Opinion
No. CV03-0350661 S
March 10, 2006
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiffs, Jane and Charles Payne, appeal from the decision of the defendant, the Newtown zoning board of appeals (the ZBA). The ZBA denied the Paynes' appeal from a cease and desist order issued by the Newtown zoning enforcement officer (ZEO) regarding their mulch processing and sale business.
II BACKGROUND
In 1971, the Paynes started a nursery and garden business, which included mulch grinding and the sale of garden supplies and plants, on their property at 142 Mount Pleasant Road in Newtown. (Return of Record [ROR], Item 14: 8/14/03 Letter from Jane M. Payne to the ZBA.) Charles Payne, the Paynes' son, has participated in the business from early childhood and continues to operate the business under the name Connecticut Wood Recycling and Mulch, LLC. (ROR, Item 14: 8/14/03 Letter.) Jane Payne continues to reside at 142 Mount Pleasant Road. (ROR, Item 14: 8/14/03 Letter.) The business has grown in volume during its thirty-three year existence and over time has begun dyeing its mulch on the premises. (ROR, Item 18, pp. 50-52.) In May of 2002, in response to the complaints of Edward Bednarik, an adjacent neighbor of the Paynes, the Newtown police and members and staff of the Newtown zoning board visited the Paynes' nursery. (ROR, Item 14: 8/14/03 Letter.) The ZEO assessed the Paynes' business and told the Paynes that their business was legally nonconforming and therefore not in violation of any zoning regulations. (ROR, Item 14: 8/14/03 Letter.) Approximately one year later, on or about May 5, 2003, another ZEO, Gary Frenette, issued a cease and desist order to the Paynes. (ROR, Item 13: Attachment; Exhibit 8.) Specifically, the ZEO found "[a] wood processing, dyeing and recycling business in a B-2 zone (not a permitted use in that zone)" and ordered "[a] complete stoppage of work and clean out of the property of all mulch related equipment." (ROR, Item 13: Attachment; Exhibit 8.)
The Return of Record in this appeal contains the official ROR documents, (Items 1 though 18), which will be referred to as "Items." ROR, Item 15 further references a series of documents that are original documents from the ZBA file pertaining to this matter, (Exhibits 1 through 12), which will be referred to as "Exhibits."
At the Newtown ZBA public hearing, Charles Payne stated that new machinery was acquired by the business over the years because the business had "to change with the time" and that dyeing mulch is "just another evolution in the process." (ROR, Item 18, pp. 50-51.)
Effective February 11, 1983, the Paynes were granted a variance by the ZBA from § 8.05 E (presumably corresponding to current § 8.05.500) and were permitted to expand the barn in the center of the business area. The prior zone was R1 (residential). (ROR, Item 14: Docket Decision 83-4.)
Article 4, § 4.14, Uses Permitted in General Business Zone (B-2), of the Newtown zoning regulations provides in relevant part that a "B-2" zone is a "general business zone." Newtown Zoning Regs., art. IV., § 4.14.
Previously, on May 1, 2003, ZEO Frenette concluded that the property was a legal nonconforming use as a nursery, but claimed that the Paynes had abandoned that use. (ROR, Exhibit 7.) The ZEO cited violation of § 4.14 of the Newtown zoning regulations, but did not specify as to which subsection. (ROR, Exhibit 7.)
The Paynes appealed the cease and desist order to the ZBA (ROR, Item 13: Attachment; Exhibit 8); and a public hearing was held on September 3, 2003 and continued to October 8, 2003. (ROR, Items 1, 16-18.) Following the public hearing, the ZBA voted to uphold the cease and desist order. (ROR, Item 4.) In denying the Paynes' appeal, the ZBA stated three reasons: 1) "The current use does not reflect the nature and purpose of the original use to any appreciable degree"; 2) The ZBA "finds that there are significant differences in the character, nature, and kind of use involved, including, but not limited to, dyeing of mulch"; and 3) "Given the building up of the area around the Payne property, there is a substantial difference in the effect upon the neighborhood resulting in the differences in the activities conducted on the property." (ROR, Item 4.)
The Paynes emphasize that the ZBA's third ground for denying their appeal applied "an erroneous standard" that vitiates "the entire concept of protection of legal nonconforming properties." (Plaintiffs' brief, dated April 5, 2004, p. 19.)
