E & A Northeast Limited Partnership v. Bridgeport Zoning Board of Appeals et al. (2012)

MEMORANDUM OF DECISION

The plaintiff, E & A Northeast Limited Partnership (E & A), appeals the decision of the defendant, Bridgeport Zoning Board of Appeals (Board), to uphold the issuance of two certificates of zoning compliance.¹  Because the certificates were issued unlawfully, the Board's decision to uphold them was illegal and an abuse of discretion.   E & A's appeal is sustained and the certificates of compliance are revoked.

E & A owns the Brookside Shopping Center.   The Center abuts the property in question (Property) located at 4615 Main Street in Bridgeport.²  In 2004, the owner of the Property sought approval to construct a commercial retail building to house three retail sales and service users.

The owner of the Property is 4890 Main Street, LLC, and for the purposes of this appeal, acted through its member, Joseph Voll. Both Voll and 4890 Main Street LLC are named defendants in this action.

The proposed construction required Voll to apply for variances to expand the parking space between the building and Main Street and to waive certain setback and minimum interior landscape requirements for parking areas.   In accordance with his application, proposed plans were submitted that were to govern the use of the new building.   These plans specifically allowed for the building to house only retail stores.   Moreover, these plans stated that there were to be no restaurant seating provided for in any of the building's uses.   The variances were conditionally granted upon the express terms that the development and uses be in accord with the plans submitted.   E & A did not object at the time.

Once the variances were conditionally granted, Voll began to construct the building in a manner that was not consistent with the plans submitted.   Voll did not adequately landscape the property.   A parking area sidewalk was not constructed, and instead, a retaining wall was built upon an easement that supplies electricity to Brookside.

In contradiction to the proposed plans, Voll installed two restaurants in the building.   In 2004, he first installed a Subway restaurant (previously unapproved).   The installation resulted in an inadequate number of parking spots on the property in violation of Bridgeport Zoning Regulations.   Bridgeport's zoning enforcement officer (ZEO) issued an Order to Comply.   Voll failed to comply with the order.   In 2007, he then tried to install a Cold Stone Creamery restaurant (previously unapproved).   Again, the proposed installation resulted in a violation of the city's zoning regulations.   Another Order to Comply was issued.   In May of 2009, with two orders still outstanding, Voll installed a Japanese restaurant called “Shangri–La” in place of the proposed Cold Stone Creamery site.   Voll applied for a certificate of zoning compliance and as a result, the ZEO modified the application to require that the restaurant only be “take-out”—no interior seating was allowed.

On May 18, 2009, the ZEO issued a Certificate of Zoning Compliance for the restaurant over E & A's objection.   One month later the ZEO issued another Certificate of Zoning Compliance for “Jolis Visages”—a retail store that sells skin care products.³

Despite the issuance of these two certificates, Voll installed a Japanese restaurant with more than twenty seats in direct violation of the ZEO's request that the restaurant be “take-out” only.   A third Order to Comply was issued on August 21, 2009—it was subsequently upheld.

E & A appealed to the Board the ZEO's decision to issue the two certificates of compliance for the Japanese restaurant and the Jolis Visages store on the ground that these certificates were issued at a time when the Property was in violation of Bridgeport zoning regulations.⁴  The Board upheld the ZEO's decision without stating any reason why.   E & A now appeals the Board's decision to this court.

The two issues involved in this appeal are:  (1) whether it was lawful to issue Certificates of Zoning Compliance to individual uses located on a property that was in violation of city zoning laws;  and (2) whether the Board in this case otherwise rendered its decision based upon unlawful and inappropriate criteria or otherwise abused its discretion or abrogated its duties in upholding the ZEO's decision to issue the certificates of compliance.

1. The Certificates of Compliance were issued unlawfully

There are several Bridgeport Zoning Regulations that are relevant to the determination of this appeal.   Bridgeport Zoning Regulation § 14–1–1 states in relevant part that Certificates of Zoning Compliance, when issued, are to “[state] that the land, building and/or structure and the use(s) to be made of the land, building and/or structure comply in all respects with the provisions of these regulations and the requirements or conditions of any approvals granted under these regulations.” ⁵  Section 8–2–2 states that, in a MU–EM zone, retail and restaurant uses are only allowed by application and approval of a special permit.   Section 11–1–8 sets forth the required number of parking spaces depending on the building's use.⁶

When interpreting zoning regulations, the court's review is plenary.  Graff v. Zoning Board of Appeals of the Town of Killingworth, 277 Conn. 645, 652, 894 A.2d 285 (2006);  see also Munroe v. Zoning Board of Appeals of the Town of Branford, 75 Conn.App. 796, 803, 818 A.2d 72 (2003) (conducting plenary review of a zoning regulation).   In conducting such a review, the court must construe the language of the zoning regulation “so that no clause is deemed superfluous, void or insignificant ․ The regulations must be interpreted so as to reconcile their provisions and make them operative so far as possible ․ When more than one construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results.”  (Internal quotation marks omitted.)  Graff v. Zoning Board of Appeals of the Town of Killingworth, supra, at 653.

