Opinion
No. DBD-CV09-4010727-S
November 12, 2010
MEMORANDUM OF DECISION
The plaintiffs, Thomas Gibbons and Janet Gibbons, appeal pursuant to General Statutes § 8-8 from the decision of the defendant, the zoning board of appeals of the town of New Fairfield (board), which affirmed the denial of a zoning permit to allow the expansion of the second floor and alteration of the roof line on an existing single-family home owned by them and located at 5 Glenway, New Fairfield, Connecticut, and which affirmed the issuance of a verification of noncompliance by its zoning enforcement officer. As owners and unsuccessful applicants, the plaintiffs are aggrieved by the board's decision and have standing to bring this appeal. Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703-04, 780 A.2d 1 (2001). On August 22, 2009, Robert Rondano and Donna Rondano moved to intervene as parties defendant, alleging that they own real property located at 8 Glenway, New Fairfield, Connecticut, which property is located directly across the street from, and within one hundred feet of, the plaintiffs' property. The court, Ozalis, J., granted that motion on September 14, 2009.
The following facts are found based on the admitted allegations of the plaintiffs' complaint dated June 30, 2009, and on an examination of the record in the instant matter. The plaintiffs' property is located at 5 Glenway in New Fairfield. The property is located in an R-44 residential zone, which provides, pursuant to the New Fairfield zoning regulations, for the following: minimum lot area of one acre (regulations § 3.2.3a), minimum lot frontage on a public street of 125 feet (regulations § 3.2.3b), minimum front yard setback of forty feet (regulations § 3.2.4a), minimum side yard setback of twenty feet (regulations § 3.2.4b), minimum rear yard setback of fifty feet (regulations § 3.2.4c) and minimum lot dimension specifying that no part of any dwelling or principal building shall be erected at a point where the lot width is less than 125 feet (regulations § 3.2.7). (ROR 790-91.) The premises are currently improved with a single-family residence and are nonconforming as to the size and shape of the lot as well as to the location of the building on the lot in multiple respects. As to the lot, it contains only 9980 square feet and is less than one-quarter of an acre. It has 117.94 feet of frontage along Glenway and is only 91.80 feet at its widest point. (ROR 304-05.) The existing building is located such that it has 23.70 feet of front yard setback, 19.30 feet of side yard setback and 19.70 feet of rear yard setback. (ROR 304-06.) It fails to meet all of the yard setback requirements. The lot itself is not a subdivision lot and the original building predates zoning. (ROR 480.) The lot and building are preexisting nonconformities. The building contains two stories above grade level, but the second floor is not completely coextensive with the first floor. The existing second floor appears to cover slightly more than the rear half of the first floor. (ROR 304-06.) There is reference in the record to the roof line of the second floor having been raised pursuant to the terms of a variance granted approximately ten years ago. (ROR 403 and 584.) A copy of the variance granted by the board on March 25, 1999, is included in the record. It describes the variance granted as "rear yard setback to 18 [feet] 7 [inches] to raise the roof of their existing dwelling from the center ridge 6 [feet] 4 [inches] to the rear roof edge 8 [feet]." (ROR 410.) None of the parties deemed this significant enough to address in their written briefs or at argument.
On January 27, 2009, Gibbons filed applications for building and zoning permits to allow the expansion of the second floor with an addition measuring eleven feet, eight and one-half inches by twenty-seven feet, eleven and one-half inches and the alteration of the roof line. The application describes the work as "roof replacement and interior alterations" consisting of "the addition of a bedroom and bathroom on the second floor." The application asserts that "the enlargement of the building (second floor) will result in a more conforming building and structure. The existing front yard setback of 23.70 [feet] will be increased to 25.49 [feet]. The existing side yard setback will be increased to 21.13 [feet] which brings that dimension into compliance with the regulations. The existing rear yard setback of 19.70 [feet] will be increased to 20.46 [feet]." The work "consists in part (roof replacement) of repair work to keep the structure or building in sound condition." (ROR 304-06.) Plans submitted with the application depict that the addition to the second floor will make it coextensive in area and dimensions with the first floor, that the peak of the roofline will be rotated ninety degrees from a side to side orientation to a front to back orientation and a large dormer will be added to the roof at the left rear side. The new total height of the building as measured pursuant to the regulations will be increased to thirty-four feet, eight and one-half inches. (ROR 368-71.) The exact amount of the height increase over the existing structure is unclear from the plaintiffs' application. Rondano asserts that the increase is eight and one-half feet not counting the chimney. (ROR 583.) The plaintiff is able to bring the side yard setback into conformance with the regulations and reduce the front and rear yard setbacks through the elimination of a deck and certain roof overhangs.
