DocketNumber: No. CV 98 035 44 34S
Citation Numbers: 2001 Conn. Super. Ct. 7303, 29 Conn. L. Rptr. 361
Judges: MOTTOLESE, JUDGE.
Filed Date: 5/1/2001
Status: Non-Precedential
Modified Date: 7/5/2016
The restaurant building has a legally nonconforming front set back because it is located 21.4 feet from the center line of Rowayton Avenue when § 118-230 of the Norwalk Zoning Regulations (hereinafter "the Regulations") mandates 35 feet. In 1992, the Owners constructed an open wooden deck on the rear of the restaurant building with the approval of the zoning and building authorities of the city. At that time, the zoning authorities deemed the rear yard to be the distance between the rear wall of the building and the rear lot line (Regulations, § 118-100, p. 11821) and determined that the rear setback was 10 feet. With such an interpretation it was then determined that there was more than sufficient CT Page 7304 distance to satisfy this requirement. In October 1996, without benefit of a permit, the Owners enclosed the deck with retractable plastic side curtains and a retractable awning roof, thus creating what the Owners called "an all weather dining patio." In 1997, the Owners filed with the Board an application for a variance of the rear setback requirement because the deck was built 8.5 feet into rear yard with its westernmost wall only 1.5 feet from mean high water line. Between the time the deck was completed and the installation of the deck enclosure our Supreme Court handed down McNally v. Zoning Commission,
The Owners appealed to the Board each of these orders and decisions of the Zoning Inspector which, after notice and public hearing, reversed the various actions of the Zoning Inspector except the order concerning the stoop, which it affirmed. On the strength of the Board's decision to permit the continuation of the retractable deck enclosure, on February 19, 1999 the Zoning Inspector issued a certificate of zoning compliance which permitted replacement of the retractable enclosure with a permanent frame and glass structure. The same plaintiffs appealed that decision to the board which after notice and hearing, denied the appeal and affirmed the decision of the Zoning Inspector.
In the appeals involving the retractable deck enclosure, the service entry stoop and the diagonal parking spaces the Board passed the following motion.
Mrs. Griesmer moved that the appeal be sustained on the basis that a regulation, specifically sec 118-800D (1), is sufficiently ambiguous that the interpretation could be realistically be decided in favor either way, and that indicates that the relief must go to the property owner until such time that CT Page 7306 this regulation is clarified.
In the appeal involving the permanent (as opposed to retractable) deck enclosure the Board passed the following motion.
Ms. Greismer moved to deny the appeal and uphold the Zoning Inspector's approval of permanent all season enclosure improvement to existing rear dining deck of restaurant (Sec § 118-1410A1) in Business No. 3 zone for property located at 89 Rowayton Avenue.
The parties have not briefed the issue but as a threshold part of its review function, the court must determine whether such a statement constitutes a "formal collective statement of reasons" within the meaning of our established case law. The court concludes that it does not.Felsman v. Zoning Commission,
The court will undertake to consider each of the four subject matters in order.
"Ordinarily, the construction of a statute by the agency charged with its enforcement is entitled to considerable deference." However, the construction of a statute on an issue that has not previously been subjected to judicial scrutiny is a question of law on which an administrative ruling is not entitled to special deference. ConnecticutLight Power Co., v. Dept. Public Utility Counsel,(sic)
There is nothing in the record or briefs that indicates that § 118-800D(1) has ever been subjected to judicial scrutiny.2 The court then must apply well recognized principles of statutory construction. Words used in statutes shall be construed according to the commonly approve usage of the language. G.S. §
Although the plaintiffs challenge the Board's decision on several grounds the Board assigned only a single ground for its decision, namely the ambiguity of § 118-800D (1). Accordingly, the only issue before the court regarding the deck is the proper interpretation of the regulation. That regulation provides as follows:
(1) A nonconforming structure shall not be enlarged or altered if the result would be an increase in the extent to which the structure does not conform to these regulations. A nonconforming structure may be enlarged or altered, provided that the enlargement or alteration conforms to these regulations.
