Opinion
Nos. CV074026675S, CV07-4026764S
November 18, 2008
MEMORANDUM OF DECISION
The Pine Orchard Association which is located in Branford, Connecticut, was chartered by the State of Connecticut on June 18, 1903. The Association was given, and still has, certain areas of jurisdiction separate from the Town of Branford, including planning, zoning, and zoning enforcement, within the boundaries of the Association. The Association first adopted zoning regulations on June 26, 1945.
These two consolidated appeals arise out of certain decisions made on June 19, 2007 by the Zoning Board of Appeals of the Pine Orchard Association (ZBA) with respect to two appeals to the ZBA from the actions of the assistant zoning enforcement officer of the Pine Orchard Association (ZEO). The first appeal, Docket No. CV07-4026675S, was filed by John H. Dendas, Jr., Maureen Dendas, Richard W. Bowerman, Elizabeth K. Acee, Brian Valzania, and Lisa M. Donofrio (Neighbors), and named as defendants the ZBA, Mary Margaret Visnic and Kevin Visnic (Owners). The second appeal, Docket No. CV07-4026764S, was filed by the Owners and named the ZBA and the Neighbors as defendants.
This litigation has its origins in the efforts of the plaintiff Mary Margaret Visnic, the owner of the property known as 224 Totoket Road, located in the Pine Orchard section of the Town of Branford, Connecticut (property), and her husband, the plaintiff Kevin Visnic, to engage in certain construction activity on the property. The property consists of approximately one-half an acre and, at the time the first zoning ordinance for Pine Orchard was adopted on June 26, 1945, there was located on the property a building used as a residence (Building 1), and three smaller buildings (Buildings 2, 3 and 4), all used as rental residences. Building 2 was used as a year round residence, and Buildings 3 and 4 were used as seasonal residences. The property is located in an A-1 zone which permits one single-family dwelling. The property, as it was being used in December 2006, was a legal non-conforming use in that there were four residences on the property and the four buildings failed to meet the minimum setback requirements for sidelines and front yards.
The property is bounded on the South by Long Island Sound, on the West by property owned by Brian Valzania and Lisa M. Donofrio, and on the North by separate properties, one owned by Maureen Dendas, and the other by Richard W. Bowerman and Elizabeth Acee. John H. Dendas, Jr. lives with his wife Maureen on her property but he is not an owner.
By December 2006 the Owners had developed building plans which showed the demolition of Building 1, the construction of a new Building 1 residence to be occupied by the Owners, the demolition or partial demolition of Building 4, and the replacement for Building 4. The footprint of the new Building 1 included a portion of the footprint of the old Building 4. In late December 2006 these plans were shown to the Neighbors, with the exception of Elizabeth Acee. No objections to the plans were expressed by any of the Neighbors.
On December 29, 2006 the Owners submitted to the ZEO two applications for Verification of Zoning Ordinance Conformity, also referred to as a Certificate of Zoning Compliance (COC), and certain building plans. One application concerned the construction of a new Building 1, and the other the removal and partial rebuild of Building 4. On January 11 or 13, 2007 the ZEO approved the application and issued the COC with respect to the construction of Building 1, but denied the application with respect to Building 4. The denial of the application for Building 4 was based on three violations of the zoning regulations. The ZEO suggested that the Owners would need variances in order to proceed with the reconstruction of Building 4.
On January 17, 2007 the Owners placed legal notices in the Branford Review, a Branford newspaper, that applications for demolition permits for Buildings 1 and 4 had been filed on January 12, 2007. On January 12, 2007 the Owners notified some of the Neighbors by certified mail, return receipt requested, that an application for a demolition permit had been filed with the Town of Branford for the demolition of Building 4, and some of the Neighbors were so notified with respect to Building 1.
The Owners did not provide any actual notice of the issuance of the COC with respect to the construction of the new Building 1, either by mail, in person, or otherwise to the Neighbors. The ZEO did not inform the Owners that they may provide notice of the issuance of the COC, pursuant to C.G.S. Section 8-3(t), and no such notice was provided.
On February 8, 2007 the Owners filed an appeal with the ZBA seeking variances with respect to the removal and partial rebuild of Building 4. A hearing on the appeal was scheduled for March 19, 2007. The hearing was canceled when the Owners withdrew the appeal.
