Opinion
No. CV 07-4031015
May 13, 2008
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiff, James K. Brice, appeals from the decision of the defendant, the zoning board of appeals of the town of East Hartford (ZBA), upholding an order issued by the zoning enforcement officer, which had ordered the plaintiff and Lynn Brice to remove a fabric canopy described as a "membrane structure" from his property.
Although the order was addressed to both the plaintiff and Lynn Brice, Lynn Brice did not participate in the appeal to the ZBA or the appeal to this court.
II BACKGROUND
On March 8, 2007, the East Hartford zoning enforcement officer (ZEO) issued to the plaintiff a cease and desist order, which stated in relevant part that "you have erected a membrane structure (i.e., cover-it or similar fabric building) upon your premises without a permit or zoning compliance. This is a violation of both the building code and our local zoning ordinances." The order further stated that the plaintiff was in violation of § 214.2(h) of the East Hartford zoning regulations, and included an order to the plaintiff to "cease and desist this unlawful activity" and "remove the membrane structure from your yard by May 1, 2007."
The plaintiff appealed the ZEO's order to the ZBA. A duly noticed public hearing on the plaintiff's appeal was held on May 31, 2007. Following the public hearing, the ZBA voted on a motion to deny the appeal, which failed to pass with two votes in favor and three votes opposed. After some apparent confusion concerning the effect of that vote, the ZBA voted on a motion to approve the application, which also failed to pass with three votes in favor and two votes opposed. Although the majority of the ZBA members voted to approve the application, four votes in favor of the motion were required to reverse or modify the ZEO's order; East Hartford Zoning Regs., Art. VIII, § 808.1; and only three votes were cast in favor of the motion. As a consequence, the application was denied by default, and no formal collective statement of reasons for the decision was stated in the record. The plaintiff appealed the ZBA's decision to the Superior Court, and the appeal was tried to this court on March 26, 2008.
II JURISDICTION
In his appeal, the plaintiff alleges that he is appealing the decision of the ZBA in which the ZBA denied his appeal from the ZEO's order. He also alleges that he resides at the subject property and that the ZEO's order was directed at his use of a freestanding canopy at his property. At trial on March 26, 2008, the plaintiff established that he is the owner of the subject property and that his appeal of the ZEO's order to the ZBA had been denied. Based on the plaintiff's status as the owner of the subject property and the person to whom the order was directed, the plaintiff has demonstrated a specific, personal and legal interest in the subject matter of the ZBA's decision. Also, the fact that the ZBA had ruled against him establishes that this specific personal and legal interest has been specially and injuriously affected. Accordingly, the court finds that the plaintiff is aggrieved.
IV SCOPE OF REVIEW
"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning board of appeals] must be upheld by the trial court if they are reasonably supported by the record . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board." (Citation omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004). "The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal." R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).
"[F]ollowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board." Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82, 626 A.2d 744 (1993). "[T]he proper focus of a reviewing court is on the decision of the zoning agency and, with regard to its factual determinations, on the evidence before it that supports, rather than contradicts, its decision." "The conclusion that this scope of review applies upon judicial review is not undermined by the fact that . . . the zoning agency was a zoning board of appeals reviewing the decision of a zoning enforcement officer in an appeal from that decision pursuant to [the General Statutes] . . . [I]t is clear from both the entire statutory scheme and our zoning case law that the zoning board hears and decides such an appeal de novo, and that the action of the zoning enforcement officer that is the subject of the appeal is entitled to no special deference by the court." (Internal quotation marks omitted.) Id., 87-89.
A review of the record reveals that the ZBA did not formally state its reasons for upholding the ZEO's cease and desist order. "Where a zoning board of appeals does not formally state the reasons for its decision . . . the trial court must search the record for a basis for the board's decision." (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, supra, 270 Conn. 454. A municipal zoning agency's "failure to state on the record the reasons for its actions . . . renders appellate review more cumbersome, in that the trial court must search the entire record to find a basis for the [agency's] decision . . . [I]f any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the [agency] must be upheld." (Emphasis in original.) Graff v. Zoning Board of Appeals, 277 Conn. 645, 670, 894 A.2d 285 (2006). Thus, the appropriate analysis is whether the record establishes that the ZBA reasonably could have concluded that the structure on the plaintiff's property is not a legal nonconforming structure. See Id., 671.
V DISCUSSION
The plaintiff appeals on the grounds that the ZBA acted arbitrarily, illegally and in abuse of the discretion vested in it. The plaintiff does not allege any facts in support of that statement, but, in support of his allegation that he is aggrieved, he alleges that "the freestanding canopy has been in continuous use for approximately eight years whereas the zoning ordinance did not come into affect until four years after the fact . . ."
