LLC v. Zoning Board of Appeals of the City of Derby (2013)

MEMORANDUM OF DECISION

I

STATEMENT OF APPEAL

In this appeal, the plaintiff, Schrade Roosevelt, LLC, challenges the decision of the defendant, the zoning board of appeals for the city of Derby, in which it upheld the June 1, 2012 cease and desist order of its zoning enforcement officer.   The cease and desist order directed the plaintiff to cease the use of certain parcels of property as a staging and storage area for tractor trailer trucks and other equipment.

II

FACTUAL BACKGROUND

The plaintiff owns several parcels of real property in the city of Derby.   Exhibit (Ex.) 1. Two parcels, known as lots 133 and 135 on Derby assessor's map 10–3, are located at 259 Roosevelt Drive and 114 Park Avenue, respectively.   Ex. 1;  Return of Record (ROR) 5. Four other parcels, known as lots 136 through 139 on Derby assessor's map 10–3, are located across Park Avenue from lots 133 and 135.   Ex. 1;  ROR 5. Lots 133 and 135 and the building thereon are located in an I–1 zone, while lots 136, 137, 138 and 139 and the parking lot located thereon are located in an R–5 zone.   ROR 5;  Derby Zoning Regs., zoning map;  Supplemental Return of Record (SROR) 1, p. 3. It is the parking lot which is the subject of this appeal.

In a letter dated June 1, 2012, the zoning enforcement officer, David Kopjanski, issued a cease and desist order to the plaintiff, informing it that it must cease its use of the parking lot for the staging and storing of tractor trailer trucks and related equipment.   ROR 1. Specifically, Kopjanski instructed the plaintiff that the parcels on which the parking lot exists were in an R–5 zone and the plaintiff's current use of the parking lot was neither a permitted use nor special exception.¹  ROR 1.

In an application dated June 13, 2012, the plaintiff appealed the cease and desist order to the defendant.   ROR 3. The plaintiff claimed that its usage of the lots as a parking lot was a protected preexisting nonconforming use because “[the] parking lot has been previously approved and in existence providing parking for the building located at 259 Roosevelt Drive for over thirty (30) years.”   ROR 3.

On August 2, 2012, the defendant held a public hearing to consider the plaintiff's appeal.   SROR 1, p. 1. With only four members of the defendant present, the defendant warned Thomas Welch, counsel for the plaintiff, that the plaintiff would need a unanimous decision by the defendant in order to sustain the appeal.   SROR 1, p. 2. Articulating the plaintiff's position, Welch argued that the parking lot has been used for that purpose by the previous owner since at least 1981 to provide parking for its employees, that it is still being used as a parking lot and that the only difference between the prior owner's use and the plaintiff's use is “the type and style of vehicle.”   SROR 1, pp. 3–5.   Kopjanski also explained the basis for his cease and desist letter.   He admitted that, although there is no record of the change in use from residential to parking lot, the prior owner did get permission at some point as the defendant had accepted a variance application in 1981 and had allowed the prior owner to install a six-foot fence to eliminate the effect of noise and light from the parking lot on adjoining properties.   SROR 1, pp. 7–8.   Kopjanski explained that this past use as employee parking was different from the plaintiff's present use for tractor trailer truck storage.   SROR 1, p. 8. Kopjanski also noted that this change in use from employee parking to truck storage and staging is forbidden by § 195–61c of the Derby zoning regulations, which places considerable limitations on the storage of commercial vehicles in residential zones.   SROR 1, p. 9. Finally, the defendant heard statements by various members of the public as well as George Schrade, a member of the plaintiff, concerning various issues including the past use of the parking lot by its prior owner and the present use by the plaintiff.   SROR 1, pp. 10–20.

After the close of the public hearing, the members of the defendant discussed whether to vacate the cease and desist order.   SROR 1, pp. 21–22.   One member asked Kopjanski if he had anything he wanted to add.   SROR 1, p. 22.   Kopjanski explained that the issue before the defendant was whether the plaintiff's present activities were a change of use or an intensification of an existing use and how the dispute should be handled depending on the defendant's resolution of that issue.   SROR 1, p. 23.   He also opined on various reasons why a zone change rather than a variance would be the preferable mechanism to alter the zoning requirements if the defendant determined the plaintiff's activities were a change in use.   SROR 1, p. 23.

