LLC v. Zoning Board of Appeals City of Norwalk (2010)

MEMORANDUM OF DECISION

In 2008 Muller Park Realty Company LLC (“Muller”) as owner and Hutchinson Tree Care Specialists, Inc. (“Hutchinson”) as tenant filed an appeal with the defendant Zoning Board of Appeals (“the board”) in which they contested (1) a cease and desist order issued by the Norwalk zoning inspector and (2) a refusal by the zoning inspector to issue a certificate of zoning compliance for Hutchinson's use of premises known as One Muller Avenue.   Since 1997 Hutchinson has occupied an office from which it has operated a tree care service business pursuant to an arborist license issued by the Connecticut Department of Environment Protection G.S. Ch. 451.   The business requires for its operation the ingress and egress and overnight parking of up to eight trucks of varying sizes and related equipment which though not described in the record with any specificity, were described at oral argument as consisting of, inter alia, cherry pickers, wood chippers and other vehicles and equipment that would customarily be used in the tree care business.

Strangely, no cease and desist order can be found in the record.   However, Exhibit 17 reveals that it was the zoning inspector's determination that Hutchinson's operation is not permitted in the Business No. 2 zone in which the property is located.   The zoning inspector further stated that no documentation had been provided by the plaintiffs that either Hutchinson or its predecessors were legally permitted uses under the Norwalk zoning regulations.   In their appeal from that determination, the plaintiffs allege that the Hutchinson use is a valid non-conforming use which dates back through its predecessors to a time prior to 1990 when the zoning classification of the property was changed to Business No. 2. As a secondary claim the plaintiffs argue that the operation is a permitted use in the B-2 zone.   After hearing, the board denied the appeal on the grounds (a) that the plaintiff did not present evidence of a permit for use by a contractor, and (b) the plaintiff did not address the certificate of zoning compliance.

As a threshold matter, the parties have stipulated to facts which form the basis for the plaintiffs' aggrievement.   The facts are that they were owners and tenants of the property at all times relevant to this proceeding and are therefore aggrieved.  Goldfeld v. Greenwich Planning and Zoning Commission, 3 Conn.App. 175 (1985).

The standard which governs this court's review of the board's action is whether the board acted illegally, arbitrarily or in abuse of its discretion.   Doyan v. Zoning Board of Appeals, 67 Conn.App. 597 (2002).   The court may not substitute its judgment for that of the board.   Moreover, there must be substantial evidence in the record to support the board's decision, Torsiello v. Zoning Board of Appeals, 3 Conn.App. 475 (1984).  “Evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact and issue can be reasonably inferred ․ The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion.”  Pelliccione v. Planning and Zoning Commission, 64 Conn.App. 320, 326-28 (2001).

It is noteworthy that neither reason for denial is based expressly on the subject of whether the tree care service is a valid, legally non-conforming use notwithstanding that the plaintiffs devoted the bulk of their presentation before the board to that issue.   Nevertheless, by finding that the plaintiffs had not presented proof of the issuance of a certificate of zoning compliance the board implicitly found that the plaintiffs had failed to present substantial evidence that their use of the premises became legally nonconforming in 1990.

The property owner bears the burden of proving the existence of a nonconforming use.  Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 240 (1995).  “In deciding whether the current activity is within the scope of a nonconforming use consideration should be given to three factors:  (1) the extent to which the current use reflects the nature and purpose of the original use;  (2) any differences in the character, nature and kind of use involved;  and (3) any substantial difference in effect upon the neighborhood resulting from differences in the activities conducted on the property.”   Zachs v. Zoning Board of Appeals, 218 Conn. 324, 332 (1991).

An examination of the record reveals that considerable documentary evidence was submitted to the board in an effort to establish an unbroken line of uses similar in nature to the Hutchinson use.   However, no effort was made to satisfy the three-part test articulated in Zachs, supra.   For instance, the record is barren of any evidence of how either predecessors Paul Springer Paving Company or D & S Petroleum were similar in nature and purpose to the present use, nor is there any discussion of the difference, if any, of the present use's, effect on the neighborhood as compared to its predecessors.   In fact, the record is barren of any evidence of the nature and scope of the activities which are conducted on the property or were conducted by the predecessors other then to describe these uses by their company names.   The plaintiffs' failure to provide this kind of evidence or satisfy the three-part test constitutes an absence of substantial evidence to support these claims and conversely, by virtue of that absence, the board's denial was amply supported by a lack of substantial evidence.

