HARRISON v. NEW HAVEN ZBA

Full title: HENRY HARRISON v. NEW HAVEN BOARD OF ZONING APPEALS ET AL

Court: Connecticut Superior Court Judicial District of New Haven at New Haven

Date published: Jul 5, 2005

2005 Ct. Sup. 11583 (Conn. Super. Ct. 2005)

Opinion

No. CV 03-0477037

July 5, 2005

MEMORANDUM OF DECISION

ROBINSON, JUDGE.

The appellant brings this action claiming that he was wrongly denied relief before the New Haven Board of Zoning Appeals (BZA). He petitions this court to overturn the decision of the BZA denying his request for a special exception or overturning the Cease and Desist Order of the New Haven Zoning Enforcement Officer (ZEO). The court, after having considered all of the various arguments of the parties, finds that the Zoning Board of Appeals properly denied the plaintiff's appeal from the issuance of the cease and desist order. There was a proper basis in the record to support the Board's action, namely that the plaintiff attempted to create a right of way without first obtaining a special exception as required by City Zoning Ordinances.

The parties to this action are Henry Harrison, the plaintiff, the New Haven Board of Zoning Appeals (BZA), a defendant, and David Hodges, a defendant. Mr. Harrison commenced this action after he failed to prevail before the BZA. Mr. Hodges is the property owner of one of the properties that is the subject of the litigation.

At the Hearing on this matter, Mr. Harrison testified and established the necessary aggrievement. Following his testimony, all counsel presented their arguments.

Having considered the testimony of Mr. Harrison, the exhibits which were submitted into evidence and the arguments of counsel, the court finds the following facts. On January 19, 1999 Mr. Harrison conveyed to Mr. Hodges, owner of EL Capital, the premises at 235 Bishop Street, New Haven, Connecticut. In that conveyance, Mr. Harrison reserved to himself two easements: one for pedestrian access; the other for motor vehicular access and parking. Mr. Harrison, subsequent to the conveyance of 235 Bishop Street, established residence in a neighboring building, 315 Whitney Avenue, which he also owned. 235 Bishop Street is zoned in a residential area, and 315 Whitney is in a mixed use zone. The majority of 315 Whitney is for commercial use. But, there was no dispute that the first floor of 315 Whitney rear is used by the plaintiff for residential purposes.

On September 27, 2002, the ZEO issued a Cease and Desist Order to Mr. Harrison ordering him to "Cease and Desist by removing the rights-of-way established without a required special permit." Specifically, the ZEO issued the Cease and Desist Order claiming that the two easements on 235 Bishop Street violated section 12.B.2.c of the New Haven Zoning Ordinance which provides in pertinent part that:

Where permitted by special exception under sub-section 63.D of this ordinance: c) Railroad and other rights-of-way.

Section 63.D allows for the granting of special exceptions:

Where provided for elsewhere in this ordinance, the Board of Zoning Appeals may, in appropriate cases, after public hearing, grant special exceptions.

Mr. Harrison appealed the issuance of the Cease and Desist Order. The BZA upheld the Order of the ZEO on April 11, 2003, with a publication date of the decision listed as April 14, 2003. In the minutes of the meeting at which the Board voted to uphold the Cease and Desist Order, the Board decided the following.

The zoning ordinance requires that Webster's dictionary supply definitions for terms not defined therein. Under Webster's, the Board finds that Mr. Harrison has established a right of way, and has done so without proper zoning relief under section 12 of the ordinance. Even if Mr. Harris had permission under section 12, he would still need additional relief under section 13.B.3.c.3 to park cars related to 315 Whitney (zoned RO) at 235 Bishop (zoned RS-2). Applicants testimony carried little weight. The cease and desist order is sustained by a 4-0 vote.

In a Complaint dated April 28, 2003, Mr. Harrison appealed the decision of the BZA.

The arguments of counsel, advanced orally and in written briefs may be best summarized as follows. Mr. Harrison, through his attorney, claims that the New Haven Zoning Ordinance relied upon by the ZEO to issue the Cease and Desist Order is inapplicable. In essence, plaintiff's counsel argued to the BZA and to this Court that the context of section 12.B.2.c indicates that it does not apply to situations such as the one involving the plaintiff Specifically, before the BZA plaintiff's counsel posited that:

. . . [b]y the very existence of these easements, Section 12 pertains to non-residential uses in the RS-2 residential zone . . . [H]ere the use is restricted to residential use incidental to my client's residence in the abutting 315 Whitney Avenue rear house. Further, Section 12.B.2.c requires a special exception for railroads and other rights of way, which are public or semi-public rights of access, but are limited to private easements. Therefore, the order is wrong in two respects. There is no violation of the zoning ordinance as a result of these easements or their use for residential purposes. Verbatim Proceedings, New Haven Board of Zoning Appeals, In Re: 235 Bishop Street, March 18, 2003, 7:00 p.m., p. 10 (Exhibit 22 in Return of Record). Similarly, before this court, plaintiff's counsel argued that(1) the only vehicular access being used in this case was for residential purposes; and (2) proper interpretation of section 12.B.2.c. requires a finding that a right of way for exclusively residential purposes requires no special exception. During oral argument before this court, plaintiff's counsel argued:

[b]ut in this particular case . . . the wording of the ordinance is very clear that a special exception is necessary for non-residential uses. Now, Mr. Rizzo's cease and desist order would be especially pertinent if this were being used or intended to be used for commercial purposes, industrial purposes; or any other non-residential use but it is not. Transcript of Hearing before this court, March 11, 2005, p. 8.

