LLC v. Old Lyme Zoning Board of Appeals (2012)

MEMORANDUM OF DECISION

I.

Statement of the Appeal

By their amended complaint, Sound View Property Management, LLC and On The Beach, LLC (hereinafter the plaintiffs) appealed from the action of the Zoning Board of Appeals of the Town of Old Lyme (hereinafter the Board) denying plaintiffs' appeal from the actions of Ann C. Brown, the zoning enforcement officer (hereinafter the ZEO) of the Town of Old Lyme. The ZEO has been made a party in this appeal.   The Board and the ZEO are hereinafter referred to as the defendants.

II.

Jurisdiction

General Statutes § 8–8(b) governs appeals from the decisions of zoning boards of appeals to the Superior Court.  “The statutory right of appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.”  (Internal quotation marks omitted.)  Cardoza v. Zoning Commission, 21 Conn. 78, 82 (1989).

a.

Aggrievement

“Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of plaintiff's appeal ․ In order to have standing to bring an administrative appeal, a person must be aggrieved.”   (Citations omitted;  internal quotation marks omitted.)  Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 664 (2006).   Two broad yet distinct categories of aggrievement exist, classical and statutory.   “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538–39 (2003).   Plaintiff may prove aggrievement by testimony at the time of trial;  Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308 (1991);  or “by the production of the original documents or certified copies from the record.”  (Internal quotation marks omitted.)  Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 703 (2001).

The evidence indicates that at all times relevant Sound View Property Management, LLC was, and continues to be, the owner of the real property which is the subject of this appeal.   The evidence also indicates that at all times relevant and continuing On The Beach, LLC was a tenant conducting business on the property in question.   It is, therefore, found, that plaintiffs are statutorily and classically aggrieved and have standing to prosecute this action.

b.

Timeliness and Service of Process

Pursuant to General Statutes § 8–8(b) “an appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within 15 days from the date the notice of the decision was published as required by the General Statutes ․” Notice of the decision which is the subject of this appeal was published in the New London Day on October 22, 2010.   This action was commenced by service of process on November 5, 2010.

It is, therefore, found that service of process was properly made and such action was commenced within the time allowed by statute.

III.

Scope of Review

In considering the issues raised in this appeal, the scope of judicial review is limited.  Horn v. Zoning Board of Appeals, 18 Conn.App. 674, 676 (1989).   The authority of the court is limited by Section 8–8 to a review of the proceedings before the Board.   The function of the court in such a review is to determine whether the Board acted fairly or on valid reasons with the proper motives.  Willard v. Zoning Board of Appeals, 152 Conn. 247, 248–49 (1964).   The court is limited to determining whether the record reasonably supports the conclusions reached by the Board.  Burnham v. Planning and Zoning Commission, 189 Conn. 261, 265 (1983).   The court cannot substitute its discretion for the liberal discretion confirmed by the legislature on the Board.   The court is limited to granting relief only when it can be shown that the Board acted arbitrarily or illegally and consequently has abused its authority.  Gordon v. Zoning Board, 145 Conn. 597, 604 (1958).   The burden rests with the plaintiffs to prove the impropriety of the Board's actions.   Burnham, supra, 189 Conn. 266.

It is not the function of the court to rehear the matter or question wisdom of the defendant Board in taking the action which it did.   The court is limited to determining whether or not the Board's action can be supported under the law.

The Board is authorized to decide appeals from the decisions and rulings of the ZEO under the provisions of Connecticut General Statutes § 8–6(1) and § 21.1.1 of the Old Lyme Zoning Regulations.   In an appeal from the action of a ZEO to a Board, a court reviewing the decision of the Board must focus not on the decision of the ZEO but on the decision of the Board and the record before the Board.  Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82 (1993).

In deciding such appeals concerning the interpretation of the zoning regulations as applied to a particular piece of property, the Board acts in a quasi judicial capacity.   The Board has the authority to interpret the zoning regulations and decide whether they apply in a given situation.  Stern v. Zoning Board of Appeals, 140 Conn. 241, 245 (1953).   On appeal, the court is required to decide whether the Board properly interpreted the regulations and applied them to the facts of the case.  Danseyar v. Zoning Board of Appeals, 164 Conn. 325, 327 (1973).   In reviewing the Board's decision, the credibility of witnesses and the determination of factual issues are matters within the province of the agency.  Stankiewicz v. Zoning Board of Appeals, 15 Conn.App. 729, 732 (1988).

The plaintiffs have the burden of proving that the defendant Board acted improperly.  Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1998).

