80 VALLEY ROAD, LLC ET AL. v. PLANNING AND ZONING BOARD OF APPEALS OF THE TOWN OF GREENWICH.

2005 Ct. Sup. 9787
No. FST CV 04 4000719Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
June 7, 2005

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
D’ANDREA, JUDGE TRIAL REFEREE.

The plaintiffs, 80 Valley Road, LLC and Wernert Associates, Inc. appeal the decision of the Planning and Zoning Board of Appeals of the Town of Greenwich (“ZBA”), which, upon appeal by the plaintiffs, upheld the issuance of a cease and desist order of the Town of Greenwich Zoning Enforcement Officer (“ZEO”). This order required the discontinuance of certain commercial uses, particularly using the property in question as a contractor’s yard and conducting a contracting business on the property.

The property is located at 80 Valley Road in Cos Cob (the “Property”), is owned by the plaintiff 80 Valley Road, LLC and lies in the LBR-2, Local Business Retail, zone as designated by the Town of Greenwich Building Zone Regulations (the “Regulations”). The Property, situated on the corner of Valley Road and Schofield Street, contains .270 acres of land, a two-family house, a small retail store and a greenhouse. There is open yard space which, with the greenhouse, is leased to the plaintiff Wernert Associates, Inc. (“Wernert”). The plaintiffs, being the owner and lessee of the property are, under the facts presented found to be statutorily aggrieved parties. Conn. Gen. Statutes § 8-8a(1).

The plaintiff, Wernert, is in the landscape contracting and general contracting business with its offices a few doors away from the property, at 76 Valley Road. Wernert uses the open yard area of the property for the parking and storage of commercial vehicles and equipment used in connection with its contracting business. The ZEO found that the presence of trucks, trailers, vans, machinery and other equipment constituted a construction yard, and that such vehicles and materials, including pipes, sand, block material and 55 gallon drums, were associated with the running of a business on the property. At the public hearing CT Page 9788 on the appeal from the decision of the ZEO, the plaintiffs argued that (1) their use of the yard space is a non-conforming use and (2) the parking of commercial vehicles is not prohibited by the Regulations in any commercial zone in Greenwich. In its decision denying the appeal, the ZBA found that there was no error in the ZEO’s decision that the plaintiffs’ use was not the continuation of a non-conforming use. The board also found that parking of trucks and construction equipment on the site is inconsistent with the Regulations, and “is an extension of [the plaintiffs’] construction contracting business use, which use is not permitted in the LBR-2 zone. Such use is detrimental to the surrounding neighborhood which is principally residential and is also inconsistent with and contrary to the Town’s Plan of Conservation and Development.”

Although the plaintiffs advanced their non-conforming use argument before the ZBA at the public hearing, and included it in the allegations of their appeal to the court, counsel for the plaintiffs advised the court at trial that the plaintiffs’ contention that their use was a continuation of a nonconforming use was being abandoned, and the claim was not included in their brief Indeed, by the end of the court trial, after oral argument, the court was left with the distinct impression that the plaintiffs’ sole claim is that they are permitted by the Regulations to park and store registered motor vehicles on the property. They no longer urge the court to find that the storage of construction equipment and materials are allowed in the zone. Accordingly, the court will address the only remaining question, i.e., whether registered motor vehicles used in connection with a landscaping and general contracting business is prohibited on the property.

The property lies in an LBR-2 zone. Section 6-103 of the Regulations reads as follows:

Sec. 6-103. USE REGULATIONS AND SPECIAL REQUIREMENTS FOR ALL LBR ZONES.
(A) Purposes.

In addition to the purposes stated in Sec. 6-102, the goal of the LBR zones is to protect and encourage neighborhood-oriented retail development. These zones provide central but limited concentration of complementary retail goods and personal services in CT Page 9789 convenient locations to meet the frequent recurring needs of nearby residents.
The regulations are intended to provide a system of controls which are tailored to the needs of the neighborhoods and give priority to neighborhood-serving activities; to control the distribution and concentration of uses so as to avoid a proliferation of ground-floor non-retail uses which may threaten the balance and variety of activities and the viability of the areas’ retail function; to discourage a significant reduction in the total number of available storefront businesses or a break in storefront continuity, within a neighborhood commercial district. An additional goal is to encourage housing, where appropriate, so as to meet the diverse housing needs of the Town’s residents as well as to provide a daytime market that supports and strengthens the business community.
LBR zones do not depend on areas substantially larger than the neighborhood districts they are designed to serve and they do not attract a significant part of their clientele from beyond the surrounding neighborhood. The scale, design, character and uses of commercial buildings in the zones are intended to be compatible with the scale, character and density of surrounding residential areas and to supply desired goods and services, with particular emphasis on reserving an adequate amount of ground-floor storefront space for retail businesses which display and stock goods for sale to consumers.
The LBR zone is divided into sub-categories. Most shopping areas can provide comparison goods and services on a generalized or specialized basis to a neighborhood market area and in general are more dependent upon pedestrian traffic and storefront exposure. A few shopping areas have less potential for comparison goods and services, are less dependent on pedestrian traffic, and are designed to provide a limited variety of convenience retail and personal services to the nearby community.

