112 WASHINGTON v. NORWALK ZBA, No. FST CV 05-4003643 S (Mar. 29, 2007)


2007 Ct. Sup. 4118, 43 CLR 197
No. FST CV 05-4003643 SConnecticut Superior Court Judicial District of Fairfield at Bridgeport
March 29, 2007

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Memorandum of Decision

Pursuant to General Statutes § 8-8, the plaintiffs appeal from a February 3, 2005 decision of the Zoning Board of Appeals (the “Board”) of the City of Norwalk. That decision denied the plaintiff’s appeal to the Board from decisions of the Deputy Zoning Enforcement Officer of the City of Norwalk. The decisions of the Deputy Zoning Enforcement Officer related to the operation of a tavern located on the first floor and in the basement of premises located at 112 Washington Street in South Norwalk. The Deputy Zoning Enforcement Officer determined that the premises were in violation of the zoning regulations because of certain interior improvements (a disc jockey booth) on the basement level of the premises and the playing of live and recorded music on both levels of the tavern and issued a cease and desist order.

The record establishes the following facts: Plaintiff, 112 Washington Street, LLC (“112 Washington”), is the owner of commercial property located at 112 Washington Street in South Norwalk. Plaintiff, SoNo Entertainment Group, LLC (“SoNo”), former owner of the tavern, is now merely the owner of bar equipment located on the first floor and in the basement of 112 Washington Street. A third party, Lluvia Company, LLC, which is not a party to the appeal, leases the first floor and basement from 112 Washington and presently operates the tavern on the subject premises.

Prior to 1998 the premises had been devoted to retail use. In early 1998 the then owner of the premises applied to the Norwalk Zoning Commission for coastal site plan approval to convert the premises for use as a tavern. On April 15, 1998, in response to inquires from the Commission, the attorney for the applicant states that “entertainment is to be provided by television, stereo music and live subdued jazz.” On April 22, 1998 coastal site plan approval granted by the Commission to convert the premises from retail use to a tavern.

CT Page 4119 The tavern became a legally non-conforming use in 1999 when amendments to § 118-501B(1)(e) of the Norwalk Zoning Regulations were adopted removing such establishments from the list of uses permitted in the zone. In 2004 physical conditions made it necessary for 112 Washington to repair the street level facade of the building. Plans were filed with the Building Department of Norwalk detailing the proposed repair and for interior alterations within the tavern. Following approval of the plans 112 Washington completed the repairs and alterations and requested that a certificate of occupancy be issued for the altered premises.

All municipal officials approved the issuance of the certificate of occupancy with the exception of the zoning office which objected to the fact that the tavern played live music and also employed a disc jockey to play music. On December 6, 2004 the Deputy Zoning Enforcement Officer issued a cease and desist order based on his claim that the playing of live music on the property was illegal and issued an order revoking the temporary certificate of occupancy previously issued to 112 Washington. The order claimed that the playing of music constituted violations of Sections 118-501A, B, 118-1110 and 118-1420D, E and G of the Building Zone Regulations of the City of Norwalk (the “Regulations”).

On December 20, 2004 the plaintiffs, acting pursuant to General Statutes § 8-6(a)(1),[1] appealed the decisions of the Deputy Zoning Enforcement Officer to the Board. The Board held a public hearing on the plaintiffs’ appeal was held on February 3, 2005. After hearing the evidence, the Board voted unanimously to uphold all decisions of the Deputy Zoning Enforcement Officer.

Following publication of notice of the Board’s decision the plaintiffs brought this appeal claiming that the Board acted illegally, arbitrarily and in abuse of its discretion. In the appeal and in various briefs the plaintiffs have also claimed prejudice on the part of the Board and alleged selective enforcement, denial of equal protection of the law and municipal estopple.[2]

The court conducted a hearing on December 20, 2006, at which time Michael Fazio, the managing member of both 112 Washington and SoNo’s testified as to 112 Washington’s ownership of the property and SoNo’s ownership of the bar equipment. The court found that 112 Washington was both classically and statutory aggrieved by the decision of the Board, but that SoNo had failed to establish aggrievement. The parties presented oral argument and agreed to submit briefs no later than February 8, 2007.

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An appeal from a decision by a zoning board of appeals is statutory in nature and the standard of review by the Superior Court is well established. The Supreme Court has succinctly stated the standards applicable to an appeal such as this one. “Following 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 appeal 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. 435, 440, 586 A.2d 690 (1991). See also New London v. Zoning Board of Appeals, 29 Conn.App. 402, 405, cert. Denied, 224 Conn. 922 (1992).

