Opinion
No. CV 064006077S
September 25, 2007
MEMORANDUM OF DECISION
I FACTUAL BACKGROUND
On or before December 3, 2005, the Zoning Enforcement Officer (ZEO) of New Fairfield received several complaints that plaintiff, Edward Webb, had illegally converted a detached garage at 4 Coves End Road (Premises) to a second dwelling unit and had begun to install a septic system for the garage without a permit. (Return of Record [ROR], Exhibit [Exh.] 29, pp. 42-44.) Following an investigation of the matter, the ZEO determined that plaintiff was in fact using the detached garage as a second dwelling unit unlawfully and issued a notice of violation. (ROR, Exh. 1.) On or about March 9, 2006, the ZEO issued a cease and desist order, which is the subject of these proceedings, directing plaintiff to discontinue the use of the garage as a second dwelling unit in violation of the regulations. (ROR, Exh. 2.)
Plaintiff appealed the order to the ZBA contending that his use of the garage as a second dwelling was a legally pre-existing nonconforming use. The ZBA held public hearings on May 18 and June 15, 2007, at which plaintiff was represented by his attorney. Following the hearings, plaintiff's application to overturn the cease and desist order was denied. (ROR, Exh. 21.)
During the hearings, the plaintiff admitted that the structure in question was constructed as a garage in or about 1944 or no later than 1947; (ROR, Exh. 28, p. 18; ROR, Exh. 29, pp. 16, 39); and that the issue for the ZBA to decide was whether the garage was converted to a second dwelling before or after zoning regulations generally prohibiting such a conversion were adopted by the town of New Fairfield in 1967. (ROR, Exh. 28, p. 18; ROR, Exh. 29, pp. 38-39.)
Several other material facts were not disputed. It is undisputed that:
Harold Spears owned the Premises from 1944 until 1974. (ROR, Exh. 22; ROR, Exh. 23; ROR, Exh. 28, p. 16.)
The survey map of the Premises prepared for Harold Spears in 1947 describes the structure in question as a "garage." (ROR, Exh. 22.)
The assessor's field card for 1971, signed by Mr. Spears, the then owner of the Premises, describes the structure in question as a "two car garage used for storage only." (ROR, Exh. 23; ROR, Exh. 28, p. 18; ROR, Exh. 29, pp. 15-16.)
Spears sold the Premises to Samuel Milt in 1974. (ROR, Exh. 23; ROR, Exh. 28, p. 16.)
From 1971 to 1981, the structure was taxed by the town of New Fairfield as a "garage." (ROR, Exh. 23; ROR, Exh. 29, p. 41.)
The first record describing the structure in question as a "cottage" is the 1981 assessor's field card. (ROR, Exh. 24; ROR, Exh. 28, pp. 17-18; ROR, Exh. 29, p. 15.)
Plaintiff purchased the Premises from the Milt Estate in 1997. (ROR, Exh. 25; ROR, Exh. 28, p. 16.)
Plaintiff has used the second structure as a dwelling, either living in it himself or renting it out, since 1997. (ROR, Exh. 29, pp. 44-45.)
There is no evidence of a zoning permit for the conversion of the garage to a cottage having been issued. (ROR, Exh. 29, p. 18.)
The issue of when the garage was converted to a cottage was vigorously disputed at the hearings. Plaintiff presented testimonial and other evidence that the garage had been used as a cottage in 1959 and in the 1960s in an attempt to contradict Spears' representation on the 1971 field card that the structure in question was a "two car garage used for storage purposes only." Specifically, there was testimony from Marco Cicola and Mrs. Reggie Lambrecht as to their recollections regarding the use of the "cottage" pre-1971. There was also a letter from Art Cordio, a plumber, about work done on the "cottage" in the 1960s.
After hearing all of the evidence, the ZBA credited the representation on the 1971 assessor's field card that the structure in question was a "garage" over the other conflicting evidence. The vote was 3 to 1 to overturn the cease and desist order. The vote would have had to have been unanimous to overturn the order. (ROR, Exh. 28, p. 5.) The ZBA concluded that plaintiff had not sustained his burden of proving that the garage had been converted to a cottage prior to the adoption of the 1967 Regulations making such a conversion illegal without a permit. (ROR, Exh. 29, pp. 28, 49, 54-55.) There was no evidence that plaintiff had obtained a permit. The ZBA found that the subsequent conversion of the "garage" to a "cottage" was an illegal conversion and not a legally pre-existing nonconforming use.
