DocketNumber: No. CV94 0142265 S
Citation Numbers: 1995 Conn. Super. Ct. 13482
Judges: DEAN, J.
Filed Date: 12/5/1995
Status: Non-Precedential
Modified Date: 4/18/2021
The board published notice of its decision in the Norwalk Hour on November 10, 1994. (ROR, Item 14.) The plaintiffs served the appeal on the defendants on November 22, 1994. (Sheriff's Return.) The appeal was filed with the superior court on November 28, 1995. Norwalk filed the return of record on February 9, 1995, and Di Marco filed a supplemental return of record on April 12, 1995. The plaintiffs filed their brief on May 3, 1995. Di Marco filed her brief on June 9, 1995, and Norwalk filed its brief on June 20, 1995. The plaintiffs' reply brief was filed on August 9, 1995.
In a letter dated August 3, 1994, McFadden, the Deputy Zoning Inspector, notified the plaintiffs that they were storing a vehicle on their premises which exceeded one ton, in violation of § 118-330B(4)(e) of the Code of the City of Norwalk, and that they had five days in which to remove the vehicle. (ROR, Item 2.) This notice of violation was rescinded in a letter dated September 21, 1994, in which McFadden determined that the vehicle was a recreational vehicle and therefore permitted in an "A" residence zone. (ROR, Item 4.) The defendant, Di Marco, filed an appeal with the board, dated October 3, 1994, in which she sought to overturn the decision of the Deputy Zoning Inspector rescinding the notice of violation. (ROR, Item 1.) On November 3, 1994, the CT Page 13483 board held a hearing on the appeal (ROR, Item 13.) at the conclusion of which the board determined that the vehicle was a commercial vehicle and that the storage of such a vehicle at 43 King Street is a violation of the zoning regulation. (ROR, Item 13, p. 26.) The plaintiffs now appeal that decision on the ground that the board's decision was improper, illegal, arbitrary and an abuse of discretion in that the decision was contrary to the Norwalk Zoning Regulations, and that there was not sufficient evidence to show that the vehicle was not a recreational vehicle.
The plaintiffs provided evidence to the court at the hearing held August 9, 1995, of their ownership of the property located at 43 King Street, Norwalk, Connecticut. (Exhibits A, B.) As the decision of the board was in regard to 43 King Street, this court found aggrievement pursuant to General Statutes §
"`In reviewing the actions of a zoning board of appeals we note that such a board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal. . . . The burden of proof to demonstrate that a board acted improperly is upon the party seeking to overturn the board's decision. . . . In an appeal from the decision of a zoning board, we therefore review the record to determine whether there is a factual support for the board's decision, not for the contentions of the applicant.'"Francini v. Zoning Board of Appeals,
The plaintiffs argue that the board improperly classified the military vehicle stored on their property as a commercial vehicle, rather than a recreational vehicle, in violation of the Norwalk zoning regulations. The plaintiffs also contend that the board applied additional uncodified requirements, not contained within the regulations, and that the board's decision violates General Statutes §
The regulations governing this issue are §§ 118-330B(4)(d) and (e) of the Code of the city of Norwalk. Section 118-330B provides that certain accessory uses of property are permitted. Among these permitted accessory uses are § 118-330B(4)(d), which allows the "[s]torage of recreational vehicles owned or leased by the occupant of the dwelling . . ." and § 118-330B(4)(e), which allows the "[s]torage of not more than (1) commercial vehicle, as defined in Chapter 246, Section
The plaintiffs argue that the vehicle is an antique, and therefore, recreational in nature. General Statutes §
The plaintiffs dispute that the vehicle was designed to transport personnel by pointing to the technical manual, which provides that the purpose of the vehicle is to transport general cargo. (ROR, Item 11.) In the executive session, a member of the board, Mrs. Greismer, determined, however, that "it is clearly a commercial vehicle based on the statutory definition which encompasses intent, design, what it was designed to do. It wasdesigned to haul cargo and personnel." (Emphasis added.) (ROR, Item 13, p. 23.) At the conclusion of the executive session, the board decided the appeal as follows: "This board determines that the troop transport is a commercial vehicle as provided by the zoning regulations; that the storage of the transport at the subject property constitutes a violation of the zoning regulation. That the zoning enforcement officer's decision of September 21, 1994 be . . . modified to include the aforementioned determinations and that this board further modify the zoning enforcement officer's decision of September 21, 1994 whereby the notice of violation is not rescinded and that this board order Mr. Poruban to immediately comply with the zoning regulations by removing the troop transport from the property or otherwise legally garaging the same." (Emphasis added.) (ROR, Item 13, p. 26.)
The record reflects facts sufficient to support the board's determination that the plaintiffs' vehicle was a commercial vehicle pursuant to General Statutes §
The plaintiffs also contend that the board did not limit itself to the regulations as written, but introduced a nuisance concept into the regulations. The plaintiffs rely on the comments of Mrs. Unger, who stated that the issue was not whether the vehicle was commercial, but whether it was an eye-sore. (ROR, Item 13, pp. 22-23.) In reply to this, Mrs. Greismer stated that "[w]ith all due respect . . . I do think the issue is whether it's legal or not." (ROR, Item 13, p. 23.) Furthermore, the decision of the board reflects that the issue ultimately determined was whether the vehicle was recreational or commercial under the zoning regulations. (ROR. Item 13, p. 26.) The comments of Mrs. Unger were not relied upon by the board in making its determination.
The plaintiffs also argue that the board's decision was illegal in that it violated General Statutes §
The record does not reflect that the board's determination that the vehicle was a commercial vehicle under the regulations was based upon Mr. Poruban's membership in the armed forces.
For the foregoing reasons, the plaintiffs' appeal is dismissed.
DEAN, J.