Opinion
FSTCV176032783S
06-28-2019
Richarch ELLENBOGEN et al. v. The ZONING BOARD OF APPEALS OF the TOWN OF GREENWICH
UNPUBLISHED OPINION
SOMMER, J.
I. INTRODUCTION
This action is an appeal by Plaintiffs of the decision of the Board to uphold the Cease and Desist Order (the "Board’s Decision"). Plaintiffs Richard Ellenbogen and Debra Weissman ("Plaintiffs") own property located at 6 Ledge Road in the Town of Greenwich. The plaintiffs have filed this appeal from the Cease and Desist Order ("Order") which was issued by a Town of Greenwich Zoning Enforcement Officer on March 28, 2017 citing a violation of Town of Greenwich Zoning Regulation § 6-156 by summons and complaint which was returnable August 29, 2017. The court conducted a trial on January 29, 2019. By agreement, the decision date was extended to June 28, 2019. All parties were represented by counsel at the trial. The court has reviewed the record and considered the memoranda submitted by the plaintiffs and the intervening defendants.
Neal Weinberg and Nurit Weinberg ("Weinbergs"), permissive intervenors, seek to have this Court deny the plaintiffs’ appeal and affirm the decision of defendant The Zoning Board of Appeals of the Town of Greenwich ("Board") wherein it affirmed the Cease and Desist Order. The Weinbergs are owners of property located at 10 Ledge Road, Old Greenwich, Connecticut ("10 Ledge Road") which is adjacent to 6 Ledge Road.
II. SUMMARY OF FACTS
Based on a review of the record in this case, the court makes the following factual findings:
On March 28, 2017, a Town of Greenwich Zoning Enforcement Office ("ZEO") issued the Cease and Desist Order to the plaintiffs which stated, in relevant part, "An investigation of the subject premises by this office disclosed that the following conditions presently exist: Illegal parking of a commercial vehicle. These conditions violated Section(s) 6-156 of the Town of Greenwich Zoning Regulations." The vehicle referenced in the Cease and Desist Order is a non-passenger, decommissioned ambulance with commercial license plates that belongs to plaintiffs’ son, Ari Ellenbogen (the "Vehicle").
On April 26, 2017, the plaintiffs appealed the Cease and Desist Order to the Board (the "Appeal"). Pursuant to certain notices published in the Greenwich Time, the Board heard the Appeal on June 28, 2018. The plaintiff Richard Ellenbogen argued plaintiffs’ position and submitted a letter from a neighbor Anne Stolley. The Board considered statements by plaintiffs and their next door neighbors Patricia and Gerald Schachner. In support of the Town of Greenwich and the Weinbergs’ argument to uphold the Cease and Desist Order, the Board heard from Jeffrey Berino, a Zoning Inspector for the Town of Greenwich, legal counsel for various homeowners within the Ledge Road neighborhood, including the Weinbergs and plaintiffs’ neighbor Monique "Vicki" McCarthy. Counsel for the Weinbergs read a statement from the Weinbergs who were not in attendance at the hearing.
At the conclusion of the presentations by both sides, Zoning Inspector Berino stated that the appeal by the plaintiffs "alleges error in the Zoning Enforcement Officer’s decision to issue a Cease and Desist order for a commercial vehicle located in the R-12 zone." Plaintiff Richard Ellenbogen read a statement on behalf of himself and his wife, plaintiff Debra Weissmann, to the Board. Mr. Ellenbogen’s statements outlined his understanding of the source of the complaint, as well as his version of conversations which he alleged that his son, Ari, had some years earlier with Will Schwartz and Bob Seale, then members of the Zoning Enforcement Department and email correspondence from them. He did not produce these individuals as witnesses nor did he submit the alleged email communications from Messrs. Schwartz and Seale into evidence at the hearing. Richard Ellenbogen also described his son’s character, education, career aspirations and work history. He stated that his son’s business, EG Tech Solutions, LLC ("EG Tech"), was an aspirational goal which he was no longer pursuing now that he had a job at a local yacht club. According to Mr. Ellenbogen, EG Tech’s website is his son’s "work of art," but it is no longer in use. Finally, Richard Ellenbogen argued his interpretation of the Greenwich Municipal Code § 6-156 and its intersection with Conn. Gen. Stat. § 14-1 and responded to questions from the Board and comments from those opposing the appeal.
