Opinion
No. CV-04-0491317 S
March 16, 2006
MEMORANDUM OF DECISION ON PLAINTIFF'S APPEAL
This case involves an appeal by the plaintiff Palmieri Cove Associates, LLC (PCA) from applications dated March 19, 2004 concerning property at 8 Cove Street in New Haven. The property is in a RS-2 zoning district pursuant to the city Code of Zoning Ordinances. The application requested a use variance to utilize the property as a 30-slip marina/yacht club and a 28-seat restaurant.
The PCA applied on the previously mentioned date to the Board of Zoning Appeals requesting the following:
(1) A use variance pursuant to § 63.C.2 in order to allow the property to be used as a marina and a restaurant.
(2) A variance as to § 12.A1(9) to allow 95.7 percent impervious surface; 70 percent is allowed and 89.25 percent existed at the time of the application.
(3) A special exception pursuant to § 29.C and § 63.D to allow parking in the front yard setback.
As to this application the plaintiff PCA's brief noted that "Because PCA was seeking to use the property as both a marina and a restaurant, the plaintiff needed to demonstrate sufficient parking spaces to accommodate both a 30 slip marina and a 28 seat restaurant. Because the property already contained 89 percent impervious surface, the plaintiff only need(ed) to create four additional spaces to accommodate both uses of the property."
A public hearing was held April 13, 2004 and the defendant Board denied the application in its entirety. This appeal followed and the following grounds were asserted:
6. In making its decision, the defendant, Board of Zoning Appeals acted illegally, arbitrarily and in abuse of the discretion vested in it as an administrative zoning agency in that:
(a) The plaintiff had a pre-existing non-conforming right to operate a marina at the property based on the historic use of the property which pre-existed zoning regulations in the City of New Haven;
(b) The decision of the defendant, Board of Zoning Appeals is not supported by the record;
(c) The requested variances were consistent with the surrounding neighborhood;
(d) The defendant's actions in denying the application were illegal under its own regulation, the statutes, State regulations and the case law;
(e) The defendant impermissibly prejudged the plaintiff's application; and . . .
The court will give a brief rendition of the facts which will have to be discussed more fully later in the opinion. PCA purchased the 8 Cove Street property in 1998 and claims that since that time it has taken the necessary steps to continue the marina use of the property. At the time of the public hearing in this matter PCA had applications before the state Department of Environmental Protection and the Army Corps of Engineers for permits to operate a marina and states that before it could receive the necessary permits it had to obtain permission from the city because the amount of boat slips authorized by the DEP was related to the number of parking spaces approved by the city.
The plaintiff points out that the property abuts the sound and is fronted by a protective jetty. The property was the former home of the New Haven Marina — the only improvement on it being a marina building. The property, according to the plaintiff, has been used as a marina since the late 1800s and the dwelling on it was erected in 1909. This is the basis of its position that it has a "pre-existing non-conforming right to operate a marina" at Cove Street; such a use preceded the city's zoning regulations.
The city does not appear to deny that at some point in the historical past the property was used as a marina but argues that "long before the plaintiff purchased the property, the marina use was abandoned by prior owners in 1987."
1. In order to pursue an appeal such as this the plaintiff must prove that it is aggrieved — "pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." Office of Consumer Counsel v. Dept. of Public Health, 243 Conn. 624, 637 (1995); see also Bakelaar v. West Haven, 193 Conn. 59, 65 (1984). Aggrievement is a question of fact for the trial court and the party alleging it must prove it. Office of Consumer Counsel, 243 Conn. at p. 410, Bakelaar, 193 Conn. at p. 65. The court finds PCA was the owner of the property that was the subject of this application; the application having been denied PCA is aggrieved. Rogers v. Zoning Board of Appeals, 154 Conn. 484, 488 (1967); Winchester Woods Assoc. v. Planning Zoning Comm., 219 Conn. 303, 308 (1991).2.
The plaintiff having standing to bring the appeal, the question then becomes what is the appropriate standard of review to be applied in an appeal from the Zoning Board of Appeals.
