Opinion
KNLCV156024762
10-05-2016
John Burgess v. City of Norwich Zoning Board of Appeals
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Susan B. Handy, J.
I. STATEMENT OF THE APPEAL
The plaintiff, John Burgess, appeals from the decision of the Norwich Zoning Board of Appeals denying his variance application, which requested a reduction of the side yard setback of ten feet to two feet on his property located at 74 Russell Road in Norwich, Connecticut, in order to maintain a deck that had been built prior to any issuance of the required zoning permit to construct that deck.
II. FACTUAL AND PROCEDURAL BACKGROUND
By way of a complaint dated July 30, 2015, the plaintiff, John Burgess, appealed from the decision of the Norwich Zoning Board of Appeals (hereinafter ZBA) denying his variance application. The chronology preceding this appeal is important. Toward the end of June and into early July of 2012, the plaintiff constructed a twenty-foot by twenty-foot deck on his property without obtaining a zoning permit prior to its construction. On July 12, 2012, Norwich's Zoning Enforcement Officer issued the plaintiff a cease and desist order, maintaining that the deck was built without the required zoning permit and was in contravention of the town's zoning regulations regarding side yard setbacks. (Tr., p. 17.) On July 24, 2012, the plaintiff applied to the ZBA for a variance of that side yard setback requirement from ten feet to two feet. (Am. Compl., ¶ 2; Def.'s Answer, ¶ 2.) Hearings were held on that matter in September and October of 2012, and on October 9, 2012, the ZBA denied the plaintiff's variance application by a vote of two to two. Proper notice was published of that denial and a timely appeal was filed by the plaintiff on October 24, 2012. The court on appeal determined that the ZBA failed to articulate with sufficient specificity its finding of the absence of a legal hardship. Accordingly, the court vacated the ZBA's decision, which denied the variance application, and remanded the case for a new hearing and decision. Burgess v. Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV-12-6015423-S, (March 4, 2015, Moukawsher, J.). (ROR, Ex. Q.)
Most of the facts regarding this second instant appeal are not in dispute. The plaintiff's property is located at 74 Russell Road in the city of Norwich in a multi-family (MF) zone. (ROR, Ex. Y, p. 2.) Upon the remand of the first appeal, the plaintiff submitted a second variance application to the ZBA, dated April 20, 2015, again requesting the ZBA to vary § 12.1 of the zoning regulations and reduce the ten-foot side yard requirement to two feet, thus, allowing him to retain his previously built, nonconforming twenty-foot by twenty-foot deck. (ROR, Ex. B.)
A hearing on the plaintiff's variance application was originally scheduled for May 2015, but the plaintiff requested that the matter be postponed until June 2015. (ROR, Ex. L.) The hearing was then rescheduled to the June ZBA agenda, but then the plaintiff's spouse requested that the matter be postponed until the July agenda. (ROR, Ex. M.) In compliance with the plaintiff's requests, the ZBA scheduled the variance application for its July agenda. Notice of that scheduled hearing was published in the Norwich Bulletin on July 2 and July 9, 2015. (ROR, Ex.N.)
The hearing was held before the ZBA on July 14, 2015, at which time the plaintiff was heard as well as a number of neighbors and other individuals in support of the plaintiff's variance. (Tr., pp. 15-16, 66-76.) Many petitions and letters were also provided to the ZBA in support of the request. (ROR, Ex. I, J, O and R.) At the close of the hearing, the ZBA deliberated and denied the variance application by a vote of two to three: two votes in favor of granting the request and three votes denying the requested variance. (ROR, Ex. Y.) Notice of the ZBA's decision was published in the Norwich Bulletin on July 16, 2015. (ROR, Ex. Z.) It is from this decision that the plaintiff filed an appeal, dated July 30, 2015.
It should be noted that plaintiff's brief at page ten recites that the vote was three to two in favor of the variance, but the minutes of the ZBA meeting on July 14, 2015, show that the vote was in fact three to two denying the variance. (ROR, Ex. Y.) Plaintiff's counsel conceded that point in oral argument before the court. General Statutes § 8-7 requires the concurring vote of four members of the zoning board of appeals to approve a variance.