Where, as here, the Board failed to state on the record the reasons for its decision, the court must search the record to discover if sufficient reasons exist to support the decision appealed from.  Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369 (1988).

IV.

Facts

Plaintiff, Sound View Property Management, LLC, acquired title to the real property at 88–90 Hartford Avenue in the Sound View area of the Town of Old Lyme on May 2, 2006.   Plaintiff, On the Beach, LLC, as tenant of plaintiff, Sound View, operates a restaurant and bar on the premises under the name “Lenny's on the Beach.”   Plaintiff's restaurant and bar business utilizes the first floor of the existing building on the premises and a 1,488 square foot beach side patio.   Prior to plaintiffs acquiring their interest in the property, the previous owners had devoted it to the same or similar commercial uses.

Before 2005, the property had been in the commercial C-b zone.   On September 1, 2005, the property was reclassified into a newly created Sound View Village District.

It appears that a disagreement existed between the ZEO and plaintiffs concerning the status of their property.   By letter dated June 28, 2012, plaintiff's attorney requested that the ZEO make a finding or ruling that the playing of live amplified music by both solo artists and bands at the 88–90 Hartford Avenue property was a pre-existing nonconforming use.   In support of this claim, the attorney enclosed the affidavits of Peter Scheits, David M. Kendall, Lisa A. DeMonti and Travis Winkley.   Documents concerning nonconforming use and the abandonment of nonconforming uses were also included.   On July 1, 2010, the supported affidavit of Todd Ray Tayler was also submitted to the ZEO. On July 9, 2010, a cease and desist order concerning the subject property was issued to plaintiffs by Ann C. Brown, Old Lyme ZEO. A corrected order was issued on July 15, 2010.   This order contained the following admonitions.

This order is issued to you because you and your agents have allowed bands to play without approval of the Zoning Commission, and you and/or your agents have installed a deck without approval of the Zoning Commission, and you and/or your agents have installed a food cart selling take-out food items without approval of the Zoning Commission.

This/These conditions/activities constitute a violation of the following Section(s) of the Zoning Regulations of the Town of Old Lyme:  Section 5.13.3, Section 5.13.4.3.e, Section 5.13.4.n, Section 10.3.1.1

Therefore, you are hereby ordered to discontinue the preceding violations and you must do so within ten (10) days of the receipt of this order, per Connecticut General Statutes Section 8–12.

On August 5, 2010, plaintiffs appealed this cease and desist order to the Board under the provisions of Connecticut General Statutes § 8–6(1).   On the appeal form, plaintiffs stated that the ZEO's order should be reversed because:

Playing of music by live, amplified bands both indoors and outdoors at 99–90 Hartford Avenue is a pre-existing nonconforming use which has never been abandoned or relinquished.

Sale of take-out food items to walk-up customers is also a pre-existing, nonconforming use which has never been abandoned or relinquished.

A public hearing on plaintiffs' appeal to the Board was scheduled for September 21, 2010.   At the hearing, the ZEO testified as to her reasons for issuing the cease and desist order.   Photographs were introduced into evidence and the fire marshal submitted a letter and photograph.   The ZEO's attorney also addressed the Board.   Plaintiffs' attorney also addressed the Board.   Plaintiffs' attorney made a presentation to the Board stating that the use of amplified live bands was a nonconforming use of the premises as was the take-out food use and that the deck was not subject to the regulations.   Leonard T. Corto, Jr., On the Beach member and owner of property at Sound View since 1974, and Frank Noe, managing member of Sound View Property Management, LLC, also testified.   Vic Dellaripa and others spoke about problems with the loud amplified music emanating from plaintiffs' establishment.   On motion properly seconded and voted, it was decided to continue the public hearing to October 19, 2010.   At this hearing, the ZEO's attorney spoke and exhibits were introduced into evidence.   A letter from the attorney representing the Board was also introduced.   Plaintiffs' attorney also addressed the Board and presented a history of the premises.   Mr. Noe also spoke.   There was no audience participation.

At the conclusion of the public hearing, the Board discussed each of the three elements of the cease and desist order.   After such discussion, a motion was made and seconded to uphold all three aspects of the cease and desist order presented by plaintiffs' appeal.   Without further discussion, the Board voted unanimously to uphold the action of the ZEO.

Although during the discussion of the issues prior to the vote, the individual members of the Board expressed their positions on the issues no formal statement of the reasons for the decision was made by the Board.

