Opinion
No. CV 05 4003843 S
February 2, 2007
MEMORANDUM OF DECISION
STATEMENT OF APPEAL
The plaintiff, Valley Housing Limited Partnership, appeals from two decisions of the defendant, the zoning board of appeals of the city of Derby (ZBA). In count one, the plaintiff appeals from the ZBA's denial of the plaintiff's three appeals from the Derby zoning enforcement officer's (ZEO) denials of the plaintiff's applications for certificates of zoning compliance pertaining to three buildings in Derby. In count two, the plaintiff appeals from the ZBA's denial of the plaintiff's applications for variances to allow renovation of those buildings.
II FACTUAL BACKGROUND
The plaintiff owns three multifamily residences in Derby: 175-177 Caroline Street; (plaintiff's exhibit 2); 225-227 Caroline Street; (plaintiff's exhibit 1); and 16 Fourth Street; (plaintiff's exhibit 3). The residence at 175-177 Caroline Street is a three-family residence. (Return of Record [ROR], Item 3.) The other two residences are six-family residences. (ROR, Items 1 and 2.) These three buildings were constructed more than one hundred years ago. (ROR, Items 26, 27 and 28.) The Derby zoning code was first adopted in 1969 and amended several times thereafter. (ROR, Item 25, p. 3.) The current Derby zoning regulations, which are codified in the Derby code at chapter 195, were adopted in 2000; (ROR, Item 25, p. 3); and designate the area where these subject properties are located as the Center Design Development District zone (CDD). (ROR, Items 1, 2 and 3.) The plaintiff sought to rehabilitate the buildings on these three properties and to continue to use them for "supportive housing." (ROR, Item 9, p. 6.) "Supportive housing" is a state program wherein the state government gives a grant to a property owner to improve residential property. (ROR, Item 9, p. 6.) In return, the property owner gives preference in renting these residences to those individuals who need services from community agencies. (ROR, Item 9, p. 6.) In compliance with § 195-87(F) of the Derby zoning regulations, prior to starting the rehabilitative work, the plaintiff sought certificates of zoning compliance for the three properties from the ZEO, David Kopjanski, who denied the plaintiff's requests. (ROR, Items 1, 2 and 3.)
Section 195-87(F) of the regulations provides: "A nonconforming building or structure that is not devoted to a nonconforming use may be reconstructed, structurally altered, restored or repaired in whole or in part, without the need of a variance, but must get a Zoning Certificate of Compliance from the Zoning Officer."
On February 28, 2005, the plaintiff filed three applications to the ZBA appealing from the ZEO's denial of the certificates of zoning compliance. (ROR, Items 1, 2 and 3.) The ZBA held a duly noticed public hearing on the applications on March 30, 2005; (ROR, Item 9); which was continued to April 21, 2005; (Supplement to ROR); and concluded on June 16, 2005. (ROR, Item 25.) On April 27, 2005, the plaintiff also filed applications for variances in compliance with the ZEO's decision. (ROR, Items 14, 15 and 16.) Those applications were subsequently withdrawn at the public hearing on May 19, 2005; (ROR, Item 19, p. 8); and resubmitted on May 20, 2005. (ROR, Items 20, 21 and 22.) On June 16, 2005, the ZBA resumed its public hearing on the appeals from the ZEO's denials of certificates of zoning compliance and also held a duly noticed public hearing on the applications for variances, after which the ZBA denied the plaintiff's appeals; (ROR, Item 25, pp. 2-6); and variance applications. (ROR, Item 25, p. 15.) The plaintiff appealed from the ZBA's decisions to the Superior Court. The trial was completed on November 7, 2006.
General Statutes § 8-2(a) provides in relevant part: "[Zoning] regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations."
III JURISDICTION
General Statutes § 8-8 governs appeals from decisions of zoning boards 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).
V A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; emphasis added; internal quotation masks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003). 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).
"Two broad yet distinct categories of aggrievement exist, classical and statutory." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665. The standard for statutory aggrievement in zoning appeals is set forth in General Statutes § 8-8(a)(1), which provides in relevant part: "In the case of a decision by a . . . zoning board of appeals, `aggrieved person' 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."