As will be discussed, Zachs v. Zoning Board of Appeals, 218 Conn. 323, 589 A.2d 351 (1991), sets forth three criteria to determine whether an activity is within the scope of a nonconforming use. Id., 332. The third criterion is whether there is "any substantial difference in effect upon the neighborhood resulting from differences in the activities conducted on the property." (Emphasis added.) Id.
Here, the ZBA's third ground for denial stated "[g]iven the building up of the area around the Payne property, there is a substantial difference in the effect upon the neighborhood resulting in the differences in the activities conducted on the property." (Emphasis added.) (ROR, Item 4.) The court disagrees with the plaintiffs' position and will interpret the words "in the" as "from."
The Paynes appealed from the ZBA's decision to the Superior Court, and the appeal was tried to this court.
III JURISDICTION
General Statutes § 8-8 governs an appeal taken from a decision of a zoning board of appeals. "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.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) CT Page 4929 Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). Jane Payne alleges that she is aggrieved by the ZBA's decision in that she is "the owner of the subject property 142 Mount Pleasant Road and licensee of the subject property, 138 Mount Pleasant Road" and "she has a beneficial interest in the family nursery and mulch business carried on at 138 and 142 Mount Pleasant Road." (Appeal, ¶¶ 9, 11.) Charles Payne alleges that he is aggrieved by the ZBA's decision in that he is "the successor in interest to the family nursery and mulch business carried on at 138 and 142 Mount Pleasant Road." (Appeal, ¶ 10.)
Aggrievement is a factual issue, "and credibility is for the trier of the facts." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001). An owner of property that is the subject of an application is aggrieved for the purpose of bringing an appeal, and 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, supra, 703.
From the facts adduced at trial, the court finds that Jane Payne is aggrieved for the purpose of bringing this appeal.
The court has made a finding of aggrievement with respect to Jane Payne, and, therefore, need not make an independent finding as to Charles Payne in his capacity as successor-in-interest. The court, however, will refer to the plaintiffs in the plural throughout this memorandum.
B Timeliness and Service of Process
General Statutes § 8-8(b) provides, in part, that 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 Statues § 8-8(f)(1) further provides that "[f]or any appeal taken before October 1, 2004, process shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality."
The ZBA's decision was published in The Newtown Bee on October 17, 2003. (ROR, Item 8.) The plaintiffs commenced their appeal on October 29, 2003 by service of process upon the Newtown town clerk and Charles E. Annett III, the chairman of the ZBA. (Marshal's Return.) This court finds that the Paynes filed a timely appeal and served the proper parties.
IV SCOPE OF REVIEW
"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 . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001).
"Generally it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply . . . In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal . . . Moreover, the plaintiffs bear the burden of establishing that the board acted improperly." (Citations omitted; internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 697-98, 784 A.2d 354 (2001). "When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations . . . The principle that a court should confine its review to the reasons given by a zoning agency . . . applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 420.
"[F]ollowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board." Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82, 626 A.2d 744 (1993). "[T]he proper focus of a reviewing court is on the decision of the zoning agency and, with regard to its factual determinations, on the evidence before it that supports, rather than contradicts, its decision. The conclusion that this scope of review applies upon judicial review is not undermined by the fact that . . . the zoning agency was a zoning board of appeals reviewing the decision of a zoning enforcement officer in an appeal from that decision pursuant to [the General Statutes] . . . Although we have never precisely held it to be so, it is clear from both the entire statutory scheme and our zoning case law that the zoning board hears and decides such an appeal de novo, and that the action of the zoning enforcement officer that is the subject of the appeal is entitled to no special deference by the court." (Internal quotation marks omitted.) Id., 87-89.
V DISCUSSION
The issue is whether the ZBA acted unreasonably, arbitrarily or illegally in denying the Paynes' appeal of the ZEO decision. As previously stated, the ZBA set forth three reasons for denying the Paynes' appeal: 1) "The current use does not reflect the nature and purpose of the original use to any appreciable degree"; 2) The ZBA "finds that there are significant differences in the character, nature, and kind of use involved, including, but not limited to, dyeing of mulch"; and 3) "Given the building up of the area around the Payne property, there is a substantial difference in the effect upon the neighborhood resulting [from] the differences in the activities conducted on the property." (ROR, Item 4.)