A motion was made that the plaintiff's use was merely an intensification of the preexisting nonconformity and therefore protected by § 195–86 of the Derby zoning regulations.   ROR 10, pp. 4–5;  SROR 1, pp. 23–24.   Three members voted in favor of the motion, but one member, Richard Bartholomew, voted against it.   ROR 10, p. 5;  SROR 1, p. 24.   Without the requisite four votes needed to reverse the cease and desist order;  see General Statutes § 8–7;  the motion was denied.   ROR 10, p. 5.

Notice of the defendant's decision was published in the New Haven Register on August 10, 2012.   ROR 9. This appeal was commenced by service of process on August 23, 2012.   Marshal's Return.   Additional facts will be discussed below as needed.

III

JURISDICTIONAAggrievement

“[A]ggrievement is a basic requirement of standing, just as standing is a fundamental requirement of jurisdiction.   If a party is found to lack [aggrievement], the court is without subject matter jurisdiction to determine the cause.”  (Internal quotation marks omitted.)  Abel v. Planning & Zoning Commission, 297 Conn. 414, 437, 998 A.2d 1149 (2010).  “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  (Internal quotation marks omitted.)  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 400, 920 A.2d 1000 (2007).

“The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination:  [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole.   Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] ․ Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.”  (Internal quotation marks omitted.)  Id.

Here, the plaintiff owns the property containing the parking lot at the center of this dispute.   Ex. 1. It presently appeals the defendant's decision to uphold the cease and desist letter, a decision which effectively prevents the plaintiff from using the parking lot for the staging and storing of trucks in the course of its business.   The plaintiff has demonstrated that it is aggrieved.

B

Timeliness

Pursuant to General Statutes § 8–8(b), a party must commence an appeal “by service of process ․ within fifteen days from the date that notice of the decision was published ․” General Statutes § 8–8(b).  The notice of publication was published on August 10, 2012.   ROR 9. On August 23, 2012, the plaintiff commenced this action through service of process on the town clerk.   Marshal's Return.   The plaintiff has timely commenced this appeal.

IV

SCOPE OF REVIEW

A zoning board of appeals is empowered “[t]o hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter ․” General Statutes § 8–6(a)(1).   Reversing the decision of zoning enforcement officer requires the concurring vote of four members of a zoning board of appeals.  General Statutes § 8–7.

“In reviewing the actions of a zoning board of appeals ․ the board is endowed with liberal discretion and ․ its actions are subject to review by the courts only to determine whether they are unreasonable, arbitrary or illegal ․ The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision ․ [A] zoning board of appeals hears and decides an appeal de novo ․ It is the board's responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts ․ In doing so, the board is endowed with a liberal discretion ․ Indeed, under appropriate circumstances, the board may act upon facts which are known to it even though they are not produced at the hearing ․ Upon an appeal from the board, the court must focus on the decision of the board and the record before it ․

“It is well settled that the courts should not substitute their own judgment for that of the board and that the decisions of the board will not be disturbed as long as an honest judgment has been reasonably and fairly made after a full hearing ․ The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings ․ Upon an appeal from the judgment of the trial court, we review the record to see if there is factual support for the board's decision, not for the contentions of the applicant ․ to determine whether the judgment was clearly erroneous or contrary to law ․

“In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record.   The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] ․ The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached ․ If the trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board ․ If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court ․ cannot substitute its judgment as to the weight of the evidence for that of the commission.”  (Citation omitted;  internal quotation marks omitted.)  Woodbury Donuts, LLC v. Zoning Board of Appeals, 139 Conn.App. 748, 758–59, 57 A.3d 810 (2012).

“Under our well established standard of review ․ [a]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts ․ Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.”  (Internal quotation marks omitted.)  Heim v. Zoning Board of Appeals, 289 Conn. 709, 714–15, 960 A.2d 1018 (2008).   “[Z]oning regulations are local legislative enactments ․ and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes ․ Whenever possible, the language of zoning regulations will be construed 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, [courts] 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.)  Id., 715–16.