The plaintiff alleges that it is aggrieved by the ZBA's decisions because it is the owner of the subject properties. (Appeal, count one, ¶ 9.) The plaintiff introduced at trial three deeds, one for each of the subject properties, which show that the plaintiff is the owner of the properties that were the subject matter of the ZBA's decisions. From this undisputed evidence, the court finds that the plaintiff owns the subject properties and that the plaintiff, therefore, is aggrieved by the ZBA's decisions.
B Timeliness and Service of Process
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) provides in relevant part: "Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows . . . (2) For 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 . . ."
Notices of the ZBA's decisions were published in the New Haven Register, a newspaper of general circulation in the Derby area, on June 23, 2005. (ROR, Item 31.) The plaintiff commenced this appeal on July 8, 2005, exactly fifteen days from the date of publication, by service of process upon the ZBA of the city of Derby, by leaving two copies of the writ, summons, citation, appeal and exhibits with the town clerk of the city of Derby. (Marshal's Return.) Accordingly, the court finds that this appeal is timely and that service of process was proper.
IV SCOPE OF REVIEW "The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Citations omitted; internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "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." (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004). "Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . Furthermore, when [an] agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law." (Emphasis in original; internal quotation marks omitted.) Trumbull Falls, LLC v. Planning Zoning Commission, 97 Conn.App. 17, 22, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006). "Because the interpretation of the regulations presents a question of law, [the court's] review is plenary." (Internal quotation marks omitted.) Id., 21."[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). "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.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).
A review of the record reveals that the ZBA formally stated the reasons for its decisions. The transcript of the June 16, 2005 public hearing includes a decision drafted by the chairman of the ZBA, which was adopted as the ZBA's decision on the appeals of the denials of certificates of zoning compliance. (ROR, Item 25, pp. 2-6.) This decision includes several reasons, which can be summarized as follows: (1) the record contains no evidence that neighboring property owners were notified of the appeal; (2) the properties are nonconforming uses or activities because they were constructed prior to the adoption of zoning regulations in Derby; (3) the properties are not "nonconforming structures"; (4) the plaintiff's reliance on Zachs v. Zoning Board of Appeals, 218 Conn. 324, 589 A.2d 351 (1991), is misplaced because the board in that case did not consider the nonconforming status of the property and because the court in Zachs considered the issue of expansion of nonconformities, which is not at issue here; (5) the ZBA has the power, pursuant to § 195-80(C) of the Derby zoning regulations, to grant, as a specific type of variance, building permits "for the reconstruction, structural alteration, restoration or repair of a structure used for a nonconforming use, to an extent exceeding in aggregate 50 [percent] of the replacement cost of such structure"; (6) the power to grant variances under this provision is not illegal; (7) the determinations by the ZEO that the proposed renovations to the properties would exceed 50 percent of the replacement value is supported by plaintiff's representations and the tax assessment records; (8) variances are required for the proposed renovations because the properties are nonconforming; and (9) the zoning code is not a pro-blight ordinance because renovations that do not exceed 50 percent of the replacement cost of the buildings are permitted without a variance. With regard to the variance applications, the ZBA voted to deny the applications "on the basis of the fact that the stated hardship — would not be able to renovate the building, improve the structure and make code repairs — is truly not a hardship." (ROR, Item 25, p. 15.) Thus, the court will address the plaintiff's arguments and determine whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the ZBA was required to apply under the Derby zoning regulations.
