Opinion
No. CV05-4003691 S
July 3, 2006
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiff, Smith Brothers Woodland Management, LLC, appeals from the decision of the defendant, the Brookfield Zoning Board of Appeals, upholding a cease and desist order issued by the Brookfield zoning enforcement officer. The zoning enforcement officer had issued the order for purported violations relating to nonconforming uses of the plaintiff's property.
II BACKGROUND
On May 2, 2005, the Brookfield Zoning Enforcement Officer (ZEO) issued to the plaintiff a cease and desist order for violating §§ 242-309B and 242-202 of the Brookfield Zoning Regulations. (Return of Record [ROR], Item 13.) Specifically, the plaintiff was cited for violating its certificate of zoning compliance, expansion of a nonconforming use, and tie maintenance of unregistered, nonusable vehicles on its property. (ROR, Item 13.) The plaintiff appealed the cease and desist order to the defendant, the Brookfield Zoning Board of Appeals (ZBA). (ROR, Item 2.) A public hearing was held on June 6, 2005 and continued to July 11, 2005. (ROR, Items 7, 10 11.) Following the public hearing, the ZBA voted to uphold the cease and desist order. (ROR, Item 33.) The plaintiff appealed from the ZBA's decision to the Superior Court, where a trial was conducted on April 3, 2006.
Section 242-309B of the Brookfield Zoning Regulations is entitled "Nonconforming Uses" and provides in relevant part: "Any use not otherwise permitted or which fails to conform with the zoning regulations applicable to the zone in which the same is located, is hereby declared to be a "nonconforming use" and subject to the following provisions: (1) No nonconforming use may be changed except to a conforming use or, with approval of the Zoning Commission, a nonconforming use may be changed to another nonconforming use as restricted or more restricted by this Chapter. (2) No nonconforming use shall, if once changed into a conforming use, be changed back to a nonconforming use. (3) No nonconforming use shall be extended or expanded, including hours of operation, without the approval of the Zoning Commission. (4) No nonconforming use shall be resumed or restored if [a] such use has not existed for a period of one (1) year from the date of cessation or from the effective date of the regulation, whichever is later;. or [b] such use is abandoned." (ROR, Item 36, p. 3-47.)
Section 242-202 is the definitions section of the Brookfield Zoning Regulations. (ROR, Item 36.) In the cease and desist order, the plaintiff was cited for violating the definition of unregistered, nonusable vehicles on the property. (ROR, Item 13.) The term "unregistered vehicle" is referenced under the term "junkyard." (ROR, Item 36, p. 2-12.) In residential districts and recreational districts, "junkyard" includes "the outside storage of more than one (1) unregistered motor vehicle in any lot in such manner as to be visible from any street or any other lot." (ROR, Item 36, p. 2-12.)
III JURISDICTION
General Statutes § 8-8 governs an appeal from the decision of a zoning board of appeals to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).A Aggrievement
"[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.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39. An owner of property that is the subject of an application is aggrieved for the purpose of bringing an appeal, and a plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
The plaintiff alleges that it is aggrieved by the ZBA's decision because it is the owner of the subject property. (Appeal, ¶ 13.) At trial on April 3, 2006, the plaintiff's attorney presented a deed identifying the plaintiff as the owner of the subject property. (Plaintiff's Exhibit 1.) From this undisputed evidence, the court finds that the plaintiff's status as the owner of the subject property is sufficient to establish aggrievement.
B Timeliness and Service of Process CT Page 12094
Pursuant to General Statutes § 8-8(b), an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." General Statutes § 8-8(f)(2) further provides that "[f]or any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57 . . ." General Statutes § 52-57(b) provides that "[p]rocess in civil actions against the following-described classes of defendants shall be served as follows . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . .The ZBA's decision was published in the News Times on July 15, 2005. (ROR, Item 34.) The plaintiff commenced its appeal on July 25, 2005 by service of process upon the Brookfield town clerk by leaving two copies of the summons, citation, appeal, recognizance and bond. (Marshal's Return.) As this appeal was commenced by service of process within fifteen days from the date of publication, the court finds that it is timely and that service was made upon the proper party.
Although he was not directed to do so, the marshal also served process upon the chairman of the zoning board of appeals at his usual place of abode.
IV SCOPE OF REVIEW
"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 [a zoning board of appeals] must be upheld by the trial court if they are reasonably supported by the record . . . 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." (Citation omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004). "The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal." RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61.
"[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." Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82, 626 A.2d 744 (1993). "[T]he proper focus of a reviewing court is on the decision of the zoning agency and, with regard to its factual determinations, on the evidence before it that supports, rather than contradicts, its decision.
"The conclusion that this scope of review applies upon judicial review is not undermined by the fact that . . . the zoning agency was a zoning board of appeals reviewing the decision of a zoning enforcement officer in an appeal from that decision pursuant to [the General Statutes] . . . [I]t is clear from both the entire statutory scheme and our zoning case law that the zoning board hears and decides such an appeal de novo, and that the action of the zoning enforcement officer that is the subject of the appeal is entitled to no special deference by the court." (Internal quotation marks omitted.) Id., 87-89.
