Opinion
LNDCV146067473S
11-21-2016
John Neuhoff v. Zoning Board of Appeals for the Town of Newton
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Marshall K. Berger, J.
I
The plaintiff, John Neuhoff, owns property at 48 Algonquin Trail in Newtown and appeals a decision of the defendant, the zoning board of appeals of Newtown (board), upholding a determination by the town's zoning enforcement officer, George Benson, that affects the plaintiff's ability to repair a cabin on the land. (Return of Record [ROR], Item 1; Item 11; Item 22.) A public hearing was commenced on May 7, 2014; (ROR, Item 16); and was continued to and completed on June 4, 2014. (ROR, Item 6.) The board denied the plaintiff's appeal on July 16, 2014, voting unanimously to uphold Benson's determination. (ROR, Item 1.) Notice of the board's decision was published in the Newtown Bee on July 25, 2014. (Supplemental [Sup.] ROR, Pleading [Pl.] #125.00.)
In Benson's March 21, 2014 letter to the plaintiff, Benson stated: " The parcel of land located at 48 Algonquin Trail was not part of an approved subdivision and is not a building lot for the following reasons:
Benson is Newtown's director of planning and land use and apparently also fulfills the duties of the zoning enforcement officer. (ROR, Item 23.)
Record item 11, which is a property survey in large paper format, was submitted when the court heard the appeal on August 9, 2016. A smaller version is attached as part of record item 12.
The plaintiff commenced this appeal on August 7, 2014. On November 13, 2014, the board filed the return of record without filing a certified list of papers in the record. See Practice Book § 14-7B(d). The plaintiff filed his brief on November 2, 2015, the board filed its brief on January 5, 2016, and the plaintiff filed a brief in reply on March 2, 2016. A motion to supplement the record was granted by this court on July 20, 2016, and the board filed the notice of publication of July 25, 2014, on July 28, 2016. The court heard the appeal on August 9, 2016.
The plaintiff's application entitled " Town of Newtown Building Application for Additions & Alterations to Single Family Residence" is attached to the plaintiffs memorandum of law in support of the motion to supplement the record (Pl. #118.00) and will be referred to as " Sup. ROR, Pl. # 118.00" while the notice of publication of July 25, 2014, will be referred to as " Sup. ROR, Pl. #125.00."
II
" To be entitled to an appeal, the plaintiff was required to allege and prove that he was aggrieved by the decision of the commission." Fletcher v. Planning & Zoning Commission, 158 Conn. 497, 501, 264 A.2d 566 (1969). " It is well established that a party may be aggrieved for purposes of appeal by virtue of its status as a property owner." Handsome, Inc. v. Planning & Zoning Commission, 317 Conn. 515, 527, 119 A.3d 541 (2015). Before this court, the parties stipulated that the plaintiff owned the property at the time of the hearing up to and through the present time.
The board argues, however, that the plaintiff is not aggrieved for several reasons. General Statutes § 8-6(a), in relevant part, provides, " The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter . . ." The board asserts that Benson's March 21, 2014 letter did not constitute an " order, requirement or decision" under § 8-6(a) because it does not use words such as " deny" or " reject" and does not actually refer to any specific application. Additionally, the board maintains that the plaintiff's application; (ROR, Pl. #118.00); was not before the board and does not constitute a formal application to make the proposed alterations to the cabin. The board argues that neither the plaintiff's request nor Benson's March 21, 2014 response demonstrate exhaustion of administrative remedies under Piquet v. Chester, 306 Conn. 173, 49 A.3d 977 (2012).
In Piquet, the court held that " when a landowner obtains a clear and definite interpretation of zoning regulations applicable to the landowner's current use of his or her property, the landowner properly may appeal that interpretation to the local zoning board of appeals." Id., 186. The court agreed with the Appellate Court's holding in Holt v. Zoning Bd. of Appeals of Stonington, 114 Conn.App. 13, 968 A.2d 946 (2009), " that, when a zoning enforcement officer's letter is contingent on future events--that is, a proposed future use of the landowner's property--that letter is not a decision from which a landowner can appeal." Piquet v. Chester, supra, 306 Conn. at 184.
In Holt, the court stated, " the determination of whether the action of a zoning enforcement officer amounts to a decision appealable under [General Statutes] § 8-7 depends on the particular facts and circumstances of each case." Holt v. Zoning Bd. of Appeals of Stonington, supra, 114 Conn.App. at 20. Specifically, in that case, the court held that an advisory letter was not an appealable final determination by the zoning enforcement officer where the letter simply explained that a single-family house could be constructed on the property if building and zoning permits were obtained. Id., 15-16, 29.