II JURISDICTION
General Statutes § 8-8 governs an appeal taken from the action of a planning and zoning commission. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 400, 920 A.2d 1000 (2007). In the present appeal, the plaintiffs allege aggrievement as owners of the subject property. (Complaint, ¶ 1.) Plaintiffs' status as owners of the property that is the subject of the commission's decision confers aggrievement. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991). A plaintiff may prove aggrievement by testimony at the time of trial; Id.; or "by production of original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
The parties have stipulated on the record to the aggrievement of the plaintiff as owner of the property in question. The court finds aggrievement.
B Timeliness and Service of Process
General Statutes § 8-8(b) states in relevant part that an "appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published . . ." The commission's decision was published on June 21, 2006. The marshal's return attests that he served notice of this appeal on the chairman of the New Fairfield zoning board of appeals and at the office of the New Fairfield town clerk on July 3, 2006.
Accordingly, the court finds that this appeal comports with the statutory requirements governing timeliness and service of process.
III SCOPE OF REVIEW
The limited scope of judicial review of decisions of zoning boards of appeal is well established. "In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning board of appeals] must be upheld by the trial court if they are reasonably supported by the record . . . 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.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004). "The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal." R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61.
"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." (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 697, 784 A.2d 354 (2001). "The courts allow zoning authorities this discretion in determining the public need and the means of meeting it, because the local authority lives close to the circumstances and conditions which create the problem and shape the solution." Burnham v. Planning and Zoning Commission, 189 Conn. 261, 266, 455 A.2d 339 (1983). "[A] local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it." Trumbull Falls v. Planning and Zoning Commission, 97 Conn.App. 17, 29, 902 A.2d 706 (2006), cert. denied, 280 Conn. 923, 908 A.2d 545 (2006).
"[D]ecisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995).
The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs. Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980).
"A nonconformity has been defined as a use or structure [that is] prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations [were] adopted . . . For a use to be considered non-conforming . . . 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." (Internal quotation marks omitted.) Campion v. Board of Aldermen, 85 Conn.App. 820, 842-43, 859 A.2d 586 (2004), rev'd on other grounds, 278 Conn. 500, 899 A.2d 542 (2006).
IV DISCUSSION
In this case, plaintiff contended that the garage was constructed in 1944; (ROR, Exh. 28, p. 16); and converted to a cottage sometime between 1955 and 1971. (ROR, Exh. 28, p. 23.) It is undisputed that in 1967, the town adopted zoning regulations (hereinafter the "1967 Regulations") that prohibited the conversion without a permit. (ROR, Exh. 29, p. 18.) Therefore the plaintiff bore the burden of proving that (1) a permit had been obtained for the conversion, or (2) that the conversion pre-dated the 1967 Regulations.
After reviewing the record, the court concludes that the plaintiff failed to sustain this burden.
(i) There is no Evidence of a Permit
The record does not contain any evidence, much less "substantial evidence," that a permit for the conversion had been issued. Plaintiff did not introduce any permit into the record. Indeed, plaintiff concedes that a permit for the conversion could not be located. (ROR, Exh. 29, p. 18.) Nor did plaintiff offer any testimony or other evidence at either of the hearings that a permit had been issued. Not one person testified that a permit had been applied for or issued, and thereafter lost. Plaintiff's counsel merely speculated that the absence of any evidence of a permit having been issued may have been the result of a "deficiency" in the land records. (ROR, Exh. 29, p. 18.) But clearly, that conjecture is not evidence of the issuance of a permit.
(ii) The Record Contains Substantial Evidence that the Conversion Post-Dated the 1967 Regulations
It is undisputed that the 1971 assessor's field card for the property describes the structure in question as a "two-car garage" and not as a "cottage." (ROR, Exh. 23 and ROR, Exh. 28, p. 18.)
Significantly, the 1971 assessor's field card bears the signature of Harold A. Spears — the person who owned the property from 1947 until 1974. (ROR, Exh. 23 and ROR, Exh. 28, p. 28.) Mr. Spears' signature appears on the field card adjacent to the words "Interior Inspected." (ROR, Exh. 23 and ROR, Exh. 28, p. 18.)
