DocketNumber: No. CV89 0100931 S
Citation Numbers: 1990 Conn. Super. Ct. 1043
Judges: COPPETO, J.
Filed Date: 8/13/1990
Status: Non-Precedential
Modified Date: 4/17/2021
In order to take advantage of a statutory right to appeal from a decision of an administrative agency, there must be strict compliance with the statutory provisions which created that right. Simko v. Zoning Board of Appeals,
Aggrievement is a prerequisite to maintaining an appeal. Smith v. Planning and Zoning Board,
A person who is aggrieved by a decision of the board "may, within fifteen days from the date when notice of such decision was published in a newspaper pursuant to the provisions of
A trial court may grant relief on appeal from a decision of an administrative authority only where the authority has acted illegally or arbitrarily or has abused its discretion. Raybestos-Manhattan, Inc. v. Planning Zoning Commission,
The following facts are necessary to understand the issues raised in this appeal. Plaintiff owns a parcel of land which lies in three (3) different building zones, "An, "AA", and "AAA", and which contains four separate structures, three of which are residential uses. (Plaintiff's Exhibit A, 5/3/90, Deed; Record, Item 4, Transcript, pp. 43-4.) The four CT Page 1045 structures were originally part of a larger tract owned by one Nicholas Marrone and predate the enactment of zoning regulations in 1929. (Record, Item 4, p. 22.) Testimony was given to the effect that in 1967, Marrone sought permission to subdivide his property and was told by the planning and zoning commission that: it would grant subdivision approval if the four structures- remained on one lot in the subdivision, and if the zoning board of appeals granted a variance to allow the four structures to exist on one lot. (Record, Item 4, pp. 23-3.) Marrone obtained the variance and received subdivision approval. (Record Item 4, p. 23; Exhibit 3 to Item 6, 1967 Variance). The newly created lot on which the four structures still stand, shown on a map prepared for Marrone as Lot 5, is now owned by plaintiff. (Plaintiff's Exhibit A, 5/3/90, Deed; Record: Item 3, Map; Item 4, p. 23.)
On October 4, 1988, plaintiff applied for a permit to "re-build" the garage attached to one of the residences and to build an accessory apartment "above [the] re-built garage." (Record, Item 9, p. 4, Application.) The permit was issued but, on December 1, 1988, was revoked, and plaintiff was issued a cease and desist order. (Record, Exh. 2 to Item 6.) The reason therefor, as stated in the cease and desist order, is as follows:
An inspection of the site indicates that you have 3 single family homes on this lot. The addition of an accessory apartment therefore constitutes an expansion of a nonconforming use (3 homes).
(Record, Exhibit 2 to Item 6.)
Subsequently, the 1967 variance was discovered by plaintiff and brought to the attention of the Zoning Inspector, who then informed plaintiff by letter dated January 13, 1989 of the following:
Enclosed is a copy of a Variance #67-0907-09 which permitted 3 single family units on one lot. Based upon the approved variance your permit for the accessory apartment is valid. I am therefore revoking the cease and desist order of 12/1/88 and you may continue with your project. Please contact the Building Department, Dave Johnson, so you can have your Building Permit reinstated.
(Record, Exhibit 3 to Item 6.) On January 23, 1989, plaintiff sought reinstatement of the permit, but the Building Department did not agree with the Zoning Inspector's conclusions and refused to reinstate the permit. (Record: Exhibit C to Item 5; CT Page 1046 Item 9, p. 13.) By letter dated January 23, 1989, plaintiff informed the Zoning Inspector of the Building Department's refusal to reinstate the permit and of plaintiff's intention to continue construction in accordance with the Zoning Inspector's letter of January 13, 1989. Plaintiff also requested the Zoning Inspector to advise all concerned Departments of his validation of the permit and to instruct them to cooperate on any further inspections. (Record, Exhibit C to Item 5.) By letter dated March 17, 1989, the Building Department notified plaintiff that he was in violation of the building code because his permit had been revoked on December 1, 1988. (Record, Item 9, p. 9.)
When the cease and desist order was originally issued, plaintiff filed an appeal of that action to the Board. (Record, Item 9, pp. 1-1.) In his brief, plaintiff states that when the cease and desist order was revoked, the appeal, although not withdrawn, was not prosecuted. When the Building Department sent the violation notice in March of 1989, the appeal was reactivated and reframed by the Zoning Inspector to include a request for variances to "(1) Expand a non-conforming use created by variance #67-0907-09. . . (2) Vary if required [the] requirements for accessory apartments. . . ." (Record, Item 9, p. 16.)
