Opinion
No. FST FA 05 4003653
May 1, 2007
MEMORANDUM OF DECISION
On September 17, 2004, the zoning enforcement officer of the City of Norwalk (hereinafter the "ZEO") issued a cease and desist order to the plaintiff which required it to furnish proof of the issuance of a permit for what the ZEO identified as use of its property as a contractor's storage yard. The plaintiff appealed from this order to the Norwalk Zoning Board of Appeals (hereinafter the "ZBA") claiming that the ZEO had erroneously classified its use as a contractor's storage yard, rather than a manufacturing facility. After a public hearing, by a three to two vote, the ZBA upheld the ZEO's order requiring that the applicant provide "proof of permits" for the current use. This appeal followed.
The plaintiff is aggrieved by virtue of the fact that it was the applicant — owner of the property at all times relevant to this appeal. Goldfeld v. Planning Zoning Commission, 3 Conn.App 172 (1985).
The facts as gleaned from the record are as follows. Since 1969, the plaintiff has produced on its property what it calls "ecosoil," which is a mix of earth materials which are used in the making of lawns, potting of plants and other landscape purposes. These soil mixes are made from blends of sand, clay, basalt rock, leaf mulch, peanut shells, sawdust, humus, fine gravel and other ingredients. The blend is accomplished by processing these ingredients by loading, mixing and screening with the use of mechanical equipment located on the site. Ecosoil is sold to landscapers, nurseries, municipalities and the general public. The entire process requires the storage of component raw materials in stockpiles on the ground preparatory to incorporation into finished product which then is stored on the ground in stockpiles or bagged for ultimate removal and delivery by truck to final destinations, When the truck arrives at its delivery destination, it dumps the ecosoil on the owner's property or off loads the bagged product. No other raw materials or finished products are stored or processed on the site. There is nothing in the record to indicate that any representative of the plaintiff is involved with the product after it is delivered.
The property lies in industrial zone No. 1, which permits the plaintiff's use either as a "contractor's storage yard" ( § 118-700B(e)) or as "manufacture, processing or assembly of goods" ( § 118-700B(a)). In this case, the primary significance of the different use classifications is that in the former classification, outside storage of equipment and material is subject to a five-foot setback from side and rear property lines ( § 118-101). Both classifications contain a twenty-foot limitation on the height of stockpiles, require screening from adjacent properties, ( § 118-100; § 118-700(4)(a)) and are subject to regulation for environmental impact ( § 118-700(5)(a)), illumination and noise ( § 118-700 (5)(c)). Neither site plan nor special permit review is necessary.
Since 1929, the Norwalk Zoning Regulations have provided as follows ( § 118-420G).
No land shall be occupied or used and no building hereafter erected or altered shall be occupied or used in whole or in part for any purpose whatsoever, except for the alteration of or addition to a dwelling,-until a certificate of zoning compliance shall have been issued by the Zoning Inspector stating that the premises or building complies with all the provisions of these regulations. Where deemed necessary by the Zoning Inspector, an as-built drawing showing the location of all improvements as constructed in both plan and profile shall be submitted prior to the issuance of a certificate of zoning compliance. Upon the completion of the foundation for any building, unless exempted by the Director of Planning and Zoning, an as-built drawing shall be prepared by a licensed land surveyor certifying that the location of the foundation is in compliance with these regulations. (Emphasis added.).
In 1996 the regulations were amended to add a definition of contractor's storage yard as follows ( § 118-100):
Contractor's Storage Yards — "A parcel of land, with or without structures, a minimum of 12,500 square feet in size, used for the storage of contractor's equipment and materials used in the construction trade; including, but not limited to, trucks, vans, bulldozers, backhoes and other similar equipment customarily associated with a contractor and or stockpiles of construction materials, such as concrete, gravel, woodchips, masonry, plumbing or electrical supplies, and other similar materials. All such equipment and material shall be stored in an environmentally safe manner behind the front setback line and no closer than five feet (5) to the side or rear property lines. All such stockpiles shall be limited to a maximum height of twenty feet (20) and shall be effectively screened from view from adjacent properties."
In 1969, the ZEO issued a certificate of occupancy for the building which the plaintiff has occupied. The certificate was issued in the name of the then owner, A.D. Slavitt. The occupancy authorized for the property was for a one-story masonry commercial building. Pursuant to that certificate, the plaintiff began its current use which has continued uninterrupted to the present.