The language of Section 14–1–1 indicates that the regulation was intended to encompass both the “land, building and/or structure” and “the use(s) to be made of the land, building and/or structure ․” Therefore, as a condition for a certificate of compliance to be issued, the property and the use for that property must be in compliance with city zoning regulations.   If the property or the use is in violation, a certificate of compliance cannot be issued.   It would be irreconcilable to read the language any differently.

At the time the ZEO issued the certificates for compliance, there were several violations on the Property.   There is no dispute that the two orders to comply were still outstanding.   The Property was in violation of Section 8–2–2 because no special permit had been issued.   Moreover at the time the certificates of compliance were issued, 4615 Main Street only had 14 parking spaces—in clear violation of Section 11–1–8.   Furthermore, there were two restaurants on the Property—the Subway franchise and the Japanese restaurant.   Both restaurants were previously unapproved and in direct contravention of the proposed plans for construction.

The uses for the Property were in violation of zoning regulations themselves.   The Japanese restaurant was unapproved and was in direct contravention to the proposed plans for construction on 4615 Main Street.   The restaurant also needed more parking spaces than the Property could provide.   Jolis Visage never obtained a special permit as was required by 8–2–2.   Combined with the Japanese restaurant, there were also not enough parking spaces to accommodate the retail store.

Both the Property and the two uses were in violation of Bridgeport Zoning Regulations, yet the ZEO still issued two Certificates of Compliance.   It would be unreasonable and in direct conflict to the language of the zoning regulations to hold that these certificates were issued lawfully.  Section 14–1–1 mandates that a certificate of compliance is only to be issued when the “land, building, and or structure, and the uses ․ comply in all respects with the provisions of these regulations and the requirements or conditions of any approvals granted under these regulations.”   A decision to uphold the issuance of certificates of compliance under these particular circumstances would essentially render “Certificates of Compliance” meaningless.   The certificates would become inoperative.

The Board argues that the ZEO could look at each individual use instead of examining the property as a whole.   However, this position is untenable.   Looking at just each use of the property and ignoring the property as a whole is in direct conflict with the language of Section 14–1–1 because the regulation requires both the property as a whole and the use to be compliant.

Because any result to the contrary would render the regulatory language meaningless and superfluous, Certificates of Compliance can only be issued when the property and the uses thereon conform in all respects to city zoning regulations.   Here, the certificates were issued to two uses that were in direct violation of Bridgeport's Zoning Regulations.   The certificates were also issued to two uses located on a parcel of property that was also in violation of Bridgeport Zoning Regulations.   As such, the certificates were issued unlawfully and must be revoked.

2. The Board's Decision to Uphold the Issuance of the Certificates was an Abuse of Discretion

“[C]ourts are not to substitute their judgment for that of the board, 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 ․” Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547, 684 A.2d 735 (1996).   Appeals from zoning board decisions are only decided on the record before the board, Vine v. Zoning Board of Appeals of Town of North Branford, 281 Conn. 553, 560, 916 A.2d 5 (2007), and upon appeal, the trial court reviews this record to determine whether the board has acted fairly or with proper motives or upon valid reasons ․” Bloom v. Zoning Board of Appeals of City of Norwalk, 233 Conn. 198, 206, 658 A.2d 559 (1995), quoting Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980).   The decision of a zoning board will only be overturned if it is illegal, arbitrary, or an abuse of discretion.  Norwood v. Zoning Board of Appeals, 62 Conn.App. 528, 532, 772 A.2d 624 (2001).

However, when the appeal concerns the interpretation of city regulations, zoning board decisions are not offered traditional deference.   Here, the Board was presented with the issue of whether or not the ZEO properly applied town zoning regulations when he issued the two certificates of compliance.   In so doing, the Board was responsible for conducting a de novo review of the ZEO's actions.   See Caserta v. Zoning Board of Appeals of City of Milford, 226 Conn. 80, 90, 626 A.2d 744 (1993).   A zoning enforcement officer's decision “that is the subject of [an] appeal is entitled to no special deference by the court.”  Id. at 88–89;  see also R. Fuller, 9A Connecticut Practice Series:  Land Use Law and Practice (3d Ed.2007) § 33:7, p. 262.   As such, on appeal, a zoning board cannot simply accept the interpretation of a zoning enforcement officer.   The board must state its reasons for its actions—if it does not, the court “must search the record to attempt to find some basis for the action taken ․ If none is found, the action of the board cannot be upheld.”  Ward v. Zoning Board of Appeals of Town of Hartford, 153 Conn. 41, 144, 215 A.2d 104 (1965).

