Opinion
No. CV09 4011125S
February 19, 2010
MEMORANDUM OF DECISION
FACTS
This appeal arises out of the issuance of a cease and desist order dated September 17, 2008 (ROR 4), signed by Thomas Dingle, Zoning Enforcement Officer (ZEO) of the City of Shelton. The order concerns property located at 171-173 Division Avenue, Shelton.
The cease and desist order, which is addressed to John Todice, claims that the property owner is in violation of a certain Certificate of Zoning Compliance, number 4291.
The ZEO alleges that the property contains an illegally constructed apartment, and advises the property owner "you cannot let anyone occupy the third floor of your two family house until the second and third floor are connected by an internal staircase." (Emphasis added). No provision of the Shelton Zoning Regulations is cited in the cease and desist order.
171-173 Division Avenue, a two-family dwelling, is located in an R-4 zone. Although three-family residences are a permitted use in an R-4 zone, the parcel does not have sufficient lot area to accommodate a three-family residence.
After purchasing the property, John Todice sought a variance of the lot area requirement in order to permit the renovation of an apartment on the third floor. The Board of Zoning Appeals denied the requested variance.
John Todice then sought to renovate the third floor and submitted an application to the ZEO of the City of Shelton (ROR 15, p. 4). In the application for a certificate of zoning compliance, number 4291, the ZEO wrote: "2 Family house, no stove, no dishwasher, meet code for finished living space, no change in footprint."
The application for a certificate of zoning compliance is signed by Thomas Dingle, in his capacity of Shelton's ZEO, and is dated April 20, 2007. The following appears on the form, above the signature of the ZEO:
This is to certify that I have reviewed all required submitted plans, and/or other pertinent and relevant data and have determined that the proposed structure and/or use complies with the requirements of the zoning regulations of the City of Shelton.
The document makes no mention of an "internal staircase" or of the need to create a new staircase linking the second and third floors.
In his cease and desist order, the ZEO stated that the third floor of the dwelling could not be occupied "until the second and third floor are connected by an internal staircase."
The plaintiffs, John and Nancy Todice, appealed to the Shelton Board of Zoning Appeals following the issuance of the cease and desist order. They claimed in their appeal (ROR 1) that the term "internal staircase" is not defined in the Shelton Zoning Regulations and the absence of an internal staircase is not a proper basis for the issuance of a cease and desist order.
In the alternative, they claimed that the existing structure contains an internal staircase which connects the second and third floors. They suggest that the term "internal staircase" should be defined as a staircase located in the "internal portion of the structure" (ROR 1).
The Shelton Board of Zoning Appeals held a hearing on December 16, 2008 (ROR 15; ROR 7).
At the hearing John and Nancy Todice maintained that the third floor had been finished, consistent with the certificate of zoning compliance, and that no violation of any provision contained in the Shelton Zoning Regulations was present. Photographs (ROR 2) of the area showed a staircase connecting the second and third floors, although. a stairway did not connect the interior of the second floor apartment with the third floor apartment.
The third floor photographs (ROR 2) show a sink and a refrigerator, but no stove. The washer and dryer are located on the second floor, and the second and third floor have a single utility meter.
At the hearing, the plaintiffs provided a letter, signed by the second floor tenant (ROR 5), claiming that she sublet the space on the third floor, and that the second floor kitchen, washer and dryer were shared.
The letting of room is a permitted use in an R-4 zone. The person letting the rooms must reside in the dwelling unit, and the space let must not include cooking facilities. (ROR 15, p. 7.)
Section 45.4, Shelton Zoning Regulations.
The ZEO argued that the third floor was a separate and distinct apartment, notwithstanding the absence of a stove. He pointed out that the two apartments are not open to each other, and claimed that the existing configuration was a subterfuge for a three-family house.
On January 20, 2009, the Board of Zoning Appeals voted unanimously to uphold the cease and desist order (ROR 6). This appeal followed.
AGGRIEVEMENT
This action was instituted by John Todice, and his wife, Nancy Todice. At the time of the December 16, 2008 hearing, John and Nancy Todice owned 171-173 Division Avenue, Shelton.
Prior to initiating this appeal, however, title to the property was transferred, by way of a quitclaim deed, to J.N.T., LLC, a limited liability company of which John and Nancy Todice are the only members. (Ex. 2.)
Therefore, when this action was begun on February 5, 2009, J.N.T., LLC was the record owner of 171-173 Division Avenue.
At the time of the aggrievement hearing, it was agreed that J.N.T., LLC would be made a party to this action, and would agree to be bound by any judgment rendered concerning this appeal. (See affidavit appended to Motion to Add Party Plaintiff dated January 27, 2010, signed by John and Nancy Todice.)
J.N.T., LLC was made a party to this action, at which time the aggrievement hearing was closed.
