71 ARCH STREET, LLC v. ZONING BOARD OF APPEALS OF THE TOWN OF GREENWICH ET AL.

2008 Ct. Sup. 6232
No. FST CV 05 4004071Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
April 14, 2008

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
TAGGART D. ADAMS, JUDGE.

I. Background
71 Arch Street, LLC appeals from a decision of the Zoning Board of Appeals of the Town of Greenwich (ZBA) upholding a cease and desist order issued by the Town of Greenwich Zoning Enforcement Officer (ZEO) James Maloney. The cease and desist order, dated October 7, 2004, was directed to Allen Gordon the then owner of real property located at 71 Arch Street in Greenwich and presently the managing member of 71 Arch Street, LLC which now owns the premises at 71 Arch Street. The order directed Gordon to remedy zoning violations at a building with an underground garage located across the street at 60 Arch Street. The stated violation was that six parking spaces required for tenants at 60 Arch Street by the approved site plan for the premises were leased to Gordon and used for the benefit of tenants of 71 Arch Street.

II. Facts
In 1980 the 60 Arch Street premises were undeveloped and used to provide parking for the building at 71 Arch Street. The common owner of those two parcels obtained site plan approval for an office building at 60 Arch Street with 58 underground parking spaces. Approval was conditioned on ten of those parking spaces being available to the building at 71 Arch Street. Return of Record (ROR) Item 6, p. 3, ¶ 1.[1]

In 1988 Greenwich Cove, Inc., then owner of both the 71 and 60 Arch Street premises, sold the building and garage at 60 Arch Street to Skanska, (U.S.A.) Inc., while leasing back for an initial term of fifty years sixteen parking spaces at the 60 Arch Street building Id., ¶ 2. According to all parties this lease placed the 60 Arch Street premises in non-compliance with the zoning commission’s site plan approval for the building and garage which required 48 parking spaces CT Page 6233 for the tenants of that building. In 1989 Gordon purchased from Skanska the premises at 71 Arch Street and was assigned the lease for sixteen parking places at 60 Arch Street. Exhibit 2.

In 2000 an entity known as 12 Havemeyer Place Co., LLC (Havemeyer) a defendant in this appeal purchased the 60 Arch Street premises and in 2001 rejected Gordon’s tender of the rent due for the 16 parking spaces under the 1988 lease. Litigation ensued, but was stayed to allow Havemeyer an opportunity to obtain a variance; however, the application for a variance was rejected by the ZBA. Havemeyer then commenced a summary process action seeking to terminate Gordon’s rights to all sixteen spaces under the lease. Following a trial, the Superior Court dismissed Havemeyer’s case and entered judgment for Gordon. ROR, Item 6, Exhibit D (transcript of October 2, 2001 court proceedings).[2] This decision was affirmed by the Appellate Court, 12 Havemeyer Place v. Gordon, 76 Conn.App. 377 (2003) and a petition for certiorari was denied by the Connecticut Supreme Court, 264 Conn. 919 (2003). (Havemeyer I.) The heart of Havemeyer’s contention was that the 1988 lease concerning the sixteen spaces was illegal, a position supported by the Town of Greenwich in an amicus brief. Id., 379 n. 4. Both the Superior Court and the Appellate Court held that the lease was legal Id., 379. The Appellate Court articulated the precise question before it in these words:

Whether a lessor, on the ground of illegality, may gain possession of leased premises from a lessee solely on the ground that the recorded lease varied the requirements of a site plan, when the lessee has not breached any covenant of the lease and the town has not cited the lessee for a violation or ordered the lessee to take any corrective action.

Id., 383. The Appellate Court answered the above question “no,” relying in part on the fact that the 1988 lease required the lessor, now Havemeyer, to be responsible for complying with municipal regulations. See Id., 384 and n. 13; 388.

Following the Connecticut Supreme Court’s decision not to disturb the Appellate Court’s action, Mr. Maloney, the Greenwich ZEO wrote to Havemeyer stating it was in violation of the site plan and subsequently issued a cease and desist order to Havemeyer in March 2004. Havemeyer did not appeal this order. Less than a month later, on April 1, 2004, the ZEO wrote Gordon saying his “use of six parking spaces is a violation of the Greenwich Municipal Code Building and Zone Regulations” CT Page 6234 and ordering him to “vacate” the spaces. ROR, Item 6, Exhibit H.

