area. Held
   that the trial court properly sustained the plaintiff’s appeal, as the defen-
   dant’s decision to uphold the denial of the building permit application
   was illegal and unsupported by the record: the subdivision regulations
   did not require an open space parcel, but merely required that a devel-
   oper allocate a parcel as open space so that the commission could
   decide whether such a parcel should be required, and here, based on
   the commission’s silence in that regard, it could not be assumed that the
   commission had required that the parcel remain open space; moreover,
   because the subdivision regulations made no mention of the commis-
   sion’s power to require that a developer set aside a recreation area,
   and only allowed the commission to require open space for parks and
   playgrounds, the commission had lacked the authority to require the
   developer to designate a recreation area and, therefore, the plaintiff’s
   building permit could not be denied on that ground; furthermore, the
   defendant could not prevail on its claim that the trial court erred in
   determining that the town was required to accept title to the property
   to effectuate the recreation area designation, as that claim was based
   on a misguided reading of that court’s decision, which had focused on
   the illegality of the action taken and not what action the town could
   have taken to effectuate the recreation area designation.
           Argued February 7—officially released July 18, 2017

 (Appeal from Superior Court, judicial district of New
 London, Hon. Robert C. Leuba, judge trial referee.)
                     Procedural History

  Appeal from the decision of the defendant upholding
the denial by the zoning enforcement officer of the
plaintiff’s application for a building permit, brought to
the Superior Court in the judicial district of New London
and tried to the court, Hon. Robert C. Leuba, judge trial
referee; judgment sustaining the appeal, from which
the defendant, on the granting of certification, appealed
to this court. Affirmed.
  Mark S. Zamarka, with whom, on the brief, was
Edward B. O’Connell, for the appellant (defendant).
  Eugene C. Cushman, for the appellee (plaintiff).
                          Opinion

   PELLEGRINO, J. This appeal is brought by the defen-
dant, the East Lyme Zoning Board of Appeals (board),
from a decision of the trial court sustaining an appeal
from the board’s decision denying a building permit
for a parcel of land owned by the plaintiff, Fortunata
Maluccio, that was designated as a ‘‘recreation area’’
on an original subdivision plan. The defendant claims
that the trial court improperly found that the designa-
tion of the parcel as a ‘‘recreation area’’ did not preclude
the development of that parcel for residential use. We
affirm the judgment of the trial court.
   The following facts and procedural history are rele-
vant to this appeal. The plaintiff purchased a lot with
the address of 6 Red Fox Road (parcel) in the Green
Valley Lakes subdivision in East Lyme (town) at a tax
sale on May 26, 2006. The Green Valley Lakes subdivi-
sion was originally approved on July 13, 1970, by the
East Lyme Planning Commission (commission). The
East Lyme Subdivision Regulations (regulations), as
they existed in 1970, gave the commission discretion
to require developers to provide land to the town for
‘‘open space for parks and playgrounds as it may deem
proper . . . .’’ East Lyme Subdivision Regs. (Rev. to
June 5, 1967), § 3.5. Accordingly, the developer of Green
Valley Lakes designated one lot as a ‘‘recreation area’’
on the subdivision plan he submitted for approval to
the commission. The lot labeled ‘‘recreation area’’ is
the parcel at issue in this appeal.
   At its meeting on July 13, 1970, the commission
approved the subdivision plan that included the parcel
labeled as a ‘‘recreation area.’’ The vote on the subdivi-
sion, however, did not explicitly mention whether a
recreation area would be required. On February 14,
1972, the developer recorded on the land records of
the town a ‘‘Declaration of Restrictions’’ relating to the
subdivision. No mention was made of the parcel, any
special restrictions regarding the parcel, or any rights
created for the use of the parcel by any lot owners.
   On July 5, 1973, the original developer offered to deed
the parcel to the town. The minutes of the town Board
of Selectmen meeting state that, following a discussion,
the selectmen voted unanimously to reject the offer.
Once more, in 1979, a subsequent developer also offered
to deed the parcel to the town, but the offer was
rejected. The parcel has remained in its natural state
since 1970, has not been classified as open space by
the assessor, and does not appear as open space on
the town’s plan of development or comprehensive plan.
No rights in the parcel were deeded to lot purchasers
in the development, and no lot owner has filed a notice
of claim as to any rights in the parcel pursuant to Gen-
eral Statutes § 47-33f.1
  Following years of unpaid taxes on the parcel, it
became the subject of a statutory tax sale by a public
auction conducted by the town’s tax collector. A public
notice regarding the sale was issued on March 10, 2006.
The notice indicated that the parcel was to be sold
subject to a utility easement and sloping rights, but
made no mention of any encumbrance relating to open
space for parks and playgrounds. The plaintiff pur-
chased the parcel at the tax sale for $19,500.
   In August, 2012, the plaintiff submitted an application
to the town for a zoning permit to build a single family
home on the parcel. The application and attached plans
conformed to all specific requirements of the zoning
regulations of the town.2 The zoning enforcement offi-
cer, acting on behalf of the East Lyme Zoning Commis-
sion, denied the permit application, stating his reasons
as follows: ‘‘[The] application is denied as property is
designated as recreation area open space on the original
subdivision plan.’’
