Opinion
No. 125429
December 3, 2003
MEMORANDUM OF DECISION
This is an appeal by the plaintiffs, Steven Scott and Runthanges, Inc., from the decision of the Zoning Board of Appeals to uphold the action of the zoning enforcement officer of the Town of North Stonington in issuing a cease and desist order.
For reasons hereinafter stated, the decision of the Board is sustained.
Plaintiffs have instituted this appeal under the provisions of Connecticut General Statutes § 8-8b. Section 8-8b limits appeals to persons aggrieved by the decision appealed from. "[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is (therefore) fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409 (2002). Two broad yet distinct categories of aggrievement exist, classical and statutory. In re Shaquanna M., 61 Conn. App. 592, 597 (2001). The statutory aggrievement includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the Board. Connecticut General Statutes § 8-8(a)(1). "Classical aggrievement requires a two part showing. First, the party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to the general interest that all members of the community share . . . Second, the party must also show that the agency's decision as 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.) Lewis v. Planning and Zoning Commission, 62 Conn. App. 284, 288 (2001).
The evidence indicates that title to the real property involved in the decision of the Board is held by Mystic Seaport. Plaintiff Runthanges, Inc. operates a restaurant known as Rosie's Round The Clock Grill in a building on the property. The cease and desist order which is the subject of this appeal involves a portion of the premises used for parking in connection with the restaurant. Plaintiff Steven Scott is the president, secretary and director of Runthanges, Inc. The cease and desist order was directed to Mr. Scott and it was he who instituted the appeal to the Zoning Board of Appeals.
It is therefore found that both plaintiffs have demonstrated a specific, personal and legal interest in the subject matter of the decision in question. It is also found that there is a possibility that the decision of the Board has specially and injuriously affected the legally protected interest, which plaintiffs have in the operation of the restaurant. It is therefore concluded that plaintiffs are aggrieved and have standing to prosecute this appeal.
No questions have been raised as to any jurisdictional issues. All notices required to have been published appear to have been published in accordance with the law, and no jurisdictional defects have been noted at any stage in the proceedings.
By way of background, it is found that North Stonington senior planning and zoning officer, Liz Rasmussen, had been approached by several members of the Planning and Zoning Commission. The members expressed their concern over the expansion of the parking lot at Rosie's Round the Clock grill. In response to these approaches, the zoning enforcement officer investigated the situation. As a result of her investigation, on February 7, 2002, she issued a notice of violation to Steven Scott. The letter constituted a cease and desist order and contained notice of the following claimed violation:
The notice also describes two additional violations which are not now before the Court.
3. The expansion of the parking area — Please be advised that, although you submitted a "drawing" of your site as part of your sign permit submittal supporting documentation, the application was for a sign permit approval only, not site plan approval. My research of the use of your site revealed the area shown as "overflow parking" on said sign permit supporting documentation drawing was a grassed landscape area with only one row of parking on the paved area at the time you took possession of the restaurant site. Per Section 800 of the Zoning Regulations, any expansion of your parking area requires site plan approval by the Planning Zoning Commission. However, Section 1102 (Non-Conforming Uses) states" Non-conforming uses shall not be expanded to occupy additional building or outside space." Therefore, the expansion of your parking area is not permitted. In order to remedy this violation, you must remove the gravel from the formerly grassed area and restore the subject area with loam and seed.
On April 3, 2002, plaintiff Scott appealed the issuance of the cease and desist order to the Board. The Board scheduled the appeal for a public hearing to be held May 14, 2002. On that date, the hearing was had. Plaintiff Scott appeared at the hearing and presented his evidence. Other parties were also heard.
At the conclusion of the public hearing, after discussion, the Board voted to deny the appeal. The vote was four to deny the appeal and uphold the decision of the zoning enforcement officer with one abstention.
Although the chairman of the Board in moving to deny the appeal stated, "We feel the ZEO is correct in her interpretation of the regulation," no formal statement of reasons for the decision was promulgated.