In his memorandum, the plaintiff contends that the ZBA's decision was arbitrary, illegal and an abuse of its discretion because the plaintiff's use was a preexisting, lawful, nonconforming use that is allowed to continue under East Hartford Zoning Ordinance § 205.1 and General Statutes § 8-2. He argues that the use was lawful at the time it was erected because it complied with all town and state regulations. He further maintains that no permit was required for the construction of the canopy in 1999. The plaintiff also contends that the canopy was placed on the property in 1999, prior to the adoption of the regulation prohibiting such structures, thereby satisfying the second requirement for nonconforming uses, specifically, the requirement that the use be in existence at the time the regulation at issue is adopted. Further, he argues that the canopy has been continuously used for the purpose of storing an antique vehicle since 1999, and that his neighbors have never complained about it. Finally, the plaintiff argues that the ZBA ignored both East Hartford zoning ordinance § 205.1 and General Statutes § 8-2 in making its decision because the plaintiff "easily proved that the use of the canvas canopy was lawful and that it preexisted the zoning regulation making the use nonconforming." (Plaintiff's memorandum, p. 6.)
Section 205.1 provides in relevant part: "Any nonconforming use of land or buildings lawfully existing at the effective date of these regulations or of any pertinent amendment thereto may be continued, and any building so existing that was designed, arranged, intended for, or is devoted to a nonconforming use may be structurally altered and the nonconforming use therein continued, all subject to the following requirements . . ." (Emphasis in original.) (Plaintiff's memorandum, Exh. 16.)
General Statutes § 8-2(a) provides in relevant part that "[s]uch regulations [authorized by each city, town or borough] shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations. Such regulations shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of the property owner to maintain that use."
The ZBA counters that the canopy was not lawfully existing at the time that § 214.2(h) was adopted. It argues that the plaintiff failed to apply for and obtain a building permit prior to erecting the structure. It notes that the record contains a statement by Bonnie Nichols, the town's zoning enforcement officer, as part of her administrative review of the matter, observing that no building permits were obtained for the structure. The ZBA contends that the state building code requires a person who intends to construct a structure to first apply to the building official and obtain the required permit; see State Building Code § 105.1; and that this requirement applies to the plaintiff and his construction of the structure at issue. Based on this argument, it maintains that the plaintiff's structure was not lawful at the time that it was erected in 1999, and therefore does not qualify for the protections afforded to nonconformities under General Statutes § 8-2.
"A nonconformity has been defined as a use or structure [that is] prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations [were] adopted . . . For a use to be considered nonconforming . . . that use must possess two characteristics. First, it must be lawful and second, it must be in existence at the time that the zoning regulations making the use nonconforming was enacted . . .
"Nonconforming uses are protected by the express language of General Statutes § 8-2 . . . To be sure, [i]t is the indisputable goal of zoning to reduce nonconforming to conforming uses with all the speed justice will tolerate . . . While [t]he accepted policy of zoning . . . is to prevent the extension of nonconforming uses . . . legally existing nonconforming uses are property rights vested in the land . . . [T]he rule concerning the continuance of a nonconforming use protects the right of a user to continue the same use of the property as it existed before the date of the adoption of the zoning regulations." (Citations omitted; emphasis in original; internal quotation marks omitted.) Campion v. Board of Aldermen, 85 Conn.App. 820, 842-43, 859 A.2d 586 (2004), rev'd on other grounds, 278 Conn. 500, 899 A.2d 542 (2006).
The parties do not dispute the fact that the plaintiff's placement of the canopy on his property predates the regulation prohibiting such a structure as an accessory use in a residence zone. Moreover, the record contains undisputed evidence of that fact. Consequently, the outcome of this appeal depends on whether the erection of the structure in 1999 was lawful. This analysis depends on whether a building permit was required for such a structure in 1999, and if not, whether such a structure was otherwise permitted under the zoning regulations in effect in 1999.
First, the court considers the ZBA's argument that a building permit was required for the placement of a freestanding fabric canopy on the plaintiff's property in 1999. In its brief, the ZBA argues that the state building code required the plaintiff to obtain a building permit to erect his canopy in 1999. In support of this assertion, the ZBA merely quotes a general provision from the state building code that requires owners who intend to construct a building or structure to obtain a building permit and states that it "respectfully submits that these requirements applied to the Plaintiff and his construction of the subject structure." Absent any authority in support of this assertion, the court is not persuaded. Accordingly, the court must consider whether substantial evidence in the record would support a finding that the structure was otherwise illegal when it was erected in 1999.
