Opinion
No. CV 01-0185506 S
March 11, 2004
MEMORANDUM OF DECISION
PROCEDURAL HISTORY
On May 18, 2001 the Norwalk Inn and Conference Center (hereinafter "the Inn") made an application to the Zoning Board of Appeals of the City of Norwalk (hereinafter "the ZBA") for variances of: 1. zoning regulation 118-500(D) requiring an aggregate side setback of 25%; 2. zoning regulation 118-800(D)1 governing enlargement or alteration of a nonconforming use, and 3. zoning regulation 118-1220(J) providing front setback requirements. The Inn also sought a special permit pursuant to zoning regulation 118-1410 A2a to extend the business zone boundary line twenty-five feet into the residential zone. ROR 1. Specifically in reference to the requested variances the Inn sought a reduction in the building and parking front setbacks from "40 (12 existing for building) to 20 feet each and reduce aggregate side setback from 78.5 (62.1 existing) to 61.3 ft." (Memorandum to ZBA from James R. Bradey, Zoning Inspector hereinafter "memo.") ROR 1. Notice of the public hearing scheduled for August 2, 2001 was published in The Norwalk Hour. ROR 2. The hearing was held on that date. ROR 13. At the conclusion of the hearing, the Board voted to grant the variances requested and to grant the special permit. ROR 13, pp. 49-51. Effective date of all applications was August 10, 2001. ROR 13 p. 51. Notice of the decision was published in The Norwalk Hour on August 9, 2001. ROR 2. The Plaintiffs filed their appeal on August 23, 2001.
The applicable regulations are contained in the attached addendum.
FACTS
The Norwalk Inn and Conference Center is currently located at 99 East Avenue in the City of Norwalk, Connecticut. ROR 1. The Inn has a long and unique history in the City of Norwalk. ROR 13, pp. 4-6. It was established in response to a need perceived by business and community leaders in Norwalk for a hotel. ROR 13 p. 4. These leaders established a Community Hotel Corporation selling shares of stock to members of the Community. ROR 13 pp. 4-5. In the mid 1950s the site at 99 East Avenue was chosen for its location. That site however was split by zone lines, part restricted business and part "B" residential. ROR 13 p. 5, ROR 1, Memo. At that time the ZBA was authorized to issue "use variances." The Community Hotel Corporation applied to ZBA for a use variance which was granted, allowing the Inn to be constructed in the residential zone with parking in the restricted business zone. ROR 13 p. 5. In 1958 the ZBA granted another application by the Inn to enlarge their kitchen facilities and to construct a conference center, both in the residential zone. ROR 14 p. 5. In the 1980s, at an unspecified date, there was a dispute involving the neighbors and the Inn which resulted in a lawsuit which was eventually settled by a stipulated agreement in this court.
The stipulated agreement is attached to the addendum. One of the provisions of this stipulated agreement addressed the fire lane and buffer. The ZBA did not believe that this stipulation and potential violation of such by the Inn's present application was an issue to be decided at the August 2, 2001 hearing. ROR 13 pp. 30, 36, 48.
Currently the Inn sits on a four-acre parcel of land. ROR 13 P. 7. It presently complies with the requirements in the restricted business zone. ROR 13 p. 7. The Inn however recognizes a need to expand to allow it to compete with area hotels which have more and larger airier rooms. ROR 13 p. 6. The Inn believes that such expansion will better meet the demands of the 21st century. ROR 13 p. 6. The Inn however is restricted to development at the front of the property. ROR 13 pp. 13, 14. It literally cannot expand on two thirds of the property to the rear into the residential area. It can only expand forward into the commercial area. ROR 13 p. 20. The Inn perceives this unique distinction peculiar to itself coupled with the history of the property and the existing uses as a hardship justifying the granting of the variances requested. ROR 13 p. 20, 35.
