Opinion
No. CV07-4028713S
July 11, 2008
MEMORANDUM OF DECISION
On March 19, 2008, the parties presented evidence in a court-side trial regarding the proper use of the subject premises, 209 South Orchard Street, Wallingford, Connecticut, which is owned by the defendant, Calogero Marino. The plaintiff, the Wallingford Planning and Zoning Commission, through this action, seeks to permanently enjoin the defendant from using the subject property as a two-family residence. The defendant argues that the plaintiff should be estopped from enforcing the zoning regulations of Wallingford which would require that the residence be used as a single-family dwelling. For reasons more fully articulated in this decision, the court grants the plaintiff's request for an injunction and orders the defendant to cease using the residence as a two-family property unless he first obtains a proper variance.
Although originally scheduled as a hearing on an Application for a Temporary Injunction, both parties agreed to submit the evidence in support of and opposition to an Application for a Permanent Injunction.
The issues presented in this action do not address the propriety or impropriety of the previous denials of applications for a variance, and the court makes no determination about this. Nor does the court make any ruling regarding whether a variance should or should not be granted to permit the defendant to use the subject premises as a two-family dwelling.
FACTS
Two witnesses testified during the trial, the Town Planner for the Plaintiff, and the defendant. The facts in this case, although somewhat convoluted, are largely uncontested. From the evidence introduced during the court trial of this matter, the court finds the following facts.
1. 209 South Orchard Street, Wallingford, Connecticut, the subject premises, is located in a single-family residential district, R-6 zone.
2. According to a field card, which was maintained by the Town Assessor's Office in 1981, the subject property was a one-family residence.
3. According to the current field card, which is maintained by the Town Assessor's Office, the subject property is a two-family residence.
4. The defendant acquired title to the subject property on January 28, 1991 through a quitclaim deed from his brother, Louis Marino.
5. Louis Marino purchased the subject premises on February 1, 1983 from Elizabeth Kiss for $50,000.
6. At some time prior to October 18, 1982, the subject premises was divided into a two-family house without proper building permits and without a variance.
7. On October 18, 1982, Elizabeth Kiss applied to the Zoning Board of Appeals of Wallingford for a variance requesting that she be allowed to convert the one-family dwelling to a two-family dwelling.
8. Ms. Kiss claimed that she was unaware that the property conversion did not conform to the zoning regulations; and she represented that she was applying for a variance because the property was under contract to sell as a two-family dwelling.
9. The Zoning Board denied Ms. Kiss' request for a variance.
10. On February 18, 1986, after he purchased the property from Ms. Kiss, Louis Marino applied to the Zoning Board requesting a variance to convert the subject premises from a one-family dwelling to a two-family dwelling.
11. The defendant, Carolego Marino, appeared and testified at the February 1986 hearing.
12. The Zoning Board denied Louis Marino's request for a variance.
13. On January 17, 1994, the defendant applied to the Zoning Board for a variance to permit the subject premises to be used as a two-family rather than a single-family dwelling.
14. During the January 1994 hearing, the defendant acknowledged that he was aware that the subject premises was zoned as a single-family residence; and that he was aware that previous applications for a variance had been denied.
15. The Zoning Board denied the defendant's application for a variance.
16. In 1998, following a small fire on the premises, the defendant sought a building permit to do remodeling which cost him approximately $25,000 to $30,000.
17. An inspector from the town inspected the subject premises in 1998.
18. Subsequent to 1998, the defendant received Certificates of Compliance from the Town on numerous occasions.
19. On March 3, 2000, the Assistant Town Planner sent the defendant a letter indicating that the subject property, which is located in a single-family residential district, is legally a one-family dwelling.
20. On April 5, 2000, the Assistant Town Planner sent a letter to the defendant requesting that the Planner be allowed to inspect the premises.
LEGAL DISCUSSION
The plaintiff brings this action seeking an order that the defendant cease and desist using the premises at 209 South Orchard Street as a two-family or other multi-family dwelling; that the defendant remove the kitchen appliances from the basement apartment and cap and remove plumbing and electrical utilities from the basement apartment; and that the defendant remove the washer and dryer utility hook-ups from two of the three areas in the premises. The defendant does not contest that the zoning regulations apply to his property, but he asserts that the plaintiff should be estopped from enforcing its regulations due to the actions and statements of its officials.
There is no dispute that although 209 South Orchard Street, Wallingford, Connecticut is zoned as a single-family residence it has been used as a two-family or multi-family dwelling since it was converted sometime before 1981. Therefore, the only issue for this court to resolve is whether it is appropriate to invoke the doctrine of municipal estoppel to prevent the plaintiff from enforcing its zoning regulations.