“When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision ․ Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations ․ The principle that a court should confine its review to the reasons given by a zoning agency ․ applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action ․ It does not apply to mere utterances of individual members of the agency.”  (Citations omitted;  internal quotation marks omitted.)  Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).  “[C]ases in which [the Supreme Court] ha[s] held that the agency rendered a formal, official, collective statement involve circumstances wherein the agency couple[d] its communication of its ultimate decision with express reasons behind that decision.”  Id., 420–21.  “When a zoning commission has not stated on the record the basis of its determination, the reviewing court must search the record to determine the basis for the commission's decision ․ If any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld.”  (Citation omitted;  internal quotation marks omitted.)  Clifford v. Planning & Zoning Commission, 280 Conn. 434, 452, 908 A.2d 1049 (2006).

V

DISCUSSION

The plaintiff asserts two grounds for this appeal.   First, the plaintiff argues that the defendant improperly allowed Kopjanski to participate in its deliberation after the close of the public hearing and that his participation was prejudicial to the plaintiff's appeal.   Second, the plaintiff claims that its use of the parking lot is permitted as a preexisting, nonconforming use.   Both grounds will be considered in turn.

A

Whether Kopjanski's Participation During Deliberations Tainted the Proceedings

The plaintiff argues first that Kopjanski improperly participated in the deliberation of its appeal after the defendant had closed the public hearing.   The plaintiff argues that this participation constitutes prejudicial ex parte evidence because Bartholomew, the only member of the defendant to vote against the plaintiff's position, espoused similar reasons in voting against its appeal as those offered by Kopjanski during the defendant's deliberation.   The defendant contests the plaintiff's characterization of Kopjanski's statements on two grounds.   First, the defendant claims that Kopjanski merely provided a summary of the issues and the evidence offered during the public hearing, and therefore his statements are not new extra-record evidence.   Second, the defendant argues that, even if the court were to find that these statements are new evidence, the plaintiff was not prejudiced because the record contains sufficient evidence to support Bartholomew's position beyond the potentially tainted statements by Kopjanski and there is no evidence that the statements influenced Bartholomew's position.

“[W]hile proceedings before zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence ․ nevertheless, they cannot be so conducted as to violate the fundamental rules of natural justice ․ The commission could not properly consider additional evidence submitted by an applicant after the public hearing without providing the necessary safeguards guaranteed to the opponents of the application and to the public.   This means a fair opportunity to cross-examine witnesses, to inspect documents presented and to offer evidence in explanation or rebuttal.”  (Internal quotation marks omitted.)  Blaker v. Planning & Zoning Commission, 212 Conn. 471, 477–78, 562 A.2d 1093 (1989).   Zoning agencies, however, “are entitled to technical and professional assistance in matters that are beyond their expertise, and that such assistance may be rendered in executive session.”  Id., 478.  “[T]he use of such assistance ․ cannot be extended to the receipt, ex parte, of information supplied by a party to the controversy without affording his opposition an opportunity to know of the information and to offer evidence in explanation or rebuttal.”  (Internal quotation marks omitted.)  Id.

“The proper inquiry for a reviewing court, when confronted with an administrative agency's reliance on nonrecord information provided by its technical or professional experts, is a determination of whether the challenged material includes or is based on any fact or evidence that was not previously presented at the public hearing in the matter.”  Norooz v. Inland Wetlands Agency, 26 Conn.App. 564, 573–74, 602 A.2d 613 (1992).   This inquiry “focuses on the nature and content of the extra-record information relied on by an administrative agency,” and relevant considerations include whether the parties or court can point to “any fact or evidence relied on in those [communications] which was not already evidence of record in the administrative proceedings,” whether “the communications by the agency's technical or professional experts outside the confines of the administrative hearing were “limited to a review of, a comment on and an opinion concerning evidence of record,” and whether there is “[any] indication or suggestion in [such a] [communication] that facts not already of record in the ․ administrative proceeding were considered by [the agency's technical or professional experts] in forming [their] conclusions and recommendations to the agency.”  (Internal quotation marks omitted.)   See Megin v. Zoning Board of Appeals, 106 Conn.App. 602, 610–11, 942 A.2d 511, cert. denied, 289 Conn. 901, 957 A.2d 871 (2008), citing Norooz v. Inland Wetlands Agency, supra, 26 Conn.App. 573–74.

