Lucarelli v. Town of Winchester Zoning Board of Appeals

• Decision Date: 29 January 2020
• Docket Number: LLICV186017987S
• Court: Connecticut Superior Court
• Parties: Colleen E. Lucarelli et al. v. Town of Winchester Zoning Board of Appeals

Colleen E. Lucarelli et al. v. Town of Winchester Zoning Board of Appeals

No. LLICV186017987S

Superior Court of Connecticut, Judicial District of Litchfield, Torrington

January 29, 2020

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Pickard, John W., J.T.R.

MEMORANDUM OF DECISION

Honorable John W. Pickard Judge Trial Referee.

On January 8, 2018, the plaintiffs, John and Colleen Lucarelli applied to the Town of Winchester Zoning Enforcement Officer (ZEO) for a zoning permit to convert the second floor of their building on Highland Lake to habitable area. The ZEO denied that application. The plaintiff appealed that denial to the Town of Winchester Zoning Board of Appeals (ZBA). The ZBA held a hearing and then upheld the decision of the ZEO denying the plaintiffs’ zoning application. This appeal followed. The parties have submitted their briefs and have engaged in oral argument.

I. Aggrievement

The plaintiffs are the applicants and the owners of the property which is the subject of this appeal. They are statutorily aggrieved. C.G.S. § 8-8(a)(1). As such, they may appeal to the Superior Court. C.G.S. § 8-8(b); see, Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308 (1991).

II. Standard of Review

C.G.S. § 8-6 gives the ZBA the power to "hear and decide appeals where it is alleged there is an error in any order, requirement, or decision made by the official charged with the enforcement of this chapter, or any by-law, ordinance or regulation adopted under the provisions of this chapter." The ZBA acts administratively in a quasi-judicial capacity in applying the regulations in an appeal from an order of the zoning enforcement officer. Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 514 (1969).

"[F]ollowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board." Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82 (1993). "[U]pon appeal [from the ZBA’s decision], the trial court reviews the record before the [ZBA] to determine whether it has acted fairly or with proper motives or upon valid reasons." Spero v. Zoning Bd. of Appeals, 217 Conn. 435, 440 (1991). The trial court’s review of "[a]n administrative appeal shall be confined to the record." (Internal citations and quotation marks omitted.) Rider v. Planning & Zoning Commission, 219 Conn. 139, 146 (1991). "The Superior Court’s scope of review [of an appeal to the ZBA] is limited to determining only whether the board’s actions were unreasonable, arbitrary or illegal. Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations. It is well settled that a court in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Citations omitted; internal quotation marks omitted.) R&R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470 (2001).

III. Procedural History and Facts

The property at issue is a small (.18 acres) irregular parcel of land bounding on Highland Lake known as 182 Shore Drive, Winchester, Connecticut ("the property"). Prior to 1992 the property was vacant land. On July 29, 1992 the ZBA granted three variances to the then-owner of the property. These were a 23-ft. side yard set-back variance on the north side, a 22.2-ft. side yard set-back variance on the south side, and a 6-ft. front yard set-back variance "for a seasonal cottage with a maximum footage of 500 sq. ft." The then-owner constructed a two-story structure with a basement.^[1] The ground floor is 500 sq. ft. in size and has been utilized for living area. The basement is used only to house mechanical equipment. The second story attic of roughly 500 sq. ft. has not been used for living space.

Effective October 1, 2017 the Zoning Regulations of the Town of Winchester were rewritten. Section III.C.4.b of the new regulations contains the following language: "A structure which contains a permitted use, but which is otherwise nonconforming, may be expanded, or altered, provided that ... [n]o non-conformities are created or expanded, except that a second floor may be added above an existing first floor, utilizing the same footprint, provided such addition is within the maximum building height of the district." The court has been unable to find a comparable provision in the previous zoning regulations.

On January 8, 2018 the plaintiffs submitted a zoning application to the ZEO to allow them to convert the attic area of the property to living space. This would result in living area of 1, 000 sq. ft. rather than 500 sq. ft. On January 10, 2018 the ZEO denied the plaintiffs’ application on the ground that the variance approved in 1992 had limited the construction to a seasonal cottage of 500 sq. ft. only. On February 7, 2018 the plaintiffs appealed the ZEO’s decision to the ZBA. The reason given by the plaintiffs for the appeal was that Section III.C.4.b of the current zoning regulations allows the addition of a second floor above an existing first floor provided that the addition utilizes the same foot print. Based on this new regulation, the plaintiffs claimed that they should be able to convert the second floor of their building to living area.

On February 27, 2018, the ZBA held a hearing at which the plaintiffs presented their arguments through counsel, and the ZEO presented evidence to support his position. Immediately following, the hearing the ZBA unanimously approved a motion to uphold the decision of the ZEO "based on the clear precedent of the variance granted in 1992 and the necessity of that being amended by a further variance application." This appeal followed.

IV. Discussion

The plaintiffs argue on appeal that their application would not expand the footprint of the building or increase the height of the existing building. There would be no work done outside the building. The plaintiffs concede that they are bound by the condition in the variance that the building be for seasonal use only; they claim that they are not seeking to use the building all year. But, they argue that Section III.C.4.b of the regulations effective October 1, 2017 is applicable to their application and that it authorizes their use of the 500 sq. ft. second floor for living space.

The plaintiffs point out that there are three requirements of Section III.C.4.b: 1) the structure "... contains a permitted use but is otherwise nonconforming." 2) the intended second floor is within the footprint of the first, and 3) the height of the completed structure will not exceed the zone height limitations. The plaintiffs have a solid argument that their building satisfies these three requirements. In fact, the ZBA does not argue otherwise.

Instead the ZBA counters the plaintiffs’ argument by contending that Section...