Virginia Guimond v. City of Norwalk Zoning Board of Appeals (2011)

MEMORANDUM OF DECISION RE MOTION TO REARGUE # 122

INTRODUCTION

On October 21, 2010, this court issued a memorandum of decision after a hearing on the administrative appeal filed by Virginia Guimond against the Norwalk Zoning Board of Appeals (“Board”).   The court affirmed the decision of the Board as to the residential unit it described as the third unit and sustained the appeal as it related to the fourth unit and the motor vehicles on the property.

On November 8, 2010, the Board filed a motion to reargue and reconsider the court's ruling pursuant to Connecticut Practice Book §§ 11-11 and 11-12.   The grounds for reargument by the Board are:  1) The decision as to the fourth unit did not consider the Norwalk Zoning Regulations which pertain to Accessory Apartments because the regulations § 118-420 allow accessory apartments but restricts them to single-family residences and if the fourth unit is not a dwelling unit it is an accessory apartment which would violate the regulations because the principal dwelling is two-family;  and 2) As to the decision regarding the motor vehicles, the Board wants to bring to the court's attention that despite the fact that the Regulations do not contain any restrictions as to the number or operability of motor vehicles, it is reasonable to conclude that a certain number of inoperable and unregistered motor vehicles on any single property constitutes a use.   The Board also cites C.G.S. § 14-67g for the definition of a “motor vehicle recycler's yard” as any place which has two or more unregistered vehicles which are no longer in proper condition or intended for legal use on public highways and that a “B Residence Zone” does not include this use.   Based upon these arguments, the Zoning Board argues that the court should affirm the decision of the Board.   The plaintiff filed an objection to the motion to reconsider on December 8, 2010.   The court granted the motion to reargue and heard the argument of the parties on December 13, 2010.

DISCUSSION

“[T]he purpose of a reargument is ․ to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts ․ It also may be used to address ․ claims of law that the [movant] claimed were not addressed by the court ․ [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple.”   (Citations omitted;  internal quotation marks omitted.)  Opoku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2001).  “The granting of a motion for reconsideration ․ is within the sound discretion of the court.”  (Internal quotation marks omitted.)  Mangiante v. Niemiec, 98 Conn.App. 567, 575-77, 910 A.2d 235 (2006).  “A reconsideration implies reexamination and possibly a different decision by the [court] which initially decided it.”  (Internal quotation marks omitted.)  Id., 577.

The Board has addressed each of the court's findings in favor of the plaintiff and requested that it review the rulings based upon additional citations to the zoning regulations and the applicability of those regulations to the instant appeal.

The first area of argument by the Board is that the fourth unit is considered an accessory apartment and thus cannot be permitted in accordance with the regulations because the residence is not a single-family dwelling.   At the time of the appeal of the decision of the Board, the argument of the defendant Zoning Board was that the fourth unit was a dwelling unit and thus not permitted.   However, the present argument of counsel incorporates a completely different regulation regarding an accessory apartment.   The cease and desist that was originally filed did not claim that the Guimonds had an illegal accessory apartment but instead contended that they were illegal units.   The decision of this court addressed the cease and desist and the claims by the Zoning Board in relation to the Zoning Regulations § 118-340 and determined that the instant use of a room to a boarder was not an illegal apartment.   The regulations that were relied upon by the Zoning Board do permit within the B Residence zone classification, the “lodging or rooming for not more than two paying guests of the owner-occupant of a one family dwelling.”   Norwalk Zoning Regulations § 118-340B(4)(c).  The defendant argues that because the applicant indicated during the hearing before the Zoning Board that they had a renter in one bedroom, they have admitted they created an accessory apartment and pursuant to § 118-420b(1) it is an illegal use.   The defendant argues that as a result of this admission the court must determine that the fourth unit is illegal and affirm the cease and desist of the Zoning Board.   The court cannot adopt this argument because it is a completely new theory which was not addressed in the notice of the cease and desist or at the hearing.   This lack of notice to the plaintiff precludes her from responding to the claim with testimony, evidence or law.   In addition to the lack of notice and opportunity to fully defend this new position, this court cannot determine from the evidence before it that the fourth unit is anything more than a roomer and that the residence is anything more than a single residence.¹  The Norwalk zoning regulations would permit such a use in a B-Residence zone.   Therefore, although the court did grant the defendant an opportunity to reargue its position, this court does not find any basis to change the prior decision as to the fourth unit.

The next request of the Zoning Board is that the court should review and reverse its decision as to the allegation that there are unregistered cars, and that all except one should be removed from the property.   The court specifically addressed the motor vehicles in relation to the cease and desist to remove them.   The Zoning Board had argued that the complaint regarding the motor vehicles related to the lack of screening.   The defendant raises a new argument that the plaintiff has violated Connecticut General Stat. § 14-67g as a motor vehicle recycler's yard because there are two or more inoperable unregistered motor vehicles on the property and the motor vehicles are no longer in proper condition or intended for legal use on public highways.   The defendant has not provided any substantive documentation that this situation exists.   In fact, in the hearing before the Zoning Board, Louis Guimond submitted an affidavit dated November 1, 2007 (ROR Exh. 10) in which he accounts for each motor vehicle on the property.   His affidavit which is undisputed contends “I do not have any unregistered motor vehicles on the property which are inoperable, or not capable of being used on a public highway or which I do not intend to use.”   Without contradictory evidence by the Zoning Board there is no basis to amend, modify or change the decision of the court as to the motor vehicles.

CONCLUSION

Based upon the above, the court denies the motion to amend, modify or reverse the decision set forth in the Memorandum of Decision dated October 21, 2010.

THE COURT

Brazzel-Massaro, J.

FOOTNOTES

FN1. The March 16, 1987 letter from Mr. Bradley clearly indicates that the property is a pre-existing single unit family residence with a rental unit.   The information before the Zoning Board is that the Guimond family occupies the house constituting one unit.   Also, the transcript of the hearing before the Zoning Board clearly indicates that it is one person in a bedroom (Tr. page 12)..  FN1. The March 16, 1987 letter from Mr. Bradley clearly indicates that the property is a pre-existing single unit family residence with a rental unit.   The information before the Zoning Board is that the Guimond family occupies the house constituting one unit.   Also, the transcript of the hearing before the Zoning Board clearly indicates that it is one person in a bedroom (Tr. page 12).

Brazzel-Massaro, Barbara, J.