Zachs v. Zoning Bd. of Appeals of Town of Avon

• Decision Date: 16 April 1991
• Docket Number: No. 14170,14170
• Citation: Zachs v. Zoning Bd. of Appeals of Town of Avon, 589 A.2d 351, 218 Conn. 324 (Conn. 1991)
• Court: Connecticut Supreme Court
• Parties: Henry ZACHS v. ZONING BOARD OF APPEALS OF the TOWN OF AVON.

Page 351

589 A.2d 351

218 Conn. 324

Henry ZACHS v.ZONING BOARD OF APPEALS OF the TOWN OF AVON.

No. 14170.

Supreme Court of Connecticut.

Argued Jan. 11, 1991.

Decided April 16, 1991.

Michael A. Zizka, with whom were Robert C. Hunt, Jr., and, on the brief, Mary A. Glassman, Hartford, for the appellant(defendant).

Lewis K. Wise, Hartford, for the appellee(plaintiff).

Before SHEA, CALLAHAN, COVELLO, FRANCIS X. HENNESSY and MENT, JJ.

SHEA, Justice.

In this appeal from a decision of the defendant, the zoning board of appeals for the town of Avon, which had upheld a cease and desist order issued by its assistant zoning enforcement officer, the trial court rendered judgment for the plaintiff, Henry Zachs.The board has appealed, claiming that the court erroneously substituted its judgment for that of the board on factual issues concerning a radio communications tower situated on a ridge of Talcott mountain in Avon, which is being used by Zachs for commercial purposes.We affirm the judgment.

It is undisputed that the tower presently maintained by Zachs was erected approximately in the middle of the 1950-60 decade.Prior to 1957 the Avon zoning regulations provided that a "radio broadcasting station" was a permitted use in a "residential and agricultural zone," in which the property was situated.The tower was erected by James Work, an electrician, at approximately the time his residence on the same property was constructed.Work initially may have used the tower for communications relating to his electrical business.¹

Work also leased space on the tower to allow the installation of separate antennae by others wanting access to a private radio communications system.At the hearing Zachs claimed that two of these lessees had commenced using the tower for the purpose of a two way radio system prior to an amendment of the zoning ordinance in 1957 to require a special permit for a radio broadcasting site.Zachs acquired the tower leasing business from Work about 1970 and later bought the property, including the tower and the residence.²Since then, additional users have leased space on the tower and installed their separate antennae and appurtenant equipment, which is housed in the garage.Currently there are eleven antennae on the tower.

The most recent change with respect to Zachs' property was the installation of an emergency generator to provide electricity in the event that the regular electric service fails.A complaint from a neighbor about the noise from this generator apparently precipitated the investigation that resulted in the cease and desist order.

This dispute arose when Donald Griswold, the assistant zoning enforcement officer for the board, on January 5, 1989, notified Zachs by mail that he was "in violation of expanding the nonconforming use of the transmission tower" on his property and had also "installed and hooked up the generator and electrical wiring and panels without a permit."The letter stated that "[t]he original tower and equipment was to service the owner and two other people" and that "[n]othing beyond that had ever been permitted or approved for the commercial type of operation you are now using it for."Zachs was "ordered to cease the use of the generator and restore the nonconforming tower and equipment back to its original use, namely an accessory use to the residential dwelling that Mr. Works [sic] had."

Zachs appealed from the cease and desist order to the board, which affirmed the order, declaring only that Griswold "did not error [sic] in issuing the cease and desist order."In sustaining Zachs' appeal from this ruling, the trial court concluded that: (1) Zachs, as the owner of a one-half interest in the property, ³ was aggrieved by the decision of the board; (2) the tower enjoyed the status of a nonconforming use; (3) such use had not been "extended or expanded," as prohibited by the Avon zoning regulations; and (4) the installation or use of the generator to provide electricity when a power failure occurs did not constitute a change in the use of the tower or the land.In appealing from that judgment, the board claims that the court substituted its own factual determinations for those of the board with respect to both whether a nonconforming use of the premises existed and whether any such use had been expanded.

I

We conclude that the trial court should not have addressed the issue of the existence of a nonconforming use of the premises, because the only issue before the board, as indicated by the terms of the cease and desist order, was whether Zachs was "expanding the nonconforming use of the transmission tower on the property."This order did not challenge the existence of the "original tower and equipment ... to service the owner and two other people" as a nonconforming use, but assumed that the installation had that status and charged that its use had been expanded in violation of the zoning ordinance.During the public hearing held by the board, reference was made to a letter written by the town attorney to Griswold cautioning him about his characterization of the transmission tower as a "nonconforming use" in the cease and desist order.In a record of a colloquy between two board members at the hearing, it was indicated that, because the issue of nonconforming status was under consideration by the town attorney, that issue "would be one we would not decide at our meeting tonight."The remarks of the various board members as contained in the minutes of the meeting at which the cease and desist order was upheld indicate that the only issue decided was whether the assumed nonconforming use had been expanded.

We agree with Zachs that "fundamental principles of due process" would be violated if we were to uphold the cease and desist order, as the board now urges, on the ground that Zachs had failed at the hearing to prove that the tower was a nonconforming use, when the terms of the order and the members of the board assumed its existence without challenge.Because the issue of nonconforming status was not properly before the board and was not considered when its decision was rendered, that issue should not have been addressed by the trial court in deciding Zachs' appeal.Accordingly, the findings made by the court regarding the existence of a nonconforming use must be disregarded as being outside the scope of the appeal.We need not, therefore, consider further the board's claim that those findings trespassed upon its fact-finding prerogative.

II

The claim that the trial court disregarded the board's findings with respect to whether Zachs had expanded the nonconforming use that the board assumed to have existed prior to the 1957amendment of the zoning regulations is somewhat misguided.The board articulated no factual findings in making its decision but simply "upheld" the action of the zoning enforcement officer, stating as a "reason" that it had "determined that the zoning enforcement officer did not error [sic] in issuing the cease and desist order."The minutes of the board meeting at which the vote was taken, however, disclose that the majority of the board members voted to sustain the order on the ground that the use existing in 1957 had been expanded since that date.Thus the board may be deemed to have made such a finding implicitly.The remaining issue on appeal, therefore, is whether that finding is supported by substantial evidence.Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 541, 525 A.2d 940(1987).

The cease and desist order stated that "[t]he original tower and equipment was to service the owner and two other people."At the public hearing, these users were identified as James Work, the owner, who resided in the house adjacent to the tower, and two business entities, Mercer and Dunbar and E.B. McGurk, which leased space on the tower for placement of their separate antennae.

Except for the recent installation of the generator, which is discussed in Part III of this opinion, the only evidence that the nonconforming use of the tower had been "extended or expanded" in violation of the zoning regulations ⁴ was that at the time of the hearing on April 27, 1989, ⁵ the number of persons who maintained antennae on the tower had increased to eleven, fourteen separate electric meters had been installed on the exterior of the garage, in which various transmission equipment is housed, and the number of transmitters in the garage had increased to thirteen.The tower itself had not been altered since its erection except for the number and placement of antennae thereon.An adjoining property owner testified at the hearing that servicemen currently visited the property much more frequently than in 1958, when he had first lived in that area.

The trial court concluded that this evidence was inadequate to support a finding that the nonconforming use of the tower had been "extended or expanded," as the board had implicitly found, but proved only a lawful intensification of such use.The board argues on appeal that whether the use had been expanded or intensified presented a factual issue within its prerogative as the trier of facts to decide.The sufficiency of the evidence to support a finding, however, clearly presents a question of law.Practice Book§ 4061;General...