Opinion
No. CV 02 0086758
April 29, 2003
MEMORANDUM OF DECISION
Background.
This case is an appeal of the decision dated November 20, 2001 of the Town of Barkhamsted Zoning Board of Appeals holding that the construction of a 50' by 80' barn located on the Hart's property at 58 Boettner Road, Barkhamsted, Connecticut does not constitute an illegal expansion of a non-conforming use in violation of Barkhamsted Zoning Regulations § 193-19. Evidence at the hearing before the Zoning Board of Appeals established that the Harts, Margaret and Irving (now deceased) prior to the advent of zoning in Barkhamsted, conducted a lumber business on the property. ROR 19, pp. 27-31, ROR 4. The business was conducted primarily in a barn (sap house) approximately 20' by 24' or 480 square feet although several outbuildings including a pole barn, a shed and storage buildings were used to store lumber. ROR 4, ROR 6, ROR 11. The lumber business was conducted primarily in the evenings or on the weekends as Irving Hart was employed full-time by MDC, ROR 11, ROR 19. The business was primarily a family business although at times there were various part-time employees. ROR 11. Equipment consisted of a jeep, homemade trailer and various saws. ROR 11, ROR 19 pp. 33-35.
In January 2001 a fire destroyed the primary barn. ROR 19, pp. 19-20. On April 4, 2001 Marjory Hart filed a permit application to the Town of Barkhamsted to construct a 50' by 80', 4,000 square foot building to store lumber. ROR 1. The permit was granted. The construction of this building was in an entirely different location of the destroyed barn and constituted an 83% increase in size. ROR 4. On July 3, 2001, the Town of Barkhamsted, Office of Zoning Enforcement issued a letter and Cease and Desist order to Marjorie Hart stating that "the use of said Building Structure for commercial purposes would constitute an expansion of an existing legal non-conforming use" in violation of Section 193-19 of the Town of Barkhamsted zoning regulations. ROR 4, ROR 15. The July 3, 2001 letter signed by Guy Morin, Zoning Enforcement Officer (hereinafter ZEO), further indicated that at the time of the approval of the building permit application the former zoning enforcement officer, Mr. Karl Nilsen, verbally instructed Mr. Hart that the use of this building for commercial purposes would constitute an illegal expansion of a non-conforming use. ROR 4.
Subsequently on July 17, 2001, Mr. Morin met with the Harts' attorney, Mr. Peter Herbst, to resolve the issues in the July 3, 2001 Cease and Desist. ROR 5. As a result of this meeting and an inspection of the property on July 27, 2001, by letter dated August 2, 2001 it was agreed to "consolidate" the uses of the three existing storage buildings with the barn destroyed by fire to the 50' by 80' storage building newly constructed on the property. ROR 5, ROR 6. The resolution was stated as follows:
Instead of there being four (4) lumber storage structures totaling 5,081 +/- square feet, there will be one (1) structure equaling 4,000 square feet. There will be no commercial milling of trees (into) lumber on the property, other than the occasional re-sizing of in stock lumber using a standard contractor grade table saw or "cut off" saw. The equipment used for these purposes are: 10" cut off saw, 10" radial arm saw, rip saw, and planer noted in photographs taken at the property and on file in the Zoning Office. The motor driven equipment allowed to be used for business purposes are: A log skidder, a bull dozer, a forklift, two (2) 20' flat trailers, a farm tractor and two (2) skate body, dual rear wheel heavy duty pick up trucks. Again, as represented in the photos on file. The use of chainsaws is allowed as several different sizes where observed on the property.
ROR 6.
The ZEO also added further conditions relating to exterior lighting, electrical service, no advertising signs, the number of employees, hours of operation and vegetative screening compatible with existing vegetation. The August 2nd letter lifted the Cease and Desist.
