Opinion
No. MMX-CV-08-4008493 S
November 20, 2009
MEMORANDUM OF DECISION
I. STATEMENT OF APPEAL
The plaintiff, Patrick Gingras, appeals from the decision of the defendant Essex zoning board of appeals (ZBA), which upheld a zoning permit issued to the defendant Trust, LLC (Trust) by the intervening defendant, Marian G. Staye, zoning enforcement agent (ZEA). Specifically, the plaintiff is appealing from the ZBA's decision to deny its appeal from a decision issued by the ZEA that was set forth in correspondence from the ZEA dated January 3, 2008, which stated that revised drawings submitted to her on behalf of Trust were consistent with the Essex zoning regulations and were within the parameters of the original permit issued by the ZEA on July 30, 2007.
The defendant Marian G. Staye's motion to intervene was granted by the court, Holzberg, J., on April 29, 2008.
II. FACTUAL BACKGROUND
Before addressing the issues raised by the parties, a detailed factual recitation is required. The plaintiff is the owner of property located at 8 North Main Street in Essex, Connecticut. The property is a rear lot with narrow frontage along Main Street. Trust is the owner of adjacent property located at 6 North Main Street in Essex, which is the subject of this litigation. The town of Essex adopted zoning regulations pursuant to General Statutes § 8-12 (the regulations). Trust's property is nonconforming as to side and rear yard setbacks. (Return of Record [ROR], Exhibit [Exh.] 6, p. 1.) Prior to improvements, the property contained a one-story structure that was used for retail purposes. On July 6, 2007, Trust, seeking to vertically expand the existing structure, filed an application for a zoning permit to "GO UP A STORY FOR STORAGE AND UTILITY PURPOSES — AND AN OFFICE ASSOCIATED WITH FIRST FLOOR BUSINESS IF ALLOWED." (Emphasis in original.) (ROR, Exh. 6a.) A sketch of the proposed structure was provided at the time of the application's approval and appeared to have one full story and a partial second story with dormers or gables under a peaked roof. (ROR, Exh. 6a.) The permit was granted with the following conditions: (1) "Height not to exceed [thirty-five feet] from peak to roof to the lowest point of the foundation visible above the ground"; (2) "The use is for storage mechanicals only"; (3) "Any expansion for retail will need zoning permit on-site parking"; (4) "Professional office use will require a special exception on-site parking." (ROR, Exh. 6a.)
A copy of the sketch of the proposal, which is attached to the application that was approved on July 30, 2007, was stamped "APPROVED" and signed by the ZEA with the notation, "Height not to exceed [thirty-five feet]." (ROR, Exh. 6a.) A copy of the permit was sent to an old address of the plaintiff and was returned to the ZEA unopened, and thus, was never received by the plaintiff. (ROR, Exh. 6, pp. 1-2.) The plaintiff, however, was aware of the contents of the application and did not appeal the ZEA's approval of the structure as outlined in the original application and drawings. (ROR, Exh. 6, p. 2.)
Thereafter, new architectural drawings and floor plans dated August 25, 2007 were submitted to the ZEA, who reviewed it and informed Trust that they were not in accordance with the permit's condition restricting use of the second floor for "storage mechanicals only" because they depicted what appeared to be offices on the second floor. (ROR, Exh. 6.) Trust then submitted revised architectural floor plans to the ZEA on August 31, 2007, along with revised exterior elevations. The ZEA verbally approved these plans and gave verbal notification of the approval to Trust. (ROR, Exhs. 6 and 6e.) No verbal or written notice of this revised submission nor the increase in height as depicted in the revised drawing was given to the plaintiff. The drawing was not stamped. The original permit itself was not changed in any way by the ZEA.
Trust proceeded to construct a larger structure than that depicted in the original drawing dated August 14, 2007. Thereafter, on September 17, 2007, the plaintiff's prior attorney sent a letter to the ZEA complaining about the construction of a "two-story addition to the subject property," which allegedly entailed demolition of the entire original building and construction of a "three-story structure which completely and utterly block[ed]" his client's "light, air and view." (ROR, Exh. 6d.) The plaintiff also objected to any zoning or building permits being issued for the expansion. (ROR, Exh. 6d.) The first written notice of the verbal approval of the revised plan submitted by Trust was a letter dated January 3, 2008 prepared by the ZEA and addressed to Robbin Myers, managing member of Trust. This letter provides in relevant part as follows:
Based on a conversation that I had with Mr. Noah Myers, a revised drawing for the second floor at 6 North Main Street in Essex was submitted to this office on August 31, 2007 (attached). The updated drawing is by Architect E. Russell Learned, 82 Norwich-Salem Road, Lyme, CT and depicts only two partial bearing walls on the second floor. The drawing met the intent of the permit for the second floor that was approved on July 30, 2007 which was for storage and utilities only and the revised plan received verbal approval.