It is noteworthy that despite the fact that the Vehicle belongs to Ari Ellenbogen and concerns a business of which he is the owner and operator, Ari Ellenbogen did not appear at the hearing or offer any statement, written or otherwise, in connection with EG Tech and/or the Vehicle. Instead, Richard Ellenbogen testified on behalf of the plaintiffs’ adult son. Plaintiffs did not present any witnesses, either Ari Ellenbogen or the Zoning Enforcement Department employees to whom he allegedly spoke at some time in the past about the Vehicle. As a result, many of the plaintiff’s statements consisted of unverified hearsay or irrelevant claims about their understanding of conversations which they allege their son had with former members of the Zoning Enforcement Department and their statements regarding Ari’s use of the Vehicle and his venture, EG Tech, including its website. Plaintiffs variously described the Vehicle as a camper or a recreational vehicle without any credible supporting evidence.
Richard Ellenbogen read and submitted a statement from neighbor Anne Stolley into the record. Ms. Stolley requested that "this matter [be dismissed] for lack of proof," although she offered countervailing facts in support of her request. In addition, the plaintiffs’ neighbor Patricia Schachner spoke in their support stating that she came to the meeting to "be supportive of a lovely family and a lovely young man and hope that this can just melt away. I don’t understand it." Mrs. Schachner’s husband, Gerald Schachner gave his opinion based on his observation that Ari was not conducting a commercial enterprise but was simply spending time with friends, stating, in relevant part, "And this woman who commercial activity in his parents’ property, but was merely spending time with friends."
Thereafter, Attorney Stephen Walko, as counsel for other homeowners in the Ledge Road neighborhood, including the Weinbergs, spoke in opposition to the appeal of the Cease and Desist Order. Attorney Walko presented facts in support of upholding the Cease and Desist Order. First, Attorney Walko noted that the Vehicle has commercial license plates contradicting plaintiffs’ claim that the Vehicle is a recreational vehicle or camper used for personal use. It was clear from the evidence as reflected on the website that the vehicle was designed and used by Ari Ellenbogen for the purpose of operating his custom technology repair service. According to Attorney Walko, "Irrespective [of] whether the company still exits, the website for that company in fact directly addresses it." Specifically, EG Tech’s website, which was operational at the time of the hearing before the Board stated in relevant part as follows, "Our unique fleet of retired Walk-In Fire Rescue trucks have been completely overhauled and outfitted into clean room mobile repair centers. We can even provide electrical power and network connectivity to your infrastructure from our Mobile Emergency Operations trucks." Contrary to Richard Ellenbogen’s assertion that EG Tech was not operating, at the time of the hearing before the Board, EG Tech’s website was fully operational, listing hours of operation and methods of contacting the company to render services for which it was advertising. Importantly, and as pointed out at the hearing, EU Tech’s website directly described the commercial purpose of the Vehicle. Noticeably absent from such description was any mention of the Vehicle’s use as a recreational vehicle, including a camper. According to EG Tech’s website, the sole purpose of the Vehicle was to serve as a mobile technology repair center with a so called "clean room" which is required for computer repair. The website does not mention seating in the Vehicle or describe any use as a recreational vehicle.
Attorney Walko then explained the application of the description of Ari’s vehicle to the relevant regulations and laws, including, Greenwich Municipal Code § 6-156(a) and Conn. Gen. Stat. § § 14-1 and 6-95(b). Attorney Walko also submitted a print out from the Connecticut Secretary of State’s C.O. N.C. O.R.D. website regarding EG Tech’s business statistics, which listed its business address as 6 Ledge Road. These documents established that at the time of the hearing EG Tech still had an active business status, despite plaintiff’s statements to the contrary.
Following Attorney Walko’s presentation, Zoning Inspector Berino stated the facts in support of affirming the Cease and Desist Order issued on behalf of the Town of Greenwich Zoning Enforcement Department. In furtherance of this position, Zoning Inspector Berino presented four (4) exhibits which he explained. The exhibits are a photograph of the Vehicle, two (2) screenshots of EG Tech’s website and a print out from the Connecticut Secretary of State’s C.O. N.C. O.R.D. website regarding EG Tech’s business statistics.
