Opinion
No. CV01 0183938 S
January 20, 2004
MEMORANDUM OF DECISION
Procedural History
The plaintiff appeals from a decision of the Planning and Zoning Board of Appeals of the Town of Greenwich (hereinafter "Board") upholding a cease and desist order issued by the Zoning Enforcement Officer of The Town of Greenwich (hereinafter "ZEO") for property located at 701 West Putnam Avenue in Greenwich, Connecticut (hereinafter, "the property"). The cease and desist order was issued by the ZEO, Mr. Maloney on November 29, 2000. ROR 3(b)(6). The basis for the cease and desist was that the plaintiff's use of the property to park, repair, garage oil delivery trucks and to repair said trucks was a change in the nonconforming use approved by the Zoning Commission in 1992. ROR 3(b)(5), 3(b)(6). The Property is located in a residential R-6 Zone. ROR 1. On December 28, 2000 the plaintiff appealed the cease and desist to the Board. ROR 1, ROR 3(b)(6). The Board conducted a public hearing on the appeal on April 11, 2001. ROR 6. On April 23, 2001 the Board issued a decision letter denying the appeal. ROR 8. The stated reason for denial was as follows: "the applicant's use of the property is not in compliance with the approved site plan which authorizes repair of motor vehicles but not garaging or storage of motor vehicles for other purposes." ROR 8. The Board published its decision in The Greenwich Time on April 23, 2001. The plaintiff filed a timely appeal on May 3, 2001.
Statement of Facts
The plaintiff's property is located in an R6 zone which allows multifamily housing on 7,500 square foot lots. ROR 14, Building Zone Regulations, Town of Greenwich, § 6-2. The property abuts Route 1 and a commercial zone paralleling the highway. There are numerous commercial properties in the immediate vicinity of the property. ROR 9, 10, 11.
The property has had an interesting use history. The building located on the property was constructed in 1947 and used by the Interstate Artesian Well Company. The use was intensive with approximately 23 employees and 40 construction vehicles which were stored and dispatched from the premises. A refuse company also stored and dispatched its vehicles from the property. ROR 3E. Transcript, April 11, 2001 at 62. In 1992 an application was filed with the Planning and Zoning Commission to change the current non-conforming use from the artesian well business to a public auto repair and service business. ROR 3(b)(5). That application was granted on the basis that the change in use would not be more detrimental to the neighborhood and in fact might be less detrimental. ROR 3(b)(5). Greenwich Municipal Code § 6-141(b)(1). The purchaser at that time, Auto Excellence, applied for and obtained site plan approval for this change in use. Transcript, 4/11/01 p. 62. Pursuant to site plan approval, Auto Excellence obtained general repairer's licenses to conduct their business. Transcript, 4/11/01 p. 63.
In 1995, the plaintiff considered purchasing the property to store her vehicles overnight and to repair said vehicles in the course of her business. Transcript, 4/11/01 pp. 64-65. When she negotiated the contract of purchase, the attorney representing her placed a contingency in the contract requiring governmental, i.e., municipal approval for her intended use, the repair on the property of trucks and storage of said trucks overnight. Transcript, 4/11/01 p. 65. In furtherance of purchase for her intended use, the plaintiff hired Mr. Jim Sandy to investigate the legitimacy of her intended use and/or to acquire the necessary permits to ensure the use prior to signing the contract of purchase. Transcript, 4/11/01 p. 65. Mr. Sandy has a master's degree in urban studies. Transcript, 4/11/01 p. 66. From 1973 to 1995 Mr. Sandy was the town planner for the Town of Greenwich and is currently a land use consultant. Transcript, 4/11/01 p. 66.
Mr. Sandy testified at the public hearing that he was hired in 1995 by the plaintiff's attorney, prior to purchase to determine if Mrs. Cortese could use her property as intended. Mr. Sandy met with Mr. Maloney in September and October 1995 to discuss the intended use. He then prepared a letter for Mr. Maloney's signature. That letter was dated November 20, 1995. Transcript, 4/11/01 pp. 67-68.