To effectuate its plan to expand, the Inn purchased the property located at 93 East Avenue. This property was acquired in the year 2000. ROR 1. This property is a multifamily historic dwelling located in the restricted business zone. ROR 1. This property abuts the Inn's property at 99 East Avenue. ROR 1. The Inn intends, once and if it receives the necessary permits from the Historical Societies, to demolish this 1840 residence and construct a colonial style two-and-one-half-story hotel containing approximately fifty-eight rooms. ROR 13, p. 2, 8, 17. This new wing will be incorporated into the existing Inn by "an integral connecting structure," hence the need for the special permit requested extending the restricted business boundary line 25 feet to the rear. ROR 1, "Memo."
The Stembers own property located at 91 East Avenue, Norwalk, Connecticut. Plaintiff's Exhibits 1, 2, 3. Their property is a medical building constructed in 1980. ROR 13, p. 29, 31. It shares a 20-foot easement with the property located at 93 East Avenue, the property acquired by the Inn. ROR 13, p. 13. This shared easement was designed to accommodate patients, tenants and people who resided in 93 East Avenue, formerly a rooming house owned by Mrs. Singewald. ROR 13 p. 32. Dr. Stember expressed concern at the hearing that the connecting structure between the existing hotel and the new construction would virtually shut off access to the Inn's current loading docks and garbage disposal as it now exists. That denial of access would increase traffic on the driveway easement to his medical building with devastating impact. ROR 13 pp. 32-33. Robert Genuario, attorney for the Inn, addressed the concerns raised by Dr. Stember and his attorney, David Waters, by insisting that relocation of loading zones, egress, number of rooms requested were not essential parts of the plan, implying that there would be changes if required. ROR 13 pp. 35-37.
At the conclusion of the hearing the ZBA voted to approve the variances requested stating: ". . . the Board is satisfied that the applicant has demonstrated a zoning hardship based on the unique history of the subject property and the fact that this hotel or motor inn originally came into being in a use variance and therefore as a result of that this applicant is not able to develop towards the rear of the existing structure, but is forced to develop towards the front into the commercial zone." ROR 13 p. 49. Similarly the Board voted to grant the special permit noting that no hardship need be established to grant this "but the Board must be satisfied that the grant of the special permit on the 118-1410 A2a will not adversely affect any contiguous properties by bringing — by allowing this structure to move into the commercial zone." ROR 13 p. 50.
AGGRIEVMENT
The Plaintiffs are the owners of the property located at 91 East Avenue and 2 Morgan Avenue in the City of Norwalk, State of Connecticut. They are statutorily aggrieved owning property within 100 feet of the subject property. Plaintiff's Exhibit 1, 2 3.
STANDARD FOR REVIEW
"It is well settled that courts are not to substitute their judgment for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . ." (internal quotation marks omitted.) Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 547, 684 A.2d 735 (1996)." Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . . We, in turn, review the action of the trial court." (Internal quotations marks omitted.) Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980). 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 . . . (Internal quotations marks omitted.) Quality Sand Gravel, Inc. v. Planning Zoning Commission, 55 Conn. App. 533, 537, 738 A.2d 1157 (1999).
Kalimian v. Zoning Board of Appeals, 65 Conn. App. 628, 630-31 (2001).
SPECIAL PERMIT
In the context of this established standard of review the Court will first address the ZBA's grant of the special permit to the Inn. Norwalk Building Zone Regulations § 188-1410A(2)(a) provides that the Zoning Board of Appeals may hear and decide applications for Special Permits.
Where a zone boundary divides a lot, grant a Special Permit for a use authorized on either portion of such lot to extend to the entire lot, but not more than twenty-five (25) feet beyond the boundary line of the zone in which such use is authorized. The Board shall grant this Special Permit only if it finds the extension will not adversely affect contiguous properties, and it may impose such yard, screening and other requirements deemed necessary for the protection of the other properties mentioned.
The ZBA conducted a full and fair hearing on the Inn's application for a special permit. Attorney Waters presented evidence on behalf of the plaintiffs. Dr. Stember himself spoke at the hearing. Attorney Genuario presented evidence on behalf of the Inn. Various neighbors spoke both in support and in opposition to the application. The ZBA properly considered the impact of the application to all contiguous properties and concluded that the grant of the special permit would not adversely affect those parcels. ROR 13. This court will not substitute its judgment for that of the board in granting the special permit.