On March 27, 2007 the Owners received a demolition permit for the original Building 1 and commenced demolition immediately. On March 29, 2007 the Owners applied for and received a building permit to construct a new residence to replace Building 1. On April 9, 2007 the Owners received a demolition permit for Building 4 and began removing a portion of Building 4.
On April 12, 2007 the Neighbors filed a notice of appeal with the ZBA alleging that the issuance of the COC by the ZEO was improper. By the time the Neighbors' appeal was filed the Owners had finished the demolition of Building 1 and the portion of Building 4 that was to be demolished. The Owners and their family had vacated Building 1 in January, 2007 in anticipation of its demolition and had rented property elsewhere in Pine Orchard. The Owners began the construction of the new building. Footings were dug and the foundation was poured early in May 2007. On May 18, 2007 the ZEO issued a "stop work" order to the Owners and ordered that "work at the subject property should not proceed any further" until the Neighbors' appeal was heard and decided. On that same day the Owners appealed the issuance of the stop work order by the ZEO, and requested that the ZBA grant them a stay of the stop work order.
On June 4, 2007, at a duly noticed public hearing, the ZBA considered, on a consolidated basis, the Neighbors' appeal from the issuance of the COC, the Owners' appeal from the issuance of the stop work order by the ZEO, and the Owners' request for a stay of said order. On June 19, 2007, the ZBA voted to uphold in part, and deny in part, the Neighbors' appeal, and to deny the Owners' appeal. The portion of the Neighbors' appeal that was upheld consisted of a reversal of the actions of the ZEO with regard to approving zoning ordinance conformity of the proposed building height, and with regard to approving zoning ordinance conformity of the north front yard setback requirements for the construction of Building 1. In all other respects the ZBA denied the Neighbors' appeal and affirmed the actions of the ZEO. With respect to the Owners' appeal, the ZBA denied the request for a stay of the ZEO's order to stop work at 224 Totoket Road.
On June 27, 2007 the Neighbors filed an appeal from the ZBA's decisions to this court. On July 7, 2007 the Owners filed their appeal of the ZBA's decisions to this court. Both appeals were filed within fifteen days from the date that notice of the decisions was published and therefore were timely. C.G.S. Section 8-8(2)(b). On September 27, 2007 the court consolidate the appeals and ordered the parties to file consolidated briefs for both appeals. Appropriate briefs and reply briefs have been filed by all parties. This court heard oral argument on both appeals on August 14, 2008.
The issues in their respective appeals to this court which have been briefed by the Neighbors and the Owners, are as follows:
By the Neighbors: (1) did the ZBA properly determine that the proposed construction of a new single family residence, Building 1, did not constitute an impermissible expansion of a nonconforming use; and (2) did the ZBA properly conclude that under the Pine Orchard zoning regulations the proposed construction of Building 1 did not require a special permit.
By the Owners: (1) did the ZBA properly determine that the Neighbors' appeal to the ZBA was timely; (2) did the ZBA properly deny the Owners' appeal of the stop work order; (3) did the ZBA properly determine that under the Pine Orchard zoning regulations the driveway into the property was a "private road," and therefore the proposed new Building 1 required a front yard setback; and (4) did the ZBA properly determine that the proposed structure exceeded the height limitations set forth in the Pine Orchard zoning regulations.
Each of the plaintiffs must plead and prove that they are aggrieved by the decisions of the ZBA in order to maintain an appeal to the Superior Court, Jolly v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996). Aggrievement may be either statutory or classical. C.G.S. Section 8-8(a)(1) proscribes that an "aggrieved person" includes any person who owns land that abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of a zoning board of appeals. Classical aggrievement exists when one has a specific, personal and legal interest in the subject matter of the decisions of the ZBA, as distinguished from a general interest, such as is the concern of all members of the community as a whole. In addition, one claiming to be classically aggrieved must establish that this specific personal and legal interest has been specially and injuriously affected by the decisions. Briggs v. McWeeny, 260 Conn. 396, 308 (2002).
Owner plaintiff Mary Margaret Visnic, as the owner of the property which is the subject of the decision, has proven statutory aggrievement. Neighbor plaintiffs Maureen Dendas, Richard W. Bowerman, Elizabeth K. Acee, Brian Valzania, and Lisa M. Donofrio have proven that they are owners of land that abuts or is within one hundred feet of the property which is the subject of the decisions of the ZBA and the court finds that they are each statutorily aggrieved. Owner plaintiff Kevin Visnic and Neighbor plaintiff John H. Dendas, Jr. reside with their respective spouses, but they are not owners. They have failed to prove statutory aggrievement, and they have failed to prove that they are classically aggrieved. The court finds that Kevin Visnic and John H. Dendas, Jr. do not have standing to maintain their respective appeals.