On March 9, 2009, the zoning enforcement officer issued the first of two verifications of noncompliance. (ROR 301.) On March 17, 2009, a revised verification of noncompliance was issued, which simply added one additional ground or section of the regulations with which the plaintiffs' application was not in compliance. The notice stated that the proposal failed to meet the following zoning requirements: "Sections: 2.4.3a b — Nonconforming Use of Building or Structure; Nonconforming Buildings or Structures. 2.3.1d1 — Nonconforming Lots — Developed Lots. 2.3.1e — Nonconforming Lots — Developed Lots. 3.2.3a b — Minimum Lot Area Frontage — One Acre 125 [feet] required. 3.2.4a — Front Yard Setback — 40 [feet] required. 3.2.4c — Rear Yard Setback — 50 [feet] required. 3.2.7 — Minimum Lot Dimensions — 125 [feet] required." (ROR 302.) The plaintiffs filed their appeal of the zoning enforcement officer's actions with the board on March 20, 2009. (ROR 307.)
The first of two public hearings was held on April 16, 2009, and consisted largely of legal argument between counsel for the plaintiff applicants and counsel for Rondano and discussion between counsel and the board members. The focus of the argument was whether vertical expansion of a nonconformity, i.e., the expansion of the second floor with an addition measuring eleven feet, eight and one-half inches by twenty-seven feet, eleven and one-half inches and the alteration of the roof line, was permissible under the regulations. After a brief recess, the plaintiff applicants indicated to the board that they did not object to a continuance of the public hearing for two reasons: First, an order to show cause hearing on a writ of mandamus to compel the zoning enforcement officer to issue the zoning permit had been scheduled before the Superior Court in two weeks, and a decision favorable to the plaintiffs would obviate the need to go forward with the application presently before the board. Second, a review of the legal issues by counsel for the board might be beneficial to a resolution. (ROR 524-25.) The second public hearing was held on June 17, 2009. Counsel reported back that the action for writ of mandamus had been dismissed. The written opinion of counsel for the board was made part of the record, and the remainder of the public hearing consisted of a reargument of the issues raised at the first hearing but at greater length. The plaintiffs and the interveners also took the opportunity to address the board. (ROR 354-57.)
At the close of the public hearing, the board went into executive session. There was little discussion among the board members. The board chairman summarized his view of the appropriateness of the zoning enforcement officer's actions:
The zoning enforcement officer has placed in the record testimony, which at least as I recall, it is unrebutted, that she denied the building permit not because she had a view on the plans one way or the other, but to do otherwise would um, to grant a building permit would be inconsistent with what all counsel to the proceeding have agreed was the town's practice of your choice, 25 or 30 years, which was any construction outside the building envelope, whether or not a conforming or non-conforming lot would go before the ZBA, feeling that the ZBA was the proper town authority to pass on the plans. Since they did involve the construction outside the building envelope, she denied the building permit.
(ROR 599.) The chairman then framed the vote for the board.
My understanding of what we were voting on is not merits of the building plan, or a variance of the building plan, but whether or not a variance was required, and if that is the correct process, then the ZEO should not have issued the building permit . . . So I'm going to make a motion in the form of a motion to overturn the Zoning Enforcement Officer's decision. So, a vote in favor of the motion will reverse the Zoning Enforcement Officer's decision and will have said that a variance wasn't necessary. A vote against the motion will sustain the Zoning Enforcement Officer and will state that a variance was necessary . . .
(ROR 601-02.) The motion was defeated by a unanimous vote thereby affirming the zoning enforcement officer's denial of the building permit and issuance of the verification of noncompliance. The board stated no formal reason for its denial. (ROR 603.)