"It is well settled that courts are not to substitute their judgment for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . as the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." (Citations omitted.) Stankiewicz v. Zoning Board of Appeals, 15 Conn. App. 729, 731-32, 546 A.2d 919 (1988), aff'd, 211 Conn. 76, 556 A.2d 1024 (1989). The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 540, 525 A.2d 940 (1987). Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 548-49 (1996).
Accordingly the plaintiffs' appeal on the granting of the special permit is denied. The Court will now consider whether the ZBA's granting of the variances was proper.
THE VARIANCES
The Connecticut court has addressed the granting of variances on many occasions.
"It is well established . . . that the granting of a variance must be reserved for unusual or exceptional circumstances." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206-07, 658 A.2d 559 (1995). Accordingly, § 8-6(a)(3) authorizes a zoning board to grant a variance only when two conditions are met: "(1) the variance must be shown not to affect substantially the comprehensive zoning 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 general purpose of the zoning plan." (Internal quotation marks omitted.) Mandanici v. Zoning Board of Appeals, 50 Conn. App. 308, 311, 717 A.2d 287, cert. denied, 247 Conn. 935, 719 A.2d 1174 (1998).
Kalimian v. Zoning Board of Appeals, 65 Conn. App. 628, 631 (2001).
Further, "the hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance; and arises directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved. [s]elf-inflicted or self-created hardship . . . is never considered proper grounds for a variance." (internal citations omitted.) Pollard v. Zoning Board of Appeals, 186 Conn. 32, pp. 39-40 (1982), see also R. Fuller, 9 Connecticut Practice Series Land Use Law and Practice (2nd Ed 1999) § 9.3 p. 182. In addition, "the power to grant a variance should be sparingly exercised . . . An applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone . . . Variances cannot be personal in nature and may be based only upon property conditions . . ." Tiefenthaler v. Zoning Board of Appeals of the Town of Westport, 2001 WL 1249947 (Conn.Super), citing Reid v. Zoning Board of Appeals, 235 Conn. 850, 856 (1996). Finally, "[b]y its very definition, a variance is granted only with respect to a particular piece of property . . . 2 Anderson, American Law of Zoning 14.29, p. 662." Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239 (1972).
In sum, the power to grant variances is reserved for exceptional circumstances and should be sparingly exercised. Any hardship justifying the variance must arise from a peculiar characteristic of the property, the strict application of the zoning ordinance to that property producing an unusual hardship.
Examining the facts of the Inn's case in reference to the established law the court concludes that the Zoning Board of Appeals was not justified in granting the variances requested. The Inn consistently claimed that its unique history in the City of Norwalk coupled with the loss of use variances justified a hardship. ROR 13, pp. 20, 35. The Inn ignores the fact that the uniqueness claimed to its location at 99 East Avenue does not accrue to the newly acquired property at 93 East Avenue. The properties are entirely different. The Inn cannot claim a hardship at its 99 East Avenue location and then transfer that hardship designation to the variances requested at 93 East Avenue. There is a major fallacy inherent in this argument. Variances are granted with respect to particular pieces of property. Garibaldi v. Zoning Board of Appeals, 163 Conn. at 239. There is no law establishing transfer of hardship.
In addition, the court finds that whatever hardship is claimed as to the 93 East Avenue property is self-created which is never a proper ground for a variance. Pollard v. Zoning Board of Appeals, 186 Conn. 32, 40 (1982); Kalimian v. Zoning Board of Appeals, 65 Conn. App. 628, 632 (2001). The Inn purchased the property located at 93 East Avenue pursuant to its plan to expand to meet the needs of the 21st century. ROR 1, ROR 13 pp. 2, 8, 17. This property is located in the restricted business zone. ROR 1. Pursuant to Norwalk Zoning Regulation section 118-500B(2) uses and structures, a special permit is required for a hotel or Inn. The Inn did not request a special permit to allow it to construct the proposed addition when it made its application to the ZBA. Counsel for the Inn contends that no permit is needed as the Inn currently is a permitted use in a residential zone. However, once again the Inn ignores that the subject matter of this appeal is not the Inn specifically but variances requested for the property at 93 East Avenue. Defendant's brief p. 15.