The parties basically agree on the standards to be applied in reviewing an appeal of this type where a Board acts in an administrative capacity. Of course the burden is on the plaintiff whose application to the local agency has been denied to show that the Board erred. Spero v. Zoning Board of Appeals, 217 Conn. 435, 440 (1991). Decisions by local zoning authorities should be given a considerable amount of deference. McMahon v. Board of Zoning Appeals, 140 Conn. 433, 438 (1958), Frito Lay, Inc. v. Planning Zoning Comm., 206 Conn. 554, 573-74 (1988), cf. Property Group, Inc. v. Planning Zoning Comm., 226 Conn. 684 (1993). In the latter case the court noted the "substantial evidence rule" applied. There must be substantial evidence supporting the agency decision. Under this test any review "is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses (that) may arise in the administrative adjudication." Id., p. 697. But the review must be of "such breadth as is entirely consistent with effective administration." Id. This imposes "an important limitation on the power of the courts to overturn a decision of an administrative agency." Id. pp. 697-98. One other specific matter should be noted. As said in Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525 (1987): "The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." Id., pp. 539-40.
But there are also certain principals that must also be kept in mind. As Fuller notes "greater deference is given to factual determinations of an administrative agency than for procedural, legal, or other nonfactual determinations." Land Use Law Practice, Vol. 9A Conn. Practice Series, Fuller, 1999 ed., § 33.1, p. 152; also cited by him on this point is Conn. Light Power Co. v. Texas-Ohio Power Co., 243 Conn. 635, 642 (1998). And another observation by Fuller should be mentioned:
Excessive deference by the courts to an agency's decision by courts endorses and encourages abuses of power by land use agencies, and eliminates the balance between regulation of land in the public interest and the right of individual property owners to make reasonable use of their land.
3.
The court will now try to address the merits of the appeal. There are two issues presented: (1) plaintiff's claim that plaintiff's use of the premises is protected by law as a preexisting nonconforming use; and (2) requests for variances and a special exception.
A.
As noted, the plaintiff claims it has the right to continue what has been a nonconforming use of this property as a marina. Section 8-2 protects such a right by saying "regulations shall not prohibit the continuance of any nonconforming use, building, or structure existing at the time of the adoption of such regulations." Taylor v. Zoning Board of Appeals, 65 Conn.App. 687, 693 (2001). Also "where a nonconformity exists, it is a vested right which adheres to the land itself 'And the right is not forfeited by a purchaser who takes with knowledge of the regulations which are inconsistent with the existing use.'" Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483 (1979); cf. Abbadessa v. Board of Zoning Appeals, 134 Conn. 28, 32 (1947). Here the city's zoning regulations were operative since 1926 whereas the plaintiff has claimed the marina use predated their enactment. A plaintiff bears the burden of proving a nonconforming use. Pleasant View Farms Dev., Inc. v. Zoning Board of Appeals, 218 Conn. 265, 272 (1991).
It is also true that in the case of a nonconforming use "the property must be so utilized as to be 'irrevocably committed' to that use." Lebanon v. Woods, 153 Conn. 182, 197 (1967), Karls v. Alexandra Realty Corp., 179 Conn. 390, 399 (1980). But "once a nonconforming use is established, the only way it can be lost is through abandonment." Taylor v. Zoning Board of Appeals, supra at 65 Conn.App. 695.
And that is the basis of the defendant's position here — that any nonconforming use at 8 Cove Street, specifically its use as a marina, had been abandoned by the prior owner from which PCA purchased the property. As Fuller notes in a case such as this "where the prior owner discontinued the use, the question then is whether that owner, not the current owner, intended to resume the use." Vol. 99, supra, § 52-5, p. 566, citing Caserta v. Zoning Board of Appeals, 41 Conn.App. 77, 82, 83 (1996).
For this entire discussion the court has relied on Fuller's discussion in Volume 9A of the Connecticut Practice series and has paraphrased several of his remarks after examining the cases he cites.