The plaintiff contends (1) that this certificate of occupancy authorizes the current use and renders the 2004 order of the ZEO unwarranted and unauthorized; (2) the ZEO's order erroneously describes the use as a contractor's yard rather than a manufacturing facility; (3) even if the use is a contractor's yard, it is a valid, non-conforming use since it predates the adoption of the contractor's storage yard regulations in 1996 and, therefore, need not apply for a certificate of zoning compliance pursuant to § 118-1420G of the regulations.
The defendant contends that (1) the existing certificate of occupancy does not authorize the current use; (2) the plaintiff incorrectly argues that the issue before the ZBA for adjudication was whether the use was a contractor's storage yard or manufacturing facility; (3) even if the plaintiff proved that it was a manufacturing facility, it would still need a certificate of zoning compliance (permit); and (4) the plaintiff's use cannot be a valid non-conforming use because the use never became lawful since it never was legitimized with a certificate of zoning compliance, and only a lawful use can become non-conforming.
The standard which governs this court's review of the ZBA's action is whether the ZBA acted illegally, arbitrarily or in abuse of its discretion. Doyan v. Zoning Board of Appeals, 67 Conn.App. 597 (2002). The court may not substitute its judgment for that of the board. Moreover, there must be substantial evidence in the record to support the board's decision, [ Torsiello v. Zoning Board of Appeals, 3 Conn.App. 475 (1984).
On September 9, 1969, the plaintiff entered into a written lease with A.D. Slavitt, as landlord, under which the leased premises were to be used as an "industrial building." On September 17, 1969 the ZEO issued a certificate of occupancy for the premises authorizing use as a "commercial building." The application for the building permit described the use as a "storage building."
In 1984 the State Department of Economic Development issued to the plaintiff an Enterprise Zone Location Eligibility Certificate as a "manufacturing facility; horticultural/agricultural products." The plaintiff's use of the premises for this purpose has been continual and basically unchanged since 1969. The court agrees with the city that nothing in these documents can fairly be construed as a certificate of zoning compliance for anything more than commercial storage.
The decision of the ZBA goes no further than to uphold the ZEO's order to cease and desist from operating without a permit (certificate of zoning compliance). It merely requires that the plaintiff apply for a certificate of zoning compliance pursuant to § 118-420G of the regulations. Notwithstanding the considerable discussion of the issues by the board, no decision was made whether the particular classification of the use is a manufacturing facility or a contractor's storage yard. The plaintiff therefore, must apply for a certificate of zoning compliance for the applicable use classification.
The plaintiff argues further that assuming its use is that of a contractor's yard, its use is nonconforming because it long predates the enactment of the contractor's storage yard classification in 1996.
Implicit in the ZBA's order is the determination that the use is a contractor's storage yard as defined in § 118-100. The plaintiff contends that it should not be forced to apply for approval of a use that does not exist. Although the ZBA did not adjudicate the issue, in order for the plaintiff to file a proper application, the court must resolve the issue.
The correct classification of use under the zoning regulations depends upon application of well recognized principles of statutory construction to the definition of the two use classifications. "Ordinarily, the construction of a statute by the agency charged with its enforcement is entitled to considerable deference. However, the construction of a statute on an issue that has not previously been subjected to judicial scrutiny is a question of law on which an administrative ruling is not entitled to special deference. Connecticut Light Power Co. v. Dept. Public Utility Control, 210 Conn. 349 (1989) . . . "Where administrative interpretations lead to a result that is contrary to the language and purpose of the statute, it is within the authority of this court to construe a statute in a manner consistent with its language and purpose." Lockwood v. Professional Wheel Chair Transportation, Inc., 37 Conn.App. 85.92 (1995).
There is nothing in the record or briefs that indicates that the use and classification of contractor's storage yard, as found in § 118-100 has ever been subjected to judicial scrutiny. This court must therefore make a plenary review of the legislation.
"When construing a statute our fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of the case, including the question of whether the language actually does apply . . ." Friezo v. Friezo, 281 Conn. 166, 181 (2007).
Words used in statutes shall be construed according to the commonly approved usage of the language. G.S. § 1-1; Martone v. Lensink, 207, Conn. 296, 302 (1988). When the language used by the legislature is plain and unambiguous, there is no room for statutory construction by the courts and the statute will be applied as its words direct. Verrastro v. Siversten, 188 Conn. 213, 220 (1982); Kelemen v. Rimrock Corporation, 207 Conn. 599, 606 (1988). "In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result." King v. Board of Education, 203 Conn. 324, 332-33 (1987).