The Paynes argue that the ZBA acted arbitrarily and capriciously. With respect to the first two reasons of the ZBA, the Paynes contend that the ZBA either believed that the original legal nonconforming use was mulch production and sale and that use had changed, or the ZBA agreed with the ZEO that the original use was a nursery, and the Paynes had abandoned that use. Concerning the third reason, the Paynes argue that the "building up of the area around the Payne property" is an "invalid factor" when considering the Paynes' appeal. In addition, they contend that it is factually inaccurate. Further, they maintain that there was no evidence presented regarding any negative effects upon the neighborhood due to the activities conducted on the property.
The ZBA argues that it acted properly when denying the Paynes' appeal because the Paynes do not have a valid nonconforming use involving the processing and dyeing of mulch. It maintains that the matter of whether the nursery was abandoned is not the issue. Rather, the ZBA emphasizes that the cease and desist order solely involved the Paynes' wood processing, dyeing and recycling operation.
In their reply brief, the Paynes reiterate their argument that "mulch use has always been an integral part of the nursery business and dyeing of mulch is a reasonable and appropriate adaptation of that business to current demand." (Plaintiffs' Reply Brief p. 4.)
Our Supreme Court has "previously held that a mere increase in the amount of business done pursuant to a nonconforming use is not an illegal expansion of the original use . . . There must be a change in the character of the existing use in order to bring it within the prohibition of the zoning ordinance." (Citations omitted; internal quotation marks omitted.) Zachs v. Zoning Board of Appeals, 218 Conn. 324, 331, 589 A.2d 351 (1991). "In deciding whether the current activity is within the scope of a nonconforming use consideration should be given to three 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 use involved; and (3) any substantial difference in effect upon the neighborhood resulting from differences in the activities conducted on the property." Id., 332.
"Although existing nonconforming uses are protected by statute; General Statutes § 8-2; public policy favors their abolition as quickly as the fair interest of the parties will permit. In no case should they be allowed to increase." (Internal quotation marks omitted.) Crabtree Realty Co. v. Planning and Zoning Commission, 82 Conn.App. 559, 562, 845 A.2d 447, cert. denied, 269 Conn. 911, 852 A.2d 739 (2004).
A
The first issue is whether the ZBA's conclusion that the Paynes' current use of their property fails to reflect the nature and purpose of the original use to any appreciable degree was supported by the record.
The Paynes argue that the ZBA's decision that "[t]he current use of their property does not reflect the nature and purpose of the original use to any appreciable degree" is unsupported by the record. They assert that the ZBA ignored the uncontested letters from surrounding neighbors and testimony at the public hearing that the current use of the property has remained the same since the nursery's inception in 1971. Furthermore, the Paynes aver that the ZBA ignored the obvious conclusion that should have been drawn from comparing photographs of the Paynes' business in 1971-72 to those of the business in June and July of 2003. These photographs, the Paynes argue, demonstrate that the business has remained appreciably the same and that they only show the change in the business that has taken place, which is an intensification of a mulch grinding and sale operation that was present from 1971 until today. They also note that the truck and machinery noise made on the property is consistent with the noises created on the surrounding B2 zone from other general business activity in the area. Finally, the Paynes maintain that a name change in the business is irrelevant as a matter of law and the existence of a legal nonconformity is controlled by the type of use, not ownership, with the right to continue an existing use a vested right which adheres to the land itself. See Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483-84, 408 A.2d 243 (1979). The Paynes also stated that the name of their partnership was registered with the town of Newtown and was never registered with the secretary of the state. The Paynes conclude that the ZBA's first reason that "[t]he current use does not reflect the nature and purpose of the original use to any appreciable degree" is contrary to the facts in the record, arbitrary and an abuse of its discretion.