The role of a zoning enforcement officer in an appeal to a zoning board of appeals from a cease and desist letter blurs the line between merely providing technical or professional assistance and becoming an active party.   See Faith Tabernacle Church, Inc. v. Zoning Board of Appeals, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 94 0537604 (May 6, 1995, Holzberg, J.) (“[t]hough not literally a party to the dispute, as the moving force behind the issuance of the cease and desist order and as its principal defender on appeal to the [zoning board of appeals], the [z]oning [e]nforcement [o]fficer under the circumstances of this case, takes on the appearance and role of a party”).   Nevertheless, the appellate court has applied the same test that it uses for less interested technical and professional experts to these situations as well.   See Megin v. Zoning Board of Appeals, supra, 106 Conn.App. 611–14 (finding that zoning enforcement officer's statements to board after close of public hearing on appeal from cease and desist letter was neither new evidence nor prejudicial).

“[O]nce it has been demonstrated that an improper ex parte communication has occurred, a presumption of prejudice arises.   Although this presumption is rebuttable, the burden of showing that a prohibited ex parte communication between a commission and an applicant has not prejudiced a party must be allocated to those seeking to uphold the validity of the commission's decision.”  Blaker v. Planning & Zoning Commission, supra, 212 Conn. 562.   “The presumption of prejudice may be rebutted by evidence that the ex parte evidence or testimony was not received by the commission or was not considered by it and, therefore, did not affect the commission's final decision.”   Boris v. Garbo Lobster Co., 58 Conn.App. 29, 38–39, 750 A.2d 1152, cert. denied, 254 Conn. 910, 759 A.2d 504 (2000).

In the present case, the allegedly ex parte evidence are statements made by Kopjanski after the close of the public hearing and during the defendant's deliberations.   At the prompting of Bartholomew, Kopjanski made the following statement:

I really think the crux of the question for the board members to decide is, is this a continuation of a use which has been ongoing there for the last 20 or 30 years and only may be an intensification of that use by bringing tractor trailers trucks in there.   Or is it truly a change of use of this lot for a purpose that it originally didn't have.   Namely storing and staging tractor trailer trucks.   I really think that is the nature of the dilemma that we have.   Is it a change of use or just an intensification of an existing use.   Because if it is the latter, than [my] well respected good friend attorney Welch is correct.   That would be permitted to continue under [§ ]195–86 of our zoning regulations and also under state statute.   But if it is a change of use, then it would require a variance or better yet a zone change and is something that I had recommended for a zone change to take place, to apply to the planning and zoning commission who could change the zone from R–5 to an I–1 and put restrictions on the use of that lot;  such as hours of operation, types of screening that would be required, number of vehicles, things of that nature.   That is more in the purview of [the] planning and zoning commission than it is for a zoning board of appeals.   You don't really have that ability especially in an application like this, which isn't even asking for a variance.

SROR 1, p. 23.   The plaintiff draws particular attention to the following portion of Kopjanski's statement:  “But if it is a change of use, then it would require a variance or better yet a zone change and is something that I had recommended for a zone change to take place, to apply to the planning and zoning commission who could change the zone from R–5 to an I–1 and put restrictions on the use of that lot ․” SROR 1, p. 23;  Plaintiff's Brief, p. 9. The plaintiff attempts to show that these statements were prejudicial by pointing to an alleged similarity between Kopjanski's statements and the following reasons given by Bartholomew in voting against the plaintiff's appeal:  “I'm going to have to say no [to finding that the plaintiff's use was an intensification of a preexisting use].   I'm saying that it's a change in use of that property, that's what I'm saying.   Further to be changed, it would need either a variance or a zoning change.”   SROR 1, p. 24;  Plaintiff's Brief, p. 9.

Much of Kopjanski's statements do little more than summarize the issue before the board that evening.   See SROR 1, pp. 2–10.   Specifically, Kopjanski's statements on the determination to be made by the board and its effect on the resolution of the plaintiff's appeal mirrors the substance of a statement that he had made earlier that evening:  “[I]f the use of the lot that is accessory to that industrial use is not changing from what it was previously then [the plaintiff] would not have to appear before the zoning board of appeals for a variance or before the planning [and] zoning commission for a zone change.   But if the use does change, and it is a use that is not permitted in the R–5 zone, [the plaintiff] would have to appear before the land use boards.”   SROR 1, p. 7. A thorough review of the record, however, does not demonstrate that Kopjanski or any other party had suggested during the public hearing that a zone change was the preferable option, that a zone change would allow the planning and zoning commission to place restrictions on the use of the lots or that only the planning and zoning commission had the authority to make that determination.   Thus, the court finds that these statements constitute improper, extra-record communications.

