Opinion
CV166059045S
03-13-2017
O& G Industries, Inc. v. Bridgeport Zoning Board of Appeals
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Dale W. Radcliffe, J.
FACTS
The Plaintiff, O& G Industries, Inc., is the owner of a 5.51-acre parcel known as 1225 Seaview Avenue, Bridgeport. The property is situated on the east bank or Yellow Mill Pond, north of Interstate 95 on Seaview Avenue. It is opposite the southbound entrance to I-95, and to the north and east of the development known as Steel Point. (ROR 30.)
Since 2009, 1225 Seaview Avenue has been located in a Mixed Use Light Industrial (MU-LI) Zone. When O& G Industries purchased the site in 1994, (ROR 21) the zoning classification was Light Industrial (I-LI).
Prior to its purchase by O& G Industries, 1225 Seaview Avenue was owned by The Walker Group, and was leased to Jacob Brothers, Inc. In 1988, Jacob Brothers, Inc. sought a variance from the Bridgeport Zoning Board of Appeals, to " permit the establishment and enlargement of an existing nonconforming use to permit the establishment of a Motor Vehicle Junk Yard use and the installation of an Auto Flattener in connection with the existing nonconforming scrap metal yard use." (ROR 42.) Simultaneously, Jacob Brothers sought coastal site plan review by the Zoning Board of Appeals, as required by the Coastal Management Act. (ROR 25.) Coastal Area Management (CAM) approval was required, because the parcel abuts Yellow Mill Pond.
The Bridgeport Zoning Board of Appeals approved the requested variance, subject to two conditions (ROR 43):
1. The development of the subject property shall be substantially in accord with the plans submitted.
2. The petitioner shall file an application with the Zoning Commission seeking to establish a motor vehicle junk yard license.
A scrap metal yard is considered to be a heavy industrial use of the property. Therefore, a use variance was required. In support of the use variance (ROR 43) the Zoning Board of Appeals made specific findings in granting the Jacob Brothers' application:
1. There is a critical need for such a use in the City of Bridgeport.
2. The establishment of a motor vehicle junk yard as an additional use of the site, which is presently used as a scrap metal yard, would not be a further detriment to the area.
Although the Zoning Board of Appeals deferred to the Bridgeport Zoning Commission to render a final decision on the Coastal Site Plan which was to be submitted (ROR 43), the board made findings specific to the site, and the proposed activity:
1. The granting of the application will not affect any water dependent use that presently exists on the site that utilizes water-borne transportation activities.
2. By placing the premises under the jurisdiction of regulatory agencies, the ability to lessen potential or existing adverse impacts on the coastal area to a more acceptable level will be established.
O& G Industries, Inc. took title to 1225 Seaview Avenue via a warranty deed, which was recorded at Volume 3351, Pages 301-02 of the land records of the City of Bridgeport on January 5, 1995. (ROR 21.)
Prior to January 5, 1995, O& G Industries was the record owner of a neighboring property known as 1121-1125 Seaview Avenue. The property was purchased in approximately 1990. (ROR 45, p. 26.)
On November 2, 1994, O& G Industries filed an application with the Bridgeport Planning and Zoning Commission, seeking site plan and coastal management approval for its use of 1121-1125 Seaview Avenue. The proposed use involved the crushing and stockpiling of concrete slabs, bituminous concrete, cement blocks, brick and masonry. (ROR 44, p. 2.)
Following a public hearing, held on January 9, 1995, the Bridgeport Planning and Zoning Commission approved O& G's application for Coastal Site Plan Review. Six individuals appealed the approval. (ROR 44.)
O& G Industries, Inc. moved to dismiss the appeal, and it was found that no Plaintiff could satisfy the test for either statutory or classical aggrievement. However, the Plaintiffs were allowed to proceed, and subject matter jurisdiction was found, based on a claim that the O& G proposal would have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state, pursuant to Section 22a-19 of the General Statutes.
Section 22a-19, C.G.S.--" (a) In any administrative, licensing or other proceeding, and in any judicial review thereof made available by law, the Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may intervene as a party on the filing of a verified pleading asserting that the proceeding or action for judicial review involves conduct which has, or which is reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state."
In May of 1996, the appeal was dismissed. (ROR 44.)