". . . [I]n order to invoke municipal estoppel, the aggrieved party must establish that: (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief; (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents." (Internal quotation marks omitted.) Cortese v. Planning Zoning Board, 274 Conn. 411, 418, 876 A.2d 540 (2005). The party seeking to invoke municipal estoppel shoulders a substantial burden of proof due to the caution with which Connecticut courts apply the doctrine. Id., 418-19.
In Cortese the Court not only reiterated the well-established requisite elements for a valid municipal estoppel claim, but also issued a caution to applying the doctrine over broadly. "The contours of the application of the doctrine of municipal estoppel to zoning regulations are well established in our jurisprudence. [I]n special circumstances, a municipality may be estopped from enforcing its zoning regulations . . . In municipal zoning cases, however, 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 . . . Moreover, it is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge . . ." Id. at 418.
I. Element One: An Authorized Agent Did or Said Something
In order to apply the municipal estoppel doctrine, the evidence must establish that an authorized agent of the municipality did or said something intended to induce a party to believe that certain facts existed and to act on that belief. The defendant argues that because the house was shown on Town records as a Two-Family and because the house was taxed as a two-family house, these facts constitute "acts or statements" of authorized agents of the town. Further, the defendant argues that by issuing a Building Permit and several Certificates of Compliance following a fire, agents of the town certified that the building was in conformity with town regulations. The plaintiff does not directly respond to these assertions, but merely states that "no authorized agent of the Plaintiff did or said anything to induce the Defendant to believe that at the time he acquired title to the Premises, the Premises were a two-family dwelling." Trial Memorandum of Plaintiffs, dated April 24, 2008, p. 9.
Although the defendant testified that the property is taxed as a two-family dwelling, neither party submitted any tax records into evidence.
There is no dispute that at least one municipal document lists the subject premises as two-family, while others list it as one-family. According to the defendant's testimony, the property was taxed as a two-family dwelling. But, there is no dispute that in 2000, the Assistant Town Planner alerted the defendant to the fact that the Town considered the property to be a "legal one-family" dwelling. Therefore, the question for this court is whether inconsistent statements and actions, on the part of municipality employees and agents, are sufficient to support a factual finding that an agent of a municipality did or said something to induce the plaintiff to believe that the property was deemed a two-family dwelling by the Town of Wallingford.
Considering the evidence in the light most favorable to the defendant, the court concludes that the Town may have made contradictory statements regarding the status of the subject premises. It is not clear, as a matter of law, that contradictory statements of municipal employees are sufficient to meet the defendant's "substantial burden" of proving that an agent of the municipality said or did something to make the defendant believe that the property was a legal two-family dwelling.
Even if contradictory statements were sufficient to meet the burden of proof for the first element, from the evidence it appears that the plaintiff's most recent statement regarding the status of the subject premises was in 2000, when the Assistant Town Planner indicated that the property was a legal one-family dwelling. This statement is clear and unambiguous. Therefore, this court concludes that the defendant has failed to prove the first element of the municipal estoppel doctrine — that an agent of the municipality misled him as to the true status of the subject premises.
The court notes that the defendant submitted into evidence copies of various Certificates of Compliance dated in 2004 and 2007. These Certificates only state that the subject premises was "in substantial compliance with the provisions of the Housing and Commercial Code of the Town of Wallingford." The Town has not alleged in this action that the subject premises was out of compliance with any Town Regulations except the Zoning Regulations. The certificates do not indicate compliance with the Zoning Regulations of the Town, which are in issue in this case.
Even if this court had found that the first required element of the municipal estoppel doctrine was established by the defendant, it would still grant the plaintiff's application because the second element is not proven.
II. Element Two: The Aggrieved Party Must Prove that He Did Not Know the Truth Even Though He Exercised Due Diligence to Find It
The second element of municipal estoppel requires proof that the defendant lacked knowledge of the truth and exercised due diligence in determining the truth. The plaintiff claims, convincingly, that the defendant cannot in good faith state that he believed the premises was a legal two-family because the defendant knew of the previous applications for variances and because the defendant himself applied for a variance. The plaintiff cites the defendant's own testimony during the zoning hearings in which he testified as follows.
Defendant: "You have to come to the Board to make it a two-family. It's a matter of the house being in a two-family neighborhood. That's why I'm here . . ." Plaintiff's Exhibit 4, pp. 3-4.
And, in response to a question of whether the defendant was aware that the house was a one-family when he obtained it, he responded:
Defendant: "Of course, I know the first time, it got denied for parking. I put the driveway. The second time they got denied for financial problems. Now the financial problem is out of the way. I just want to take care of it and make it like the rest of the street." Plaintiff's Exhibit 4, p. 4.
