MECTIPNT RETURN DATE: DECEMBER 8, 2020 SUPERIOR COURT ANDREW MARK J.D. OF ANSONIA-MILFORD vs. AT MILFORD CITY OF ANSONIA ZONING BOARD OF APPEALS NOVEMBER 6, 2020 APPEAL TO THE SUPERIOR COURT FOR THE JUDICIAL DISTRICT OF ANSONIA- MILFORD AT MILFORD TO BE HELD AT 14 WEST RIVER STREET, MILFORD ON DECEMBER 8, 2020 comes ANDREW MARK of 11 S. Westwood Road, Ansonia, Connecticut 06401 owner of 11 S. Westwood Road, Ansonia, Connecticut 06401 appealing from the decision of the defendant CITY OF ANSONIA ZONING BOARD OF APPEALS dismissing his appeal of the Zoning Enforcement Officer’s ongoing decision to allow illegal rock crushing operations, etc. at 16 Riverside Drive, Ansonia for lack of jurisdiction, the plaintiff complains and says: 1. The plaintiff, ANDREW MARK, is the owner of real property known as 11 S. Westwood Road, Ansonia, Connecticut 06401 which property is adjacent to 16 Riverside Drive, Ansonia, on which property occur the activities subject of this appeal. 2. Defendant CITY OF ANSONIA ZONING BOARD OF APPEALS (‘Defendant Board’) is the agency authorized to hear and decide appeals of decisions made by the Zoning Enforcement Officer David Blackwell (the "ZEO") pursuant to Connecticut General Statutes §8-6. wal AN INDIFFEREN’ isON3. Rock crushing operations were expressly prohibited on the property known as 16 Riverside Drive, Ansonia, Connecticut (the "Property') by the Ansonia Planning and Zoning Commission on June 4, 1998. 4. Rock crushing operations are a prohibited use, not only on the Property, but also in Ansonia generally per the Zoning Regulations: 110.1 General: The words used in this Ordinance shall have the meaning commonly attributed to them. Doubts as to their precise meaning shall be determining by the Zoning Commission in accordance with the purpose and intent of these Regulations. Certain words used in these Regulations, however, are defined and explained in paragraphs which follow: 310.2 Prohibited Uses: Land, buildings and other structures shall be used for one or more of the uses specified as permitted in Schedule B, and no other. Any use not specified in Schedule B as permitted is prohibited. To further assist in the interpretation of Schedule B, the following uses, the listing of which is not intended to be exhaustive, are specifically prohibited: 310.2.1 Building materials processing which requires heating and/or prolonged mixing of natural material, e.g. concrete, asphalt. ‘Schedule B does not specify rock crushing as a permitted use. 5. The City of Ansonia prohibition against rock crushing operations on the Property was upheld by the Ansonia Zoning Board of Appeals in August 2, 2002 6. Ansonia’s prohibition against rock crushing operations on the Property was upheld by the Superior Court on July 13, 2004: COMPLETE CONSTRUCTION, INC. v.ZONING BOARD OF APPEALS OF THE CITY OF ANSONIA., Docket No. v020079277S 7. Illegal rock crushing and related illegal operations have been ongoing at the Property for a period of time and continue to proceed 8. City of Ansonia Zoning Regulations Section 225.1 states: There shall be a Zoning Enforcement Office who shall be appointed by the Mayor in accordance with the City of Ansonia Charter and Code... Zoning Enforcement Officer shall have the responsibilty and authority to enforce the provision of this Ordinance, which responsibility and authority shall be carried out in accordance with administrative rules, policies and procedures established by the Commission under § 235.6 of this Ordinance... (Emphasis added) 9. The plaintiff through counsel notified the ZEO of the illegal rock crushing operations at the Property in writing and requested that the ZEO take action to enforce the Ansonia Zoning Regulations as is his charge. 10. The ZEO failed to take action enforcing the Regulations in violation of the Ansonia Zoning Regulations. 14. On or about September 8, 2020, the plaintiff filed an appeal of the ZEO’s decision to allow: (1) illegal rock crushing; (2) construction material recycling activities; (3) operation of equipment for crushing and sorting of said material and devices for the handling, display and sale of the processed material; and(4) extraction, processing, handling storage and sale of earth material excavated operations and uses on the Subject Property. Further, ZEO’s decision not to enforce: (a) the zoning regulations prohibiting said uses; and (b) previous decisions and existing approvals and permits for the Subject Property which do not allow or specifically prohibit said uses, including but not limited to ZEO's decision not to enforce the previous decision by former ZEO Peter Crabtree dated January 17, 2002 prohibiting these uses on the Subject Property, which decision was upheld by the ZBA on appeal. 12. On or about October 19, 2020, during the Defendant Board's hearing on the appeal, and prior to plaintiff being allowed to present his appeal, Corporation Counsel interrupted the Defendant Board's proceedings and directed the Defendant Board that it must dismiss the appeal for lack of jurisdiction 13. At said hearing, the plaintiff was not allowed to present his argument prior to the Defendant Board dismissing his appeal citing Corporation Counsel's decision it lacked jurisdiction to hear the appeal. 14. Notice of the Defendant's Board decision was posted and published on October 23, 2020 15. Atall times relevant hereto the plaintif: (1) is and was the owner of 11 S. Westwood Road, Ansonia, Connecticut which is adjacent to the Property; (2) has a specific personal and legal interest in the Defendant Board's decision; and (3) is both classically and statutorily aggrieved by the Defendant Board's in that as the adjacentproperty owner he has been specifically and injuriously affected by the Defendant Board's decision 16. Defendant Board's decision is unreasonable, improper, illegal, arbitrary and constitutes an abuse of the discretion, responsibilities and duties vested in it by law as an administrative agency for the following reasons: (a) The substantial evidence of the administrative record before the Defendant Board ("Record’) fails to substantiate that the appeal should be dismissed without an opportunity to be heard; (b) The Record fails to substantiate the Defendant Board's decision; (©) The Record fails to substantiate that the ZEO is not required to enforce the Zoning Regulations; (d) The Record fails to substantiate that the appeal of the ZEO’s decision not to enforce the Zoning Regulations was not properly before the Defendant Board; (e) The Defendant Board exceeded its statutory powers in dismissing the appeal (f) It failed to state or publish a reason for its decision: (g) It improperly allowed Corporation Counsel to adjudicate the appeal and substitute his decision for the its decision; (h) It improperly interpreted its Regulations and the law;(i) It decided the appeal based on factors not contained in the law, the Record or its Regulations; (j) It illegally relied on evidence outside of the Record in making its decision; and (k) The Record fails to support the Defendant Board's decision.WHEREFORE, the plaintiff prays that 1. The Court sustain his appeal; 2. The Court remand this matter to the Defendant Board with instruction that it allow the appeal to be heard and decided on the merits; 3. Award such other relief at law or in equity, as the Court deems appropriate, to effectuate the proper implementation and application of the Connecticut General Statutes, and the Ansonia Zoning Regulations; and 4. Award costs as provided by C.G.S. §8-8(|) Dated at Milford this 6" day of November, 2020. THE PLAINTIFF Curseaden & Moore, LLC Please enter the appearance of Kevin J. Curseaden Curseaden & Moore, LLC 3 Lafayette Street Milford, CT 06460 Kicurseaden@cmetlaw.com 203.874.9500 Juris #432127