When O& G Industries, Inc. took title to 1225 Seaview Avenue in 1995, the crushing, storing and stockpiling of concrete, brick and masonry, was not listed as a permitted use, pursuant to Chapter 12, section 3, of the applicable regulations, (ROR 23, p. 25-26) in a light industrial (I-LI) zone.
After purchasing the property from the Walker Group, the new owner discontinued the scrap metal and motor vehicle junkyard operation which had been conducted by Jacob Brothers.
O& G maintains that it began processing asphalt and concrete products at 1225 Seaview Avenue in 1998. (ROR 48, p. 36.) However, there is some indication that concrete and other material had been brought to the property as early as 1995. (ROR 48, p. 19-20; ROR 36.) The property owner acknowledges that it made no application for a certificate of zoning compliance pursuant to Chapter 22 of the Zoning Regulations in effect when it began the concrete crushing storing and stockpiling operation. (ROR 23, p. 50.)
" Section 1 Certificate of Zoning Compliance Requirement. No vacant land or any unoccupied portion thereof shall be occupied or used . . . and no building or structure hereafter erected, reconstructed or structurally altered shall be occupied or used for any purpose whatever, unless a certificate of zoning compliance shall have been issued as hereinafter provided stating that said land, building or structure and the use to be made thereof comply in all respects with these regulations."
Nor did O& G obtain approval for its use of concrete storage operations at 1225 Seaview Avenue, under the Coastal Area Management (CAM) Act, before beginning operations as mandated by the applicable regulations. (ROR 23, p. 40.)
Despite having obtained the appropriate approvals for 1121-1125 Seaview Avenue, O& G Industries did not submit a request for coastal site plan approval concerning 1225 Seaview Avenue, thus avoiding the scrutiny available during the public hearing process, and any appeal by environmental intervenors.
In 2009, the 1225 Seaview Avenue property was re-zoned from Light Industrial (I-LI) to Mixed Use Light Industrial (MU-LI), as part of a city wide comprehensive re-zoning. O& G Industries opposed the re-zoning, and met with various officials on November 4, 2008. In a November 10, 2008 letter (ROR 46) O& G confirmed the meeting, and stated its belief that the concrete crushing and storing operation would obtain a legally non-conforming status in the event of a re-zoning.
No requests for a certificate of zoning compliance or Coastal Site Plan approval were submitted to the City of Bridgeport prior to the re-zoning. On April 6, 2016, zoning enforcement officer Neil Bonney issued an " Order to Comply" (cease and desist order) to O& G Industries, Inc., concerning its use of 1225 Seaview Avenue as a concrete crushing and storage facility. (ROR 19.) The Order to Comply cited two sections of the Bridgeport Zoning Regulations, Section 14-1, and 14-3, involving the failure to obtain a certificate of zoning compliance, or to obtain coastal site plan approval.
Section 14-1, Bridgeport Zoning Regulations--" No vacant land, and no building or structure hereafter erected, reconstructed or structurally altered may be occupied for any purpose whatever and no certificate of occupancy shall be issued unless and until a certificate of zoning compliance is issued stating that the land, building, and/or structure and " uses to be made" comply in all respects with the provisions of these regulations and requirements or conditions of approval granted under these regulations . . ."
Section 14-3, Bridgeport Zoning Regulations--" Coastal site plan review and approval under this section is intended to fulfill the requirements of sections 22a-105 through 22a-109 of the Connecticut General Statutes; to ensure activities within the coastal boundary will satisfy all lawful requirements; and to ensure that within the coastal boundary the potential adverse impacts of proposed activities on both coastal resources and future water dependent activities are acceptable."
O& G Industries appealed the " Order to Comply" on April 16, 2016. (ROR 1.) A public hearing was originally scheduled for May 11, 2016 (ROR 4), but was deferred until June 14, 2016. (ROR 5.)
Another deferral was requested until July 12, 2016 (ROR 7), which was granted (ROR 9) with the notation " no more deferments." Notwithstanding the July 12 continuance condition, another request (ROR 16) for a deferment was made, and the appeal was noticed for August 10, 2016 (ROR 12; ROR 13).