  The plaintiff appealed from the denial of her permit
application to the defendant, which, following a hear-
ing, upheld the zoning enforcement officer’s decision.
The defendant stated that the zoning enforcement offi-
cer ‘‘had properly denied the zoning permit for [the
parcel], [and] that designations of the original subdivi-
sion map such as recreation area, open space, etc., were
purely semantics as they all serve the same function
and the opinion of the attorney was that they were
synonymous as you are talking about language from
1970 and now. Further, it was recommended that the
appropriate method of change for this item is through
the [commission].’’
   Pursuant to General Statutes § 8-8 (b), the plaintiff
appealed from the decision of the defendant to the
Superior Court. The court sustained the plaintiff’s
appeal, holding that the decision of the defendant was
illegal and not supported by the record. Specifically,
the court reasoned that the notation of ‘‘recreation area’’
on the original subdivision plans submitted for approval
in 1970 created only, if anything, a private right or
restriction that cannot be enforced by the zoning
enforcement officer or the defendant. Further, the court
observed that the town had twice rejected offers from
developers to deed the parcel to the town for recre-
ational purposes, and therefore the parcel was never
deeded or dedicated to the town as a ‘‘recreation area.’’
The court remanded the case to the defendant with
direction to reverse the ruling of the zoning enforce-
ment officer. On the granting of certification, this appeal
followed. Additional facts will be set forth as necessary.
  We begin by setting forth the applicable standard of
review. ‘‘In reviewing the actions of a zoning board of
appeals, we note that the board is endowed with liberal
discretion and that its actions are subject to review
by the courts only to determine whether [they were]
unreasonable, arbitrary or illegal. . . . The burden of
proof to demonstrate that the board acted improperly
is upon the party seeking to overturn the board’s deci-
sion. . . .
   ‘‘It is well settled that . . . [t]he court’s function is
to determine on the basis of the record whether substan-
tial evidence has been presented to the board to support
its findings. . . . Upon an appeal from the judgment
of the trial court, we review the record to see if there
is factual support for the board’s decision, not for the
contentions of the applicant . . . to determine
whether the judgment was clearly erroneous or con-
trary to law.’’ (Citations omitted; internal quotation
marks omitted.) Wing v. Zoning Board of Appeals, 61
Conn. App. 639, 643–44, 767 A.2d 131, cert. denied, 256
Conn. 908, 772 A.2d 602 (2001).
  ‘‘When a zoning agency has stated its reasons for its
actions, a court should not reach beyond those stated
purposes to search the record for other reasons sup-
porting the commission’s decision. . . . Rather, the
court should determine only whether the assigned
grounds are reasonably supported by the record and
whether they are pertinent to the considerations which
the authority was required to apply under the zoning
regulations.’’ (Citations omitted; internal quotation
marks omitted.) Harris v. Zoning Commission, 259
Conn. 402, 420–21, 788 A.2d 1239 (2002).
  A zoning enforcement officer acting on an application
for a zoning permit has a purely ministerial function.
See Roraback v. Planning & Zoning Commission, 32
Conn. App. 409, 412, 628 A.2d 1350, cert. denied, 227
Conn. 927, 632 A.2d 704 (1993); but see Reardon v.
Zoning Board of Appeals, 311 Conn. 356, 364–65, 87
A.3d 1070 (2014) (enforcement of zoning regulations
generally discretionary). If the application conforms to
the requirements of the regulations, he has no discretion
but to issue a permit. See Langer v. Planning & Zoning
Commission, 163 Conn. 453, 456, 313 A.2d 44 (1972).
   In the present case, we agree with the trial court’s
conclusion that the action taken by the defendant in
upholding the denial of the plaintiff’s permit was illegal
and unsupported by the record. The defendant can exer-
cise only such powers as are expressly granted to it by
statute. Moscowitz v. Planning & Zoning Commission,
16 Conn. App. 303, 308, 547 A.2d 569 (1988). General
Statutes § 8-6 (a) provides in pertinent part: ‘‘The zoning
board of appeals shall have the following powers and
duties: (1) [t]o hear and decide appeals where it is
alleged that there is an error in any order, requirement
or decision made by the official charged with the
enforcement of this chapter or any bylaw, ordinance
or regulation adopted under the provisions of this chap-
ter . . . .’’ General Statutes § 8-7 provides in relevant
part: ‘‘The board shall hold a public hearing on such
appeal . . . . Such board may reverse or affirm wholly
or partly or may modify any order, requirement or deci-
sion appealed from and shall make such order, require-
ment or decision as in its opinion should be made in
the premises and shall have all the powers of the officer
from whom the appeal has been taken but only in accor-
dance with the provisions of this section. Whenever a
zoning board of appeals . . . sustains or reverses
wholly or partly any order, requirement or decision
appealed from, it shall state upon its records the reason
for its decision . . . .’’