The letter clearly states, in pertinent part:
2. It is not the intent to store large oil trucks outside but to keep them inside the building. The intent of New England Oil is that large trucks would be outside when they are awaiting repair or service, and the only vehicles that will be on site will be employee vehicles and those awaiting repair.
Plaintiff's Ex. 3.
The letter however also states: "My client New England Oil intends to purchase the property and use it in conformance with the approved site plan." (Emphasis added.) The letter from Mr. Sandy then concludes: "If you agree that this is what we discussed in reference to the above mentioned property, please sign below in the space provided." Mr. Maloney signed in the space and dated his signature November 27, 1995. Plaintiff's Ex. 3.
Mrs. Cortese relied upon this letter to indicate that she could purchase the property and use it as she intended. She purchased the property in 1996 for the sum of six hundred fifty thousand dollars ($650,000.00). (Testimony, Mrs. Cortese.) From 1996 to 2002, the plaintiff conducted her business on the property.
In 2000, the Commission reviewed an application by the plaintiff for a site plan and special permit application to construct housing units and office space. ROR 3(b)(5). The Commission denied both applications. The plaintiff appealed the denials. The Court (Munro, J.) consolidated the appeals and issued a decision, Cortese v. Zoning Board of Appeals, 2002 WL 31236216. In that decision the Court affirmed the decision of the Commission finding that the plaintiff's use of the property to garage trucks constituted a change in use from the previously approved special permit use as an automobile repair facility and the Commission's further finding "no records granting approval for the New England Oil Company to occupy this site." ROR 3(b)(5). Subsequent to this decision, the ZEO issued the cease and desist in November 2002.
At the public hearing the ZEO testified at length as to what he thought he was approving by signing Mr. Sandy's letter. His chief focus of the hearing appears to be the use of property as a depot. Transcript, 4/11/01 pp. 79-85. He did not specifically recall conversations involving storage of vehicles. He did reiterate that ". . . it will be used in conformance with the approved site plan. The approved site plan was not for the storage of oil trucks to be dispatched as a prior with an oil delivery business. It was to fix trucks . . ." Transcript, 4/11/01 p. 85.
There is an apparent inconsistency between what Mr. Maloney thought he was approving and the intended use of the plaintiff as described by Mr. Sandy. The letter compounds the confusion by stating first that the use will be in conformance with the approved plan and later stating in #2 the intent to store trucks in the building. The Court must determine whether the ZEO made an honest error in judgment invoking the doctrine of honest error or whether the facts and proof invoke the doctrine of municipal estoppel. R. Fuller, 9 Conn. Practice Series, Land Use Law and Practice (1993) § 41.5, p. 308 § 53.1 p. 571.
Standard of Review
In an appeal from the decision of a zoning enforcement officer to the zoning board of appeals under Conn. Gen. Statutes §§ 8-6(a) and 8-7, the board determines if the zoning regulations were properly interpreted and applied. Osterberg v. Seymour Zoning Board of Appeals, 1990 WL264571, 3 Conn. L. Rptr. 538 (1990). "Where the decision of a zoning board of appeals is appealed to the Superior Court, the Court is restricted to determining whether the board's findings are reasonably supported by the record and whether any of the reasons for denial were valid ones for the board's action; the Court cannot make its own determination on questions of fact and substitute its judgment for the findings of the board." Osterberg, supra, citing Horn v. Zoning Board of Appeals, 18 Conn. App. 674, 677, 679 (1989). The record in this case clearly supports the Board's finding that the plaintiff's use of the property was not in conformance with the 1992 approved site plan. (See also Cortese v. Zoning Board of Appeals, 2002 WL 31236216, *7 p. 6, *8, p. 7, Munro, J.) The sole issue on appeal is whether the doctrine of honest error or the defense of estoppel would apply thereby precluding the Town of Greenwich from enforcing the cease and desist issued by the ZEO and upheld by the ZBA. The Court holds that the doctrine of municipal estoppel applies to the facts of this case.
