Opinion
CV156050333S
03-31-2016
Kimberly Fabrizio et al. v. Trumbull Planning and Zoning Commission et al
Filed April 1, 2016
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Richard P. Gilardi, Judge Trial Referee.
The issue presented is whether the court should sustain an appeal of the planning & zoning commission's approval of a special permit application to convert a beauty salon to a real estate office. The appeal should be dismissed because the beauty salon was a nonconforming use, and the real estate office, as proposed, is a permissible intensification of that nonconforming use.
On April 16, 2015, the plaintiffs, Kimberly Fabrizio and Dean Fabrizio, commenced this land use appeal by summons and complaint upon the defendants, the Town of Trumbull Planning & Zoning Commission (the Commission) and Mark Greengarden (Greengarden). The plaintiffs allege the following facts. The plaintiffs are the owners of property located at 6306 Main Street, Trumbull, Connecticut. Greengarden is the contract purchaser of real property located at 6316 Main Street, Trumbull, Connecticut (the property) from the owners, Rocco Veltri (Veltri) and Maria Veltri. The property is located directly across the street from the plaintiff's property, in a residential zoning district.
On November 26, 2014, Greengarden filed an application with the Commission requesting a special permit and site plan approval, pursuant to Article I, § 4.2.3 and Article XV of the Zoning Regulations of the Town of Trumbull (Zoning Regulations), in order to convert a previously existing nonconforming use from a beauty parlor to a real estate office. A public hearing was conducted on March 18, 2015, at which presentations and exhibits were offered both in support of and in opposition to the application. At the Commission's administrative session, held that same evening, Greengarden's application was approved by a vote of three in favor and two opposed.
The following documents were submitted as part of the Record of Return (ROR): (1) The application for special permit; (2) the approval letter regarding the special permit; (3) an opposition presentation packet; (4) an opposition coversheet with notes; (5) a photograph of the property; (6) copies of the hearing continuation letters; (7) staff comments; (8) a letter from the Town of Trumbull Engineering Department; (9) a letter from Quatrella and Rizio, LLC; (10) opposition letters from neighborhood residents; (11) a copy of approval variance application #15-09, to remove a condition from the 1967 special permit, accompanied by the 1967 special permit; (12) a floor plan and plot plan for 6316 Main Street; (13) a letter from Jamie Bratt to Rocco Veltri; (14) a data accumulation plan; (15) the agenda for the March 18, 2015 hearing; (16) minutes for the March 18, 2015 hearing; (17) a transcript of the March 18, 2015 hearing; and (18) a copy of the Trumbull Zoning Regulations, effective as of July 25, 2008.
The plaintiffs claim that the Commission, in approving the special permit application, acted illegally, arbitrarily, and in abuse of its vested discretion. The plaintiffs further allege that they are aggrieved by the Commission's decision as they are owners of real property which is located within a one-hundred-foot radius of the property, and are adversely affected by its decision in that the plaintiffs will be denied full use and enjoyment of their land and property due to the significant traffic, parking congestion, noise, neighborhood disruption, and danger to the plaintiffs and their children that will result due to the approval of Greengarden's application.
The plaintiffs request that the court sustain the appeal and reverse the commission's decision by directing the commission to deny the application. The plaintiffs filed a brief, dated November 19, 2015, in support of the appeal. Greengarden and the Commission each filed briefs in opposition, to which the plaintiffs filed a brief in reply. An administrative appeal trial was held on December 10, 2015.
AGGRIEVEMENT
As a preliminary matter, the plaintiffs must demonstrate aggrievement. " 'Aggrieved person' means a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, 'aggrieved person' includes any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." General Statutes § 8-8(a)(1). " [P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved . . . Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest." (Citations omitted; internal quotation marks omitted.) Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 664-65, 899 A.2d 26 (2006).
At the December 10, 2015 hearing, the plaintiffs presented testimony from Kimberly Fabrizio and a certified copy of the deed of sale of the plaintiffs' property, which established that the plaintiffs' property is located within a radius of 100 feet of the property involved in the Commission's decision. Moreover, there is a possibility that the Commission's decision will have an adverse effect on the plaintiffs' specific interests. As stated at the conclusion of that hearing, the court finds that the plaintiffs are aggrieved by the Commission's decision and have standing to pursue the instant appeal.