   In upholding the decision made by the zoning enforce-
ment officer, the defendant formally stated the reasons
for its decision on the record. The reason provided was
that the label ‘‘recreation area’’ on the subdivision map
precluded the plaintiff from obtaining the building per-
mit. As the trial court aptly noted, however, ‘‘[t]he law
is well established that restrictive covenants in a deed
as to use of property are distinct and separate from the
provisions of a zoning law and have no influence or part
in the administration of a zoning law . . . . Anniello
v. Vernon Planning & Zoning Commission, Superior
Court, judicial district of Tolland, Docket No. CV-93-
52916-S [1995 WL 493781, *3] (August 14, 1995).’’ (Inter-
nal quotation marks omitted.); see also Am. Jur. 840,
Zoning and Planning, § 1006 (1992). On appeal, the
defendant contends that the court erred in determining
that the label ‘‘recreation area’’ on the subdivision map
created, if anything, a private right or restriction unen-
forceable by the zoning enforcement officer or the
defendant. Instead, the defendant asserts that, because
such label was required by the regulations in effect in
1970, the parcel is currently designated as a recreation
area, and the zoning enforcement officer therefore has
the power to deny a permit to build on the parcel.
   The defendant’s proposition fails in at least two
regards. First, the regulations did not require an open
space parcel, rather, the regulations merely required
the developer to allocate a parcel as open space on
the subdivision plan submitted for the application. The
commission could then decide whether the open space
parcel should be required. See East Lyme Subdivision
Regs. (Rev. to June 5, 1967), § 3.5. In this case, the
commission was silent on the matter, so it cannot be
assumed that the commission eventually required the
parcel to remain open space. Further, the developers
twice offered to deed the parcel to the town but the
town denied both offers. Had the town truly wished
to ensure that the parcel would remain ‘‘open space’’
indefinitely under the regulations, it could have
accepted title to the property. Second, the defendant’s
argument fails because, even if the regulations actually
required the commission to designate the parcel as open
space before approving the subdivision application, the
designation of ‘‘recreation area’’ did not fall within the
explicit confines of the regulations. Instead, the regula-
tions allowed the commission the discretion to mandate
that a developer provide land to the town for ‘‘open
space for parks and playgrounds as it may deem proper
. . . .’’ (Emphasis added.) East Lyme Subdivision Regs.
(Rev. to June 5, 1967), § 3.5. The regulations made no
mention of the commission’s power to require the devel-
oper to set aside land for a ‘‘recreation area.’’ Thus,
because the commission lacked the authority to require
the developer to designate a ‘‘recreation area,’’ it follows
that the zoning enforcement officer and the defendant
could not deny the plaintiff a building permit for the
parcel on the basis of its original ‘‘recreation area’’
designation on the subdivision plan.
   The defendant’s second claim on appeal, namely, that
the court erred in determining that the town was
required to accept title to the property in order to effec-
tuate the recreation area designation, also fails. The
defendant’s argument is based on a misguided reading
of the court’s decision. Although the court stated that
the parcel was not deeded and perpetually dedicated
to the town for recreation, the court was responding
to the defendant’s argument that § 1.61 of the November
22, 2013 revision of the East Lyme Zoning Regulations
applied to the parcel.3 Nowhere in its memorandum of
decision did the court state that the town was required
to accept title to the parcel to effectuate the recreation
area designation. On the contrary, the court’s review
of the defendant’s decision was not based on what
action the town could have taken to effectuate the recre-
ation area designation, but rather on the illegality of
the action taken by the zoning enforcement officer and
the defendant in denying the plaintiff a building permit.
Accordingly, the court did not err, and the defendant’s
second claim fails.
  We conclude that the court properly sustained the
plaintiff’s appeal and remanded the case to the defen-
dant with direction to reverse the ruling of the zoning
enforcement officer.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     General Statutes § 47-33f (a) provides in pertinent part: ‘‘Any person
claiming an interest of any kind in land may preserve and keep effective
that interest by recording, during the forty-year period immediately following
the effective date of the root of title of the person whose record title would
otherwise be marketable, a notice in writing, duly verified by oath, setting
forth the nature of the claim. . . .’’
   2
     Section 24.3B of the November 22, 2013 revision of the East Lyme Zoning
Regulations provides in pertinent part: ‘‘The [z]oning [e]nforcement [o]fficer,
acting on behalf of the [c]ommission, shall review applications to determine
conformity with the [z]oning [r]egulations. . . . The [z]oning [e]nforcement
[o]fficer will review the site plan to ensure compliance with the [z]oning
[r]egulations and shall issue a permit within 30 days of receipt if all other
applicable requirements of these regulations have been met. . . .’’
   3
     In its October 31, 2014 trial court brief, the defendant had argued that
§ 1.61 of the November 22, 2013 revision of the East Lyme Zoning Regulations
applied to the parcel and restricted its use, which provides in relevant part:
‘‘Land area within a subdivision deeded as a parcel or parcels separate from
Building Lots and Streets and Perpetually dedicated for Conservation and/
or Recreational purposes. The ownership and purpose of subdivision open
space is specified by the Planning Commission in approving a Subdivision,
and only recreational facilities, underground utility facility, or other improve-
ments consistent with the approved purpose shall be permitted within subdi-
vision open space.’’