Zoning Inspector Berino noted that the C.O. N.C. O.R.D. print-out listed 6 Ledge Road as the business and mailing address of EG Tech and listed EG Tech as being a currently active business and directed the Board’s attention to EG Tech’s website screenshots, which describe the "fleet of retired Walk-In Fire Rescue trucks completely overhauled and outfitted into clean room mobile repair centers." Finally, Zoning Inspector Berino referred the Board to the photograph of the Vehicle stating, "Everything we see leads us to believe that the business [EG Tech] is still there and in full operation." In addressing the statements of plaintiff Ellenbogen relating to the visits and emails from Messrs. Schwartz and Seale from 2013 and 2014, Mr. Berino explained that it was after these visits that the Zoning Enforcement Department saw EG Tech’s website and "put the pieces together."
In addition to the above, Monique "Vicki" McCarthy, a resident living in the Ledge Road neighborhood, spoke in support of affirming the Cease and Desist Order. In relevant part, Ms. McCarthy stated, "[The Vehicle] does seem to be used commercially. I see people kind of mysteriously coming and going and it has something to do with the inner workings in the back of this [Vehicle] ... it seems like there is work that gets done ... I come and go and I do see traffic. It does seem to be centered on this vehicle which, honestly, I wouldn’t have bought in that neighborhood if I knew it was going to have to be the only neighborhood in Greenwich where I look at some weird rescue vehicle." Referring to the plaintiffs, Ms. McCarthy said she didn’t object to her neighbors, but, "That is not the place for this vehicle."
The letter from the Weinbergs which was read into the record stated that the Weinbergs "have been concerned and often disturbed by the existence of the commercial vehicle operating its business at 6 Ledge Road," that the Vehicle "routinely operates at night with disturbing noises and lights and that the business has other commercial trucks routinely visiting the premises." The Weinbergs objected to the associated side effects that this ‘on and off site’ business apparently requires in their residential neighborhood including "deployment of its fire truck ambulance type lights and sirens on Ledge Road an otherwise quiet street." Moreover, the Weinbergs expressed concerns regarding the "ongoing business activities being provided both on and off the premises that deny them quiet enjoyment for example, being awakened at four a.m. with an array of brightness emanating from the vehicle," a fact plaintiffs acknowledge but dismiss as only occasional. Regarding the issue of whether the business owner’s activity is business and how much is hobby, based on the stated and advertised intent, the sometimes" ‘round the clock’ activities when active, whether a combination of hobby or business-related, mostly look and feel like commercial pursuits."
After receiving the above testimony from both sides, and considering argument from counsel, the Board discussed the evidence and voted to deny the plaintiffs’ appeal to overturn the Cease and Desist Order. In reaching this conclusion, the Board did not issue a collective statement on the record. On June 29, 2017, a public notice of the decision from the June 28, 2017 meeting was published stating that the Appeal had been denied. On July 10, 2017, the Acting Secretary of the Board sent Plaintiffs a letter regarding the Appeal stating that it found no error in the ZEO’s decision to issue the Cease and Desist Order for the parking of a commercial vehicle on a residential property at 6 Ledge Road.
Plaintiffs filed this appeal on July 20, 2017 claiming that the Board erred in its decision because (i) the Vehicle is not a commercial vehicle but a passenger vehicle; (ii) Greenwich Municipal Code § 6-156 does not prohibit the parking of a commercial vehicle; (iii) there was not substantial evidence in the record to support the Board’s Decision; and (iv) there was not substantial evidence in the record to support the stated reasons for the denial by the Board. (#100.30.) On January 9, 2018, the Court granted the Weinbergs’ motion to intervene in the appeal. (#111.00.) On June 28, 2018, the Board filed an answer to the complaint. (#115.00.) On July 12, 2018, the Board filed the designated contents of the record and exhibits, which were supplemented on August 2, 2018. (#117.00 and #120.00.) Plaintiffs filed their brief on August 22, 2018 and the Weinbergs filed their brief on September 22, 2018. (#121.00.)
III. APPLICABLE LAW AND ANALYSIS
A. Standard of Review
"Generally, it is the function of a zoning board ... to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply." Antra v. Zoning Bd. of Appeals of Town of Madison, 307 Conn. 728, 737 (2013) (internal citations omitted).