On April 27, 1989, the Board held a public hearing on plaintiff's appeal/request for variances. (Record, Item 4.) Also on that date, the Board decided the following: (1) Plaintiff's application for an accessory apartment complies with the specifications set forth in 118-420 of the Norwalk Building Zone Regulations [the "Regulations"] (Record, Item 4, Transcript, Executive Session, pp. 48-50); (2) The property is non-conforming despite the 1967 variance and an accessory apartment may not be built without a further variance (Record, Item 4, pp. 50-1); and (3) The variance for an accessory apartment is denied (Record, Item 4, pp. 51-2).
Section 118-420 of the Regulations, entitled "Accessory apartments", provides as follows:
118-420. Accessory apartments [Amended effective 1-27-84; effective 9-26-86]
A. Purpose and intent. The intent of this regulation is to encourage the creation of accessory apartments in existing single-family residences for the purpose of providing rental housing for the elderly, single persons and small families. This regulation is designed to ensure that, in creating an accessory apartment, the single-family character of the CT Page 1047 principal dwelling will be retained. Accessory apartments are further intended to enable the viability of Norwalk's single-family zones to be continued.
B. Regulations, Accessory apartments shall be permitted in AAA, AA, A and B Residence Zones, subject to the following requirements:
(1) Accessory apartments shall be permitted in single-family dwellings which:
(a) Have been in existence a minimum of three (3) years. (b) Are located on lots meeting the minimum lot area and width requirements of applicable zone, except that lots in the B Residence Zone must meet one and one-fourth (14) times the minimum area requirement of the B Residence Zone.
(2) The owner of the property must reside on the premises.
(3) To the maximum extent practicable, the principal dwelling and the accessory apartment shall utilize public water and sewer. If such facilities are not available within a reasonable distance, the use of private water and septic systems shall be subject to approval by the Department of Health.
C. Additional standards.
(1) An accessory apartment may extend or enlarge the principal dwelling, provided that:
(a) The single-family character of the dwelling is not changed. (b) The lot coverage of the principal dwelling is not increased by more than one hundred fifty (150) square feet. (c) A dormer does not extend in height beyond the existing roof ridge line and does not extend in depth beyond the first floor exterior wall. CT Page 1048
(2) The accessory apartment shall be a minimum of four hundred (400) square feet in area but not more than seven hundred (700) square feet in area. The area of the principal dwelling shall not be reduced to less than eight hundred (800) square feet.
(3) An accessory apartment shall contain not more than (1) bedroom, and occupancy shall be limited to three (3) persons, not more than two (2) of whom shall be adults.
(4) Three (3) off-street parking spaces shall be provided: two (2) spaces per principal dwelling and one (1) space per accessory apartment. Such parking shall be adequately drained and suitably screened from adjacent residences.
D. Procedure for approval.
(1) Applications for accessory apartments shall be subject to approval solely by the Zoning Inspector.
(2) A certificate in the form of an affidavit which verifies that the owner continues to reside on the premises and that all other conditions met at the time of the original application remain unchanged shall be submitted to the Zoning Inspector by January 31 of each year.1
Plaintiff does not challenge the Board's determination that his accessory apartment complies with the specifications set forth in 118-420 of the Regulations. He claims that once the Board determined that the accessory apartment complied with the specifications in 118-420, it was required to issue permission to proceed with the construction. He argues that in deciding that a further variance was needed, the board added standards or conditions of 118-420, expanded 118-420 by implication to include terms not expressed, engaged in legislative activity, frustrated the purpose of 118-420, violated rules of statutory construction, ignored the significance of 118-420 as a section itself permitting departures from the requirements of the regulations, and ignored the significance of the silence in 118-420 with regard to already varied property. Plaintiff also argues that once a variance is granted, the property ceases to be nonconforming and is not subject to the limitations and restrictions placed on nonconforming properties. CT Page 1049
In its brief, the Board acknowledges that the plaintiff's application for an accessory apartment met the requirements of 118-420. It also admits that the parcel is "legal by virtue of a previous variance", but argues that it "is also allowed to continue as a nonconforming use." The Board reasons that since the parcel is nonconforming, a variance was required to construct an accessory apartment. However, because a nonconforming use may not be expanded by variance, the variance was denied. Section 118-800, entitled "Nonconformities", states, in part, as follows:
C. Nonconforming uses.
(1) A nonconforming use of land or structure shall not be enlarged, extended or altered unless the use is changed to one permitted in the zone in which it is located. No nonconforming use shall be extended or expanded by variance.
The board argues that 118-420 prohibits expansion of "this legally nonconforming use" and, therefore, the action of the Board was proper.