A review of the record reveals that the ZBA did not formally state its reasons for upholding the ZEO's cease and desist order. "Where a zoning board of appeals does not formally state the reasons for its decision . . . the trial court must search the record for a basis for the board's decision." (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, supra, 270 Conn. 454. Thus, the court must search the record to determine whether the record contains substantial evidence to support the ZBA's decision to uphold the ZEO's order.
V DISCUSSION
The plaintiff appeals on the grounds that the ZBA acted arbitrarily, illegally and in abuse of its discretion in the following ways: (a) "its decision is contrary to the standards and requirements of . . . General Statutes [§]38-7 governing appeals from orders of officials charged with the enforcement of zoning regulations"; (b) "its decision is contrary to the standards of [§]242-202, et seq. of the [z]oning [r]egulations of the [t]own of Brookfield"; (c) "its decision is contrary to the standards and requirements of [§]242-309, et seq. of the [z]oning [r]egulations of the [t]own of Brookfield"; (d) "its decision ignored, and is contrary to, the substantial weight of the evidence"; (e) "its decision ignored and is contrary to the factors and standards set forth in the [z]oning [r]egulations of the [t]own of Brookfield"; (f) "its decision is inconsistent with and contrary to the standards and requirements of Chapter 124 of the . . . General Statutes including, without limitation, the provisions of . . . General Statutes § 8-2"; (g) "the provisions of [§]242-309, et seq. of the [z]oning [r]egulations of the [t]own of Brookfield are illegal and unenforceable"; (h) "its decision is not supported by substantial evidence"; (i) "its decision failed to recognize the status of the [subject property] as a legally, existing nonconforming use"; (j) "its decision deprived the plaintiff of its property rights and of the value, reasonable use and enjoyment of the [subject property] without due process of law"; (k) "its decision deprived the plaintiff of the value, reasonable use and enjoyment of the [subject property] without just compensation"; and (l) "it otherwise acted illegally, arbitrarily and abused its discretion." (Appeal, ¶ 14.)
Although the plaintiff alleged several grounds in its complaint, it has not briefed all of these grounds. "Issues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided." Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 109 n. 3, 682 A.2d 1070, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996). Accordingly, any grounds asserted in the plaintiff's appeal which are not briefed are deemed abandoned and will not be addressed by the court.
In its memorandum of law, the plaintiff contends that the May 2, 2005 cease and desist order is contrary to General Statutes § 8-13a because there has been no expansion of a nonconforming use and that the use of the property for the storage of materials and construction vehicles and equipment is a preexisting, legal nonconforming use. The plaintiff maintains that its historic and continuous nonconforming use of the property is consistent with the definition of "contractor's yard" as defined in the Brookfield zoning regulations and that municipalities cannot eliminate a nonconforming use through its zoning regulations. The plaintiff contends that neither the filing of a zoning application nor the issuance of a certificate of zoning compliance establishes that it intended to abandon the nonconforming use of the property. It further argues that the ZBA's decision is void under General Statutes § 8-11 because the ZEO, William Schappert, appeared before the ZBA and participated at the public hearing by speaking against the plaintiff's appeal.
General Statutes § 8-13a(b) provides in relevant part: "When a use of land or building . . . (5) has been in existence for twenty years prior to July 8, 1997, without the institution of court action to enforce the regulations regarding the use, such use shall be deemed a legally existing nonconforming use and may be continued."
General Statutes § 8-11 provides in relevant part: "No member of any zoning commission or board and no member of any zoning board of appeals . . . shall appear for or represent any person, firm, corporation or other entity in any matter pending before the planning or zoning commission or board or said board of appeals or any agency exercising the powers of any such commission or board in the same municipality, whether or not he is a member of the board or commission hearing such matter. No member of any zoning commission or board and no member of any zoning board of appeals shall participate in the hearing or decision of the board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense."
The plaintiff argues that the record does not contain substantial evidence demonstrating that it abandoned the preexisting nonconforming uses of the property when it applied to the Brookfield Zoning Commission (Commission) for a Certificate of Zoning Compliance in 1999. It maintains that the only way a nonconforming use can be lost is through abandonment and that it did not abandon the nonconforming uses of its property. In support, it argues (1) that its application for the certificate of zoning compliance is not evidence of its intention to abandon the preexisting nonconforming uses; (2) that the issuance of the certificate of zoning compliance by the commission did not transform the nonconforming uses into permitted uses subject to the conditions set forth in the certificate; and (3) that the certificate of zoning compliance is null and void because it was never recorded in the Brookfield land records.
The ZBA does not contest the plaintiff's assertion that the certificate was never filed on the land records, but counters that in applying for the certificate of zoning compliance and proposing the stipulated conditions attached thereto in 1999, the plaintiff expressed its intent to abandon any preexisting nonconforming uses not permitted under the certificate. It also argues that because the plaintiff could have appealed the commission's issuance of the certificate with those conditions but chose not to, it cannot now claim that the conditions are unenforceable.