"In applying the law to the facts of a particular case, the board is endowed with a liberal discretion and its decision will not be disturbed unless it is found to be unreasonable, arbitrary or illegal." Sciortino v. Zoning Bd. of Appeals of Iowa of Oxford, 87 Conn.App. 143, 146 (2005). "Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons." Id. at 146-47. "It is well settled that courts are not to substitute their judgment for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing as [to] the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." Jaser v. Zoning Bd. of Appeals of City of Milford, 43 Conn.App. 545, 547 (1996); see also Smith Bros. Woodland Management, LLC v. Zoning Bd. of Appeals of the Town of Brookfield, 108 Conn.App. 621, 628 (2008) (explaining that since the "credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency ... the court must determine the correctness of the conclusions from the record on which they are based"); Gevers v. Planning and Zoning Com’n of Town of North Canaan, 94 Conn.App. 478, 483 (2006) (explaining that "The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission]"). Boards are in the best position possible to make such determinations because "they are closest to the circumstances and conditions which create the problem and shape the solution." Frito-Lay, Inc. v. Planning and Zoning Com’n of Town of Killingly, 206 Conn. 554, 573 (1988) (internal citations and quotations omitted).
The burden of proof in an appeal from a zoning board decision is on the plaintiff. "[P]laintiffs shoulder the burden of demonstrating that the commission acted improperly." Gevers, 94 Conn.App. at 483; see also Anatra, 307 Conn. at 737. The role of the court is to review the record to determine whether there is a basis for the decision of the board. "The trial court ha[s] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts." Anatra, 307 Conn. at 737.
Where, as in this case, the board did not articulate the basis of its decision, the court is charged with the obligation to review the record to determine whether there is a basis for the decision of the Board or whether the Board is acting improperly. The Supreme Court has held that if there is no collective statement provided by a board in reaching its conclusion, then "it [is] the obligation of the trial court ... to search the entire record to find a basis for the [zoning] commission’s decision." Harris v. Zoning Com’n Town of New Milford, 259 Conn. 402, 423 (2002).
"The court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings." Jaser, 43 Conn.App. at 547-48 (internal citations and ellipses omitted). The standard which the court must apply to determine whether evidence is sufficient to sustain a board’s finding is "if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred." Id. at 548 (internal citations and quotations omitted). "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." Smith Bros. Woodland Management, 108 Conn.App. at 628. In other words, "the court must determine the correctness of the conclusions from the record on which they are based." Id. "Courts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their action." Gevers, 94 Conn.App. at 484; Frito-Lay, 206 Conn. at 573 (internal citations omitted). In fact, if "it appears that the commission has reasonably and fairly exercised its honest judgment after a full hearing, the trial court must be cautious about disturbing the decision of the authority." Raybestos-Manhattan, Inc. v. Planning & Zoning Com’n of Town of Trumbull, 186 Conn, 466, 469 (1982). The following is the court’s analysis of the issues presented by this appeal and its conclusions based on its review of the record in this case.
B. Whether The Evidence Presented to the Board Provided a Basis to Justify Its Decision to Affirm the Cease and Desist Order
The facts presented by the Zoning Enforcement Department, from neighboring homeowners within the Ledge Road Association through their attorney, from a nearby homeowner herself and documentary evidence in the form of photographs and information from the EG Tech and a corporate record state website all serve to show that there was substantial evidence presented to the Board to justify its decision to affirm the Cease and Desist Order. As stated above, "The court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings." Jaser, 43 Conn.App. at 547-48 (internal citations and ellipses omitted). Evidence which is sufficient to sustain a board’s finding is "if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred." Id. at 548 (internal citations and quotations omitted). "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." Smith Bros. Woodland Management, 108 Conn.App. at 628.
Zoning Inspector Berino of the Zoning Enforcement Department (ZED) submitted a photograph of the Vehicle at the hearing which showed that it was a former ambulance, screenshots of EG Tech’s website and the C.O. N.C. O.R.D print out for EG Tech. He explained that the department’s investigation combined with these pieces of evidence all supported the department’s conclusion that the Vehicle was being used for commercial purposes and that the Cease and Desist Order was proper. Zoning Inspector Berino also noted that EG Tech’s website referred to the Vehicle as being part of a "fleet of retired Walk-In Fire Rescue trucks completely overhauled and outfitted into clean room mobile repair centers." Finally, He referred to the C.O. N.C. O.R.D. print out for EG Tech listing 6 Ledge Road as the business and mailing address of EG Tech and listing EG Tech as being a currently active business at the time of the Appeal.