The plaintiffs brought this appeal claiming that the board acted illegally, arbitrarily and in abuse of its discretion in that the second story addition and the alteration of the roofline was not an impermissible expansion of a nonconforming structure, that the proposed vertical expansion does not violate the regulations, that the board's denial of the variance is not supported by the record, that the board's decision is the product of bias or prejudice and that the board's interpretation of its regulations contravenes the interpretation given by the planning and zoning commission of the town of New Fairfield. Some of these grounds have not been pursued and briefed, others have been consolidated. Any issues raised in the plaintiffs' complaint but not briefed and argued will be deemed abandoned. Martel v. Metropolitan District Commission, 275 Conn 38, 51-52, 881 A.2d 194 (2005); Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997). Plaintiffs, in their brief and at argument, argue the following bases of appeal: (1) the regulations do not prohibit the expansion of a nonconforming structure so long as the nonconformity itself is not expanded and the expansion is otherwise in conformity with the regulations, and (2) the regulations do not prohibit the vertical expansion of the structure within its legally nonconforming setbacks.
DISCUSSION
An appeal from a decision by a zoning board of appeals is statutory in nature and the standard of review by the Superior Court is well established. "The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal." R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "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." (Internal quotation marks omitted.) Id. "Moreover, the plaintiffs bear the burden of establishing that the board acted improperly." Wood v. Zoning Board of Appeals, 258 Conn. 691, 698, 784 A.2d 354 (2001).
"Ordinarily, the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . as the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." (Internal quotation marks omitted.) Osborne v. Zoning Board of Appeals, 41 Conn.App. 351, 354, 675 A.2d 917 (1996). "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] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] . . . 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 . . . If there is conflicting evidence in support of the zoning [board's] stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the [board] . . . The [board's] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Citations omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004); see also Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547-48, 684 A.2d 735 (1996). "[A zoning] board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal." (Internal quotation marked omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).
I
There are two sections of the regulations which purport to address nonconformities. By title they are § 2.3 NONCONFORMING LOTS and § 2.4 NONCONFORMING USES, BUILDINGS AND STRUCTURES. With regard to § 2.3 nonconforming lots, the regulations provide, in pertinent part, the following:
2.3.1 Developed Lots. A dwelling and any permitted accessory structure located on a noncomforming lot which is nonconforming as to lot size, coverage, shape, set back or yard requirements may be extended, expanded, altered, moved or reconstructed provided:
a) if the nonconforming lot is not a subdivision lot, no yard, lot coverage, shape or setback is made more nonconforming; or
b) if the nonconforming lot is shown on a validly existing approved and filed subdivision plan, the improvements meet the zoning requirements at the time of the subdivision approval;
c) if the nonconforming lot is in the R-88 district, the yard, lot coverage, shape, setback and other requirements of the R-44 district are met; or
d) if the nonconforming lot is in the R-44 zone:
1. The lot shall be at least one half (1/2) acre in area with frontage of no less than one-hundred (100) feet on a public street or highway or be served by an accessway; and
2. the building and the front yard setback shall be at least twenty-five (25) feet and side and rear yard setbacks at least twenty (20) feet; and
3. The configuration of the building lot shall be such that a rectangle of one-hundred (100) feet by seventy-five (75) feet can be contained within its boundaries. No part of any dwelling or principal building shall be erected at a point where the width of the lot is less than seventy-five (75) feet . . . and
4. No more than twenty-five (25) percent of the land area shall be covered by buildings and structures; and
5. See Section 3.1.6.
e) except as permitted by this section, the improvements and lot shall meet all other requirements of the applicable zoning district.
(ROR 725-26.)
With regard to § 2.4 nonconforming uses, buildings and structures, the regulations provide, in pertinent part, the following:
2.4.1 General. It is the intent of these Regulations that nonconformities are not to be expanded, that they should be changed to conformity as quickly as the fair interests of the parties permit and that the existence of any existing nonconformity shall not in itself be considered grounds for the issuance of a variance for any other property . . .
2.4.3 Nonconforming Use of Building or Structure; Nonconforming Buildings or Structures. Any nonconforming building or structure or nonconforming use of building or structure which existed as of September 6, 1937, or was created in compliance with the 1937 zoning regulations, or in compliance with any amendment thereto, may be continued provided that:
(a) Such nonconforming use, building or structure shall not be enlarged or extended unless the use, building or structure is changed to a conforming use, building or structure, or more conforming building or structure;
(b) Such nonconforming use, building, or structure shall not be structurally altered, reconstructed, expanded or enlarged unless such alterations, reconstruction, enlargements or expansions conform to all applicable requirements of these regulations . . . providing such alterations, reconstruction, expansion or enlargement shall be permitted . . . to the extent they consist of maintenance and repair work required to keep the structure or building in sound condition.