V DISCUSSION
The plaintiff appeals from the ZBA's decisions to deny its appeals from the ZEO's denial of certificates of zoning compliance on the grounds that the ZBA acted arbitrarily, illegally and in abuse of its discretion in the following ways: (a) the "ZBA erroneously determined that the existing residential uses of the buildings were nonconforming uses and that the proposed renovations constituted enlargements or extensions of allegedly nonconforming uses"; (b) the ZBA "erroneously determined that the plaintiff needed variances to structurally alter or repair the buildings on said properties where the plaintiff did not propose any increases in the nonconforming uses of said properties, did not propose to increase the footprint or in any way enlarge the buildings and did not propose to change the use of the buildings"; (c) the ZBA "erroneously determined that renovations to buildings that did not increase the footprint, enlarge the use or expand a nonconformity were in any way related to the authority given to land use boards in accordance with the planning and zoning enabling statutes or related in any way to the jurisdiction of the ZBA as granted under General Statutes § 8-6"; and (d) the ZBA "erroneously determined that those provisions of § 195-80(C) of the Derby zoning regulations, granting it authority to grant or deny building permits upon application for a `variance,' is a valid zoning regulation under the applicable enabling statutes." (Complaint, count one, ¶ 10.) The plaintiff also alleges that in denying the plaintiff's applications for variances, the ZBA acted illegally, arbitrarily and in abuse of its discretion. (Complaint, count two, ¶ 9.)
Although the plaintiff alleges several grounds for its appeal, 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 1073, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996). Accordingly, the court considers only those issues adequately briefed by the plaintiff.
In its brief, the plaintiff first argues that the buildings on the subject properties are not nonconforming uses, as residential uses are permitted in the CDD zone under § 195-20(C)(1) of the regulations, but are nonconforming structures with respect to the "dimensional standards" of the zone, which include residential density requirements, as well as setbacks, parking and lot area. Consequently, it maintains, § 195-87(F) of the zoning regulations allows renovation of such nonconforming structures after obtaining a certificate of zoning compliance from the ZEO. Next, it contends that the city cannot require a property owner to apply for a variance to renovate a building when the renovations would not increase the footprint of the building, change the use or increase the number of residential units in the building. Relying on Zachs v. Zoning Board of Appeals, supra, 218 Conn. 324, the plaintiff maintains that the proposed renovations would not constitute an intensification or expansion of any nonconforming building or use. It contends that the interpretation of the regulations applied by the ZBA contravenes the purpose of General Statutes § 8-2(a) and that § 195-80(C)(3) of the zoning regulations has no legal basis in the zoning enabling statutes. Accordingly, the plaintiff maintains, the ZEO was required to issue certificates of zoning compliance.
Section 195-80(C)(3) provides in relevant part: "The Zoning Board of Appeals shall have the following powers: . . . (C) Specific types of variances. In conformity with its general power to grant variances as provided in this article, and pursuant to the guiding principles stated in this article, the Zoning Board of Appeals is hereby specifically empowered: . . . To grant a building permit for the reconstruction, structural alteration, restoration or repair of a structure used for a nonconforming use, to an extent exceeding in aggregate 50% of the replacement cost of such structure."
Section 195-20(H), pertaining to the Center Design Development District (CDD) Zone, provides: "Residential Density. Residential density may be approved up to 12 dwelling units per acre, provided that all requirements and standards for the proposed residential use and for other proposed uses are met. In cases where existing buildings are being renovated for reuse as residential dwellings, densities higher than twelve (12) may be approved by the Commission. In these instances, the allowable density shall not exceed the site's ability to accommodate its own on-site parking requirements or jeopardize the intent or other requirements of the zone. The parking requirements shall be 1.5 spaces per dwelling unit unless fewer parking spaces are allowed for the proposed use under Article VII, Section 195-54 — Parking Spaces, Number and Location."
"The word `use' and the word `used' refer to any purpose for which a lot or land or part thereof is arranged, intended or designed to be used, occupied, maintained, made available or offered for use; and to any purpose for which a building or structure or part thereof is arranged, intended or designed to be used, occupied maintained, made available or offered for use, or erected, reconstructed, altered, enlarged, moved or rebuilt, with the intention or design of using the same." Derby zoning regulations § 195-7(A).