The portion of the state building code quoted by the ZBA in its brief, ?105.1, provides: "Any owner or authorized agent who intends to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical or plumbing system, the installation of which is regulated by this code, or to cause any such work to be done, shall first make application to the building official and obtain the required permit."
In order to determine whether the record would support such a finding, the court next examines the regulations themselves for a basis for the ZBA's assertion that the plaintiff's structure was illegal in 1999. Although the current regulations now prohibit structures such as that at issue in this appeal, as the plaintiff notes, this prohibition did not exist at the time the canopy was placed on the plaintiff's property. The threshold issue for the court is, therefore, whether the regulations permitted such a use in 1999. For the reasons discussed below, the record would support a finding by the ZBA that the subject structure was not a legal accessory use in 1999 because the regulations are permissive in nature and the structure does not otherwise qualify as an accessory use.
Whether anything that is not specifically prohibited is deemed permitted depends on the nature of the individual municipality's zoning regulations:
"Zoning regulations may be permissive or prohibitory in character. Regulations which are prohibitory in character allow all uses except those expressly prohibited. Park Regional Corp. v. Town Plan Zoning Commission, 144 Conn. 677, 682, 136 A.2d 785 (1957). Regulations which are permissive in character affirmatively list uses permissible in various zones. Any use which is not specifically permitted is automatically excluded. Gada v. Zoning Board of Appeals, 151 Conn. 46, 48, 193 A.2d 502 (1963); Bradley v. Zoning Board of Appeals, 165 Conn. 389, 394, 334 A.2d 914 (1973)." Esparo v. Planning Zoning Commission, Superior Court, judicial district of Middlesex, Docket No. CV 05 4003652 (June 20, 2006, Aurigemma, J.)
The East Hartford zoning regulations are generally permissive in character, and, accordingly, any use not specifically allowed is ordinarily deemed prohibited. Section 700, captioned "Interpretation," provides: "Any use not specifically permitted within these regulations according to a zoning district is expressly prohibited." Section 214.1 provides in relevant part: "The following residential accessory uses and structures are permitted and shall be subject to general conditions enumerated in Section 214.2 . . ." Nevertheless, § 214 of article II of the East Hartford zoning regulations also contains a provision permitting other uses that are not specified, suggesting that other uses that fit the definition of "accessory" would be permitted. Section 214 further provides in relevant part: "The uses and structures may include but are not limited to . . ." Consequently, although that section lists several expressly permitted uses and structures, it also suggests that other, nonspecified uses or structures may also be permitted.
The Supreme Court addressed a similar issue in Graff v. Zoning Board of Appeals, supra, 277 Conn. 645. In that case, the Supreme Court noted that the regulations at issue in that case, those of the town of Killingworth, "are permissive in nature, meaning that those matters not specifically permitted are prohibited . . . Specifically, § 40A of the regulations provides: `Except as expressly and specifically permitted by these regulations, no land or improvements thereon within the Town shall be used for any purpose.' As compared to prohibitive zoning ordinances, where all uses are allowed except those expressly prohibited, permissive zoning regulations are the preference of the majority of the municipalities in Connecticut. See R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 4.10, p. 63." (Citation omitted.) Id., 653-54.
The regulatory language at issue in Graff as in the present case, involves accessory uses of property in a residential zone. In Graff, the court sought to determine whether the Killingworth zoning regulations, which did not expressly permit dogs in a rural residential zone, nevertheless regulated dogs as a principal or accessory use. Graff v. Zoning Board of Appeals, supra, 277 Conn. 652. After determining that the regulations were permissive in nature and contained a provision permitting the "keeping of animals other than household pets . . . subject to the following conditions and limitations," the court determined that "animals `other than household pets' are permitted principal uses of property in the town." Id., 655-56.
Despite the permissive character of the zoning regulations and the lack of express permission relating to dogs in a residential zone, the court then considered whether dogs, nevertheless, would be allowed as an accessory use. The court noted that "§ 61A.3 permits `accessory uses' of property in the town's rural residential district. Section 20A of the town regulations define an accessory use as `any use, which is attendant, subordinate and customarily incidental to the principal use on the same lot.'" Id., 656. Although the court noted, in light of the town's permissive zoning scheme, that "all uses not specifically permitted are deemed prohibited" and "in order for the plaintiff to be entitled to have pet dogs on her property at all, there must be some language in the regulations permitting that activity;" id.; the court interpreted the "accessory use" provision in the regulations as "a mechanism for the town to permit individuals to keep dogs as pets under the town regulations, as well as to regulate what is an acceptable number of pet dogs that can be maintained at a single-family dwelling." Id., 657. It reasoned that "[t]o conclude otherwise would suggest that the plaintiff does not have any basis under the regulations for having any pet dogs at all." Id. Further, the court reasoned that "our case law, and that of other jurisdictions, as well as the leading treatises on land use and zoning, support this conclusion. These sources confirm that household pets traditionally have been treated as uses of land subject to zoning regulation as an accessory use." Id., 657-58. Accordingly, accessory uses or structures not expressly allowed under permissive zoning regulations may nevertheless be permitted if such use fits the definition in the regulations of an accessory use, or, as in the present case, an accessory structure.