Plaintiffs mistakenly challenge the decision of the Board to uphold the Order because they claim the Zoning Enforcement Department knew about the existence of the vehicle for some time before it issued the Order. Because this Court is not evaluating the Cease and Desist Order itself, but rather, the decision of the Board to affirm said Order, any facts and testimony presented regarding earlier dates when the Zoning Enforcement Department may have learned of this website are not relevant to the court’s review herein. See Anatra, 307 Conn. at 737. The actual date when the Zoning Enforcement Department discovered EG Tech’s website and its advertised business is therefore not a matter for this court to consider and is relevant to this appeal.
The court finds that based on review of the record the Board considered the following credible evidence upon which it relied in reaching the decision to uphold the Order, screenshots of EG Tech’s website, C.O. N.C. O.R.D. website and testimony from Ms. McCarthy, a resident of Ledge Road about in her day-to-day observations of the vehicle and activity in the driveway of 6 Ledge Road, including people and vehicles coming and going. This evidence supports the finding that the Vehicle is a commercial vehicle which is part of Ari Ellenbogen’s commercial venture providing mobile computer repair services and the Board’s decision to affirm the Cease and Desist Order.
In further support of affirming the Cease and Desist Order, EG Tech’s website describes the purpose of the Vehicle as a "completely overhauled and outfitted into clean room mobile repair center." The C.O. N.C. O.R.D. print out for EG Tech, which listed the active status of the business with a business and mailing address of 6 Ledge Road. The letter from the Weinbergs further described occasions when other commercial trucks visited 6 Ledge Road, including nighttime and when the Vehicle "deploy[ed] its fire truck ambulance type lights and sirens in the past on Ledge Road which is a family filled street." These statements all describe the commercial use and nature of the Vehicle and support the decision of the Board to affirm the Cease and Desist Order.
The "credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." Smith Bros. Woodland Management, 108, see also Gevers, supra, 94 Conn.App. at 483 (explaining that "The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission]").
As noted above, the plaintiff’s statements to the Board were directed at unproven conversations at the time of prior inspections of the Vehicle by former Zoning Enforcement Department members and Ari Ellenbogen’s career aspirations. These statements are not relevant to the Board’s Decision nor do they constitute the evidence necessary for this Court to overturn the Cease and Desist Order. As noted above, Ari Ellenbogen did not appear or offer any statements, whether oral or written, at the hearing before the Board. Zoning Inspector Berino also informed the Board that at the time when the former Zoning Enforcement Department members spoke with Ari Ellenbogen, they were unaware that he had a website advertising the Vehicle and that he had an active business registered with the Connecticut Secretary of State’s Office using 6 Ledge Road as the business, mailing and operational address.
The testimony presented by Zoning Inspector Berino and Ms. McCarthy and statements by Attorney Walko including his reading of the letter from the Weinbergs and the documentary evidence presented were credible and consistent with the documentary evidence presented to the Board. They support the court’s conclusion that in evaluating the testimony, arguments and documentary evidence and reaching its final decision, the Board applied honest judgment which was reasonably and fairly related to the circumstances of this case. The substantial evidence before the Board, including the credibility of Zoning Inspector Berino, Ms. McCarthy and the Weinbergs and the arguments by Attorney Walko, taken together with the documentary evidence, upholding the Cease and Desist Order.
C. Whether The Board’s Decision Was Illegal, Arbitrary or An Abuse of Discretion
A zoning Board’s Decision to uphold Cease and Desist Order may be reversed if it is shown to be illegal, arbitrary or an abuse of discretion.
Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts ... In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its decision will not be disturbed unless it is found to be unreasonable, arbitrary or illegal ... [U]pon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons.Vivian v. Zoning Bd. of Appeal of Town of Clinton, 77 Conn.App. 353-54 (2003) (internal citations and quotations omitted). It is important to note that, "If a board’s time-tested interpretation of a regulation is reasonable, however, that interpretation should be accorded great weight by the courts." Id. at 344.
Chapter 6 of the Greenwich Municipal Code governs land use within the Town of Greenwich. As relevant to this appeal the land use regulations as codified in Section 6-1 enumerate nine purposes including subsection (7) and (9) which state among the purposes of the regulations:
(7) Conserving the value of buildings and encouraging the most appropriate use of land throughout the town; and
(9) Regulating and restricting the location and use of buildings, structures and land for trade, industry, residence and other purposes;
Subsections (7) through (9) of subpart (a) provide for (i) conserving the value of buildings and encouraging the most appropriate use of land; (ii) providing for the public health, comfort and general welfare in living conditions; and (iii) regulating and restricting the location and use of buildings, structures and land for trade, industry, residence and other purposes. These regulations authorize the Town of Greenwich and the Zoning Enforcement Department to generally regulate the use of land in the best interests of the Town and its citizens, including all residents on Ledge Road.