This regulation must be considered in conjunction with § 118-800A which provides as follows: CT Page 7308
There exists throughout Norwalk lawful lots, structures and uses of land and structures which are nonconforming because they do not comply with these regulations as originally adopted or subsequently amended. The purpose of this regulation is to permit nonconformities to continue, but strictly limit the extent to which nonconformities may be established, continued, expanded or altered. This regulation is intended to bring nonconforming uses into conformity with regulations as quickly as the fair interests of the parties will permit.
The plaintiffs argue that the retractable enclosure constitutes an enlargement of the deck which results in an increase in the extent of the nonconforming rear setback, Although the enlargement is clearly vertical in its prolongation it also elongates horizontally for the entire width of the deck. The plaintiffs thus argue that the enclosure is a horizontal expansion of the deck rather than a vertical one. No portion of the enclosure protrudes beyond the structural limits of the deck.
The Owners argue that (1) § 118-800(D)(1) and § 118-800(A) must be liberally construed; (2) existing case law supports their position but the plaintiffs' case law does not; (3) the deck is protected by §
The issue of statutory interpretation is whether sections 118-800D(1) and 118-800A prohibit the erection of an enclosure on a setback nonconforming deck which extends both vertically to ceiling height and horizontally the entire width of the deck. The necessary starting point is section 118-800D(1) which prohibits enlargement of nonconforming structures if the result is extension of the nonconformity. See, Bradleyv. Zoning Board of Appeals,
Resort to dictionary definitions of key operative terms reveals the following. The word "strict" is defined as "following or enforcing the rules with great care; rigidly maintained; implies exact, undeviating conformity to standard rules." Webster's New World Dictionary of the American Language, 2nd Ed., 1979 at 1410. "Limit" is defined as "to confine within bounds; the point, line or edge where something must end." Id. at 820. It is not insignificant that both subsections A and D (1) regulate the "extent" of the enlargement. The word "extent" is defined as "the space, amount, degree to which anything extends; size; length; breadth; range or limits anything; scope, coverage." Id. at 496.
In the Owners view any vertical or horizontal enlargement may be made to a structure which is nonconforming as to its setback so long as the enlargement does not further encroach upon the setback. In the plaintiffs' view any such enlargement constitutes a further encroachment upon the setback in and by itself.
Construction of the statutory language must be informed by our case law to the extent that the case law involves legislation which is similar to Norwalk's. In Jobert v. Morant,
In Jachym v. Planning and Zoning Commission, 8 Conn.L.Rptr. 3.77 (1993) (Hurley, J.). the planning and zoning commission approved a second floor addition to a garage that had a nonconforming rear yard. The addition would encroach no further on the setback. The applicable regulation "prohibited a new nonconformity or increased encroachment." The court held that the commission did not act unreasonably in finding that a vertical addition did not increase a horizontal encroachment. The court gave administrative deference to the commission's interpretation that such a vertical addition constituted neither a new nonconformity nor an increased encroachment because the record showed that the commission had consistently interpreted the regulation in that manner. BridgeportHospital v. Commission on Human Rights and Opportunities,
In Cirullo v. Zoning Board of Appeals,
After reviewing the applicable case law the court concludes that there does not exist in Connecticut and controlling authority on the issue of whether an enlargement which extends both vertically and horizontally over a setback nonconforming structure but does not encroach further into the setback constitutes an unlawful expansion of the nonconforming structure. Resort to the case law of other jurisdictions reveals that the cases go both ways on the issue. One line of cases permits such enlargements on the grounds that the addition does not increase the foundational footprint and therefore does not increase the encroachment.Goldhirsh v. Mehea,
It is noted that the Norwalk Regulations do not define either structure or building. Our courts have defined "structure" "as any production or piece of work artificially built up or composed of parts; joined in some definite manner." Hendryx Co. v. New Haven,
"Building" is defined as "anything that is built with walls and a CT Page 7311 roof." Webster's New World Dictionary 2nd Col. Ed., (1979) at 185; See,Kershaw v. Zoning Board of Appeals,
In the final analysis, this court is of the view that the retractable enclosure and, per force, the permanent enclosure constitute an impermissible expansion of the nonconforming deck.