The ZBA argues that its decision to uphold the ZEO's denial of the applications for certificates of zoning compliance was well within its discretion and was not arbitrary, unreasonable or illegal. It contends that the ZEO explained his interpretation of § 195-20(H) of the zoning regulations at the public hearing on March 30, 2005. He explained that because the three buildings each exceed the density limitation of § 195-20(H), which is twelve residential units per acre in the CDD zone, the buildings are nonconforming uses. The ZBA further contends that the ZEO explained at the hearing that the cost of the proposed renovations would exceed the limitation, set forth in § 195-80(C)(3), which is 50 percent of the replacement cost of the buildings, based upon a comparison of the assessed values listed in the tax assessor's records and the representations of the applicant's architect that the renovations would cost approximately $100,000 per unit. Consequently, it maintains, a variance would be required before a building permit could be issued.
In an earlier version of the Derby zoning regulations, § 195-20(H) had provided: "Residential density may be approved up to twelve dwelling units per acre, provided that all requirements and standards for the proposed residential use and for other proposed uses are met. The parking requirements shall be 1.5 spaces per dwelling unit." According to both parties, this section has been amended, although it is unclear when it was amended. The current version of § 195-20(H), which is quoted by both parties, has also been added to the return of record, although no item number has been assigned. As both parties refer to the current version of the regulation in their pleadings, the court refers to this version as the version in effect at all relevant times.
In support of this conclusion, the ZBA notes that during the public hearing, the ZEO presented testimony of a former ZEO and current planning consultant, David Dodes, who explained the purpose and background of § 195-20(H) of the regulations. They explained that the density language of that section was drafted and passed in an effort to regulate the expansion of nonconforming uses. Accordingly, the ZBA maintains, the ZEO explained that because the properties are nonconforming, the regulations require the applicant to apply for a variance for reconstruction work in excess of 50 percent of the buildings' replacement cost. After conducting a hearing and reviewing the ZEO's report, the ZBA concluded that the ZEO was correct in finding that the subject properties were nonconforming uses rather than nonconforming structures. Explaining its decision on the record, the ZBA stated: "The conflict between the subject properties and the city's zoning code § 195-20(H) is not even closely related to `size, dimension, or location' of the buildings. The conflict is inherent in the way the buildings are being used and utilized; residential density and provisions for off-street parking. The subject properties are not `nonconforming structures.'" (ROR, Item 25, p. 3.) The ZBA argues that it properly upheld the ZEO's interpretation of the regulations and that the court should not substitute its judgment for that of the ZBA.
"[U]pon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . . The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision." (Citation omitted; internal quotation marks omitted.) Doyen v. Zoning Board of Appeals, 67 Conn.App. 597, 603, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002). "Although the position of the municipal land use agency is entitled to some deference . . . the interpretation of provisions in the ordinance is nevertheless a question of law for the court . . . The court is not bound by the legal interpretation of the ordinance by the [board]." (Internal quotation marks omitted.) Id.
"[L]and use regulation embodies a clash of conflicting forces: the common law right of a property owner to use his land as he pleases, as long as that use does not create a nuisance, and the exercise of the police power to regulate the use in the interest of public health, safety, morals and the general welfare of the community." (Internal quotation marks omitted.) Reid v. Zoning Board of Appeals, 235 Conn. 850, 855, 670 A.2d 1271 (1996). "[A] zoning regulation is legislative in nature, and its interpretation involves the principles of statutory interpretation . . . [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phase used in an act and that no part of a statute is superfluous." (Citation omitted; internal quotation marks omitted.) Jalowiec Realty Associates, L.P. v. Planning Zoning Commission, 278 Conn. 408, 414, 898 A.2d 157 (2006). "Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended . . . The process of statutory interpretation involves the determination of the meaning of the statutory language [or the relevant zoning regulation] as applied to the facts of the case, including the question of whether the language does so apply." (Internal quotation marks omitted.) Trumbull Falls, LLC v. Planning Zoning Commission, supra, 97 Conn.App. 21-22. "Thus, in construing regulations, [the court's] function is to determine the expressed legislative intent." (Internal quotation marks omitted.) Id., 23. "The words [employed] in zoning ordinances are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms." (Internal quotation marks omitted.) Raymond v. Zoning Board of Appeals, 76 Conn.App. 222, 234, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003).