"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 regulations making the use nonconforming was enacted . . .
"Nonconforming uses are protected by the express language of General Statutes § 8-2. . . . To be sure, [i]t is the indisputable goal of zoning to reduce nonconforming to conforming uses with all the speed justice will tolerate . . . While [t]he accepted policy of zoning . . . is to prevent the extension of nonconforming uses . . . legally existing nonconforming uses are property rights vested in the land . . . [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 . . .
General Statutes § 8-2(a) provides in relevant part that "[s]uch regulations [authorized by each city, town or borough] 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."
"Once a nonconforming use is established, the only way it can be lost is through abandonment . . . The issue of a specific intent to relinquish a nonconforming use presents a question for the trier of fact." (Citations omitted; emphasis in original; internal quotation marks omitted.) Campion v. Board of Aldermen, 85 Conn.App. 820, 842-43, 859 A.2d 586 (2004), rev'd on other grounds, 278 Conn. 500 (2006). "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 . . . To establish abandonment, the intention on the part of the owner [must be] to relinquish permanently the nonconforming use." (Citations omitted; emphasis in original; internal quotation marks omitted.) Cummings v. Tripp, 204 Conn. 67, 93, 527 A.2d 230 (1987).
First, the court must address the issue of whether the application for the certificate of zoning compliance in 1999 demonstrates the plaintiff's intent to abandon preexisting nonconforming uses of the property. Although the record does not contain a formal, collective statement of the reasons for the ZBA's decision to uphold the cease and desist order, a review of the record demonstrates that the ZBA based its decision, at least in part, on purported violations of the certificate of zoning compliance. During deliberations at the July 11, 2005 meeting of the ZBA, chairman Flynn stated that the plaintiff "proved [that its] activities . . . were preexisting, nonconforming throughout, but, when taken in context of [the certificate of zoning compliance], it constitutes . . . an abandonment, or a [discontinuance] of the nonconforming use, as it relates to all of the activities with the exception of the contractor's yard." (ROR, Item 11, p. 39.) The ZBA voted to uphold the order shortly thereafter. The ZBA argues that the plaintiff had written the stipulations, which became the conditions under which the certificate of zoning compliance was issued, and in so doing, the plaintiff therefore, expressed its intent to abandon any preexisting uses that were not enumerated in the application.
A review of the record reveals that on March 23, 1999, the plaintiff submitted an application for a certificate of zoning compliance to the commission requesting to use the subject property as a general contractor site. (ROR, Item 21.) The ZBA approved the application with conditions. (ROR, Item 21.) Although the record contains no evidence to support the ZBA's assertion that these conditions were proposed by the plaintiff, the plaintiff concedes in its brief that this document was part of its application and contains statements of the plaintiff. The ZBA essentially contends that this document demonstrates the plaintiff's intent to abandon any uses that do not strictly adhere to the conditions stated therein. This argument is contrary to the evidence and established precedent concerning nonconforming uses.
Attached to the certificate of zoning compliance in the record is a two-page document containing conditions, which are referred to in the certificate as "STIPULATIONS." These conditions are as follows: "[1] No [s]ales of any [p]roducts on the site. Including [f]irewood and [l]ogs. Firewood to be used for heating building only. Logs to be temporarily on site for transport to other company locations. Logs to be 10" to 30" diameter. Maximum 12-foot lengths: Located in designated area (see site plan): Maximum duration 5 [d]ays. NO SALE OF LOGS AT ANY TIME; [2] There will be no [s]tumps or [w]ood [c]hips ever on the site. NO EXCEPTIONS; [3] There will never be any [g]rinding of [m]aterials on site. THEREBY, NO NOISE WILL BE GENERATED; [4] As a condition of the [s]ales [c]ontract, all the [m]aterial, [v]ehicles, [p]arts, etc., must be removed from the site, including the several [b] uses stored at present; [5 the outside of the present building will be painted, including [g]arage d]oors; [6] Plantings of [s]hrubs and [t]rees will be placed (see site plan) to provide a visual screen from Whisconier Road (Route 25); 7] There will be [n]o [c]onstruction [m]aterials ([g]ravel, [s]tone, [s]and, [p]ipe, etc.) stored on site; [8] One [t]ruck [l]oad [m]aximum of [l]ogs on site in a designated area of 12' x 60' completely out of site (see map); [9] No [p]ick-up of [c]ustomers will take place; and [10] Number of [t]rucks per week will vary from [njo trucks to [m]aximum of 5 [t]rucks per week (one per day)." (ROR, Item 21.)
In its brief, the plaintiff states, in relevant part, that "in the 1999 CZC Application, the Plaintiff SMITH BROTHERS clearly states that it intended to continue the use of the Premises as a `General Contractor['s]' yard." (Plaintiff's 11/7/05 Brief, p. 28, citing ROR, Item 21.) The only part of ROR Item 2 in which the term "General Contractor Yard" is used is in the two-page document referred to in the certificate of zoning compliance's "STIPULATIONS."