The law is clear with respect to the role of a zoning board of appeals when considering an appeal from the decision of a zoning enforcement officer. "The board conducts a de novo review on an appeal from a decision of the zoning officer. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 88-89, 626 A.2d 744 (1993). "The board `is in the most advantageous position to interpret its own regulations and apply them to the situations before it.' (Internal quotation marks omitted.) Doyen v. Zoning Board of Appeals, 67 Conn.App. 597, 603, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002). It is, therefore, `entrusted with the function of interpreting and applying [its] own zoning regulations.' (Internal quotation marks omitted.) Borden v. Planning Zoning Commission, 58 Conn.App. 399, 411, 755 A.2d 224, cert. denied, 254 Conn. 921, 759 A.2d 1023 (2000). `Generally, it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply.'"(Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 697, 784 A.2d 354 (2001). Munroe v. Zoning Board of Appeals, 75 Conn.App. 796, p. 801 (2003).
"[O]n appeal from [the] zoning board's application of [a] regulation to [the] facts of [a] case, [the] trial court must decide whether the board correctly interpreted the regulation and applied it with reasonable discretion." (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, supra, 258 Conn. 698. "[C]ourts should accord great deference to the construction given [a] statute by the agency charged with its enforcement." (Internal quotation marks omitted.) Cimochowski v. Hartford Public Schools, 261 Conn. 287, 296, 802 A.2d 800 ( 2002); Munroe v. Zoning Board of Appeals, supra, 75 Conn.App. 796, p. 803. The burden of proving that the ZBA acted improperly is on the party seeking to overcome the decision or decisions of the ZBA. Francini v. Zoning Board of Appeals, 228 Conn. 785, 791 (1994). "In light of the existence of a statutory right of appeal from the decisions of local zoning authorities, however, "a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty . . ." Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn.App. 53.
The Neighbors' Appeal 1. Did the ZBA properly determine that the proposed construction of a new Building 1 did not constitute an expansion of a non-conforming use.The first claim of the Neighbors in their appeal from the decisions of the ZBA, and which is pursued in their brief, is that the construction of the new Building 1 will increase the coverage of the dwellings on the property from approximately 13.5 percent to 24.1 percent of the property, and that this increase of coverage constitutes an impermissible expansion of a nonconforming use.
In support of the claim that the ZBA allowed an impermissible expansion of a nonconforming use, the Neighbors claim that the ZBA, in making the decision that the new Building 1 did not constitute an expansion of a nonconforming use, failed to interpret Section VII of the zoning regulations. Section VII proscribes, in substance, that a nonconforming use of a structure or lot is one which existed lawfully on the date the regulations became effective, and which does not conform to the zoning regulations; that such nonconformities are incompatible with and detrimental to permitted uses in the districts where they are located; that they inhibit present and future development of nearby properties; and that it is the intent of the regulations that nonconformities are not to be expanded, enlarged, extended or altered, and that they should be abolished or reduced to conformity as quickly as the fair interests of the parties permit. Section VII, 7.1, 7.1.1, 7.1.2, 7.1.3.
A review of the record discloses that the ZBA was aware that the zoning regulations did not allow nonconforming uses to be expanded, enlarged, extended or altered. The discussion by the ZBA members centered on whether or not the construction of the new Building 1 did, in fact, constitute an impermissible expansion of a nonconforming use. That the Pine Orchard zoning regulations should be interpreted as looking with disfavor on nonconforming uses, that they should not be expanded, enlarged, extended or altered, and that such uses should be abolished or reduced to conformity as quickly as possible was an argument presented to the ZBA by the Neighbors and that interpretation does not appear to be in dispute. That interpretation was implicit in the discussion by the members of the ZBA on June 19, 2007.
As indicated above, the claim by the Neighbors that the construction of the new Building 1 is an impermissible expansion of a nonconforming use is centered on the evidence that with the new construction the total coverage of all buildings on the property will increase from 13.5 percent to 24.1 percent of the property. There is no claim that the 24.1 percent coverage exceeds the maximum coverage allowed in the zone. Section VI of the zoning regulations provides that in an A-1 zone the maximum building area is twenty-five percent of the lot.