The Owners argue that the deck became setback nonconforming in 1993 and because of the passage of more than three years without any enforcement action being taken it has achieved some sort of grandfathered protection from the application of § 118-800A and D(1). Both the Owners' brief and their oral argument were devoted entirely to the proposition that §
The Owners argue that the first provision somehow operates to legitimize the deck enclosure because the enclosure was erected in October 1996, two months before the agreement was entered into. The court notes that no permit for the enclosure was in existence at the time and that the legitimacy of the enclosure involves not the use of the deck but the lawfulness of the addition. Nor is there any evidence in the record that the plaintiffs were ever aware of the presence of the enclosure at the time they entered into the stipulation. Finally, the plaintiffs argue that even if these issues were to be resolved in the Owners' favor, the terms of the agreement prevent its use for any purpose other than the particular action in which it was filed. The court agrees that such is the plain language of the agreement.
The court is unable to determine the relative rights and obligations of the parties one to the other under this agreement. A settlement agreement Is a contract between the parties. Griffin v. Planning and ZoningCommission,
While the language of the agreement is unambiguous in some respects it is ambiguous in others. It would be improper for the court, in its role as a court of appeal, to determine the intent of the parties to that CT Page 7313 agreement. Id. Whether the agreement should be enforced in this proceeding is beyond the proper scope of this court's review, Gagnon v.Municipal Planning Commission,
The Owners argue that the 35-foot setback requirement does not apply to this stoop because the stoop is not a structure, and because the Regulations do not define "structure," the movable nature of the object somehow exempts it from regulation. Some members of the board saw the portability feature as a subterfuge and as an attempt to circumvent the setback requirement. Nevertheless, the Board overruled the Zoning Inspector and included the stoop in its sweeping pronouncement that § 118-800D (1) was ambiguous.
Moreover, it is a question of law as to whether the portable stoop is a structure which is subject to regulation under § 118-230. As stated above, a structure has been defined as "any production or piece of work artificially built up or composed of parts; joined in some definite manner." Hendryx Co. v. New Haven, supra. The court concludes that the portable service stoop is no less a structure simply because it is not attached to the building or the ground.4
J. "All off-street parking and loading facilities shall be located to the rear of the required front setback line as now or hereafter established. The area between the street line and the front setback line, except for vehicle and pedestrian access ways, shall be landscaped with lawns or other appropriate planting."
This regulation became effective March 1, 1985. The owners claim that diagonal parking spaces or stalls which extend from the easterly facade or front of the building to and through the street right of way of CT Page 7314 Rowayton Avenue constitute a nonconforming use of the front setback area. They urge the court to consult the record for evidence that these spaces have been in existence since 1985.
The Zoning Inspector's cease and desist order makes reference to a photograph of the front of the building taken in 1991 which shows an open front porch on the east side of the building with three motor vehicles parked parallel to and alongside the porch, "each vehicle facing due south". The record contains photographs taken in 1998 which show the porch removed, and in its former location, the eight diagonal parking spaces.
The Owners point to the testimony of long-time residents of the neighborhood to the effect that they remembered cars parking in front of the building for as long as they have been there which would be several years prior to 1985. In addition, there are photographs which apparently predate subsection J which show parking in front of the building. These photographs are unmistakable in what they show. They show only parallel and not diagonal parking. They show, at most, three vehicles and not eight. In fact, while the front porch was in place there could have been no diagonal parking because to do so would have required the vehicles to extend into the traveled portion of Rowayton Avenue. Mr. Griffith, a neighbor stated "People parked in front of the building or somewhere along it." Photographs placed into evidence by the Owners at the hearing show neighboring properties with parallel parking at the curb except where the particular business establishment had its own off-street parking lot. They have little probative value.