Section 6-19 of the Greenwich Municipal Code establishes the powers and duties of the Greenwich Planning and Zoning Board. Such powers and duties include hearing and deciding appeals where it is alleged that there is an error in any order or decision made by a zoning enforcement officer. Greenwich Municipal Code § 6-19(a)(2). Greenwich Municipal Code § 6-20(c) provides the procedures for the Board, including that all determinations of the Board will be made "in accordance with the public interest and the comprehensive plan set forth in this Article, and in harmony with the purpose and intent expressed in Section 6-1 [cited above]." Greenwich Municipal Code § 6-20(c). Further, the regulations provide that in each case the Board must find that for each proposed use of land it will not "create or aggravate a nuisance or result in the dissemination of ... noise, light" or "be detrimental to the neighborhood or its residents or alter the neighborhood’s essential characteristics." Section 620(c)(4) and (6). These regulations show that the Board has broad discretion in deciding appeals in furtherance of the best interest of the Town of Greenwich and all of its residents.
In addition to the above general provisions, Greenwich Municipal Code § 6-156 Prohibits the Parking of a Non-Passenger Vehicle in a Residential Zone. Section 6-156 cited in the Cease and Desist Order provides, in relevant part, as follows:
(a) On lots in all residence zones the parking of a resident’s non-passenger motor vehicles, except as stated in Sec. 156(b), is prohibited, except that the brief, infrequent outdoor parking of such non-passenger vehicles is permitted, and except that the garaging of any non-passenger motor vehicles used primarily on the premises shall be permitted.
Section 6-156(a). In other words, all non-passenger motor vehicles, including but not limited to vehicles such as campers, camp trailers and decommissioned ambulances, cannot be parked in a residential neighborhood like Ledge Road Association. The Greenwich Municipal Code § 6-5(38.1) defines non-passenger motor vehicle as "includ[ing] all vehicles other than passenger vehicles under the Connecticut General Statutes Title 14, Chapter 246, Motor Vehicles." Connecticut General Statutes Title 14, Chapter 246, Motor Vehicles, specifically Conn. Gen. Stat. § 14-1(67), defines a passenger motor vehicle as "a motor vehicle used for the private transportation of persons and their personal belongings, designed to carry occupants in comfort and safety, with a capacity of carrying not more than ten passengers including the operator thereof."
The court concludes based on the facts of this case that the Vehicle is not a passenger motor vehicle pursuant to Conn. Gen. Stat. § 14-1(67). Rather, the Vehicle falls under the "all vehicles" umbrella of Regulation § 6-5(38.1) and is a non-passenger vehicle and thus cannot be parked at 6 Ledge Road. Although, Ari Ellenbogen may have operated the Vehicle to travel to service clients of EG Tech that use does not qualify as "carrying occupants in comfort and safety" for purposes of Conn. Gen. Stat. § 14-1(67). Ari Ellenbogen’s EG Tech website states that the Vehicle was "completely overhauled and outfitted into [a] clean room mobile repair center." Plaintiffs’ statements demonstrate that the Vehicle was designed for a specific purpose as a work station for Ali Ellenbogen as owner and operator of EG Tech. Moreover, using plaintiffs’ definition of private, it is clear that the purpose of the Vehicle was to affect all of the customers of EG Tech, not pertaining to or affecting a particular person. This is the only rational conclusion which can be reached after viewing EG Tech’s website which specifically states that the Vehicle was utilized for business purposes, specifically to conduct computer repair and perform other computer services for clients of EG Tech. Based on these facts, it is apparent that the Vehicle, as used and operated by EG Tech was not a passenger vehicle. Rather, it is a non-passenger vehicle used in a commercial endeavor. As a vehicle that does not fit within the parameters of the definition of passenger motor vehicle under Greenwich Municipal Code § 6-5(38.1), the ZEO correctly issued the Cease and Desist pursuant to the Greenwich Municipal Code § 6-156 and the Board correctly denied the Appeal.