The court in Cummings v. Tripp, 204 Conn. 67 (1987), at p. 93 said "'[a]bandonment' is a question of fact which implies a voluntary and intentional renunciation. Nevertheless, the intent to abandon may be inferred as a fact from the circumstances . . . the mere discontinuance of a use where there is no intent to abandon is not enough . . . to establish abandonment the 'intention on the part of the owner (must be) to relinquish permanently the nonconforming use'" (emphasis by Cummings court.)
A consideration important for the resolution of this case is whether the fact that a nonconforming use is discontinued for a certain period of time constitutes abandonment. Of course this fact is directly related to the issue of actual intent just discussed (here as applied to the prior owner). The cases seem to follow two not necessarily inconsistent lines on this temporary suspension of use issue. On the one hand they say a use is not discontinued or abandoned "by a mere temporary suspension for a reasonable time, for reasons beyond the owner's control, where there exists a manifested intention on the part of the owner to resume the nonconforming use" as soon as circumstances arising making it possible to continue the use. Ullman ex rel. Payne v. Payne, 127 Conn. 239, 241, 242 (1940), cf. Magnano v. Zoning Board of Appeals, 188 Conn. 225, 228 (1982). Interestingly, Ullman, id. at p. 241 says "[t]ime is not an essential element of abandonment although it is evidential, especially with facts evidencing such intention."
A second line of cases is illustrated by Point O'Woods Ass'n, Inc. v. Zoning Board of Appeals, 178 Conn. 364 (1979), which quotes from an earlier case to the effect that:
The temporary interruption or suspension of a non-conforming use without substitution of a conforming one or such a definite and substantial departure from previously existing conditions and uses as to signify an abandonment of the latter, does not terminate the right to resume them.
Id. p. 369. See also, Lehmaier v. Wadsworth, 122 Conn. 571, 576 (1937), from which quote comes.
The concept of nonconforming uses and their protection apparently antedates the formalized protection given to them in statutes. As Fuller notes at § 52.2, p. 550: "Nonconforming uses are protected by the statute (§ 8-2) even though there is no exemption or provision for them in the zoning regulations. Case law holds that a nonconforming use is a vested right which is entitled to constitutional protection." One thing this means is that local zoning regulations must conform to the statutory and constitutional parameters of the protection given such uses and thus appellate cases referring to regulations for such uses by particular towns enforcing or defining such uses can be referred to as setting forth the general law as it relates to, for example, the concept of abandonment of such uses.
The court will now attempt to apply the foregoing to the facts of this case and the actions of the defendant Board.
In the minutes of the Board meeting denying the application the Board found "that the marina use (for 8 Cove Street) ceased almost 17 years ago and was abandoned by (the former owner). The Board decision is dated April 29, 2004 and the "former owner" of the property was Rita Rascati.
There are several items in the record that seem to establish that a marina functioned on the property before the 1926 adoption of the city zoning regulations. A City Plan Commission Advisory Report indicates "8 Cove Street had been utilized as a marina since 1909 when it served the New Haven Yacht Club." An "8 Cove Street Timeline" attached to a City Plan Department Memo agrees with the foregoing observation and seems to indicate use of the property for marina purposes was ongoing after the 1926 enactment of the zoning regulations. Also see Memorandum of Decision by Judge Hodgson which is part of the record and supports the position that a marina operated on the subject premises until 1987. A second report from the City Plan Commission, dated April 21, 2004 and adopted by the chair states also that 8 Cove Street "had been utilized as a marina since 1909."