The Owners make no claim then that they had diagonal parking prior to 1985. They argue instead that parallel parking is the functional equivalent of diagonal parking. A close examination of the former parallel parking formation reveals that a survey map dated October 8, 1987 shows the front porch with steps roughly in the center of the building. This structure extended beyond the front property line and encroached into the street right of way of Rowayton Avenue and in fact, the traveled portion thereof. Certainly, as to this space, it would have been impossible for vehicles to have parked parallel within the front setback space because that space was occupied by the porch. Both the evidence before the board as well as a simple scaling of the width of the building demonstrate that no more than three automobiles could have parked parallel in front of the building. Thus, the nonconforming parking that predated the 1985 amendment was different both as to number and location, viz: three parallel versus eight diagonal. This was the full extent of the evidence before the board.
The issue which flows from these facts is whether the actual CT Page 7315 nonconformity can lawfully ripen into the present configuration. "A nonconforming use is merely an existing use the continuance of which is authorized by the zoning regulations." Melody v. Zoning Board ofAppeals,
Implicit in the board's undeclared reason for reversing the Zoning Inspector on this point is a determination that the scope of the use has not been extended or enlarged impermissibly in violation of § 118-800C (1).
"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." Zachs v. Zoning Board of Appeals, supra at 332.
There is scant evidence in the record concerning any of these factors and certainly the Board did not give explicit consideration to any of them. The Board permitted these parking spaces for the same reason that it permitted the deck enclosure and service stoop, to wit: where there is ambiguity in the regulation the ambiguity must be resolved in the property Owners favor.
An independent search of the record to determine how, if at all, these factors have been satisfied reveals the following: (1) while the principal use which the parking serves remains unchanged the accessory use of parking has not only virtually tripled in number but in doing so further frustrates the goal of § 118-1220J to maintain the setback area with appropriate planting. Factor (2) is unchanged as the kind of use is identical. Factor (3) however involves an evaluation of the effect of the eight spaces upon the neighborhood. There is little, if any, evidence on this point except for three color photographs which are unmarked exhibits in the record (stapled to a cardboard with a date of March 13, 1998). These photographs show vehicles parked in the spaces in CT Page 7316 question with their rear portions extending into the traveled (paved surface of Rowayton Avenue). If those vehicles were transposed onto exhibit 10 it would become apparent that all but a small portion of all eight vehicles would be parked on Rowayton Avenue with only a small portion of the front of the vehicle being parked on the Owners property. Plaintiffs point out that unless permitted by local ordinance, §
Because the board has acted illegally and in abuse of its discretion in deciding these appeals the plaintiffs' appeal in each case is hereby sustained.
_____________________ MOTTOLESE, JUDGE
Rustici v. Town of Stonington , 174 Conn. 10 ( 1977 )
Jobert v. Morant , 150 Conn. 584 ( 1963 )
Parks v. Planning & Zoning Commission , 178 Conn. 657 ( 1979 )
Verrastro v. Sivertsen , 188 Conn. 213 ( 1982 )
Welch v. Zoning Board of Appeals , 158 Conn. 208 ( 1969 )
Hendryx Co. v. New Haven , 104 Conn. 632 ( 1926 )
Goldhirsh v. McNear , 32 Mass. App. Ct. 455 ( 1992 )
County of Lake v. Courtney , 451 N.W.2d 338 ( 1990 )
Melody v. Zoning Board of Appeals , 158 Conn. 516 ( 1969 )
Town of Lebanon v. Woods , 153 Conn. 182 ( 1965 )
Petruzzi v. Zoning Board of Appeals , 176 Conn. 479 ( 1979 )