Opinion
LNDCV136060634S
06-28-2016
Sugar Hill, LLC v. Newtown Zoning Board of Appeals
Filed June 29, 2016
As Corrected September 22, 2016.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Marshall K. Berger, J.
I
The plaintiff, Sugar Hill, LLC, appeals a decision of the defendant, the zoning board of appeals of Newtown (board), upholding a decision of the zoning enforcement officer, George Benson, denying the plaintiff's application to perform grading and related construction work to provide parking for seventeen vehicles. The plaintiff owns the property in a R-1 zone at 153 Sugar Street in Newtown and utilizes it for several nonconforming uses--a gas station, an automobile dealership, an automobile repair shop, an automobile body shop, and a towing service with an impound lot. (Return of Record [ROR], Item 2, pp. 1-2.) On February 7, 2013, the plaintiff filed an application for a building permit to perform allegedly minor grading work and to spread forty-three yards of gravel for the parking area. (ROR, Item 2, p. 3; Item 25.) Benson denied the permit by letter dated February 25, 2013. (ROR, Item 2, p. 5.)
The property is bounded by Sugar Street, also known as route 302, to the west and Sugar Hill Road to the east. (Return of Record [ROR], Item 23.) The record before the board indicates that a number of residents living on Sugar Hill Road complained to town authorities about the plaintiff's activities distinguishing between the commercial nature of Sugar Street and the residential nature of Sugar Hill Road. (ROR, Items 18-19; Item 21.) The plaintiff's plan involves only an upper parking area off of Sugar Hill Road and not a lower entrance and associated parking area off of Sugar Street. (ROR, Item 32, p. 11.) This upper parking area is proposed to be ninety feet by sixty feet, not including the driveway, consisting of 7000 square feet. (ROR, Item 32, p. 13.) The town served notices of violations on the plaintiff at least as early as October 25, 2010, concerning this parking area. (ROR, Item 20.)
According to the plaintiff, the application was filed pursuant to a January 10, 2013 stipulation entered into by these parties, and approved by the court, Lavery, J., in Town of Newtown v. Sugar Hill, LLC, Superior Court, judicial district of Danbury, Docket No. CV-12-6010114-S, which is an enforcement action brought by the town alleging expansion of a nonconforming use based upon an installation of a large parking lot on the subject premises on or around 2010. (ROR, Item 1.) As a result of the stipulation, that appeal is stayed and the present appeal is taken.
The plaintiff filed an appeal with the board on March 22, 2013. (ROR, Item 1.) The board held a public hearing on May 1, 2013; (ROR, Item 14; Item 32); and denied the appeal on June 12, 2013. (ROR, Item 15.) Notice of the decision was published in the Newtown Bee on June 21, 2013. (ROR, Item 11.)
General Statutes § 8-7, in relevant part, provides: " The board shall hold a public hearing on such appeal in accordance with the provisions of section 8-7d. Such board may reverse or affirm wholly or partly or may modify any order, requirement or decision appealed from and shall make such order, requirement or decision as in its opinion should be made in the premises and shall have all the powers of the officer from whom the appeal has been taken but only in accordance with the provisions of this section. Whenever a zoning board of appeals . . . sustains or reverses wholly or partly any order, requirement or decision appealed from, it shall state upon its records the reason for its decision and the zoning bylaw, ordinance or regulation which is varied in its application or to which an exception is granted . . ."
On July 2, 2013, the plaintiff commenced this appeal alleging that the board acted arbitrarily, illegally, and in abuse of its discretion in upholding the denial of the permit by concluding that the parking was an expansion of a nonconforming use. The record was returned on September 27, 2013 in paper format and in electronic format on March 10, 2016, the plaintiff filed its brief on April 7, 2014, the board filed its brief on June 2, 2014, and the plaintiff filed a brief in reply on July 7, 2014. The court heard the appeal on March 15, 2016, at which time the parties stipulated that the plaintiff owned the property throughout the administrative process and to the present time. Therefore, this court found that the plaintiff is aggrieved. See Handsome, Inc. v. Planning & Zoning Commission, 317 Conn. 515, 527, 119 A.3d 541 (2015) (" [i]t is well established that a party may be aggrieved for purposes of appeal by virtue of its status as a property owner"). On March 21, 2016, the parties filed a supplemental return of record (pleading [pl.] #117.00) with excerpts of Newtown's zoning regulations (regulations) and stipulated that the paper record and electronic record are identical. The court ordered the parties to supplement the record with a full set of the applicable zoning regulations which was filed on June 13, 2016 (pl. #121.00). After a conference call with the parties, the parties further stipulated on June 23, 2016, that these regulations were applicable in the relevant time frame.