A
Because the ZBA's determination that the plaintiff's proposed renovations required a variance turns on its interpretation of the terms "nonconforming use" and "nonconforming structure" in the regulations, the court must first determine whether the ZBA correctly interpreted the zoning regulations in considering whether the nonconformity of the plaintiff's properties relates to the use of the properties, rather than the structures thereon. Section 195-87(F) of the Derby zoning regulations provides: "A nonconforming building or structure that is not devoted to a nonconforming use may be reconstructed, structurally altered, restored or repaired in whole or in part, without the need of a variance, but must get a zoning certificate of compliance from the Zoning Officer." A nonconforming structure or building is defined as a "structure or building the size, dimensions or location of which was lawful prior to the adoption, revision or amendment to a zoning ordinance but which fails, by reason of such adoption, revision or amendment, to conform to the present requirements of the zoning district." Derby Zoning Regs., § 195-7(A). Nonconforming use is defined as a "use or activity which was lawful prior to the adoption, revision or amendment of a zoning ordinance but which fails, by reason of such adoption, revision or amendment, to conform to the present requirements for such zoning district." Derby Zoning Regs., § 195-7(A). Accordingly, the court must determine whether the residential density requirements relate to the size, dimensions or location of the buildings or the use of those buildings.
The ZEO's mathematical calculation that the minimum lot size required is 27,780 square feet; (ROR, Item 10); is off by 6000 square feet.
Section 195-20(H) of the Derby zoning regulations provides: "Residential density may be approved up to 12 dwelling units per acre, provided that all requirements and standards for the proposed residential use and for other proposed uses are met. In cases where existing buildings are being renovated for reuse as residential dwellings, densities higher than twelve (12) may be approved by the Commission. In these instances, the allowable density shall not exceed the site's ability to accommodate its own on-site parking requirements or jeopardize the intent or other requirements of the zone. The parking requirements shall be 1.5 spaces per dwelling unit unless fewer parking spaces are allowed for the proposed use under Article VII, Section 195-54 — Parking Spaces, Number and Location." Density is defined as "[t]he number of families, individuals, dwelling units or housing structures per unit of land." Derby Zoning Regs., § 195-7(A). The plain meaning of these definitions demonstrates that "residential density" of the subject properties, i.e., the number of "dwelling units or housing structures per unit of land," is a structural characteristic of these properties which does not conform to the regulations. Accordingly, under the Derby zoning regulations, the record demonstrates that the subject properties are nonconforming structures, rather than nonconforming uses, as residential use is permitted in the CDD zone. See Derby Zoning Regs., § 195-20(C)(1) ("uses which will be considered in center design developments shall include but not be limited to . . . residential uses").
Similar to subsection (C), subsection (A) of § 195-80 grants the ZBA a power "to hear and decide appeals." Nevertheless, subsection (A) cannot be interpreted as requiring the aggrieved persons to file appeals.
In the present case, the ZBA's interpretation of the Derby zoning ordinance is flawed. The ZBA's determination in its decision memorandum, that § 195-20(H) of Derby zoning regulations is "not even closely related to `size, dimension, or location' of the buildings"; (ROR, Item 25, p. 3); overlooks the dimensional aspects of the residential density requirements. While § 195-20(H) does not explicitly set forth any minimum size or specific dimensional requirements to which buildings must adhere, its provisions nevertheless regulate the number of dwelling units that are permitted on a building lot. Pursuant to § 195-20(H), residential density must be no greater than twelve units per acre. An acre is equal to 43,560 square feet. Merriam-Webster's Collegiate Dictionary (10th Ed. 1993.) Therefore, the minimum lot size required by § 195-20(H) of the zoning regulations is 3,630 square feet (43,560 divided by twelve) per residential unit. The lot sizes for the buildings located at 16 Fourth Street and 225-227 Caroline Street, the two six-family dwellings, are 2,614 square feet and 11,326 square feet, respectively. (ROR, Item 10.) In order for these buildings to comply with the residential density requirement of § 195-20(H) of the regulations, they would have to be situated on lots of at least 21,780 square feet (3630 multiplied by six). The lot size for the building located at 175-177 Caroline Street, a three-family dwelling, is 5,228 square feet. (ROR, Item 10). In order for this building to comply with the residential density requirement, it would have to be situated on a lot of 10,890 square feet (3630 multiplied by three). With their present dimensions, the building at 225-227 Caroline Street could support three residential units, the building at 175-177 Caroline Street could support one residential unit, and the building at 16 Fourth Street could support zero residential units under the current zoning regulations. Thus, these three buildings are nonconforming structures because they have a greater number of residential units than the regulations permit for lots of their respective sizes.