A review of the record fails to reveal any substantial evidence to support a finding that the plaintiff intended to abandon the preexisting nonconforming use of the property when it filed its application for a certificate of zoning compliance. Although the documents accompanying the application contain several conditions which the ZBA could have reasonably determined were proposed by the plaintiff, this document does not demonstrate that the plaintiff intended to permanently discontinue the prior nonconforming uses of the property. In that document, the plaintiff described both the "PRE-EXISTING USE" and the "NEW OWNER USE" as "General Site Contractor." (ROR, Item 21.) That document also contains descriptions of several ways in which the plaintiff's use of the site would be less intensive than that of the previous owner, but does not state in any manner that any preexisting use of the site would be discontinued. In that document, the plaintiff stated that it intended to clean up and ultimately improve the property, not that it intended to abandon the nonconforming use. (ROR, Item 21.) Accordingly, the ZBA's contention that the filing of the certificate of zoning compliance constitutes the abandonment of the property's nonconforming use is without record support.
Although the plaintiff may not have fully complied with the stipulations of approval attached to the certificate of zoning compliance, nothing in the record supports the ZBA's finding that the plaintiff intended to abandon the nonconforming use. The ZBA has pointed to no other evidence, and a review of the record reveals none, that would support a finding that the plaintiff ever intended to relinquish permanently any preexisting use of the property. Moreover, there is no evidence in the record to demonstrate that the plaintiff ever actually discontinued such a use for any period of time. Accordingly, the defendant's argument that the application for the certificate of zoning compliance demonstrates the plaintiff's intent to relinquish permanently its preexisting nonconforming uses of the property is not supported by any evidence in the record.
The ZBA seeks to analogize the facts of the present case to Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn.App. 622, 814 A.2d 396 (2003). In that case, the board had determined that the nonconforming use of the property as a gasoline station had been abandoned where the trustee of the estate of the property owner stated in a letter that she had no "intention of reviving the gasoline station business or installing new fuel storage tanks." (Internal quotation marks omitted.) Id., 629. That case is distinguishable from the present case because in Cumberland Farms, Inc., in addition to the evidence of the owner's intent to abandon the use, the record also contained evidence that the nonconforming use of the property had been discontinued for an extended period of time. Id., 632.
Although the application for the certificate of zoning compliance does not, for the reasons discussed above, demonstrate the plaintiff's intent to abandon the preexisting nonconforming uses of the property, the defendant also argues that the plaintiff is bound by the stipulations set forth in the certificate because it did not appeal the commission's decision to issue the certificate with those conditions. Accordingly, the court must next consider whether the plaintiff's failure to appeal the commission's 1999 decision to issue the certificate of zoning compliance with conditions precludes the plaintiff from now claiming that those conditions are void and unenforceable. the defendant relies on Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 616 A.2d 793 (1992), and Spectrum of Connecticut, Inc. v. Planning Zoning Commission, 13 Conn.App. 159, 535 A.2d 382, cert. denied, 207 Conn. 804, 540 A.2d 373 (1988), for the proposition that a plaintiff is precluded from challenging conditions imposed as part of a permit that the plaintiff has not challenged during the statutory appeal period. In Spectrum of Connecticut, Inc., the Appellate Court stated: "Just as a party may not ordinarily ask for a certain result and then challenge its validity on appeal . . . a party may not challenge on appeal the validity of a preexisting condition to a special permit which it seeks to renew. Having failed to challenge it when it was imposed, [the plaintiff] was in no position to contest the validity of the condition when the commission evaluated [the plaintiff's] renewal application by looking to its noncompliance with the condition." (Citations omitted.) Id., 162. Similarly, the Supreme Court in Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 96, rejected the plaintiff's position that "the recipient of a zoning permit that had been granted subject to a condition may accept both the benefits of the permit and the condition attached to it, by failing to challenge the condition by way of direct appeal . . . and then, years later, defend against the enforcement of the condition by attacking its validity ab initio." (Citation omitted.) Id., 101-02. In each of these cases, the plaintiff had applied for a permit, which was granted subject to conditions, then later brought an appeal in which it challenged the enforcement of one of those conditions.
Unlike the present case, however, the plaintiffs in both Spectrum of Connecticut, Inc. v. Planning Zoning Commission, supra, 13 Conn.App. 159, and Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 96, enjoyed the benefits of the permits that had been granted to them, which were subject to conditions. Although the plaintiff in the present case did not appeal from the issuance of the certificate of zoning compliance or its conditions, the record does not reflect that the certificate was ever recorded on the land records. Consequently, an appeal would have been an unnecessary challenge to the commission's action because the certificate became null and void six months after its issuance and the plaintiff could not have received any benefit from its issuance. See Brookfield Zoning Regs., § 242-301C(7)(b), p. 3-8 ("Approvals not filed on the land records of the Town of Brookfield within six (6) months of the effective date of such approval shall become null and void . . .") (ROR, Item 36). The plaintiff, therefore, is not precluded from claiming that it is not bound by the conditions that were imposed with the certificate of zoning compliance because the plaintiff never enjoyed the benefits of the permit.
