BERGER v. PZBA, No. FST CV 04 0200758 (Sep. 1, 2005)

2005 Ct. Sup. 12156
No. FST CV 04 0200758Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
September 1, 2005

MEMORANDUM OF DECISION
JACK L. GROGINS, JUDGE TRIAL REFEREE.

STATEMENT OF APPEAL
The plaintiffs, Joel Berger, John Downing, and Mitchell Quain, appeal from a decision of the Greenwich Planning and Zoning Board of Appeals. The PZBA granted special exception approval to the defendants, John Viesta, Shirley Viesta, and Hunting Ridge Motor Sports, Inc., allowing them to convert the premises located at 249 Railroad Avenue into a Lotus car dealership.

BACKGROUND
On November 20, 2003, the Viestas and Hunting Ridge applied to the PZBA for special exception approval to operate a Lotus car dealership and showroom on the premises. (Return of Record [ROR], Exhibit 1.)[1] The Viestas are the record owners of premises located at 249 Railroad Avenue in Greenwich, Connecticut. Hunting Ridge is a tenant. (ROR, Exhibit 1.) The property is located in the general business zone. (ROR, Exhibit 1.) As required by the Greenwich building and zoning regulations, prior to appearing before the PZBA, the Viestas and Hunting Ridge submitted to the Greenwich planning and zoning commission an application for preliminary site plan approval. It was granted after a public hearing on January 29, 2004, and continued to February 10, 2004, and March 30, 2004. (ROR, Exh. 9.) One of the conditions imposed by the PZC, and required by the regulations was that the Viestas and Hunting Ridge receive special exception approval from the PZBA, which was granted on April 14, 2004, subject to conditions.[2] (ROR, Exh. 10.) The decision was published on April 26, 2004.

The plaintiffs appealed the PZBA’s decision granting special exception approval on May 6, 2004, and the appeal was heard before this court on CT Page 12157 April 12, 2005. The plaintiffs oppose the special exception on the grounds that the PZBA granted it without regard for deficiencies in the plans, without substantial evidence that the deficiencies could be waived, and without substantial evidence that the Viestas and Hunting Ridge were entitled to any nonconformities.

JURISDICTION
General Statutes § 8-8 governs an appeal taken from a decision of a zoning board of appeals. “A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it was created.” (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989). “It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court’s jurisdiction over the subject matter of an administrative appeal . . .” (Citations omitted; internal quotation marks omitted.)Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). Pursuant to General Statutes § 8-8 (a)(1) an aggrieved person is “a person aggrieved by a decision of a board . . . and includes any person owning land which abuts or is within a radius of 100 feet of any portion of land involved in any decision of the agency.” In the present matter, the plaintiffs are the record owners of lots located at 280, 222, and 282 Railroad Avenue. (ROR, Exh. 7, p. 14.) These lots abut the subject property located at 249 Railroad Avenue. Therefore, this court finds the plaintiffs statutorily aggrieved by the PZBA’s decision and they have standing to prosecute this appeal.

SCOPE OF REVIEW
“When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity . . . Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulation applies to a given situation and the manner in which it does apply. The [Appellate Court and] trial court [must] decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with liberal discretion and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal . . .” (Citations omitted; internal quotation marks omitted.) Irwin v. Planning and Zoning Commission, 244 Conn. 619, 627-28, 711 A.2d 675 (1998).

“[C]ourts are not to substitute their judgment for that of the board, CT Page 12158 and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . The trial court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support the [board’s] finding . . . [E]vidence 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 . . . Where the board states its reasons on the record we look no . . .” (Internal quotation marks omitted.) Smith Bros. Woodland Management, LLC v. Planning and Zoning Commission, 88 Conn.App. 79, 84-85, 868 A.2d 749 (2005). “Where, however, the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board’s decision . . . More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons.” (Internal quotation marks omitted.) Oakbridge/Rogers Avenue Realty, LLC v. Milford, 78 Conn.App. 242, 247-48, 826 A.2d 1232 (2003).

On April 14, 2004, the PZBA rendered the following decision: “Appeal of John Viesta et ux, owner, and Hunting Ridge Motor Sports, Inc., applicant 249 Railroad Avenue, Greenwich, for special exception approval to permit automotive sales and service use at a commercial structure in the GB zone. It was RESOLVED that said appeal be granted with conditions on the following grounds: After due consideration, the Board finds the special exception standards as provided by Sections 6-19, 6-20, and 6-105(a)[3]
of the Building Zone Regulations have been met. Accordingly, the requested special exception approval to permit automotive sales and service is granted. This granting is made upon the conditions that vehicles will not be delivered to the site via truck carrier.” (ROR, Exh. 10.)