The ZBA argues that there was ample evidence to determine that the Paynes had not proven that they had a valid nonconforming use. The ZBA asserts that the ZEO presented evidence that indicated that the Paynes' present business is much different than its previous legal nonconforming nursery use. The ZBA also claims that the ZEO presented his own observations of the activity that he observed, which verified that the present use of the land was not utilized as a nursery, but as a wood chipping and dyeing operation. The ZEO, the ZBA notes, presented documents indicating a change in the use of the property: (1) documents from the secretary of the state's office indicating that the name of the business being conducted is "Connecticut Wood and Recycling and Mulch LLC" (ROR, Exhibits 5, 6); and (2) an advertisement of the Paynes, which fails to mention a nursery. (ROR, Exhibit 12.) In addition, the ZBA points out that the ZEO also relied on the observations of two immediate neighbors of the Paynes' property, the Bednariks and the Pereiras. (ROR, Item 18, pp. 21-42.)
At its meeting on October 8, 2003, the ZBA discussed the evidence presented at the September 3, 2003 hearing and discussed the appropriate factors to be considered and determined, based upon those factors as outlined in the Zachs case, that the current activity was not within the scope of any nonconforming use that may have existed at the time zoning was adopted. Zachs v. Zoning Board of Appeals, supra, 218 Conn. 332. The ZBA argues that, after weighing the evidence, it reached a decision that should not be disturbed as the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency.
In Zachs v. Zoning Board of Appeals, supra, 218 Conn. 324, the plaintiff, Henry Zachs, owned and operated a radio communications tower. The tower had been erected during the middle of the 1950-60 decade by James Work, an electrician, at approximately the time his residence on the same property was constructed. Work may have used the tower for communications relating to his electrical business and he also leased space on the tower to allow the installation of separate antennae by others for access to a private radio communications system. Around 1970, Zachs obtained the tower leasing business from Work and later purchased the property, including the tower and the residence. Over the years, Zachs allowed additional users to lease space and install their separate antennae and appurtenant equipment on the tower. He also installed an emergency generator to provide electricity in the event that the regular electric service failed. A complaint from a neighbor concerning the noise from this generator precipitated an investigation that resulted in a cease and desist order by the town of Avon's assistant zoning enforcement officer, which was upheld by the zoning board of appeals. Zachs appealed the board's order to restore the nonconforming radio transmission tower on his property "to its original use, namely an accessory use to the residential dwelling . . ." to the trial court. (Internal quotation marks omitted.) Id., 327. The trial court found that the tower constituted a valid nonconforming use and that use had not been extended or expanded and rendered judgment for the plaintiff. Id., 327-28. The board appealed the trial court's decision claiming that the trial court should not have substituted its own factual determinations for those of the board. Id., 328.
The Supreme Court affirmed the trial court's holding and emphasized that "[t]he fact that improved and more efficient instrumentalities are utilized in pursuit of the use does not exclude it from the category of an existing use, provided these are ordinarily and reasonably adapted to make that use available to the owner, and the original nature and purpose of the undertaking remain unchanged . . . This principle is subject to the requirement that the new method be one that is ordinarily and reasonably adapted to make the original use available to the owner and that the original nature and purpose of the undertaking remain unchanged." (Citation omitted; internal quotation marks omitted.) Id., 334. The court in Zachs further observed that the zoning board of appeals did not explain how additional equipment, such as a generator, can reasonably be deemed to have changed the "original nature and purpose of the undertaking," which was a radio transmission tower. (Internal quotation marks omitted.) Id.
In the present case, the Paynes had produced and sold mulch on their property since 1971. (ROR, Item 14: 8/14/03 Letter.) Charles Payne has indicated that as the years passed, in order to remain competitive and keep pace with the changing times, the business replaced its wood shredder from 1971 with newer equipment. (ROR, Item 18, pp. 50-51.) At the hearing, he stated that "[y]ou have to renew your equipment, you have to get a new loader, a new tractor, a new whatever . . . otherwise you are going to get stale . . ." (ROR, Item 18, p. 51.) He acknowledged that the business began the new process of dyeing mulch in response to customer demand as "people want the different colors." (ROR, Item 18, p. 51.) He also explained the process of dyeing the wood chips, "you put [the wood chips in the machine] and what it does is . . . it shoots water and . . . a water-based pigment on it, it mixes it, and it spits it out [on] a conveyor belt . . ." (ROR, Item 18, pp. 51-52.) Payne further explained that the dyeing machine is diesel fueled and that it does make noise. (ROR, Item 18, p. 52.) In addition, he pointed out that the tractors the business used in the early 1970s were not equipped with the mandated safety mechanisms that their present equipment has. (ROR, Item 18, p. 52.)