More recently, in Reardon v. Zoning Board of Appeals, 311 Conn. 356, 365-66, 87 A.3d 1070 (2014), our Supreme Court held, " Even when there is a written communication from a zoning official relating to the construction or application of zoning laws, the question of whether a 'decision' has been rendered for purposes of appeal turns on whether the communication has a legal effect or consequence . . . The obvious examples of such appealable decisions would be the granting or denying of building permits and the issuance of certificates of zoning compliance . . . This interpretation is consistent with the terms used in relation to 'decision' under § § 8-6 and 8-7 'order' and 'requirement'--which similarly import legal effect or consequence." (Citations omitted.)
In the present case, the plaintiff alleges the following in his complaint:
" 13. On or about March 11, 2014, John Neuhoff submitted an application on a Town form entitled 'Town of Newtown Building Application for Additions & Alterations to Single Family Residence' (the 'Building Application') seeking to make the following improvements to the building on the Parcel: 'minor repairs--windows/front entrance door. [I]nstall heat source? Insulate as necessary. [I]nstall code compliant stair outside. Upgrade electric.'
" 14. On or about March 21, 2014, George Benson, in his capacity as the ZEO denied Mr. Neuhoff's Building Application as the Parcel 'was not part of an approved subdivision and is not a building lot . . .'; Mr. Benson outlined his reasoning in a letter to Mr. Neuhoff dated March 21, 2014.
" 15. On or about April 3, 2014, John Neuhoff, filed with the ZBA a 'Notice of Appeal--Application for Hearing' form in which is purpose of application was 'To Appeal for Correction of Alleged Error in a decision of the Zoning Officer who on (date) 3/21/14 did [deny] a permit requested by John Neuhoff; this appeal is a statutory right provided in Connecticut General Statutes section 8-7."
As these allegations illustrate, the plaintiff owns the property and he requested to make repairs to his structure on a town form according to paragraph thirteen of his complaint. Further, he alleges this request was denied. Therefore, the plaintiff has satisfactorily pleaded allegations of aggrievement. See Wallingford v. Zoning Board of Appeals, 146 Conn.App. 567, 575-76, 79 A.3d 115 (" [A]s to the quality and quantum of evidence required to establish aggrievement, an appellant need not establish his or her interest and harm with certainty, but rather, may satisfy the requirement of aggrievement by credible proof that the subject activity has resulted in the possibility of harm to his or her specific personal and legal interest. Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." [Citations omitted; internal quotation marks omitted.]), cert. denied, 310 Conn. 964, 83 A.3d 346 (2013).
This court also rejects the board's argument that Benson's March 21, 2014 letter is not an " order, requirement or decision" under § 8-6(a) because it does not use particular words or refer to the plaintiff's application. Again, the plaintiff applied using an official town form; it is unclear what else he could have done. While the board maintains that the application was indefinite--which may certainly be true--the board did not reject it on those grounds. Additionally, unlike the facts in Holt v. Zoning Bd. of Appeals of Stonington, supra, 114 Conn.App. at 15-16, the plaintiff's application to make repairs to his structure was not an informal request about a future event. Furthermore, Benson's letter cannot be fairly characterized as merely advisory. (ROR, Item 22.) Therefore, the court finds that the plaintiff is aggrieved.
III
" [F]ollowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board. We also are mindful that the zoning board of appeals makes a de novo determination of the issue before it, without deference to the actions of the zoning enforcement officer . . .
" In reviewing the actions of a zoning board of appeals, we note that the board is endowed with liberal discretion and that its actions are subject to review by the courts only to determine whether they are 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 . . . [A] zoning board of appeals hears and decides an appeal de novo . . . It is the board's responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts . . . In doing so, the board is endowed with a liberal discretion . . . Indeed, under appropriate circumstances, the board may act upon facts which are known to it even though they are not produced at the hearing . . . Upon an appeal from the board, the court must focus on the decision of the board and the record before it . . .
" It is well settled that the courts should not substitute their own judgment for that of the board and that the decisions of the board will not be disturbed as long as an honest judgment has been reasonably and fairly made after a full hearing . . . The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings . . . Upon an appeal from the judgment of the trial court, we review the record to see if there is factual support for the board's decision, not for the contentions of the applicant . . . to determine whether the judgment was clearly erroneous or contrary to law." (Citation omitted; internal quotation marks omitted.) Woodbury Donuts, LLC v. Zoning Bd. of Appeals of Woodbury, 139 Conn.App. 748, 757-58, 57 A.3d 810 (2012).