Because the PZBA did not state the reason for its decision, but only declared that “[s]ections 6-19, 6-20, and 6-105(a) of the Building Zone Regulations ha[d] been met,” this court is forced to search the record in order to find some basis for the PZBA’s action. See Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988), where the “board . . . tersely declared only that hardship was shown, the trial court properly searched the record to attempt to find some basis for the action taken.” (Internal quotation marks omitted.)

The plaintiffs claim that the PZBA acted illegally and arbitrarily in approving the Viestas’ and Hunting Ridges’ application for special exception approval because: (1) special exception approval may only be granted if the proposal meets all of the zoning requirements in the Building and Zoning Regulations, Chapter 6, Article 1 of the Greenwich Municipal Code; (2) the Hunting Ridge proposal does not meet the zoning CT Page 12159 requirements for parking, screening, and planting, and (3) there is not substantial evidence in the record to conclude that Hunting Ridge is entitled to any nonconformities.[4]

As a threshold matter, the court will address the issue of the nonconformities, as this issue is intertwined with the plaintiffs’ other claims.

To clarify, the court notes that “[t]he term nonconforming uses is often used without consideration as to what aspect of the use of property is nonconforming, and in determining whether an activity is an expansion or change of nonconforming use, the nature of the nonconformity is important. There are basically four types of nonconformity: (1) nonconforming use — the use of land or structure on it is nonconforming (e.g., commercial use in a residential zone); (2) a nonconforming lot the lot is undersized, irregularly shaped, has inadequate width or depth or inadequate frontage; (3) nonconforming building or structure — the structure does not meet the minimum or maximum size requirements, floor area ratio, height or bulk requirements of the existing zoning regulations; (4) nonconformity as to location of structure, i.e., it does not conform with one or more of the setback requirements . . .” (Emphasis added; internal quotation marks omitted.) Munroe v. Zoning Board of Appeals, 75 Conn.App. 796, 806, 818 A.2d 72 (2003).

In the present matter, the record shows that the existing building
located on the property is nonconforming and that there are several conditions on the lot that do not meet the requirements in the regulations. For example, the existing structure exceeds the allowable 60 percent maximum coverage; (ROR, Exh. 7, p. 10; Exh. 12; Exh. 15); the lot does not meet the sidewalk requirements of § 6-188, as there is no sidewalk along the street frontage (ROR, Exh. 14, Exh. 7, p. 19); current screening and planting is inadequate and does not meet the requirements set forth in §§ 6-177 and 6-178 (ROR, Exh. 7, p. 23, p. 25; Exh. 15); and parking is in the front yard, which is contrary to the requirements set forth in § 6-105(b). (ROR, Exh. 9, p. 2; Exh. 14, Exh. 7, p. 22.)

The plaintiffs argue that there was not substantial evidence in the record for the PZBA to conclude that the Viestas and Hunting Ridge “were entitled to any preexisting legal nonconformities.” During oral argument before the court, they further argued that the PZBA should not have accepted the findings of the PZC regarding preexisting nonconformities, but rather, should have made their own findings.

The plaintiffs’ claims fail to take into consideration the special exception approval process, which in this case requires preliminary site CT Page 12160 plan and site plan approval from the PZC.[5] As a Connecticut land use treatise explains, “[s]ite plan review is often required under zoning regulations for non-residential uses, many of which require special permits [exceptions]. The zoning regulations often tie them together, requiring site plan approval as a condition for a special permit . . . Site plan approval is directed to determining whether a particular plan conforms to existing requirements in the zoning regulations . . . [W]here a special permit is requested, [site plan approval] is used to determine whether the technical details of the plan conform to the specific requirements of the special permit and other zoning regulations.” R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 5.5, p. 141.