On the other hand, counsel for the BZA countered plaintiff's position by referencing the Zoning Ordinances; and counsel for Mr. Hodges referenced the City Plan Advisory Report. The Zoning Ordinances provide that the definitions for undefined terms in the Ordinances are to be found in the New World Dictionary of Webster's. Section 1-1, Zoning Ordinance City of New Haven, 1998 Edition. The City Advisory Report contained an opinion that the use in the rear of 315 Whitney Avenue was — at least partially — commercial. This opinion was relied upon and adopted in the BZA decision.

The definition of a "right-of-way" found in Webster's Dictionary is "a legal passage over another person's grounds." Defendant's Brief, p. 8-9. Given this definition, the clear and manifest intent of the Zoning Regulations, and the facts submitted to the BZA, the defendants both argue that this court must uphold the Board's decision.

Further, the New Haven Zoning Director, Phillip Bolduc authored a City Plan Department Advisory Report in which he concluded that the Cease and Desist Order was "consistent with longstanding City policy as should be sustained . . ." Also in the report, Mr. Bolduc concluded that although the first floor of 315 Whitney Avenue rear was modified for residential use, with a rooftop greenhouse and barbeque cooker in the rear yard, the second floor of the rear remained in commercial use, thereby necessitating a use variance for the easements. Defendant David Hodges asserts that the BZA's decision should be upheld because this report, on its own, provides a sufficient basis in the record for the BZA's decision. Therefore, according to defendant Hodges, the fact that 315 Whitney rear was, in fact, partially used for residential purposes is irrelevant.

LEGAL DISCUSSION

Without addressing the merits of defendant Hodge's argument about the City Plan Advisory Report, this court finds that there is support within the record for the BZA decision. And, there is no evidence that the BZA acted arbitrarily.

Ultimately, the resolution of this case depends upon whether this court finds a supportable ground in the record, before the BZA for its decision. Connecticut Resources Recovery Authority v. Planning and Zoning Commission of Town of Wallingford, 225 Conn. 731, 743 (1993); Housatonic Terminal Corp. v. Planning and Zoning Board of the City of Milford, 168 Conn. 304, 306 (1975). The court must sustain the BZA's decision if there is at least one reason given by the BZA or found within the record sufficient to support the decision. Huck v. Inland Wetlands and Watercourse Agency, 203 Conn. 525, 539-40 (1987); Connecticut Health Facilities, Inc. v. Zoning Board of Appeals of City of Stamford, 29 Conn.App. 1, 9-10 (1992).

Of course, the interpretation of the zoning ordinance is a question of law. Vivian v. Zoning Board of Appeals of Town of Clinton, 77 Conn.App. 340, 344 (2003). Though the BZA has the initial authority to interpret the municipality's zoning ordinances and decide whether or not they apply to specific situations, the Superior Court ultimately determines whether that interpretation is legally correct or not. Stern v. Zoning Board of Appeals of City of Norwich, 140 Conn. 241, 245 (1953); Connecticut Sand Stone Corp. v. Zoning Board of Appeals of Town of Avon, 150 Conn. 439, 442 (1963); Danseyear v. Zoning Board of Appeals of City of Middletown, 164 Conn. 325, 327 (1973); and Farror v. Zoning Board of Appeals, 70 Conn.App. 86, 89-90 (2002).

The BZA concluded that section 12.B.2.c is applicable to the rights-of-way established by the defendant. This court agrees. The plaintiff argues vigorously about whether or not the ordinances should be applied to residential use rights-of-way, but he provides no legal support for the overturning of the Board's decision.

There is no dispute that the plaintiff established the two easements without special permit. There is no question that the plaintiff established the two easements for access to 315 Whitney Avenue, a building which is both commercial and residential in use. Therefore, section 12.B.2.c applies. Only if this court tortures the definition of "rights-of-way" to the point of nonsense can the plaintiff's proposed approach succeed. This court is sympathetic to the quandary created in this situation. Nonetheless, without availing himself of remedies through the zoning process, the plaintiff is stuck with that situation.

For the foregoing reasons, this court upholds the decision of the EZA and dismisses the appeal.

Robinson, A.J.