Raymond v. Zoning Bd. of Appeals of Norwalk

• Decision Date: 15 April 2003
• Docket Number: No. 22023.,22023.
• Citation: 820 A.2d 275,76 Conn.App. 222
• Court: Connecticut Court of Appeals
• Parties: Frank RAYMOND et al. v. ZONING BOARD OF APPEALS OF the CITY OF NORWALK et al.

820 A.2d 275

76 Conn.App. 222

Frank RAYMOND et al. v. ZONING BOARD OF APPEALS OF the CITY OF NORWALK et al.

No. 22023.

Appellate Court of Connecticut.

Argued October 17, 2002.

Decided April 15, 2003.

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FOTI, MIHALAKOS and HEALEY, Js.

Robert L. Genuario, with whom was Robert A. Fuller, for the appellants (defendant Kevin Conroy et al.).

Thomas M. Cassone, with whom, on the brief, were Robert S. Bello and Lawrence M. Lapine, for the appellees (plaintiffs).

Peter J. Strassberger filed a brief for the named defendant.

HEALEY, J.

This zoning appeal arises out of four consolidated zoning appeals concerning a restaurant in Norwalk. In each of the four cases, the parties are the same. The defendants Kevin Conroy, Steven Cook and R.S.R., LLC,¹ are the owners of the restaurant and appeal from the trial court's reversal of certain decisions of the defendant zoning board of appeals of the city of Norwalk (board). The plaintiffs² are the owners of abutting real property. The restaurant is a permitted use in what is known as the business 3 zone. In a broad fashion, the main issues in three of the cases relate to the legality of a retractable awning and windscreen (temporary enclosure) that enclosed an outdoor dining area on a preexisting, nonconforming deck³ attached to the rear of the restaurant. Also involved is the validity of a variance sought for a subsequent frame and glass enclosure (permanent enclosure) of the deck. The deck on which the dining area is located is entirely within the building footprint and is nonconforming only as to the rear setback line of the property. We shall refer to the three cases that concern the deck as the first case, second case and third case. The fourth case concerns a separate issue regarding parking on the street side of the restaurant, specifically, Rowayton Avenue.

A brief procedural review of each of the four cases will facilitate our discussion. In the first case, the defendants applied for zoning approval of the temporary enclosure,⁴ although they claimed that it did not require a variance because it did not further extend the nonconformity as to the rear setback line. The plaintiffs objected to that change. In 1998, the zoning enforcement officer (officer) denied the application for zoning approval, and issued a cease and desist order requiring the removal of the temporary enclosure. The defendants appealed to the board from that action. The board sustained the appeal on the ground that the ordinance involved, § 118-800(D)(1)⁵ of the Norwalk zoning regulations, was ambiguous and, therefore, that the defendants should receive the benefit of that ambiguity. The plaintiffs appealed to the court, claiming that the temporary enclosure would be an impermissible expansion of a nonconforming structure. The court held for the plaintiffs and sustained the appeal in an analysis we will discuss.⁶

The second case is essentially the same as the first case except that the second case relates to the board's reversal of the officer's 1998 denial of the defendants' application for a variance for the construction of the temporary enclosure. As we will set out, the court reversed the board's decision, sustaining the plaintiffs' appeal on the same reasoning and analysis used to resolve the first case.

The third case concerns the plaintiffs' appeal from the board's decision to grant the defendants' application for a variance to construct a permanent enclosure for the dining area on the deck. Apparently because the claims made by the plaintiffs in the third case were virtually identical⁷ to those raised in the second case, the court addressed them together and reached the same result as it did in the second case, specifically, that the permanent enclosure constituted an impermissible expansion of the nonconforming deck.