" When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the [board's] decision." (Internal quotation marks omitted.) Mountain Brook Assn., Inc. v. Zoning Board of Appeals, 133 Conn.App. 359, 364, 37 A.3d 748 (2012). " 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.) Caruso v. Zoning Board of Appeals, 320 Conn. 315, 321, 130 A.3d 241 (2016).
IV
An old one-story cabin sits on the eastern property line of the plaintiff's 1.522-acre lot in the R-2 zone. (ROR, Item 11; Item 23, p. 18.) Built prior to 1958--the effective date of Newtown s zoning regulations (regulations)--the cabin evidently has not been used for many years. (ROR, Item 23, pp. 18, 20.) According to an email from Vincent Johns, the plaintiff's predecessor in title, to the plaintiff, " The cabin had a fully functional bathroom that I used at times in the early 1950s. I assume it was installed in the middle 1940s, but it may date from an earlier time (I have no personal knowledge of that). The water was supplied by Walter Schaeffer's water system, and the septic system was located downhill from the cabin. To my recollection, we had the well on the property dug in about 1950. The bathroom and the septic system have not been updated since that time." (ROR, Item 12.) Photographs depict a building that appears to be long unused. (ROR, Item 13.)
The plaintiff apparently also owns property at 46 Cedarhurst Trail just southwest of the subject property, but the properties are separated by an " earth trail." (ROR, Item 11.)
According to the plaintiff, the current minimum lot size for the zone is two acres not to include wetlands and land having slopes over 25 percent grade. The subject property has steep slopes. (ROR, Item 23, pp. 18-19.)
The plaintiff provided a brief explanation of the photographs to the court during the argument on appeal. Color copies of the photos are filed in pleading #104.00.
In the board's July 16, 2014 decision, it stated:
" 1. The lot is nonconforming and was never part of an approved subdivision;
" 2. The structure on the lot, even if used as a residence, has not been used as a residence since at least before July of 1975, as evidenced by the Tax Assessor's records indicating abandonment; The present condition of the building including a tree growing through the center of the structure; and the applicant's representative stated that no one had lived in the structure since before 1958. Therefore, the use of the structure as a residence, if it ever existed, has long been abandoned;
" 3. The existence of some plumbing and heating in the structure were installed without permits, therefore are nonconforming and illegal." (ROR, Item 1.)
The plaintiff argues that the board has misconstrued Newtown's zoning regulations (regulations) concerning nonconforming uses. He asserts that, while the lot and the cabin are nonconforming as to the lot size and bulk requirements and as to the cabin's location on the property, the residential use is not and these nonconformities are vested rights under General Statutes § 8-2(a) and § 9.03.100 of the regulations. Thus, he maintains that he can continue this nonconforming use and rebuild the cabin.
Section 9 of the regulations pertain to nonconforming uses and fully provides as follows:
" A lawfully established nonconforming use is a vested right and is entitled to constitutional protection." (Internal quotation marks omitted.) Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 484, 408 A.2d 243 (1979). " [T]he rule concerning the continuance of a nonconforming use protects the 'right' of a user to continue the same use of the property as it existed before the date of the adoption of the zoning regulations." Helbig v. Zoning Commission, 185 Conn. 294, 306, 440 A.2d 940 (1981).
The court examines the stated reasons for the board's denial. See Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002) (" When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations" [citation omitted; internal quotation marks omitted]).
As to the first reason, the plaintiff agrees that the lot is nonconforming and is not part of a subdivision. The central issue then is the board's second reason, i.e., whether the nonconforming use was abandoned. The board found that, whatever the use was prior to 1958 or 1975, the use has long since been abandoned. (ROR, Item 1.) It is undisputed that the cabin is not being used; photographs indicate that the pipes are all disconnected and a tree grows in or close to the structure. (ROR, Item 13.)
The plaintiff asserts, however, that the nonconforming use could continue as it existed before the regulations were enacted. He cites § 9.03.520 which provides that " [n]on-conforming developed lots may be further improved if buildings or additions are in compliance with current regulations or the buildings and /or additions do not increase the current nonconformity." (ROR, Item 12.) Thus, he argues that he can improve the cabin if the nonconformity is not increased. The plaintiff also posits that since a residence is currently allowed in the zone, it could be so used on this nonconforming lot and would in fact terminate the nonconformity--a desired goal of zoning. He ignores or dismisses the main issue of abandonment--the elephant in the room or, in this case, the tree in the cabin--by arguing that the tax assessors' records; (ROR, Item 14); are inconclusive.