The property was inspected on July 7, 1971. (ROR, Exh. 29, p. 23.) The field card indicates that as of the 1971 revaluation inspection, the interior floor of the structure in question was made of "concrete," the structure had two "gated" garage doors that open out and the only "plumbing" associated with the structure was for a "5 x 5 summer shower stall." (ROR, Exh. 29, p. 23.) There is no indication that the structure had a kitchen, kitchen sink, or toilet, or that it was being used as a "cottage" or dwelling space. To the contrary, the 1971 assessor's field card bears a notation that the two-car garage "is used for storage only." (ROR, Exh. 23 and ROR, Exh. 28, pp. 25-26.)
The 1971 assessor's field card is consistent with a survey map of the property, dated 1947, which also describes the structure in question as a "garage." (ROR, Exh. 22.) The first time that the structure in question was identified as a "dwelling" was on the assessor's 1981 field card; (ROR, Exh. 24); long after Spears had sold the property in 1974, and long after the adoption of the 1967 Regulations making the conversion illegal.
Based on this substantial evidence, the ZBA was entitled to find that from 1947 until at least 1971, four years after the adoption of the 1967 Regulations, the structure in question remained a garage, and that plaintiff had therefore failed to establish a legal nonconforming use pre-dating the adoption of the 1967 Regulations.
(iii) The Evidence Submitted by Plaintiff is Weak or Ambiguous as to Whether the Conversion Pre-Dated the 1967 Regulations
The evidence presented by plaintiff does not alter this conclusion. In addition to the 1971, 1981 and 1990 field cards for the Premises, plaintiff presented a letter from a local plumbing contractor and two persons appeared at the hearings on behalf of plaintiff.
The first person, Marco Cicala, stated that he "poked [his] head in there [the structure in question] a few times" while playing in the neighborhood as a teenager "around 1969." (ROR, Exh. 28, pp. 22-23.) He described the property as a "hippy haven" with a bathroom and kitchen. (ROR, Exh. 28, p. 22.)
The letter submitted by plaintiff is from Art Cordio, a plumbing contractor. It is dated February 14, 2006 and states that Mr. Cordio installed a "kitchen sink, toilet and shower" at 4 Coves End Road "in the 1960s." (Emphasis added.) (ROR, Exh. 27.)
Neither submission would support a finding that the structure in question was converted from a garage to a cottage before 1967. Mr. Cicala's recollection does no more than describe the condition of the property in 1969, two years after the adoption of the 1967 Regulations. It does not establish that the structure in question was being used as a cottage in 1967 prior to the adoption of the 1967 Regulations.
Similarly, the Cordio letter does not establish that the structure in question was converted to a cottage prior to 1967. His letter merely states that the plumbing install was performed at sometime "in the 1960s" — perhaps before the adoption of the 1967 Regulations, perhaps after.
The Cordio letter also merely states that the plumbing work was performed "at the above address" — "4 Coves End Road." It does not state whether the work was performed at the main residence or at the outbuilding — the structure in question. Significantly, Mr. Cordio did not appear at the hearings to clarify any of these issues.
Plainly, neither Mr. Cicala's statements nor Mr. Cordio's letter are probative — much less substantial evidence of the issue before the ZBA — whether the structure in question was converted from a garage to a cottage before or after 1967.
Moreover, to the extent that Mr. Cordio's letter and Mr. Cicala's statements were submitted to impugn the 1971 assessor's field card, it was within the province of the ZBA to credit that contemporaneously made, official town record, signed by the owner of the property, over the 45-year old recollections of Messrs. Cordio and Cicala.
(iv) The Resolution of the Conflicting Evidence Is Within the Province of the Zoning Board of Appeals
The ZBA was entitled to credit the 1971 assessor's field card over the recollection of Mrs. Lambrecht and a neighbor who testified for the plaintiff.
Mrs. Lambrecht stated that when she was a child, she would visit her grandmother who lived near the Spears — the then owners of the property in question. (ROR, Exh. 29, p. 20.) According to Mrs. Lambrecht, Mr. Spear's mother-in-law, who resided "in the city," would occupy the structure in question during the summer. (ROR, Exh. 29, p. 20.) Mrs. Lambrecht could not explain why "in the 71 inspection with the owner [Spears] present" the structure was described as a two-car garage with a concrete floor rather than a "house" or "cottage" with a kitchen and bathroom as she remembered it. (ROR, Exh. 29, pp. 20, 28.)
