Opinion
No. FST CV 07 4012944 S
October 21, 2010
MEMORANDUM OF DECISION
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff, Virginia Guimond, is the owner of a parcel of property located at 26 Shorefront Park in Norwalk (the "Property"). She has owned the property since 2003. (ROR Exh. 52 Tr. at 10.) The property is zoned as Residence B. The zoning classification permits a single-family residence as of right. The property contains a residential structure as well as a portion which is a garage that includes a second-floor apartment. In March 1987, the code coordinator, James R. Bradley, inspected the apartment that is located above the four-car garage and determined that this was in compliance as a permitted pre-existing use. (ROR Exh. D.) As a result of this inspection, the property was classified as a single family with one rental unit. Notice of this decision was provided to the owner of the property, Mr. George Chacon. (ROR Exh. D.) The letter notified the owners that this classification would be provided to the proper municipal officials and offices. The owners never responded to the correspondence and there was no further contact with the zoning office until the recent complaints which caused the Zoning Enforcement Officer to inspect the property. In the recent inspection, the zoning enforcement officer, Aline Rochefort, issued findings of violations of the Norwalk Zoning Regulations. On August 6, 2007, the Zoning Enforcement Officer issued a cease and desist because she discovered four separate living units of which only two had been approved by the City of Norwalk. She also cited the owner for parking of a number of unregistered automobiles on the property which she contended violated the regulations for a B residence zone. (ROR, Exh. A.)
The Building Zone Regulations of the City of Norwalk set forth the permitted uses in § 118-340. This section sets forth the purpose and intent of the "zone to provide areas for single-family dwellings and other compatible uses on lots . . ."
Mr. Chacon was the prior owner of the property and the plaintiff in the present action was a neighbor who purchased the property on March 13, 2003. (Tr. Exhs. 1 and 2.)
The Zoning Enforcement refers to four residential units in the cease and desist. There are however, only two units which are the subject of the cease and desist and this appeal. The remaining two include the main dwelling unit and the apartment over the garage that was found to be a permitted pre-existing unit in March of 1987. The remaining two units are contained within the main dwelling unit on the property.
The plaintiff appealed the cease and desist to the Norwalk Zoning Board of Appeals (hereinafter "Zoning Board"). A public hearing was conducted on November 1, 2007. (ROR Exh. 52.) The Zoning Board denied the appeal as to each of the two categories of violations, that is, the additional residential units and the parking of unregistered motor vehicles. The plaintiff has appealed the decisions by the Norwalk Zoning Board related to affirming this cease and desist.
The parties have submitted briefs in support of their positions as well as the record of the hearing before the Zoning Board. The court heard argument on August 10, 2010.
STANDARD OF REVIEW
In an appeal from the Zoning Enforcement Officer's order, the Zoning Board of Appeals conducts a de novo review. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 88-89, 626 A.2d 744 (1993). The "Board is in the most advantageous position to interpret its own regulations and apply them to the situation before it." Doyen v. Zoning Board of Appeals, 67 Conn.App. 597, 603, 789 A.2d 478, cert. denied, 260 Conn. 901 (2002).
"Zoning Boards of appeal are entrusted with the function of deciding within prescribed limits and consistent with the exercise of a legal discretion, whether a regulation applies to a given situation, and the manner of its application." Molic v. Zoning Board of Appeals, 18 Conn.App. 159, 165, 556 A.2d 1049 (2008)
AGGRIEVEMENT
"Proof of aggrievement is . . . an essential, prerequisite to the court's jurisdiction of the subject matter of the appeal." (Internal citations omitted, Internal quotation marks omitted) Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 664 (2006), Gladysz v. Planning and Zoning Commission, 256 Conn. 249, 256, 773 A.2d 300 (2001). The burden of proving aggrievement rests with the plaintiff. Quarry Knoll II Corp. v. Planning and Zoning Commission, 256 Conn. 674, 701, 780 A.2d 1 (2001). In the present appeal, the plaintiff presented evidence of ownership at the hearing. (Exhs. 1 and 2.) Therefore, pursuant to General Statutes § 8-8(a)(1) she is aggrieved because she owns the Property that was subject to the Zoning Enforcement Officer's order and the Zoning Board of Appeal's decisions upholding that order.
