Opinion
No. CV 09-4009645
October 12, 2010
MEMORANDUM OF DECISION
I. Procedural Background
The plaintiffs, owners of real property at 282 Lakeside Drive in the Town of Lebanon, Connecticut (the property) initiated this appeal from the doings of the Lebanon Zoning Enforcement Officer, Phillip S. Chester (ZEO) and the Lebanon Zoning Board of Appeals (ZBA) on June 8, 2009. The appeal is from the ZBA's upholding of a notice of violation and cease and desist order issued by the ZEO relating to a deck constructed at the property by the plaintiffs.
After various interlocutory pleadings and the filing of the Return of Record, both parties, well represented by counsel, filed extensive briefs. The matter was heard at New London on October 6, 2010. Evidence was offered as to the issue of aggrievement. Each party presented extensive argument.
II. Factual Background
The record contains considerable factual background that may not be material to this decision and will not be repeated here. Those facts from the record which do impact the decision begin with the plaintiffs' acquisition of the property in 1999. It consisted of two unimproved waterfront lots. The plaintiffs obtained a variance of the setback requirements permitting them to construct a single-family house. The regulations of the town require first a zoning permit and then a building permit before a building or structure may be built or altered. These permits were obtained by the plaintiffs. The plans submitted to the town for the permitting process did not include a deck on the back of the two-story house overlooking the water. However, that side of the house had French doors on the second-floor level opening in the direction of the water.
The plaintiffs acted as their own general contractor and built the house over a several-year period. When the house was completed in 2003, without a deck, the rear of the house itself went right up to the setback line permitted by the variance. During the process of construction the town building official (not the ZEO) made several inspections. At the time of the inspections there was no deck.
Later, in April and May 2004, the plaintiffs constructed a deck which included stairs for ingress and egress to the house through the French doors. The deck measured about 12 feet in width and the full 12 feet extended completely beyond the permitted setback. During the time of the construction of the deck no inspections were made by the ZEO and the required building permits were not requested or obtained by the plaintiffs. Nor did the plaintiffs otherwise inform the town or the ZEO of that activity. The deck was on the back of the house away from the street and was therefore not visible from the street.
During 2008, in connection with a possible sale, the plaintiffs requested a certificate of occupancy from the town. This brought about an inspection by the ZEO who found that there was a violation of the setback by the deck. At that time the violation had existed for more than three years. The plaintiffs sought another variance to cover the situation which was denied. Thereafter the ZEO issued the order which is the subject of this appeal. An appeal to the ZBA with respect to the order was denied after hearing. This appeal followed that denial.
III. Claims of the Parties
The plaintiffs, while acknowledging that there is a violation of the setback permitted by the original variance and that no permits were obtained, claim that § 8-13a of the Connecticut General Statutes (the statute) provides protection from enforcement after a period of three years in this situation.
The statute reads as follows:
Sec. 8-13a. Nonconforming buildings and land uses. (a) When a building is so situated on a lot that it violates a zoning regulation of a municipality which prescribes the location of such a building in relation to the boundaries of the lot or when a building is situated on a lot that violates a zoning regulation of a municipality which prescribes the minimum area of a lot, and when such building has been so situated for three years without the institution of an action to enforce such regulation, such building shall be deemed a nonconforming building in relation to such boundaries or to the area of such lot, as the case may be.
The defendants, on the other hand, argue that the construction of the deck was unlawful and done in "bad faith" and that the benefits of the statute should not be afforded in such a case. They allege that the facts justify the application of the doctrine of equitable estoppel. In addition the defendants claim that the deck is not a "building" and is therefore not within the scope of the statute even if it otherwise applied. Also, the defendants claim that the statute is ambiguous in the use of the phrase ". . . without the institution of an action to enforce . . ." Specifically, the defendants claim that it should be read by the court to require specific notice to the zoning officials of the violation before the three years begins to run.
IV. The Issues
The issues framed by the pleadings and arguments of the parties relate to the interpretation of the statute and its application to the facts of this case, including the possible application of the doctrine of equitable estoppel.
Specifically, the court is asked to determine: 1) When does the statute start to run; 2) Is this deck a "building" within the meaning of the statute, and 3) Does the doctrine of equitable estoppel preclude the plaintiffs from the benefits of the statute even if it otherwise applies?
V. Aggrievement
There was no dispute as to this issue and the court finds, on the basis of the evidence produced at the hearing, that both plaintiffs are aggrieved by the actions of the ZBA and the ZEO in this case.