Thus, the Board determined that the requirements for accessory apartments were satisfied. However, it also determined that the property was nonconforming and, on this basis, concluded that a variance was required. But because a nonconformity may not be extended by a variance, the Board denied the variance. This circular reasoning finds no support in the regulations.
A special exception or special permit allows a property owner to use his property in a manner expressly permitted by the regulations. A.P.W. Holding Corp. v. Planning Zoning Board,
Plaintiff correctly argues that the Board has no discretion to deny a special permit or special exception if the regulations are satisfied. Manchester v. Zoning Board of Appeals,
However, the Connecticut Supreme Court, when confronted with this issue, refused to state a general rule, but rather looked to the language of the regulations. See Talarico v. Conkling,
In the instant case, plaintiff's property was once part of a larger tract which was a nonconformity in that it existed prior to the adoption of zoning regulations. That tract was subdivided after the adoption of regulations. The piece now owned by plaintiff never existed as a nonconformity apart from the larger tract. It was made legal and is permitted by a variance.
The regulation concerning nonconformities, 118-800, does not specifically include variances as nonconformities. Section 118-800B, entitled "General regulations:, discusses nonconformities "which lawfully exist[ed] before the effective date of these regulations or amendments thereto. . .", and sets forth the circumstances under which a nonconformity shall be "deemed to have existed before the effective date of these regulations or amendments thereto." There is no mention of any specific type of nonconformity except for those which existed prior to the adoption or amendment of the Regulations.
On the other hand, 118-800A states, in part, as follows:
Purpose and intent. There exists throughout Norwalk lawful losts, structures and uses of land and structures CT Page 1051 which are nonconforming because they do not comply with these regulations as originally adopted or subsequently amended.
Applying this language, a variance would be a nonconformity because it does not comply with the Regulations as originally adopted or amended. Also, 118-800B(4) specifically states that uses permitted by special permit in accordance with 118-1450 are deemed "conforming", but does not state that uses permitted by variance are deemed conforming.
"Zoning regulations, as they are in derogation of common law property rights, cannot be construed to include or exclude by implication what is not clearly within their express terms." Planning Zoning Commission v. Gilbert,
If the court should determine that plaintiff's property is nonconforming under the facts of this case and/or under the Regulations, then the court could find that the Board acted properly in treating the property as nonconforming. However, whether or not the property is nonconforming the Board's decision cannot stand because a variance is not required in either case.
First, if the Board's stated reason for requiring a variance for an accessory apartment, i.e., that the property is nonconforming, is incorrect, its conclusion that a variance is required is left unsupported. Therefore, if the property is not nonconforming, then once the Board determined that the requirements of 118-420 were satisfied, it should have found that a permit must be issued. See Manchester,
Second, even if plaintiff's property is properly considered nonconforming, the need for a variance does not follow from this conclusion. Nowhere in 118-800 is it stated that a variance is required to extend a nonconforming use. Indeed, 118-800C(1) states the opposite and prohibits any extension of a nonconforming use by variance.
Nor does 118-420 itself require a variance or state that CT Page 1052 a permit to build an accessory apartment may be denied where the property is nonconforming or where a prior variance had been granted. Rather, the stated intent of 118-420 is to encourage the creation of accessory apartments in existing single-family residences and zones without mention of how the single-family residences in those zones came into existence.
"The conditions under which an exception is permitted must be found in the regulations themselves and cannot be altered." Parish of St. Andrew's Church v. Zoning Board of Appeals,
The court finds that the Board violated the above principles when it imposed, in addition to the requirements of 118-420, and when it implied, from 118-800, a requirement that a variance must be obtained in this case.
Also 118-800D(1) states that a "nonconforming structure may be enlarged or altered, provided that the enlargement or alteration conforms to these regulations." Since an accessory apartment is permitted under Regulations, it is a conforming use. See Melody,
Therefore, the court finds that the Board acted illegally, arbitrarily, and in abuse of its discretion in requiring, in addition to the requirements set forth in 118-420, that a variance be obtained to build the accessory apartment, and in failing to find that plaintiff was entitled to a permit once the Board determined that his application satisfied the requirements of 118-420.
The appeal of the plaintiff is sustained.
COPPETO, J.
FOOTNOTE
Burnham v. Planning & Zoning Commission , 189 Conn. 261 ( 1983 )
DeMilo v. City of West Haven , 189 Conn. 671 ( 1983 )
Parish of St. Andrew's Protestant Episcopal Church v. ... , 155 Conn. 350 ( 1967 )
Talarico v. Conkling , 168 Conn. 194 ( 1975 )
Melody v. Zoning Board of Appeals , 158 Conn. 516 ( 1969 )
Raybestos-Manhattan, Inc. v. Planning & Zoning Commission , 186 Conn. 466 ( 1982 )