266 NEWTOWN TURNPIKE, LLC v. ZONING BOARD OF APPEALS OF THE TOWN OF WESTON.

2008 Ct. Sup. 2480, 45 CLR 44
No. FST CV 05 4007357 SConnecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
February 8, 2008

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
JOHN R. DOWNEY, JUDGE.

Background
The plaintiff, 266 Newtown Turnpike, LLC, owns title to real property located at 266 Newtown Turnpike, in Weston, CT. The real estate is a 1.46-acre nonconforming parcel. The property is located in a 2-acre residential and farming district. A zoning permit was issued for renovation of a dwelling on the property. The plaintiff claims entitlement to 2 dwelling structures on the property based upon preexisting nonconforming use. One of the dwelling structures was called the “Main House.” The other structure on the property was called the “Second Dwelling.”

During reconstruction/construction activity done pursuant to zoning approval, there were inspections done by the Zoning Enforcement Officer (ZEO). The plaintiff was reminded of the limits of the permits and that the structure should not be demolished. See Defendant’s Brief, 7/10/06, p. 16. The defendant claims that it warned the plaintiff that the permit issued was for renovation (Return of Record (ROR) #15 and #9), not reconstruction. In spite of the warning, the defendant claims that the plaintiff demolished the Second Dwelling, leaving only the overhead garage doors. The plaintiff claims it was necessary due to rotten and decayed wood. The ZEO revoked the zoning permit issued for renovations because it is alleged, that the plaintiff removed so much of the structure as to render it demolished. The plaintiff had proceeded with the re-build without requesting a new or revised permit from the building official or ZEO.

It was claimed by Weston officials that a nonconforming use may not be built if the structure that housed it is destroyed. It should be noted that per Weston regulations, a structure may be renovated or rebuilt, even if it is nonconforming. CT Page 2481

In this case, the plaintiff wanted to preserve the “Second Dwelling,” which the ZEO claimed was a nonconforming use, in a nonconforming structure on a nonconforming lot.

The order of the ZEO was reviewed by the Zoning Board of Appeals (ZBA). In a 3-2 decision, the ZBA upheld the decision of the Weston Code Enforcement Officer acting in his capacity as the Weston ZEO.

Now this matter is before the court as to whether the conduct of the ZBA was lawful.

The court has read the record, the briefs of counsel and has considered the respective arguments made at a hearing on January 29, 2008.

Law
A plaintiff seeking court review of a zoning matter can be made only by one who is aggrieved. See General Statutes § 8-7. The board reviewing a zoning enforcement officer’s decision must conduct de novo review of the appeal. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 88-89
(1993), rev’d on other grounds, 41 Conn.App. 77 (1996).

The Superior Court’s review of a decision of a zoning board of appeals, involves the determination of whether the board’s decision was arrived at fairly, with proper motives or valid reasons. Spero v. Zoning Board of Appeals, 217 Conn. 435, 440 (1991). It is well settled that a court may not substitute its own judgment for that of an administrative agency or to make factual determinations on its own. R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470 (2001). The plaintiff bears the burden of establishing that the board acted illegally, arbitrarily or in abuse of its discretion. Wood v. Zoning Board of Appeals, 258 Conn. 691, 698 (2001).

Aggrievement
The court finds that the plaintiff is aggrieved.

Discussion
Per Weston Zoning Regulations, a nonconforming use, once the structure supporting it is destroyed beyond 50% of its value, may not be rebuilt (ROR #28, WZR §§ 373, 375.1). Under those regulations, a nonconforming structure cannot be rebuilt, per the defendant’s argument, unless its proposed use will be conforming. In this case, the plaintiff claimed not CT Page 2482 only a right to the nonconforming structure, but also a right to the nonconforming use in regard to the “Second Dwelling.”

The plaintiff argues that it has a vested right to the continued use of its nonconforming property, that the defendant abused its discretion and that the defendant is estopped from rescinding the building permit.

The defendant argues that the Town has a right to exercise a reasonable restraint on the revival of a nonconforming use. There is law supporting that conduct regarding the revival of a nonconforming use.

That such rights are vested and may be passed on to others in no way contradicts the recognized goal of eliminating nonconformities as quickly as possible, since that policy must be carried out within the limits of permissible government action.

Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 484 (1979).

Weston Zoning Regulation § 375.1 appears to be a reasonable restraint on the revival of a nonconforming use.

Furthermore, the actions of the ZBA appear also to be legal. The plaintiff has not demonstrated that the ZBA acted arbitrarily, unreasonably or in abuse of its broad discretion.

A full hearing was held on the appeal. Arguments were made and evidence presented. After deliberation and discussion, the decision of the ZEO to revoke the permit was upheld. There were no irregularities in the process and the court cannot overturn the decision as a consequence.

Conclusion
The decision of the ZBA is sustained. Appeal dismissed.

So Ordered. CT Page 2483

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