C Whether Substantial Evidence Exists in the Record to Show that the Plaintiff Expanded the Preexisting Nonconforming Uses of the Subject Property
The plaintiff argues that the May 2, 2005 order issued by the ZEO violates General Statutes § 8-2(a) because the commission may not eliminate a nonconforming use through its zoning actions and regulations. It maintains that the order is inconsistent with the definition of "contractor's yard," because that definition allows for "the storage and maintenance of equipment commonly used in the construction industry, including but not necessarily limited to: dump trucks, bucket loaders, excavators, bulldozers and the like." Brookfield Zoning Regs. § 242-202, p. 2-7 (ROR, Item 36). Moreover, it contends that the order is unduly vague and unenforceable because it fails to identify which unregistered or nonusable vehicles are being illegally stored at the subject property. The plaintiff maintains that the vehicles stored on the property are regularly used in its business and are not required to be registered under General Statutes § 14-12 et seq. The plaintiff maintains that its use of the property as a contractor's yard is a preexisting nonconforming use, there has been no expansion of that use and its use of the property is less intensive than that of the previous owner. Relying on the three-factor test set forth in Zachs v. Zoning Board of Appeals, 218 Conn. 324, 332, 589 A.2d 351 (1991), the plaintiff argues that its activities are not an expansion of, but rather are consistent with, the preexisting nonconforming use of the property as a contractor's yard.
Section 14-12(a) provides in relevant part that "[n]o motor vehicle shall be operated or towed on any highway . . . unless it is registered with the commissioner . . ."
The ZBA counters that the plaintiff has unlawfully expanded the nonconforming use of the property by conducting logging operations and storing logging equipment, in violation of the stipulations attached to the certificate of zoning compliance. It argues that a "contractor's yard," as defined in § 242-202 of the Brookfield zoning regulations, "relates to equipment fit and sufficient for construction activity and consists of road-worthy vehicles and operational earth moving or paving equipment" and "was never intended to include logging equipment or operations." (Defendant's Brief, p. 6.) In support of this interpretation, the ZBA asserts that a logging operation is defined § 242-304 of the regulations and is a type of use different than a contractor's yard. It further maintains that equipment permitted in a contractor's yard must be operational and not obsolete, scrapped or unregistered because storage of such equipment would constitute a junkyard as defined in § 242-202 of the regulations.
Although the ZBA erroneously refers to § 242-302 of the regulations in its discussion of the definition of "woodcutting, lumbering and forestry," § 242-302 pertains only to "[n]atural resources removal" or "excavation or removal . . . of earth, loam, humus, topsoil, sand gravel, clay, stone, soil, subsoil or other earth product . . ." (ROR, Item 36, p. 3-10.) Section 242-304 pertains to "[w]oodcutting, lumbering and forestry operations." (ROR, Item 36, p. 3-16.)
The ZBA contends that at the July 11, 2005 public hearing before the ZBA, the ZEO presented photographs depicting on-site grinding, storage of logs in excess of twelve feet in length, storage of additional logs in excess of that permitted for temporary storage or firewood for personal consumption and storage of unregistered vehicles. (See ROR, Items 20 24.) It argues that the storage of unregistered vehicles on the property, including trailers, pickup trucks, other vehicles and dilapidated equipment that is not in a proper condition for use in conjunction with construction work, constitutes a junkyard. The ZBA also argues that the plaintiff failed to submit sufficient evidence to establish that the uses at issue, specifically the processing and storage of wood chips, storage of extensive piles of logs for retail sale, storage of logging equipment, storage of lumber and storage of log processing equipment, were preexisting nonconforming uses of the property when it applied to the commission for the certificate of zoning compliance in 1999. Accordingly, the ZBA argues, its decision to uphold the cease and desist order, which is based upon expansion of the nonconforming uses permitted by the certificate of zoning compliance, is supported by substantial evidence in the record.
As a threshold matter, whether the plaintiff has violated the certificate of zoning compliance and the stipulations that were attached to it is immaterial because, as discussed in section A, supra, the record contains no evidence that it was ever recorded on the land records and, consequently, it became null and void six months after its issuance. Consequently, the court must determine, regardless of the certificate of zoning compliance, whether the record would support a determination by the ZBA that the plaintiff has expanded the preexisting nonconforming uses of the property.