Having found that portions of Kopjanski's statements during the defendant's deliberations qualify as improper, extra-record evidence, the burden shifts to the defendant to show that the plaintiff was not prejudiced by this evidence.   Bartholomew's statements demonstrate that he viewed the plaintiff's use of the parking lot as an impermissible change in use and that these violations could only be rectified by either a variance or a zone change;  SROR 1, p. 24;  two views which are amply supported by testimony given during the public hearing.   See SROR 1, pp. 7–9.   Importantly, there is no indication that Bartholomew, in voting against the plaintiff's appeal, relied on Kopjanski's ruminations concerning the preferability of a zone change with possible restrictions on the plaintiff's use of the lot or the limited powers of the defendant to effect that zone change.   Compare SROR 1, p. 24 with SROR 1, p. 23.   Therefore, the court finds that the defendant has shown that Kopjanski's extra-record communications did not prejudice the plaintiff.

B

Whether the Plaintiff's Use of the Parking Lot for Truck Staging and Storage Is an Intensification of a Preexisting Nonconforming Use or a New Nonconforming Use

The plaintiff next argues that its use of the parking lot for truck staging and storage is merely continuing a preexisting nonconforming use.   Specifically, the plaintiff argues that the lot has been used to provide parking to the building across the street for thirty years and that Kopjanski's interpretation impermissibly distinguishes as to the type of vehicles that can use the parking lot.   The defendant responds that the record for the August 2, 2012 public hearing supports a finding that the prior owner chiefly used the lot for the nonconforming purpose of providing parking to the employees of his business across the street, not for the staging and storing of tractor trailer trucks.   The defendant further argues that the plaintiff's interpretation would allow no distinction as to the types of vehicles that could arguably be used in a parking lot.

“A [nonconforming] use is merely an existing use the continuance of which is authorized by the zoning regulations ․ Such a use is permitted because its existence predates the adoption of the zoning regulations ․ The plaintiff bears the burden of proving the existence of a nonconforming use.”  (Internal quotation marks omitted.)   Weed v. Zoning Board of Appeals, 258 Conn. 691, 693 n.3, 784 A.2d 354 (2001).   Both the General Statutes and the Derby zoning regulations protect nonconforming uses that were lawful and in existence at the time of a change in the regulations.  General Statutes § 8–2(a);  Derby Zoning Regs., § 195–86.  “Where a nonconformity exists, it is a vested right which adheres to the land itself.”  Petruzzi v. Zoning Beard of Appeals, 176 Conn. 479, 483, 408 A.2d 243 (1979).

“[A] mere increase in the amount of business done pursuant to a nonconforming use is not an illegal expansion of the original use ․ There must be a change in the character of the existing use in order to bring it within the prohibition of the zoning ordinance.”  (Citations omitted;  internal quotation marks omitted.)  Zachs v. Zoning Board of Appeals, 218 Conn. 324, 331, 589 A.2d 351 (1991).  “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.”  Id., 332.   “[T]he legality of an extension of a nonconforming use is essentially a question of fact.”  (Internal quotation marks omitted.)  Wood v. Zoning Board of Appeals, supra, 258 Conn. 708.

In the present case, the Derby zoning regulations were adopted on January 18, 2000.   These regulations define a “nonconforming use” as “[a] use or activity which was lawful prior to the adoption, revision or amendment of a zoning ordinance but which fails, by reason of such adoption, revision or amendment, to conform to the present requirements of the zoning district.”   Derby Zoning Regs., § 195–7(A).   The regulations further define “use” as” [t]he purpose or activity for which land or buildings are designed, arranged or intended or for which land or buildings are occupied or maintained.”  (Emphasis added.)   Derby Zoning Regs., § 195–7(A).

Section 195–7(A) of the Derby zoning regulations provide the following relevant definitions concerning types of vehicles and parking.  “Automobile” is defined as “[a] self-propelled free-moving vehicle, with four or more wheels, primarily for conveyance on a street or roadway.”   Derby Zoning Regs., § 195–7(A).  “Commercial vehicle” is defined as “[a]ny motor vehicle licensed by the state as a commercial vehicle.”   Derby Zoning Regs., § 195–7(A).   The word “parking area” refers to “[a]ny public or private land area designed and used for parking motor vehicles, including parking lots, garages, private driveways and legally designated areas of public streets,” while a “parking lot” is “[a]n off-street, ground-level area, usually surfaced and improved, for the temporary storage of motor vehicles.”   Derby Zoning Regs., § 195–7(A).