The Superior Court’s scope of review is limited to determining only whether the board’s actions were unreasonable, arbitrary or illegal R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470
(2001). “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.” (Internal quotation marks omitted.) R R Pool Patio, Id. “Moreover, the plaintiffs bear the burden of establishing that the board acted improperly.” Wood v. Zoning Board of Appeals, 258 Conn. 691, 698 (2001).

In Osborne v. Zoning Board of Appeals, 41 Conn.App. 351, 354, 625 A.2d 917 (1996) the court stated: “Ordinarily, the decision of local boards will not be disturbed as long as . . . [the] judgment [of the Board] has been reasonably and fairly made after a full hearing . . . as the credibility of witnesses and the determination of factual issues are matters with the province of the administrative agency.”

“In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning agency] must be upheld by the trial court if they reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [agency] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [agency] supports the decision reached. If a trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot substitute its judgment for that of the board. If there is conflicting evidence in support of the zoning commission’s stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the [agency] . . . The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.” CT Page 4121 (Citations omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004) Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547-48, 684 A.2d 735 (1996).

“[A zoning] board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal.” (Internal quotation marked omitted.)Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519
(1994). The same standard applies when appeals are taken from a board’s action in connection with an appeal from the decision of a zoning enforcement officer. Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 515, 264 A.2d 552 (1969).

“When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission’s decision . . . Rather, 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 authority was required to apply under the zoning regulations.” (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239

General Statutes § 8-7 requires that “Whenever a zoning board of appeals grants or denies a special exception or variance in the zoning regulations applicable to any property or sustains or reverses wholly or in part any order, requirement or decision appealed from, it shall state upon its records the reason for its decision . . .” The record in this case does not contain an actual decision by the Board only the transcript of its deliberations.

The deliberations of the Board consisted, in their entirety, of the following:

Ms. Carbone: with that the hearing is closed.
Ms. Carbone: with the time-honored tradition of the ZBA, we will do the last case first. Who wants to go?
Mr. Santo: I won’t repeat what I just said, its ditto. I think we should uphold the staff.

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Mr. Lowenthal: I would concur. Everything that I have seen from April 1998 through the letter that Attorney Millici presented confirmed the agreement. It should be pretty clear to the proprietor that no live music was to be presented and infer that there was otherwise. So I agree we should uphold the Cease and Desist order.
Ms. Carbone: I think the applicant has shown no responsibility or maturity regarding behavior and interaction with the staff and his relationship with neighbors. This is illegal and I will support the staff.
Mr. Tully: I would like to emphasize the fact that plans that the zoning staff saw in 1998 and in 2004 bare little resemblance to what is actually taking place and not only that the applicant specifically did not mention other changes that were being made in 2004, which, I won’t characterize it, but I will say it is the obligation of the applicant to get zoning approval for any change that take place from anytime from 1998 to 2004. I can tell you right now, downstairs bare very little resemblance to the plans that were approved in 1998. And of course I will support the staff.
Ms. DelGreco: I agree with all my colleagues.
Mr. Tully: You made a very good point about the fact about a hotel and knowing every move. That was very interesting.
Ms. DelGreco: I think any proprietor of a restaurant or hotel, any public space; you know can’t breathe without having zoning approval. Because it’s a fire issue, it’s a safety issue, it’s a responsibility issue. You know that over the course of six years, they should know that.
Mr. Tully: I would like to make a comment, that the staff has behaved admirably and done their job properly.

CT Page 4123

Ms. Carbone: with that I will uphold the cease and desist order requiring the property owner to submit plans and application in accordance with Sections 118-501A B, 118-1110 and 118-1420D, E G, modification of plans of Washington Street design district, property located at 112 Washington Street. Do I hear a second? All in favor say Aye. All opposed.
Ms. Carbone said motion carried unanimously.

The only stated reasons in the record supporting the Board’s decision are those found in the resolution adopted by the Board in its executive session. In that resolution the Board relied on certain provisions of the Zoning Regulations of the City of Norwalk. Those provisions of the Norwalk Zoning Regulations cited by the chairperson of the Board during deliberations were:

1. Section 118-501 which concerns the Washington Street Design District. Subsection A states the purpose and intent of the regulations. Subsection B states that the entire district is within the coastal boundary and is therefore subject to coast site plan review requirements under Section 118-1110. Subsection B further lists uses which are permitted in the district and those permitted by special permit.
2. Section 118-1110 deals with coastal site plan review. Subsection C. (4) of the regulations states “Any extension or change of an existing structure or use permitted by coastal site plan review which substantially changes its character or intensity shall require a new coastal site plan review.” However, nothing in the regulations purports regulate the interior layout of any permitted use. In fact, Section 118-1110(E)(1)(g) expressly provides: “The following uses and structures shall be exempt from coastal site plan review: . . . Interior modifications to buildings.” That exemption is authorized by General Statutes § 22a-109(b).[3]
3. Section 118-1420 concerns the powers and responsibilities of the Zoning Inspector under CT Page 4124 the Regulations. Subsection D requires plans to be submitted to the Zoning Inspector prior to construction so that he may determine “the propriety of the proposed construction or addition.” Subsection E makes it unlawful to construct or alter any building without approval from the Zoning Inspector. Subsection G prohibits the occupancy of land or buildings (excluding dwellings) without a certificate of zoning compliance.