At the August 10, 2016 public hearing, Neil Bonney explained that O& G was operating in violation of Bridgeport's Zoning Regulations. He detailed the failure of O& G Industries, since acquiring title to 1225 Seaview Avenue, to obtain a certificate of zoning compliance, or Coastal Area Management (CAM) Act compliance.
All parties acknowledge that the current use of 1225 Seaview Avenue for recycling, concrete crushing and stockpiling is not a permitted use in an MU-LI Zone. However, a review of the record indicates that O& G Industries did not seek permits or approvals of any kind before the change of zoning classification in 2009. (ROR 48, p. 6-18.)
O& G Industries presented the testimony of a twenty-eight-year employee, Kenneth Faroni, in support of its contention that no permits or approvals were needed in order to operate the concrete crushing enterprise. Faroni quoted an unnamed O& G employee, who he claimed verified with the City of Bridgeport the ability of O& G to crush concrete, recycle it, and stockpile materials, without additional approvals from city zoning authorities. (ROR 48, p. 37-38.)
Faroni did not produce any corporate records, and did not identify the Bridgeport employee who allegedly made the representation.
Approvals were sought, however, prior to beginning operations at the neighboring property, 1121-1125 Seaview Avenue.
Following the close of the public hearing, the Bridgeport Zoning Board of Appeals voted, unanimously, to deny O& G's appeal, thereby upholding the decision of the zoning enforcement officer. (ROR 47, p. 5.) Two reasons were given in support of the ZBA's decision. (ROR 16.)
" The applicant failed to apply for and receive a certificate of zoning compliance and a Coastal Area Management Approval, as stated in the record of the public hearing."
Notice of the decision (ROR 17) was published in the Connecticut Post on August 15, 2016 (ROR 18), and O& G Industries commenced this timely appeal.
O& G Industries maintains that the use of 1225 Seaview Avenue for the recycling of construction debris, including the crushing and stockpiling of concrete slabs, cement blocks and masonry, is protected as a legal nonconforming use, and no approvals from the City of Bridgeport are required.
In the alternative, it argues, the doctrine of municipal estoppel precludes the City of Bridgeport from enforcing its zoning ordinances, and the Order to Comply issued by Neil Bonney.
AGGRIEVEMENT
O& G Industries, Inc. is the record owner of 1225 Seaview Avenue, Bridgeport, having purchased the property from the Walker Group in 1995. (ROR 21.)
Richard Warren, who is employed by O& G Industries as its Facilities Manager, testified that the property has been owned by O& G Industries at all times, while this appeal has been pending.
Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an appeal. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996); Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991). The question of aggrievement is one of fact, to be determined by the trial court. Primerica v. Planning & Zoning Commission, 211 Conn. 85, 93, 558 A.2d 646 (1989); Hughes v. Planning & Zoning Commission, 156 Conn. 505, 508, 242 A.2d 705 (1968).
A party claiming to be aggrieved must satisfy a well-established two-fold test: 1) that party must show that it has a specific personal and legal interest in the subject matter of the decision, as distinct from a general interest such as concern of all members of the community as a whole, and 2) the party must show that the personal and legal interest has been specifically and injuriously affected by the action of the agency. Cannavo v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Hall v. Planning Commission, 181 Conn. 442, 444 (1980).
Ownership of the property which is the subject of the Order to Comply, demonstrates a personal and legal interest in the subject matter of the appeal. Huck v. Inland Wetlands and Watercourses Commission, 203 Conn. 525, 530, 525 A.2d 940 (1987); Bossert Corporation v. Norwalk, 157 Conn. 279, 285, 253 A.2d 39 (1969).
The decision of the Bridgeport Zoning Board of Appeals, sustaining the Order to Comply issued by Zoning Enforcement Officer Neil Bonney, has specifically and injuriously affected the interest of O& G Industries in 1225 Seaview Avenue.
It is found that O& G Industries, Inc. is aggrieved by the decision which generated this appeal.
STANDARD OF REVIEW
When hearing an appeal from an order issued by a municipal zoning enforcement official, a zoning board of appeals sits in a quasi-judicial capacity. In that capacity, the zoning board of appeals hears and decides an appeal de novo. Conetta v. Zoning Board of Appeals, 42 Conn.App. 133, 137, 677 A.2d 987 (1996). The board is charged with the responsibility of finding the facts, and applying the zoning regulations to those facts. Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560-61, 236 A.2d 96 (1987); Connecticut Sand & Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442, 190 A.2d 594 (1963).