The defendant does not directly contest the foregoing but rather takes the position that the preexisting nonconformity was abandoned by the prior owner, Rita Rascati, from whom Mr. Palmieri bought the property. There is no question, in the court's opinion, that Mr. Palmieri wants to operate a marina at this site and has taken various steps to effectuate that goal since he bought the property from Rita Rascati through PCA in 1998. But it appears uncontested that at the time of the present application to the defendant board, 8 Cove Street was not being operated as a marina — the plaintiff's brief talks of PCA applications to the state DEP and the Army Corps of Engineers "for permits to operate a marina." Besides this admission by PCA there is other evidence in the record to indicate the prior owner had not operated a marina at the subject property for a period of time before selling the property to PCA. The previously referred to Memorandum of Decision indicates that after Rita Rascati's husband died her stepson, Nicholas Rascati, operated a marina from 8 and 14 Cove Street. They had a falling out and lawsuits were filed. An agreement was reached whereby Nicholas Rascati agreed to move the marina business out of 8 Cove Street by November 1, 1987. On that date Nicholas Rascati, according to the decision took down the ramp from 8 Cove Street to the floating docks and erected a ramp on his property where he continued to operate a marina (14 Cove Street) — "the network of docks, pilings, and slips in the water in front of 6-8 Cove Street and 14 Cove Street was reached from his (Nicholas Rascati's) property (14 Cove Street) instead of his stepmother's (Rita Rascati). In her decision Judge Hodgson noted that in the suit before her "the plaintiff (Rita Rascati) also seeks injunctive relief requiring removal of the docks, pilings and slips in front of her property (8 Cove Street) and provision by the defendants of access for her boat from her shoreline past the jetty." The judge ruled against her and held she "continues to have access off the seaward side of the jetty." One apparently does not operate a marina without access to slips and docks and it seems clear that Mrs. Rascati's concern in this 1990 litigation was her personal access to the sea. Also a City Plan Department report dated October 8, 2003 does say, as noted, that 8 Cove Street had been utilized as a marina since 1909 but then says "various marine uses continued until 1988."
Also the record contained the transcript of the hearing on the application. An attorney for a neighbor having a property dispute with Mr. Palmieri spoke and referred to a trial she had had over the dispute. She said there was indeed a rift in the Rascati family. Nicholas Rascati testified regarding the settlement of that family dispute and the attorney said "as part of that settlement he took all of his docks and floats and moved them over to No. 14 Cove Street and operated his marina from that location from the late 1980s forward." She offered this in rebuttal to what she believed she heard earlier in the hearing regarding the use of the property.
Nicholas and Rita Rascati did not testify before the board nor were affidavits secured from them. The foregoing is basically what was before the board on the issue of nonconforming use and abandonment apart from the statements of counsel.
The court must now determine whether the Board's conclusion as to abandonment is supported in the record. What is the test used and where is the burden of proof allocated — Blum v. Lisbon Leasing Corp., 173 Conn. 175, 181-82 (1977), sets forth the applicable law as to the test to be used:
It is a well-established rule that before a nonconforming use can be found to have been abandoned, there must be an intention on the part of the owner to relinquish permanently the nonconforming use . . . "abandonment in this jurisdiction is a question of fact . . . It implies a voluntary and intentional renunciation 'but the intent may be inferred as a fact from the surrounding circumstances' . . . Since, however, the conclusion of intention is an inference of fact it is not reviewable unless it was one which the trier could not reasonably make."
As noted the plaintiff has the burden of proving a non-conforming use as of the date the zoning regulations were enacted. Pleasant View Farms Dev., Inc., supra. The court has concluded that burden has been met. But on the issue of abandonment under the Blum test the court could find no case that spoke directly to the burden of proving whether there had or had not been abandonment. The courts seem to rather go directly to a discussion of whether the trial court's examination of the record supported the zoning authority's decision. See Caserta v. Zoning Board of Appeals, 41 Conn.App. 77, 82 (1996).
From the facts and circumstances in this record the court can infer that the Board had grounds to find Rita Rascati intended to abandon use of this property as a marina. The court, of course, understands that mere discontinuance of a use where there is no intent to abandon is not sufficient to establish abandonment. Cummings v. Tripp, supra. But here ramps giving access to slips and docks were removed and Mrs. Rascati's only concern in litigation with her stepson in the late 1980s and 1990 was her right to access the sea personally. One line of cases, as discussed, talks of a "temporary suspension" of use for a "reasonable time." Ullman, Magnano. Time cannot be controlling but as Ullman says time is an evidential consideration especially when coupled with fact indicating such intention to abandon. 127 Conn. at p. 241. Here this property was not used as a marina for 17 years and this coupled with the facts just mentioned indicate to the court the defendant Board had a reasonable basis in the record to find abandonment.