As already discussed with Noah Meyers, the allowed use for the first floor of the building is retail (based on the historic use of the building); however, the property only has three parking spaces which is less than the number required under the current zoning regulations (6). The use of the property for professional offices will require an approved exception by the Zoning Commission. However, a variance for relief of the parking regulations in order to use the second story for professional offices was denied by the Zoning Board of Appeals on January 16, 2007.
If you have further questions, please contact me.
(Emphasis in original.) (ROR, Exh. 6e.)
Thereafter, by application dated January 11, 2008, the plaintiff appealed from the ZEA's decision, as set forth in her January 3, 2008 letter, to the ZBA as follows:
The Appellant, Patrick Gingras, is appealing the decision contained in the correspondence from Marian G. Staye, Zoning Enforcement Agent, to Robbin [Myers], Managing Member, Trust, LLC, that the drawings submitted by Trust, LLC, to the Zoning Office on August 31, 2007, [are] consistent with the Essex Zoning Regulations. The construction already conducted, even if for the purpose of storage, as set forth in the January 3, 2008, correspondence from Marian Staye to Trust, LLC, is inconsistent with the provisions of Section 40E of the Zoning Regulations which requires that "No change shall be made . . . in the size or shape of any lot or improvement except in conformity with these Regulations." As the existing structure was nonconforming in every respect, the addition of a second story to the structure is an illegal expansion of the nonconforming structure and not permitted under the Zoning Regulations.
(ROR, Exh. 2, p. 3.)
In the interim, on December 1, 2007, a new regulation, referred to as the "Hyde Amendment," was adopted by the Essex zoning commission. This amendment explicitly disallowed the vertical extension of nonconforming structures. (ROR, Exh. 15, p. 27; see also ROR, Exh. 14.) At the time the Hyde Amendment was adopted, Trust had received only verbal approval of its revised plans. (ROR, Exh. 6e.)
A public hearing on the plaintiff's appeal was conducted by the ZBA on February 19, 2008. In addition to addressing the merits of the plaintiff's claims, the ZBA considered the issues of whether the plaintiff's appeal had been taken in a timely manner and whether the January 3, 2008 letter constituted an appealable decision. (ROR, Exh. 12.) After hearing the evidence, the ZBA determined that the January 3, 2008 letter constituted an appealable decision and that the plaintiff appealed it in a timely manner. It noted that while the appeal was filed well after the July 31, 2007 original zoning approval and the August 31, 2007 "verbal approval," the appeal had been filed within 30 days of the January 3, 2008 letter. Therefore, the ZBA determined that the appeal of the ZBA's decision set forth in that letter had been taken in a timely manner.
After conducting the hearing, at which time the ZBA received evidence from the plaintiff, Trust and the ZEA, the ZBA unanimously rejected the plaintiff's appeal, finding that Trust's vertical expansion of the subject building met the applicable regulations in effect at the time of the original application, which permitted the vertical expansion of a nonconforming structure. The ZBA also found that the architectural drawing submitted on August 31, 2007 by Trust was consistent with the regulations in effect at that time. The ZBA also ruled that the January 3, 2008 letter was not in response to a new application but, rather, related to the original application. As a result, the vertical expansion of the structure was permitted and the plaintiff's appeal to the ZBA was denied. The ZBA's record of the vote and the notice of decision state that "[t]he appeal was denied based on the fact that evidence heard at this hearing revealed that the building conforms with the applicable zoning regulations." (ROR, Exh. 9.)
The plaintiff now appeals from the decision of the ZBA to this court. Specifically, the plaintiff claims that he is statutorily aggrieved, pursuant to General Statutes § 8-8, by the decision of the ZBA and that he has standing to appeal from that decision. In addition, the plaintiff also contends that the decision of the ZBA was illegal, arbitrary and capricious in that Trust's plans for the structure showed uses not permitted by the original permit or the January 3, 2008 letter; the Hyde Amendment was in effect on the date the ZEA issued her decision approving the vertical expansion of the property, and, therefore, the Hyde Amendment should have been applied to the property; Trust demolished the entire existing structure and, therefore, lost any benefit it was entitled to as a preexisting, nonconforming structure; the additional space created by the addition to the structure shown on the plans submitted August 31, 2007 required additional parking spaces pursuant to § 110 F.5 of the regulations and no additional plans were shown on the plans submitted; and "[s]uch other violations as the record on appeal may disclose."