The Court finds that the Inn assumed a voluntary hardship under "the purchaser with knowledge rule." R. Fuller, 9 Conn. Practice Series: Land Use Law and Practice (2d. Ed. 1999) § 9.4, p. 190.
Under that rule, if a purchaser acquires property with knowledge of the applicable zoning regulations[3] and later attempts to use that property in a manner that is proscribed by the regulations, the purchaser is barred from obtaining a variance. See, e.g., Abel v. Zoning Board of Appeals, 172 Conn. 286, 289-91, 374 A.2d 227 (1977) (where applicant knew at time of purchase that zoning regulations prohibited constructing house on lot of that size and that lot was subject to other restrictions, applicant could not later successfully claim that zoning regulations were unjust as applied to him); Devaney v. Board of Zoning Appeals, 132 Conn. 537, 544, 45 A.2d 828 (1946) (where applicant bought property with knowledge that use of property as restaurant was prohibited by zoning regulations board was without authority to grant variance); Mandanici v. Zoning Board of Appeals, supra, 50 Conn. App. 311-12 (where plaintiff purchased property knowing that use as gasoline station was prohibited in that zone, trial court improperly ordered board to grant variance).
Kalimian v. Zoning Board of Appeals, 65 Conn. App. 628, 632 (2001).
The court recognizes however, that in all likelihood the Inn could have obtained the necessary special permit under the regulations. However the other reasons specifically advanced by the Inn to establish hardship similarly must fail. Competitive advantage is not a recognized ground for a variance. Forbes v. Zoning Board of Appeals, 146 Conn. 547, 550 (1959). Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship. Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 548 (1996). Financial loss or advantage is not the proper basis for a variance. Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239 (1972).
Finally it would appear that the building inspector himself questioned the necessity of obtaining variances if the Inn reduced the number of rooms requested; "question is raised whether scaling back the new wing to 44 instead of 58 new guest rooms could eliminate both the building and parking front setback requests?" ROR 1, "memo." It does appear that the Inn's request for the variances stems from a design preference rather than a true hardship recognized by law. Jaser v. Zoning Board of Appeals, 43 Conn. App. 545 (1996).
CONCLUSION CT Page 4042
For the foregoing reasons the Court finds that the defendants have failed to establish a legally recognizable hardship peculiar to the property sufficient to justify the granting of the variance. Accordingly, the board acted arbitrarily, illegally and in abuse of its discretion in granting the variances requested.
The plaintiffs' appeal is sustained.
THE COURT
MARYLOUISE S. BLACK, J.
Attachment referred to in Footnote 1 Reg. 118-500
#3-03R — Zoning Commission — Amendments to rename and revise Section 118-500 Restricted Business zone to East Avenue Village District and related technical amendments
Approved: June 18, 2003
Effective: June 27, 2003
I. Amend Article 50, to rename and revise Section 118-500 from Restricted Business Zone to East Avenue Village District to read as follows:
Section 118-500. East Avenue Village District [ [Restricted Business Zone]]
A. Purpose and intent. It is the purpose of this zone to ensure that the unique character of this district is maintained for future generations in accordance with Connecticut General Statutes Section 8-2j Village Districts and to provide areas primarily for offices and other compatible uses which will meet existing and future needs within the city and which will constitute a harmonious and appropriate part of the physical development of the city. The provisions of this zone are intended to preserve and enhance the character of the East Avenue Village district by encouraging the preservation of sites and buildings of unique historical and architectural value and assuring that new structures and uses will be in keeping with the established character of the area thereby strengthening the economy of the city and promoting the education, pleasure and welfare of its people.
B. Uses and structures.
(1) Principal uses and structures. In the East Avenue Village District [[a Restricted Business Zone]], premises shall be used and buildings shall be erected which are used, designed or intended to be used for one (1) or more of the following uses and no others:
(a) Single-family detached dwelling.
(b) Two-family detached dwelling.
(c) Office buildings having a gross floor area of less than six thousand (6,000) square feet for municipal offices and for business and professional establishments which involve no retail sales.