Notice of the decision of the Board was published in the New London Day on October 22, 2010.   This appeal to court was commenced on November 5, 2010.

On June 6, 2011, the parties entered into a stipulation before the Hon. Seymour Hendel.   The stipulation provided that the zoning authorities of the Town of Old Lyme, during the pendency of this appeal, would not commence an action to enforce the zoning regulations regarding the playing of amplified music at 88 Hartford Avenue.

Additional facts will be stated as required.

V.

Analysis

Briefs were properly filed by the parties of interest.   The court is not bound to consider any claim of law not briefed.  Shaw v. Planning Commission, 5 Conn.App. 520, 525 (1998);  Moulton Brothers, Inc. v. Lemieux, 74 Conn.App. 357, 363 (2002).

From the briefs and the claims of the parties, the following issues have been raised and must be addressed by the court.  (1) Whether plaintiffs have a legally constituted nonconforming use for the performance of amplified outdoor band music without a permit or whether such nonconforming use has been abandoned.  (2) Whether plaintiffs have a legally constituted nonconforming use to continue the food cart selling take-out food items without approval of the zoning commission.  (3) Whether the temporary bandstand constitutes a deck or structure so as to require the approval of the zoning commission.

The issues here involve a claim that plaintiffs are engaging in certain activities which may be allowable under the regulations but that plaintiffs are engaging in such activities without proper authorization from the zoning authorities.   Plaintiffs contend that they do not require any such authorization since they have a right to engage in such activities as a nonconforming use and that the temporary bandstand is not covered by the regulations.

Since the Board did not formally state the reasons for its decision on the record, the court must search the record to discover if the decision of the Board is supported by substantial evidence in the record.  Grillo v. Zoning Board of Appeals, supra, 206 Conn. 369.

(1)

“The ZEO's cease and desist order, which was upheld by the Board, charges that plaintiffs have allowed bands to play without approval of the Zoning Commission.”   The order describes this activity as a violation and requires plaintiffs to discontinue it.   Plaintiffs do not dispute that bands play on the premises as a part of their business.   In fact, the stipulation of June 6, 2011, allows the playing of amplified music on the premises.

It is plaintiffs' contention that they have a vested nonconforming use in the playing of amplified band music at “Lenny's on the Beach.”  Connecticut General Statutes § 8–2 states that zoning regulations “shall not prohibit the continuance of any nonconforming use ․ existing at the time of the adoption of such regulations.”  “A lawfully established nonconforming use is a vested right and is entitled to constitutional protection.”  Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 484 (1979).   For use to be considered nonconforming under Connecticut case law, it must possess two characteristics.  “First, it must be lawful;  and second, it must be in existence at the time the zoning regulation making the use nonconforming was established.”  Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 712 (1986).

In the case at bar, the regulations which made the playing of amplified band music nonconforming without a permit was the amendment to the zoning regulations establishing the Sound View Village District in 2005.   The uncontroverted evidence indicates that the playing of amplified band music took place on the premises before and after 2005.   Defendants do, however, claim that the use, that is the playing of amplified band music, was abandoned.   As plaintiffs state in their brief;  “this case is then, really about abandonment of a legal nonconforming use.”

Connecticut General Statutes § 8–2 states:

Such regulations shall not provide for the termination of any nonconforming use solely as a result of non-use for a specified period of time without regard to the intent of the property owner to maintain that use.

“It is a well-established rule that before a nonconforming use can be found to have been abandoned, there must be an intention on the part of the owner to relinquish permanently the nonconforming use ․ Abandonment in this jurisdiction is a question of fact ․ It implies a voluntary and intentional renunciation ‘but the intent may be inferred as a fact from the surroundings circumstances.’  “ Blum v. Lisbon Leasing Corporation, 173 Conn. 175, 181–82 (1977).

It is the claim of defendants that plaintiffs' predecessor in title, Jibb 88, voluntarily and intentionally relinquished the nonconforming use involving the playing of amplified band music.

The record discloses that prior to Jibb 88 acquiring the property, it was a biker bar and its operation was described as rowdy and loud.   The new owner came before the Board for variances to the building in 2003.   Some of the present members of the Board were members at that time and recalled what occurred.   The members of the Board's personal recollections and observations may be considered.  Raczkowski v. Zoning Commission, 53 Conn.App. 636, 645 (1999), cert. denied, 250 Conn. 921.   During the presentation before the Board in 2003, it was represented that Jibb 88 would concentrate on the restaurant aspects of the business.   Jibb 88 intended to have a high quality family restaurant.   It was indicated at the hearing that Jibb 88 did not intend to continue outdoor music.   The position of Jibb 88, with respect to music as stated at the 2003 hearing was confirmed by the recollections of the ZEO.