The court hearing on this matter commenced and was completed on July 27, 2016. All parties appeared and had an opportunity to be fully heard.
III. LAW AND DISCUSSION
A. AGGRIEVEMENT
" [P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007). " Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." (Internal quotation marks omitted.) Id., 400. It is well established that a party may be aggrieved for purposes of an appeal by virtue of a person's status as a property owner. Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 671, 899 A.2d 26 (2006). See also Bossert Corp. v. Norwalk, 157 Conn. 279, 285, 253 A.2d 39 (1968). A plaintiff may prove aggrievement by testimony at trial; Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or " by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
At the hearing before this court on July 27, 2016, the plaintiff testified that he purchased the 74 Russell Road, Norwich, Connecticut property in 2006. He further testified that he has owned the property continuously since the 2006 purchase and currently is the owner of record. Accordingly, the court finds that the plaintiff is aggrieved.
B. TIMELINESS OF THE APPEAL
Pursuant to General Statutes § 8-8(b), an " appeal shall be commenced by service of process in accordance with subsections (f) and (g) within fifteen days from the date that notice of the decision was published as required by the general statutes." Section 8-8(f) provides in relevant part: " Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows: . . . (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57." General Statutes § 52-57(b) provides that " [p]rocess in civil actions against the following described classes of defendants shall be served as follows: . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ." Pursuant to § 52-57(a), service of process as to individual defendants is completed by either in hand or abode service.
Notice of the ZBA's decision was published in the Norwich Bulletin, a newspaper of general circulation in the city of Norwich, on July 16, 2015. (ROR, Ex. Z.) The plaintiff commenced this appeal on July 30, 2015, fourteen days from the date of publication and within the fifteen-day statutory mandate, by service of process upon the ZBA on that same date, by leaving two copies of the appeal with the City Clerk of Norwich and additionally, by abode service on the Chairman of the ZBA. (Marshal's Return, Docket Entry #100.30.) Accordingly, the court finds that the service of process was proper and timely and that the court has subject matter jurisdiction over this appeal.
C. SCOPE OF REVIEW
" The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations . . . It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Citations omitted; internal quotation marks omitted.) R& R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).
The court cannot substitute its discretion for the liberal discretion which the legislature has conferred on the ZBA. Gordon v. Zoning Board, 145 Conn. 597, 604, 145 A.2d 746 (1958). The court may, however, grant relief when it can be shown that the ZBA acted arbitrarily or illegally and consequently, has abused its authority. Id. The plaintiff has the burden of proving that the defendant ZBA acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988). If the ZBA has failed to state on the record the reasons for its decision, the court must search the record to discover if sufficient reasons exist to support the decision appealed from. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988). " If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Citations omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004). This applies where the agency has rendered a formal, official collective statement of reasons for its action. Protect Hamden/North Haven From Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 544, 600 A.2d 757 (1991). " 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 [the board] must be upheld by the trial court if they are reasonably supported by the record." Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-60, 916 A.2d 5 (2007). " [T]he decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . ." (Internal quotation marks omitted.) Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547, 684 A.2d 735 (1996).
D. THE VARIANCE AND THE PLAINTIFF'S ALLEGED HARDSHIP
It should be noted that of all the functions of any zoning authority, the power to grant variances is the most limited. General Statutes § 8-6(a)(3) governs a board's authority for the issuance of variances and states in part that a board has the power and duty " to determine and vary the application of zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship . . ." (Emphasis added.) The parties agree that the city of Norwich's zoning ordinances closely parallel the statutory language regarding variances.
The applicable regulation is found in Appendix A, Section 19.1.3 of the Norwich Code of Ordinances, which permits the ZBA " [t]o vary the strict application of any of the requirements of this ordinance in the case of an exceptionally irregular, narrow, shallow or steep lot or other physical conditions for which strict application would result in exceptional difficulty or unusual hardship that would deprive the owner of the reasonable use of the land or building involved, but not in other cases."