Finally, § 195–61(C) of the Derby zoning regulations provides the following restriction on storing certain types of vehicles in residential districts:  “In any residence district, not more than one commercial vehicle, with a gross weight limited to two tons, may be housed on any lot, and then only in a private garage;  except that motorized equipment properly accessory to a farm, or to a group of multiple-family dwellings, may be housed, but only within a roofed enclosure.”   This section has been part of the zoning regulations since they were adopted in 2000.   Derby Zoning Regs., zoning amendments.

The defendant received testimony concerning the use of the parking lot by the prior owner and the plaintiff presently.   Providing background to the defendant, Welch noted that the prior owner used the parking lot to provide parking for its two hundred employees because “[t]he main parking lot was not [big] enough for all the cars for either shift so the lot across the street was utilized for extra parking.”   SROR 1, p. 4. Welch also testified that this use had been occurring since at least 1981, when the prior owner applied for a variance to “erect a six foot high stockade fence ․ to relieve neighbors of [the] parking lot from excess noise and lights when employees le[ft] after [the] night shift.”   SROR 1, p. 3. Welch admitted that the plaintiff is using a different type of vehicle than the employees of the prior owner:  “The only difference [between the plaintiff and the prior owners] is the type and style of vehicle.”   SROR 1, p. 4. Kopjanski contested neither Welch's characterization of the prior owner's use of the property for employee parking nor that this use was allowed:  “We don't know where [the prior owner] got permission to use these lots for employee parking, but they did ․” SROR 1, pp. 7–8.

The plaintiff purchased the property from the prior owner on December 20, 2011.   Ex. 1. Kopjanski testified that the plaintiff changed the prior owner's use of the lot from employee parking to “a tractor trailer truck storage [and] staging area which previously ․ the [prior owner] never operated that lot as such.”   SROR 1, p. 8. He also testified that this new use “as a tractor trailer truck area is more in line with ․ [a] construction contractor's yard than it is with ․ employee parking.”   SROR 1, p. 8. A member of the public, John Campoli, testified that, “when the variance was changed in [1981] and a law for parking zoning was changed, I think you must consider that at that time there was no idea of the tractor trailers being on there.   Okay, it was vehicles, [but] not tractor trailers.”   SROR 1, p. 10.

There was also testimony capable of supporting a finding that the past and present uses are drastically different in their effect on the surrounding neighborhood.   Alderman Ron Sill read a statement prepared by Alderman Arthur Gerckens, who apparently requested the cease and desist order but was unable to appear personally at the public hearing.   ROR 10, p. 3;  SROR, p. 15.   Reading Gerckens' statement, Sill stated:  “Don't say it's just another vehicle being parked in the lot.   It insults all of us who have commercial drivers licenses.”   SROR, p. 15.   Gerckens' statement attests to the considerable noise generated by the type of trucks that the plaintiff was using:  “The truck noises are extensive with the engines needing to be warmed up, the air brakes charging and releasing, the coupling of the trailers, the backup alarms, etc., all customary functions of the tractor trailer but not an equal comparison to employee parking vehicles.”  (Emphasis added.)   ROR 10, p. 3. Multiple parties also testified that the noise generated by the trucks in the parking lot was affecting their quality of life in the area.   ROR 10, p. 3;  SROR 1, pp. 12–13.

The court therefore disagrees with the plaintiff's argument that Kopjanski impermissibly distinguished between the types of vehicles allowed in the parking lot for two reasons.   First, the Derby zoning regulations define “nonconforming use” in a manner that focuses on the purpose or activity involved.   Additionally, Connecticut law determines whether the use is a mere intensification or an outright change upon consideration of such fact-specific issues as the nature and purpose of the original use and what, if any, the differences in character, nature and kind between the original use and present use are.   Given the nuance required of the analysis and focus on the purpose of the use within the regulations, the court finds that the defendant could properly consider the types of vehicles involved and the ends for which they were used in determining if the use had fundamentally changed.   Therefore, as there was substantial evidence that the prior owners had primarily used the lot to provide parking for its two hundred employees and that the plaintiff's use was vastly different—specifically, truck staging and storage—the court cannot say that the defendant acted illegally, unreasonably or arbitrarily by finding that the plaintiff's actions qualified as a change in use rather than an intensification of an existing preexisting use.”