The zoning board of appeals is endowed with liberal discretion, and its actions are subject to review by a court only to determine whether the action is unreasonable, arbitrary or illegal. Pleasant Valley Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269, 588 A.2d 1372 (1991); Wing v. Zoning Board of Appeals, 61 Conn.App. 639, 643, 767 A.2d 131 (2001). The burden of demonstrating that the board acted improperly is upon the party seeking to overturn the board's decision. Graff v. Zoning Board of Appeals, 277 Conn. 645, 669, 894 A.2d 285 (2006); Sciortino v. Zoning Board of Appeals, 87 Conn.App. 143, 147, 866 A.2d 645 (2005).
A court may not substitute its judgment for that of the zoning board of appeals, so long as the board's decision reflects an honest judgment, reasonably arrived at, based upon the facts in the record. Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 548, 684 A.2d 735 (1996). The court's function is to determine, on the basis of the record, whether substantial evidence has been presented to the board, in support of its findings. Huck v. Inland Wetlands & Watercourses Agency, supra, 540; Smith Bros. Woodland Management, LLC v. Zoning Board of Appeals, 108 Conn.App. 621, 628, 949 A.2d 1239 (2008). The credibility of witnesses and the determination of factual issues are matters within the province of the agency. Stankiewicz v. Zoning Board of Appeals, 15 Conn.App. 729, 731-32, 546 A.2d 919 (1988).
Where the board has stated specific reasons in support of its decision, a court must determine whether any reason given is supported by substantial evidence. Gibbons v. Historic District Commission, 285 Conn. 755, 770-71, 941 A.2d 917 (2008).
USE OF PROPERTY FOR RECYCLING CONSTRUCTION DEBRIS, CRUSHING AND STOCKPILING CONCRETE, NOT JUSTIFIED AS A PREEXISTING NONCONFORMING USE OF 1225 SEAVIEW AVENUE
O& G Industries, Inc. claims that it is permitted to conduct its recycling of construction debris and its crushing and stockpiling of concrete slabs and cement blocks, based upon the previous use of 1225 Seaview Avenue by Jacob Brothers, as a motor vehicle junk yard and scrap metal yard. It insists that the use variance granted to Jacob Brothers (ROR 43) in 1988, permits the use of 1225 Seaview Avenue for heavy industrial purposes, including the recycling, crushing and stockpiling of concrete products.
This claim is unavailing.
It must initially be noted, that the use of the property as an auto junk yard and scrap metal yard was terminated by O& G Industries, after title was transferred in 1995. 1225 Seaview Avenue was not utilized for the recycling, crushing and stockpiling of concrete, prior to its acquisition by O& G Industries. Therefore, pursuant to Chapter 22, Section 1 of the Zoning Regulations in effect at the time, O& G was required to obtain a certificate of zoning compliance. All parties agree that no certificate of zoning compliance was sought or obtained.
Chapter 22, Section I--" No vacant land or any unoccupied portion thereof shall be occupied or used . . . for any purpose whatever, unless and until a Certificate of Zoning Compliance shall have been issued . . . stating that the land, buildings or structure and the use to be made thereof, comply in all respects with the regulations . . ."
Furthermore, O& G was not relieved of the obligation to seek Coastal Site Plan review for the new activity, consistent with the Bridgeport Zoning Regulations in effect when the recycling and concrete crushing commenced. (ROR 23, p. 40.) The applicable regulation required:
All building uses and structures lying fully or partly within the coastal boundary . . . shall be subject to the coastal site plan review requirements and proceedings in Sections 22a-105 through 22a-109 of the Connecticut General Statutes.
No Coastal Area Management (CAM) approval was requested or received by O& G Industries, Inc., concerning 1225 Seaview Avenue.
O& G Industries seems to claim, that it was permitted to rely upon Jacob Brother's CAM approval, and its 1988 variance, and that no additional approvals were required, before it began operating on the site. It seems to argue, that the Jacob Brothers' approvals provide carte blanche for O& G Industries to locate any heavy industrial use on the parcel, as a matter of right.
This claim distorts the effect of the granting of a variance by a municipal zoning board of appeals, and gives to the zoning board of appeals a power to establish zoning classifications. That power is properly exercised by a municipal planning and zoning commission.