Our Supreme Court has held that "[t]he fact that improved and more efficient instrumentalities are utilized in pursuit of the use does not exclude it from the category of an existing use, provided these are ordinarily and reasonably adapted to make that use available to the owner, and the original nature and purpose of the undertaking remain unchanged." Zachs v. Zoning Board of Appeals, supra, 218 Conn. 334, quoting DeFelice v. Zoning Board of Appeals, 130 Conn. 156, 162, 32 A.2d 635 (1943).
This court, based on the record, does not find that the ZBA was able to explain how additional equipment and increased mulch production has changed the original nature and purpose of the Paynes' undertaking, which was a nursery that included, inter alia, wood chipping. The record does not reflect any evidence that the Paynes' present business has changed from its original nature and purpose. Rather, it reflects a permissible "intensification" of the mulch grinding and sale portion of the Paynes' business, while also revealing that the Paynes have maintained other elements of their business. Statements made by the Bednariks, the Pereiras and the ZEO that the Paynes have greatly increased their mulch production demonstrates that the Paynes' mulch producing and selling portion of the business has intensified. (ROR, Item 18, pp. 21-42.) Testimony from Glen Atkinson and Thomas Richmond also indicates that the Paynes had been producing a portion of the mulch they sold since, at least, 1976-78, while having the remaining portion of mulch delivered to them. (ROR, Item 18, pp. 45-47.) The record reveals that the Paynes have maintained elements of the nursery and continue to perform landscaping work and purchase large quantities of plants and decorative materials. The Paynes provided the following documentation in support: (1) a letter from the representative of Patterson Nursery Inc., John Rothenbaul, stating that the Paynes' nursery has been purchasing plants in excess of $20,000 a year from Patterson Nursery Inc. for the past twenty years; (2) a bill of sale for thirty-seven poinsettias from Kurtz Farm for $206 in 2002 for the Paynes' nursery; and (3) records of sale for more than two months in 2002 totaling $1092.52 for decorative material for the Paynes' nursery from Kelco Industries, Carbone Floral Industries and Fall River Florist Supply. (ROR, Item 14.)
Furthermore, the Paynes presented more than forty letters by customers and or neighbors stating that the Paynes' business always has been and still is a nursery and that the neighbors do not find this to be an offensive use of land in the neighborhood. (ROR, Item 14.) Specifically, the Paynes provided the following: (1) handwritten letters from twenty-two neighbors stating that the Paynes' business was and continues to be a nursery and that they do not find the business offensive; (2) signed form letters from twenty-two other neighbors stating the same; and (3) handwritten letters from nine other neighbors only stating that the Paynes' business was and continues to be a nursery. (ROR, Item 14.)
The Paynes also provided photographs of their business in 1971-72, which clearly display that they were preparing and selling mulch. (ROR, Item 14.) The comparison of the 1971-72 photographs with the June 2003 and July 2003 photographs reveals an increase of the mulch preparation and selling, which now includes dyeing. The 1971 photographs display large piles of mulch. (ROR, Item 14.) The 1972 photographs also display large piles of mulch, a tractor, and a wood chipping machine. (ROR, Item 14.) The June 2003 photographs display: 1) piles of mulch about twice as large and in varying colors, including brown and auburn; 2) a mulch dyeing machine; and 3) a small bulldozer. In light of the record, the "original nature and purpose" of the Paynes' undertaking, however, has not been altered. See Zachs v. Zoning Board of Appeals, supra, 218 Conn. 335.
The ZEO, the Bednariks and the Pereiras, however, also made numerous representations that the increased production of mulch, truck usage, and the additional dyeing process on the Payne property fails to reflect the nature and purpose of the original use to any appreciable degree, in particular because the dyeing of mulch was not part of the Paynes' original business practices. (ROR, Item 18, pp. 21-42.) In addition, Charles Payne admitted that, although dyeing mulch is not necessary for the production of mulch, they began dyeing it to remain competitive. The Paynes also acknowledged that their business has undertaken increased mulch production and begun mulch dyeing, which is a process the business did not originally undertake. (ROR, Item 18, pp. 50-52.)
