Opinion
No. NNH-CV-07-4027997-S
October 27, 2008
MEMORANDUM OF DECISION
This is the plaintiff's appeal from an adverse decision of the defendant New Haven City Plan Commission. The plaintiff, Dr. Thomas Gibson, owns property known as 139 Blake Street, also known as 145 Blake Street, in New Haven. At the trial before the undersigned, he introduced a copy of his deed to the property, thus establishing his ownership of the property and hence his aggrievement arising from a decision of the Defendant New Haven City Plan Commission ("NHCPC"), denying an application for a Certificate of Approval of Location ("CAL") which would have permitted him to continue to repair automobiles on the property, despite its being in an RM-1 zone. He argues that the site predates current zoning in New Haven, as it was constructed in 1946 as a gasoline station and that there is thus an existing non-conforming use dating back to that year.
Additional relevant facts include the following. In 2005, the then-owner John Hall, who subsequently sold his interest in the property to the Plaintiff, sought permission for a CAL from the New Haven Zoning Board of Appeals ("ZBA") to continue general automotive repairs within an RM-1 zone. The ZBA granted permission, conditioned on the requirement that the days and hours of operation be Monday through Saturday, 8 a.m. to 6 p.m., that there be no more than three employees, that a site plan detailing the parking arrangements on the site be submitted to the City Plan Department for review and approval, that there be no floodlighting, that all repair work be performed inside the service bays, and that there be no vehicle sales on the site. An abutting property owner appealed the ZBA's decision to this court, Diane Glenn v. New Haven BZA et al., Docket No. CV 05-4010376. The appeal was dismissed as to Hall after he sold the property to the plaintiff, and withdrawn altogether in August of 2007, at approximately the time that the instant matter was being scheduled for the hearing before the NHCPC.
In 2007, Hall, as indicated, sold the property to the plaintiff, who, on August 3, 2007, filed his own application to the NHCPC for a CAL to permit him to "continue" auto repairs on the property. On August 29, 2007, the NHCPC held a public hearing at which the plaintiff testified and submitted evidence. He claimed that he intended to continue to use the property as an auto repair facility, that it would not be enlarged, extended, constructed, reconstructed, or structurally altered, that the repairs would continue in the existing service bays in a structure that was previously arranged and designed for such use; that vegetation would be cut; that asphalt would be repaired; that a new sign would be erected; and that the site had ample parking with properly separated ingress and egress over two curb cuts. The NHCPC denied the application for a CAL and published Notice of its denial as prescribed by law on or about September 4, 2007. This appeal followed.
The Plaintiff also applied for permission to sell used cars but is not appealing the NHCPC's denial of that request.
The Plaintiff argues that the NHCPC acted illegally, arbitrarily, capriciously and in abuse of its discretion in that:
A. Pursuant to § 67(b)(3) of the Regulations, NHCPC had no authority to deny such application since the new title owner sought merely to continue to use the property as an auto repair business, for which the previous owner had received a CAL only two years earlier.
B. In conformance with the § 67(c)1 of the Regulations, the Plaintiff did not seek to enlarge, extend, construct, reconstruct, or structurally alter the auto repair business.
C. The NHCPC exceeded its authority by improperly considering evidence on the issue of abandonment of the use as an auto repair business in 2002, despite the ZBA's having decided this issue in granting a CAL to Hall in 2005.
D. The application conformed to § 67(c)2 of the Regulations inasmuch as the auto repairs would continue in the existing service bays in a structure that was previously arranged and designed for such use.
E. The NHCPC inaccurately measured the property as only 900 feet away from an elementary school.
F. The NHCPC improperly concluded that the continued use would further complicate the street intersection, with its four-way stop sign, despite the nonexistence of traffic related complaints or concerns from residents throughout the decades that an auto business operated at that location.
G. The plaintiff proposed improvements to the property that were permitted under § 67(c)5 of the Regulations.
H. NHCPC improperly considered the property owners unsubstantiated claim of diminishment in their property values which falls outside the scope of review set forth in § 67(a) of the Regulations.