THE PLAINTIFFS' APPEAL
The court now turns to review of the Commission's decision. " [T]here is a strong presumption of regularity in the proceedings of a public body such as a municipal planning and zoning commission . . ." (Internal quotation marks omitted.) Clifford v. Planning & Zoning Commission, 280 Conn. 434, 441, 908 A.2d 1049 (2006). " [A zoning] 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 the board acted improperly is upon the party seeking to overturn the board's decision." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994). " In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294, 947 A.2d 944 (2008).
In support of the appeal, the plaintiffs argue that the Commission had no legal authority to grant the relief sought by Greengarden because the use of the property as a beauty salon was not a nonconforming use. Rather, the plaintiffs contend that the beauty salon was an illegal use that had been allowed by variance, as authorized by the 1967 decision of the Zoning Board of Appeals. In turn, the Commission had no authority to substitute a new illegal use with the previously authorized illegal use. The plaintiffs additionally argue that Greengarden failed to meet his burden of proof that the substituted use created no greater impact on the property, neighborhood, adjacent properties, and zones.
The plaintiffs initially argued that the Commission improperly failed to close the public hearing in a timely manner. Upon review of the arguments and law cited by the defendants in their respective briefs, however, the plaintiffs chose to abandon that claim of error and not pursue it as part of the appeal. (Pl. Reply Brief, #114.) Accordingly, the court need not address that argument in its decision.
In opposition, the defendants argue that the 1967 decision was not a variance, but, rather, a special exception to then-existing zoning regulations. Since a beauty salon use can no longer be obtained by special permit in a " Residence A" zoning district, the defendants argue that the use of the beauty salon is now a nonconforming use, and it is within the authority of the zoning board of appeals grant the application permitting the nonconforming use to continue. The defendants further contend that there was substantial evidence in the record to support the Commission's approval.
As indicated by the 1967 decision, the original use of the property as a beauty salon was approved by special permit, not as a variance. Special permits then, as now, carried a specific legal effect and could be granted under the authority of the Zoning Board of Appeals. See, e.g., Summ v. Zoning Commission, 150 Conn. 79, 87, 186 A.2d 160 (1962) (special permit, issued pursuant to General Statutes § 8-2, allows property owner to put property to use which the regulations expressly permit). The plaintiffs bear the burden of demonstrating that the Commission acted improperly. There is no evidence that the use as a beauty parlor was an illegal use under the then-existing zoning regulations, or that Veltri had been required to undergo the vigorous application process required to secure a variance. Thus, regardless of the 1967 decision's characterization by the parties, who have referred to it alternately as special permit or a variance, there is no reason to conclude that it was anything other than a special permit approval accordingly the use of the property as a beauty salon was an authorized legal use by special permit, not an authorized illegal use by variance.
" A permitted use is not a nonconforming use; a nonconforming use is merely an existing use established prior to zoning regulations or which existed when the regulations changed, the continuance of which is authorized by statute or by the zoning regulations." R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (4th Ed. 2015) § 52.1, p. 222. When a special permit is granted for a given use, and as a result of changes to the zoning regulations, such special permit could not again be issued by the zoning commission, any proposed changes to the use are analyzed as if the use is nonconforming. This shift is consistent with the Trumbull Zoning Regulations, which define a nonconforming use as " [t]he actual Use of a Parcel of land, Buildings, or Structures which is not a Use permitted on the effective date of these Regulations (March 1927) for the zone in which such use is occurring, but which was legally existing and conformed to all requirements of the Regulations then in force, if any, on the effective date of these Regulations or on the effective date of any amendment hereto which caused the use to cease to meet the requirements of these Regulations ." (Emphasis added.) Article I, § 3.107 of the Zoning Regulations. In turn, the Zoning Regulations allow for one nonconforming use to be replaced with another nonconforming use, provided certain criteria are met.
Article I, § 4.2.3 of the Zoning Regulations provides: " Substitution. Any nonconforming use may be replaced with another nonconforming use, as a Special Permit before the Commission in accordance with Article XV (Special Permit) of these Regulations, provided that such replacement use is consistent with the public health, safety and welfare; with the character of the neighborhood, adjacent properties and zones; with the appropriate and orderly development of the neighborhood, adjacent properties, and zones; and provided, further, that such replacement use creates no greater impact on the property, the neighborhood, adjacent properties and zones, in terms of parking, volumes and types of traffic, property values, hours of operation, exterior appearance of the building, structure or lot, or any other factors to be considered by the Board pursuant to Article XV of these Regulations."