Since the property was purchased in May of 2001, title had been transferred from John and Nancy Todice to J.N.T., LLC and from J.N.T., LLC to John and Nancy Todice individually at various times (Ex. 1). The transfers were for the purpose of refinancing the property.
Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an appeal. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996); Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 307 (1991). The question of aggrievement is one of fact. Hughes v. Town Planning Zoning Commission, 156 Conn. 505, 508 (1968).
A party claiming to be aggrieved must produce evidence sufficient to satisfy a well-established two-fold test: 1) the party must demonstrate a specific personal and legal interest in the decision appealed from, as distinct from a general interest such as concern of all members of the community as whole, and 2) the party must show that the specific personal and legal interest has been specifically and injuriously affected by the action of the agency. Primerica v. Planning Zoning Commission, 211 Conn. 85, 93 (1989); Hall v. Planning Commission, 81 Conn. 442, 444 (1980).
Ownership of the property which is the subject of an application demonstrates a personal and legal interest in the subject matter of the decision. Huck v. Inland Wetlands Watercourses Commission, 203 Conn. 525, 530 (1987); Bossert Corporation v. Norwalk, 157 Conn. 279, 285 (1968). While the interest in real property necessary to support a finding of aggrievement must be maintained throughout the course of an appeal, Craig v. Maher, 174 Conn. 8, 9 (1977), the interest necessary to support a finding of aggrievement need not be a fee interest. Shapero v. Zoning Board, 192 Conn. 367, 376 (1984); Lanna v. Green, 175 Conn. 453, 461 (1978); Goodridge v. Zoning Board of Appeals, 58 Conn.App. 760, 767 (2000); Goldfield v. Planning Zoning Commission, 3 Conn.App. 172, 177 (1985).
Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest has been affected. Pomazi v. Conservation Commission, 220 Conn. 476, 483 (1991); O'Leary v. McGuinness, 140 Conn. 80, 83 (1953).
It is not necessary for one seeking to demonstrate aggrievement to have an actual ownership or a legal interest in the property in question. A court, based upon the facts presented, should focus upon a plaintiff's ultimate goal in determining whether aggrievement has been proven. DiBonaventura v. Zoning Board of Appeals, 24 Conn.App. 369, 376 (1991).
In DiBonaventura, the plaintiff, who was the son of the property owner, sought a certificate of approval from the zoning board of appeals in order to locate a used car dealership on his father's property.
Although the father had consented to the use of the property, no written lease or other instrument had been executed, granting use of the property to Richard DiBonaventura, Jr.
The Appellate Court found that the son's interest, while lacking in legal enforceability, was readily distinguishable from a general interest, such as concern of all members of the community as a whole, and found that he was aggrieved by the board's denial of the certificate. DiBonaventura v. Zoning Board of Appeals, supra, 376.
Here, the plaintiffs, John and Nancy Todice, are the only two members of J.N.T., LLC, and have a right to jointly control the actions of the limited liability company. The periodic transfers of title between the plaintiffs individually, and J.N.T., LLC, like the absence of the formal lease agreement in DiBonaventura, is not sufficient to defeat a claim of aggrievement.
It is found that the plaintiffs, John and Nancy Todice, are aggrieved by the decision of the Shelton Board of Zoning Appeals, which prompted this appeal.
It is further found that J.N.T., LLC, as the owner of record of 171-173 Division Avenue throughout this appeal, is aggrieved by the decision of the Shelton Board of Zoning Appeals.
STANDARD OF REVIEW
When hearing an appeal from the issuance of a cease and desist order, a municipal zoning board of appeals sits in a quasi-judicial capacity. In that capacity, it has the ability to interpret its regulations, and to determine whether they apply in a given situation. Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560-61 (1967). The board conducts a broad de novo review of the decision of the zoning enforcement officer and the action of the zoning enforcement official is entitled to no special deference by the reviewing court. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 88-89 (1993).
The decision of the zoning board of appeals is subject to review by a court only to determine whether the board acted arbitrarily, illegally or unreasonably. Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 514 (1969). The question is whether there is factual support for the board's decision. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988).
Section 8-7 of the General Statutes requires a zoning board of appeals to state the basis for its decision. The statute reads:
Whenever a zoning board of appeals . . . sustains or reverses wholly or partly any order, requirement or decision appealed from, it shall state upon its records the reason for its decision.
Although the Shelton Board of Zoning Appeals did not state its collective reasons for sustaining the cease and desist order, that omission is not fatal. When a zoning board of appeals fails to state the reasons for its actions, a court is required to search the record, to determine whether it discloses reasons to support the board's decision. Zeiky v. Town Planning Zoning Commission, 151 Conn. 265, 268 (1963); Manchester v. Zoning Board of Appeals, 18 Conn.App. 69, 71 (1989).