Because site plan and special exception approvals are often tied together, and usually require an examination of similar factors, it is entirely appropriate that the PZBA would consider the PZC’s decision regarding preliminary site plan approval.[6] Moreover, the Greenwich Building and Zoning Regulations provide for this very consideration in § 6-20(b). This section provides: “Every application for any use in accordance with Section 6-100 Use Group 5, and whenever special exception is applied for, shall on receipt thereof by the Building Inspector, be transmitted to the Planning and Zoning Commission and the Planning and Zoning Board of Appeals, and at or before public hearing held by the Board of Appeals on any application, the Planning and Zoning Commission may make a report thereon.” (Emphasis added.) (ROR, Exh. 16.) Accordingly, input from the PZC regarding special exception approval for this particular Use Group is expressly permitted.

Furthermore, whatever weight the PZBA attached to the PZC decision granting preliminary site plan approval was entirely within the PZBA’s discretion. The court notes that the PZC decision is part of the record; (ROR, Exh. 9); the hearing before the PZBA was continued on two occasions as a result of the PZC having failed to render a decision regarding preliminary site plan approval (ROR, Exh. 5; Exh. 6, p. 5); and that the PZC decision was discussed during the PZBA hearing. (ROR, Exh. 7, p. 23-24, 26, 30.) It has long been settled that “[t]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency.” (Internal quotation marks omitted.) River Bend Associates, Inc. v. Conservation and Inland Wetlands, 269 Conn. 57, 70, 848 A.2d 395 (2004).

The plaintiffs further claim that there is no substantial evidence in the record to support the finding of preexisting legal nonconformities on the premises. “This so called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury CT Page 12161 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 . . .” (Internal quotation marks omitted.) Id. “[I]t 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 . . . The substantial evidence rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of evidence or clearly erroneous action.” (Internal quotation marks omitted.) Children’s School, Inc. v. Zoning Board of Appeals, 66 Conn.App. 615, 628, 785 A.2d 607, cert. denied, 259 Conn. 903 (2001).

Upon review of the record, the court finds substantial evidence to support the PZBA decision. There is the PZC decision finding the preexisting legally nonconforming condition of front yard parking without screening on the premises; (ROR, Exh. 9, p. 2); the survey prepared by the licensed engineering/surveying firm of Rocco V. D’Andrea, Inc. detailing the existing nonconforming conditions and proposed improvements; (ROR, Exh. 12; Exh. 15); the Greenwich Geographic Information System Map dated November 18, 2003, which details the size and shape of the lot; (ROR, Exh. 13); an aerial photo of the lot and surroundings showing parking in the front yard and an absence of sidewalk along the street frontage; (ROR, Exh. 14); and oral testimony given by the applicants and their attorney regarding the existing nonconformities (ROR, Exh. 7). The sum total of this evidence is substantial and therefore, it was neither arbitrary, nor an abuse of discretion for the PZBA to conclude that there were preexisting nonconformities on the premises.

The plaintiffs next argue that special exception approval may only be granted if the proposal meets all of the zoning requirements in the Building and Zoning Regulations, Chapter 6 of the Greenwich Municipal Code, including the purposes and intent section set forth in § 6-1.[7]
The plaintiffs claim to find support for their contention in § 6-20(c), which governs special exception approval and requires the PZBA to make certain findings before granting such approval.[8]

When interpreting a zoning regulation, the court notes that it “is legislative in nature, and its interpretation involves principals of statutory interpretation . . . A court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall CT Page 12162 interpretation.” (Citation omitted; internal quotation marks omitted.)Cunningham v. Planning and Zoning Commission, 90 Conn.App. 273, 285, 876 A.2d 1257 (2005). “We seek to determine the meaning of the regulations by looking to the words of the regulation . . . to its relationship to other regulations governing the same general subject matter.” (Emphasis in original; internal quotation marks omitted.)Blakeman v. Planning and Zoning Commission, 82 Conn.App. 632, 638, 846 A.2d 950, cert. denied, 270 Conn. 905 (2004).

Upon reviewing § 6-20(c), it is clear that it is meant to be interpreted with the purposes and intent set forth in § 6-1 and the requirements specified in other relevant sections. This is expressly provided for in § 6-20(c). The record reflects that the PZBA did grant its approval in light of the relevant regulations. In fact, the plaintiffs’ contention finds no support in the record.

For example, the property is located in the General Business Zone; (ROR, Exh. 1.); where five other car dealerships are located on the same street. (ROR, Exh. 7, p. 21.) Hunting Ridge plans to operate a specialty car dealership, a Lotus dealership, and estimates only about eight cars being sold a month and about two or three customer visits per day. (ROR, Exh. 7, p. 11; p. 21.) Also, as a condition of special exception approval, the PZBA is requiring that no “vehicles . . . will be delivered to the site via truck carrier.” (ROR, Exh. 10.)