See footnote 4 of this opinion.
As stated above, the Derby zoning regulations define, "nonconforming structure or building" as a "structure or building the size, dimensions or location of which was lawful prior to the adoption, revision or amendment to a zoning ordinance, but which fails by reason of such adoption, revision or amendment, to conform to the present requirements of the zoning district." Derby Zoning Regs., § 195-7(A). "Structure" is defined as a " combination of materials to form a construction for use, occupancy, or ornamentation whether installed on, above, or below the surface of land or water." (Emphasis added.) Derby Zoning Regs., § 195-7(A). "Nonconforming use" is defined as a "use or activity which was lawful prior to the adoption, revision or amendment of a zoning ordinance, but which fails, by reason of such adoption, revision or amendment, to conform to the present requirements of the zoning district." Derby Zoning Regs., § 195-7(A). "Use" is further defined in the regulations as "[t]he purpose or activity for which land or buildings are designed, arranged, or intended, or for which land or buildings are occupied or maintained." (Emphasis added.) Derby Zoning Regs., § 195-7(A). Consequently, the plaintiff's uses of the properties as residences, which are permitted uses in the CDD zone, are not nonconforming. The CDD regulations render the structures nonconforming, as the buildings contain a greater number of residential units than the regulations allow for lots of their sizes.
At the time the plaintiff applied for the certificates of zoning compliance, the buildings at issue were used as residences. This use was permitted under § 195-20(C)(1) of the zoning regulations for buildings located in the CDD. They will remain residences after the proposed renovations. Contrary to the ZBA's conclusion, the use of the buildings, therefore, has been and will continue to conform to the regulations. Accordingly, the ZBA erred when it interpreted the regulations to conclude that the properties are not nonconforming structures, but are nonconforming uses. The properties at issue are nonconforming structures and their use as residences was and is permissible under the applicable zoning regulations. Accordingly, the appeal of the ZBA's decision to deny the plaintiff's appeals from the ZEO's denials of certificates of zoning compliance, set forth in count one of the complaint, is sustained.
B
The plaintiff also argues that regardless of whether the ZBA correctly determined that the subject properties were nonconforming uses or structures under the regulations, the city of Derby has not been granted any authority under the General Statutes to require a property owner to apply for a variance to renovate a building when the renovations would not increase the footprint of the building, change the use or increase the number of residential units in the building. It contends that the interpretation of the regulations applied by the ZBA contravenes the purpose of General Statutes § 8-2(a) and that § 195-80(C)(3) has no legal basis in the zoning enabling statutes.
It is well settled that an owner of property with a nonconforming structure or building has the right to continue to use that property for a use that is permitted in that zone even if the building is to be converted from one permitted use to another. In Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 408 A.2d 243 (1979), the plaintiffs purchased a lot in Oxford upon which was situated a church, a permitted use. Id., 480. As a result of the town's enactment of setback, area and frontage requirements, which the building did not meet both the lot and the building were rendered nonconforming. Id. The plaintiffs applied for a building permit to convert the building to a single-family residence, another use permitted under zoning regulations. Id. "The building official of the town denied the application on the grounds that the property did not comply with the present area, setback and frontage requirements . . . of the zoning regulations." Id. On appeal to the Oxford zoning board of appeals, the board "denied the plaintiffs' appeal on the ground that there was no evidence of any hardship to the plaintiffs since they knew the physical characteristics of the lot when they bought it." Id., 481. The trial court "affirmed the board's decision adding that the proposed use was in violation of article 2, § 5, of the Oxford zoning regulations, which provides that one nonconforming use may not be substituted for another." Id.