The most critical issue in this case is that in 2002, Richard Lloyd, who was Hall's predecessor in title, had abandoned his nonconforming use of the property as an auto repair facility in writing. Based on that event, the NHCPC argues that there was no non-conforming use in existence at the time the plaintiff purchased the property from Hall and hence no use that could be "continued" through the issuance of CAL. The plaintiff counters that although this position might have had merit had there been a denial of Hall's application for a CAL in 2005, the ZBA had instead granted a CAL to Hall for the use of the property. The time for the defendant to have claimed abandonment, he contends, was in 2005 when Hall applied for a CAL. Implicit in the decision to grant the CAL to Hall, argues the plaintiff, was a conclusion that Lloyd did not abandon the use of the property as an auto repair facility earlier. Otherwise, Hall's application for a CAL would have had to have been denied. In short, the plaintiff argues that the use of the property for auto repairs had not been abandoned in 2002, as the City contends, and the best evidence of this is the fact that the New Haven Zoning Board of Appeals granted a CAL to Hall, the subsequent owner of the property, in 2005.
The plaintiff's position overlooks a number of important points. For one, the issue of Lloyd's abandonment was in fact raised in the appeal in Diane Glenn v. New Haven BZA et al., Docket No. CV05-4010376, so plaintiff cannot reasonably claim that he could not have been aware of it, even though that appeal was eventually withdrawn. The defendant contends that through due diligence the plaintiff should have discovered the written abandonment himself and should have realized that there was no legitimate "continuing use" that he could pursue on his property. The plaintiff argues that it was the ZBA's responsibility to raise the abandonment issue when Hall applied for his CAL in 2005 and that it did not do so, but he provides no persuasive authority for a conclusion that the NHCPC is stuck with the consequences of that failure and must continue to extend a use that, it contends, had clearly been abandoned by the prior owner.
The parties agree that the CPC acts as an agent of the State under Gen. Stats. Secs. 14-54 and 14-55, and not as a zoning authority, but that it may deny CAL applications which propose uses that violate the zoning ordinances. Raymond v. ZBA of Ridgefield, 164 Conn. 85 (1972); see generally Robert A. Fuller, Connecticut Practice Series, Vol. 9A, sec. 44.1 2007 (West). A certificate of approval for a particular use cannot be issued if that use would violate the zoning regulations. Clark Heating Oils, Inc. v. Z.B.A. of Naugatuck, 159 Conn. 234, 241 (1970)." Raymond, supra, 164 Conn, at 89. Thus, the defendant contends that it merely followed the law in denying the CAL because the nonconforming use at 139-145 Blake St. had been abandoned in 2002, could therefore not be "continued" in 2007, and would if begun anew, have violated the zoning regulations.
To establish abandonment of a nonconforming use, one must prove 1) voluntary discontinuance of the use and 2) that the voluntary discontinuance was accompanied by an intent not to reestablish that use. Casserta v. Z.B.A. of Milford, 41 Conn.App. 77, 82-3 (1996). Moreover, when it was a prior owner who discontinued the use, the question is whether that owner, not the current owner, intended to resume the use. Id. Abandonment of a nonconforming use is a question of fact which requires a showing of voluntary and intentional renunciation of the use, but intent may be inferred as a fact from the surrounding circumstances. Blum v. Lisbon Leasing Corp., 173 Conn. 175, 182 (1977). The credibility of witnesses concerning factual issues material to the reasons for the commission's decision is a matter within the province of the commission. Spectrum of Conn., Inc. v. Planning and Zoning Commission. 13 Conn.App. 159, 163 (1988), cert. denied, 207 Conn. 804 (1988).
In this case, there was ample evidence from which the NHCPC could reasonably have found abandonment, a determination which, under the circumstances of this case, is properly within the province of that agency. Its conclusion that Lloyd, who owned the property from 1984 through 2004, terminated the nonconforming use voluntarily effective January 1, 2002, is amply supported by his letter, dated October 22, 2002, confirming that fact to the City Assessor. There was also evidence that Lloyd no longer held a limited repairer's license from the State at the time, providing a clear reason for his abandonment and justifying the conclusion that it was indeed Lloyd's intent to abandon that use totally and not seek to resume it. Moreover, in June of 2003, Lloyd's application to the ZBA on behalf of a tenant for special exceptions that would permit a neighborhood convenience store and front yard parking, and a use variance to permit take-out of pizza and other cooked food in an RM-1 zone, provides further evidence that he had abandoned auto repair in favor of other proposed uses. There was no evidence before the NHCPC to the contrary, and there is therefore no basis for this court to disturb the defendant's factual determinations with regard to Lloyd's abandonment of the auto repair use of the property.