On August 28, 2001, the Plaintiff Kathleen Fox filed an appeal of the August 2, 2001 decision to the ZEO to lift the Cease and Desist. On November 30, 2001, the Zoning Board of Appeals of the Town of Barkhamsted upheld the decision of the Zoning Enforcement Officer. ROR 12. Notice of the decision was published on December 6, 2001. ROR 14. The plaintiff filed her appeal on December 13, 2001. The Appeal was heard on September 16, 2003. The Court requested an extension of time in which to render a decision. All counsel consented by letter to an additional three-month extension.
Jurisdiction.
General Statutes § 8-8 governs appeals taken from the decisions of a zoning commission to the superior court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985). Pursuant to Connecticut General Statute § 8-8, an appeal of a decision of the board to the Superior court may be taken within fifteen days of the publication of the notice of decision. Notice of the decision occurred on December 5, 2001. The appeal was filed on December 17, 2001. The appeal was timely.
Aggrievement.
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). "Aggrievement falls within two broad categories, classical and statutory." (Internal quotation marks omitted.) Cole v. Planning Zoning Commission, 30 Conn. App. 511, 514, 620 A.2d 1324 (1993), aff'd on remand, 40 Conn. App. 501, 671 A.2d 844 (1996). "`Aggrieved person' . . . includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." General Statutes § 8-8 (a)(1). The Plaintiff Kathleen Fox owns property which abuts the Hart property. The Fox property is within a radius of one hundred feet of any portion of land involved in the decision of the board. ROR 23. The Plaintiff Kathleen Fox is an aggrieved party by statutory definition.
Scope of Review.
"General Statutes § 8-6 entrusts [a zoning] commission with the function of interpreting and applying its zoning regulations." (Internal quotation marks omitted.) Dimopoulos v. Planning Zoning Commission, 31 Conn. App. 380, 383, 625 A.2d 236, cert. denied, 226 Conn. 917, 628 A.2d 987 (1993). An appeal from an action of a zoning enforcement officer is taken to the zoning board of appeals, which hears and decides the matter de novo. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 88-89, 626 A.2d 744 (1993). "[T]he trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons." Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991). "The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision." Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994). The court may grant relief on appeal only where the local authority has acted illegally, arbitrarily, or in abuse of its discretion. Smith v. Zoning Board of Appeals, 227 Conn. 71, 80, 629 A.2d 1089 (1993). "In light of the existence of a statutory right of appeal from the decisions of local zoning authorities, however, a court cannot take the view in every case that the decisions of local zoning authorities must not be disturbed, for if it did the right of appeal would be empty . . ." (Internal quotation marks omitted.) Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn. App. 53, 56-57, 549 A.2d 1076 (1988).
Discussion.
Nonconforming uses are protected by statute. General Statutes § 8-2 (a) provides, in relevant part, that zoning regulations "shall not prohibit the continuance of a nonconforming use, building or structure, existing at the time of the adoption of such regulations." "It is a general principle in zoning, [however,] that nonconforming uses should be abolished or reduced to conformity as quickly as the fair interest of the parties will permit. In no case should they be allowed to increase . . . [T]he accepted policy of zoning . . . is to prevent the extension of nonconforming uses . . . The alteration or substantial remodeling of a building existing as a nonconforming use is logically inconsistent with the principle that [a]n essential purpose of zoning regulations is the stabilization of property uses . . . fundamental structural improvements will serve only to perpetuate the nonconforming uses." (Citations omitted; internal quotation marks omitted.) Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 383-84, 311 A.2d 77 (1972). "It is the intent of building zone regulations generally that nonconforming uses should not be allowed to increase, and an extension of that nonconforming use is inconsistent with the policy and comprehensive plan of the regulations." Raffaele v. Planning Zoning Board of Appeals, 157 Conn. 454, 462, 254 A.2d 868 (1969). "While a mere increase in the amount of business done pursuant to a nonconforming use is not an illegal expansion of the original use, a change in the character of a use . . . does constitute an unlawful extension." Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 243, 662 A.2d 1179 (1995). "In this regard, we note that the holding of the Appellate Court in Hall v. Brazzale, supra, 31 Conn. App. 349 . . . That `[m]ore of the same . . . cannot be the basis for a finding of an unlawful expansion of a prior existing nonconforming use' . . . can only be read to apply where it is more of the same use, not more of the same in the physical sense." Id., 244 n. 14. "Where a nonconforming use of property exists, it must be contained within the limits of the use in existence when the regulations were adopted, so that it is illegal to alter a building containing the nonconforming use where the structural changes amount to enlargement of the area used for that purpose." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 52.3, p. 558. See also State v. Perry, 149 Conn. 232, 234-35 178 A.2d 279 (1962) (holding that adding to an existing building or erecting a new building for a nonconforming use constitutes an extension of that nonconforming use).