In order to grant a variance, a municipal zoning board of appeals must find that two (2) conditions have been satisfied: 1) the variance must be shown not to affect substantially the municipal comprehensive plan, and 2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship, unnecessary to the carrying out of the comprehensive plan. Moon v. Zoning Board of Appeals, 291 Conn. 16, 24, 966 A.2d 722 (2009); Francini v. Zoning Board of Appeals, 228 Conn. 785, 796, 639 A.2d 519 (1994). The comprehensive plan of a municipality consists of the zoning regulations, and the zoning map. Burnham v. Planning & Zoning Commission, 189 Conn. 261, 267, 455 A.2d 339 (1983); Pike v. Zoning Board of Appeals, 31 Conn.App. 270, 277, 624 A.2d 909 (1993).
SBecause the granting of a variance permits a property owner to use its property, even though a violation of the zoning regulations will result, it is reserved for unusual or exceptional circumstances. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206-07, 658 A.2d 559 (2005); Burlington v. Jencik, 168 Conn. 506, 508, 362 A.2d 1338 (1978). The variance power must be used sparingly, because a variance, once granted, runs with the land in perpetuity. Reid v. Zoning Board of Appeals, 235 Conn. 850, 858, 670 A.2d 1271 (1996); Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972); Amendola v. Zoning Board of Appeals, 161 Conn.App. 726, 751-52 (2015). The identity of the applicant is irrelevant. Dinan v. Zoning Board of Appeals, 220 Conn. 61, 66-67, 595 A.2d 864 (1991).
Courts have declined to extend a variance to uses, which were not advanced at the time the variance application was submitted, nor subject to analysis concerning adherence to the comprehensive plan, after the public hearing process.
In Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, supra, the Connecticut Supreme Court upheld a trial court determination that two prior variances regarding the same property did not provide authority for the operation of a used car lot in a particular district.
The initial variance sought permission to " build additions to present buildings and continue uses on property . . . as per recorded plot plan." The plot plan stated: " Also for continued use of the property for the following purposes: sales & service of fruit, vegetable, poultry or dairy food products; retail business or retail service occupation buildings; freezer & cold storage warehousing--wholesale and retail; warehousing of trucks & machinery; sale of loam or nursery products; processing and bottling or packaging of beverages--mainly apples & other fruits."
The second application, made several years later, sought permission " to repair and sell travel trailers and boats." Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, supra, 268.
The Supreme Court, after noting that the power to grant variances applies to specific and exceptional circumstances, found that the granted variances could not be read as conferring general authority to conduct unspecified retail sales. Furthermore, public policy decisions concerning the suitability or lack of suitability of an area to the zoning classification are properly rendered by the body charged with promulgating zoning ordinances, rather than to the body empowered to grant variances. Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, supra, 271.
Here, a variance was granted to Jacob Brothers for a particular use, that of an automobile junk yard in conjunction with a scrap metal yard.
O& G Industries seeks to contort this variance into a comprehensive rezoning of 1225 Seaview Avenue, which would permit any heavy industrial use on the 5.51-acre parcel in perpetuity. Any change in the applicable zoning regulations or the zoning map of the City of Bridgeport is a prerogative of the Planning and Zoning Commission, in the exercise of its legislative discretion.
Nor can O& G Industries claim that the use of 1225 Seaview Avenue for concrete crushing, stockpiling, storage and the processing of concrete products for use in the construction industry, represents a preexisting, nonconforming use of the property.
In order for a use to be considered legally nonconforming under a municipality's zoning regulations, it must: 1) be a lawful use, and 2) have been in existence at the time the zoning regulation was enacted. Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 712, 519 A.2d 49 (1986). Where a nonconforming use of property is claimed, the burden is on the owner of the property to establish its existence. Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, supra, 272; Friedson v. Westport, 181 Conn. 230, 234, 435 A.2d 17 (1980).
Like variances, nonconforming uses involve vested rights, which are recognized by statute. However, unlike variances, which must be shown not to substantially affect the comprehensive plan, require a showing of hardship, and are valid in perpetuity, by statute, zoning regulations generally seek the elimination of nonconforming uses, not their creation or enlargement. Woodbury Donuts, LLC v. Zoning Board of Appeals, 139 Conn.App. 748, 760-61, 57 A.3d 810 (2012); Planning & Zoning Commission v. Craft, 12 Conn.App. 90, 96, 529 A.2d 1328 (1987).