A review of the record indicates that, (1) the Board did not conduct a de novo review of the pertinent zoning regulations and (2) accepted the ZEO's interpretation of those regulations instead.   In coming to its decision, the Board never once considered Section 14–1–1 of Bridgeport's Zoning Regulations.   In fact, the Board never considered any regulatory authority in determining whether or not the ZEO acted lawfully when he issued the Certificates of Compliance.

Here, the Board accepted, without stating any reasons why, the ZEO's own interpretation of its regulatory authority.   The Board cannot accept the ZEO's interpretation without performing a review of the issue itself.   There was no such review done here.   As such, the Board's decision to accept the ZEO's decision was an abuse of discretion and must be overturned.

Before concluding, it should be noted that in connection with this appeal, there is an issue that relates to Jolis Visages and not to any of the other named defendants.   The Board argues that if Jolis Visages' certificate of compliance is revoked, the store will have to close or move.   E & A argues that this court cannot uphold the unlawful issuance of certificates of compliance in order to provide a form of equitable relief to Jolis Visages.

E & A is correct, and although Jolis Visages may be forced to close or move, that reason alone cannot be the basis for this court to uphold the unlawful issuance of certificates of compliance.   Jolis Visages can certainly remedy the problem by taking steps to become complaint with Bridgeport Zoning Regulations.   What Jolis Visages cannot do however is, remain non-compliant while simultaneously argue that their non-compliance would be unfair to them.   This position, if accepted, would undermine the City's zoning regulations.   Therefore, this court cannot accept Jolis Visages' argument despite the unfortunate and certainly unintended consequences that may occur.

In conclusion, E & A's appeal to this court is sustained.   The Board's decision to uphold the ZEO's issuance of two Certificates of Compliance is overruled and the certificates are revoked.

By the Court,

OWENS, J.T.R.

FOOTNOTES

FN1. The plaintiff's appeal is consolidated because E & A argued in separate complaints that two certificates of zoning compliance were issued unlawfully.   Both issuances arise out of the same set of operative facts and both issuances concern the same defendant.   Additionally, the plaintiff's claims for relief are the same.   Therefore, it is appropriate to treat both cases as one..  FN1. The plaintiff's appeal is consolidated because E & A argued in separate complaints that two certificates of zoning compliance were issued unlawfully.   Both issuances arise out of the same set of operative facts and both issuances concern the same defendant.   Additionally, the plaintiff's claims for relief are the same.   Therefore, it is appropriate to treat both cases as one.

FN2. 4615 Main Street is located in a Mixed Use Educational/Medical Zone (MU–EM)..  FN2. 4615 Main Street is located in a Mixed Use Educational/Medical Zone (MU–EM).

FN3. In December of 2007, Voll appealed the Board's decision to uphold the ZEO's Order of Compliance.   When the Certificates of Compliance were issued to Shangri–La and Jolis Visages, the issue was still on appeal.   In September 2010, the trial court dismissed Voll's appeal.   Therefore, the orders to comply are still applicable to the property in question.   Jolis Visages, as a retail store, was approved because its use conformed to the pre-construction plans..  FN3. In December of 2007, Voll appealed the Board's decision to uphold the ZEO's Order of Compliance.   When the Certificates of Compliance were issued to Shangri–La and Jolis Visages, the issue was still on appeal.   In September 2010, the trial court dismissed Voll's appeal.   Therefore, the orders to comply are still applicable to the property in question.   Jolis Visages, as a retail store, was approved because its use conformed to the pre-construction plans.

FN4. As a justification for his actions, the ZEO stated that he looked at each proposed use independently, ignoring the existing violations on the site..  FN4. As a justification for his actions, the ZEO stated that he looked at each proposed use independently, ignoring the existing violations on the site.

FN5. Certificates of Compliance are a necessary prerequisite in order to obtain a building permit or certificate of occupancy.   See General Statutes § 8–3(f)..  FN5. Certificates of Compliance are a necessary prerequisite in order to obtain a building permit or certificate of occupancy.   See General Statutes § 8–3(f).

FN6. For retail uses, city regulations require at minimum, 3.5 parking spaces per 1,000 square feet.   For restaurant uses like Subway, city regulations require at minimum, 12 spaces per 1,000 square feet.   When both retail and restaurant uses are on the same site, the minimum required spaces is calculated based on the “sum of parking requirements of the individual use components.”.  FN6. For retail uses, city regulations require at minimum, 3.5 parking spaces per 1,000 square feet.   For restaurant uses like Subway, city regulations require at minimum, 12 spaces per 1,000 square feet.   When both retail and restaurant uses are on the same site, the minimum required spaces is calculated based on the “sum of parking requirements of the individual use components.”

Owens, Howard T., J.T.R.