Opinion
No. CV03 0198302 S
December 20, 2004
MEMORANDUM OF DECISION
This is an appeal from a decision of the Westport Zoning Board of Appeals which sustained a decision of Katherine Barnard who is the Westport Zoning Enforcement Officer and the Director of Planning and Zoning. She advised the plaintiff that the provisions of Connecticut General Statutes § 8-26a(b) did not apply to the plaintiff's application to locate a synagogue on the property at 24 Ludlow Road, Westport, Connecticut.
This appeal represents an effort by the plaintiff, Cross Street, LLC, to expand the holding of the recent case of Poirier v. Zoning Board of Appeals of the Town of Wilton, 75 Conn.App. 289 (2003).
On August 6, 2003, the plaintiff submitted to the Westport Planning Zoning office a request for determination of applicable zoning regulations for residential properties under § 8-26a(b), of the General Statutes for property at 24 Ludlow Road.
Section 8-26a(b)
(b) Notwithstanding the provisions of any general or special act or local ordinance when a change is adopted in the zoning regulations or boundaries of zoning districts of any town, city or borough, no lot or lots shown on a subdivision plan for residential property which has been approved, prior to the effective date of such change, by the planning commission of such town, city or borough, or other body exercising the powers of such commission, and filed or recorded with the town clerk, shall be required to conform to such change.
[Editor's Note: The preceding extract sets out the pre-2004 version of CGS Section 8-26a(b). The 2004 amendment altered subsection b to read as follows:
(b)(1) Notwithstanding the provisions of any general or special act or local ordinance, when a change is adopted in the zoning regulations or boundaries of zoning districts of any town, city or borough, no lot or lots shown on a subdivision or resubdivision plan for residential property which has been approved, prior to the effective date of such change, by the planning commission of such town, city or borough, or other body exercising the powers of such commission, and filed or recorded with the town clerk, shall be required to conform to such change.
(2)(A) Any construction on a vacant lot on a subdivision or resubdivision plan approved before, on or after June 1, 2004, shall not be required to conform to a change in the zoning regulations or boundaries of zoning districts in a town, city or borough adopted after the approval of the subdivision or resubdivision. Notwithstanding subdivision (1) of this subsection, any construction on an improved lot on a subdivision or resubdivision plan approved before, on or after June 1, 2004, shall be required to conform to a zoning change adopted subsequent to said lot becoming an improved lot.
(B) For purposes of this subsection, (i) a lot shall be deemed vacant until the date a building permit is issued with respect thereto and a foundation has been completed in accordance with such building permit but shall not be deemed vacant if any structures on such lot are subsequently demolished, and (ii) a lot shall be deemed improved after the date a building permit is issued with respect thereto and a foundation has been completed in accordance with such building permit.
(3) This subsection shall not alter or affect a nonconforming use or structure as provided in section 8-2.]
There is no dispute that the property is located in a Residential AA (one-acre) zone and was shown as a lot on a subdivision plan for residential property approved in 1972 by the Westport Planning and Zoning Commission. The map was recorded in the Westport Land Records in 1972 as Map 6999.
The plaintiff's proposal for the property is to change the use to a synagogue.
There is no dispute that in 1972 (and currently) "churches and places of worship" were a permitted use in a Residence AA zone, subject to the issuance of a Special Permit from the Planning and Zoning Commission.
Other non-residential use permitted in Residence AA zone, subject to the issuances of a Special Permit, are government buildings, sewage and refuse disposal facilities, recreation facilities, municipal office buildings, administrative headquarters, fire stations, police facilities, schools, day care centers, cemeteries, golf and country clubs, museums and libraries.
On August 6, 2003, the Westport Director of Planning Zoning, acting in her capacity as Westport Zoning Enforcement Officer, advised the plaintiff that § 8-26a(b) would not apply to any future development of the property in question as a synagogue.
The August 6, 2003 letter further states: "Therefore, any future development of the property at 24 Ludow Road must comply with the present zoning regulations since this is not a residential use of the property."
As previously stated in 1972 "churches and places of worship" were allowed in the Residence AA zone by Special Permit from the Planning and Zoning Commission. At that time, the Regulations required one (1) parking space for each five (5) seats in a "church" with such parking to be located within 500 feet of the property and on the same lot as the property.
In 1996 new regulations outlining parking requirements for "places of worship" were passed by the Westport Planning Zoning Commission. The new parking requirements, § 34-5, reads as follows:
"The greater of (a) one space for each 3 occupants of the sanctuary as determined by the Fire Marshal, or (b) one space for each 3 occupants of all rooms, other then the sanctuary, used for several functions, as determined by the Fire Marshall."
Under the earlier 1972 standard, plaintiff's proposed synagogue would have required 18.4 spaces. Under the current regulation, plaintiff claims that 58.3 spaces would be required.
For purposes of this opinion, it is assumed that plaintiff is correct. The precise number under the current regulation is not relevant to a determination of this case.
The Board's position is that a change from residence to a non-residence use does not allow for utilization of the pre-June 1, 2004 § 8-26a(b) and the Poirier case. Established cases also have interpreted § 8-26a(b) strictly.
The legislative history of § 8-26a(b) is discussed in length in the Poirier case in part as follows: "In the course of the bill's adoption in 1959, debate occurred and objections were noted. Ultimately the bill passed, objections notwithstanding. The prevailing sentiment was, as stated by Representative Burton J. Jacobson of Monroe, "that the builder or developer is entitled to know the rules under which he will operate . . . Builders and developers buy land and make investments in plans relying upon the course that they will incur under a certain set of regulations. Once they have filed their plan their investment should be protected . . ." Poirier v. Zoning Board of Appeals, 75 Conn.App. 289.
Poirier simply applied the residential protection afforded to builders and developers to residential home owners.
The language of the pre June 1, 2004 § 8-26a(b) references "lots shown on a subdivision plan for residential property."
This court is aware of the legislative reaction to the Poirier case by the enactment of Public Act 04-210.
It is this court's opinion that the pre June 1, 2004 § 8-26a(b) does not reference "residential zones" and thus, does not protect "any use permitted in a residential zone."
The decision of the Westport Zoning Board of Appeals is deemed to be legally correct and the plaintiff's appeal is dismissed.
RICHARD J. TOBIN, JUDGE