(2) Special Permit uses and structures. The following uses shall be permitted by Special Permit in accordance with the provisions of Article 140, 118-1450, Special Permits, and shall comply with the Schedule Limiting Height and Bulk of Buildings, Commercial and Industrial, and any additional standards set forth herein:
(a) Office buildings having a gross floor area of six thousand (6,000) square feet or more for municipal offices and for business and professional establishments which involve no retail sales.
(b) Hotel or inn.
(c) Public and private colleges and universities.
(d) Schools, including business schools and studios.
(e) Lodge, meeting and concert halls, including social clubs.
(f) Restaurants having an active commercial floor area of one thousand (1,000) square feet or greater. No diner, drive-in or stool-and-counter-type restaurants shall be permitted. CT Page 4044
(g) Funeral homes,
(h) Churches.
(i) Public museums.
(j) Multifamily dwellings shall be allowed in accordance with the provisions of Subsection D(1) and (2) of this section.
(k) Halfway houses allowing a maximum of twenty (20) persons with no less than two hundred (200) square feet of living area per person.
(l) Nursery school or child day-care center.
(m) Youth day camps.
(n) Public or nonprofit community center.
(o) Group homes.
(3) Uses which are not otherwise permitted in Subsection B(1) and (2) above shall not be permitted by variance in the East Avenue Village District [[ Restricted Business Zone]].
(4) Village District Review Standards: [[Additional standards for Special Permit uses]]
(a) The uses permitted by Special Permit in the East Avenue Village District [ [Restricted Business Zone]] shall be subject to the following additional standards:
[1] The Commission may refer applications for Special Permit to appropriate city agencies and departments for review and recommendations.
(b) The Commission shall hire a Village District Consultant, who shall be an architect, landscape architect or certified planner, with pertinent experience, to review the design of new construction and substantial rehabilitation of all properties within the district. The report of such consultant shall be entered into the public hearing record and considered by the Commission in making its decision.
(c) Criteria: New construction and substantial rehabilitation of existing structures, including those listed on the Norwalk Historic Resources Inventory, shall be harmoniously related to their surroundings and shall be consistent with the Connecticut Historical Commission — Secretary of the Interior's Standards for Rehabilitation, as applicable. All applications shall demonstrate how such development is consistent with the criteria defined in Connecticut General Statutes section 8-2j Village Districts, including but not limited to the following criteria, subject to final review and approval by the Commission:
Attachment referred to in Footnote 1 Reg. 118-1410
(2) Hear and decide applications for Special Permits, grants or exceptions in the following situations:
(a) Where a zone boundary divides a lot, grant a Special Permit for a use authorized on either portion of such lot to extend to the entire lot, but not more than twenty-five (25) feet beyond the boundary line of the zone in which such use is authorized. The Board shall grant this Special Permit only if it finds the extension will not adversely affect contiguous properties, and it may impose such yard, screening and other requirements deemed necessary for the protection of the other properties mentioned.
(b) Grant, without renewal, temporary and conditional zoning approvals for not more than two (2) years for structures and uses in contravention of these regulations. [Amended effective 12-11-1981]
(c) Permit the reconstruction of any nonconforming building that may be destroyed either in whole or part by fire or other disaster.
(d) Permit a change from a nonconforming use of land or structure to another nonconforming use as per § 118-800C(4). [Added effective 2-24-1989]
(e) Grant a Special Exception for the development of a nonconforming lot which is in the same ownership as an adjoining lot as per § 118-800E(2). [Added effective 2-24-1989]
(f) Grant a special exception to continue a non-conforming use of land or structure as per section 118-800C(5), where the intent to continue such non-conforming use of land or structure can be demonstrated to the satisfaction of the zoning board of appeals. [Added effective 5-26-00]
(3) Vary any requirement of these regulations in harmony with their general purpose and intent, so that substantial justice may be done. This authority shall be exercised in a manner to secure the public health, safety and welfare solely in instances where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of these regulations. To grant a variance, the Zoning Board of Appeals shall adopt a resolution which shall stipulate the reason for granting the variance.
B. Any variance, grant, exception or Special Permit which is granted by the Zoning Board of Appeals shall be placed upon the land records of the town by filing a record of the variance, grant, exception or Special Permit with the Town Clerk within ninety (90) days of the effective date of such variance, grant, exception or Special Permit.