Second, “[a]s a matter of statutory construction, specific statutory provisions are presumed to prevail over more general statutory provisions dealing with the same overall subject matter.”  (Internal quotation marks omitted.)  Board of Education v. Naugatuck, 268 Conn. 295, 304, 843 A.2d 603 (2004).   Section 195–61(C) of the Derby zoning regulations applies specifically to the storage of “commercial vehicles” in residential districts.   Thus, the plaintiff's argument that the cease and desist order impermissibly differentiated between the types of vehicles involved further lacks merit, as the regulations themselves differentiate between “motor vehicles” and “commercial vehicles” and applies greater restrictions to the storage of the latter.

As the plaintiff has not argued that the trucks involved are not commercial vehicles within the meaning of the zoning regulations, it can only claim that this section does not apply to its use of the parking lot if that specific use existed prior to the adoption of § 195–61(C).  There is substantial evidence, however, that this change in use from primarily employee parking to the staging and storage of tractor trailer trucks occurred after the plaintiff purchased the property in 2011, thus placing the change in use after the adoption of the current zoning regulations containing § 195–61(C) in 2000.   Therefore, the plaintiff's use of the lot is subject to that section's restrictions on the storage of commercial vehicles in residential districts.

For both of these reasons, the defendant could have reasonably found that any protections for preexisting nonconforming uses only applied to the use of the parking lot for employee parking and not to the use of the lot to stage and store tractor trailer trucks.²

VI

CONCLUSION

For the foregoing reasons, the court dismisses the plaintiff's appeal.

HILLER, J.

FOOTNOTES

FN1. The only allowed uses of property in an R–5 zone are, for single- and double-family dwellings, parks and playgrounds as permitted uses;  for home professional offices and customary accessory structures as accessory uses;  and for congregate housing, home occupations, public places of worship, schools, libraries, certain public utility buildings, public or semipublic buildings, bed-and-breakfast inns, child day-care centers and professional offices for lots having frontage and direct access to specifically designated streets as special exceptions.   Derby Zoning Regs., § 195–13..  FN1. The only allowed uses of property in an R–5 zone are, for single- and double-family dwellings, parks and playgrounds as permitted uses;  for home professional offices and customary accessory structures as accessory uses;  and for congregate housing, home occupations, public places of worship, schools, libraries, certain public utility buildings, public or semipublic buildings, bed-and-breakfast inns, child day-care centers and professional offices for lots having frontage and direct access to specifically designated streets as special exceptions.   Derby Zoning Regs., § 195–13.

FN2. The court recognizes that there was testimony within the record that trucks belonging to or operating on behalf of the prior owners had used the lot in a manner similar to the plaintiff's present use.   See SROR 1, pp. 10–12 (testimony that prior owner had trucks park in parking lot, although precise extent of such use is indeterminate).   There was also evidence that the plaintiff's change in use was improving the quality of life in the surrounding neighborhood.   See SROR 1, p. 14 (testimony that the amount of noise has decreased and other aspects of parking lot have improved since plaintiff commenced operations).   When there is conflicting evidence as to a factual determination, however, the court must uphold an agency's resolution of the factual issue if there is substantial evidence supporting it.  Rapoport v. Zoning Board of Appeals, 301 Conn. 22, 33, 19 A.3d 622 (2011)..  FN2. The court recognizes that there was testimony within the record that trucks belonging to or operating on behalf of the prior owners had used the lot in a manner similar to the plaintiff's present use.   See SROR 1, pp. 10–12 (testimony that prior owner had trucks park in parking lot, although precise extent of such use is indeterminate).   There was also evidence that the plaintiff's change in use was improving the quality of life in the surrounding neighborhood.   See SROR 1, p. 14 (testimony that the amount of noise has decreased and other aspects of parking lot have improved since plaintiff commenced operations).   When there is conflicting evidence as to a factual determination, however, the court must uphold an agency's resolution of the factual issue if there is substantial evidence supporting it.  Rapoport v. Zoning Board of Appeals, 301 Conn. 22, 33, 19 A.3d 622 (2011).

Hiller, Arthur A., J.