The pages in the electronic record are denoted a bit differently, e.g., the pages of record item 1 are labeled 1.1, 1.2, and so on.
II
" [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 . . . [T]he zoning board of appeals makes a de novo determination of the issue before it, without deference to the actions of the zoning enforcement officer . . .
" In reviewing the actions of a zoning board of appeals, we note that the board is endowed with liberal discretion and that its actions are subject to review by the courts only to determine whether they are unreasonable, arbitrary or illegal . . . The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision . . . It is the board's responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts." (Internal quotation marks omitted.) Cockerham v. Zoning Board of Appeals, 146 Conn.App. 355, 363-64, 77 A.3d 204 (2013), cert. denied, 311 Conn. 919, 85 A.3d 653 (2014). " In doing so, the board is endowed with a liberal discretion . . . Indeed, under appropriate circumstances, the board may act upon facts which are known to it even though they are not produced at the hearing . . . Upon an appeal from the board, the court must focus on the decision of the board and the record before it." (Internal quotation marks omitted.) Woodbury Donuts, LLC v. Zoning Board of Appeals, 139 Conn.App. 748, 758, 57 A.3d 810 (2012).
" It is well settled that the courts should not substitute their own judgment for that of the board and that the decisions of the board will not be disturbed as long as an honest judgment has been reasonably and fairly made after a full hearing . . . 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 . . . Upon an appeal from the judgment of the trial court, we review the record to see if there is factual support for the board's decision, not for the contentions of the applicant . . . to determine whether the judgment was clearly erroneous or contrary to law." (Internal quotation marks omitted.) Cockerham v. Zoning Board of Appeals, supra, 146 Conn.App. 364. " 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 [board's] decision." Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).
III
A
The board's unanimous decision stated, " Having considered all materials pertaining to the application, including testimony, exhibits and photographs submitted at the May 1, 2013 Public Hearing, and after reviewing the Town of Newtown Zoning Regulations 9.03.100 and 9.03.210, the board determined to uphold the decision of the Zoning Enforcement Officer and deny alleged error for the following reasons:
Section 9.03.100 provides: " Purpose and Intent: It is the intent of these regulations that any building, structure or use of land, either principal or accessory, lawfully existing at the time of adoption of these regulations, or any amendments thereto, may be continued although such building, structure or use does not conform with the provisions of these regulations. Once a nonconforming use, building, or a lot has been abandoned, however, neither it nor any other nonconforming use, building or lot, respectively, shall thereafter either be re-established." (ROR, Item 15; Pl. #121.00.)
Section 9.03.210 provides: " Any non-conforming use shall not be expanded above the level at which such activity existed on the date on which it became nonconforming by virtue of these regulations." (ROR, Item 15; Pl. #121.00.)
" 1. Under Newtown Zoning Regulations 9.03.100 and 9.03.210 the regulations address an expansion of a non-conforming use to include the use of land and an accessory use of the land. We interpret the use of land and an accessory use to include a parking lot.
Article 1, § 2 of the regulations define " accessory use" as " a use incidental to the principal use but does not include any use specifically prohibited by [§ ]1.06 of these Regulations." (Pl. #121.00.)
" 2. It is clear that the proposed non-conforming use will expand the existing non-conforming use greatly and we did not find the applicant's testimony credible as to the existence of this use prior to the adoption of the regulations in 1958.
" 3. The property is in a residential one-acre zone and the proposed use is a non-conforming use prohibited by our regulations.