Finding that the plaintiffs sought "nothing more than to alter the interior of an existing nonconforming building for a permitted use"; id., 484; the Supreme Court reversed the trial court's decision. Id., 485. The court explained: "Because a nonconforming lot and building have a vested right in continued existence, a purchaser who seeks to use such lot and building for a permitted use cannot be said to be seeking relief from hardship brought upon himself by virtue of his purchase. His right to use the lot and building for a permitted use is protected by law." Id., 484.
In the present case, the plaintiff seeks to renovate three existing nonconforming buildings for a permitted use. For the reasons set forth in Petruzzi, discussed above, the plaintiff's right to continue to use the buildings for permitted uses, despite their status as nonconforming structures, is protected by law. General Statutes § 8-2(a), which 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," expressly prohibits a municipality from extinguishing nonconforming uses or structures. The enabling statutes contain no provision granting municipalities the power to require a property owner to obtain a variance in order to renovate a nonconforming structure. Such a requirement would contravene the prohibitions contained in § 8-2 and would exceed the powers conferred on municipal land use agencies by the legislature. "Under our law, a municipality, as a creation of the state, has no inherent powers of its own . . . Thus, while the state may have inherent power to regulate in the interest of public health, safety, morality and welfare . . . [i]n connection with [municipal] zoning ordinances, it is a cardinal principle of construction that provisions and amendments must be enacted pursuant to the zoning enabling statute." (Citations omitted; internal quotation marks omitted.) Capalbo v. Planning Zoning Board of Appeals, 208 Conn. 480, 490, 547 A.2d 528 (1988). Accordingly, the city of Derby does not have the power to require an owner of nonconforming buildings or structures to apply for variances to allow renovation of those buildings or structures.
Furthermore, even if the legislature had granted the city such power, the Derby zoning regulations do not expressly require the plaintiff to apply for variances in order to renovate these properties. Section 195-86 of Derby zoning regulations, pertaining to continuance of nonconforming uses, provides: "Any building or use lawfully existing under the provisions of the zoning regulations in effect at the time of the creation of said building or the establishment of said use, or prior to the establishment of any zoning regulation in the city of Derby, although not conforming with the provisions of the regulation for the district in which it is situated, may be continued subject to compliance with the conditions set forth below [in § 195-87]. Similarly, whenever, a district shall be changed hereafter, the provisions of this regulation with regard to any building or uses lawfully existing at the time of the passage of this regulation shall apply subject to compliance with the conditions set forth below [in § 195-87] to any building or use lawfully existing in such changed district at the time of the passage of such amendment."
None of the conditions set forth in § 195-87 of the regulations require the owner of a building to obtain a variance in order to continue to use a nonconforming building or structure for a permitted use, even if the owner seeks to renovate that building. Moreover, as stated above, § 195-87(F) provides: "A nonconforming building or structure that is not devoted to a nonconforming use may be reconstructed, structurally altered, restored or repaired in whole or in part, without the need of a variance, but must get a zoning certificate of compliance from the Zoning Officer." Other than the condition set forth in § 195-87(F), the only other condition relevant to this case is the one set forth in § 195-87(A), which provides in relevant part: "No building which is nonconforming with respect to any provisions of this regulation shall be altered or enlarged in such manner as to increase such nonconformance." There is no dispute that the plaintiff does not seek to enlarge, expand or increase any of the nonconformities of its properties.
The ZBA further argues that the plaintiff was required to apply for variances under § 195-80(C)(3) of Derby zoning regulations. Section 195-80, entitled Powers and Duties, provides in relevant part: "The [ZBA] shall have the following powers . . . C. Specific Types of Variances. In conformity with its general power to grant variances as provided in this article, and pursuant to the guiding principles stated in this article, the [ZBA] is hereby specifically empowered . . . (3) to grant a building permit for the reconstruction, structural alteration, restoration or repair of a structure used for a nonconforming use, to an extent exceeding in aggregate 50% of the replacement cost of such structure." Although this section gives the ZBA the power to grant a building permit, which the regulations define as a type of variance, the regulations contain no express requirement for the owner to apply for or to obtain such a permit prior to renovating a nonconforming structure. Because the regulations should not be extended beyond their express terms and because nonconforming uses are protected by the express language of General Statutes § 8-2 and § 195-86 of the Derby zoning regulations, § 195-80(C)(3) of the regulations cannot be interpreted to require an owner of a property to apply for a variance in order to continue a nonconforming use. Therefore, the ZBA's interpretation of the zoning regulations to require the plaintiff to apply for a variance to renovate nonconforming buildings, notwithstanding its finding that the renovations would exceed 50 percent of the replacement cost of those buildings, was incorrect. Accordingly, the ZBA erred in upholding the ZEO's decision to deny the plaintiff's applications for certificates of zoning compliance.