In his prayer for relief the plaintiff seeks (1) to have his appeal sustained, (2) to have the decision of the ZBA, denying his appeal of the letter issued by the ZEA, declared void, (3) to have the letter prepared by the ZEA overturned and Trust to be obligated to construct what was originally permitted on the property located at 6 North Main Sweet, and (4) "[a]ny other remedy at law or equity which may appertain."
III. JURISDICTION
General Statutes § 8-8(b) governs appeals from decisions of zoning boards of appeals 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.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
IV. STANDARD OF REVIEW
In considering the issues raised in this appeal, the scope of review is limited. Horn v. Zoning Board of Appeals, 18 Conn.App. 674, 676, 559 A.2d 1174 (1989). The authority of the court is limited by law to the review of the proceedings before the board. The function of the court in such a review is to determine whether the board acted fairly or on valid reasons with the proper motives. Willard v. Zoning Board of Appeals, 152 Conn. 247, 248-49, 206 A.2d 110 (1964). The court is limited to determining whether the record reasonably supports the conclusions reached by the board. Burnham v. Planning Zoning Commission, 189 Conn. 261, 265, 455 A.2d 339 (1983). The court cannot substitute its discretion for the liberal discretion conferred by the legislature on the board. The court is limited to granting relief only when it can be shown that the board acted arbitrarily or illegally and consequently abused its statutory authority. Gordon v. Zoning Board, 145 Conn. 597, 604, 145 A.2d 746 (1958). The burden rests on the plaintiff to prove the impropriety of the board's action. Burnham v. Planning Zoning Commission, supra, 189 Conn. 266. It is not the function of the court to rehear the matter or to question the wisdom of the defendant board in taking the action it did. The court is limited to determining whether or not the board's action can be supported by the law. Bokoff v. Zoning Board of Appeals, Superior Court, judicial district of New London at Norwich, Docket No. 113700 (November 18, 1998, Purtill, J.T.R.).
General Statutes § 8-5(a) provides in relevant part: "In each municipality having a zoning commission there shall be a zoning board of appeals . . ." The powers and duties of a zoning board of appeals are stated in General Statutes § 8-6. This section grants to the zoning board of appeals the authority to determine and vary the application of zoning regulations. "An examination of the provisions of Chapter 124 of the General Statutes, especially § 8-2 . . . and § 8-6, concerning the powers of the boards of appeal, can lead only to the conclusion that the power to vary the ordinance to accommodate practical difficulties and do substantial justice lies exclusively in the board of appeals." Langer v. Planning Zoning Commission, 163 Conn. 453, 457, 313 A.2d 44 (1972).
"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. "(Internal quotation marks omitted.) R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "In appeals from administrative zoning decisions, the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record." (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001).
"Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law." (Emphasis in original; internal quotation marks omitted.) Trumbull Falls, LLC v. Planning Zoning Commission, 97 Conn.App. 17, 22, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006). "Because the interpretation of the regulations presents a question of law, [the court's] review is plenary." (Internal quotation marks omitted.) Id., 21.
"A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it." Doyen v. Zoning Board of Appeals, 67 Conn.App. 597, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002), citing New London v. Zoning Board of Appeals, 29 Conn.App. 402, 405, 615 A.2d 528, cert. denied, 224 Conn. 922, 618 A.2d 528, cert. granted in part, 224 Conn. 921, 618 A.2d 528 (1992) (appeal withdrawn March 18, 1993).
"A reviewing court may not substitute its own judgment for that of the commission. The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached . . . The evidence, however, to support any such decision must be substantial . . . 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 discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty." (Citations omitted; emphasis in original; internal quotation marks omitted.) Clifford v. Planning Zoning Commission, 280 Conn. 434, 452-53, 908 A.2d 1049 (2006). The burden of proof to show that the ZBA acted improperly is on the plaintiff. Village Builders, Inc. v. Town Planning Zoning Commission, 145 Conn. 218, 221, 140 A.2d 477 (1958).