" 4. The proposed use of the property for a commercial parking lot would greatly increase the level of non-conformity.
" The Board, therefore, upholds the decision of the Zoning Enforcement Officer." (ROR, Item 10.)
The parties frame this case differently. The plaintiff argues that it was merely seeking to spread a small amount gravel--some forty-three yards--and conduct some minor grading work. It filed a site plan and a sedimentation and erosion plan to stabilize the existing cleared area which it asserts has historically been used for parking for the existing five nonconforming uses. The plaintiff maintains, moreover, that the proposed parking conforms to the zoning regulations. It argues that it did not need a permit pursuant to § 8.08.241 of the regulations as it was spreading less than 100 yards of material. The plaintiff asserts that it was simply enhancing the existing use by grading, adding gravel, and delineating actual parking spaces. Additionally, the plaintiff argues that because " commercial parking" is not defined in the regulations that the board was creating a new regulation by not allowing parking even though the proposed parking complied with the existing regulations.
Section 8.08.241 provides that no permit is required for " construction of a wall, driveway, sewer, gas, water or other utility line, fence, sidewalk, septic system, drainage structure or landscaping in conjunction with the use of premises permitted by the Zoning Regulations of the Town of Newtown provided said construction does not result in the removal from or the addition to the premises of more than 100 cubic yards of earth material." (Pl. #121.00.) It is noted that the plaintiff spread either fifty or fifty-five yards of gravel the previous year; (ROR, Item 32, pp. 9-10); and some fifteen yards in 2010. (ROR, Item 32, pp. 51-52.)
On the other hand, the board argues that the plaintiff was seeking to expand a nonconforming use in an area that, as currently zoned, would preclude a " commercial" parking lot. The board maintains that Newtown has permissive zoning regulations; (ROR, Item 32, p. 88); and any use not expressively permitted is not allowed. See Graff v. Zoning Board of Appeals, 277 Conn. 645, 653, 894 A.2d 285 (2006) (" town regulations are permissive in nature, meaning that those matters not specifically permitted are prohibited"). The board also disputes the allegation that the proposed area has been used for parking since the regulations were adopted in 1958.
For example, § 3.01.210 of the regulations provides: " The following principal uses are permitted within a single building provided that Site Development Plan approval has been granted, if required, in accordance with Article X hereof, if so required. Uses that are not listed shall not be permitted by variance." (Pl. #121.00.)
B
General Statutes § 8-2(a), in relevant part, provides that zoning " regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations . . ." " A [nonconforming] use is merely an existing use the continuance of which is authorized by the zoning regulations . . . Stated another way, it is a use . . . prohibited by the zoning regulations but . . . permitted because of its existence at the time that the regulations [were] adopted . . . [T]he rule concerning the continuance of a nonconforming use protects the right of a user to continue the same use of the property as it existed before the date of the adoption of the [relevant] zoning regulations." (Internal quotation marks omitted.) Wiltzius v. Zoning Board of Appeals, 106 Conn.App. 1, 25, 940 A.2d 892, cert. denied, 287 Conn. 906, 907, 950 A.2d 1283 (2008). " The prohibition of expansion of nonconforming uses applies only to the aspect of the use or structure which is non-conforming . . . [A] mere increase in the amount of business done pursuant to a nonconforming use is not an illegal expansion of the original use." (Citation omitted; internal quotation marks omitted.) Barbieri v. Planning & Zoning Commission, 80 Conn.App. 169, 177, 833 A.2d 939 (2003).
In the present case, the plaintiff argues that the additional parking spaces do not affect the nonconforming use of the building and cites Thomas v. Planning & Zoning Commission, 98 Conn.App. 742, 911 A.2d 1129 (2006), as support for its position. In Thomas, the plaintiff-manufacturer, operating a nonconforming use on land located in a residential zone, sought and was granted permission to construct a twenty-space paved parking lot behind its existing building. Id., 744. The abutting landowner opposed the application asserting, in part, that the proposed use constituted an illegal expansion of a nonconforming use. Id. The Appellate Court upheld the trial court's dismissal of the appeal concluding that " the commission and the court properly determined that the corporation's application to expand its parking lot did not constitute the expansion of a nonconforming use under the town's zoning regulations, and that compliance with the off-street parking provisions and site plan requirements was all that was necessary for approval of its application." Id., 751. In Thomas, the town specifically had, however, a regulation allowing for expansion nonconforming uses and associated parking. Id., 749-50.