Count two consists of an appeal from the ZBA's decisions denying the plaintiff's variance applications with respect to the three subject properties. As the court has determined that the ZBA's decision to uphold the ZEO's determination that variances would be required was incorrect, resolution of the issue of whether the ZBA should have granted those variances would provide neither party with any practical relief. An issue becomes moot when no practical relief can result from the determination of that issue. See Lichtman v. Beni, 280 Conn. 25, 30, 905 A.2d 647 (2006) ("Mootness implicates [the] court's subject matter jurisdiction and is thus a threshold matter for [the court] to resolve . . . It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow").
Although these applications do not specifically state that variances were sought, it does state that no previous variance applications have been filed and sets forth a hardship claim. Further, although the notice of public hearing on these applications characterized them as appeals from the building official's determination denying building permits; (ROR, Item 23); the applications do not list any such decision in the area of the application designated for that purpose. (ROR, Items 20, 21 and 22.) Moreover, the chairman of the ZBA referred to the applications as "the variance matter" at the public hearing on June 16, 2005. (ROR, Item 25, p. 2.) Accordingly, the court refers to these applications as applications for variances.
VI CONCLUSION
For the reasons set forth above, the court sustains the plaintiff's appeal with respect to count one. The decisions of the ZBA, upholding the ZEO's denials of certificates of zoning compliance, are reversed and this matter is remanded to ZBA with direction to reverse the decisions of the ZEO. As this court's decision as to count one renders the claims in count two moot, the issue whether the ZBA erred in denying the plaintiff's applications for variances need not be addressed and count two is dismissed for lack of justiciability.
Count two consists of an appeal from the ZBA's decisions denying the plaintiff's variance applications with respect to the three subject properties. As the court has determined that the ZBA's decision to uphold the ZEO's determination that variances would be required was incorrect, resolution of the issue of whether the ZBA should have granted those variances would provide neither party with any practical relief. An issue becomes moot when no practical relief can result from the determination of that issue. See Lichtman v. Beni, 280 Conn. 25, 30, 905 A.2d 647 (2006) ("Mootness implicates [the] court's subject matter jurisdiction and is thus a threshold matter for [the court] to resolve . . . It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow").
1In a written memorandum dated March 29, 2005, the ZEO explained that he denied the plaintiff's requests for these certificates based on his interpretation of § 195-20(H) of the Derby zoning regulations. (ROR, Item 10.) In that memorandum, the ZEO noted that the lot size for the residence located at 16 Fourth Street (a six-family dwelling) was 2,614 square feet, the lot for the residence located at 175-177 Caroline Street (a three-family dwelling) was 5,228 square feet, and the lot for the residence located at 225-227 Caroline Street (a six-family dwelling) was 11,326 square feet. (ROR, Item 10, ¶ 1.) He further stated: "The three properties captioned above do not meet the density requirements of Section 195-20H since a 6 unit building requires 27,780 ft2 of lot area, while a 3 unit building requires 10,890fn13 of lot area. Also, the off-street parking requirement of 9 spaces and 5 spaces respectively, appears unsatisfied by the Site Plan submitted with the applications." (ROR, Item 10, ¶ 3.) Consequently, the ZEO concluded that these three properties must be classified as nonconforming uses. (ROR, Item 10, ¶ 4.) Based on that determination, the ZEO further concluded that a variance was required under § 195-80(C)(3) of the Derby zoning regulations. (ROR, Item 10, ¶ 10.)