The definition contains two main themes, viz: (i) storage of equipment used in the construction trade, and (ii) storage of materials customarily associated with construction. (Emphasis added.) The key to both types of storage is construction. The word, however, is not defined in the regulations. Therefore, resort may be had to its' dictionary definition. Webster's New World Dictionary, Second College Edition at page 305 defines "construct" as to "build, form or devise by fitting parts or elements together systematically." An examination of the record reveals that the plaintiff's operation does not fit this definition for two reasons. First, the only equipment that is stored outdoors are (i) loading machines (front-end loaders) which bring the stockpiled raw materials into the interior of the building for blending and processing into the finished product, and (ii) dump and flatbed trucks which are used to haul the raw materials to the site, and to haul out the finished product for off-site delivery whether in bulk or in bags. While loaders and dump trucks may coincidentally be used by construction contractors, their use on the plaintiff's property cannot be deemed use for construction purposes. No other equipment is stored outdoors. Second, the stockpiled materials are clearly raw materials used to create a finished product. There is nothing in the record to support the claim that either the raw material or the finished product are materials which are necessarily associated with construction. The fact that ecosoil may be used in connection with the landscaping of a construction site does not transform these materials into construction materials, anymore than sod, shrubberies or flowers, which the ecosoil is designed to support, and which eventually are incorporated into a finished construction site.
The use permitted under § 118-700B(a), "manufacture, processing or assembly of goods" is not defined in the regulations. In Webster's New World Dictionary, Second College Edition at 602, the term "goods" is defined as "movable, personal property." Clearly, the component raw materials stored outdoors in stockpiles are "goods." It only remains to determine whether the creation of ecosoil constitutes manufacturing or processing. This court believes that it is both. The same dictionary at page 864 defines manufacture as "the making of goods and articles by hand or by machinery" and process as "the course of being done; a particular method of doing something, generally involving a number of steps or operations." (p. 1133.) The record demonstrates that among the ingredients that are mixed to form ecosoil are humus, sand, leaf compost, clay, basalt rock, peanut shells, and sawdust, which are blended together by machinery inside the building after being brought in by use of a front-end loader. To these materials are added other ingredients such as fish meal, bone meal, cottonseed meal and particles of styrofoam for moisture retention. All these are mixed in accordance with a specific formula devised by the plaintiff. The court cannot imagine any exercise which more closely corresponds to the definition of "processing." The possibility that peanut shells may resemble wood chips or front-end loaders may resemble bulldozers, as those terms are used in the regulations, does not make this operation a contractor's storage yard.
Having determined that the use never was a contractor's storage yard, there is no need to address whether the use is non-conforming either as a contractor's storage yard or a manufacturing facility because both uses have been permitted uses during the entire time the plaintiff has occupied the premises. By the same reasoning, the ZBA's argument must fail that the use never acquired non-conforming status because the use was unlawful either by failure to obtain a certificate of occupancy in 1969, particularly describing the use, or failure to obtain a certificate of zoning compliance, which requirement was added to § 118-1420G sometime between 1981 and 1982.
The court is not persuaded by the plaintiff's argument that it need not apply for a certificate of zoning compliance because it has had a certificate of occupancy for a manufacturing facility since 1969 and the enactment of the requirement of a certificate of zoning compliance in the early 1980s does not apply to it. A municipality is free to enact a zoning regulation which requires the permitting of non-conforming uses. CT Page 5959 Annunziata v. Zoning Board of Appeals, 65 Conn.App. 606 (2001). Moreover, in the process of issuing a permit, a zoning authority, under its police power, has the right to regulate the non-conforming use, as long as the regulation is reasonable and does not attenuate the use, Bauer v. Waste Management, 234 Conn. 221 (1995). The court notes that on their face, the limitations contained in § 118-100, 118-700(4)(a), 118-700(5)(a) and 118-700(5)(c) appear to constitute reasonable regulations of the existing use and may be utilized by the ZBA in fashioning appropriate conditions to the granting of the certificate of zoning compliance for the processing facility.
The appeal is dismissed in part and sustained in part. It is dismissed insofar as the plaintiff challenges the necessity of a permit; it is sustained insofar as the implicit decision of the ZBA is based upon a belief that the plaintiff's use is that of a contractor's storage yard.