DISCUSSION
The zoning inspector of Norwalk, Aline Rochefort, after inspection found that the property contains four units used as separate residential facilities. The inspector issued a cease and desist for only two of the units. It is only these two units, designated the third and fourth units, that were the subject of the appeal to the Zoning Board of Appeals and to the court as a result of the Board's decision affirming the cease and desist. However, the residential unit which is over the garage area has been discussed and referred to by the parties because in 1987, the code coordinator, who was the individual who inspected the property for zoning compliance at the time, found that this unit was a pre-existing use permitted by the regulations. The plaintiff contends that this prior finding of compliance should be extended to approve any residential unit within the property during the same time period. This contention is based upon the zoning regulations that indicate a zoning authority will not approve any zoning application if the property contains a violation of the zoning regulations.
The cease and desist also addresses several alleged motor vehicles which are located within the property at 26 Shorefront Park. The zoning inspector indicated that there were several unregistered and inoperable motor vehicles left on the property which were in violation of the zoning regulations.
At the hearing before the Zoning Board of Appeals the plaintiff presented documents and affidavits in regard to the use of the property through the years prior to the plaintiff's ownership of the property as well as the plaintiff's belief about the ongoing use of the property.
THIRD UNIT
The plaintiff argues that the third unit which obviously contains a kitchen in addition to living area was approved by zoning because it existed when the inspection was performed in relation to the apartment over the garage building located to the back of the property. (ROR Exh. 40.) In particular, the plaintiff cites to the regulations that state if there is an application for zoning approval, there cannot be zoning violations on the property at the time. Norwalk Building and Zone Regulations § 118-1420E. The plaintiff then argues that because the rental apartment was approved in 1987, the court must infer that the other apartments which she claims were in existence must have been in compliance. This is contrary to the evidence that was produced during the course of the public hearing that designated very particularly one apartment over the garage. (ROR Exh. D.) Viewing the March 16, 1987 letter, the court can only conclude that the code coordinator found only one rental unit that was "contained above a four-car garage." The affidavits that were submitted also clearly supported the existence of one rental unit. In particular, the plaintiff submitted three affidavits that refer to only one apartment. The plaintiff's argument is that the town is estopped from claiming that the third apartment is a violation of the zoning regulations because it existed in March 1987 when the residence was inspected and there was a finding of a rental unit. This argument is factually and legally wrong.
In support of the allegation that the other units existed at the time and therefore the zoning official must have been aware and allowed such uses, the plaintiff submitted an affidavit to the Zoning Board. This affidavit offers nothing to confirm any notice to the zoning officials about an existing residential unit even though there was a letter confirming only one apartment in 1987. Mr. Genestra's affidavit does not offer any reliable evidence that this third unit was made known to the code coordinator in 1987.
There were affidavits as part of the 1987 inspection for approval of the garage apartment from George H. Chacon, Mr. Dominick Carrione, and Irene Ferrara that refer to one apartment in the house owned by the Chacons at 20 Shorefront Park.
In Zoning Commission v. Lescynski, 188 Conn. 724, 731-32, 453 A.2d 1144 (1982), the court restated a two-part test to determine if a municipality could be estopped from enforcing its zoning regulations: 1) the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief, and 2) that the other party must change its position in reliance on those facts, thereby incurring some injury. Bozzi v. Bozzi, 177 Conn. 232, 242, 413 A.2d 834 (1979). In municipal zoning cases, estoppel may be invoked "(1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations." Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 354, 365 A.2d 1093 (1976).
Here, the plaintiff contends that the Zoning Enforcement Officer's March 16, 1987 approval of the garage apartment would also include the separate unit within the residence because the regulations do not allow an approval if there are any outstanding zoning violations. Norwalk Building and Zone Regulations § 118-1420E. However, the letter of March 16, 1987 from prior Code Coordinator, James Bradley, was very specific as to the approval of the apartment. He stated: "Based upon this documentation, the Department of Code Enforcement can accept the classification of legal use for this property as a pre-existing single-family residence with a rental apartment." (ROR Exh. D.) There was no indication that at the time of the inspection in 1987 this Zoning Code Coordinator ever saw or was shown the second apartment in a completely separate area from the garage apartment. The documents that are referred to by the Code Coordinator support the finding that the owners of the property were addressing only one rental apartment to be inspected and there is no other evidence or testimony before the Code Coordinator that supports the plaintiff's inference that other apartments existed and were found in compliance with the regulations in 1987.