The record evidence is sufficient to sustain an agency finding that the Paynes' current use of their property to dye mulch fails to reflect the nature and purpose of the original use to any appreciable degree. The ZBA was presented with enough corroborating evidence, as the Bednariks, the Pereiras and the Paynes provided information about the dyeing of mulch on the Paynes' property, to make such an honest judgment, reasonably and fairly made after a full hearing.
The court finds that the ZBA's decision that the Paynes' current use fails to reflect the nature and purpose of the original use to any appreciable degree is not supported by the record with respect to the manufacture and sale of mulch.
The court further finds, however, that the record does support the ZBA's conclusion with respect to the mulch dyeing aspect of the Paynes' business.
B
In denying the Paynes' appeal from the ZEO's cease and desist order, the ZBA had also found that when comparing the original use to the current use with respect to the manufacture and sale of mulch, there were significant differences in the character, nature, and kind of use involved, including, but not limited to, dyeing of mulch. (ROR, Item 4.) Therefore, the next issue is whether, with respect to the Paynes' current business as compared to the original business, the ZBA's conclusion that there are significant differences in the character, nature, and kind of use involved, including, but not limited to, dyeing of mulch, is supported by the record.
The Paynes maintain that there are two possible reasons why the ZBA concluded that there are significant differences between the past and present operations: 1) the ZBA deemed the original legal nonconforming use was mulch production and sale and that use had changed; or 2) the ZBA determined that the original use was a nursery and that use has been abandoned. The Paynes contend that neither reason supports the ZBA's second stated reason.
If the ZBA deemed the original legal nonconforming use was mulch production and sale and that use had changed, the Paynes insist that the new process of dyeing mulch is a logical and natural adaptation necessary for them to carry on the original use because the market for mulch now requires that it be dyed. They note that the original nature and purpose of the existing use (the production and sale of mulch) is unchanged. The Paynes assert that the photographs from the Paynes and the ZEO show essentially the same undertaking in the same area of the property, with somewhat larger piles of mulch and equipment. The Paynes note that the Supreme Court has provided that "a mere increase in the amount of business done pursuant to a nonconforming use is not an illegal expansion of the original use;" (Plaintiffs' Brief, pp. 17-18, quoting Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 716, 519 A.2d 49 (1986)); rather "[t]here must be a change in the character of the existing use in order to bring it within the prohibition of the zoning ordinance." (Plaintiffs' Brief, p. 18, quoting Salerni v. Scheuy, 140 Conn. 566, 571, 102 A.2d 528 (1954).)
In addition, the Paynes aver that the ZBA's cease and desist order which demands "[a] complete stoppage of work and clean out of the property of all mulch and related equipment" (ROR, Exhibits 8, 10); flies in the face of all the testimony and exhibits presented at the hearing as to mulch production and sale at the site, and in the face of § 4.14.900 of the Newtown zoning regulations which permits outdoor storage of wood (mulch) and machinery.
Article 4, § 4.14 of the Newtown zoning regulations provides in relevant part: "4.14 Uses Permitted in General Business Zone (B-2). No land, building or other structure shall be used and no building or other structure shall be erected, altered or added to which is arranged, designed, intended to be or is capable of being used except for one of the following principal uses provided that [s]ite [d]evelopment [p]lan approval has been granted in accordance with [a]rticle IX hereof, if so required: . . . 4.14.900 Storage in bulk of, or warehouse for, building materials, clothing, cotton, drugs, drygoods, feed, food, furniture, hardware, ice, machinery, paint, paint supplies, pipe, rubber, shop supplies, tobacco or wood. If storage is to be provided outdoors a planted or natural buffer shall be provided between the items stored and the front and side lot lines and between the items stored and the rear lot line if adjacent to a residential zone." Newtown Zoning Regs., art. IV., § 4.14.
In part V A of this opinion, the court addressed the ZBA's argument that there was ample evidence to determine that the Paynes' current activity was outside the scope of a valid nonconforming use.