The original Building 1 was a nonconforming use because it was one of the four residences on property which the zoning regulations restricted to one residence, and because its location was in violation of the setback requirements, "The prohibition of expansion of nonconforming uses applies only to the aspect of the use or structure which is nonconforming." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 52.1, p. 548. "[A] mere increase in the amount of business done pursuant to a nonconforming use is not an illegal expansion of the original use . . . A change in the character of a use, however, does constitute an unlawful extension of the prior use . . . 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." (Citations omitted; internal quotation marks omitted.) Hall v. Brazzale, 31 Conn.App. 342, 348, 624 A.2d 916, cert. denied, 227 Conn. 905, 632 A.2d 691 (1993). Barbieri v. Planning Zoning Commission, 80 Conn.App. 169, pp. 177 (1993). The evidence in this case on this issue was such that a determination as to whether the construction of the new Building 1 was an illegal expansion of a nonconforming use was a question of fact for the ZBA to decide. Wood v. Zoning Board of Appeals, 258 Conn. 691, 708 (2001). In making such a factual decision the ZBA was entitled to consider the three factors set forth in Barbieri, that the existing use was as a one-family residence, that the proposed use would still be as a one family residence, and that the new location cured the setback requirements that the original building violated. The decision by the ZBA that the reconstruction of Building 1 is not an impermissible expansion of a nonconforming use is fully supported by the facts on record.
2. Did the ZBA err in finding that under the zoning regulations a special permit was not required in connection with the construction of the new Building 1.The other claim made by the Neighbors in their appeal, and pursued in their brief, is that given the unique characteristics of the property, traffic issues, undue concentration of structures and safety issues, the ZBA erred in finding that under the zoning regulations a special permit was not required. The court notes that in argument before the ZBA on June 4, 2007, the Neighbors also claimed that a special permit was required because the property is a rear lot. The claim that a special permit was required because the property is a rear lot is not included in the appeal and has not been briefed.
The record clearly supports the factual decision reached by the ZBA that a special permit was not required before the issuance of the COC. Section V of the zoning regulations provides for special permit uses. Section 5.1 is the preamble to the special uses section. Section 5.3 sets forth a list of ten uses and features, the existence of any one of which requires the applicant to seek a special permit. The list includes, among others, such uses and features as dividing a lot into two lots, schools, fire stations, churches and rear lots. The list does not include the unique characteristics of the property, traffic issues, undue concentration of structures and safety issues as being a use or feature which requires a special permit. Section 5.1.1 — 5.1.6 lists the factors that the zoning authority must take into account in determining whether a special permit which has been applied for should be granted. Section 5.2 — 5.2.7 provide a list of additional safeguards which the zoning authority may attach to a special permit which it grants.
The claim of the Neighbors that a special permit should have been obtained by the Owners before the COC was issued because of the factual claims set forth in their appeal and in their brief is without merit. Section 5.3 of the zoning regulations lists the uses and features situations which require a special permit and the factual claims alleged in the appeal and brief are not included. The list does include a provision that property which is a rear lot must obtain a special permit. The record reflects that the ZBA discussed whether the property is a rear lot which would then require that a special permit be obtained. The ZBA concluded that the property was not a rear lot and that the evidence did not require that a special permit be obtained. The record supports these conclusions.
The Owner's Appeal 1. Was the Neighbors' appeal to the ZBA timely.
The first claim of the Owners is that the ZBA acted improperly when it found that the Neighbors' April 12, 2007 appeal to the ZBA from the issuance of the COC was timely. The COC had been issued by the ZEO on January 11 or 13, 2007. While the Owners concede that the Neighbors did not receive actual notice of the issuance of the COC, they claim that the evidence before the ZBA was sufficient to prove that the Neighbors had constructive notice of such issuance more than thirty days before their appeal was filed.
The right of one who is aggrieved by the decision of a zoning enforcement officer to take an appeal to the zoning board of appeals, the time within which such appeal must be taken, and when the appeal period commences, is proscribed in C.G.S. Section 8-7 which provides in relevant part: "An appeal may be taken to the zoning board of appeals by any person aggrieved . . . and shall be taken within such time as is proscribed by a rule adopted by said board, or if no such rule is adopted by the board, within thirty days, by filing with the zoning commission or the officer from whom the appeal has been taken and with said board of notice of appeal specifying the grounds thereof. Such appeal period shall commence for an aggrieved person at the earliest of the following: (1) upon receipt of the order, requirement or decision from which such person may appeal; (2) upon the publication of a notice in accordance with Subsection (f) of Section 8-3; or (3) upon actual or constructive notice of such order, requirement or decision . . ."