Claiming to be aggrieved by the decision of the Board, plaintiffs instituted the present appeal.
In deciding appeals such as we have here, the court operates under certain restrictions. The court is not at liberty to substitute its judgment for that of the administrative tribunal. Hall v. Planning Zoning Board, 153 Conn. 574, 577 (1966). The court may only determine whether the Board acted arbitrarily or in abuse of its discretion. Raybestos-Manhattan, Inc. v. Planning Zoning Board, 186 Conn. 466, 470 (1982). The decision of defendant Board may be reversed only if it is found that the Board's action was illegal, arbitrary or in abuse of its discretion. Cameo Park Home, Inc. v. Planning Zoning Commission, 150 Conn. 672, 677 (1963).
The plaintiffs have the burden of proving that defendant Board acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988).
Here, the Board was required to determine the reasonableness of the decision of the zoning enforcement officer. It was acting administratively in a quasi-judicial capacity in applying the regulations. Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 513-14 (1969). Since the issue before the Board was the propriety of the zoning enforcement officer's interpretation of North Stonington Zoning Regulations, it became the duty of the Board to decide, within prescribed limits and consistent with the exercise of a legal discretion, whether the regulations applied to the situation and the manner of their application. Connecticut Sand Stone Corp. v. Zoning Board of Appeals, 150 Conn. 439, 442 (1963).
Generally, it is the function of the Board to decide within prescribed limits and consistent with the exercise of its discretion whether a particular section of the zoning regulations applies to a given situation and in the manner in which it does apply. The court must then decide whether the Board correctly interpreted the section of the regulations and applied it with reasonable discretion. In applying the law to the facts of a particular case, the Board is endowed with a liberal discretion and its discretion and its exercise will not be disturbed unless it is found to be unreasonable, arbitrary or illegal. The court reviews the record to determine whether it has acted fairly or with proper motives and upon valid reasons. Spero v. Zoning Board of Appeals, 217 Conn. 435, 440 (1991).
In their brief, plaintiffs have raised two issues which will be considered by the Court. The first issue is a claim that the attempted enforcement of the zoning regulations was directed against the wrong person. The second issue is a claim that the parking area, which was the subject of the order, is a nonconforming use.
The court is not bound to consider any claim of law not briefed. Shaw v. Planning Commission, 5 Conn. App. 520, 525 (1985); Moulton Brothers, Inc. v. Lemieux, 74 Conn. App. 357, 363 (2002).
Whereas here, the Board failed to state a formal, official, collective statement of the reasons for its action, the court must search the record to attempt to find some basis for the action taken. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369 (1988).
I.
The first claim advanced by plaintiffs is that the cease and desist order was issued to the wrong party. In their brief, plaintiffs state that Runthanges, Inc. is the actual lessee of the property and the operator of the restaurant business. The record indicates that the cease and desist order was directed to and served upon Steven Scott with a copy to Mystic Seaport Museums, Inc. as the owner.
It is claimed that Mr. Scott was merely an officer and agent of Runthanges, Inc.
It is claimed that the zoning enforcement officer had the burden to demonstrate that Scott personally violated the zoning regulations.
A review of the record indicates that the appeal to the Board was instituted by Mr. Scott. On the application form, there is no mention of the plaintiff corporation. To the contrary, on the application Scott wrote: "Sometime ago, I brought in crushed stones . . ." and "before I took this property over . . ." The claim that the cease and desist order was not directed to the proper party was not raised at the public hearing. Although there was some mention of the Mystic Seaport as the owner of the property, there was no testimony that Runthanges, Inc. was operating the restaurant. Throughout his extensive testimony before the Board, Mr. Scott continually stated that he personally did the various things which were done on the property. The Board was entitled to rely upon his testimony.
"A party to an administrative proceeding cannot be allowed to participate fully at hearings and then, on appeal, raise claims that were not asserted before the (Board)." Evans v. Plan Zoning Commission, 73 Conn. App. 647, 651 (2002). See also Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 632 (1992).