As previously discussed, our Supreme Court has held that "[t]he fact that improved and more efficient instrumentalities are utilized in pursuit of the use does not exclude it from the category of an existing use, provided these are ordinarily and reasonably adapted to make that use available to the owner, and the original nature and purpose of the undertaking remain unchanged." (Internal quotation marks omitted.) Zacks v. Zoning Board of Appeals, supra, 218 Conn. 334, quoting DeFelice v. Zoning Board of Appeals, 130 Conn. 156, 162, 32 A.2d 635 (1943). In Zachs, the court determined that there was no evidence before the zoning board of appeals indicating that there was "any change in the nature and purpose of the use of the tower since 1957, because it was then being used for leasing antenna space to persons seeking access to a private radio communications system, the same purpose for which it [was used at the time of trial]. The only physical changes that have occurred are that eight additional antennae, consisting of horizontal metal rods a few feet in length, project from the tower, additional transmitters have been installed in the garage, and more electrical service meters have been placed on the exterior wall of the garage. Such changes cannot reasonably be said to involve differences in the character of the non-conforming use rather than increases in the volume of business within the scope of the original use." Zachs v. Zoning Board of Appeals, supra, 332-33.
Similarly, in the present case, it cannot reasonably be said that an increase in mulch and mulch-related equipment and processes "involve differences in the character of the non-conforming use rather than increases in the volume of business within the scope of the original use." Zachs v. Zoning Board of Appeals, supra, 218 Conn. 332-33. Charles Payne stated that the new, more efficient equipment, such as the new wood chipping machine and dyeing machine, for mulch production was purchased to keep pace with the changing times and customer demands. (ROR, Item 18, pp. 50-51.)
The record reflects that the Paynes wanted to remain competitive in the mulch selling portion of their business, which they have participated in since 1971, and purchased additional equipment to increase sales. (ROR, Item 18, pp. 50-51.) The record reflects that the increase in mulch piles and mulch-related equipment were natural outgrowths of an intensification of the mulch selling portion of the Paynes' business.
The ZEO, the Bednariks and the Pereiras, however, also represented that there are significant differences in the character, nature, and kind of use involved, including, but not limited to, dyeing of mulch, with respect to the Paynes' business today as compared to the original usage. (ROR, Item 18, pp. 21-42; Exhibits 11, 12.) The ZEO observed one very large water-based dye machine on the property and noted that the actual dyeing of the mulch occurs on the 142 Mount Pleasant Road property. (ROR, Item 18, pp. 30-31.) Charles Payne stated that, although dyeing mulch is not necessary for the production of mulch, they began dyeing it to remain competitive. (ROR, Item 18, pp. 50-51.) The Paynes also acknowledged that their business has undertaken increased mulch production and begun mulch dyeing, which is a process the business did not originally undertake. (ROR, Item 18, pp. 50-52.)
When comparing the original use to the current use, the record evidence supports an agency finding that the process of dyeing mulch constitutes a significant difference in the character, nature, and kind of use. Therefore, the court finds that the ZBA's determination re this issue is supported by the record with respect to the dyeing of mulch aspect of the business.
The court further finds, however, that the ZBA's conclusion that "there are significant differences in the character, nature and kind of use involved . . ." is not supported by the record with respect to the manufacture and sale of mulch.
C
The final issue is whether the record supports the ZBA's conclusion that given the building up of the area around the Payne property there is a substantial difference in the effect upon the neighborhood resulting from differences in the activities conducted on the property.
The Paynes argue that there is no subordination of a legal nonconforming use to residential uses just because people are populating adjacent residential property. The "building up of the area around the Payne property," they contend, is not only an invalid factor in considering the merits of the Paynes' appeal from the ZEO's order, it is also factually inaccurate. They maintain that there was no evidence presented that there had been a substantial build up on the Payne property and that the letters from the other neighbors indicate that it is an unusually stable neighborhood with the two complaining neighbors being the only new houses in the neighborhood. The Paynes also observe that the information presented concerning a negative effect on the neighborhood comes mainly from their neighbors, the Bednariks, who claim unsupported, implausible effects such as cracks in the walls of their home and falling picture frames. The Paynes counter that none of the claims of noise, dust, vibration or pollution have been quantified by testing or the testimony of an expert, nor was there any presentation during the hearing of any past violation of noise, vibration or pollution laws and the favorable letters from other neighbors either contradict or do not corroborate the complaints.