The hardship that justifies a variance must arise out of the application of a particular zoning regulation and it must be beyond the control of the owner and not self-created. Morikawa v. Zoning Board of Appeals, 126 Conn.App. 400, 408-09, 11 A.3d 735 (2011). " Where the condition which results in the hardship is due to one's own voluntary act, the zoning board is without the power to grant a variance." Belknap v. Zoning Board of Appeals, 155 Conn. 380, 384, 232 A.2d 922 (1967). " Where the claimed hardship arises from an applicant's voluntary act . . . a zoning board lacks the power to grant a variance . . . We have recently addressed the 'self-created hardship' exception for variances. In Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 300, 429 A.2d 883 (1980), we stated that [w]here the applicant or his predecessor creates a nonconformity, the board lacks power to grant a variance." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39-40, 438 A.2d 1186 (1982). " To support a variance, therefore, a hardship must arise from a condition different in kind from that generally affecting properties in the same zoning district and must be imposed by conditions outside the property owner's control . . . The applicant bears the burden of demonstrating the existence of a hardship." (Internal quotation marks omitted.) Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, 569, 785 A.2d 601 (2001). Exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of any variance. Tine v. Zoning Board of Appeals, 308 Conn. 300, 310, 63 A.3d 910 (2013). See also Kelly v. Zoning Board of Appeals, 21 Conn.App. 594, 598, 575 A.2d 249 (1990).
With this limited scope of review in mind, the court will now turn to the plaintiff's variance application to determine whether or not it satisfied both the statutory and regulatory standards for exceptional difficulty or unusual hardship. As previously stated, the plaintiff in this matter sought a lot variance, requesting a reduction in the side yard setback from ten feet so that he would not have to remove an already existing deck, constructed without the requisite zoning permit and currently located within two feet of the side yard, in violation of the zoning regulations.
The plaintiff first claims in his brief that the deck is an extension of a nonconforming, preexisting house and garage and that it is a reasonable use of the land. (ROR, Ex. P, p. 1.) He next claims that an exceptional difficulty or unusual hardship exists as he has situated the deck upon the only usable yard on the property as the back of the yard becomes muddy when it rains due to heavy tree coverage there. (Tr., pp. 45-46.) He further argues that it is not feasible to move the deck eight feet forward to be within the side yard setback requirement as the structure is too weighty, the deck would be awkwardly placed, and such a move would create less usable yard space. (Tr., pp. 50-51.) The plaintiff also argues that all of his neighbors support the variance application and that he has signatures from 185 people, all supporting the request. (ROR, Ex. I, J, O, and R; Tr., pp. 28-29.)
The plaintiff's petition contains some 185 signatures in support of the variance application, solicited from people all over the world. (ROR, Ex. R.) Clearly, the fact that people in Hawaii, Italy, or Brazil feel that he should not have to remove his already constructed deck has no relevance to this proceeding or any bearing on this court's decision.
As to the plaintiff's first claim, the defendant ZBA argues that the record is devoid of any argument put forth by the plaintiff at the hearing that the newly built deck should be deemed a lateral extension of the nonconforming garage. In fact, if this were the plaintiff's claim, he should have argued that no variance was required because the property or its use was a permissive, nonconforming use or structure. The ZBA is correct when it argues that the onus was on the plaintiff to support this argument and the record lacks any reference to the same. See Whitehead v. Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. CV-03-0478470-S, (June 9, 2004, Sequino, J.) (" Generally, reviewing courts in administrative appeals from the granting or denying of a requested variance have declined to pass upon the claim that no variance is required because the property or its use is a permissible nonconforming use or structure. Usually, this is because the board did not consider such a claim or the record is insufficient to determine such a claim").
During the hearing, the plaintiff referred to his outline, which states in part, " Forcing us to remove the deck or cut the deck in half to achieve the 10' setback would accomplish nothing in terms of preserving the integrity or intent of the zoning setback by virtue of the fact that the home and attached garage will remain noncompliant with regard to the 10' setback requirement the regulations are trying to enforce." (ROR, Ex. P., p. 3.) At the hearing, the plaintiff mentions that the deck in question is an extension of the already nonconforming garage, but never did he argue or put on evidence that the consequence was that no variance was needed. (Tr., p. 25.)