The plaintiff devotes a portion of his brief to Benson's reasons, especially the accessory use issue, given for the denial in his March 21, 2014 letter. The board did not cite these reasons in its denial. Therefore, the court does not address Benson's reasons. See Woodbury Donuts, LLC v. Zoning Bd. of Appeals of Woodbury, supra, 139 Conn.App. at 757 (" [A] court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board . . . [T]he zoning board of appeals makes a de novo determination of the issue before it, without deference to the actions of the zoning enforcement officer" [internal quotation marks omitted]).
The board, on the other hand, points to § 9.03.100 which provides " [o]nce a nonconforming use, building, or lot has been abandoned, however, neither it nor any other nonconforming use, building or lot, respectively, shall thereafter be re-established." (ROR, Item 12.) It argues that Johns abandoned the nonconforming use that the plaintiff attempts to reclaim.
" General Statutes § 8-2(a) provides in relevant part that zoning regulations 'shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations. Such regulations shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of the property owner to maintain that use . . .' A nonconformity has been defined as a use or structure [that is] prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations [were] adopted . . . For a use to be considered nonconforming . . . that use must possess two characteristics. First, it must be lawful and second, it must be in existence at the time that the zoning regulation making the use nonconforming was enacted . . . The party claiming the benefit of a nonconforming use bears the burden of proving that the nonconforming use is valid." (Citations omitted; emphasis in original; internal quotation marks omitted.) Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn.App. 622, 627-28, 814 A.2d 396, cert. denied, 263 Conn. 901, 819 A.2d 836 (2003).
" A [nonconforming] use is merely an existing use the continuance of which is authorized by the zoning regulations . . . Stated another way, it is a use . . . prohibited by the zoning regulations but . . . permitted because of its existence at the time that the regulations [were] adopted . . . [T]he rule concerning the continuance of a nonconforming use protects the right of a user to continue the same use of the property as it existed before the date of the adoption of the [relevant] zoning regulations." (Citations omitted; internal quotation marks omitted.) Raymond v. Zoning Board, 76 Conn.App. 222, 256, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003).
Section 9.03.240 of the regulations provides that " [t]o establish that a non-conforming use has been abandoned, the owner must have voluntarily discontinued the use, and there was intent of the owner not to re-establish the use . . ." (ROR, Item 12.) " 'Abandonment' is a question of fact which implies a voluntary and intentional renunciation. Nevertheless, the intent to abandon may be inferred as a fact from the circumstances . . . The mere discontinuance of a use where there is no intent to abandon is not enough . . . To establish abandonment, the intention on the part of the owner [must be] to relinquish permanently the nonconforming use . . . Because the conclusion as to the intention of the landowner is an inference of fact, it is not reviewable unless it was one which the trier could not reasonably make." (Citations omitted; internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 93, 527 A.2d 230 (1987). The focus then must be on " the prior owners' intent to reestablish the nonconforming use following their voluntary discontinuance of that use." Caserta v. Zoning Board of Appeals, 41 Conn.App. 77, 83, 674 A.2d 855 (1996).
The record contains facts from which the board could reasonably conclude that Johns voluntarily discontinued the cabin use and did not intend to reestablish it. Johns did not live in Connecticut; (ROR, Item 23, p. 21); and the cabin was last used in 1955. (ROR, Item 23, p. 27.) While at one point in the 1950s it may have had operable systems, that has not been the case for many years and certainly is not at the present time. (ROR, Item 23, pp. 50-51.) The toilet is not connected to any plumbing; (ROR, Item 23, pp. 25, 50-51); the tax assessors' records reflect that the cabin was abandoned; (ROR, Item 14); and, of course, a tree grows in or close to the cabin. (ROR, Item 13; Item 23, p. 74.) No evidence indicates that Johns ever applied through 2013 for a permit to improve the cabin. Thus, the record reasonably supports the board's conclusion that Johns had abandoned the cabin for approximately sixty years and did not intend to reestablish the cabin use. See De Maria v. Enfield Planning & Zoning Com., 159 Conn. 534, 540, 271 A.2d 105 (1970) (" [w]hen a zoning commission states the reasons for its action, the question for the court to pass on is simply whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations" [internal quotation marks omitted]). This is determinative of the outcome of this appeal. See Caruso v. Zoning Board of Appeals, supra, 320 Conn. 321 (" [t]he 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]).
Hence, this court need not address the third reason. To the extent the plumbing and heating infrastructure was installed without the proper permits, it would be illegal and could not be a nonconforming use. See Cumberland Farms, Inc. v. Zoning Board of Appeals, supra, 74 Conn.App. 628 (" For a use to be considered nonconforming under . . . that use must possess two characteristics. First, it must be lawful and second, it must be in existence at the time that the zoning regulation making the use nonconforming was enacted" [emphasis in original; internal quotation marks omitted]).