V. DISCUSSION A. Aggrievement
The plaintiff has appealed pursuant to General Statues § 8-8(b), which provides in relevant part that "any person aggrieved by any decision of a board . . . may take an appeal to the superior court . . ." "To establish aggrievement, first, the plaintiff [must allege] facts which, if proven, would constitute aggrievement as a matter of law, and, second . . . [prove] the truth of those factual allegations." (Internal quotation marks omitted.) Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 193 n. 13, 676 A.2d 831 (1996). "Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of the plaintiff's appeal . . . In order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003). A plaintiff may prove aggrievement by testimony at the time of 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).
The court must first review the complaint to determine if the plaintiff has properly alleged aggrievement. "Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665. The standard for statutory aggrievement in appeals from decisions of zoning boards of appeals is set forth in General Statutes § 8-8(a)(1), which provides in relevant part: "[i]n the case of a decision by a . . . zoning board of appeals, `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." As noted above, the plaintiff alleged in his complaint that he is statutorily aggrieved pursuant to § 8-8(a) as an owner of property abutting the land that was the subject of the ZBA's decision. (Complaint, ¶ 28.) Accordingly, he has properly pleaded aggrievement in his complaint.
Next, the court must determine whether the plaintiff has met his burden of proving this allegation. Evidence on the subject of aggrievement at trial, including the plaintiff's testimony, confirmed that the plaintiff is the owner of property located at 8 North Main Street in Essex and that his property abuts the property that is the subject of this appeal located at 6 North Main Street in Essex. The court finds, therefore, that the plaintiff is statutorily aggrieved and has standing to prosecute this appeal.
B. Timeliness and Service of Process
Pursuant to General Statutes § 8-8(b), an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes."
General Statutes § 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 . . ."
In its brief, Trust addresses the procedural and jurisdictional issues arising from the plaintiff's appeal to the board, including the timeliness of the plaintiff's appeal. As previously noted, the plaintiff appealed the letter of the ZEA dated January 3, 2008 and the ZBA allowed the appeal to proceed. Relying on Bosley v. Zoning Board of Appeals, 30 Conn.App. 797, 800, 622 A.2d 1020 (1993) (affirming trial court's dismissal of appeal from zoning board of appeals decision upholding decision of zoning enforcement officer where appeal to zoning board of appeals was untimely), Trust argues that the plaintiff's appeal to the board was untimely and, therefore, the board was without jurisdiction to hear it. Trust further argues that the plaintiff had "actual or constructive notice" of Trust's construction as evidenced by the letter of the plaintiff's prior attorney dated September 17, 2007, and, therefore, it cannot claim that it had no reasonable means of discovering the ZEA's verbal approval of the plans submitted on August 31, 2007. Trust notes that General Statutes § 8-6 authorizes an appeal to the board "where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provision of this chapter . . ." Trust notes that nothing in the statute requires the order or decision to be written. Therefore, Trust contends that under General Statutes § 8-7, the appeal period commences "upon actual or constructive notice of such order, requirement or decision." Trust further argues that because the plaintiff believed that the construction was unlawful, ordinary diligence and prudence would have caused him to seek a statement from the ZEA as to why it was being allowed to proceed. Because he did not do so, Trust contends, the appeal period should not have been extended indefinitely.
The question of whether the letter written by the ZEA is a decision under General Statutes § 8-7 and § 140G.1 of the regulations is an issue of law. See Holt v. Zoning Board of Appeals, 114 Conn.App. 13, 18 (2009) (question of whether a letter written by a zoning enforcement officer is a decision under General Statutes § 8-7 and § 8.10.2 of the Stonington zoning regulations is an issue of law). "[T]he determination of whether the action of a zoning enforcement officer amounts to a decision appealable under § 8-7 depends on the particular facts and circumstances of each case." Id., 20. Section 140G of the regulations provides in relevant part: "The Zoning Board of Appeals following powers and duties: . . . To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the [ZEA] . . ." (ROR, Exh. 13, p. 172.) In Munroe v. Zoning Board of Appeals, 261 Conn. 263, 802 A.2d 55 (2002), the Supreme Court specifically overturned its prior decisions that limited appeals of zoning enforcement officers to a set number of days without regard to notice. The court acknowledged that "without notice that a decision has been reached the right to appeal from that decision is meaningless." Id., 271, quoting Loulis v. Parrott, 241 Conn. 180, 194, 695 A.2d 1040 (1997). The court allowed an appeal from the point of actual notice. Munroe v. Zoning Board of Appeals, supra, 261 Conn. 272. In response, the legislature amended General Statutes § 8-3(f) to allow an applicant to provide notice of certification that a property complies with the zoning regulations, and amended § 8-7 to provide that the appeal period "shall commence for an aggrieved person at the earliest of the following: (1) Upon receipt of the order, requirement or decision from which such person may appeal, (2) upon the publication of a notice in accordance with subsection (f) of section 8-3, as amended by this act, or (3) upon actual or constructive notice of such order, requirement or decision." Public Acts 2003, No. 03-144.