Section 193.69 of the Barkhamsted zoning regulations provides in relevant part:
Any non-conforming use of building and land lawfully existing at the time of the adoption of these regulations or any amendments thereto may be continued, and any building so existing which was designed, arranged, intended for or devoted to a non-conforming use may be structurally altered and the non-conforming use therein changed, subject to the following regulations: (A) No non-conforming use may be changed except to a conforming use or, with the approval of the [ZBA], to another non-conforming use of a less objectionable character . . . (C) No non-conforming use and no building containing a non-conforming use shall be extended or expanded. (D) Structural alterations which do not materially alter the characteristics or exterior appearance of a building containing a non-conforming use may be made, subject to the following condition: The total cost of such alterations does not exceed fifty per cent (50%) of the assessed valuation of such building at the time it became non-conforming . . .
(Emphasis added.)
Section 193.69(c) of the Barkhamsted zoning regulations clearly prohibits the extension or expansion of a building containing a non-conforming use. It also clearly contemplates a building "in existence." Subsection D of the regulations prohibits the alteration of the exterior appearance of a building containing a non-conforming use. Obviously, an 83% increase in size as well as the significant increase in the assessed valuation of the new structure violate this subsection of the regulations.
In this case the Harts applied for and obtained a permit to construct a building which does conform to the regulations. The building however contains a non-conforming use, a commercial lumber business which predated zoning. The Harts in a creative and novel fashion argue that said building does not constitute an extension or expansion of a building containing a non-conforming use. Their argument is predicated on a theory unsupported by either law or practice that they should be allowed to consolidate the volume of the four buildings, three existing and one destroyed by fire. By their calculations, unsupported by any legal record of the Town, the consolidation of all space, floor to rafter would equal 5,081 square feet. ROR 6. They then further argue then that the 4,000 square foot building is in reality a reduction in the overall building size formerly in use to house all the lumber. To achieve this result, the Harts agreed to remove the three existing properties. ROR 6. This theory of consolidation finds no support in the law of zoning. The Harts also argue that the non-conforming use should be allowed to "migrate" to a different location on the property. The Court could find no case law which supports or adopts a theory of migration of non-conforming uses.
The defendant Town argues in its Memorandum of Law that the new barn as to its size and location "complied with all the aspects of the zoning regulations." Citing the ROR 19, p. 9. Memorandum of Law p. 13. This is correct. The building and location do comply with the regulations. However, the Town ignores the fact that it is the use of the building, the expansion of the building housing the non-conforming use and the change in location of that non-conforming use which are the legal issues before this Court
Conclusion.
The Court concludes that there is no statutory authority, no regulatory authority promulgated by the Barkhamsted zoning-regulations or case law which authorizes the consolidation or migration theories advanced by the Harts or the Town of Barkhamsted. The Court finds that the construction of a 4,000 square foot building to replace a 480 square foot building housing a preexisting nonconforming use on the property at an entirely different location is in violation of the Town of Barkhamsted zoning regulations. An interpretation to the contrary contravenes the elementary principle of zoning which mandates the elimination of and disallowance of the extension of nonconforming uses. Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 383-84 (1972). The Court deems it unnecessary to rule on the appropriateness of the conditions imposed on the vacating of the Cease and Desist or the "modernization of equipment" and/or intensification of use as the issue of expansion of a building housing a nonconforming use is dispositive of this appeal. The appeal is sustained. The decision of the Zoning Board of Appeals to uphold the order of the ZEO is legally incorrect.
Black, J.