The court notes that Section 118-800C(4) of the zoning regulations allows a change from one nonconforming use to another provided a special exception is obtained from the zoning board of appeals.   In such case, the board must find (1) “that the proposed use is equally appropriate or more appropriate to the zone than the existing nonconforming use, and (2) the proposed use will have the same impact or a lessor impact upon the surrounding area than the existing nonconforming use.”   No effort was made to satisfy these requirements.   Indeed the plaintiffs refused to apply for such a special exception, clinging to their argument that they are exempt by reason of the claimed nonconforming status.

The same regulation contains a requirement that if a structural alteration is made, then the new use may not be enlarged, altered or extended.   The record is devoid of evidence on any of these points.   For example, for a tree care service company to base a claim of nonconformity upon the prior use of the premises by an oil company, even with the same number of trucks stored, without more is insufficient because it is obvious that the nature of the use is different;  that is, tree care service is vastly different from oil storage and delivery.

The plaintiffs next argue that the Hutchinson use is a permitted use in the Business No. 2 zone pursuant to Section 118-522B(m) of the regulations which allows “off street parking facilities.”   In support of this argument Hutchinson has characterized its operation as a parking area for trucks and related equipment in conjunction with its tree care service business.   The court notes that this argument was not made before the board.   Therefore, it cannot be raised for the first time in this appeal.   The court is not at liberty to construe an ordinance de novo where the zoning agency having jurisdiction was not asked to interpret the ordinance in its administrative capacity either implicitly or explicitly.  Verney v. Planning and Zoning Board of Appeals, 151 Conn. 578, 580 (1964).

Notwithstanding the above, before the board for its consideration was a memorandum (Exhibit 17 referred to above) dated July 10, 2008 from Aline Rochefort, the zoning inspector, in which she concluded that “the existing tree company is a contractor and not allowed in a Business No. 2 zone.”   She then recommends that the appeal be denied.   To the extent that the Hutchinson use was considered by the board to be that of a contractor and the storage of trucks and equipment to constitute a “contractor's storage yard” the parties have agreed that this issue is properly before the court.   Furthermore, such an interpretation is implicit in the board's decision.

Section 118-100 of the regulations defines “contractor's storage yard” as follows:  “A parcel of land, with or without structures, a minimum of 12,500 square feet in size, used for the storage of contractor's equipment and materials used in the construction trade:  including, but not limited to trucks, vans, bulldozers, backhoes and other similar equipment customarily associated with a contractor and/or stockpiles of construction materials, such as concrete, gravel, wood chips, masonry or electrical supplies and other similar materials.   All such equipment and material shall be stored in an environmentally safe manner behind the front setback line and no closer than five (5) feet to the side or rear property lines.   All such stock piles shall be limited to a maximum height of twenty (20) feet and shall be effectively screened from view from adjacent properties.”

The meaning and scope of this provision was the central issue in Brookside Nurseries Inc. v. Zoning Board of Appeals of the City of Norwalk, CV05-4003653, Stamford/Norwalk judicial district at Stamford (May 1, 2007, Mottolese, J.T.R.) [43 Conn. L. Rptr. 323].   This court first determined that this definition had no recorded interpretive history by the agency and likewise had never been subjected to judicial scrutiny.   In other words, there was no time tested interpretation evident from the record.  Kraiza v. P & Z Commission, 121 Conn.App. 478 (2010).

The correct classification of use under the zoning regulations depends upon application of well recognized principles of statutory construction to the definition of the use classification.  “Ordinarily, the construction of a statute by the agency charged with its enforcement is entitled to considerable deference.   However, the construction of a statute on an issue that has not previously been subjected to judicial scrutiny is a question of law on which an administrative ruling is not entitled to special deference.  Connecticut Light & Power Co. v. Dept. Public Utility Control, 210 Conn. 349 (1989) ․” “Where administrative interpretations lead to a result that is contrary to the language and purpose of the statute, it is within the authority of this court to construe a statute in a manner consistent with its language and purpose.”   Lockwood v. Professional Wheel Chair Transportation, Inc., 37 Conn.App. 85, 92 (1995).