The two neighbors are the Bednariks and the Pereiras who had moved into the neighborhood approximately five years before initiating complaints. (ROR, Item 18, pp. 22, 24.)
In the Zachs case discussed earlier, the Supreme Court found that "[t]he evidence of adverse effects upon the neighborhood from the increase in the number of persons using the tower and the related facilities is sparse and was presented mainly by the adjoining property owner." Zachs v. Zoning Board of Appeals, supra, 218 Conn. 333. The present record is similar to that found in the Zachs appeal. The evidence of adverse effects upon the neighborhood from the increase of production at the Payne property was solely presented by two adjoining property owners out of more than fifty-three surrounding neighbors. (ROR, Item 8, pp. 21-30; Item 14: 5/14/03 Letter from the Bednariks to The Newtown Bee; Exhibit 1.) The Paynes, however, submitted written statements from forty-four surrounding property owners. (ROR, Item 14.) All of the written statements provided that the Payne property was and still is a nursery that is not offensive to the neighborhood. (ROR, Item 14.) Thus, the record reflects that the increased production and sale of mulch has not created a substantial difference in the effect upon the neighborhood as the neighborhood, therefore the Paynes' manufacture and sale of mulch does not adversely impact the neighborhood.
As previously discussed, the Paynes provided the following: (1) handwritten letters from twenty-two neighbors stating that the Paynes' business was and continues to be a nursery and that they do not find the business offensive; (2) signed form letters from twenty-two other neighbors stating the same; and (3) handwritten letters from nine other neighbors only stating that the Paynes' business was and continues to be a nursery. (ROR, Item 14.)
In light of the record and the fact that the Paynes' business has produced and sold mulch since its inception in 1971, the ZBA was arbitrary and capricious in its decision that there is a substantial difference in the effect upon the neighborhood resulting from the increased production and sale of mulch on the Payne property.
The ZEO, the Bednariks and the Pereiras, however, also made numerous representations that the increased production of mulch, truck usage, and the additional dyeing process has created a substantial difference in the effect upon the neighborhood resulting from the differences in the activities conducted on the property. (ROR, Item 18, pp. 21-42.) Noting that workers wear masks while dyeing the mulch, the Bednariks indicated their concerns about the "harmful effects" that the dyeing of mulch may have on surrounding wells and the environment. (ROR, Item 18, p. 26.) The ZEO observed one very large dye machine which was water based on the property and that the actual dyeing of the mulch is being done on the 142 Mount Pleasant Road property. (ROR, Item 18, pp. 30-31.) The ZEO also noted that "you could be standing next to [a] dye machine, and . . . screaming at the person next to you and you wouldn't be able to hear it." (ROR, Item 18, p. 35.)
As previously mentioned, Charles Payne stated that, although dyeing mulch is not necessary for the production of mulch, they began dyeing it to remain competitive. (ROR, Item 18, pp. 50-52.) He explained the business uses a diesel fueled dyeing machine. (ROR, Item 18, p. 52.) The Paynes also have acknowledged that their business has undertaken increased mulching production and begun mulch dyeing, which is a process the business did not originally undertake. (ROR, Item 18, pp. 50-52.)
The evidence presented by both parties is sufficient to sustain an agency finding that given the building up of the area around the Payne property there is a substantial difference in the effect upon the neighborhood resulting from the new process of dyeing mulch on the Payne property. The ZBA was presented with enough corroborating evidence, as the Bednariks, the Pereiras and the Paynes provided information about the effects of dyeing mulch on the Paynes property, to make such an honest judgment, reasonably and fairly made after a full hearing.
The court also finds, however, that the record does not support the ZBA's conclusion that the manufacture and sale of mulch constitutes any "substantial difference in the effect upon the neighborhood."
VI CONCLUSION
For the foregoing reasons, the court sustains the Paynes' appeal to the extent that it challenges the ZBA's decision with respect to the production and sale of mulch on the Payne property.
Further, the court dismisses the Paynes' appeal to the extent that it challenges the ZBA's decision with respect to the dyeing of the mulch on the Payne property.