Section 121 of the regulations addresses the granting of zoning permits by the ZEA. Section 121F provides in relevant part that "[e]ach Zoning Permit granted shall be embodied in a writing which shall: (1) specify the name of the record owner or owners of the premises with respect to which it is granted, (2) specify the tax map lot number or numbers of said premises, and (3) describe in detail the particular improvement or change authorized. Said writing shall be signed by the [ZEA]." (ROR, Exh. 13, pp. 159-60.) Section 121I specifically requires that "[w]ritten notification of issuance of a Zoning Permit shall be mailed on the date of the issue of the Zoning Permit to adjacent property owners listed by the applicant on the Zoning Application." (ROR, Exh. 13, pp. 160.) General Statutes § 8-3(f) provides in relevant part that "[n]o building permit or certificate of occupancy shall be issued for a building, use or structure subject to the zoning regulations of a municipality without certification in writing by the official charged with enforcement of such regulations that such building, use or structure is in conformity with such regulations or is a valid nonconforming use under such regulations . . ."
The court finds that the letter from the ZEA dated January 3, 2008, was an appealable "decision" and that the plaintiff's appeal of the letter, therefore, was timely. This letter constituted a written approval of the revision sought by Trust in August 2007. The August 31, 2007 "verbal" decision of the ZEA was not in writing, and, therefore, no detail or description of the "change" was transmitted to the adjacent property owners. The court does not find merit in Trust's contention that the plaintiff had constructive notice of the verbal approval in light of the record evidence indicating that the plaintiff never received a copy of the original permit in addition to not receiving written notification of the verbally approved "revision to approved zoning permit." The first written indication to the plaintiff that Trust's revised plans had been approved by the ZEA was the January 3, 2008 letter. Therefore, the plaintiff's appeal of that letter, which was brought to the ZBA on January 11, 2008 (ROR, Exh. 2), was timely.
With regard to the plaintiff's appeal of the ZBA's decision to the Superior Court, the court notes that this appeal was commenced by service of two copies of process on the Essex town clerk on March 4, 2008, which was within fifteen days from the date that the ZBA published notice of its decision in the Hartford Courant on February 21, 2008. Service of process, therefore, was executed in accordance with the requirements of General Statutes § 8-8(b) and (f)(2) and General Statutes § 52-57(b)(5). Accordingly, the court finds that the appeal is timely and that service of process was proper.
C. Issues Raised:
(1) Did the Hyde Amendment preclude the ZEA's decision approving the vertical expansion of the structure?
(2) Was the structure removed or demolished, thus losing its status as a preexisting, nonconforming structure?
(3) Was the decision of the ZBA illegal, arbitrary and capricious because Trust's revised plans for the structure reflected uses not permitted in the original permit?
(4) Did the additional space created by the revised elevation of the structure as reflected in the plans of August 31, 2007 require additional parking spaces pursuant to § 110F.5 of the regulations?
D. Analysis
At the outset, the court notes that a threshold issue in this appeal is whether the evidence presented to the ZBA showed that the revised plans submitted by Trust in August 2007, constituted a new application or were within the scope of the original permit granted by the ZEA on July 30, 2007. The record shows that the revised plans submitted by Trust reflected a design that deviated from the architectural drawing that was submitted with the original application in July 2007. This is supported by the drawings themselves (see ROR, Exhs. 6a and 6f), as well as the ZEA's characterization of the revised submission as "revision to approved zoning permit." The record also reflects that Trust began construction of a somewhat larger structure than was depicted in the drawing submitted with the original permit application. (See ROR, Exh. 8 [photographs of building during renovations]; Exh. 12, p. 37 [testimony of Noah Myers that the difference in height between the original design approved with the original application and the revised plans is an increase of "about three feet"].) The revised architectural drawing of the structure submitted in August 2007, depict a larger structure than what had been proposed in the original application. (ROR, Exh. 6f.) It was this "revision" that was given verbal approval by the ZEA without notification to the plaintiff.