Section 8-2, C.G.S.--" . . . Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations."
Section 8-6(b), C.G.S.--" Any variance granted by a zoning board of appeals shall run with the land and shall not be personal in nature to the person who applied for and received the variance. A variance shall not be extinguished solely because of the transfer of title to the property or the invalidity of any condition attached to the variance that would affect the transfer of the property from the person who initially applied for and received the variance."
Nonconforming uses are, by definition, inconsistent with the comprehensive plan. Damick v. Planning & Zoning Commission, 158 Conn. 78, 84, 256 A.2d 428 (1969); Raffaele v. Planning & Zoning Board of Appeals, 157 Conn. 454, 462, 254 A.2d 868 (1969). Therefore, it is an established principle of and use law that they should be abolished, or reduced to conformity as quickly as the fair interests of the parties will permit. In no case, should they be permitted to increase. Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 382, 311 A.2d 77 (1972); McMahon v. Board of Zoning Appeals, 140 Conn. 433, 440, 101 A.2d 284 (1953).
O& G Industries cannot creditably claim, that its current use of 1225 Seaview Avenue is within the scope of the nonconforming use of the property by Jacob Brothers as an automobile junk yard and scrap metal facility. In considering whether an activity is within the scope of a nonconforming use, consideration should be given to several factors: 1) the extent to which the current use reflects the nature and purpose of the original use, 2) any differences in the character, nature and kind of the use involved, and 3) any substantial difference in effect upon the neighborhood resulting from the differences in the activities conducted on the property. Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 236-37, 662 A.2d 1179 (1995); Zachs v. Zoning Board of Appeals, 218 Conn. 324, 332, 589 A.2d 351 (1991).
The use of the property as a nonconforming scrap metal and automobile junk yard by Jacob Brothers is different in both character and kind, from the concrete crushing, recycling, and stockpiling of concrete slabs, the operation begun by O& G Industries, once it acquired the property.
The record compiled before the Bridgeport Zoning Board of Appeals fully justifies a finding that the nonconforming use to which the property had been put by Jacob Brothers was abandoned by O& G Industries, when the recycling and concrete crushing business commenced. As the Zoning Enforcement Officer testified during the public hearing, junk cars are no longer maintained on the site.
O& G has failed utterly to demonstrate that its current operation is entitled to preexisting nonconforming status, based upon the use of the property by Jacob Brothers prior to 1995.
Zoning Enforcement Officer Neil Bonney stated that the use made of the property by O& G Industries, Inc. following the adoption of the 1996 amendments to the Bridgeport Zoning Regulations was recycling. He maintained that recycling is classified under waste processing and transfer. (ROR 48, p. 44-45.) High impact waste processing and transfer operations were not permitted in the I-LI Zone, while low impact waste processing and transfer was permitted, but only after obtaining a special permit from the Bridgeport Planning and Zoning Commission. (ROR 22, Table 2.A.)
In addition to its failure to obtain a certificate of zoning compliance, or Coastal Site Plan approval, O& G Industries never sought to establish a low impact waste processing and transfer operation, through resort to special permit process. General Statutes S, 8-3c(b) requires that a public hearing be conducted by the body charged with issuing a special permit. The process mandates scrutiny not only by a municipal planning and zoning commission, but by the public in an open forum.
Substantial evidence supports a finding that the use of 1225 Seaview Avenue by O& G Industries, Inc. was properly characterized as waste processing and transfer by Neil Bonney. This is consistent with the characterization of 1121-1125 Seaview Avenue as " recycling" by the court, after Coastal Site Plan approval was sought and obtained for that parcel. (ROR 44.)
O& G Industries claims that its use of the property is more appropriately labeled an Industrial Service Use. Even if this claim is correct, arguendo, that fact will not avail O& G in its opposition to the Order to Comply.
Consistent with the 1996 Zoning Amendments, Industrial Service uses are not permitted, as of right, in an I-LI Zone. They can only be established, after a special permit has been issued. (ROR 22, Table 2.A.) Once again, O& G Industries failed to subject its operation to the transparency and sunshine of either the special permit, or Coastal Site Plan review process.