When looking at the condition imposed by the PZBA, the nature of the business proposed by Hunting Ridge on the Viestas’ property, the area, and the volume of on site visits, it becomes evident that the PZBA’s decision was consistent with the purpose of § 6-1. It is also clear that the PZBA made the findings required by § 6-20(c). (ROR, Exh. 16.)

What remains of the plaintiffs’ argument can be addressed in conjunction with their argument regarding screening, planting, and parking spaces as they are essentially the same argument and involve the issue of preexisting nonconformities. As stated above, the plaintiffs argue that in accordance with § 6-20(c), all sections encompassing Article 6 must be met before special exception approval can be granted. Specifically, the plaintiffs argue that the applicants’ proposal fails to meet the requirements set forth in the regulations for maximum site coverage; that the lot does not meet the requirements of § 6-188, in that there is no sidewalk along the street frontage; proposed screening and planting is inadequate and does not meet the requirements set forth in §§ 6-177 and 6-178; and that parking is in the front yard, which is contrary to the requirements set forth in § 6-105(b). CT Page 12163

While this court agrees that all relevant sections of Article 6 must be complied with before approval can be granted, it should be noted that § 6-20(c) does not exist in a vacuum. In accordance with the rules of statutory interpretation, it must be read in light of other relevant regulations in order to “render a reasonable overall interpretation.”Id.

Section 6-20(c), should be read in conjunction with § 6-141 which governs nonconforming uses.[9] Section 6-141(b)(2)(A) permits the alteration of a nonconforming building as long as it does not increase
the degree of nonconformity. See n. 5, supra. Section 6-141(b)(3) does not permit the alteration of a nonconforming lot if the degree of nonconformity would be increased.

In the present matter, the applicants propose to alter a building and lot that are already nonconforming. If § 6-141 was meant to limit building and lot alterations to those changes that solely sought to eliminate nonconformities, it would not contain language that permits otherwise. Instead, it clearly allows for such changes in instances when the degree of nonconformity is not increased. Therefore, a reading of § 6-20(c) that requires all buildings and lots to comply with every section of Article 6 before special exception approval could be granted, even in instances where those building and lots contain preexisting nonconformities, would be unreasonable.

It would be unreasonable in the applicants’ case, where the record reveals that their proposal decreases the current degree of nonconformities. For example, the current structure exceeds the allowable maximum 60 percent coverage. (ROR, Exh. 7; p. 10; Exh. 12; Exh. 15.) The applicants’ proposal reduces structure coverage from the current 100 percent to 95.6 percent. (ROR, Exh. 12; Exh. 15.) The existing screening and planting is inadequate and the applicants propose to add a fence, repair a fence and add more planting. (ROR, Exh. 12; Exh. 15; Exh. 7, p. 23, p. 25.) Currently, there is no sidewalk along the street frontage and this will remain the same. (ROR, Exh. 7, p. 19; Exh. 12; Exh. 14; Exh. 15.) Finally, parking along the front yard exists as a nonconforming condition and this also will remain the same. (ROR, Exh. 9, p. 2; Exh. 14; Exh. 7, p. 22; Exh. 15.)

“It is a general principle in zoning that nonconforming uses should be abolished or reduced to conformity as quickly as the fair interest of the parties will permit. In no case should they be allowed to increase . . . [T]he accepted policy of zoning is to prevent the extension of nonconforming uses.” (Citation omitted; internal quotation marks omitted.) Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 383-84, CT Page 12164 311 A.2d 77 (1972).

While the applicants’ proposal does not eliminate every nonconformity on the premises, it does reduce them, not increase them. Also, the fair interests of the parties and the regulations do not require an immediate termination of the nonconforming conditions. It is the determination of this court that there was substantial evidence in the record to support the finding of nonconforming conditions, that it was neither arbitrary nor illegal for the PZBA to approve the Viestas and Hunting Ridge’s application for special exception in that it met the standards of §§ 6-20(c) and 6-1, and that the applicants did not need to fully meet the other relevant sections in Article 6 based on the property containing preexisting nonconformities.

For the above-mentioned reasons, the court dismisses the plaintiffs’ appeal.

GROGINS, J.T.R.

CT Page 12167