Town of West Hartford v. Rechel

• Decision Date: 10 May 1983
• Citation: 459 A.2d 1015,190 Conn. 114
• Parties: TOWN OF WEST HARTFORD v. Joseph P. RECHEL et al.
• Court: Connecticut Supreme Court

Page 1015

459 A.2d 1015

190 Conn. 114

TOWN OF WEST HARTFORD v.Joseph P. RECHEL et al.

Supreme Court of Connecticut.

May 10, 1983.

Argued Feb. 3, 1983.

Decided May 10, 1983.

John R. Logan, East Hartford, with whom, on the brief, was Dwight O. Schweitzer, Hartford, for appellants(defendants).

Robert P. Volpe, Corp.Counsel, Hartford, for appellee(plaintiff).

Before PETERS, HEALEY, PARSKEY, SHEA and GRILLO, JJ.

PETERS, Associate Justice.

The principal issue in this case is whether a municipality can be estopped from enforcing its zoning regulations because of a longstanding pattern of conduct permitting unauthorized uses of private property.The plaintifftown of West Hartford, acting by its building inspector, Edward A. Dombroskas, sued to enjoin the defendantsJoseph P. Rechel and Shirley T. Rechel from operating two rooming houses in the town.After a court trial, a permanent injunction was issued, from which the defendants have appealed.

The underlying facts found by the trial court in its memorandum of decision are essentially undisputed.The two properties owned by the defendants are located at 55 Highland Street and 739 Prospect Avenue, in an area zoned by the town of West Hartford as an R-10 district, which is a one-family residential district.In such a district, rooming or boarding houses are permitted only as accessory uses, if the owner uses the premises as his own residence and limits the number of roomers to three or less.Rooming houses as main uses, without an owner in residence, are now and have been, since at least 1925, totally forbidden.Even as accessory uses, rooming houses require appropriate town licenses.These zoning regulations, although adopted in their present form in 1968, do not vary materially from regulations first adopted in 1945.Before 1945, rooming houses were permitted as accessory uses without any limit on the number of roomers who might share the houses with their resident owners.

The history of the disputed properties reveals that, prior to 1941, they were used for single family purposes.At some time during the early 1940's, both properties were converted into rooming houses, in which substantial numbers of boarders received room and board, with the owner retaining an apartment on the premises.¹Thereafter, the properties became rooming houses without an owner in residence, and were so operated by the defendants, who bought the house on Highland Street in 1962 and the other, on Prospect Avenue, in 1965.

From 1949 to 1967, the town issued rooming house licenses to the defendants and their predecessors in title.²Despite the receipt of properly submitted applications for subsequent years, the town refused thereafter to take any action to issue further licenses.The building inspector wrote the defendants in 1969 to inform them that their rooming houses, since they rented to more than three roomers, were not allowable uses in the town.The following year, however, town corporation counsel gave a formal opinion that the defendants' properties, because of their history of continuing use as boarding houses, qualified as legal nonconforming uses.³Despite that opinion, the town brought the present lawsuit in 1975.

The trial court, upon reviewing this finding of facts, came to the following conclusions of law.The properties were not, and never had been, operated as legal accessory uses.When first converted to rooming house use, the number of boarders was so disproportionate to the residential uses of the principal occupants that the uses did not qualify as accessory uses.Furthermore, even if the early uses had been accessory in nature, they had thereafter lost their accessory character by abandonment.The defendants, having themselves never resided on the properties and having operated them as businesses for the generation of income from roomers, could no longer rely on the prior uses.After abandonment, a prior legal use is lost and cannot be revived.Blum v. Lisbon Leasing Corporation, 173 Conn 175, 181, 377 A.2d 280(1977).The defendants had therefore failed to prove their special defense of "prior legal nonconforming use."

The trial court further concluded that the defendants could not prevail on their equitable defenses of laches and estoppel.With respect to laches, the court determined that the town had not unreasonably delayed its enforcement of its 1968 ordinances.With respect to estoppel, the court expressed doubt about the availability of such a defense against a municipality and found an absence of "hard evidence" that the defendants had suffered any loss "because of any action of the town."