VI. Analysis
1. The three-year period of the statute begins to run at the time of the construction of the offending building. The statute does not require actual notice to the town before it starts to run.
Neither party has cited, nor has the court otherwise found, an appellate court decision on point. Both parties have analogized to other types of statutes of limitations or time limits. The defendants have sought to have the court apply a notice requirement where none is specified in the statute. Cases are advanced in other types of situations dealing with other statutes to advance that argument.
The court is persuaded by the analysis of Judge Moraghan in the case of Curran v. Zoning Board of Appeals. 1995 Ct.Sup. 5788 (Danbury Superior Court) where the court said:
The ZBA continues by arguing that if Sec. 8-13a does apply, since the town officials were unaware of the redivision of lots 13 and 6, the three-year limit should not start running until the town has notice of the nonconformance. There is no language in the statute, however, to indicate that in order to commence the running of the three-year period, the town must be aware of the nonconformance. The legislative history of this statute reveals that the legislature's stated intent was to have the statutory period run from the time the nonconformity came into existence as opposed to when the ZEO became aware of the nonconformance. Thus, the statute would have the added benefit of keeping the ZEO "on his toes."
Moreover, the statute appears to the court to be in the nature of a statute of limitations, at least as to zoning setbacks, side-yards and building areas. Benson v. Zoning Board of Appeals, 89 Conn.App. 324, 330 (2005). As such its purpose is to bring finality to a situation which has existed for the time specified in the statute. In that regard our Supreme Court in the case of Neuhaus v. Decholnoky, 280 Conn. 190, 206-07 (2006), has said:
The purpose of "[a] statute of limitation or of repose is . . . to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability . . ."
2. A deck attached to a house required as one of the means of access is an integral part of the building and in this case, with these facts, constitutes a "building" and falls within the purview of the statute.
The defendants have argued that a structure to be a building must have walls and a roof. However, the court finds that this deck in this case with these facts is a part of a structure which does have walls and a roof. The fact that the construction was delayed until after the remainder of the structure was complete does not alter that fact. Here the stairs and the deck are necessary to enter the house on that side through the doors originally constructed on the second floor of the house. Moreover, the use of the deck by the plaintiffs as evidenced by the photographs in the record demonstrate the role the deck plays in the enjoyment of the house.
The zoning regulations definition of the term "building" advanced by the defendants is irrelevant, since here we are interpreting a separate and distinct statute not the zoning regulations. And the statute contains no definition of the term as it may be applied to various factual situations.
The case of Kershaw v. Zoning Board of Appeals, 1997 Ct.Sup. 13818, 21 Conn. L. Rptr. 43 (Danbury Superior Court), advanced for the support of the argument by the defendants is inapposite. In that case there is no indication as to the use or necessity of the two decks in question in relation to the house. Also, the three-year time period was in question in that case.
The determination of whether or not on the evidence a particular entity comes within the definition of building is a question of fact. See Jeffery v. Planning Zoning Board, 155 Conn. 451, 454 (1967).
3. The doctrine of equitable estoppel does not preclude the plaintiffs from the benefits of the statute.
That doctrine requires the party claiming its application to establish: 1) misleading conduct by one party, and 2) detrimental reliance by the other. Doe v. Doe, 244 Conn. 403, 445 (1998), overruled on other grounds by In re Joshuas, 260 Conn. 182 (2002). In this case the court finds neither "misleading conduct" nor "detrimental reliance."
The defendant claims that the Doe case supports their claim, but there the court rejected the claim. The defendants also claim the case of Thompson v. Orcutt, 257 Conn. 301 (2001), support their claim but this court does not find that support. Thompson was about a fraud perpetrated in a bankruptcy court and it was found to implicate an important public interest which justified the application of the doctrine of unclean hands.
In this case the defendants argue that because the deck was built without a permit and illegally the plaintiffs should not get the benefit of the statute. The court does not condone the conduct of the plaintiffs, but the court finds that because the policy adopted by the legislature in the statute is clear and unequivocal the fact that the violation of the zoning setback was accomplished without a permit does not itself bring that doctrine into play. In fact, it appears to the court that such an interpretation would defeat the very purpose of the statute.
For the above reasons the appeal of the plaintiffs is sustained and the action of the ZBA is reversed. Judgment may enter for the plaintiffs together with costs.