The plaintiffs have not demonstrated what regulations were in effect when the 1967 special permit was authorized. " An application for a special permit seeks permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district." Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 216, 779 A.2d 750 (2001). At some point between the issuance of the 1967 special permit and the instant application, there was a change that caused the permitted use to no longer meet the requirements of the Zoning Regulations. This change rendered the operation of the beauty salon on the property to be a nonconforming use. Therefore, the commission, in deciding the instant application, had the authority to substitute one nonconforming use for another pursuant to Article I, § 4.2.3 of the Zoning Regulations.
The remaining issue is whether the Commission's approval of Greengarden's application is supported by the record. " The rule concerning the continuance of a non-conforming use protects the right of a user to continue only the same use of the property as it existed before the date of the adoption of the zoning regulations . . . It has been consistently required that the use existing at the adoption of the zoning regulations be actual and not merely contemplated." (Citations omitted; internal quotation marks omitted.) Karls v. Alexandra Realty Corporation, 179 Conn. 390, 398, 426 A.2d 784 (1990). " [W]e have stated, in defining the words 'existing use, ' that we mean a utilization of the property so that it may be known in the neighborhood as being employed for a given purpose; that neither the extent nor the quantity nor the quality of the use which may be permitted to continue is prescribed by those words; and that it is only required that the use must have existed. The court is not generally required to speculate as to the number of acts or business transactions necessary to constitute an existing use." (Internal quotation marks omitted.) DiBlasi v. Zoning Board of Appeals, 224 Conn. 823, 831, 624 A.2d 372 (1993). " Where a nonconformity exists, it is a vested right which adheres to the land itself. And the right is not forfeited by a purchaser who takes with knowledge of the regulations which are inconsistent with the existing use." (Internal quotation marks omitted.) Woodbury Donuts, LLC v. Zoning Board of Appeals, 139 Conn.App. 748, 761, 57 A.3d 810, 819 (2012).
" A change in the character of a use, however, does constitute an unlawful extension of the prior use." Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 716, 519 A.2d 49 (1986). " To be illegal, an extension of a permitted use need not necessarily consist of additional uses of a different character. It may consist of uses of the same character carried on over a substantially additional period of the year . . . The legality of an extension of a nonconforming use is essentially a question of fact." (Internal quotation marks omitted.) Woodbury Donuts, LLC v. Zoning Board of Appeals, supra, 139 Conn.App. 762.
" While a change in intensity may be a valid criterion for determining whether to allow a change in use, it is not an acceptable criterion for determining whether a proposed use is a change in use or a continuation of an existing use. We have previously held that a mere increase in the amount of business done pursuant to a nonconforming use is not an illegal expansion of the original use. Second, the use at the time of the adoption of zoning regulations is not frozen. The amount of business may be increased . . . and the nonconforming use may continue despite changes in ownership or tenancy . . ." (Citations omitted; internal quotation marks omitted.) DiBlasi v. Zoning Board of Appeals of Town of Litchfield, supra, 224 Conn. 833.
Under this rubric, a proposed continuation of a nonconforming use may be permissible even when the volume of actual use would increase considerably. For instance, in Planning & Zoning Commission v. Craft, 12 Conn.App. 90, 91-92, 529 A.2d 1328, cert. denied, 205 Conn. 804, 531 A.2d 937 (1987), the plaintiff sought to prevent the defendants from occupying a seasonal property on a year-round basis, in violation of a town zoning regulation. The trial court found for the defendants, ruling that the year-round use of the property was not an illegal enlargement of the existing non-conforming use, and that the defendants were permitted to occupy the property at any time of the year for weekends, holidays, and vacations. Id., 93.
The Appellate Court agreed, holding that " [w]hile the change in use from two or so days a week to seven days a week, or from vacation time to full-time, may constitute an intensification of use, we do not find upon the facts of this case, that it compelled a factual finding by the trial court that such additional use was an illegal expansion or extension of a nonconforming use." Planning and Zoning Commission of Town of Lebanon v. Craft, supra, 12 Conn.App. 100. In reaching its decision, the court emphasized the lack of limitations on the defendants' use of the property: " The part-time year-round use was unmeasured in scope and extended over the calendar year to weekends, holidays and vacations, whenever [the defendant] could get away from her work, limited only by her inability to do so. The annual total of months, weeks and days of such nonconforming use is not recorded or measured, but is indefinite and restricted to her leisure, which is now extended because of her retirement. There is no extension of the nonconforming use, but at most an unmeasurable intensification of an unmeasured nonconforming use. Any abrogation or diminution of this nonconforming use by the zoning authorities is unwarranted and an arbitrary and abusive application of the zoning regulations. The 'volume' of use has been increased, but the 'scope' of the nonconforming use has not been increased or extended." Id., 97-98.