(ROR 727-28.)
The plaintiffs argue that § 2.4.3 of the regulations, both subsections (a) and (b), allow expansions of nonconforming buildings, in the case of subsection (a) so long as the building is made more conforming, and in the case of subsection (b) provided such expansion conforms to all applicable requirements of the regulations. It is the plaintiffs' contention that both subsections (a) and (b) of the § 2.4.3 of the regulations expressly anticipate the permissive expansion of a nonconforming building. Specifically, in the matter now before this court, a building which is legally nonconforming as to setback may be vertically expanded within the height restrictions of the regulations. Further, the plaintiffs' proposed expansion and alteration of their home would actually reduce the overall nonconformity by bringing the side yard setback into conformance and reducing the intrusion into the front yard setback.
The defendants, collectively between them, argue that the plaintiffs are not in compliance with § 2.3.1(d)1, minimum acreage and minimum frontage, and § 2.3.1(d)3, minimum one hundred by seventy-five-foot rectangle, of the regulations, that neither § 2.3.1 nor § 2.4.3 of the regulations contemplate vertical expansions of nonconformities, that the board has historically for at least the past twenty-five years always interpreted vertical expansion of nonconforming structures to require a variance, and that the plaintiffs' proposal is not a necessary repair permitted by regulation § 2.4.3(b).
The parties have each invested considerable time and energy into the issue of whether the regulations permit the vertical expansion of a nonconformity or whether such expansion requires the applicant to pursue a variance. Among the cases cited by the parties, two are relied upon extensively. They are Doyen v. Zoning Board of Appeals, 67 Conn.App. 597, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002), relied upon by the plaintiffs, and Moon v. Zoning Board of Appeals, 291 Conn. 16, 966 A.2d 722 (2009), relied upon by the defendants. This court has had the occasion to review New Fairfield's regulations governing expansion of nonconformities and to discuss the applicability of both of these cases in the context of variances. See Ross v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. CV 08 4009837 (December 7, 2009, Maronich, J.).
In Doyen, the zoning board of appeals upheld the zoning enforcement officer's granting of a permit to the property owners to allow them to build an addition above part of an existing, legally nonconforming deck on their property. The deck, which had been built prior to the adoption of zoning regulations, extended into the twenty-five-foot setback subsequently required by the regulations. The trial court sustained the plaintiff neighbor's appeal and the Appellate Court reversed the trial court, remanding with instructions to render judgment affirming the decision of the board. In rendering its decision, the Appellate Court conducted the following examination of the town of Essex zoning regulations:
The preamble to the Essex Zoning regulations provides in relevant part that "[i]t is a fundamental principle of zoning law that nonconformities are not to be expanded and that they should be abolished or reduced to conformity as quickly as the fair interests of the parties will permit. This principle is declared to be the intent of these regulations." Essex Zoning Regs., § 10B. While § 10B sets forth the general policy that nonconformities are not favored in zoning law, this section must be read in the light of § 50D, which specifically provides a window of tolerance for the expansion of nonconforming improvements like the Sapias' deck. Section 50D provides in relevant part that "no improvement having a nonconforming characteristic, shall be enlarged, extended, or expanded except in conformity with these Regulations . . ." (Emphasis added.) This portion of § 50D stands in sharp contrast to the remainder of the section which provides in relevant part that "[n]o nonconforming . . . characteristic of any . . . improvement shall be enlarged, extended, or expanded . . ." A fair interpretation of § 50D thus expressly anticipates the permissive expansion of an improvement having a nonconforming characteristic as long as the nonconforming characteristic is not expanded and the expansion is otherwise in conformity with the regulations. Any other reading would defeat the common sense approach that must be used in construing regulations. The relevant question, therefore, becomes whether the Sapias' proposed addition constitutes an expansion of a nonconforming characteristic of an improvement under the regulations.
Doyen v. Zoning Board of Appeals, supra, 67 Conn.App. 605-06. The Appellate Court concluded that the zoning board's finding that the vertical expansion over the nonconformity did not constitute an expansion of a nonconforming characteristic was correct. The court concluded that § 50D of the regulations "expressly anticipates the permissive expansion of an improvement having a nonconforming characteristic as long as the nonconforming characteristic is not expanded and the expansion is otherwise in conformity with the regulations." Doyen v. Zoning Board of Appeals, supra, 608.