The fourth case does not involve the deck, but instead arises out of a 1998 cease and desist order issued by the officer to the defendants concerning certain diagonal parking spaces in the front of the restaurant. The dispute involves the claimed transformation of three parallel parking spaces into eight diagonal parking spaces that were allegedly in violation of § 118-1220(J) of the zoning regulations. The defendants appealed to the board from the order, invoking the preexisting, nonconforming use doctrine. The board sustained the appeal. The plaintiffs then appealed to the court, which reversed the board's decision and held that the increase in parking spaces was an illegal expansion in the preexisting nonconformity and that the failure to have appropriate plantings frustrated the intent of the zoning regulations. It also concluded that the new diagonal spaces violated state law.

On appeal to this court, the defendants raise the following issues: (1) whether under the zoning regulations, as interpreted by the board, a property owner can expand vertically a building or structure that is nonconforming as to its location over the setback lines if the construction does not go beyond the existing building footprint; (2) whether the court improperly substituted its opinion for the decision of the board and incorrectly concluded that the enclosure of the deck was an illegal expansion; (3) whether the court should have considered the defense, as advanced by the defendants, that a 1996 settlement agreement between the parties, which resulted in the withdrawal of prior litigation, bars the plaintiffs' administrative appeals because they are inconsistent with the terms of that settlement agreement; (4) whether General Statutes § 8-13a⁸ applies and bars the plaintiffs' appeal; and (5) whether the board could determine from the evidence before it that the parking spaces in front of the building were a preexisting nonconforming use and that the court improperly substituted its opinion for the board's conclusion on that issue. Because we find in favor of the defendants and determine that under the facts and circumstances, the court improperly concluded that they could not expand their building or structure vertically, we reverse that portion of the judgment and need not address the claims pertaining to the settlement agreement and § 8-13a. We also conclude that the court properly determined the parking issue and affirm that portion of the judgment.

I

We take up initially the issue⁹ of whether a property owner, under the zoning regulations as interpreted by the board, is allowed to expand vertically a building or structure that is nonconforming as to its location over the setback line if the vertical¹⁰ expansion does not go beyond the building footprint. The major thrust of the defendants' claim is that under the zoning ordinance, the board properly could have determined that placing the temporary and permanent enclosure¹¹ over the existing deck was not, as the plaintiffs claim, an illegal extension of a nonconforming structure.

As a preliminary matter, we set forth the standard of review. "Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts.... In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its decision will not be disturbed unless it is found to be unreasonable, arbitrary or illegal.... [U]pon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons.... We, in turn, review the action of the trial court." (Citations omitted; internal quotation marks omitted.) Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991). "The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision [in this case, the plaintiffs]." (Internal quotation marks omitted.) Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269-70, 588 A.2d 1372 (1991); see also Doyen v. Zoning Board of Appeals, 67 Conn. App. 597, 603, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002). "Courts are not to substitute their judgment for that of the board...." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995); Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980); Hoffer v. Zoning Board of Appeals, 64 Conn.App. 39, 41, 779 A.2d 214 (2001).

Because the court, in interpreting the regulations, made conclusions of law in its memorandum of decision, our review is plenary. Ammirata v. Zoning Board of Appeals, 65 Conn.App. 606, 610, 782 A.2d 1285, cert. granted on other grounds, 258 Conn. 938, 786 A.2d 425 (2001); Fleet National Bank v. Zoning Board of Appeals, 54 Conn.App. 135, 139, 734 A.2d 592, cert. denied, 250 Conn. 930, 738 A.2d 656 (1999). "[W]e [therefore] must decide whether the conclusions are legally and logically correct and supported by the facts in the record." Fleet National Bank v. Zoning Board of Appeals, supra, at 139, 734 A.2d 592; see also Doyen v. Zoning Board of Appeals, supra, 67 Conn.App. 604, 789 A.2d 478.

The four cases before us were consolidated into a single appeal that was the subject of a public hearing before the board on June 4, 1998. After that hearing, the board passed the following two motions. The first motion encompassed the issues in the first, second and third cases¹² and was as follows:

"[Acting chairwoman Anne] Greismer moved that the appeal be sustained on the basis that a regulation, specifically § 118-800(D)(1), is sufficiently ambiguous that the interpretation could be realistically decided in favor...