§ 118-1420. Zoning Inspector. [Added effective 12-11-1975]
SETTLEMENT AGREEMENT (Referred to in Footnote 2)
The undersigned agree to the settlement of pending litigation between them concerning the Norwalk Inn and Conference Center, 99 East Avenue, Norwalk, Connecticut on the following terms:
1. The Norwalk Inn and Conference Center, Inc. shall execute the Declaration of Covenant and Restriction Declaration attached which is to be recorded in the Norwalk Land Records against the Property. The term "Property" as used herein shall have the same meaning as in the Declaration.
2. The parties shall discontinue litigation between them as follows:
(i) Artemisia Associates CV-88-0093598-5 v. Norwalk Zoning Board of Appeals, et al.
(ii) Artemisia Associates AC-9233 v. Norwalk Zoning Board of Appeals, et al
The Norwalk Inn and Conference Center, Inc. shall be substituted as Plaintiff in CV-88-0093598-5 and the parties shall consent to entry of an order substantially in the form attached in CV-88-0093598-5. The foregoing notwithstanding this settlement shall be binding and shall be given full force and effect even if the Superior Court shall for any reason refuse to issue the order contemplated — in which event such litigation shall be discontinued. The parties shall withdraw appeal AC-9233.
3. Except as expressly set forth herein and in the Declaration, this settlement is without prejudice to the future rights of all parties pursuant to existing variances affecting the Property and present and future municipal and State regulations including zoning rules and regulations of the City of Norwalk.
4. The foregoing notwithstanding, as a matter of compromise and settlement the parties acknowledge and agree that existing structure and their present use do not violate zone rules and regulations of the City of Norwalk or existing variances affecting the Property.
5. Each of the parties hereby release each of the other parties of and from any and all claims, actions or damages, pertaining to the Property or the enforcement of rights pertaining to the Property which have accrued from the beginning of time to the date of settlement except for taxes which may be presently due the City of Norwalk, as on exchange of general releases. Artemisia Associates and the Norwalk Inn and Conference Center, Inc. agree that this release shall extend to the benefit of each of the neighbors of the Norwalk Inn and Conference Center, Inc. and to MBC Inc.
ARTEMISIA ASSOCIATES
CAROLE COHEN
NORWALK ZONING BOARD OF APPEALS
CITY OF NORWALK
DATED: Norwalk, Connecticut
September 1990
DECLARATION OF COVENANT AND RESTRICTION
Declaration of Covenants and Restrictions made this 13th day of September 1990 by The Norwalk Inn and Conference Center, Inc. (herein "Grantor") a Connecticut Corporation having offices c/o Peter Lathoris, Esq., 760 Summer Street, Stamford, CT 06901.
WHEREAS. Grantor is the owner of property known as the Norwalk Inn, more particularly described in Schedule A attached hereto (hereinafter "property");
WHEREAS, various owners of property abutting the Property are concerned with buffering between the motel and the parking area located on the residential portion of the Property and the abutting property and other measures and restrictions to reduce the impact of light and noise on abutting properties from the motel operation;
WHEREAS, the Grantor desires to address the concerns of the abutting property owners:
WHEREAS, certain litigation is pending between various abutting property owners and the Norwalk Zoning Board of Appeals, as parties, and the Grantors predecessor in interest, Artemisia Associates, as the adverse party, as follows:
(i) Artemisia Associates v. Norwalk CV — 88-0093598 — 5
Zoning Board of Appeals and
Carol Cohen
(ii) Artemisia Associates v. Norwalk
Zoning Board of Appeals and Carol Cohen AC 9233
WHEREAS, the parties to the aforementioned litigation and the Grantor desire to discontinue the pending litigation.