The only contrary indications in the record are broad statements in some of the reports previously alluded to that there was a marina use at 8 Cove Street since 1909 implying that it might thus continue to the date of the application. But the abandonment issue and Rascati's intentions were not even discussed so that matter was not addressed by the reports' preparers.
Also the 1990 decision of Judge Hodgson has been referred to by the plaintiff for its language that through the various agreements Rita Rascati entered into she retained so-called littoral rights running with her property; but this statement cannot be translated into a conclusion that Rascati had not permanently abandoned her intention to use the subject property as a marina. She was abandoning this position as a counter to her stepson's claim that she had given up those rights to Nicholas Rascati for the operation of his marina business at 14 Cove Street.
Finally in the City Plan Department memo which is exhibit 14 in the record there is the following cryptic reference in the "timeline."
Early 1988 — ZEO order to cease operation of the marina at B??-14 Cove Street.
May 10, 1988 — ZEO order overturned.
But the court cannot consider these notations for the purpose of illustrating Rita Rascati's state of mind regarding the nonconforming use on her property. There is no indication as to who initiated the May 1988 overturning of the ZEO order; it must be remembered that there was a marina being operated at 14 Cove Street. It is not even clear to whom the ZEO order was issued and why it was overturned. Also all this occurred ten years prior to the sale to PCA during which time no marina use was made of the property.
The court concludes that there was a nonconforming use at 8 Cove Street predating the 1926 enactment of the city's zoning regulations but the defendant Board had ample basis in the record to conclude this use was abandoned by the prior owner.
B.
The court will discuss other specific requests made by the plaintiff to the PCA in its March 2004 application. It requested a use variance to operate the marina and a 28-seat restaurant, an impervious surface coverage variance to permit 95.7 percent, 70 percent is allowed and a special exception for front yard parking.
(1)
A use variance to permit the operation of the marina must look to the requirements of the City Zoning Ordinance, § 63.c which sets forth the requirements that must be met to obtain a variance. That section in relevant part says:
(1) Basis. Where there is difficulty or unreasonable hardship in the way of carrying out the strict letter of the zoning ordinance, the Board of Zoning Appeals shall have the power in a specific case to vary the application of any provisions of the ordinance, if such variance will be in harmony with the general purpose and intent of the ordinance and if the public health, safety and general welfare will be served and substantial justice done.
In subsection 2 it says:
[T]herefore, the Board shall not grant any use variance . . . unless:
(a) the zoning regulations allow no reasonable use to be made of the property in question for reasons peculiar to the property and not applicable to the area as a whole;
CT Page 5344
(b) the use proposed is the minimum variance necessary in order to allow a reasonable use of the property;
(c) this use shall not impair the essential character of the area or the objectives of the comprehensive plan of the city.
The law in this area is set forth in Bloom v. Zoning Board of Appeals, 233 Conn. 198, 207-08 (1995), which cites various earlier cases. The court said:
An applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone . . . Accordingly, we have interpreted General Statutes (Rev. to 1993) § 8-6 to authorize a zoning board of appeals to grant a variance only when two basic requirements are satisfied: (1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan". . . Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance . . . A mere economic hardship or a hardship that was self created, however, is insufficient to justify a variance; . . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance.
Cases cited include Dolan v. Zoning Board of Appeals, 156 Conn. 426, 430 (1968); Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368 (1988); Smith v. Zoning Board of Appeals, 174 Conn. 323, 326 (1978); Point O'Woods Ass'n, Inc. v. Zoning Board of Appeals, 178 Conn. 364, 368 (1979); Ward v. Zoning Board of Appeals, 153 Conn. 141, 143 (1965); Kelly v. Zoning Board of Appeals, 21 Conn.App. 594, 598 (1990); Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662 (1965); Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239. As the defendant's brief points out the plaintiff does have reasonable use of his property — a single-family house in a residential zone. Hardship cannot be based on a desire to maximize the greatest financial profit from a particular use of the land. There appears to be nothing peculiar about the location of the plaintiff's property which, like many others would, as a residence, front the sound.