At the hearing before the Zoning Board, Member John Hamlin questioned counsel for the plaintiff about the 1987 letter. Mr. Hamlin was very clear that the reading of the 1987 letter left little to be questioned. He stated: ". . . isn't that about as crystal clear as anyone can make it that this that the legal use for this property as a pre-existing single family residence with a rental apartment would make two of the units illegal." He further stated ". . . why wouldn't it be fair to infer from this letter that at the time of this letter there were two(2) units. The single family residence and one (1) unit. Why wouldn't it be entirely reasonable for, for this Board to infer that from this letter." (ROR Exh 52 pg. 6.) Plaintiff's counsel responded that this was a reasonable interpretation. (ROR Exh. 52 pg. 7.) Gordon Tully of the Zoning Board also stated that, "Mr. Bradley signed off on a building that he described very explicitly being a one (1) family building with an apartment. Now, whatever he saw I don't care, he signed off on a building that he described and that's what he signed off on. He didn't describe ah, ah, building that had two (2), had three (3) units." (ROR Exh. 52 pg. 9.) At the end of the discussion, Mr. Hamlin inquired as to why the owner of the property who supposedly was receiving approval for more than the one rental apartment did not address the mistake. The only response was that such a mistake would be advantageous to the owner at the time. However, this response does nothing to support the argument and only tends to weaken the validity of the existence of an approval of other rental units because there is a lack of credibility. This statement and the evidence are not sufficient to find that the City of Norwalk zoning officials made any representations which would have induced the plaintiff or the former owner of the property to believe that all three units were found to be compliant. Since this plaintiff lived in the immediate area of the property for a number of years, she obviously purchased the property knowing that the zone is single family. It was incumbent upon her upon the purchase to determine the exact extent of the additional uses. It appears that there was no due diligence on her part. A simple review of the zoning records would have brought to her attention the March 1987 approval of only one rental unit. Having recognized this failure, it cannot be found that she engaged in any inquiry with the Norwalk officials that would have her rely upon disclosures that caused any injury to her. The claim of estoppel is not supported by the evidence and testimony in this appeal.
This statement negates any finding that the plaintiff had a reliance upon the 1987 inspection and more so supports a finding, if anything, that the former owners were hiding the existence of any other rental units that would have affected not only their zoning status but possibly also their tax assessment.
The plaintiff improperly relies upon the zoning regulations to extend her compliance. In particular, the plaintiff relies upon Norwalk Building Zone Regulations of the City of Norwalk § 118-1420E that states: "It shall be unlawful to construct or alter any building or structure, or any part thereof, until the application and plans herein required shall have been approved by the Zoning Inspector and a written zoning approval issued. The Zoning Inspector shall approve or reject any application or plan or amendment thereto filed with him within a reasonable time provided that no zoning violation exists on the property and, if approved, shall promptly issue a zoning approval therefore." The plaintiff views this regulation as requiring a full inspection of the property at the time of any application. While this may be wise, there is nothing within the regulations that mandate any such inspection. In fact, the regulations can be interpreted as providing a basis to deny what might otherwise be an acceptable application if the applicant fails to follow all aspects of the zoning regulations. Additionally, there is nothing within these regulations that would allow a finding of compliance to an applicant who acts in bad faith by not representing all uses related to the property when submitting an application for zoning approval. An applicant could keep improper uses from disclosure in order to obtain compliance of a totally unrelated area and then claim that the prior illegal uses became fully compliant because the zoning enforcement officer unwittingly found compliance of another use. This could not be the intention of the zoning regulations which seek total compliance.
The plaintiff has relied upon an implication or assumption of an approval. If the intention of the owners was to have all additional apartments approved then it was incumbent upon them to demonstrate that the zoning authority was aware of or inspected the other areas for purposes of zoning compliance. The owner who was supposedly aware of another apartment within the dwelling had an obligation to exercise due diligence to bring this to the attention of the zoning enforcement officer to include it within the approval of what were obviously violations of the zoning regulations.
For the foregoing reasons the Zoning Board of Appeals acted properly in denying the plaintiff's appeal from the ruling of the Zoning Enforcement Officer and the facts of this case do not warrant the application of the municipal estoppel doctrine. The appeal as to the third unit is dismissed.
FOURTH UNIT
The area described by the plaintiff as the fourth unit is an area containing a living or sleeping area and a refrigerator in the room. The issue as to this unit focuses on the definition of Kitchen pursuant to the Norwalk regulations. The plaintiff contends that the unit is not an illegal living space. The defendant contends that the placement of a refrigerator in the living area creates a kitchen under the zoning regulations and therefore this unit is a second illegal apartment within the residence.
"A local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it . . . 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] . . . If a board's time-tested interpretation of a regulation is reasonable, however, that interpretation should be accorded great weight by the courts." Cunningham v. Planning and Zoning Commission, 90 Conn.App. 273, 283, 876 A.2d 1257, cert. denied, 276 Conn. 915, 888 A.2d 83, (2005).