NOW, THEREFORE, in consideration of the ten dollars and other valuable consideration, including the discontinuance of pending litigation referred to above, the Grantor covenants and agrees as follows:
1. The Grantor does hereby covenant and agree to establish and maintain a bermed and planted buffer in general conformity with that certain landscape drawing entitled "Norwalk Inn, and Conference Center, Inc., 99 East Avenue, Norwalk, Connecticut, Rear Buffer" prepared by Site Design Associates, dated July 18, 1990 (revised 8/14/90 and 9/14/90), on file in the office of the Town clerk of the City of Norwalk as Map Number, which is incorporated herein by reference (herein "Buffer Plan") and this declaration. Except as otherwise shown on said Buffer Plan, the buffer shall be not less than 35 feet in width as measured from the boundary lines of the Property. In addition to evergreen trees, shrubs, deciduous shrubs and deciduous trees shown on the Buffer Plan, Grantor shall plant and permit to grow additional deciduous trees which at maturity may grow to at least 35 feet in height, in such number and at such locations as a landscaper or landscape architect may reasonably determine are appropriate in order to provide additional tall, seasonal screening which will not interfere with the growth and maintenance of the evergreen trees and lower level shrubbery. The deciduous trees at the time of planting shall not be required to be greater than approximately 6 feet to 8 feet in height.
2. The Buffer Plan is intended to provide a high degree of year-round screening from noise and light from the parking area and motel adjacent to abutting residential properties to the north, east and south of the subject Property. Grantor covenants and agrees such berming and screening (and other elements shown on the Buffer Plan) shall be established and planted and, together with existing trees and screening, shall be maintained, replaced and replanted as necessary by the Grantor, and its successors and assigns, in perpetuity, to establish and maintain the intended buffer and screening so long as the Property is used for other than residential use and the abutting property is zoned residential. The Buffing Plan is intended to show the approximate location, height and type of berming, retaining walls and plantings to establish the buffer. Slight modifications to the Buffer Plan may be made during establishment and maintenance of the buffer provided:
(a) the buffer shall be not less than 35 feet in width, except as shown on the attached map.
(b) the trailer shown on the map shall be fully screened.
(c) the existing grade shown on the Buffer Plan as shaded and labeled "existing vegetation to remain" shall not be reduced in elevation and the mature vegetation shall not be removed unless required due to death, destruction or disease of such mature vegetation, in which case other vegetation shall be planted or established to provide replacement screening, over time, as such replacement vegetation grows.
(d) the fire lane shall be grassed-over and barriers installed and maintained at the location shown on the Buffer Plan which prevent physical access to the fire lane by delivery vehicles, hotel guests, performers or anyone other than emergency personnel during an emergency.
(e) the essential benefit of the Buffer Plan and screening to any adjacent property owner or all adjacent property owners is not materially diminished.
3. Grantor further covenants and agrees:
(a) Any elevation shown as existing (taken from photo-gamety of the City of Norwalk, Connecticut dated April 1978) in the buffer area in the Buffer Plan which is not in fact existing at such level shall be restored to the level shown as existing. The foregoing shall not require the reduction in any grade.
(b) Parking may be on the level of existing paved parking or lower, but not higher.
(c) Only low-level lighting (both as to height and intensity) will be utilized in the parking lot and driveway. The property to the north between the building and the buffer adjacent to the building shall not be lighted. The buffer area itself shall not be lighted.
(d) The parking lot area shall be used only for parking for hotel guests and employees and not as a location for any event or permanent storage of vehicles or equipment.
(e) Areas outside the building to the north shall not be used by hotel or other guests.
(f) All doors and windows on the northerly side of the building will be kept closed at all times other than emergencies and all doors will be marked with signs indicating that they are for emergency use only and will have affixed to them a bell or other loud, audible signal that will sound when the doors are opened so that hotel personnel can respond promptly to resecure the doors. This alarm system will be kept operable at all times. The purpose of this requirement is to discourage hotel and other guests from congregating on the outside of the northerly side of the premises or from opening doors or windows for ventilation which might allow noise to escape from the premises. In addition, Grantor agrees generally to take reasonable steps so that noise will not emanate from the motel on the easterly and southerly sides in the event such parts of the building are used for public gatherings. The foregoing shall not restrict use of the swimming pool/patio area on the southerly side of the building.
(g) After 11:00 P.M. there will be no music, service of food or service of alcohol in the area of any exterior pool/patio.