Although, as the plaintiff argues, he himself did nothing to manifest an intent to abandon the nonconforming use, his actions and intent are not at issue. Lloyd bought the property in 1984 and in 2004 sold it to Hall, who in turn sold it to the plaintiff in March of 2007. Once Lloyd had abandoned the use as a site for auto repairs, there was no basis on which the NHCPC could have given any successor in title a valid CAL for that particular purpose.
Once a nonconforming use has been lost or abandoned, the property owner cannot apply for a reinstatement of the nonconforming use. Instead he must either question whether the use was legally discontinued by appealing the decision of the Zoning Enforcement Officer (ZEO), or applying for a variance. Barausky v. Z.B.A of Litchfield, 38 Conn.Supp. 651, 654 (1983). In this case, the City served a cease and desist letter upon the plaintiff, based on the Zoning Enforcement Officer's determination that a U-Haul business established by the plaintiff was illegally commenced without a use variance, and that because the nonconforming auto repair use had been abandoned, a use variance, in addition to a valid CAL, was required in order to re-establish the auto repair business. The plaintiff had ten days to appeal to the ZBA regarding that determination by Zoning Enforcement Officer's determination, but he failed to do so. His only remaining remedy would have been to apply to the ZBA for a use variance. Because he did not do so, the CPC correctly denied the plaintiff's application for a CAL, as granting it would have violated the zoning ordinance provisions of an RM-1 zone.
In short, by the time of the hearing on August 29, 2007, the plaintiff had been placed on notice by the wording of the cease and desist letter that the legal status of his property, with regard to zoning uses, was at issue. Nevertheless, relying on what he considered his good faith belief that "it was a commercial property," the plaintiff produced no evidence regarding Lloyd's intent in abandoning his auto repair business, and acknowledged that he had not investigated the issue. Having failed to do his due diligence, the City argues, having purchased the property without knowing its zoning status, and not knowing what uses the property could legally host, he is now stuck with the fact that he cannot use his property for the purpose he had intended for it.
The City suggests that the plaintiff could have requested a Certificate of Zoning Compliance from the City Plan department which would outline the legal uses, conforming and nonconforming, that exist on 39-145 Blake Street; obtained a copy of the history of CALs from the State of Connecticut to see if the property had a valid limited repairer's license; or spoken to Lloyd and tried to obtain his testimony or an affidavit from him.
As a further basis for dismissing the appeal, the defendant argues that the site is simply not suited for the purpose to which the plaintiff intends to put it. The City Plan Commission has two considerations when presented with an application for a CAL for a limited repairer's license: 1) the suitability of the proposed location for the proposed use; and 2) whether the proposed location will imperil public safety. New Haven College, Inc. v. ZBA of West Haven, 154 Conn. 540 (1967). The City also contends that even if the nonconforming use at 139-145 Blake Street was not abandoned, the location is not suitable for auto repair and used car sales. It cites the hearing testimony from aldermen and neighbors about the changes in the area over the years and their belief that an auto-related use is no longer compatible with the neighborhood because of such issues as noise, appearance, and public safety, especially regarding traffic, parking, and ingress and egress. In particular, the report of the City Plan Commission states:
The Commission is cognizant that this property is located inside a residential zone and is surrounded by residential properties with no other nearby business uses. In addition an elementary school is located less than 900 feet away. Although an auto-related use was located here for several decades, the nature of the auto-repair business, community attitudes towards certain uses inside residential zones, and planning philosophies have evolved. While at one time it was common to find many commercial and residential uses mixed together, it is no longer the case. The lot is located on a corner lot at an intersection with four stop signs. The two site driveways would further complicate the operation of an already difficult intersection.
As an alternate ground for dismissing the appeal, the record in this case thus contains substantial evidence to support the decision of the NHCPC, acting as an agent of the State under Gen. Stats. Sec. 14-54 and 14-55, to deny the application for a CAL. "[C]ourts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions. Such caution is particularly appropriate when reviewing the decision of a local land use commission composed of laypersons whose procedural savoir-faire may not rise to the sophisticated level needed to achieve strict compliance with the statutory directions under which they operate." DeBeradinis v. Zoning Commission of City of Norwalk, CT Page 17093 228 Conn. 187, 198 n. 7 (1994), citing Samperi v. Inland Wetlands Agency, 226 Conn. 579, 589 (1993).
For all of the foregoing reasons, the plaintiff's appeal is dismissed