Trust argues that no additional permit was necessary because the plans submitted in August 2007, were within the scope of what the ZEA had previously approved on July 30, 2007, that is, the height did not exceed thirty-five feet and the other stated conditions of that permit were met. Thus, the issue is whether the structure depicted in the plans that were verbally approved in August 2007, conformed to the original permit. There was no formal written request for change to the original approved zoning permit, only the submission of the revised drawings, and those revised drawings clearly deviated from the original drawing by redesigning the second floor and the roof and by adding additional height to the structure. Nevertheless, although these plans were not the same as those submitted with the original application, the original permit did not condition approval on conformity with the drawing submitted. To the contrary, the ZEA's approval specified four conditions, only one of which pertained to the design of the structure. That condition required that the height was "not to exceed [thirty-five feet] from the peak of the roof to the lowest point of the foundation visible above the ground . . ." (ROR, Exh. 6a.) If the approval were conditioned also on strict conformity with the attached architectural drawing, this condition would have been superfluous and misleading. Also, the record reveals that the original drawing was hand drawn and was not to scale (ROR, Exh. 12, p. 37 [testimony of Noah Myers]), thus, strict conformity with it would have been impossible. Moreover, the ZEA has demonstrated her ability to attach conditions to her issuance of a zoning permit, and chose not to impose such a condition, although she imposed others. For these reasons, the ZBA's implicit conclusion that the revised plans submitted in August 2007, were within the scope of the original permit is supported by substantial evidence in the record.
Section 121, Zoning Permits states in pertinent part:
121A. PERMIT REQUIRED.
Whether or not a special exception or a variance has been granted therefore, the issuance of a Zoning Permit shall be required before:
121A.2. Changes in Improvements. Commencement of enlargement or exterior alteration of any improvement other than an accessory improvement which is neither a building nor a sign; . . .
121C. SUBMISSION OF APPLICATION.
A complete application shall consist of the application form and filing fee prescribed by the Commission and all documents and statements required to accompany the form. Each application form and accompanying documents and statements shall be delivered, in triplicate to the Zoning Enforcement Agent. The date of receipt by him of a complete application shall be deemed to be the date of submission of such application.
If the revised plans had not fallen within the scope of the original permit, it is clear from these provisions that such a revision would constitute an "enlargement or exterior alteration of any improvement" beyond that which was allowed under the original permit, and would, therefore, require a new permit. If the revised plans submitted to the ZEA in August 2007, had constituted an application for a new permit, Trust failed to give the proper notice of said application to the plaintiff. Nevertheless, in light of the court's determination that the revised plans did not exceed the scope of the original permit and, therefore, did not require a new permit, the ZBA did not abuse its discretion in concluding the vertical expansion of the structure that had already been permitted by the ZEA under the original permit and, therefore, the plaintiff did not require notice of the revision.
Nevertheless, the court must determine whether the ZBA's determination that the revised plans conformed to the regulations. Specifically, the court must determine whether the Hyde Amendment precluded the ZEA's decision approving the vertical expansion of the structure; whether the structure was removed or demolished, thus losing its status as a preexisting, nonconforming structure; whether the decision of the ZBA was illegal, arbitrary and capricious because Trust's revised plans for the structure reflected uses not permitted in the original permit; and whether the additional space created by the revised elevation of the structure as reflected in the plans of August 31, 2007 required additional parking spaces pursuant to § 110F.5 of the regulations. These issues will be addressed in turn.
(1) Whether the Hyde Amendment Precluded the ZEA's Decision Approving the Vertical Expansion of the Structure.
Turning to the plaintiff's argument that the Hyde Amendment to the regulations was in effect on the date that the ZEA issued her decision approving the vertical expansion of the structure of on the subject property on January 3, 2008, Trust contends that the record shows that the Hyde Amendment was not in effect as of the date of its original application in July 2007, nor was it in effect at the time of its submission of the revised plans in August 2007. The plaintiff contends that because Trust did not comply with the regulations when seeking its revision to the original permit, the application was not properly filed and, therefore, the relevant date for determining whether the Hyde Amendment applies to Trust's application is January 3, 2008.