“When construing a statute our fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of the case, including the question of whether the language actually does apply ․” Friezo v. Friezo, 281 Conn. 166, 181 (2007).

Words used in statutes shall be construed according to the commonly approved usage of the language, G.S. § 1-1;  Martone v. Lensink, 207 Conn. 296, 302 (1988).   When the language used by the legislature is plain and unambiguous, there is no room for statutory construction by the courts and the statute will be applied as its words direct.  Verrastro v. Siversten, 188 Conn. 213, 220 (1982);  Kelemen v. Rimrock Corporation, 207 Conn. 599, 606 (1988).  “In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.”  King v. Board of Education, 203 Conn. 324, 332-33 (1987).

As this court stated in the Brookside Nurseries case, the definition of “contractor's storage yard” contains two main themes, viz:  (i) storage of equipment used in the construction trade, and (ii) storage of materials customarily associated with construction. (emphasis added).   The key to both types of storage is “construction.”   The word, however, is not defined in the regulations.   Therefore, resort may be had to its' dictionary definition.   Webster's New World Dictionary, Second College Edition at page 305 defines “construct” as to build, form or devise by fitting parts or elements systematically.   An examination of the record reveals that the Hutchinson operation does not fit this definition for two reasons.   First, the only equipment that is stored outdoors are trucks of varying sizes and types and wood chippers, none of which are designed or intended for use in any construction activity.   As noted above, there is little evidence in the record that describes the Hutchinson operation.   Second, we are able to learn that the primary function of the business is to act as a licensed arborist.  G.S. § 23-61a defines an arborist as one who is qualified to perform arboriculture.   “Arboriculture” in turn is defined as “any work done for hire to improve the condition of fruit, shade or ornamental trees by feeding or fertilizing, or by pruning, trimming, bracing, treating cavities or other methods of improving tree conditions, or protecting trees from damage from insects or diseases or curing these conditions by spraying or any other method.”   There is no evidence in the record that any of these vehicles or equipment are used in the performance of any construction activities as that term has been defined nor can any of the listed activities be deemed “construction.”   The suggestion by the board in its brief that use of such equipment for the purpose of clearing land preparatory to the erection of a building constitutes “construction” is without merit.   Such a use is clearly incidental to the construction activity and not a part of it.   It is further noted that G.S. § 20-330(1) in the context of state licensure defines “contractor” as follows:  “(1) ‘contractor’ means any person regularly offering to the general public services of such person or such person's employees in the field of electrical work, plumbing, and piping work, solar work, heating, piping, cooling and sheet metal work, fire protection, sprinkler systems work, elevator installation repair and maintenance work, irrigation work, automotive glass work, or flat glass work as defined in this section.”

While this definition may be broader in certain respects than the forementioned dictionary definition, neither is applicable to the Hutchinson use.

Finally, Section 118-00 of the regulations defines “contractors office” as follows:  “CONTRACTORS OFFICE-a structure used predominately for offices necessary for the operation of a contracting business which may include as an accessory use the interior storage of contractor's equipment and materials used in the construction trade.   Off-street parking for contractor's vehicles which do not exceed one-ton rated capacity nor more than two axles, shall be permitted only if all equipment and supplies are stored predominately within the vehicle.   The number of such vehicles shall not exceed the number of parking spaces designated for their use, in addition to the number of spaces required for the office use and all other on site uses.   Outside storage of contractor's equipment or vehicles exceeding 1-ton rated capacity or more than two axles, shall not be permitted on the premises.”

