2007 Ct. Sup. 20784
No. CV 06-4006679 SConnecticut Superior Court Judicial District of Ansonia-Milford at Derby
December 4, 2007
MEMORANDUM OF DECISION
GEORGE W. RIPLEY II, JUDGE TRIAL REFEREE.
The plaintiffs in this matter appeal the decision of the Milford Zoning Board of Appeals (ZBA) rendered on June 13, 2006 which decision denied the plaintiffs’ application for a reversal of the zoning officer’s order of April 13, 2006. (Return of Record a.) Initially, the court finds from an examination of the record that the plaintiffs are aggrieved parties with standing to prosecute the appeal.
On April 13, 2006 the plaintiffs received notice by letter of Linda Stock, the Zoning Enforcement Officer for the City of Milford, that following her site inspection performed on June 2, 2003 the addition being erected on the plaintiffs’ premises included a non-conforming structure on a non-conforming lot was being done without proper permits. Ms. Stock cited a number of the provisions of the Milford Zoning Regulations including, inter alia, a violation of Section 2.5.1. Buildings and Uses: “No building, or part thereof, shall be constructed, reconstructed, extended or enlarged . . . in any manner except in conformity with these regulations.” Section 6.3.2. of the regulations provided that “structures failing to meet any requirement of these regulations . . . shall not be enlarged, extended, or altered if the result would be an increase in non-conformity.”
Section 8.3 provided that an application for a zoning permit shall be submitted to the Zoning Enforcement Officer prior to any construction or alteration of any building.
It is clear from the record that the plaintiffs’ construction of a deck on the side of the house, as shown on Return of Record c, in 1986, was without a permit and that subsequent construction to create a room on the same deck in 2003 was also without a permit. The plaintiffs’ property lacking the required area for the zone was a non-conforming use and the addition of the two decks by the plaintiffs violated side and rear setbacks in violation of Section 3.1.4.1. CT Page 20785
The plaintiffs then filed a variance application in an effort to obtain permission to maintain the two decks. This application was denied and in connection therewith the plaintiffs were ordered to remove the decks. The plaintiffs appealed this determination but on May 12, 2005 the court accepted the parties’ stipulation as to entering judgment for the plaintiffs as to the order to remove the decks and secondly, to allow the plaintiffs’ withdrawal of the appeal as to the denial of the plaintiffs’ application for a variance.
Thereafter on April 13, 2006 Ms. Stock issued the order to the plaintiffs to remove the deck as set out in the notice to the plaintiffs (Return of Record h) which application was heard at a public hearing on June 13, 2006 (Return of Record t and u) at which time the plaintiffs discussed the history of decks in question and claimed the necessity for such improvements to allow the plaintiff William Ziebell to install a hot tub for relief of certain health conditions and claimed that the denial of his application was a violation of Americans with Disabilities Act (ADA). Prior to the hearing, the plaintiffs had completed a roof over the deck and in effect had now created a room instead of a deck, again without obtaining any permit prior contrary to the regulations. The record also discloses considerable discussion of the history of the plaintiffs’ construction with members of the Z.B.A. and an explanation from Ms. Stock, Z.E.O., as to her orders concerning the construction. The ZBA following the public hearing voted on the application of the plaintiffs and denied the appeal unanimously.
It is the plaintiffs’ claim that the determination of the ZBA in denying the plaintiffs’ appeal was illegal, arbitrary, capricious and in abuse of their discretion.
The second count of the appeal claims that the ZBA and Ms. Stock engaged in improper ex parte communications prior to the hearing on the appeal and improperly prejudiced the appeal. An argument of prejudgment or bias “must be supported by some evidence proving probability of bias before (the commission) can be faulted.” There is a presumption of the commission’s impartiality which the plaintiff has the burden to overcome. Buck v. Inland Wetlands and Watercourses Agency, 203 Conn. 525, 537. Here, the plaintiff has offered nothing substantial to rebut the presumption of impartiality and accordingly the court dismisses the second count of the plaintiffs’ appeal.