As previously stated, the zoning regulations of the town of Essex were amended, effective December 1, 2007, to explicitly prohibit the vertical expansion of a nonconforming structure. Known as the "Hyde Amendment," § 50D was amended to provide in relevant part: "Where an existing building or structure is nonconforming with respect to a setback or setbacks an increase in height of that portion of the building or structure which does not conform with the required setback shall constitute an impermissible enlargement, extension or expansion of a nonconforming characteristic." (ROR, Exh. 13, p. 1, and Exh. 15, p. 27.) The original permit sought by Trust was approved on July 30, 2007, before the Hyde Amendment went into effect. The revised plans submitted by the defendant Trust in August 2007, and verbally approved by the ZEA also predate the Hyde Amendment. It is clear, and the plaintiff concedes, that the date that the application was filed, and not when the application was approved, determines whether the Hyde Amendment applies to Trust's application. See General Statutes § 8-2h(a) (zoning applications filed prior to change in zoning regulations not required to comply with change). As previously noted, the ZBA considered the revised plans to be a "revision." Therefore, at the latest, the regulations in force at the time the revised plans were submitted would apply. Although the "revision" did not comply with the formal application requirements of §§ 121C and 121D of the regulations, which require an application form, filing fee, as well as other documents and statements (ROR, Exh. 13, p. 158), and the record does not contain any evidence showing that all of the items enumerated in those sections were submitted to the ZEA with the revision, a review of the regulations does not reveal any regulatory requirement that such documents be submitted with a mere "revision" to an existing application. Moreover, the plaintiff has offered no authority to support this argument. Therefore, the court finds that although there was no formal application submitted in connection with the revised plans, the record does not support a finding that the final structure that was built constitutes an "impermissible enlargement, extension or expansion of a nonconforming characteristic," in violation of the Hyde Amendment. The Hyde Amendment simply does not apply because it went into effect several months after all application materials were submitted, even if the date that the revised plans were submitted to the ZEA were treated as the relevant filing date. The plaintiff has offered no legal authority to support his argument that the date of the ZEA's written notification of her approval requires the plans to conform with the Hyde Amendment, and research reveals none. Further, the plaintiff's claim that the revised plans were not properly approved because they required a new formal application with all required materials associated therewith was not raised in its appeal to the ZBA and, therefore, may not be considered in this appeal of the ZBA's decision. See Goulet v. Zoning Board of Appeals, 117 Conn.App. 333, 343 n. 11, 978 A.2d 1160 (2009) (refusing to consider an argument because it was raised for the first time on appeal).
General Statutes § 8-2h(a) provides: "An application filed with a zoning commission, planning and zoning commission, zoning board of appeals or agency exercising zoning authority of a town, city or borough which is in conformance with the applicable zoning regulations as of the time of filing shall not be required to comply with, nor shall it be disapproved for the reason that it does not comply with, any change in the zoning regulations or the boundaries of zoning districts of such town, city or borough taking effect after the filing of such application."
For all of these reasons, the appeal is not sustained on the ground that the Hyde Amendment precluded the ZEA's decision approving the vertical expansion of the structure, as Trust's application was filed prior to the adoption of the Hyde Amendment and, therefore, could not have been required to comply with it.
(2) Whether the Structure Was Removed or Demolished, Thus Losing its Status as a Preexisting, Nonconforming Structure.
For the reasons discussed below, the court finds that the plaintiff did not meet his burden of proof concerning his allegation that the subject premises were "demolished" as the result of the construction and that even if such evidence had been produced, such demolition would not, without evidence of an intent to abandon the nonconformity, support the conclusion that Trust lost its rights to the nonconformity.
The plaintiff argues that the record shows that the original structure on the subject property was removed prior to the construction of the building now present on the lot and that any rights Trust had to the nonconforming aspects of the property were lost when the original structure was removed. In support of this argument, the plaintiff argues that the regulations allow nonconforming structures to be reestablished only if they are destroyed in a "calamity" and that any new structure, therefore, would be required to comply with all applicable zoning regulations.
Trust counters that the plaintiff has failed to meet his burden of establishing that the building was demolished. It points out that the only evidence presented by the plaintiff at the public hearing was his own speculative testimony, which consisted in relevant part of the following:
With regard to the foundation, to the best of our knowledge, because we never actually went over to the property to look at the details inside, but what was done to our knowledge, was that the entire building was knocked down. Now the foundation I believe actually goes up on at least two out of three sides. The house, just like my house is built into a hill so I think what Noah is claiming as keeping a wall is actually a foundation. At least that's our interpretation. I know they had to get down to the foundation to reinforce it. I don't have the specific building plans but I believe that there are plans in the building office which show that the foundation had to be reinforced . . .