The plaintiff basically argues that "the use variance for a marina is consistent with the comprehensive zoning." But Smith v. Zoning Board of Appeals, 174 Conn. 323, 326 (1978), makes clear that the authority for a local board to grant a variance under § 8-6 of the general statutes requires that two conditions be met as Bloom indicates; they are (1) the variance cannot substantially affect the comprehensive plan and (2) adherence to the strict requirements of the zoning ordinance would cause unusual hardship. Grillo v. Zoning Board of Appeals, supra in turn makes clear that these two conditions are independent of each other and must both be met. 206 Conn. at pp. 369. As discussed the record reveals no unusual hardship so there is no basis for the variance. It should also be noted that the only suggestion that this variance would not substantially interfere with the comprehensive plan is mention of two commercial establishments in the whole zone — the marina at 14 Cove Street and a restaurant in this RS-2 zone.
The board was justified in denying a use variance for the operation of a marina.
(2)
The plaintiff also sought an impervious surface coverage variance. Such a request is also governed by § 63C of the city zoning ordinance. The court has to agree with the city that there is nothing in the record to indicate why not permitting the increase of the impervious surface to 95.7 percent would create an unusual hardship. Seventy percent is allowed and 89.25 percent currently exists. Besides at the time the application was made to the Board there was a property dispute between Mr. Palmieri and a neighbor which, after the board's action, was resolved in the neighbor's favor. It is difficult to see how the board could have acted even if hardship were shown since a question was raised about the size of the subject parcel.
Finally as to this request and the next one to be discussed it would seem that they are directly related to prospective marina use and its requirements. Since the Board denied a use variance for such use and the nonconforming use argument was rejected, query as to whether consistency dictated rejection of this variance application?
(3)
The just mentioned observation applies also to the front yard parking application. Section 29C sets out the standards for "Front Yard Parking."
No parking space shall be located within any required front yard, EXCEPT THAT: parking spaces (whether enclosed or not) may be permitted to be located within a required front yard by special exception under subsection 63.D of this ordinance upon a finding, among other things, that such parking spaces are necessary to the use with which they are connected, that they cannot be practically located elsewhere on the lot, that their location within a required front yard will not depreciate property values or cause vehicular or pedestrian traffic hazards or substantially decrease the open aspect of the street, and that such parking spaces are properly screened and otherwise arranged in accordance with the requirements of this ordinance.
A parking space may be located within a required side yard or rear yard, provided that no such parking space shall extend within two feet of any side of any side lot or rear lot line; but a parking space within an accessory building shall follow the requirements of section 25 as to location within required side and rear yards.
Again the court must agree with the statement in the defendant's brief that "the record is bereft of evidence from the applicant regarding the criteria of section 29."
Section 29C explicitly says front yard parking is permitted as an exception where they are "necessary to the use with which they are connected."
If the marina is not permitted it is difficult to understand why extra parking spaces are needed, and the record is replete with testimony from neighbors that Cove Street is already facing difficult traffic conditions due to the close proximity of a restaurant called Amarante's — extra parking spaces would encourage more traffic and reduce the open aspect of the street.
A memorandum from the city Traffic and Parking Department does say "required parking is provided" at the site but interestingly adds that the defendant Board "should closely consider the traffic impact of this use on the surrounding neighborhood" — not exactly a ringing endorsement, to coin a phrase.
Again, in fairness to the plaintiff's position his request for greater impervious surface and added parking slots really are related to the contemplated permission to operate a marina. If the Board was wrong in not allowing this use, serious questions might be raised regarding the other applications.
But for the reasons previously stated, the Board's decision regarding the marina finds support in the record and the court also finds that its actions should be upheld regarding the impervious surface request and the front yard parking request. The appeal is therefore denied.