As to the first count claiming the ZBA’s action in denying the appeal was illegal, capricious and arbitrary it is appropriate to set out the court’s role in making such a determination. CT Page 20786
Initially the court observes that the court’s review of such appeals as presented in this manner is limited. An appropriate exposition of the court’s authority was set out in Cybulski v. Planning and Zoning Commission, 43 Conn.App. 105, 110. “Review of zoning commission decisions by the Superior Court is limited to a determination of whether the commission acted arbitrarily, illegal or unreasonably.” Wnuk v. Zoning Board of Appeals, 225 Conn. 691, 695-96 A.2d 698 (1993). In appeals from administrative zoning decisions, the commission’s conclusions will be invalidated only if they are not supported by substantial evidence in the record. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525-40, 41, 525 A.2d 940 (1987). The substantial evidence rule is similar to “sufficiency of the evidence” standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. It must be enough to justify if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. Id., 541-42. “The settled standard of review of questions of fact determined by a zoning authority is that a court may not substitute its judgment for that of the zoning authority as long as it reflects an honest judgment reasonably exercised.” Torsiello v. Zoning Board of Appeals, 3 Conn.App. 47, 49, 484 A.2d 483 (1984). The court’s review is based on the record, which includes the knowledge of the board members gained through personal observation of the site id., 49-50; or through their personal knowledge of the area involved Burnham v. Planning and Zoning Commission, 189 Conn. 261, 267, 455 A.2d 239 (1983) “Courts allow zoning authorities a wide and liberal discretion in determining what the public need is and how it can be met. This is so because local zoning authorities live close to the circumstances and conditions which create local zoning problems and shape the method of their solution,” Levinsky v. Zoning Commission, 144 Conn. 117, 125. See Homart Development Co. v. Planning and Zoning Commission, 26 Conn.App. 212, 216; Malafronte v. Planning and Zoning Board, 155 Conn. 205, 208.
These determinations may not be disturbed by the courts unless it is established that the commission acted illegally or arbitrarily.
The plaintiff claims that the side and rear porches attached to the plaintiffs’ residence are valid non-conforming building structures pursuant to Section 8-13A C.G.S. It is their claim that these additions have been in existence for more than 3 years prior to the action of the ZBA and accordingly under the statute the ZBA lacks the authority to proceed with any action to declare such structures as contrary to the regulations and order this removal. The record indicates that the CT Page 20787 inspection by Linda Stock on June 2, 2003 disclosed ongoing construction both as regards the side deck and a new deck. It is clear that the enforcement action commenced by Ms. Stock on May 1, 2006 was within the three-year limitation period and accordingly the claim of the plaintiffs that the ZBA was barred from enforcing the regulations as pertains to non-conforming structures on a non-conforming lot is without merit.
Section 6.2.1 of the zoning regulations provides, inter alia, that no structure non-conforming use of land or structure shall “be enlarged, extended or altered.” The addition of a new deck and enclosing of the old deck to constitute a room produced in the court’s opinion a substantial increase in the non-conformity. These additions by the plaintiffs to the non-conforming structure cannot be considered to be “negligible or cosmetic changes” allowable without permission by the ZBA. Board of Appeals v. Zoning Board of Appeals of the Town of Branford, 75 Conn.App. 796.
The plaintiffs also claim that the ZBA’s action in ordering the removal of the decks was in violation of the Americans With Disability Act, 42 U.S.C. Sec. 12101 (A.D.A.) The plaintiffs offered evidence at the hearting (Return of Record t, that William Ziebell has a disability which is alleviated by use of a hot tub and he constructed the deck to provide a space for it and also constructed the roof to better access and protect the hot tub in the winter).
While a public entity such as the defendant here must under the Act make reasonable accommodation to disabled persons, this court does not conclude that such accommodations require a waiver of existing zoning regulations to avoid a charge of discrimination.
In this case the ZBA considered the actions and recommendations of Ms. Stock as the Zoning Enforcement Officer and upheld her action in ordering the plaintiffs to remove the structure erected without benefit of permits. The court concludes that the record reasonably supports the Board’s determination to deny the plaintiff’s appeal.
“If the board does not act in a patently arbitrary manner and fairly and reasonably exercises its honest judgment after giving proper consideration to the public welfare in evaluating the needs of the city in relation to the appropriate use of the land contained therein as evidenced in the record as presented to the board its action will not be rendered void.” Morningside Assn. v. Planning and Zoning Board, 162 Conn. 155, 160.
The appeal is dismissed. With the dismissal of the appeal the CT Page 20788 defendants’ special defense of res judicata need not be addressed. CT Page 20789