However, notwithstanding the appropriate classification of the property, the record unambiguously demonstrates that no certificate of zoning compliance or Coastal Site Plan review was ever obtained by O& G Industries, concerning 1225 Seaview Avenue.
When the zoning classification of the property was changed in 2009 from Light Industrial (I-LI) to Mixed Use Light Industrial (MU-LI), the recycling of construction debris and the crushing and stockpiling of concrete did not acquire the status of a preexisting nonconforming use.
Substantial evidence supports the decision of the Bridgeport Zoning Board of Appeals.
MUNICIPAL ESTOPPEL NOT PROVEN BASED ON PUBLIC HEARING RECORD
O& G Industries has also invoked the doctrine of municipal estoppel, in an attempt to excuse its failure to apply for or to obtain from the City of Bridgeport, approvals necessary to conduct its operation at 1225 Seaview Avenue.
It claims to have been misled to its detriment on two occasions by agents and employees of the City of Bridgeport, concerning its right to maintain a recycling, concrete crushing and stockpiling business at 1225 Seaview Avenue.
These claims have no merit whatever.
In special circumstances, a municipality may be estopped from enforcing its zoning regulations. Estoppel always requires proof of two (2) essential elements: 1) 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 2) the other party must change its position in reliance upon those factors. West Hartford v. Rechel, 190 Conn. 114, 121, 459 A.2d 1015 (1983); Zoning Commission v. Lescynski, 188 Conn. 724, 731-32, 453 A.2d 1144 (1982); Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 353, 365 A.2d 1093 (1996).
The party seeking to invoke municipal estoppel shoulders the burden of proof, including the obligation to prove that enforcement of a cease and desist order would be inequitable, or oppressive, given the circumstances. Cortese v. Planning & Zoning Board of Appeals, 274 Conn. 411, 418-19, 876 A.2d 540 (2005). Because of the substantial burden placed on the party seeking to advocate for municipal estoppel, the doctrine should be invoked only with great caution. Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 635-36, 646 A.2d 772 (1994); Gelinas v. West Hartford, 225 Conn. 575, 590, 626 A.2d 259 (1993).
The party seeking the benefit of municipal estoppel must establish: 1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts exist, and to act on that belief, and 2) the party had exercised due diligence to ascertain the truth, and not only lacked knowledge of the state of things, but also had no convenient means of acquiring that knowledge, 3) the party changed its position in reliance on those facts, and 4) the party would be subjected to substantial loss if the municipality were permitted to negate the acts of its agent. Cortese v. Planning & Zoning Board of Appeals, supra, 418-19; Bauer v. Waste Management of Connecticut, Inc., supra, 246-47.
O& G first argues that the City of Bridgeport should be estopped from enforcing its zoning regulations, because O& G has operated at 1225 Seaview Avenue without a certificate of zoning compliance or a Coastal Site Plan for almost twenty years.
This claim is unimpressive.
A municipality is not estopped, by latches, from enforcing its zoning regulations by the mere passage of time. West Hartford v. Rechel, supra, 120; Bianco v. Darien, 157 Conn. 548, 556, 254 A.2d 898 (1969).
In Bianco, the town was permitted to enforce its zoning regulations against a violator, despite a thirty-six-year lapse. The mere fact that a municipality has been lax in its administration of an ordinance or regulation is not a denial of the equal protection of the laws. Zoning officials may not effectively repeal, through inaction, regulations lawfully adopted by a municipal planning and zoning commission. Bianco v. Darien, supra, 559-60.
Furthermore, no pattern of selective enforcement is demonstrated in the record.
A counter argument might be advanced, claiming that the failure of the City of Bridgeport to enforce its regulations for nearly two decades attests to the special status enjoyed by O& G Industries. However, the record compiled before the Zoning Board of Appeals lends no support to any such allegation.
O& G Industries next claims, as a basis for municipal estoppel, that company representatives received assurances and representation from employees of the City of Bridgeport concerning the use of 1225 Seaview Avenue, at the time the property was purchased in 1995. This claim is untenable.