(h) There shall be no parking adjacent to the northerly side of the motel between the building and the northerly boundary. The area between the motel and the northerly boundary shall be maintained as lawn and landscaping to the berm and buffer area subject to any requirement to maintain the emergency fire lane. In the area of the fire lane, the berm may he modified slightly in width or lay out if required to establish the fire lane.
4. The terms of this covenant and restriction are in addition to any other restrictions presently existing on the property and not in lieu thereof.
5. The Buffer Plan shall be implemented in two (2) phrases:
(a) Phase I — shall consist of all buffering and screening along the northerly side of the property and shall be completed by the end of September 1991.
(b) Phase II — shall consist of all other portions of the buffering and screening (including Phase I if not yet completed) and shall be done at the time any modifications are made to the existing paved parking and driveway and shall be done and completed simultaneously with such improvements and in any event not later than September 1995.
6. Grantor further covenants and agrees:
(a) The number of parking spaces inside the buffer area shall not be subject to approval pursuant hereto but shall be subject to any required municipal approvals.
(b) The parking area to be installed in Phase II shall have curbing so that vehicles do not drive into the buffer area and do not extend into the buffer area when parked.
(c) The trees shown on the Buffer Plan as dead shall be removed by the Grantor by no later than September 30, 1990.
7. This declaration of covenant and restriction shall run with the land for the benefit of all residentially zoned properties abutting the Property and shall be binding upon the Grantor and the Grantor's heirs, successors and assigns.
8. This declaration of covenant and restriction may be modified with the consent of not less than 2/3 of the owners of residentially zoned property abutting the Property.
9. For the purposes of this declaration of covenant and restriction, abutting or adjoining property shall Include properties actually abutting the Property and the property abutting the easterly side of the dead end road known as Sherman Court to the east of the Property. In determining any issue of consent each separate legal or legally non-conforming lot (determined after merger of any separate lots to form a single building lot) under common ownership shall be treated as a separate property. Each separate property shall be entitled to one vote without regard to the number of owners of record. In the event the owners of record of a single property choose to vote differently from one another on any proposed modification, they shall be entitled to a fractional vote equal to their proportion of record ownership.
IN WITNESS WHEREOF, I hereunto set my hand and seal this 13th day of September in the year of our Lord nineteen hundred and ninety.
SCHEDULE A TO DECLARATION OF COVENANT AND RESTRICTION DATED SEPTEMBER 13, 1990 BY NORWALK INN AND CONFERENCE CENTER, INC.
All that certain tract of land, with the buildings and improvements thereon, situated in the Town of Norwalk, County of Fairfield and State of Connecticut, and more Particularly bounded and described as following:
Northerly 150.0 feet by land of Valeria Miesenbock, Westerly. 65.0 feat by land of Valeria Miesenbock, thence again northerly 421.14 feet by land of Alice K. O'Reilly, land of William M. Genuario, land of Helen S. Heidel, land of Esther P. Hartwell, land of Martin L. Henry and Edith M. Henry, land of Anthony Eugene O'Reilly and John Albert O'Reilly, and land of Albert A. Miller; Easterly 285.34 feet by land of The Community Hotel Motel Incorporated; Southerly 605.23 feet by land of Benedict F. Gambino and Antonia R. Gambino, land of John E. Cavanaugh et al., land of Cecilia S. Keogh, land of Robert T. Bruce and Carol H. Bruce, land of Samuel Peskin and Deenie L. Peskin, land of Dora A. Whitehead, land of George S. Ameer and Lois A. Ameer, and land of Felix J. Cifatte and Blanche F. Cifate and Westerly 248.96 feet by East Avenue; together with a right of way over Colonial Place and Sherman Place at shown on map herein after mentioned containing in area 3.9386 acres.
Said premises being known and designated as "Parcel "A" as shown and delineated on a certain map entitled, "Map of Property prepared for The Community Hotel-Motel Corporation Norwalk, Connecticut," which map is on file in the office of City and town Clerk of the City of Norwalk by the map number 485.
Subject to
An Easement from The Community Hotel-Motel Corporation to The Connecticut Light and Power Company dated December 6, 1961 and recorded in the Norwalk Land Records on Book 568 at Page 583.