Having found that the Vehicle constitutes a non-passenger vehicle pursuant to Greenwich Municipal Code § 6-156, the section under which the Cease and Desist Order was issued, further analysis of the term "commercial vehicle" is unnecessary. Because Plaintiffs also challenge the Cease and Desist Order due to the ZEO’s use of the term "commercial vehicle" to describe the Vehicle, the following analysis is provided.
While the term "commercial vehicle" is not defined within the Greenwich Municipal Code, it is defined in relevant part in the Connecticut General Statutes, to wit:
(15) "Commercial motor vehicle" means a vehicle designed or used to transport passengers or property, except ... a recreational vehicle in private use, which (A) has a gross vehicle weight rating of twenty-six thousand and one pounds ...
Conn. Gen. Stat, § 14-1(15). Plaintiffs claim the Vehicle is a camper, which is a type of recreational vehicle. Conn. Gen. Stat. § 14-1(73) provides that a recreational vehicle includes campers, camp trailers and motor home classes of vehicles. Camper is defined as "any motor vehicle designed or permanently altered in such a way as to provide temporary living quarters for travel, camping or recreational purposes." Conn. Gen. Stat. § 14-1(11). Although the plaintiffs asserted that the Vehicle was nothing more than a camper used by Ari Ellenbogen and his acquaintances it does not fit within the statutory definition of a camper. Plaintiffs provided absolutely no evidence to support their claim that the Vehicle is a camper by way of showing that it is equipped with temporary living quarters, sleeping accommodations or has any form of running water or a running water connection. Furthermore, EG Tech’s website’s description of the Vehicle as a "clean room" for providing services to customers is inconsistent with the claim that it is a camper. The plaintiff’s argument is further flawed because according to Conn. Gen. Stat. § 14-1(15) such "recreational vehicle" must be for private use. Using the plaintiffs’ definition of the word "private," nothing about the Vehicle pertained to or affected a particular person but was meant to impact all customers of EG Tech.
The issue of whether the Vehicle is designed or used to transport passengers or property as required in the first part of the "commercial vehicle" definition of Conn. Gen. Stat. § 14-1(15) is decided by EG Tech’s website which states that the Vehicle is used to rush to computer emergencies. Despite the plaintiffs’ attempts to characterize their son’s vehicle otherwise, its stated purpose is to transport the specialized computer repair equipment necessary to service the needs of EG Tech’s customers.
To qualify as a commercial vehicle, the Vehicle must fit within subpart (A), (B) or (C) of Conn. Gen. Stat. 14-1(15). The Vehicle qualifies as commercial under C.G.S. § 14-1(15)(A) because it has a gross vehicle weight rating of twenty-six thousand and one pounds or more. The statutory definition of commercial motor vehicle also includes use of such motor vehicles in business and commerce, such as the Vehicle in this case. For this reason, the court concludes that the Board’s action was consistent with the statutory definition of a commercial vehicle pursuant to Conn. Gen. Stat. § 14-1(15) which cannot be lawfully parked in a residential neighborhood like Ledge Road. The Cease and Desist Order as issued and affirmed was based on application of the municipal regulations regarding parking of commercial vehicles in residential areas. Therefore, the Board’s Decision to uphold the Cease and Desist Order was not illegal, arbitrary or an abuse of discretion.
The next issue for the court’s review of the record is whether parking the Vehicle at 6 Ledge Road is detrimental to the neighborhood, the neighborhood’s essential characteristics and its residents.
The parking of the Vehicle in the Ledge Road Association is contrary to the stated purposes of the Greenwich Zoning Regulations. Part of the stated purposes of Zoning Regulations contained within the Greenwich Municipal Code is to conserve the value of buildings and encourage the most appropriate use of land throughout the town in addition to providing for the general welfare in living conditions for its residents. The parking of the Vehicle on Ledge Road in a residential neighborhood does not conserve the value of the homes within the neighborhood. Homeowners living on and in the vicinity of Ledge Road have a right to expect that passenger commercial vehicles such as the subject repurposed ambulance with commercial license plates will not be consistently parked within their neighborhood. Moreover, these residents also expect that other neighbors will not be operating businesses out of commercial vehicles in their driveway in the manner reflected by EG Tech’s business. The operation of a business within a residential community undoubtedly has a negative impact on the quality of residential life and the value of houses within the neighborhood.