The plaintiff argues that the Zoning Board of Appeals has incorrectly applied the zoning regulations to the instant situation where the unit contains only a refrigerator. Section 118-100 of the Zoning Regulations of the City of Norwalk specifically defines a kitchen as "An area of a dwelling unit, as herein defined, house or apartment used for the preparation, storage and/or service of food which contains any or all of the following fixtures and or equipment in whole or part: storage cabinets (plastic, metal or wood), kitchen sinks, refrigerator, dishwasher, stove, hot plate, oven, table top broiler, including fans and hoods; all of which are installed or plugged into related plumbing and electrical fixtures or connections." (ROR Exh. 54.) The Regulations also define dwelling unit as "any room or group of rooms located within a residential building and forming a single habitable unit with facilities which are used or intended to be used for living, sleeping, cooking and eating by one (1) family provided that each such unit is limited to 1 (one) kitchen, as herein defined." The defendant argues that the inclusion of a refrigerator in the living area creates a kitchen under the regulations and thus creates a dwelling unit which in this instance is not a permitted use. In viewing the Norwalk regulations, the court cannot isolate the definitions to determine if the Zoning Board acted properly in denying the appeal. Instead the court must view the regulations as a whole which would include the definition of a dwelling unit. This regulation discusses a kitchen as a part of the make-up of a dwelling unit but it does not restrict the definition as the defendant would have this court follow. Particularly, the definition of dwelling unit includes a unit for living, sleeping and cooking and eating. This definition seems to expand the definition of a kitchen to more than a refrigerator because in satisfying the criteria, the family of the unit would be cooking and eating in the unit. This definition supports the logic of the plaintiff that there must be more than a refrigerator because you cannot prepare or serve with only a refrigerator.
Doubtful language will be construed against rather than in favor of the restriction. Fillion v. Hannon, 106 Conn.App. 745, 943 A.2d 528 (2008).
The court finds this interpretation of the Norwalk Zoning Regulations to be overly broad. An interpretation that would allow the Zoning authority to find a violation by the existence of a refrigerator only in a room within a dwelling is very far reaching and could apply to many situations which are not intended as a kitchen but possibly another convenience for occupants. To allow this interpretation also ignores the regulations as a whole which includes the preparation and service of food.
The court sustains the appeal as to the fourth unit.
MOTOR VEHICLES
The third and last violation noted in the cease and desist applies to the presence of motor vehicles on the property at 26 Shorefront Park in the City of Norwalk. The cease and desist that was issued by the City in relation to the motor vehicles states: "You are notified that you are in violation of Section 118-340 118-1420 D, E, G of the Building Zone Regulations of the City of Norwalk, CT. to wit: specifically, four units and unregistered motor vehicles in a B residence zone." (ROR Exh. 16.) In addition, the original cease and desists requests that the owner provide the inspector with "proof of vehicle registration or remove all but 1 unregistered/inoperable motor vehicle." This cease and desist clearly addresses the issue of registration of the motor vehicles as well as the capability of movement. The plaintiff argues that the regulations cited and the reliance upon General Statutes § 14-67g was misplaced. In the response memorandum of the defendant, Zoning Board of Appeals, refers to Section 118-340B(4)(b) as the applicable regulation. The defendant argues in their memorandum that the violation is lack of screening the motor vehicles parked on the property from view and not the lack of registration or operation. This argument is not only different from the cease and desist order but also not related to any information provided to the Zoning Board of Appeals during the public hearing on November 1, 2007.
The Norwalk regulations that refer to motor vehicles in a residence B zone are contained in a number of paragraphs within the regulations. In particular Section (4)(d) refers to the screening noted in the record. It states: "Storage of recreational vehicles owned or leased by the occupant of the dwelling, provided that such vehicles are located in accordance with the front yard requirements of this zone and are effectively screened from the street and adjacent properties to the satisfaction of the Zoning Inspector." There is no other restriction as to the number or operability of the motor vehicles.
Additionally, the decision of the Zoning Board of Appeals regarding the motor vehicles does not address this issue nor does it provide any support for the denial of the appeal as to the cease and desist. The record containing the discussion of the Zoning Board indicates that at the time of the hearing the Board could not definitively find that there was any violation and the statement of Anne Carbone describes the concern that "it just looks junky" describes the main concern. This is not and was not shown to be in violation of any zoning regulation. Although the Zoning Board may be correct that the motor vehicles were not properly screened, the cease and desist did not address this alleged violation. Therefore, the plaintiff did not have the opportunity to correct or to appeal a finding based upon these allegations. The appeal regarding the unregistered motor vehicles is sustained.
CONCLUSION
Therefore, the court affirms the decision of the Zoning Board and dismisses the appeal as to the residential unit that is described as the third unit. The appeal is sustained as it relates to the fourth unit and the motor vehicles on the property.