It is curious that although included in the “Definitions” section of the zoning regulations this definition depends for its meaning on the operation “of a contracting business” but does not define what a contracting business is.   For the reasons stated earlier and those that follow it appears to the court that “contractors office” is a broad term and cannot be limited to a contractor which is engaged in the construction business.   Once again, resort must be had to the dictionary definition of “contractor.”   That word is defined in Webster's New World Dictionary, Second Edition at 308 as “a person who contracts to supply certain materials and to do certain work for a stipulated sum.”   The meaning of the word is clearly broader in scope than “construction contractor.”   Moreover, the words “construction trades” used in “contractor's storage yard” do not appear in this definition nor do they appear in Section 118-522B (business No. 2 zone).   The only reference to “construction” made in this definition is with respect to “equipment and materials used in the construction trade ” which must be stored inside a building.  (Emphasis added.)   The court notes that even the board's brief at p. 7 recognizes in its dictionary definition of the word that the term “contractor” cannot be limited to construction.

Section 118-522B(b) which governs the Business No. 2 zone permits “Contractor's Offices.”   Unlike the definition of “contractor's storage yard” this definition includes reference to “interior storage of contractor's equipment and materials used in the construction trade.”  When the definition regulates outside storage of a contractor's vehicles it makes no mention of “construction trade.”   Moreover, this definition goes on to prohibit outside storage of a contractor's equipment and limits the size of the contractor's vehicles, again without mentioning the “construction trade.”   In comparing this definition to the definition of “contractor's storage yard” it is significant to note that in the latter the outside storage of the very same vehicles and equipment are not limited as to size but limited as to front, rear and sideline setbacks.   No such limitation appears in the definition of “contractors office.”

It is an elementary rule of construction that statutes should be considered as a whole, with a view toward reconciling their separate parts in order to render a reasonable overall interpretation.  United Aircraft Corp. v. Fusari, 163 Conn. 401, 411 (1972).   So, the outside storage of vehicles and equipment are not limited in size when located at a contractor's storage yard but are so limited when located at a contractor's office.   Thus, it is reasonable to conclude that when enacting this provision the Norwalk zoning commission intended that “contractor's office” be broader in scope of coverage than a “contractor's storage yard” because the latter is connected to construction activity and the former is not.   Thus, the use of the property for off-premises tree care service would appear to qualify as a “contractor's office.”   It remains for future determination by the zoning authorities whether Hutchinson's vehicles exceed the size and number limitations contained in the definition.

Finally, the zoning inspector required the plaintiffs to apply for a certificate of zoning compliance pursuant to Section 118-1420G of the regulations which reads in pertinent part as follows:  “No land shall be occupied or used and no building hereafter erected or altered shall be occupied or used in whole or in part for any purpose whatsoever, except for the alteration of or addition to a dwelling, until a certificate of zoning compliance shall have been issued by the Zoning Inspector stating that the premises or building complies with all the provisions of these regulations.   Where deemed necessary by the Zoning Inspector, an as-built drawing showing the location of all improvements as constructed in both plan and profile shall be submitted prior to the issuance of a certificate of zoning compliance.”

Subsection I of the same section provides as follows:  “No change or extension of use and no alteration shall be made in a nonconforming use or premises without a certificate of zoning compliance having first been issued by the Zoning Inspector that such change, extension or alteration is in conformity with the provisions of these regulations.”

Hutchinson argues that it is exempt from compliance with these provisions and Section 118-800C(4) because its use is legally nonconforming.   The plaintiff is incorrect.   A municipality is free to enact a zoning regulation which requires the permitting of non-conforming uses.  Annunziuta v. Zoning Board of Appeals, 65 Conn. 606 (2001).   Moreover, in the process of issuing a permit, a zoning authority under its police power has the right to regulate the nonconforming use as long as the regulation is reasonable and does not attenuate the use.  Bauer v. Waste Management, 234 Conn. 221 (1995).

In conclusion, the appeal is dismissed in part and sustained in part.   It is dismissed in so far as the plaintiff challenges the necessity for a certificate of zoning compliance and challenges the board's failure to find that its use is legally nonconforming.   It is sustained in so far as implicit in the decision of the board is an interpretation that the Hutchinson use is that of a contractor's storage yard.

THE COURT

By A. William Mottolese, J.T.R.

Mottolese, A. William, J.T.R.