Accordingly, the appeal is dismissed as the plaintiff has not sustained his burden to prove that the board acted improperly. See Woodbury Donuts, LLC v. Zoning Bd. of Appeals of Woodbury, supra, 139 Conn.App. at 758.
1. Article I, Section II Interpretations and Definitions states, 'The mere recording or filing of a map in the Town Clerk's Office does not constitute the creation of a lot.' 2. Newtown Zoning Regulation 7.02.110 states, 'Any new lot created after September 16, 2002 shall contain an area of land at least equal to the minimum area in acres for the zone in which it is located exclusive of wetlands, watercourses, vernal pools, FEMA 100-year flood plains, and natural slopes of twenty-five percent (25%) or greater.' The majority of this parcel has a slope greater than 25%. 3. The lot currently contains an accessory structure that had illegal unpermitted heating and bathroom facilities. Since both the heating and bathroom were installed without permits they would not be 'grandfathered' in and shall not be repaired or utilized. 4. The structure currently on the parcel is an accessory use in a Residential Zone, which is only permitted, ' . . . so long as they remain clearly accessory to the principal use . . .' The principal use in this zone is a house, therefore, the existing structure is a pre-existing non-conforming accessory structure and can be repaired but not expanded, however, as stated above the unpermitted heating and bathroom that were installed illegally after zoning was instituted cannot be repaired or utilized." (Return of Record [ROR], Item 22.)
" 9.03.100 Purpose and Intent " It is the intent of these regulations that any building, structure or use of land, either principal or accessory, lawfully existing at the time of adoption of these regulations, or any amendments thereto, may be continued although such building, structure or use does not conform with the provisions of these regulations. Once a non-conforming use, building, or lot has been abandoned, however, neither it nor any other non-conforming use, building or lot, respectively, shall thereafter be re-established. " 9.03.200 Non-conforming Uses " 9.03.210 Any non-conforming use shall not be expanded above the level at which such activity existed on the date on which it became non-conforming by virtue of these regulations. " 9.03.220 Any lot on which a non-conforming use has been conducted shall not be used for any other non-conforming use unless it is determined by the Zoning Board of Appeals (ZBA) to be less detrimental than the non-conforming use already in existence. " 9.03.230 The discontinuance of a non-conforming use and the replacement thereof by a conforming use, for any period of time, no matter how short, shall constitute abandonment of the non-conforming use. Such replacement by a conforming use shall occur when that portion of the lot or building formerly devoted to a non-conforming use is used for a conforming use. " 9.03.240 To establish that a non-conforming use has been abandoned, " the owner must have voluntarily discontinued the use, and " there was intent of the owner not to re-establish the use. " If the owner of said premises desires to resume said presumptively abandoned non-conforming use, he may apply to the Zoning Enforcement Officer (ZEO) to determine whether or not said non-conforming use was abandoned. The burden of proof shall be upon the applicant to show that the use was not in fact abandoned. " 9.03.300 Buildings with Non-conforming Uses " 9.03.310 Any building in which a non-conforming use is conducted may not be enlarged either in area or in cubic content for purposes of expanding such non-conforming use. Such a building may be otherwise altered, improved or rebuilt. " 9.03.320 A building in which a portion of such building is used for a non-conforming use may be enlarged provided such enlargement is only for the purposes of conducting a permitted use. " 9.03.330 When a building in which a non-conforming use is conducted is damaged or destroyed by fire, explosion, act of God or catastrophe not brought about by or on behalf of the owner, lessee or other person in possession and control of said building, it may be restored and used for said non-conforming use provided that the restored building covers no greater area, has no greater cubic content, and is at least as conforming as to location on the lot as was the building damaged or destroyed. " 9.03.400 Non-conforming Buildings " 9.03.410 Any building which has been made non-conforming as to front, side or rear yard dimensions, height or minimum size of dwelling by virtue of these regulations or the amendments thereto may be enlarged, altered or maintained notwithstanding any such nonconformity, provided that the enlargement or alteration of said building shall not increase the degree of such non-conformity. Said building shall comply with all the other provisions of these regulations for the zone in which it lies. " 9.03.500 Non-conforming Lots " 9.03.510 Non-conforming vacant lots may be improved if the lot is part of an approved subdivision, utilizing the Zoning Regulations at the date of subdivision approval. " 9.03.520 Non-conforming developed lots may be further improved if buildings or additions are in compliance with current regulations or the buildings and /or additions do not increase the current non-conformity. " 9.03.530 Lots not in an approved subdivision may be developed only in compliance with the current Zoning Regulations." (ROR, Item 12.)