The role of a trial court is to determine, where applicable, whether the board correctly interpreted its regulations, and applied those regulations to the facts with reasonable discretion. Pascale v. Board of Zoning Appeals, 150 Conn. 113, 117 (1962). A court may not substitute its judgment for that of the zoning authority, so long as the board's decision reflects an honest judgment, reasonably arrived at, based upon all the facts in the record. Willard v. Zoning Board of Appeals, 152 Conn. 247, 249 (1964); Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 548 (1996).
The burden of proving that the board acted improperly is upon the party challenging the action on appeal. Pleasant Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269-70 (1991).
A REVIEW OF THE RECORD FAILS TO DISCLOSE SUPPORT FOR THE DECISION OF THE SHELTON BOARD OF ZONING APPEALS
In this cease and desist order (ROR 4), the ZEO maintains that the absence of an "internal staircase" connecting the second and third floor apartments, renders the plaintiffs' legal two-family dwelling an illegal three-family dwelling unit.
The cease and desist order did not cite any regulation of the City of Shelton in which the term "internal staircase" is used or any provision of the regulations defining the term.
Although the certificate of zoning compliance, number 429, is cited in the cease and desist order, the Shelton ZEO pointed to no language in the certificate of zoning compliance which had not been honored by the plaintiffs.
Nor did the evidence presented to the Board of Zoning Appeals at the hearing reveal any document, drawing, sketch, diagram, plan or other written representation by the plaintiffs which was submitted to the City of Shelton, when the third floor was renovated, which had been violated.
The absence of any mention of an "internal staircase" on the certificate of zoning compliance is glaring, particularly in light of the absence of a controlling ordinance or regulation.
When called upon to interpret a municipal ordinance or zoning regulation, a reviewing court is presented with a question of law and the review is plenary. Campion v. Board of Aldermen, 278 Conn. 500, 508 (2006); Wood v. Zoning Board of Appeals, 258 Conn. 691, 699 (2001).
A zoning ordinance must be interpreted in accordance with the ordinary rules of statutory construction, Schwartz v. Planning Zoning Commission, 208 Conn. 146, 153 (1988), and a court must look to the language employed, in an effort to determine the intent of the promulgators of the ordinance or regulation. Harlow v. Planning Zoning Commission, 194 Conn. 187, 193-94 (1984).
Because zoning ordinances and regulations are in derogation of the common law, they must be strictly construed and cannot be extended by implication. Planning Zoning Commission v. Craft, 12 Conn.App. 90, 96 (1987). A property owner should be able to reasonably ascertain from the regulations how to use his property in compliance with them. Planning Zoning Commission v. Gilbert, 208 Conn. 696, 705 (1988).
On the evidence presented, however, the court is not called upon to construe the provisions of a zoning regulation in which the term "internal staircase" is employed. Instead, the Board of Zoning Appeals invites this court to engraft on to the existing regulations a requirement that two floors of an existing structure must be linked by an internal staircase in order to constitute a single dwelling unit.
It further suggests that the term "internal staircase" be defined as one linking the living areas of the two floors, rather than one linking various floors within the structure. This court must decline the invitation to engage in a legislative function, which is properly the province of the Shelton Planning and Zoning Commission.
It is certainly not unreasonable to construe the phrase "internal staircase" as referring to a staircase within the living area of two floors of a dwelling, rather than applying that term to a staircase whose only function is to link various floors of the building while allowing entry to the living area via a locked door.
However reasonable such an interpretation might be, however, it cannot avail the Shelton Board of Zoning Appeals in the absence of a specific regulation using the phrase "internal staircase."
The defendant, Board of Zoning Appeals, and the Shelton ZEO may believe that the plaintiffs' renovations of the third floor represent an attempt to circumvent the refusal of the Board of Zoning Appeals to grant the area variance necessary for the use of the premises as a three-family dwelling.
While the defendant's skepticism may be warranted, suspicions, hunches and conjecture cannot serve as a substitute for substantial evidence introduced at a hearing and weighed by a land use agency.
The ZEO failed to allege a violation of any specific regulation and the court has discovered none which would enable the Board of Zoning Appeals to sustain the cease and desist order.
The ZEO's claims of "discussions between the parties" are belied by his signature on the certificate of zoning compliance and the inability to point to any plans, specifications or sketches which contain the desired "internal staircase." Furthermore, no "discussions between the parties" can have the effect of creating an ordinance which both defines and mandates an internal staircase.
While the certificate of zoning compliance was specific in its refusal to permit a stove or dishwasher on the third floor, no requirement for an "internal staircase" is contained in the document.
Nor was any evidence introduced to counter the testimony of the second floor tenant concerning the sublease of the third floor. Nothing in the record would justify a finding that the arrangement was a mere "pass-through" designed to provide rental income to the plaintiffs.
CONCLUSION
The appeal of the plaintiffs, John Todice, Nancy Todice, and J.N.T., LLC, is SUSTAINED.