Gilda Rinaldi et al. v. Zoning Board of Appeals Town of Middlebury et al. (2013)

MEMORANDUM OF DECISION RE PLAINTIFFS' APPEAL FROM THE DECISION OF THE MIDDLEBURY ZONING BOARD OF APPEALS

The plaintiffs, Gilda Rinaldi, Michael Rinaldi, Vottoria Dauphinais and Rita Rinaldi (Rinaldis), appeal from a decision of the defendant Middlebury zoning board of appeals (board) regarding property owned and occupied by the defendants Jeffrey and Kristen McCasland.   On appeal, the Rinaldis claim that the board improperly denied their request for issuance of a cease and desist order for occupancy of the McCaslands' property, located at 210 Richardson Drive, due to that residence's alleged nonconformance with town zoning regulations.   Specifically, the Rinaldis claim that denial of their request was improper because the board erroneously applied the limitations provision of General Statutes § 8–13a to the present matter and, furthermore, failed to comply with the town's zoning regulations.

FACTS

The following facts, as gleaned from the record, inform the court's resolution of the Rinaldis' claims.   In late 2002, the McCaslands applied for and received a certificate of zoning compliance from the Middlebury zoning enforcement officer to construct a single-family home at 210 Richardson Drive.  [ROR # 19.]   A building permit subsequently was issued.  [ROR # 12.]   In September 2003, the McCaslands received a temporary certificate of occupancy and moved into the home.  [ROR # 7 p. 9, 13, 14, 15.]   A final certificate of occupancy for the home was issued in April 2008.  [ROR # 23.]

In November 2009, the Rinaldis, through counsel, contacted the town's zoning enforcement officer, requesting a cease and desist order be issued to the McCaslands “to require application to the [board] for any requisite variances.”  [ROR # 1.]   The letter stated the Rinaldis' belief that the McCasland property suffered from a number of zoning deficiencies, including inadequate street frontage, inadequate lot size and setbacks, and an inability to meet “lot square” standards.  [ROR # 1.]   The zoning officer did not act on the Rinaldis' request.  [ROR # 2;  23.]   Thereafter, in February 2010, the Rinaldis appealed to the board the zoning officer's “failure to issue [a] cease and desist order for occupancy” of the McCasland residence.  [ROR # 2.]   The board held public hearings on the Rinaldis' request and received evidence.   [ROR # 4, 7, 8.] On August 4, 2010, the board voted unanimously to deny the Rinaldis' application for the cease and desist order.  [ROR # 5, 9.] The Rinaldis' appeal to this court followed.

AGGRIEVEMENT

The court first must address whether the Rinaldis have pleaded and proved aggrievement.  Lucas v. Zoning Commission, 130 Conn.App. 587, 590, 23 A.3d 1261 (2011).   The court finds that the Rinaldis, as abutting landowners of the property that is the subject of the board's decision, are aggrieved.   See General Statutes § 8–8.

DISCUSSION

The Rinaldis claim that the board erroneously denied their request based on the limitations provision of § 8–13a.   The Rinaldis argue that the statute only applies to structures built on undersized lots or in violation of setback requirements.   They further contend that the language of the statute does not address improper street frontage, a primary issue raised in their argument before the board.¹

The board responds, arguing that it acted within its discretion when it denied the Rinaldis' request.   Specifically, the board contends that the Rinaldis' application for a cease and desist nearly five years after completion of construction on the McCaslands' home is untimely.   The board maintains that the Rinaldis' claims are time barred under § 8–13a and that the board's decision is supported by the record.

“[F]ollowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board.”  (Internal quotation marks omitted.)  Mountain Brook Assn., Inc. v. Zoning Board of Appeals, 133 Conn.App. 359, 363–64, 37 A.3d 748 (2012).  “The Superior Court's scope of review [of a zoning board decision] is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal.”  R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).  “It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own.”  (Internal quotation marks omitted.)  Id.

The court agrees with the board that the Rinaldis' claims are untimely.   Section 8–13a(a) “amounts to a statute of limitations for [certain] non-conforming buildings”;  (internal quotation marks omitted) Benson v. Zoning Board of Appeals, 89 Conn.App. 324, 330, 873 A.2d 1017 (2005);  and provides:  “When a building is so situated on a lot that it violates a zoning regulation of a municipality which prescribes the location of such a building in relation to the boundaries of the lot or when a building is situated on a lot that violates a zoning regulation of a municipality which prescribes the minimum area of the lot, and when such building has been so situated for three years without the institution of an action to enforce such regulation, such building shall be deemed a nonconforming building in relation to such boundaries or to the area of such lot, as the case may be.”  General Statutes § 8–13a(a).

Section 8–13a(a) protects structures that have been situated on a lot in violation of certain zoning provisions for three years without the institution of a zoning enforcement action.   The triggering date for running of the three-year period has been interpreted as the date of commencement of construction of the structure, not from issuance of a final building permit as the Rinaldis contend.   See Curran v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. 317566 (May 17, 1995, Moraghan, J.) (“[t]he legislative history of this statute reveals that the legislature's stated intent was to have the statutory period run from the time the nonconformity came into existence as opposed to when the [zoning enforcement officer] became aware of the nonconformance”);  see also R. Fuller, 9 Connecticut Practice Series:  Land Use Law and Practice (3d Ed.2007) § 4:35, p. 145 and 2012–13 Supplement § 4:35, p. 20.   The court agrees with those interpretations and likewise the board's conclusion that the Rinaldis' request for issuance of a cease and desist in 2008, approximately five years after completion of construction on the McCaslands' residence, is too late.   Focusing on the decision of the board and the record before it, the court determines that the board's decision is supported adequately by the record.

The appeal is dismissed.

BY THE COURT

VINCENT ROCHE, J.

FOOTNOTES

FN1. Section 8.8 of the zoning regulations of the town of Middlebury provides, in relevant part:  “Each interior lot must have a frontage effective for access purposes of not less than fifty (50) feet on a public street ․” [ROR # 29, p.8–5.] Both the certificate of zoning compliance and the “as built” map of the McCasland property indicate that the property has adequate frontage of 50.77 feet on a public street.  [ROR 10;  19.].  FN1. Section 8.8 of the zoning regulations of the town of Middlebury provides, in relevant part:  “Each interior lot must have a frontage effective for access purposes of not less than fifty (50) feet on a public street ․” [ROR # 29, p.8–5.] Both the certificate of zoning compliance and the “as built” map of the McCasland property indicate that the property has adequate frontage of 50.77 feet on a public street.  [ROR 10;  19.]

Roche, Vincent E., J.