In order to obtain a liquor permit, the applicant was required to obtain certification from the local zoning authority.   Although the copy of the application filed by Jibb 88 as a part of the record, it is unclear it would appear from the evidence that the type of live entertainment stated on the application was “solo acoustic.”   The application filed in 2006 by Beach Comber, LLC also indicated that the type of live entertainment on the property would be solo acoustic.   The application filed for Ziggy's on the Beach in 2007 states that the live entertainment would be solo acoustic.   When Leonard Corto applied for a liquor permit on behalf of Lenny's on the Beach in April 2008, there was testimony that plaintiffs were under pressure to open by Memorial Day. They were informed by the ZEO that live entertainment was limited to solo acoustic.   In their application for a liquor permit, plaintiffs acquiesced and stated that live entertainment would be solo acoustic.   The term solo acoustic is considered to be music provided by a single musician playing and instrument so designed that the instrument itself provided the sound as a piano or a violin, as opposed to an instrument which required electrical amplification.   This would differ substantially from the amplified bands plaintiffs claim as a nonconforming use.

Abandonment of a nonconforming use is a question of fact.  Blum v. Lisbon Leasing Corp., supra, 173 Conn. 182.   The intent to abandon the nonconforming use may be inferred from the facts surrounding the circumstances.  Appeal of Phillips, 113 Conn. 40, 46 (1931).   Although the Board did not formally state the reasons for its decision, abandonment of the nonconforming use underlies the decision appealed from.   Considering all of the evidence, it must be found that there is substantial evidence in the record to support a conclusion that in 2003, Jibb 88 intentionally abandoned the use of amplified bands and music on the property in favor of the more sedate solo acoustic form of entertainment.   There was also substantial evidence in the record that this use was actually abandoned during the period 2003 to 2006.   The Board was entitled to rely on the testimony of the ZEO in this regard as well as the recollections of some of its members.   The affidavits submitted by plaintiffs do not contradict this.

Abandonment is further confirmed by the liquor permit applications indicating that the live entertainment was limited to solo acoustic.

There is substantial evidence in the record to support a conclusion that at the time the revised zoning regulations went into effect in 2005 the playing of amplified band music at 88–90 Hartford Avenue had been intentionally abandoned.

Although nonconforming uses are protected, the law recognizes that “nonconforming uses should be abolished or reduced to conformity as quickly as the fair interest of the parties will permit ․” Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 710 (1988).  “The accepted method of accomplishing the ultimate object is that, while the alien use is permitted to continue until some change is made or contemplated, there upon, so far as is expedient, advantages taken to compel a lessening or suppression of the nonconformity.”   Id. For this reason the playing of amplified band music after the use had been abandoned is irrelevant.   The nonconforming use had ceased to exist and could not be revived by occasional violations.

(2)

The order of the ZEO, which was the subject of the appeal to the board, ordered plaintiffs to discontinue the use of “a food cart selling take-out food items” at 88–90 Hartford Avenue.   Plaintiffs claim that they have a legally constituted nonconforming use to continue the food cart selling take-out food without approval of the zoning commission.   For a use such as the food cart to be a nonconforming use, it must possess two characteristics.  “First, it must be lawful;  and second, it must be in existence at the time the zoning regulations making the use nonconforming was established.”  Helicopter Associates, Inc. v. Stamford, supra, 201 Conn. 712.

There is evidence in the record that take-out food was served on the premises in the past.   Food was dispensed through a window in the building to customers outside.   There was also evidence that a vending cart and a grill may have been used at various times.   The food cart, which plaintiffs claim they have a right to use, is much larger than any vending cart or grill.   From the photographs in evidence, it appears to have a trailer hitch and the person preparing the food would work inside the cart.   Plaintiffs argue that even if no cart were used in the past, the reconforming use is the selling of take-out food and use of the cart is simply an improved and more efficient instrumentality.