"In deciding whether the current activity is within the scope of a nonconforming use consideration should be given to three factors: (1) the extent to which the current use reflects the nature and purpose of the original use; (2) any differences in the character, nature and kind of use involved; and (3) any substantial difference in effect upon the neighborhood resulting from differences in the activities conducted on the property." Zachs v. Zoning Board of Appeals, supra, 218 Conn. 332. "Although existing nonconforming uses are protected by statute; General Statutes § 8-2; public policy favors their abolition as quickly as the fair interest of the parties will permit. In no case should they be allowed to increase." (Internal quotation marks omitted.) Crabtree Realty Co. v. Planning Zoning Commission, 82 Conn.App. 559, 562, 845 A.2d 447, cert. denied, 269 Conn. 911, 852 A.2d 739 (2004). Section 242-309B(3) of the regulations specifically states that "[n]o nonconforming use shall be extended or expanded, including hours of operation, without the approval of the [z]oning [c]ommission." The record reveals that the ZEO inspected the subject property in the spring of 2005 and noted the following occurrences: (1) evidence of grinding of material on the property; (2) the log storage area for firewood contained logs in excess of twelve inches in length and were "obviously not processed for firewood"; (3) an additional log storage area located on the southwest side of the property, which was not permitted per the approval document; and (4) numerous unregistered vehicles on the property constituting an illegal junkyard. (ROR, Item 26.) At the April 14, 2005 regular meeting of the zoning commission, Dwight Smith, the principal of the plaintiff, agreed to move the wood pile in the southeast corner of the property within the next week, to remove the unregistered vehicles and to clean up a pile of wood chips within ten days. (ROR, Item 27, p. 4.) At the April 28, 2005 regular meeting of the zoning commission, the ZEO reported that nothing had been done on the property since the April 14, 2005 meeting. (ROR, Item 28, p. 4.)
With regard to the use of the property in connection with the plaintiff's logging business, including the storage of wood chips, logs and land clearing equipment on the property, the ZBA's decision to uphold the commission's cease and desist order on the ground that the plaintiff expanded the preexisting nonconforming uses of the property is not supported by substantial evidence in the record. A review of the record reveals that prior to the adoption of the zoning regulations in the 1960s, the former owners of the property used it as a contractor's yard, but also included storage of logs, wood chips and equipment used for land clearing. (See, e.g., ROR, Item 17, p. 2, ¶ 5; Item 29, p. 2.) Section 242-202 of the regulations defines "contractor's yard" as follows: "A commercially or industrially zoned lot, with or without support structures and buildings, limited to the storage and maintenance of equipment commonly used in the construction industry, including but not necessarily limited to: dump trucks, bucket loaders, excavators, bulldozers and the like. The lot may also store construction material acquired in anticipation of their use at remote locations." (Emphasis added.) (ROR, Item 36, p. 2-7.) The record shows that from 1934 until 1999, the subject property was used by the Kolinchaks, the prior owners, in conjunction with their construction business, which involved road building, drilling, blasting, excavation and land clearing. (ROR, Item 17, p. 2.) The Kolinchaks also stored concrete blocks, lumber, asphalt, cut logs, sand, gravel, stone and wood chips on the property. (ROR, Item 17, p. 2.) They also stored and maintained commercial vehicles, such as dump tucks, excavators, tractor trailers, cranes and other earth moving and clearing vehicles on the property. (ROR, Item 17, p. 2.) In this affidavit, John Kolinchak, Jr. attested that as part of the Kolinchaks' construction business, they processed raw materials and other materials, which included crushing, grinding and screening of stone along with the splitting and cutting of wood and lumber products. (ROR, Item 17, p. 2.) He further attested that these and similar types of uses of the property occurred continuously and regularly since 1934. (ROR, Item 17, p. 3.)
The Brookfield zoning regulations were adopted in 1967, which repealed and superseded the earlier regulations adopted in 1960. Brookfield Zoning Regs., art. 10, §§ 242-1001 and 242-1002.
The current use of the property, which includes use as a contractor's yard, also includes uses relating to the plaintiff's logging business, i.e., the storage of logs. (ROR, Item 29, p. 2.) The record includes photographs of log piles and unregistered vehicles located on the property in the spring of 2005. (ROR, Items 24, 25.) Although the storage of the logs does not comply with the definition of "contractor's yard" under § 242-202 of the regulations, the original use of the property included the storage of cut logs. (ROR, Item 17, p. 2.) At the public hearing on July 11, 2005, Alan Pitts, a longtime friend of John Kolinchak, Jr. and a Brookfield resident since 1963, testified that the property "always had logs, always had construction vehicles," and he also testified that he sold firewood for years and he stored and cut the wood on the property. (ROR, Item 11, pp. 9-10.) Although the ZEO found "logs in excess of twelve inches in length"; (ROR, Item 26); there is no evidence in the record indicating whether logs of that size were present prior to the adoption of the zoning regulations and during the time that the Kolinchaks owned the property. Moreover, the Supreme Court has consistently 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." (Internal quotation marks omitted.) DiBlasi v. Zoning Board of Appeals, 224 Conn. 823, 833, 624 A.2d 372 (1993); Zachs v. Zoning Board of Appeals, supra, 218 Conn. 331. John Kolinchak, Jr.'s uncontradicted statements in his affidavit and the testimony of Dwight Smith and Alan Pilts at the public hearing before the ZBA on July 11, 2005 demonstrate that the property was used for the storage of logs, wood chips, land clearing vehicles, and grinding of wood since before the adoption of zoning regulations in Brookfield. The record, therefore, does not contain substantial evidence establishing that the presence of logs, wood chips or land clearing equipment on the property does not reflect the nature and purpose of the original use.