A review of the record reveals that a determination by the ZBA that the plaintiff's already constructed deck does not satisfy the exceptional difficulty or unusual hardship standard is supported by substantial evidence. First, he built the deck without a permit and in non-compliance with the zoning side yard setback requirements. He admits and acknowledges this. (ROR, Ex. P, p. 1; Tr., p. 17.) The property already has one deck. (Tr., pp. 61-62.) The deck could be moved elsewhere on the property to comply with the side yard setback regulations, but the plaintiff claims it would be too difficult to do that. (Tr., pp. 50-51.) A smaller deck could be built or his already built deck could be made smaller to comply with the side yard setback regulations, but the plaintiff feels that would not be practical for him or his family. (Tr., p. 51.) The plaintiff has created this problem and would not have been in this situation if he had initially consulted the zoning officer prior to constructing the deck. If so, he would have known what he could build, where he could build it, and what size it needed to be. He has not been denied the reasonable use of his property: he already has one deck, and he could have a second deck albeit one smaller if it remains where he constructed it or one as large as the one subject of this appeal if placed elsewhere on the property.
The members of the defendant ZBA who voted to deny the plaintiff's application discussed these issues during the public hearing and in their deliberations. The ZBA Chairman, Mark Benjamin, instructed the plaintiff during the hearing that " he must demonstrate a legitimate legal hardship." (ROR, Ex. Y, p. 3, Tr., p. 45.) During his testimony at the public hearing, the plaintiff stated that he had the support of all Russell Road residents.
Chairman Benjamin pointed out that the ZBA is " not a court of public decision . . . and [that] variances are given based on hardship to a particular property . . ." (ROR, Ex. Y, p. 4; Tr., pp. 56-57.)
This was not a unanimous vote and the minutes and transcript reflect the same. Board member Oleander stated he would vote in favor of the application as he felt the deck was " a reasonable use." (Tr., p. 79.) His remark was countered by Board member Dussault who stated: " [R]easonable use is not an argument and the hardship doesn't stand. The deck could be built in compliance . . ." (ROR, Ex. Y, p. 5; Tr., p. 80.) Board member Travers supported the variance, claiming the property was near wetlands, at the end of the street and there was no opposition. Travers never addressed the issue of hardship. (ROR, Ex. Y, p. 6, Tr., pp. 80-81.)
Board member Kulos recognized that the property consisted of a small corner lot and that the setbacks were oddly placed on the small property. He was not unsympathetic to the plaintiff's request. However, as he indicated, the deck could have been built in conforming space if it had been built elsewhere on the property. He acknowledged that the deck was a nice one that " actually improv[ed] the neighborhood." He went on to state, however, that eight feet could be cut off the deck, making the deck twelve feet by twenty feet, which would thus be conforming. (ROR, Ex. Y, p. 6; Tr., pp. 84-85, 89.) Kulos had questioned the plaintiff earlier in the hearing about how big the deck would be without the eight-foot variance. The plaintiff responded that it would be twelve feet by twenty feet, but pretty narrow. To which board member Kulos stated: " But it would be legal and fall within the guidelines of the City of Norwich Zoning Department." (Tr., pp. 48-49.)
As previously stated, Chairperson Benjamin questioned what the hardship would be if the plaintiff had to build a smaller deck in compliance with the regulations and how this would affect his reasonable use of the property. " Ten by ten is typical on the back of a house. You know, 12 by 20 is pretty big. 20 by 20 you can park two cars on. So we're into the reasonable use and is there--if this Board were to deny this variance, would we be stopping him from a having a reasonable use deck. No . . . Does he have the ability to maintain the exact same sized deck as requested in a pretty similar location? Yes. You know, eight feet here versus there. I don't feel we are denying him a deck by telling him that he has to conform with the city zoning." (Tr., pp. 87-88.)