In this argument, plaintiffs rely on DeFelice v. Zoning Board of Appeals, 130 Conn. 156 (1943).   In this case, DeFelice operated a commercial sand pit utilizing picks and shovels with power shovels as a nonconforming use.   When the town zoning official refused permission for DeFelice to construct and erect a Wet Sand Classifier on the premises, an appeal was made to the Zoning Board of Appeals.   As plaintiffs in the case at bar, DeFelice urged that the Wet Sand Classifier involved no extension of the nonconforming use but rather was merely the substitute of a more modern and efficient apparatus and method for that formerly used.   The Board disagreed and upheld the decision of the zoning officer.   The trial court affirmed the action of the Board.   In upholding the position of the trial court, the Supreme Court stated that the “[b]oard could properly have found that this (the Wet Sand Classifier) constituted a departure from the original nature and purpose of the use ․” The DeFelice case does not support plaintiffs' argument.

A nonconforming use cannot be changed, altered, expanded or enlarged.   Munroe v. Zoning Board of Appeals, 75 Conn.App. 796 (2003).   There is substantial evidence in the record to support a finding that the food cart utilized by plaintiffs constituted an illegal expansion of a nonconforming use.

(3)

The cease and desist order issued by the ZEO which was appealed to the Board claims that plaintiffs “and/or your agents have installed a deck w/o approval of the zoning commission ․” Plaintiffs were ordered to discontinue this violation.

Evidence in the record indicates that for some time a platform or temporary bandstand had existed at Lenny's on the Beach.   The platform was movable and there was evidence that it had increased in size and was used as a bandstand.   It was removed seasonally.   Plaintiffs do not claim that the platform is a nonconforming use.   Rather, plaintiffs claim that it is not covered by the regulations.

Plaintiffs point out that a “deck” is defined by section 3.2.43 as “an accessory structure consisting of one or more horizontal surfaces attached to and extending from the dwelling ․” There is no evidence to indicate that the platform has ever been attached to any dwelling or other building.   It therefore could not be considered to be a deck as defined in the regulations.

Defendants however claim that the platform could be considered a “structure” as defined by the regulations and would therefore require a zoning permit under section 20.3.1 of the regulations.

Although the cease and desist order described the platform as a deck, all parties understood that the order was directed to the platform or temporary bandstand on the property.   This object had been the subject of a prior cease and desist order.   The order was withdrawn after the attorney then representing plaintiffs agreed to remove it and apply for a zoning permit.   Plaintiffs' attorney has also addressed the claim that the platform was a structure in his brief.

Structure is defined by Section 3.2.194 as:

Structure. Anything which is constructed or erected and the use of which requires more or less permanent location on ground or water areas or attachment to something having permanent location on ground or water areas, not, however, including wheels;  an edifice or a Building of any kind;  any production or piece of work, artificially built up or composed of parts and joined together in some definite manner, including Signs, vending machines, Fences or walls over six (6) feet in height, a wharf or dock, an above-ground tank, or a detached solar panel or satellite dish.   This definition includes “manufactured homes.”   A Structure shall not include a flagpole or an ornamental well.  [From former Section 9.1, Amended Effective 4/3/95 and 3–7–08.]

The platform could be found to be a thing which is “constructed or erected and the use of which requires more or less permanent location on ground.”   The phrase more or less would indicate that the structure need not be anchored to one spot.   The platform could also be found to be “a piece of work artificially built up and composed of parts and joined together in some definite manner.”

It must be found then that the platform or bandstand could reasonably fit within the definition of a structure as defined in the Zoning Regulations.   As a structure it would require a zoning permit under the provisions of section 20.3.1 of the regulations.

VI.

Conclusion

There is substantial evidence in the record to support a finding that the nonconforming use for the performance of amplified outdoor band music at 88–90 Hartford Avenue had been abandoned by plaintiffs' predecessors in title.   Consequently, plaintiffs do not have a nonconforming use to conduct such entertainment on the premises.   Plaintiffs have not proven that they have a valid nonconforming use to the food cart in question.   The platform, or bandstand, located by plaintiffs on the premises is a structure as defined by the zoning regulations and therefore requires a zoning permit.

In upholding the action of the ZEO, the Board acted fairly on valid reasons with proper motives.   The Board properly interpreted the regulations and applied them to the facts of the case.   There is substantial evidence in the record to support the decision of the Board.

Accordingly, the decision of the Board is affirmed and the appeal is dismissed.

Joseph J. Purtill

Judge Trial Referee

FOOTNOTES

FN1. Sections 5.13.3, 5.13.4.3.e and section 5.13.4.n refer to entertainment and takeout food uses by special permit within the Sound View Village District..  FN1. Sections 5.13.3, 5.13.4.3.e and section 5.13.4.n refer to entertainment and takeout food uses by special permit within the Sound View Village District.

Purtill, Joseph J., J.T.R.