The existence of Runthanges, Inc. as operator of the restaurant on the premises appears to have been asserted as a claim only after the public hearing. From Mr. Scott's testimony before the Board, it would have to be inferred that he was involved in the operation of the business. Connecticut General Statutes § 8-12, which establishes the procedure to be followed when there is a claimed violation of the zoning regulations is very broad. It authorizes action against the owner or agent of the premises. Enforcement is also allowed against the agent lessee, etc., "or any other person who commits, takes part or assists in any such violation."
Considering Mr. Scott's testimony before the Board, it must be concluded that he cannot now at this time raise the claim that enforcement has been taken against the wrong entity. It must also be concluded that the procedure for enforcement of the zoning regulations established by § 8-12 has been followed.
II.
The second issue raised by plaintiffs is that the restaurant is a protected nonconforming use. A nonconforming use is one that was in existence at the time that the zoning regulations making the use nonconforming were enacted, and which use was previously lawful. Cummings v. Tripp, 204 Conn. 67, 91 (1987). The burden was on plaintiffs to establish that they have a nonconforming use. A.F. Const., Inc. v. Zoning Board of Appeals, 60 Conn. App. 273, 276 (2000).
The initial zoning regulations were adopted by the Town of North Stonington on May 21, 1964. Section 102. To be a valid protected nonconforming use, the parking lot on the premises would have to have been legally in existence on that date.
Paragraph 10a of the complaint alleges: "The parking lot use is a non-conforming use that pre-existed the zoning regulations in question and is therefore a rightful use under § 8-2 of the Connecticut General Statutes."
In their answer, the Board denied this allegation. In their brief, plaintiffs claim that a restaurant has been operating on the premises since the 1920s.
From the record, it may be inferred that the restaurant on the premises has been in operation for a number of years. There was no evidence, however, that it was legally operating at the time the zoning regulations became effective in North Stonington and the Board specifically denied that it was a nonconforming use. There was no evidence in the record that the restaurant was in existence since the 1920s and it was improper for such an allegation of fact to be stated in the brief.
The existence of a valid nonconforming use has not been proven, and in the pleadings, the Board denied this claim. However, in their brief, the Board appears to have accepted the fact that plaintiffs did have a valid nonconforming use. The testimony of the zoning enforcement officer and Mr. Scott at the public hearing indicates that the site in question, on the restaurant property, was formerly a grass area with picnic tables. The property had been so used for some time. Mr. Scott testified that he paved over the parking lot adjacent to the grass area and then extended the parking lot into the grass area by adding crushed stone to that area.
The zoning enforcement officer expressed appropriate concern about the expansion of the parking lot without site plan approval noting that the area was in the aquifer protection zone.
Section 1102 of the zoning regulations provides that nonconforming uses shall not be expanded to occupy additional building or outside space.
Plaintiffs claim that the entire premises, the restaurant and grounds, constituted a nonconforming use and that there was no change in the overall character of the use. "(A) mere increase in the amount of business done pursuant to a nonconforming use is not an illegal expansion of the original use. There must be a change in the character of the existing use in order to bring it within the prohibition of the zoning ordinance." (Citations omitted.) Zachs v. Zoning Board of Appeals, 218 Conn. 324, 332 (1991). The situation here is quite different from that found in the Zachs case. Here, there was an existing grassed over area with picnic tables in an aquifer protected zone. Plaintiffs changed the character of the grassed area by expanding the parking lot in violation of the zoning regulations.
III
Considering all of the evidence in the record, it must be found that the decision of the Board is supported by substantial evidence in the record. In upholding the decision of the zoning enforcement officer, the Board did not act illegally, arbitrarily or in abuse of its discretion, and the decision of the Board must be sustained.
Accordingly, the appeal is dismissed.
JOSEPH J. PURTILL, JUDGE TRIAL REFEREE.