In the present case, such an interpretation is further supported by the express language in the section of the regulations governing accessory uses and structures, § 214. As noted above, that section provides that "[t]he uses and structures may include but are not limited to" those enumerated in that section. (Emphasis added.) East Hartford Zoning Regs., article II, § 214.1. Accordingly, other structures may be permitted if they fit the definition of "accessory structure," which is defined in the regulations as "[a]ny structure that is subordinate to and whose use is incidental and customary to the use of the principal structure on the same lot . . ." East Hartford Zoning Regs., article II, § 200. As in Graff, the determination of whether the use at issue in this case is permitted as an accessory depends on whether such a structure "is subordinate to" and "incidental and customary to the use of the principal structure on the same lot."
"[T]he word `incidental' as employed in a definition of `accessory use' incorporates two concepts. It means that the use must not be the primary use of the property but rather one which is subordinate and minor in significance . . . But `incidental,' when used to define an accessory use, must also incorporate the concept of reasonable relationship with the primary use. It is not enough that the use be subordinate; it must also be attendant or concomitant . . .
"Additionally, with respect to the word `customarily,' [the Supreme Court] concluded that [a]lthough it is used in this and many other ordinances as a modifier of `incidental,' it should be applied as a separate and distinct test . . . Moreover . . . [i]n examining the use in question, it is not enough to determine that it is incidental in the two meanings of that word as discussed [previously]. The use must be further scrutinized to determine whether it has commonly, habitually and by long practice been established as reasonably associated with the primary use . . . As for the actual incidence of similar uses on other properties . . . the use should be more than unique or rare, although it need not necessarily be found on a majority of similarly situated properties to be considered customary." (Citations omitted; emphasis in original; internal quotation marks omitted.) Graff v. Zoning Board of Appeals, supra, 277 Conn. 658-59.
The record would support a finding by the ZBA that the plaintiff's structure did not qualify as an accessory use when it was erected in 1999. An applicant seeking to establish a use as an accessory bears the burden of persuading the commission that such use qualifies as an accessory. See Upjohn Co. v. Planning Zoning Commission, 224 Conn. 82, 89, 616 A.2d 786 (1992) (noting that whether particular use qualifies as an accessory use is a question of fact for the zoning authority, to be determined by it with a liberal discretion, and that the applicant had burden of persuading commission that it was entitled to permits that it sought). At the hearing, the plaintiff presented no evidence as to whether structures such as the one at issue in this appeal has commonly, habitually and by long practice been established as reasonably associated with the primary use or whether such structures were more than unique or rare at the time it was placed on the property. See Graff v. Zoning Board of Appeals, supra, 277 Conn. 659. While the use of such a structure might have been "incidental," insofar as the use of such a structure as a garage bears a reasonable relationship to the primary use of the property as a residence, the record contains no evidence as to whether the particular type of structure at issue was "customary," that is, evidence concerning the actual incidence of similar canopy structures on other, similarly situated properties and the use of such structures as garages. Accordingly, the record would support a finding by the ZBA that the plaintiff's structure was not a legal accessory in 1999 and that it, therefore, does not qualify as a preexisting nonconforming use that is entitled to protection pursuant to General Statutes § 8-2.
Moreover, even if the subject structure were a legal accessory use, the evidence in the record indicates that its position on the lot would violate the applicable regulations. Section 214.2b of the East Hartford zoning regulations provides that "[o]n corner lots . . . permitted accessory structures shall be located only in that fourth of the lot farthest from any street line, but these requirements shall not prohibit any accessory building located fifty (50) feet or more from any street line . . ." (Emphasis in original.) The photographs in the
record indicate that the plaintiff's property is a corner lot and that the structure at issue is not located in the fourth of the lot farthest from any street line or more than fifty feet from any street line. Accordingly, even if the plaintiff's structure were a permitted accessory structure, its location would not be allowed under § 214.2b.
VI CONCLUSION
For the reasons set forth above, the appeal is dismissed.