The ZBA has not adopted a rule proscribing a time in which an appeal may be taken, and the Owners do not claim that notice was given pursuant to either (1) or (2) of the statute, or that the Neighbors had actual notice of the decision of the ZEO more than thirty days before the appeal was filed. The Owners claim that the Neighbors had constructive notice of the decision. "Constructive notice is premised on the policy determination that under certain circumstances a person should be treated as if he had actual knowledge so that one should not be permitted to deny knowledge when he is acting so as to keep himself ignorant." Hall v. Burns, 213 Conn. 446, p. 479 (1990). By way of their brief the Owners claim that the Neighbors had constructive notice of the issuance of the COC because they should have known that zoning approval had been granted based on the meeting between the Owners and the Neighbors in December 2006, the "notice of the demolition permit," and their own education and experience, which included the fact that two of the Neighbors are attorneys. The evidence before the ZBA indicated that the Neighbors had received notice of the applications for demolition permits, but not notice of the issuance of the permits. In addition, the aforesaid meeting in December 2006 was with five out of six Neighbors. There was no evidence before the ZBA which reasonably could be construed as constituting constructive notice to the Neighbors of the issuance of the COC. The evidence before the ZBA clearly supports the factual determination by the ZBA that the appeal was timely because the Neighbors did not have actual or constructive notice of the issuance of the COC by the ZEO more than thirty days before their appeal was filed on April 12, 2007.
2. Was the refusal of the ZBA to issue a stay of the stop work order proper.
The second issue raised by the Owners concerns the stop work order issued by the ZEO to the Owners on or about May 18, 2007. The COC had been issued by the ZEO on January 11 or 13, 2007, and the Owners received a building permit on March 29, 2007 for the construction of Building 1. The Neighbors filed their appeal on April 12, 2007 from the issuance of the COC, and the Owners were proceeding with the pouring of the foundation for Building 1 when the stop work order was issued. By its decision on June 19, 2007 the ZBA refused to grant the Owner's request for a stay of the stop work order.
C.G.S. § 8-12 provides that all of the zoning regulations shall be enforced by the ZEO. C.G.S. § 8-7 provides that "an appeal from any decision of (a ZEO) shall stay all proceedings in the action appealed from" except under certain conditions not applicable in the instant case. The stop work order was issued pursuant to these statutes and was proper. The ZBA's decision to deny the request for a stay of the order was also proper, particularly in view of the finding by the ZBA that the issuance of the COC was improper because the new Building 1 did not comply with the north front yard setback and height requirements of the zoning regulations.
3. Did the ZBA properly determine that the drive into the property is a private road, and therefore Building 1 required a front yard setback.
In the hearing before the ZBA on June 4, 2007 the Neighbors claimed that the drive into the property should be determined by the ZBA to be a "private road" as defined in Section XIII of the zoning regulations, that the new Building 1 abutted the private road, and that the building was subject to the "front yard setbacks for private roads" as proscribed in Section XIII.
The definitions section of the zoning regulations define a "private road" as a drive or roadway for use by motor vehicles serving three or more residences and privately owned. The zoning regulations also defined the "front yard" as the required open space between the street line and a line parallel thereto across the lot through the nearest point of the building. The zoning regulations also provide that when any lot or building abuts a private road, the street line to be used for the measurement of the front yard shall be a line parallel with and offset twenty-five feet from the centerline of the road. The regulations include a sketch of front yard setback requirements for private roads.
The evidence before the ZBA, specifically Return of Record #35, a May 3, 2005 survey of the property done by James Nagle before any changes were made to the property, and #37, a December 29, 2006 survey done by Joseph Sepot showing the proposed construction of the new Building 1 and the outline of the demolished Building 1 demonstrates the following:
The property is located at the junction of two public roads, Pine Orchard Road and Totoket Road. Access to the main portion of the property is by way of a driveway over a narrow strip of land, approximately fifteen feet wide and forty feet long which runs from the public road junction to the northwest corner of the main portion of the property and then across the north end of the property for approximately ninety feet. The total length of this driveway is approximately one hundred and thirty feet. For its entire length, the driveway on its north side abuts property owned by Mrs. Dendas, Mr. Bowerman and Ms. Acee. On its south side from the junction, for approximately forty feet, the driveway abuts property owned by Mr. Valzania and Ms. Donofrio. At the end of the driveway it opens up into an area which extends southerly for approximately thirty-four feet and ends at the north side of the garage of the new Building 1.