Finally, the trial court rejected the defendants' argument that the town had so far abandoned its zoning plan in the immediate area of the defendants' properties that enforcement of its regulations against the defendants was arbitrary and capricious.Having viewed the properties and the neighborhood, the court found no evidence either of abandonment of the town plan or of arbitrariness in its enforcement.

In their appeal from the trial court's order permanently enjoining their use of 55 Highland Street and 739 Prospect Avenue as rooming or boarding houses in violation of Article 4 of the town zoning regulations, the defendants rely principally on their arguments of estoppel and laches although they also contest the conclusion that they had not proven their acquisition of a nonconforming use.⁴We shall consider these claims in the reverse order, taking up first the question of legal nonconforming use.

With regard to the legal status of their properties, the defendants now concede that they can prevail only if they can establish that the houses were actually used as accessory rooming houses before 1945.They dispute the trial court's contrary finding by pointing to evidence that the houses were in fact used as rooming houses in 1943 and 1948.This evidence is supported, they claim, by the town's subsequent issuance of rooming house licenses, which creates a presumption that the houses complied with the town's zoning ordinances.

The fallacy in this argument is that it fails to overcome the trial court's finding that the rooming houses were being operated illegally as main uses, rather than legally as accessory uses, in the years at issue.It was not sufficient to establish that the owners then resided in the rooming houses.The defendants have not directly challenged the trial court's factual finding that there was a disproportion between the number of boarders and the resident owners but dispute instead its consequent conclusion that such a disproportion prevented the boarding uses from being "accessory."The defendants argue that such disproportion is irrelevant since it was not until 1945 that the town limited to three the number of roomers who could legally be housed in a residential accessory rooming house.It does not, however, follow that accessory use had no numerical limitation whatsoever before 1945.The trial court was, in our view, entirely within its province in inferring that the concept of accessory use necessarily required an inquiry into the extent to which actual uses were incidental to the underlying permitted residential uses of the property.SeeLawrence v. Zoning Board of Appeals, 158 Conn. 509, 511-13, 264 A.2d 552(1969);Fox v. Zoning Board of Appeals, 146 Conn. 70, 74-75, 147 A.2d 472(1958).We therefore find no error in the trial court's conclusion that the properties, while they became rooming houses, were never operated as accessory uses in conformity with applicable town regulations.

The defendants' remaining arguments with respect to legal nonconforming uses cannot survive, once this first conclusion of the trial court is upheld.Subsequent town licensing is important for the defendants' claims of estoppel but cannot per se convert illegal main uses into legal accessory uses.Given the other facts found by the trial court, the court was entitled to find that any presumption of legality attaching to the issuance of the licenses had been adequately rebutted by the town's evidence of continued illegal uses.Finally, we need not review the defendants' claims that they never intended to abandon any legal uses of their property, since they are unable to prevail on nonabandonment without first establishing as its predicate the prior legality of the uses they seek to preserve.

We turn then to the defendants' claim that the equitable principle of laches makes it improper for the town to enjoin their rooming houses even if these rooming houses are otherwise unauthorized under town regulations.The defendants acknowledge that Bianco v. Darien, 157 Conn. 548, 556, 254 A.2d 898(1969), permitting a town to enforce its zoning ordinances after a thirty-six year lapse, stands in the way of their recovery on this theory.Whether we conclude, as did the trial court, that the town is enforcing its 1968 zoning enactments or, as the defendants maintain, its similar 1924 and 1945 ordinances, we are not prepared, in the circumstances of this case, to overrule our holding in Bianco that "[a] zoning commission 'is not estopped by laches from enforcing its zoning laws.' "Id.;see3 Rathkopf, Law of Zoning and Planning(4th Ed.1982) § 45.05.

A defense based on laches would have us focus on the effect of inaction, of the mere passage of time.See9 McQuillin, Municipal Corporations (3d Rev.Ed.1978) § 27.56.The defendants' final argument, however, focuses on affirmative conduct of the town which, they maintain, was of such a character as now to estop the town from obtaining an equitable remedy against them.

This court has recently restated the law of municipal estoppel.In Zoning Commission v. Lescynski, 188 Conn. 724, 731-32, 453 A.2d 1144(1982), we held that, in special circumstances, a municipality may be estopped from enforcing its zoning regulations.We recognized that estoppel always requires "proof of two essential...