In addition, the court must consider the extent to which the presence of unregistered vehicles on the property reflects a nature and purpose different from that of the original use of the property. See Zachs v. Zoning Board of Appeals, supra, 218 Conn. 332-33. As previously noted, the record discloses that when the ZEO inspected the property in the spring of 2005, numerous unregistered vehicles were on the property. (ROR, Item 26.)
The evidence in the record would support a finding that the plaintiff's use of the property fits the definition of a junkyard in the regulations. Although such a determination does not render the plaintiff's use unlawful, to the extent that such a use is within the scope of a preexisting nonconforming use, there is no evidence in the record to demonstrate that the storage or maintenance of unregistered, nonusable motor vehicles was a preexisting nonconforming use of the property. As previously stated, Kolinchak's affidavit indicates that commercial vehicles, such as dump trucks, excavators, tractor trailers, cranes and other earth moving and clearing vehicles were stored on the property since 1934. (ROR, Item 17, p. 2.) At the public hearing before the ZBA on July 11, 2005, Pitts testified, "I always go by [the subject property] and . . . I look over there because it's part of my life every time I go by the, the yard. And, uh, I see the wood, I see the trucks, I see the equipment. It, it, it looks the same to me as it always did." (ROR, Item 11, p. 9.)
Section 242-202 of the zoning regulations defines "junkyard" as follows: "Any junkyard, motor vehicle junk business, and motor vehicle junkyard as defined in the General Statutes of the State of Connecticut. The term shall also include any place of outside storage or deposit, whether in connection with a business or not, for two (2) or more motor vehicles which are no longer intended or in condition for legal use on the public highways and shall also include any place of outside storage or deposit of used parts of motor vehicles which on any lot have an aggregate bulk equal to one (1) automobile. In residential districts and recreational districts, however, the term shall also include the outside storage of more than one (1) unregistered motor vehicle in any lot in such manner as to be visible from any street or any other lot. "Junkyard" shall also mean any place in or on which discarded metal, glass, plastic, paper, cordage or other waste or secondhand material, which has not been a part or is not intended to be a part of any motor vehicle, is stored or deposited." (ROR, Item 36, p. 2-12.)
Nevertheless, the only evidence in the record to suggest that unregistered motor vehicles were located on the property prior to the adoption of the zoning regulations, specifically, the photographs of the site taken during the 1930s, 1971 and 1999, presented by the plaintiff at the public hearing on July 11, 2005, depicting trucks, trailers and buses on the property, does not definitively demonstrate that any of these vehicles were unregistered. (ROR, Item 11, pp. 5-6; Item 18.) For example, these photographs do not depict expired license plates or any other information from which a fact finder could discern the status of the vehicles' registrations at the time that the photographs were taken.
Although Dwight Smith testified at the July 11, 2005 hearing that he stored unregistered vehicles on the property, there is no evidence that such vehicles were maintained on the property prior to the adoption of zoning regulations in Brookfield. At that hearing, the following colloquy between Richard Burturla, an attorney for the plaintiff, and Smith took place concerning the uses of the property:
R. Buturla: . . . Mr. Smith, from the time you acquired that property, did you continue to store unregistered vehicles on that site?
Dwight Smith: Yes.
R. Buturla: Did you continue to, uh, store wood on that site?
Dwight Smith: Yes.
R. Buturla: Did you continue to maintain logs on that site?
Dwight Smith: Yes, we never discontinued our nonconforming use.
R. Buturla: That's exactly right. Mr. Pitts, the nonconforming use that's going on there today, is it just like the nonconforming use that was going on back when Mr. Kolinchak owned it?
A. Pitts: It was.
(ROR, Item 11, p. 32.)
Although this uncontradicted testimony at the hearing before the ZBA demonstrates that most of the uses of the property at issue, specifically, the uses other than storage of unregistered, unusable motor vehicles on the property, were consistent with the preexisting nonconforming uses of the property and reflect the nature and purpose of those uses, the plaintiff has not established that the storage of such vehicles is a valid, preexisting nonconforming use of the property. Accordingly, as the record contains evidence that unregistered vehicles were located on the property at the time of the ZBA's July 11, 2005 decision; (ROR, Item 25); and the record contains no evidence that such vehicles were on the property prior to the adoption of zoning regulations in Brookfield, the record would support a finding that the storage of such vehicles constitutes an expansion of the preexisting nonconforming uses of the property. Although the record contains no evidence that such vehicles were not present at the time of the adoption of zoning regulations, the burden of establishing a nonconforming use lies with the plaintiff; see, e.g., Zeigler v. Thomaston, 232 Conn. 270, 271 n. 3, 654 A.2d 352 (1995); who did not present sufficient evidence of this to the ZBA. The appeal, therefore, cannot be sustained on the grounds that the presence of unregistered vehicles on the property reflects the nature and purpose of the original use of the property or that the current character, nature and kind of use does not differ from the original use.
