No. CV 09-4045303-S
June 11, 2010
MEMORANDUM OF DECISION
This is an appeal from a decision of the defendant, Hartford Zoning Board of Appeals, dated June 16, 2009, denying an appeal by the plaintiff, J P Group, LLC, from a cease and desist order ("Order") of the Hartford Zoning Board of Appeals ("Board") dated April 9, 2009 applicable to premises known as 172-174 Beaver Street, Hartford.
The plaintiff J P Group, LLC is found to be the owner of the premises and therefore statutorily aggrieved based on written and oral evidence introduced at the court hearing on May 21, 2010.
The Order noted that work on the porch and landing leading to the third floor had been conducted without historic district or zoning permits and the work was "intensifying the use of the property without proper permits . The Order drew attention to sections 68, 824 and 163(h) of the Hartford Zoning Regulations as well as "Zoning Regulation adopted December 6, 2005 as amended through April 22, 2008 . . ." and section 28-219(a), of the Historical Preservation Ordinance adopted May 23, 2005.
However, the plaintiff, in its appeal and argument treated the decision of the Board as primarily ruling that the main building on the premises was confined to two-family use while the plaintiff maintained that this building lawfully permitted three-family use, as an established non-conforming use.
It is true that the decision of the Board dated June 16, 2009 rendered after a hearing on that date stated that the building was limited to two-family use but its actual ruling was to uphold the cease and desist order based on the failure to obtain proper work permits.
As to that order, plaintiff made no attempt to offer any evidence or to deny the applicability or validity of the regulations cited above regarding the zoning and historic district permits or the failure to obtain such permits and the Boards narrow ruling on this primary thrust of the Order is unchallenged. Accordingly, this would seem to dispose of this Appeal, since the work permits were required whether the structure permitted two or three families.
It is true that the Order brought to the attention of the plaintiff § 824 of the zoning regulations "use of 3-family home not permitted in the R-5 district." The parties both briefed the issue of the claimed non-conforming use as a three family structure.
The joined argument as to the validity of the claimed nonconforming use was buttressed by the plaintiff by reference to telephone directories in 1967 and 1968, and assessment records for 1972 tending to show that there were three tenants of the structure during those periods. There was also an affidavit from a prior owner Brian R. O'Donnell dated December 1, 2005 clarifying that the structure had housed three families during this period and an affidavit by Edward C. Gimason, dated June 1, 2009 as well as other documents.
The city relied on zoning regulation for the R-5 zone limiting use of the building to two families, the absence of any certificate of occupancy, and an application for a variance on April 21, 1995 by Brian O'Donnell, a previous owner, specifically requesting a change from a two-family designation to three-family which application was denied on May 2, 1995.
At the court hearing on May 21, 2010 the defendant board relied on the validity of its cease and desist order without reference to the two-family/three-family controversy and that position seems well taken.
Since there was no evidence to challenge the basic validity of the Order, the Appeal is dismissed.