There are also instances where the Appellate Court has held that a transition from a seasonal use to a year-round use constitutes an illegal extension of the nonconforming use. See, e.g., Woodbury Donuts, LLC v. Zoning Board of Appeals, supra, 139 Conn.App. 764 (substantial evidence to support board determination that proposed year-round use was impermissible extension of previous seasonal use). As discussed above, the legality of the extension of a nonconforming use is a question of fact. Greengarden's proposed use is similar to the approved use in Craft, where the initial non-conforming use was a year-round weekend use, as opposed to that of Woodbury Donuts, where there initial non-conforming use was a seasonal one.
In the instant appeal, the record before the Commission provided an overview of the historical use of the property, the current use proposed by Greengarden, and the effect those changes would have upon the neighborhood. The commercial use of the property began in 1967, when Veltri's application for a special exception was granted by Trumbull's Zoning Board of Appeals. In a special permit dated December 11, 1967, the Board of Appeals permitted Veltri to use a portion of the property as a beauty salon, subject to the following conditions: " 1. Compliance with requirements of Town Engineer and Health Department with respect to storm water drainage and sanitary sewage disposal. 2. The use shall be limited solely to Rocco Veltri, and only while he maintains a permanent residence on the premises. If there is any change in these circumstances, the use shall be immediately discontinued." (ROR #11.) The special permit does not list any other conditions, or establish any other limits on the use and operation of the beauty salon. For the period of time that Veltri resided on the property he operated a one-chair beauty salon. The beauty salon occupies a 30' by 14' room to the side of the house. (ROR #17, p. 4.) The beauty salon was open on Fridays and Saturdays, from the morning to the mid-afternoon. Veltri would also take customers by appointment for a few hours on Thursdays. (ROR #3, p. 6.)
Greengarden, in purchasing the property, seeks to convert the beauty salon into a real estate office. There would be no change to the footprint of the home or to the amount of available commercial space. (ROR #17, p. 9.) The office would be open seven days a week and on weekends, representing an increase in the total hours of operation. There would also be changes to the available parking, so as to meet the zoning requirements for commercial properties: the property sits at the corner of Main Street and John Street, and currently has two on-site parking spots to the rear of the property, for shared use by both residents and commercial use. The proposed plan would separate the residential parking from the commercial parking by adding a driveway off of Main Street, leaving room for three residential spaces served by the Main Street entrance, and four commercial spaces served by the John Street entrance. (ROR #17, p. 5-6.)
Evidence presented in opposition to the application indicates that continuing the commercial use by converting the beauty salon into a real estate office would not be consistent with the character of the neighborhood, which is zoned only as " Residential A." Moreover, it would entail an increased commercial use of the property. In particular, a traffic volume would increase by 392%, the hours of operation would increase of 400%, and the risk of vehicle damage and personal injury would increase commensurately. (ROR #3, p. 7.)
The mixed commercial and residential nature of the property, though distinct from the residential character of the neighborhood, is consistent with the existing nonconforming use. Moreover, although the record indicates that there would be an increase in the volume of commercial use, with the real estate office being open seven days a week and staffed by permanent employees, there was also testimony that the operation of the real estate creates less on-site traffic than that of a beauty salon. (ROR #17, p. 10.) The existence of conflicting evidence as to the increase in use, without more, is not sufficient to reverse the Commission's decision to approve Greengarden's permit application.
Similar to the use at issue in Craft, Veltri's use of the property as a beauty salon is unmeasured in scope. The 1967 special permit placed no limitations on the intensity of the property's use as a beauty salon. At the March 18, 2015 meeting, the Commissioners voting to approve the application noted that the proposed change in use was consistent with the terms originally granted by the 1967 special permit, and that the proposed use as a real estate office was likely to be less intense than if the property were continued to be used as a beauty salon by another proprietor. (ROR #17, p. 54-56, 66-67.) In light of the record before the Commission, the commission's decision is reasonably supported by the evidence presented. Additionally, there is no indication that the Commissioner's decision was unreasonable, arbitrary, or illegal.
CONCLUSION
Based on the foregoing the Commission, in approving Greengarden's application to substitute one non-conforming use for another, did not exceed its authority under Article I, § 4.2.3 of the Zoning Regulations. The original use, as authorized by the 1967 special permit, was at some point rendered nonconforming by a change to the Zoning regulations. The stated rationales of the Commissioners voting to approve the application were reasonably supported by the evidence before the Commission. Therefore, the plaintiffs' appeal is dismissed.