No portion of the above regulations deal with the interior lay out of permitted or non-conforming uses. However, in its brief the Board claims that the plaintiffs waived their right to disagree with the findings of the deputy zoning enforcement office when they failed to raise any objections to the issuance of a conditional certificate of zoning compliance reserving judgment on the legality of the disk jockey booth on the lower level. The Board claims that by waiting until the issuance of a cease and desist order the plaintiffs lost their chance to be heard on whether the interior placement of the disc jockey booth was regulated by the Norwalk Zoning Regulations. The court finds nothing in the law which allows zoning enforcement officials to extend their power to otherwise unregulated activities simply because of the failure of property owners to object at the earliest possible time.

The court concludes that the Board has failed to state a valid reason for its decision on the record as required by General Statutes § 8-7. However, because of the absence of an actual written decision and in the interests of judicial economy, the court will consider that the board has not stated any reasons for its decision “upon its records.” “Where a zoning board of appeals does not formally state the reasons for its decision, however, the trial court must search the record for a basis for the board’s decision.” Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208 (1995). “If any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision . . . must be upheld.” Parks v. Zoning Commission, 178 Conn. 657, 661-62 (1979).

With the aid of the Board’s brief the court has scrutinized the record in search of a basis for the Board’s decision. In its brief the Board claims that the decision of the Deputy Zoning Enforcement Officer (and the Board’s decision sustaining it) was legal because the character of the music played on the premises was significantly different from that represented to the Zoning Commission when site plan approval was obtained in 1998. The Board asserts that at that time the applicant’s CT Page 4125 attorney stated the intention to have entertainment “provided by television, stereo, music and live subdued jazz.” In its brief the Board claims that in the years since site plan approval the plaintiffs and their predecessors have played “thunderous and earsplitting music” “creating a nearly unliveable condition for those who reside in this neighborhood.”

The record contains the notice of the cease and desist order issued by the Deputy Zoning Enforcement Officer on December 6, 2004. That notice recites the same sections of the Norwalk Zoning Regulations referred to in the Board deliberations. It explains that basis of the order was:

“Failure to resolve outstanding issues regarding live music as per the Temporary Certificate of Zoning Compliance.”

The Temporary Certificate of Zoning Compliance dated July 22, 2004 lists as a condition: “Upon resolution of issue regarding live music/disc jockey, selection dated July 20, 2004.”

The Board reasons that because of the perceived difference between the music described in the materials accompanying the 1998 site plan application and that played at the plaintiffs’ establishment, the plaintiffs are in violation of the Norwalk Zoning Regulations. The court finds no support for the Board’s position in any portion of Norwalk Zoning Regulations.

The Board’s decision was not based on a violation of a condition regarding the type or volume of music which might be played at the subject premises which was attached to the site plan approval granted in 1998. The record does not reflect the imposition of any such conditions. The board’s position seems to be that the statements made by the applicant and its counsel to the Commission regarding the intention to play soft jazz music created a contract, enforceable by the zoning inspector, which the plaintiffs have breached.

The record contains a copy of the Zoning Commission’s 1998 site plan approval. The only two conditions attached to that approval related to signs and the removal of graffiti. No condition regarding the music which might be played at the tavern was mentioned in the resolution granting site plan approval.

The plaintiffs’ activities may well constitute a public or a private nuisance or violate a local noise ordinance. However, the record before the Board establishes that the Deputy Zoning Enforcement Officer had no basis for finding the plaintiffs in violation of the Norwalk Zoning CT Page 4126 Regulations or for issuing a cease and desist order.

The appeal of plaintiff 112 Washington Street, LLC is sustained. Since the plaintiff, SoNo Entertainment Group, LLC, failed to establish aggrievement, that plaintiff’s appeal is dismissed.

[1] “(a) The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the office charged with the enforcement of this chapter or any by-law, ordinance or regulation adopted under the provisions of this chapter; . . .”
[2] Neither the evidence in the record nor that offered at trial established the validity of these allegations.
[3] “The zoning commission by regulation exempt any or all of the following uses from the coastal site plan review requirements of this chapter: . . . (6) interior modifications to buildings . . .”

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