The Moon case involved significantly different regulatory language. The plaintiff property owners appealed from the denial of their application for a variance and from the board's decision upholding the zoning enforcement officer's denial of a building permit for a second story addition to their residence which did not conform to the front yard setback requirement. The trial court dismissed the plaintiff's appeal and, on the granting of certification, the Supreme Court affirmed. Section 12.6 of the Madison zoning regulations provided in pertinent part:
No building which does not conform to the requirements of [the town zoning] regulations regarding . . . required yards . . . shall be enlarged unless such enlarged portion conforms to the regulations applying to the district in which it is located.
(Emphasis added.) Moon v. Zoning Board of Appeals, supra, 291 Conn. 21. The Moon court concluded as follows:
The use of the term "portion" in § 12.6 is significant for two reasons. First, the word "portion" is commonly understood to mean "an often limited part set off or abstracted from a whole . . ." Merriam-Webster's Collegiate Dictionary (11th Ed. 2003). Second, the use of that term in the latter part of § 12.6 is strong evidence that the local legislative body intended a different meaning from the term "building" in the first part of the regulation. See Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 662, 931 A.2d 142 (2007) (Katz, J., concurring) (we assume legislature has different intent when it uses different terms in same statutory scheme). We conclude, therefore, that the plain language of § 12.6 of the town zoning regulations clearly and unambiguously conveys a legislative intent to restrict the enlargement of nonconforming buildings, unless the proposed enlarged subsection of the building, standing alone and without respect to the characteristics of the existing building, conforms to the zoning regulations.
Moon v. Zoning Board of Appeals, supra, 291 Conn. 22.
This court concluded in Ross v. Zoning Board of Appeals that as between the two, the underlying regulations of the town of Essex at issue in Doyen were much closer to those of New Fairfield in question. The court compared New Fairfield regulations § 2.4.3(b) and Essex regulations § 50D and found that each permit the enlargement or expansion of a "non-conforming use, building or structure" (in the case of New Fairfield) and an "improvement having a non-conforming characteristic" (in the case of Essex) if done "to conform to all applicable requirements of these regulations" (in the case of New Fairfield) and "in conformity with these regulations" (in the case of Essex). This court now turns its attention to § 2.3.1 of the New Fairfield zoning regulations, which provides that "[a] dwelling and any permitted accessory structure located on a nonconforming lot . . . may be extended, expanded, altered, moved or reconstructed" to find that the regulations explicitly provide for permissive expansion of a building on a nonconforming lot. The court concludes that the regulations here, in the context of nonconformities, do not prohibit the vertical expansion over the legally nonconforming footprint and setbacks of this building.
The foregoing analysis of the plaintiffs' rights under the application of the regulations, specifically as to building heights, nonconforming lots and nonconforming uses, buildings and structures, as was the case in Ross, is not dispositive of this appeal, however, for the reasons set forth and discussed in the following section of this decision.
II
In their briefs and during the course of argument on this matter, each of the parties have made reference to the various provisions of § 2.3 and § 2.4 of the regulations, and indeed the zoning enforcement officer, in the verification of noncompliance, cites provisions of both sections of the regulations as applicable to the plaintiffs' property. (ROR 302.) This court recognizes that "[a] local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it." New London v. Zoning Board of Appeals, 29 Conn.App. 402, 405, 615 A.2d 1054, cert. granted, 224 Conn. 921, 618 A.2d 528 (1992) (appeal withdrawn March 18, 1993). "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]." (Citations omitted; internal quotation marks omitted.) Northeast Parking, Inc. v. Planning Zoning Commission, 47 Conn.App. 284, 293, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998).
It is clear to this court that applying either the provisions of § 2.3 or § 2.4 of the regulations to a particular fact pattern may produce different results in terms of whether an extension, expansion, alteration or reconstruction of the structure is permitted. As an example, consider a structure having less than twenty-five feet of front yard setback and located on a nonconforming lot in an R-44 zone that is not within a subdivision. Under the provisions of § 2.4.3(a), the structure may be enlarged or extended if it is made "more conforming" or under the provisions of § 2.4.3(b) the work is required "to keep the structure or building in sound condition." However, under the stricter provisions of § 2.3.1, no extension, expansion, alteration or reconstruction of the structure is permissible at all because of the failure to meet the minimum front yard setback of § 2.3.1(d)2. On the other hand, an extension, expansion or alteration of a structure meeting the strict requirements of § 2.3.1 might not meet the requirement of § 2.4.3(a) that the resulting structure be "more conforming."