(Emphasis added.) (ROR, Exh. 12, pp. 46-47.) Trust further maintains that the six photographs submitted by the plaintiff similarly fail to support his claims that the building was demolished. (See ROR, Exh. 8 [six photographs depicting various views of the exterior of the subject property during construction, none of which show that the building was removed].) Trust argues that the record contains substantial evidence demonstrating that the building was not removed. It notes that it presented testimony at the public hearing that the building was not demolished. Specifically, Noah Myers testified:
Now the other thing is anybody who wants to go out there tomorrow and see the sheet rock ____ inside of the old building is a hundred and something years old ____ not demolished. There are three of the original four walls. Now the front of there is going to have a brick and granite facade structurally that wall had been taken out because the old wall wouldn't support brick and stone.
(ROR, Exh. 12, p. 34.) Myers further testified:
The walls that I refer to that are over one hundred years old is horizontal siding. Then there was at least one layer, possibly even two of clapboard. So those exterior _____ plywood and new siding was put on and if you go inside the building right now you can see again the old, horizontal siding. You can see that it must not have been demolished. Implying that two of the walls are concrete, _____ doesn't make much sense . . .
(ROR, Exh. 12, p. 51.) The court agrees with Trust's argument that this testimony constitutes substantial evidence in the record to support the ZBA's determination that the building was not demolished, and the plaintiff has not offered any record evidence beyond his own speculation that the building was demolished or removed. Moreover, "[t]he credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [ZBA] . . . The question is not whether the trial court would have reached the same conclusion . . . but whether the record before the [ZBA] supports the decision reached." (Internal quotation marks omitted.) Hayes Family Ltd Partnership v. Town Plan Zoning Commission, 115 Conn.App. 655, 660, 974 A.2d 61 (2009). For these reasons, the appeal cannot be sustained on this basis.
Moreover, "[o]nce a nonconforming use is established, the only way it can be lost is through abandonment." Taylor v. Zoning Board of Appeals, 65 Conn.App. 687, 783 A.2d 526 (2001). "Abandonment is a question of fact which implies a voluntary and intentional renunciation. Nevertheless, the intent to abandon may be inferred as a fact from the circumstances . . . The mere discontinuance of a use where there is no intent to abandon is not enough . . . To establish abandonment, the intention on the part of the owner [must be] to relinquish permanently the nonconforming use." (Emphasis added; internal quotation marks omitted.) Smith Bros. Woodland Management, LLC v. Zoning Board of Appeals, 108 Conn.App. 621, 629, 949 A.2d 1239 (2008), appeal dismissed, 293 Conn. 778, 980 A.2d 316 (2009). In the present case, even if the evidence in the record had established that the original nonconforming structure had been completely demolished or removed, the record does not contain any evidence from which an inference could be drawn to suggest that the plaintiff intended to relinquish permanently the nonconforming use. To the contrary, the evidence shows that any such demolition, if it had occurred at all, would have been for the purpose of retaining, enhancing and vertically expanding that nonconforming use. For all of these reasons, the appeal is not sustained on the ground that Trust gave up its right to its nonconformity by removing the existing structure.
(3) Whether the Decision of the ZBA Was Illegal, Arbitrary and Capricious Because Trust's Revised Plans for the Structure Reflected Uses Not Permitted in the Original Permit.
The plaintiff has not met its burden of proof with regard to its contention that the permit allowed offices on the second floor. The July 30, 2007 permit clearly allowed "storage mechanicals only" above the first floor. (ROR, Exh. 6a.) There is nothing in the ZEA's January 3, 2008 letter that contradicts or changes those conditions (see ROR, Exh. 6e), nor did the plaintiff present any evidence or testimony at the time of the hearing to show otherwise. Accordingly, the appeal is not sustained on this basis.
(4) Whether the Additional Space Created by the Revised Elevation of the Structure as Reflected in the Plans of August 31, 2007, Required Additional Parking Spaces Pursuant to § 110f.5 of the Regulations.
Similarly, the plaintiff did not meet his burden of proof regarding the issue of whether the additional space created by the revised elevation of the structure as reflected in the plans of August 31, 2007, required additional parking spaces pursuant to § 110f.5 of the regulations, as no testimony or evidence on this issue was presented to the ZBA. The plaintiff's written appeal to the ZBA did not raise this issue. Further, the plaintiff failed to address the issue of parking during the hearing before the defendant ZBA. Therefore, the court will not sustain the appeal on this ground.
VI. CONCLUSION
For the foregoing reasons, the appeal is dismissed.