The defendant counters that he acted reasonably in attempting to find the truth about the property. And, he further argues that it was reasonable for him to rely on the fact that the property was taxed as a two-family property, and that he obtained a building permit and certificates of compliance from the city.
The second required element is not met. Notwithstanding his argument about relying on certain facts and certain history, the defendant admits that he was aware of the two-family issue and, in fact, continued to attempt to get authorization from the Town to use the property as a two-family, as the previous property owners had done. This is not a case in which the defendant did not know the truth; did not know that the property was legally a one-family property being illegally used as a two-family property. This is a case in which the defendant proved that he did know that the property was a one-family property, even though it had been illegally used as a two-family house for over twenty years. Therefore, the defendant fails to prove the second element of municipal estoppel.
Even if the court deemed that the defendant's proof was sufficient to meet the second prong of the municipal estoppel doctrine, it would still grant the application because the third required element is not satisfied.
III. Element Three: Proof that the Aggrieved Party Changed His Position in Reliance on Misrepresentation(s)
The third element that an aggrieved party must prove to invoke the doctrine of municipal estoppel is that the defendant changed his position based upon the representations of the municipal agents. The defendant submitted no evidence on this issue. According to evidence, the defendant acquired the property to help his brother, who was no longer able to afford to maintain it. "He testified to taking the property over because his brother could not afford to keep it up as a full time student. He continued to push the issue of a variance and unsuccessfully tried again in 1994." Trial Brief of Defendant, dated April 10, 2008, pp. 2-3. There is no evidence that the defendant acquired the property because he believed it was a two-family property. There is no evidence that the defendant changed his position in reliance on the representations of agents of the Town. Rather the evidence establishes that he acquired the property, which he knew was legally a one-family dwelling, to help his brother. The evidence also establishes that the defendant's brother knew that the residence was legally a one-family dwelling. Accordingly, the defendant fails to establish the third required element of the municipal estoppel doctrine.
IV. Element Four: The Aggrieved Party Would Suffer Substantial Loss
The last element which an aggrieved party must establish is that he would be subjected to substantial loss if the municipality were permitted to act in the manner it requests. The substantial loss element of municipal estoppel requires an aggrieved party to show that enforcement of the town's regulations "would, in light of all the circumstances, be highly inequitable or oppressive." Cortese v Planning and Zoning Board, supra, 274 Conn. 419. Although the Supreme Court has not determined a specific level of economic loss which would qualify as substantial, it has suggested that it would be sufficient for an aggrieved party to establish that it will have made "significant economic investments in improvements to property that would have been rendered useless or had to be destroyed if municipal estoppel had not been invoked." Id., 420.
Although the defendant argued that he expended a "great deal of money in reliance upon" the issuance of the building permit to rebuild the house after the fire, he submitted no evidence regarding the precise amount of money expended; or regarding whether that amount would have been different had he remodeled the house, in conformity with the zoning requirements that it be a single-family residence. The defendant merely testified that he invested approximately $25,000 to $30,000 to remodel the property following the fire. The plaintiff correctly states that "[t]he record and evidence failed to show any loss, let alone a substantial loss, to the Defendant if the Plaintiff is allowed to enforce its zoning regulations with respect to the Premises." Trial Memorandum of Plaintiffs, dated April 24, 2008, p. 10.
Even if this court accepts the defendant's representation that he invested substantial sums of money in the remodel, "[w]ithout evidence of a substantial loss, as a result of the defendant's action, not just a substantial investment on the part of the [defendant], it [is] improper for the trial court to invoke the doctrine of municipal estoppel." Cortese, supra, 274 Conn. 421. There is no evidence that the defendant suffered substantial loss as a result of the actions of the plaintiff. Nor is there evidence that the defendant will suffer substantial loss if the plaintiff is allowed to enforce its zoning regulations. Therefore, the defendant has failed to meet his burden with regard to the fourth element of the doctrine of municipal estoppel.
V. Conclusion
Before concluding this court notes that the facts in this matter are not fully supportive of all of the actions of the plaintiff. The record clearly establishes that agents of the Town have taken inconsistent and contradictory positions regarding the subject premises. It is equally clear that the plaintiff has only recently taken an active interest in enforcing its zoning regulations against the subject premises, even though it sent letters of non-compliance to the defendant in 2000. All of this suggests the possibility of impropriety, selective enforcement and potential unfairness. While the facts and the circumstances in this case do give the court pause, there is insufficient evidence to allow this court to invoke the doctrine of municipal estoppel. For all the foregoing reasons, this court grants the plaintiff's application for a permanent injunction and orders the defendant to cease using the premises as a two-family residence unless and until he receives proper authorization from the city to do so. Similarly, the court directs to city to render consistent all of its official representations regarding the subject premises.