The third factor set forth in Zachs v. Zoning Board of Appeals, supra, 218 Conn. 332, whether there is any substantial difference in effect upon the neighborhood due to the differences in activities conducted on the property, is only applicable to the use of the property for storage of unregistered, nonusable motor vehicles, because the record does not show that there has been any change in the other activities at issue. Accordingly, the court must consider this third factor as it relates to the storage of such vehicles. Although the ZEO stated, at the public hearing on July 11, 2005, that "this matter was brought to the attention of the [z]oning [c]ommission by numerous complaints by residents"; (ROR, Item 10, p. 3); the evidence in the record does not show that the ZEO found that there had been an adverse effect on the neighborhood due to those complaints. Therefore, substantial evidence does not exist in the record demonstrating any substantial difference in effect upon the neighborhood resulting from the activities conducted on the property. Although consideration of this factor does not support the ZBA's decision, the consideration of the other two factors, discussed supra, demonstrates that the storage of unregistered, unusable motor vehicles is not within the preexisting nonconforming uses of the property.
For these reasons, to the extent that the ZBA decided to uphold the cease and desist order because the plaintiff expanded the preexisting nonconforming use of the property, its decision as it relates to uses other than the storage of unregistered vehicles is not supported by substantial evidence in the record. Nevertheless, for the reasons discussed above, the ZBA's decision to uphold the aspect of the cease and desist order pertaining to the storage of unregistered vehicles, as that relates to unregistered "[m]otor vehicle[s]," as defined in General Statutes § 14-1(a)(51), is supported by substantial evidence in the record.
D Whether the ZEO's Participation in the Hearing Before the ZBA Renders the ZBA's Decision Void under General Statutes § 8-11
The plaintiff also contends that the ZBA's decision is null and void under General Statutes § 8-11 because the ZEO appeared and participated at the public hearing before the ZBA by speaking against the plaintiff's appeal. The ZBA counters that the ZEO presented documentation to, and appeared before, the ZBA pursuant to his statutory duties under General Statutes § 8-7.
General Statutes § 8-7 does not describe the ZEO's statutory duties. This section does, however, describe the appeal process when a person is aggrieved by a decision of a ZEO.
General Statutes § 8-11 provides in relevant part: "No member of any zoning commission or board and no member of any zoning board of appeals . . . shall appear for or represent any person, firm, corporation or other entity in any matter pending before the planning or zoning commission or board or said board of appeals or any agency exercising the powers of any such commission or board in the same municipality, whether or not he is a member of the board or commission hearing such matter. No member of any zoning commission or board and no member of any zoning board of appeals shall participate in the hearing or decision of the board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense."
The record reveals that the ZEO was represented by counsel at the public hearing on July 11, 2005, and that he explained why the cease and desist orders were issued to the plaintiff. (ROR, Item 11, pp. 10-30.) He also explained some of the photographs and documents that were presented to the ZBA during the public hearing. (ROR, Item 11 pp. 10-30.) In addition, the ZEO answered questions of the ZBA members concerning the property and its uses. (ROR, Item 11 pp. 10-30.) "Section 8-11 aims its prohibition at zoning board members or alternates who act on behalf of, or, as a spokesperson for, third parties . . . It is that advocacy for others that the statute prohibits." Massimo v. Planning Commission, 41 Conn.Sup. 196, 199, 564 A.2d 1075 (1989). The record shows that the ZEO was not representing or advocating for any third party during the public hearing, rather, he was acting on his own behalf to explain why he issued a cease and desist order.
Moreover, even if the ZEO's participation at the public hearing was improper, such participation would not necessarily invalidate the ZBA's decision to uphold the cease and desist order. "[Section 8-11] neither makes [a violation of the statute] a crime nor renders the board's reception of [evidence from disqualified members of zoning authorities] a reason for sustaining [an] appeal." (Internal quotation marks omitted.) Zeigler v. Thomaston, 43 Conn.Sup. 373, 382, 654 A.2d 392 (1994), aff'd, 232 Conn. 270, 654 A.2d 352 (1995). Accordingly, even if the ZEO's participation at the public hearing on July 11, 2005 violated § 8-11, the plaintiff has failed to demonstrate how such participation was prejudicial to the plaintiff or how it improperly affected the ZBA's decision. Therefore, the appeal is not sustained on the ground that the ZEO participated in the July 11, 2005 public hearing.
VI CONCLUSION
For the reasons set forth above, the court sustains the plaintiff's appeal, in part, other than the storage of unregistered vehicles, on the grounds that the record does not contain substantial evidence demonstrating that the plaintiff abandoned or unlawfully expanded its preexisting nonconforming uses. The court dismisses the appeal, in part, as it relates to the storage of unregistered motor vehicles, on the grounds that the ZBA's decision to uphold the cease and desist order is supported by substantial evidence in the record.