Less than a month later Havemeyer commenced suit against Gordon seeking to enjoin Gordon from using the six spaces on the grounds that the 1988 lease was illegal and seeking to reform the lease. On September 16, 2004 the Superior Court, the Honorable Leonard Cocco, dismissed the case saying that it, the Appellate Court and the Connecticut Supreme Court had already decided the case and the letter from the ZEO did not change those decisions. ROR, Item 6, Exhibit J, (transcript of September 16, 2004 court proceedings.) This decision, too, was affirmed in all respects by the Connecticut Appellate Court. 12 Havemeyer Place Co., LLC v. Gordon, 93 Conn.App. 140 (2006) (Havemeyer II). In Havemeyer II the Appellate Court found that well recognized principles of collateral estoppel and res judicata barred Havemeyer’s second law suit. The court held that because Greenwich had not brought an action to enforce the alleged zoning violation the issues raised in Havemeyer II were the same ones raised in Havemeyer I, Id., 151 and n. 6 (noting that a cease and desist order is not an action to enforce).

During the pendency of Havemeyer II, the Greenwich ZEO, on October 7, 2004 issued the cease and desist order which is the subject of this appeal ordering Gordon to discontinue or remedy conditions at 60 Arch Street namely that required parking for building tenants “has been leased for off premises use and is not available to building tenants as required” citing Sections 6-13 and 6-16 of the Greenwich Zoning Regulations. Exhibit 5.[3]

The cease and desist order was appealed to the ZBA by 71 Arch Street, LLC which became the owner of the 71 Arch Street premises and the lessee under the 1988 lease in 2004. The ZBA upheld the ZEO’s order and denied the appeal in February 2005. This appeal was commenced in 2005. The ZBA moved to dismiss the appeal on the ground that the appeal was moot. In support of that motion, Greenwich filed in this court an affidavit of the ZEO, Mr. Maloney stating that in light of Havemeyer I he had decided not to pursue the cease and desist order against Gordon and 71 Arch Street LLC but would be pursuing enforcement against Havemeyer. The motion to dismiss was denied.

III. Discussion A. Standard of Review.
In this case the ZBA stated its reasons in writing for denying Gordon’s appeal and upholding the issuance of a cease and desist order to Gordon, as follows: CT Page 6235

The Board finds, after due consideration, there are two (2) separate issues presented. The first is a matter of civil litigation between the parties involving a lease for parking spaces in which the underlying cause of action dealt with a summary process action. The Board agreed with respondent this prior action was not the issue in the subject appeal but that it had been dealt with by the final decision rendered in the prior litigation. The second issue identified by the Board is an issue of a present and continuing violation of the Town’s Building Zone Regulations, and is not repetitive of the original litigation. It was the continuing zoning violation affecting the premises, not the enforcement of the parties’ lease issues for which the Zoning Enforcement Officer cited both tenant and owner. It is appropriate and consistent with the stated procedure of the Zoning Enforcement Office that all parties involved in a zoning violation be cited and, as necessary, referred to the State’s Attorney for prosecution. The Board, therefore, upholds the action of the Zoning Enforcement Officer and denies the appeal.

ROR, Item 8. Because the ZBA stated the reasons for its decision the Superior Court of appeal must determine whether the reasons are supported by the record and pertinent to the decision. Molic v. Zoning Board of Appeals of Town of Redding, 18 Conn.App. 159, 164-65 (1989). If the stated reasons are found to be inadequate the Superior Court should not search for additional reasons. Gibbons v. Historic District Commission, 285 Conn. 755, 771 (2008). The Superior Court determines the appeal based on the actions of, and record before the ZBA not what was before the zoning enforcement officer. Caserta v. Zoning Board of Appeals of City of Milford, 226 Conn. 80, 87-91 (1993) (decision of ZBA is made de novo.) The Superior Court should not make its own findings of fact; in hearing an appeal of a ABA action the Superior Court acts as an appellate body. Megin v. ZBA, 106 Conn.App. 602, 603 n. 1 (2008).