In addition, the Greenwich Municipal Code provides that in each case, the Board must find that any land uses will not "create or aggravate a nuisance or result in the dissemination of ... noise, light" or "be detrimental to the neighborhood or its residents or alter the neighborhood’s essential characteristics." Greenwich Municipal Code § 6-20(c)(4) and (6). In their letter to the Board, the Weinbergs described instances when the lights of the Vehicle were left on overnight causing them and their family to be disturbed and the sirens of the Vehicle were deployed within the neighborhood that is filled with families.
Residential neighborhoods are meant to be quiet areas for residents to live peacefully without the commotion that often accompanies commercial zones, where businesses are operated. The plaintiff’s response that this occurred only occasionally does not change the fact the Board reasonably concluded that a commercially plated vehicle equipped with emergency lights parked in a residential neighborhood has a detrimental effect on the neighborhood, its characteristics and its residents.
Finally, the plaintiffs have challenged the decision of the Board because it did not issue a singular statement delineating its reasons for upholding the Order claiming that there was not substantial evidence in the record to support the stated reasons for the denial by the Board. As noted above, in the absence of such a statement by the Board, the court has conducted a thorough review of the testimony, statements and documentary evidence which constitute the record in determining whether to uphold the Board’s decision.
"In the absence of a statement of purpose by the zoning commission for its actions, it was the obligation of the trial court ... to search the entire record to find a basis for the [zoning] commission’s decision." Harris v. Zoning Com’n of Town of New Milford, 259 Conn. 402, 423 (2002) (Internal citations and quotations omitted). Although there were various reasons stated on the record by individual members of the Board, there was not a collective statement of purpose in the Board rendering its decision. "The reasons given by certain members of the commission did not amount to a formal, collective, official statement of the commission ... It was, therefore, the obligation of the trial court ... to search the record for a basis upon which to uphold the commission’s decision." Protect Hamden/North Haven from Excessive Traffic and Pollution, Inc. v. Planning and Zoning Com’n of the Town of Hamden, 220 Conn. 527, 545 (1991).
Finally, the defendants challenge the purpose of the plaintiffs’ claims at the Appeal that Ari’s business, EG Tech, was no longer operational and that its website only represented former aspirations arguing that the EG Tech website, which advertises the very vehicle at the heart of this action and provides contact information for services to be provided contradicts their claims. Preemptively, Plaintiffs even explained that the website was only operational because it was viewed as their son’s "work of art." Despite the website allegedly being a "work of art," Ari Ellenbogen still listed his contact information and hours of operation, which directly contradicts statements that EG Tech was not operating a business complete with a "clean room mobile repair center."
The defendants further argue that the plaintiffs have merely constructed this claim to protect themselves. They cite Papoosha v. Town of Killingworth ZBA, 2003 WL 22206243 at *1 (Middlesex, Sept. 12, 2003) , an appeal from a decision of defendant Town of Killingworth ZBA, which denied plaintiffs’ appeal from an order issued by a Killingworth Zoning Enforcement Officer. The order required plaintiffs to cease and desist from stockpiling and processing earth products. Id. The court in Papoosha concluded that statements by plaintiffs after the issuance of the cease and desist order which had not been made at the time of the initial hearing on the application and which expanded the scope of the plaintiffs’ activities were "unpersuasive" especially in light of the size of the operations. Id. at *8. This court concludes that the plaintiffs’ statements are similarly, arguments constructed after the issuance of the Order made to avoid their own liability under Regulation § 6-156. The court finds that the plaintiffs’ arguments are not supported by the record.
IV. CONCLUSION
The only relevant facts on appeal are those facts which are a matter of the record before the Board relating to the parking and uses of the Vehicle at 6 Ledge Road. Based on a thorough review of the record before the Board, the court concludes that the facts presented at the hearing establish that there was substantial evidence necessary to support the decision of the Board. The court therefore affirms the Board’s decision. The plaintiffs have failed to establish that the Board acted illegally, arbitrarily or in abuse of its discretion. Rather, the Board evaluated the testimony and argument presented and acted based upon the facts before it. The record reflects that the Board used honest judgment and valid reasons to reach its conclusion and that its decision to uphold the Order was reasonable and fair. The plaintiffs have failed to sustain the burden of establishing that the Board acted illegally, arbitrarily or abused its discretion.
For all of the reasons set forth herein, the court finds that the Board’s decision to affirm the Cease and Desist Order was proper. The court affirms the Board’s Decision and upholds the Cease and Desist Order. The appeal is dismissed.