Accordingly, substantial evidence in the record supports a determination that no exceptional difficulty or unusual hardship exists beyond the one that the plaintiff himself created by building the deck without contacting the proper zoning authority prior to doing so. When it was determined that he was not in compliance with the zoning regulations, the plaintiff could have brought himself in compliance by either moving the deck or making the existing deck smaller to fit the side yard setback regulations. Self-created hardships are not legal hardships. Furthermore, the record is clear that the members of the ZBA who voted to deny the application based their decision on these same considerations. Contrary to the plaintiff's claim, there was nothing arbitrary about the ZBA's decision in this matter. A board's conclusion must be upheld if it is reasonably supported by the record. Vine v. Zoning Board of Appeals, supra, 559-60. A complete review of the record clearly shows that after full deliberation and discussion, the ZBA voted to deny the plaintiff's variance with three members voting to deny it and two members voting to grant it, with reasons for those votes articulated on the record. (ROR, Ex. Y; Tr., pp. 79-101.)
E. THE ALLEGED BIAS OF BOARD MEMBER RAYMOND DUSSAULT
The plaintiff makes cursory mention of board member Raymond Dussault's alleged bias toward this second variance application. His claim is that Dussault made reference to the prior appeal by stating: " Some of us have been the subject of allegations--ethical allegations, court law suits." (Tr., p. 80.) There is nothing in the record, beyond that remark, that shows that Dussault prejudged this second variance application. While it is true he voted against the plaintiff's first variance application, and this same bias argument was used in that appeal, the trial court did not find that Dussault had prejudged the first application. In this second hearing, Dussault made it very clear that he disagreed with fellow board member Oleander who contended that the deck was a reasonable use of the property. He voted to deny the variance and made his reason very clear on the record, when he stated the following: " [R]easonable use is not an argument and the hardship doesn't stand. The deck could be built in compliance . . ." (ROR, Ex. Y, p. 5; Tr., p. 80.)
" None of this disqualifies Dussault . . . Here it appears that Dussault took up the neighbor's cause mid-hearing and espoused it ever after. This does not mean he made up his mind without even hearing the matter." (ROR, Ex. Q, pp. 4-5.)
F. CONNECTICUT GENERAL STATUTES § 8-13a AND THE STATUTE OF LIMITATIONS
The plaintiff argues that the ZBA's decision must be overturned because the plaintiff's deck is a legal nonconforming use pursuant to General Statutes § 8-13a. Sometime in late June to early July of 2012, the plaintiff built the deck. On October 1, 2013, No. 13-9 of the 2013 Public Acts (P.A. 13-9), codified within General Statutes § 8-13a, went into effect. Prior to the enactment of P.A. 13-9, § 8-13a applied only to " buildings." Public Act 13-9 added " structures" to the statute. As amended by P.A. 13-9, § 8-13a provides in relevant part: " (a)(1) When a . . . structure is so situated on a lot that it violates a zoning regulation of a municipality that prescribes the location of such a . . . structure in relation to the boundaries of the lot or when a . . . structure is situated on a lot that violates a zoning regulation of a municipality that prescribes the minimum area of the lot, and when such . . . structure has been so situated for three years without the institution of an action to enforce such regulation, such . . . structure shall be deemed a nonconforming . . . structure in relation to such boundaries or to the area of such lot, as the case may be. For purposes of this section, 'structure' has the same meaning as in the zoning regulations for the municipality in which the structure is located or, if undefined by such regulations, 'structure' means any combination of materials, other than a building, that is affixed to the land, including, without limitation, signs, fences, walls, pools, patios, tennis courts and decks . (2) A property owner shall bear the burden of proving that a structure qualifies as a nonconforming structure pursuant to subdivision (1) of this subsection." (Emphasis added.)
Specifically, the plaintiff asserts that the legislative history of the passage of § 8-13a indicates that the legislature intended the statute to apply retroactively and that the cease and desist order issued by the city on July 12, 2012, and subsequent variance appeal of the plaintiff were not actions to enforce the pertinent ordinance to comply with the statute of limitations. The defendant counters that, as a statute affecting substantive rights, P.A. 13-9 is presumed to apply prospectively and that the legislative history cited is " too ambiguous and minimal" to override this presumption. Neither party argues that a different definition of " structure" applies under the zoning regulations of the city.
In considering the parties' arguments, the court is guided by the well-settled rules of statutory interpretation. " When construing a statute, [our courts'] 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 . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . Furthermore, we presume that laws are enacted in view of existing relevant statutes . . . and that [s]tatutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law." (Citation omitted; footnote added; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 517-18, 923 A.2d 638 (2007).