§ 6-103, Town of Greenwich Building Zone Regulations. CT Page 9790

The plaintiffs contend there is no prohibition in the Regulations against the parking of commercial motor vehicles in any business zone, and that since the property is located in a LBR-2 zone, which is a business zone, the parking of plaintiffs’ trucks are permitted there. The plaintiffs argue that there are specific restrictions on the parking of non-passenger vehicles and truck parking in residential zones.[1] However, the plaintiffs claim that there is no section governing the parking of commercial vehicles in commercial zones, and therefore it is a non-regulated use, and thus permitted in any commercial zone. They claim that they are not operating a contracting business on the site, but are simply parking trucks, and that parking does not constitute a business.

The ZBA hears an appeal from the ZEO de novo; consequently, any judicial review of an enforcement order is a review of the ZBA decisions, not the original enforcement decisions. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 88-89, 626 A.2d 744
(1993). The board is to find the facts and apply the pertinent zoning regulation to those facts. Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560-61, 236 A.2d 96 (1967). In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the court only to determine whether it was unreasonable, arbitrary or illegal. Id. In construing a zoning regulation, the goal is “to ascertain and give effect to the intent of the local legislative body as expressed in the Regulations as a whole.” Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 595, 601, 539 A.2d 101 (1988).

The ZBA’s determination that the parking and storage of trucks on the property located in the LBR-2 zone is inconsistent with the Regulations is eminently reasonable. § 6-103 of the Regulations clearly sets forth the goal of the LBR zones to be the protection and encouragement of neighborhood-oriented retail development. There was substantial evidence in the record that the commercial vehicles are used in the connection with the plaintiff Wernert’s contracting business, a business not permitted in the LBR zones.

The plaintiffs argue that because the Regulations contain provisions prohibiting commercial vehicle parking in residential zones (Section 6-156) and no section prohibiting such parking in commercial zones, the parking of commercial vehicles is therefore CT Page 9791 permitted in all commercial zones. The argument is faulty. Section 6-156, although prohibiting non-passenger vehicles and trucks from being garaged or habitually parked outdoors in residential zones, creates certain exceptions for the garaging
of trucks personally used by residents of the premises in connection with a business elsewhere. The exception is limited to certain zones, and to size and number of vehicles on each lot, depending on the particular residence zone. There is no comparable specific provision for commercial vehicles and commercial zones, because none is required. It is not a fair inference that because the framers of the Regulations did not specifically refer to any prohibition of commercial vehicles in commercial zones, it is permitted in all commercial zones without limitation. What is is a fair inference, and the inference made by the ZBA by their decision, is that commercial vehicle parking is permitted to the extent that the parking is in connection with the commercial use permitted in the particular zone involved. Zoning regulations must be interpreted by reference to the intent expressed and the regulations as a whole. Essex Leasing, Inc. v. Zoning Board of Appeals, supra, 206 Conn. 601. A construction contracting business is not allowed in the LBR-2 zone, and neither is truck parking associated with the forbidden use. Neither the type of business, nor the parking associated with it, is consistent with the purposes and goals of the LBR zones as prescribed in § 6-103 of the Regulations. In general, commercial vehicle parking is in connection with some business operation or another. The Regulations specify that some business operations are permitted uses in certain business zones, and some are prohibited. To adopt plaintiffs’ reasoning leads to a tortured interpretation of the regulations, and to bizarre results. A logical extension of the plaintiffs’ theory, that commercial vehicles are allowed to be parked in any commercial zone, would allow the outdoor parking and storage of any size or number of cement trucks, dump trucks, or oil tankers on a lot on Greenwich Avenue, in a CGBR zone (Central Greenwich Business Retail). It is a “well established canon of statutory construction that those who promulgate statutes or rules do not intend to promulgate statutes or rules that lead to consequences or bizarre results.”Hasselt v. Lufthansa German Airlines, 262 Conn. 416, 427, 815 A.2d 94 (2003), citing Hartford Courant Co. v. Freedom of Information Commission, 261 Conn. 86, 801 A.2d 759 (2002) Vibert v. Board of Education, 260 Conn. 167, 177, 293 A.2d 1076
(2002). In addition, there is nothing in the Regulations to indicate an intent to broaden permitted uses in a commercial zone by including parking associated with a use otherwise prohibited CT Page 9792 in that zone.

The ZBA’s decision was reasonably supported by the evidence Kelly v. Zoning Board of Appeals, 21 Conn.App. 594, 598, 575 A.2d 249 (1990); and the ZBA correctly interpreted the Regulations and applied them with reasonable discretion to the facts. Pascale v. Board of Zoning Appeals, 150 Conn.App. 113, 117, 186 A.2d 377 (1962). Accordingly, the plaintiffs’ appeal is dismissed.

D’ANDREA, J.T.R.

[1] Sec. 6-156. RESTRICTIONS ON NON-PASSENGER VEHICLES AND TRUCK PARKING.

(a) On lots in all residence zones the garaging or habitual outdoor parking of motor vehicles other than passenger cars is prohibited, except that the garaging of any motor vehicles used primarily on the premises shall be permitted.
(b) The garaging of trucks personally used by residents of the premises in connection with a business elsewhere shall be permitted subject to the following limitations:
(1) In R-6 zones such garaging shall be limited on each lot to two (2) trucks not exceeding one and one-half (1-1/2) tons capacity each.
(2) In R-7 zones such garaging shall be limited on each lot to one (1) truck not exceeding one and one-half (1-1/2) tons capacity.
(3) In all other residence zones such garaging shall be limited on each lot to one (1) truck not exceeding three-quarter (3/4) tons capacity.

CT Page 9793