B. Aggrievement.
General Statutes § 8-8(b) permits “any person aggrieved” by any decision of a Zoning Board of Appeals to take an appeal to the Superior CT Page 6236 Court. The definition of “aggrieved person” in General Statutes §8-8(a)(1) includes any person owning land within a radius of one hundred feet of the land involved in the ZBA decision. While it is possible that 71 Arch Street and 60 Arch Street are within one hundred feet of each other (at the hearing it was represented the two premises were located across the street from each other) that is not the basis for the plaintiff’s aggrievement claim and no evidence of qualifying proximity was introduced. Nevertheless aggrievement is established. The subject cease and desist directly affects the plaintiff by ordering it to comply with certain zoning regulations. Evidence was presented to establish that the plaintiff is the assignee of the 1988 lease permitting parking in sixteen spaces at the 60 Arch Street garage. Classical aggrievement has two elements: a party must show “a specific, personal and legal interest in the subject matter of the decision . . . [and] must also show that the agency’s decision has specially and injuriously affected that . . . interest.” Lewis v. Planning Zoning Commission, 275 Conn. 383, 391 (2005) [quoting from Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 486-87 (2003)]. Both elements are present here. The cease and desist order is directed specifically at Gordon as the assignee of the 1988 lease and directs him, and now his LLC, to remedy conditions at 60 Arch Street (i.e., lack of required parking) and notes that failure to comply risks the imposition of the monetary and incarceration penalties set forth in General Statutes § 8-12. Indeed, the ZBA decision specifically notes the possibility of criminal prosecution. The court finds there is aggrievement.

C. Mootness.
The Town of Greenwich argues that the appeal should be dismissed because, based on ZEO Maloney’s affidavit, the cease and desist order is a dead issue and will not be enforced. This argument is rejected. The order remains on the books as does the ZBA’s decision upholding the order. The ZEO might change his mind; another ZEO might decide to enforce it. There was testimony to the effect that a potential buyer of, or lender to, 71 Arch Street would have concern over the public record of a zoning violation.

D. Merits of the Appeal.
Turning now to the substantive merits of the appeal, the court must consider the reasons articulated by the ZBA for denying Gordon’s appeal. As set forth above the ZBA considered two issues to exist, the first being the civil litigation between Gordon and Havemeyer over the leased parking spaces, and the second being the continuing violation of the zoning regulations. As the ZBA stated, the civil litigation had been CT Page 6237 concluded but the zoning violation remained. The ZBA then stated it was “the stated procedure” that all parties “involved in a zoning violation be cited and, as necessary, referred to the State’s Attorney for prosecution.” Thus, the ZBA’s articulated reason for citing Gordon was that it was “appropriate” to apply the standard, or “stated,” procedure to cite all parties involved in a zoning violation.

This rationale was clearly based on ZEO Maloney’s testimony to the ZBA. As the ZEO stated:

Again, when you’ve got a situation like this and you have a couple of participants, I don’t make the decision who is right and wrong. It’s up to the Court.

ROR, Item 7 (transcript of ZBA hearing, February 23, 2005, pp. 92-93). Later he reiterated:

. . . the procedure of my office has always been, if we have multiple people involved in a violation, cite them all.

Id., pp. 95-96.

There are two overlapping problems with this rationale. First is the reliance on standard procedure to justify the order when the circumstances in this case were decidedly non-standard in that the dispute as to whether Gordon or Havemeyer had the right to the six spaces had already gone to the highest court in the state and been decided in Gordon’s favor with the effect that it was Havemeyer’s responsibility to cure the zoning violation. Thus, the standard procedure didn’t fit these circumstances because an appellate court had already sorted out the issues conclusively. The ZBA was, in effect, upholding an order that Gordon or 71 Arch Street, LLC transfer six parking spaces back to Havemeyer or risk prosecution when the judicial system had already determined that Gordon or the owner of 71 Arch Street had an enforceable right to precisely those spaces.

Second, the cease and desist order had the effect of forcing Gordon to do something about a zoning violation on someone else’s property. The order required Gordon to take steps to change the use of 60 Arch Street, seek a variance, or find or build more parking spaces — all of which he could not do because he was not the owner of those premises. In the alternative, as noted, the order required Gordon to relinquish the six spaces — which the judicial system had ruled he was not required to do. CT Page 6238

This court finds that the ZBA’s rationale is inadequate and not supported by the record before it, which included a copy of the Appellate Court’s Havemeyer I decision. The appeal of the decision to uphold the cease and desist order is sustained.

[1] The facts of this case are generally undisputed and the recitation of them is largely drawn from the plaintiff’s presentation to the ZBA and this court as well the factual discussions set forth in two Appellate Court opinions.
[2] ROR, Item 6 is a narrative prepared by the plaintiff and attached exhibits identified by a letter. The plaintiff also introduced exhibits at the hearing of this appeal identified by a number.
[3] Sections 6-13 and 6-16 require site plan approval for all non-residential construction and that no changes can be made on an approved site plan without reapproval. ROR, Item 9.

CT Page 6239