Honest Error and Estoppel. CT Page 1049
The doctrine of honest error occurs when "the municipal official in good faith and within the scope of his duties makes an erroneous and debatable interpretation of the ordinance and the property owner in good faith relies upon it, there is estoppel against later revocation of the permit . . ." R. Fuller, 9 Conn. Practice Series, Land Use Law and Practice (1993) § 41.5 p. 308. "It is only when the municipal agent acts in good faith within the scope of this authority, but in error, that the occasion for invocation of estoppel can arise." (Internal footnote and citations omitted.) West Hartford v. Rechel, 190 Conn. 122 (1983). The doctrine of honest error is inapplicable here. The ZEO did not make an erroneous interpretation of a zoning regulation resulting in the issuance of a permit upon which the plaintiff relied. The ZEO merely signed a letter indicating that the intended use was as discussed. The ZEO testified that he did not realize, despite the letter, that the plaintiff would garage her trucks on the property overnight or use the property as a depot. Transcript, 4/11/01 pp. 79-85. The Court now considers the doctrine of municipal estoppel.
In West Hartford v. Rechel, 190 Conn. 114 (1985) the Court summarized the requirements to establish the defense of municipal estoppel.
This court has recently restated the law of municipal estoppel. In Zoning Commission v. Lescynski, 188 Conn. 724, 731-32, 453 A.2d 1144 (1982), we held that, in special circumstances, a municipality may be estopped from enforcing its zoning regulations. We recognized that estoppel always requires" proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. Bozzi v. Bozzi, 177 Conn. 232, 242, 413 A.2d 834 (1979); Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 353, 365 A.2d 1093 (1976); Pet Care Products, Inc. v. Barnett, 150 Conn. 42, 53-54, 184 A.2d 797 (1962)." Zoning Commission v. Lescynski, supra 731. In municipal zoning cases, however, estoppel may be invoked "(1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or [o]ppressive to enforce the regulations. Dupuis v. Submarine Base Credit Union, Inc., supra, 354." Id., 732; see also 8A McQuillin, Municipal Corporations (3d Rev. Ed. 1976) 25.349; 9 McQuillin, supra, 27.56; 3 Rathkopf, Law of Zoning and Planning (4th Ed. 1982) 45.05[1][b].
West Hartford v. Rechel, supra, p. 121.
In the present proceeding the plaintiff has proved the first two essential elements. The ZEO, Mr. Maloney, signed off on the letter provided by Mr. Sandy, the land consultant hired by the plaintiff to ensure that she could use the property as intended prior to her purchase. She relied on that letter before committing to purchase. Mr. Maloney as the ZEO was the proper person to determine if the intended use was permitted. West Hartford v. Rechel, supra at 122. Mr. Maloney was therefore, "an agent [of the Town] having authority in such matters." Zoning Commission v. Lescynski, 188 Conn. 724, 732 (1982). By signing the letter drafted by Mr. Sandy, the ZEO did something "intended to induce" another party to believe that certain facts exist and to act on that belief, and the other party must change its position in reliance on those facts, thereby incurring some injury. West Hartford, supra at 121.
Further, "Inducement for the purposes of estoppel requires a mental state which is a general intent to act rather than a special intent to mislead. It is sufficient if actions are taken with an awareness that they would be relied upon . . ." West Hartford v. Rechel, 190 Conn. 114, 124 (1983). Clearly, Mr. Maloney was aware that Mr. Sandy requested his signature to confirm the use intended prior to the plaintiff's purchase of the property. There is no doubt in the Court's mind that Mrs. Cortese relied on that letter. The contingency of approval was a condition of her contract to purchase. Transcript, 4/11/01 p. 65.
Finally the Court recognizes that the doctrine of municipal estoppel is only to be invoked "with great caution" and when "some special circumstances make it highly inequitable or oppressive to enforce the regulations" (internal citations omitted). West Hartford v. Rechel, 190 Conn. 114, 121 (1983).
The Court is satisfied that the enforcement of the cease and desist on this property would be inequitable and oppressive. Mrs. Cortese purchased the property in 1996 and has used it uninterrupted until 2002. She paid the sum of six hundred fifty thousand ($650,000.00) dollars for the property. This amounts to a substantial loss for the purpose of establishing municipal estoppel. Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 639-41 (1994).
Conclusion
For the reasons stated above, the Court sustains the plaintiff's appeal.
THE COURT
MARYLOUISE S. BLACK, JUDGE