At the August 10, 2016 public hearing, O& G's Director of Planning and Permits, Kenneth Faroni, declared that an unnamed former O& G Senior Vice President spoke with unnamed Bridgeport officials, concerning the use of the parcel for recycling and concrete crushing operations. Faroni claimed that the City of Bridgeport acquiesced in O& G's use of the property (ROR 48, p. 36-39).
Faroni did not identify, by name, job title or department, the individual who allegedly made the representations orally, to the unidentified Senior Vice President. No writing, from either O& G Industries or the City of Bridgeport confirms any such conversation, or that the proffering of an opinion concerning the use of 1225 Seaview Avenue, was ever made.
Nothing allegedly uttered to an O& G representative in the 1990s can provide any basis for municipal estoppel. Nor does the claim of a conversation between unidentified persons explain away the failure of O& G Industries to apply for a certificate of zoning compliance, a Coastal Site Plan review, or a special permit to conduct business in a Light Industrial (I-LI) Zone, when 1225 Seaview Avenue was purchased.
An equally speculative rationale for the failure of O& G Industries to file for the necessary approvals might be surmised from the history of 1121-1125 Seaview Avenue, detailed at the hearing. The approvals which were requested for that property resulted in an appeal to court. Perhaps confident that enforcement proceedings would not be instituted by the City of Bridgeport, O& G made a decision to begin its operation at 1225 Seaview Avenue, without subjecting its use to the rigors and transparency of the public hearing process, thus risking another appeal.
Finally, O& G Industries claims that the zoning regulations cannot be enforced, based upon representations made by Bridgeport officials in 2008, when the change in zoning classification from Light Industrial (I-LI) to Mixed Use Light Industrial (MU-LI) was being considered by the Bridgeport Planning and Zoning Commission. (ROR 46.)
While acknowledging that the current use of 1225 Seaview Avenue is not permitted in an MU-LI Zone, O& G Industries opined that the use would obtain legal, nonconforming status, when the zone change was voted.
The November 10, 2008 letter, signed by Kenneth Faroni, (ROR 46) confirms a meeting with Zoning Administrator Dennis Buckley and Senior Planner Lynn M. Haig. O& G's facilities manager, Richard Warren, also attended.
The letter claims that it was " mutually understood" that 1225 Seaview Avenue would become " legally . . . nonconforming" following any change of zoning classification. This, O& G claims, prevents the City of Bridgeport from contesting the allegedly nonconforming status of the property, or challenging the validity of its current use.
This claim lacks any foundation.
As previously indicated, 1225 Seaview Avenue was not legally nonconforming in 2008, and, therefore, may not be rendered nonconforming on the basis of a private meeting, or a self-serving letter. No Bridgeport official or employee ever stated, in writing, that the use of 1225 Seaview Avenue as a recycling, concrete crushing and stockpiling enterprise carried the status of a nonconforming use, either in the Light Industrial (I-LI) Zone, or the present Mixed Use Light Industrial (MU-LI) Zone.
Furthermore, O& G continued its use of 1225 Seaview Avenue after the 2009 rezoning of the property, without change. There was clearly no reliance upon any alleged opinion given during a private meeting, by either Mr. Buckley, or Ms. Haig.
Municipal estoppel will not relieve O& G Industries from the consequences of its corporate actions and inactions over many years.
CONCLUSION
The appeal of the Plaintiff, O& G Industries, Inc., is DISMISSED.
O& G Industries is ordered, consistent with the Order to Comply (Cease and Desist Order) issued by Neil Bonney, to immediately cease and desist from the use and maintenance of a recycling, concrete crushing, storage and stockpiling facility at 1225 Seaview Avenue. (ROR 30.)
The record reveals numerous requests to postpone the public hearing, a hearing which was eventually conducted by the Bridgeport Zoning Board of Appeals on August 10, 2016.
In a letter dated June 14, 2016 (ROR 8), counsel for O& G Industries detailed efforts to relocate O& G's operation from 1225 Seaview Avenue, to a location in Bridgeport's West End. The letter, addressed to Zoning Administrator Dennis Buckley, stated: " O& G remains committed to relocating their Seaview Avenue operation to its New Site."
It must be noted, that compliance with the Order to Comply, and this court's decision, is in no way contingent upon any relocation of the O& G operation, or the approval of one or more municipal land use bodies, concerning that relocation.
The desire to relocate is not a basis for delay.