A comparison of the 2005 and 2006 surveys shows that the driveway across the north end of the property is identical in each survey. It is described on the earlier survey as "Bit Drive" and on the later survey as "Existing Bit Drive." The area leading up to the garage of the demolished Building 1, which faces east on the earlier survey, is described as "Bituminous Parking Area." The area leading up to the garage of the new Building 1, which faces north on the later survey, is labeled "Proposed Driveway." The two areas leading up to the garages in the two surveys are in essentially the same location.
The ZBA determined that under the definitions in the zoning regulations the drive into the property was a private road because it found that the drive was for use by motor vehicles, serving three or more residences, and was privately owned. In reaching its decision regarding the drive, it is clear from the transcript of the "Discussion and Decision" held on June 19, 2007 that the ZBA did not consider or even discuss that the drive was a nonconforming use. The ZBA was conducting a de novo hearing. "It is the board's responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to these facts." Caserta v. Zoning Board of Appeals, 226 Conn. 80, 90 (1993). It was within the authority of the ZBA to determine that the drive was in fact a private road, and having made that determination, that the new Building 1 was too close on the north side to the newly-designated private road. However, the ZBA was required to apply all of the pertinent zoning regulations to the facts which it found. Section II of the zoning regulations covers "Existing Uses" and provides that "Nothing in these regulations shall prohibit the continuance of existing nonconforming uses of any building or land as they exist on the effective date of these Regulations." Once the driveway is designated as a private road, the effect of the regulations is that the new Building 1 must be seventy-five feet from the centerline of the road.
The Owners claim that it is inconsistent for the ZBA to find on one hand that the original Building 1 was a nonconforming use and that the construction of the new Building 1 is not an expansion of a nonconforming use, and on the other hand to find that the driveway, which at the time the zoning regulations were adopted was being used by motor vehicles serving three or more residences and was privately owned, is now to be designated as a private road, and that the new Building 1 must comply with the front yard setback requirements. It is clear from the record that the use of the driveway, and it's location with respect to the original Building 1, since before the zoning regulations were adopted, has not changed and was a nonconforming use, and that its use is not impermissibly expanded with the construction of the new Building 1. The driveway and its use and relationship to both the original and new Building 1 was, and continues to be, a nonconforming use. The slight change at the end of the driveway to accommodate the relocation of the garage of new Building 1 could not reasonably be found to constitute an expansion of the nonconforming use. The ZBA properly found that the relocation of a new and larger Building 1 was not an impermissible expansion of a nonconforming use, and the same analysis that the ZBA used in that determination applies to the driveway. In the discussion by the ZBA wherein it concluded that the driveway was a "private road," the ZBA did not discuss whether the old driveway was a nonconforming use or whether the slightly altered new driveway was an impermissible expansion of a nonconforming use.
The transcript of the June 19, 2007 discussion and decision by the ZBA demonstrates that the "driveway" that the ZBA was designating as a "private road" was the narrow driveway across the north end of the property. The reference to "D1" in line 23 of page 26 of the transcript obviously should be Z1, which is the same survey referred to on page 27 of the transcript as appellants' exhibits 3 and 6. All of these exhibits contain the December 29, 2006 survey by Mr. Sepot referred to above. In an unsuccessful effort to determine the extent of the front yard setback violation, the transcript reflects on page 27 that the IRA discussed the distance from the garage doors north to the far edge of the property as being 48'5" which is the distance shown on the December 29, 2006 survey.
The four structures on the property, their uses, and the location and use of the driveway all pre-date the adoption of the zoning regulations, and to the extent that any one or all of them do not conform to any setback requirements, they are nonconforming uses.
The property has been serviced by the driveway since before the zoning regulations were adopted, and the driveway, at all times, based on the ZBA 2007 analysis, has been a "private road." The demolished Building 1, now to be replaced by the new Building 1, abutted the "private road" and to the extent that it was in violation of the north front yard setback regulation, was a nonconforming use.