"A local ordinance is a municipal legislative enactment and the same canons of construction which we use in interpreting statutes are applicable to ordinances." (Internal quotation marks omitted.) Pelliccione v. Planning Zoning Commission, CT Page 22239 64 Conn.App. 320, 335, 780 A.2d 185, cert. denied, 258 Conn. 915, 782 A.2d 1245 (2001). "A court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation . . . A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance . . . The words [employed] are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms . . . The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant." (Citations omitted; internal quotation marks omitted.) Id., 335-36. "Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body." Spero v. Zoning Board of Appeals, 217 Conn. 435, 441, 586 A.2d 590 (1991).
As applied to the facts of this case, these two sections of the regulations must be interpreted as exclusive of each other. Section 2.3.1 of the regulations applies only to lots which are nonconforming either because the lot itself fails to comply with the requirements of the regulations or because the location of the structures on the lot creates an instance of nonconformity under the regulations. Section 2.4.3 of the regulations applies only to nonconforming uses or structures on lots which otherwise conform to the regulations with regard to the requirements of the lot itself and the location of the structures on the lot. The only obvious exception would be instances where, as here, both the structure itself is nonconforming and the lot is nonconforming either by virtue of the lot dimensions or the structure's location on the lot. In these cases, any extension, expansion or alteration of the structure would require compliance with both § 2.3 and § 2.4 of the regulations.
Under the facts of the instant case, the plaintiffs' property consists of a nonconforming lot in that it fails to meet the minimum lot area of one acre (regulations § 3.2.3a), minimum lot frontage on a public street of 125 feet (regulations § 3.2.3b) and minimum lot dimension specifying that no part of any dwelling or principal building shall be erected at a point where the lot width is less than 125 feet (regulations § 3.2.7). (ROR 790-91.) It also consists of a nonconforming structure, in that it fails to meet the front, side and rear yard setbacks requirements. See Vivian v. Zoning Board of Appeals, CT Page 22240 77 Conn.App. 340, 352, 822 A.2d 374 (2003) (referring to structures encroaching on setback areas as nonconforming structures); Raymond v. Zoning Board of Appeals, 76 Conn.App. 222, 241-42, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003) (same); Munroe v. Zoning Board of Appeals, 75 Conn.App. 796, 798, 818 A.2d 72 (2003) (same). Therefore, whether or not the structure may be extended, expanded, altered or reconstructed is governed by both § 2.3.1 and § 2.4.3 of the regulations. Since the lot predates zoning and is not a subdivision lot, subsection (a) of § 2.3.1 applies and mandates that "no yard, lot coverage, shape or setback [can be] made more nonconforming" by the extension, expansion, alteration or reconstruction. As the court has determined in section I of this decision, the vertical expansion over a legally nonconforming setback is permissible under the regulations. The requirements of subsection (a) are satisfied. Next, since the property lies in the R-44 zone, subsection (d) of § 2.3.1 sets forth five more criteria which the plaintiff applicant must satisfy. This set of criteria essentially relaxes the requirements of the R-44 zone without entirely eliminating them. The first of these, § 2.3.1(d)1, requires that the lot "shall be at least one (1/2) half acre in area . . ." At 9980 square feet and less than a quarter of an acre, the plaintiffs' lot cannot meet this test. Accordingly, the remaining requirements of § 2.3.1 and § 2.4.3 need not be considered and the application must fail.
Among the many reasons which the zoning enforcement officer cited in the verification of noncompliance dated March 17, 2009, was the failure of the plaintiff applicants to meet the requirements of § 2.3.1(d)1 of the regulations. (ROR 302.) The court finds the action of the board in affirming the issuance of the verification of noncompliance and the denial of the zoning permit to the plaintiff applicants to be supported by substantial evidence in the record.
CONCLUSION
For the foregoing reasons, the court finds that the plaintiffs have not sustained their burden of demonstrating that the zoning board of appeals' affirmance of both the denial of the application for a zoning permit and the issuance of the verification of noncompliance were illegal, arbitrary or in abuse of the discretion vested in the board. The appeal is therefore dismissed.