The ZBA was entitled to credit the 1971 assessor's field card, a contemporaneously made official record of the town that was signed by the then owner of the property, and certain other record evidence, over the 45+ year-old recollection of Mrs. Lambrecht. As the chairman of the ZBA stated at the hearing:
[I]t is difficult for me to come up with a reasonable explanation for why a [Assessor's Field] card signed by the owner and inspected by the town, would recite a set of facts that the property owners now are arguing were false and would have required fraud on at least the part of one of those two individuals.
(ROR, Exh. 29, p. 55.) "I can't imagine why anyone would convert back to a garage from a cottage." (ROR, Exh. 29, p. 53.) There is also another possible explanation. There is the possibility that the garage had been converted before the 1971 inspection, but for tax relief reasons and other considerations, the assessor did not show such a conversion on the records.
Based upon the 1947 survey map and the 1971 assessor's field card, it was within the province of the ZEA to find as a matter of fact that the structure in question was a garage in 1947 and that it remained a "two car garage," with a "concrete floor," two "gated" garage doors, and no plumbing other than an attached "5 x 5 summer shower stall" until at least 1971. The facts as found are supported by the evidence contained within the record — the 1947 survey map and the 1971 assessor's field card, signed by Spears. There is, therefore, a "substantial basis in fact" for the finding as required by the "substantial evidence rule." Sheldon v. Statewide Grievance Committee, 277 Conn. 99, 890 A.2d 104 (2006). ("[The] so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it afford a substantial basis of fact from which the fact in issue can be reasonably inferred . . . The reviewing court must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.")
Plaintiff's argument is essentially that the ZBA should have credited the testimony over the contemporaneously recorded official documentary evidence, i.e., that the ZBA should have credited the unsworn testimony of Lambrecht over the 1971 field card. But that determination, of which evidence to credit or how much weight to give it, is clearly committed to the discretion of the fact finder, here, the ZBA. This Court may not set aside the ZBA's determination without impermissibly weighing the quality of the conflicting evidence presented to the ZBA and substituting the court's judgment for that of the ZBA.
(v) Laches Is Inapplicable As a Matter of Law
Plaintiff's suggestion that it would be somehow unfair to enforce the zoning regulations against him because he bought the property in the mistaken belief that it was a legal two-family property should not permit him to circumvent the zoning regulations to the detriment of his neighbors and the community at large. Plaintiff is charged with knowledge of the zoning regulations. If, as plaintiff asserts, he failed to discover that the property was not zoned for multi-family use, the Town is not responsible for that mistake.
Similarly, the suggestion that he should be allowed to legally use the property as a two-family property because he has paid tax on the property as if it were a two-family property overlooks the fact that he has, in fact, used the property — albeit illegally — as a two-family property for the entire period of time that he has paid tax on the property — living in one structure and renting out the other and at times renting out both. There is nothing unfair about applying the town's zoning regulations to plaintiff.
It is well settled that laches and/or estoppel are inapplicable in this type of case. Bianco v. Darien, 157 Conn. 548, 556, 254 A.2d 898 (1969) (permitting a town to enforce its zoning ordinances after a thirty-six-year lapse); (Internal quotation marks omitted.) Town of West Hartford v. Rechel, 190 Conn. 114, 459 A.2d 1015 (1983) ("we are not prepared . . . to overrule our holding in Banco that [a] zoning commission is not estopped by laches from enforcing its zoning laws.").
CONCLUSION
In this case, the ZBA property focused on the dispositive issue whether the garage in question was converted to a dwelling prior to the adoption of regulations making such a conversion illegal — and fairly considered the conflicting evidence presented to it. Given that the record contains substantial evidence that the structure in question was a garage and was converted to a cottage only after the adoption of the 1967 Regulations which made such use unlawful, the ZBA was entitled to conclude that plaintiff had not sustained his burden of proving the existence of a legal nonconforming use. Plaintiff's appeal is overruled and the decision of the ZBA sustained.