General Statutes Section 1-2z provides: " The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of the text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
In light of these rules of statutory interpretation, the court notes that § 8-13a does not address whether it applies prospectively or retroactively. " Whether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute . . . In order to determine the legislative intent, we utilize well established rules of statutory construction. Our point of departure is General Statutes § 55-3 which states: No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have retrospective effect. The obligations referred to in the statute are those of substantive law . . . Thus, we have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 620, 872 A.2d 408 (2005). " While there is no precise definition of either [substantive or procedural law], it is generally agreed that a substantive law creates, defines and regulates rights while a procedural law prescribes the methods of enforcing such rights or obtaining redress." (Internal quotation marks omitted.) Carr v. Planning & Zoning Commission, 273 Conn. 573, 593, 872 A.2d 385 (2005).
" Although substantive legislation is not generally applied retroactively absent a clearly expressed legislative intent, legislation that affects only matters of procedure is presumed to [be] applicable to all actions, whether pending or not, in the absence of any expressed intention to the contrary . . . Statutes of limitations are generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action . . . Therefore, unless specifically tied to a statutory right of action or unless a contrary legislative intent is expressed, the statute of limitations in effect at the time an action is filed governs the timeliness of the claim." (Citations omitted; internal quotation marks omitted.) Roberts v. Caton, 224 Conn. 483, 488-89, 619 A.2d 844 (1993).
In the instant case, whether § 8-13a is substantive or procedural is a challenging issue to resolve. Section 8-13a has been described both as creating vested rights in the continuance of nonconformities; Verrillo v. Zoning Board of Appeals, 155 Conn.App. 657, 661-62, 111 A.3d 473 (2015); which would make it substantive; and as a statute of limitations; id., 684; which would be procedural. It may be argued that the statute's primary purpose is in protecting property interests; see Benson v. Zoning Board of Appeals, 89 Conn.App. 324, 335, 873 A.2d 1017 (2005) (" [t]he intended policies for which the statute was enacted were [1] to protect the landowners and the public interest by requiring municipalities to act reasonably quickly on certain zoning violations, and [2] to protect innocent landowners from being unable to provide marketable title when a land survey uncovers an existing setback violation"); and therefore, the statute is substantive and presumed to apply prospectively. It also could be described as procedural because it operates as a statute of limitations and provides a defense to enforcement of setback and area requirements. Nonetheless, when " the pertinent legislative history evince[s] a clear legislative intent to apply the amendment retroactively . . . it [is] not necessary to determine whether the amendment was substantive or procedural." (Citation omitted.) State v. Skakel, 276 Conn. 633, 673, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S.Ct. 578, 166 L.Ed.2d 428 (2006).
Section 8-13a is ambiguous. Whether it is retroactive is not indicated in the text of the statute where courts first look for legislative intent. See General Statutes § 1-2z; Cogswell v. American Transit Ins. Co., supra, 282 Conn. 517-18. Additionally, § 55-3 creates a presumption " that statutes affecting substantive rights shall apply prospectively only"; D'Eramo v. Smith, supra, 273 Conn. 620; but does not conclusively establish whether a statute is retroactive or prospective. The court, therefore, may look to the legislative history to determine whether any presumption is rebutted.
The legislative history of the passage of P.A. 13-9, codified within General Statutes § 8-13a, reveals that the legislature intended the statute to apply retroactively. The following colloquy occurred on the floor of the House of Representatives:
" REP. SMITH (108th): Just for legislative intent purposes, the--if a deck, a deck exists now on the property, more than three years ago when it was created, would the new passage of this bill, would that deck then become a--nonconforming, a legal nonconforming use? Through you, Mr. Speaker. " SPEAKER SHARKEY: Representative Rojas. " REP. ROJAS (9th): Through you, Mr. Speaker, yes."56 H.R. Proc., Pt. 5, 2103 Sess., pp. 1421-22.