The construction of the new Building 1 was determined by the ZBA not to be an impermissible expansion of a nonconforming use. The relationship of the new Building 1 to the "private road" is that of a nonconforming use. The three criteria for determining whether a nonconforming use has been impermissibly expanded require an examination of (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." Barbieri, supra, 80 Conn.App. 169, 177. Even though one chooses to label the driveway as a "private road," the application of the three criteria of Barbieri to the evidence in the record shows that the existing and proposed uses are as a driveway into the property, and that the proposed use would have no impact on the neighborhood.
The record is clear that the ZBA should have applied the "Existing Uses" section of the zoning regulations to the facts of this case, and had they done so the only reasonable decision would have been that the new Building 1 and its proximity to the driveway was a permitted nonconforming use. To have concluded otherwise would have been an abuse of discretion. For all of the foregoing reasons, the court finds that the ZBA was in error when found that the new construction of Building 1 violated the north front yard setback requirements of the zoning regulations, and that portion of the ZBA's decision is reversed.
4. Did the ZBA properly determine that the new Building 1 exceeded the height limit set forth in the zoning regulations.
The final claim of the Owners is that the ZBA did not properly interpret the zoning regulations when it found that the proposed Building 1 exceeded the height limitation as set forth in the zoning regulations.
Section VI of the zoning regulation provides that the maximum height of a building in all zones is thirty feet. Section XIII, the definitions section, provides that "the height of a building shall be measured from the level of the ground at the foundation on the highest part of the lot to the highest point of the building, excluding chimneys."
The evidence before the ZBA indicated that the proposed Building 1 exceeded the thirty feet height restriction because located on the roof of the building was a platform and railing known as a "widow's walk," which has been defined as "a railed observation platform atop a coastal home." Webster's Seventh New Collegiate Dictionary. Without the widow's walk the building did not exceed thirty feet in height.
The ZBA interpreted the zoning regulations as requiring that the widow's walk be included in measuring the height of the proposed building and thus found that the regulation was violated. The Owners refer to testimony by the ZEO and their architect and claim that this evidence establishes prior administrative decisions by the ZBA interpreting the regulations as not including a widow's walk in determining the height of a building. The court finds that this evidence only raised the possibility that the ZBA had previously so interpreted the height regulation. The evidence of alleged prior interpretations was very general and did not specify when or where the ZBA had previously so interpreted.
"Boards of appeal are necessarily entrusted with the function of deciding within prescribed limits, and consistent with the exercise of legal discretion, whether the ordinance applies to a given situation and the manner in which it does apply." Stern v. Zoning Board of Appeals, 140 Conn. 241, 145 (1953). The record demonstrates that the ZBA concluded that since the regulation specifically excluded only chimneys in determining the height of a building, that other building components, such as a widow's walk, should be included. This was an interpretation which the ZBA was authorized to make in the exercise of its discretion.
In Docket No. CV07-4026675S the court finds the following:
1) The plaintiff John H. Dendas, Jr. has failed to prove that he is aggrieved by the decisions of the ZBA and his appeal is dismissed.
2) The plaintiffs, Maureen Dendas, Richard W. Bowerman, Elizabeth K. Acee, Brian Valzania and Lisa M. Donofrio have proven that they are aggrieved by the decisions of the ZBA.
3) The ZBA did not err when it found that the proposed new construction of Building 1 was not an impermissible expansion of a nonconforming use and said decision is affirmed.
4) The ZBA did not err when it found that under the zoning regulations a special permit was not required before the issuance of a certificate of zoning compliance to the Owners and said decision is affirmed.
5) The appeal is dismissed.
In Docket No. CV07-4026764S, the court finds the following:
1) The plaintiff Kevin Visnic has failed to prove that he is aggrieved by the decision of the ZBA and his appeal is dismissed.
2) The ZBA did not err when it found that the Neighbors' appeal to the ZBA was timely and said decision is affirmed.
3) The ZBA did not err when it refused to grant a stay of the ZEO's stop work order and said decision is affirmed.
4) The ZBA erred when it failed to find that the proposed new Building 1 and the drive were nonconforming uses and therefore not subject to the front yard setback requirements of a private road, and the decision that the new Building 1 was in violation of the north front yard setback requirement is reversed.
5. The ZBA did not err when it found that the proposed new Building 1 exceeded the height limitations of the zoning regulations and said decision is affirmed.
6. The appeal is dismissed.