The plaintiff also argues that even if the additional parking lot allowed for a greater use of the nonconforming uses it would, at most, constitute an intensification and not an expansion. It relies on Enfield Planning & Zoning Commission v. Enfield Zoning Board of Appeals, Superior Court, judicial district of Hartford, Docket No. CV-05-4008771-S (September 26, 2006, Rittenband, J.) (). In that case, the court held that an addition of gravel to a parking area was not an expansion of nonconforming use, but it was undisputed that the area had been used for parking prior to the enactment of the zoning regulations. Id.
Thomas differs from the present case as Newtown's regulations do not allow for the expansion of nonconforming uses. While § 9.03.100 allows for the continuation of nonconforming uses, § 9.03.210 provides: " Any non-conforming use shall not be expanded above the level at which such activity existed on the date on which it became nonconforming by virtue of these regulations." (ROR, Item 15; Pl. # 121.00.)
More importantly, " [t]he determination of whether a proposed project is an illegal expansion of an existing use is a question of fact." Crabtree Realty Co. v. Planning & Zoning Commission, 82 Conn.App. 559, 562, 845 A.2d 447, cert. denied, 269 Conn. 911, 852 A.2d 739 (2004). " 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." (Internal quotation marks omitted.) Conetta v. Zoning Board of Appeals, 42 Conn.App. 133, 137-38, 677 A.2d 987 (1996). " [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.
In the present case, the parties stated to this court that the original residential use terminated sometime after 1958 and was converted to the current business office use. The board concedes that one or two vehicles associated with the residential use parked on the property and that the occupants of the apartment parked right outside. (ROR, Item 32, pp. 31-32, 44, 72.) Nevertheless, evidence indicated that prior to 2002 the proposed upper parking area was mostly wooded; (ROR, Item 32, pp. 109-10, 115-16); and not used, even in a rough state, as a large parking area. (ROR, Item 17; Item 20; Item 32, pp. 71-72.) A 1997 plan shows only a driveway in the area; (ROR, Item 20, p. 27); and the board heard evidence indicating that the drive was really " a dirt path leading from Sugar Hill Road to the interior of the property. The path was used by neighborhood children to go to the convenience store and occasionally a single car was parked at the end of the path when the second floor space in the building was used as an apartment." (ROR, Item 21, pp. 1-2.) Some maintained that the area was covered with woods; (ROR, Item 32, p. 110); and, but for the junk storage, it was not until trees were cut down and crushed stone was brought in that vehicles began to be parked in the area. (ROR, Item 17; Item 32, p. 72.) Prior surveys submitted to the town do not show a parking area; (ROR, Item 23; Item 29; Item 32, pp. 80-81, 83-84); and one person indicated that the trees were not removed until after the plaintiff was denied a variance. (ROR, Item 32, p. 112.)
No evidence in the record indicates whether the commencement of the business office was legal; apparently it was simply overlooked or tolerated by the town. The court notes that " [t]he party claiming the benefit of a nonconforming use bears the burden of proving that the nonconforming use is valid." (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn.App. 622, 628, 814 A.2d 396, cert. denied, 263 Conn. 901, 819 A.2d 836 (2003).
In addition, Charles Merryfield, the owner of the plaintiff, described the property when he bought it as " a God forsaken mess" where there were " old rusting cars (15 of them), parts galore, tree stumps, 2 rat infested sheds and brush over growth." (ROR, Item 17, p. 6.) Merryfield also testified that the upper parking area had been used for " [s]torage of cars, usually overflow, when we have . . . not enough space on the bottom . . . [W]hen I bought it there [were] about 34 cars up there in various shape which we towed to bone yards and stuff like that. Everything up there is movable and that's what we have now, we don't have any motors laying around or anything like when I first bought it." (ROR, Item 32, p. 47.) Larry Powers, owner of the property from 1978 to 1997, stated, " The property at the time I bought it was ugh, it was a mess. The front lawn had junk cars and scrap metal and industrial snow blowers and that was just what he had up, up on the hill and in on the lower parking lot." (ROR, Item 32, p. 29.) Powers also testified, " when I had the business I really felt that I didn't want to have an unsightly business like my predecessor did, so, like I said we would park the unsightly cars up on the hill." (ROR, Item 32, p. 38.)
In Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 712, 519 A.2d 49 (1986), the court stated, " For a use to be considered nonconforming under . . . Connecticut case law, that use must possess two characteristics. First, it must be lawful and second, it must be in existence at the time that the zoning regulation making the use nonconforming was enacted." [Emphasis in original.]). Section 1.06.100 of the regulations prohibits automobile junkyards and § 1.06.600 prohibits " storage outdoors of any unregistered motor vehicle or obsolete and/or unused contractors machinery or equipment." (Pl. #121.00.)
Based on this evidence, the board reasonably decided that the subject upper lot on Sugar Hill Road--not the lower lot on Sugar Street--was not, other than the de minimis accessory use for the apartment, historically used as a parking lot. Indeed, there is a paucity of evidence concerning its use prior to 1978, let alone prior to 1958. The court cannot substitute its own judgment. See Vine v. Zoning Board of Appeals, 281 Conn. 553, 560, 916 A.2d 5 (2007) (" [i]f there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission" [internal quotation marks omitted]). At best, the evidence presented to the board is contradictory and, thus, for the board--and not for the court--to weigh. See id. (" The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board." [Internal quotation marks omitted.]).
" Where a nonconforming use of property exists, it must be contained within the limits of the use in existence when the regulations were adopted so that it is illegal to alter a building containing the nonconforming use where the structural changes amount to enlargement of the area used for that purpose." R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (4th Ed. 2015) § 52:3, p. 236. This is consistent with Newtown's regulations and several appellate cases have held that an increase in parking was an expansion of nonconforming use. See Raffaele v. Planning & Zoning Board of Appeals, 157 Conn. 454, 459, 462-63, 254 A.2d 868 (1969) (upholding lower court's decision that increasing existing parking area was expansion of nonconforming use); Crabtree Realty Co. v. Planning & Zoning Commission, supra, 82 Conn.App. 563-66 (holding that parking area on adjacent property in residential zone was expansion of nonconforming use); Raymond v. Zoning Board, 76 Conn.App. 222, 256-59, 820 A.2d 275 (deeming change from three parallel to eight diagonal parking spaces to be impermissible intensification of nonconforming use), cert. denied, 264 Conn. 906, 826 A.2d 177 (2003).
In the present case, the evidence before the board indicates that only recently, after clearing the area, did the plaintiff use the lot for the storage of commercial and construction vehicles. (ROR, Items 18-19.) The pictures, as well as the testimony before the board, illustrate a total change of character in that portion of the lot over the last few years. (ROR, Items 26-27.) Because the proposed use would result in a physical change in the property, the board reasonably could decide that granting the plaintiff's proposed use would have resulted in a change in its nature and an expansion of the nonconforming use. See Crabtree Realty Co. v. Planning & Zoning Commission, supra, 82 Conn.App. 565-66. Based on the record, the board acted reasonably and within its liberal discretion; see Woodbury Donuts, LLC v. Zoning Board of Appeals, supra, 139 Conn.App. 758; in determining that the plaintiff could not expand the nonconforming use as it would violate § § 9.03.100 and 9.03.210 and change the character and nature of the undeveloped portion of the property.
The plaintiff also maintains that the board was basing its denial on something not found in the regulations--i.e., the definition of commercial parking; that the regulations expressly allow parking in all zones; and that its application complies with the regulations. The board's stated reasons do not indicate that the application fails to comply with any of the parking regulations and the board acknowledged that it was making no argument regarding this before this court.
The decision of the board is affirmed. General Statutes § 8-8(a)(1).