" Our Supreme Court has declared that statements made on the floor of the House of Representatives, although not controlling, may be judicially noticed and are a strong indication of legislative intent . . . Such statements are entitled to particular weight and careful consideration in discerning legislative intent when they are made by the bill's sponsor or by legislators who report it out of committee." (Citations omitted; internal quotation marks omitted.) State v. Guckian, 27 Conn.App. 225, 237, 605 A.2d 874 (1992), aff'd, 226 Conn. 191, 627 A.2d 407 (1993), abrogated on other grounds by Cobham v. Commissioner of Correction, 258 Conn. 30, 779 A.2d 80 (2001).
The legislative history indicates that Representative Rojas was the proponent of the bill in the House of Representatives. 56 H.R. Proc., supra, pp. 1419-21. The only way that a deck existing for more than three years at the time of the colloquy could be a legal nonconforming use under the statute is if the statute applied retroactively. Consequently, the clear and unequivocally expressed intent of the legislature was that P.A. 13-9 would apply retroactively to structures. See Fishman v. Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-6021679-S (July 9, 2015, Genuario, J.) (60 Conn.L.Rptr. 648, 650, ) (finding that " if a structure that is not a building and otherwise protected by P.A. 13-9 existed for more than three years, that structure would be protected even though it was built before the effective date of [P.A.] 13-9 and regardless of whether all or a portion of the three-year period passed before that date").
In the present case, the record reveals that the plaintiff built his deck sometime in late June to early July 2012. The defendant's zoning enforcement officer issued a cease and desist order on July 12, 2012. On the day the cease and desist order was issued, the deck was substantially completed except for the installation of the railings. Consequently, while an exact construction date of the deck is unclear, it had to have been completed before the July 12, 2012 date. Following the issuance of the cease and desist order, the plaintiff applied for a variance, was denied, and appealed the denial of his variance request. Section 8-13a provides that the three-year statute of limitations runs " without the institution of an action to enforce such regulation." Our Appellate Court held in Benson v. Zoning Board of Appeals, supra, 89 Conn.App. 332, that " the institution of an action" means the filing of a civil action in court. Additionally, the court in Benson held that administrative appeals to the Superior Court of variance decisions do not constitute the initiation of an action to enforce; id., 333-34; and neither do cease and desist orders. Id., 334-36.
The court also noted that the statute of limitations is not tolled by a zoning board's alliance with a party in variance litigation. Benson v. Zoning Board of Appeals, supra, 89 Conn.App. 331 n.5.
In the present case, the defendant ZBA did not institute an enforcement action through the cease and desist order or the variance appeals involved here. The defendant ZBA never brought an enforcement action against the plaintiff under General Statutes § 8-12 or any other applicable statute. Accordingly, the defendant failed to enforce the setback requirements within the three-year statute of limitations provided by § 8-13a and the deck became a legal nonconforming structure. The second variance application--the one subject of this appeal--was heard and denied by the defendant ZBA at a hearing on July 14, 2015, more than three years after the construction of the deck.
General Statutes § 8-12 provides, in relevant part: " If any building or structure has been erected, constructed, altered, converted or maintained, or any building, structure or land has been used, in violation of any provision of this chapter or of any bylaw, ordinance, rule or regulation made under authority conferred hereby, any official having jurisdiction, in addition to other remedies, may institute an action or proceeding to prevent such unlawful erection, construction, alteration, conversion, maintenance or use or to restrain, correct or abate such violation or to prevent the occupancy of such building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises."
It should be noted that it gives this court great pause that the plaintiff conveniently requested and was granted two continuances of the hearing, placing the hearing date after the three-year statute of limitations had run. In essence, the ZBA is effectively penalized for choosing to cooperate with the plaintiff and allowing him to pursue his other legal remedies, instead of pursuing a civil action and starting to fine the plaintiff as it could have. Unfortunately, as the old adage goes, " No good deed goes unpunished." As convenient as the actions of the plaintiff were and as unfair as the result seems to be to the defendant, the result is one for the legislature to address and not this court.
IV. CONCLUSION
For the foregoing reasons, the court dismisses the plaintiff's appeal. Despite this dismissal and the court's conclusion that the plaintiff failed to prove a hardship, failed to substantiate bias on the part of board member Dussault, and failed to prove that the ZBA acted arbitrarily or illegally in abuse of its authority, the deck is a legal nonconforming structure pursuant to General Statutes § 8-13a.