City of Norwalk v. Gaetana Bateman (2013)

MEMORANDUM OF DECISION RE INJUNCTIVE RELIEF

This case comes to this court on a verified complaint brought by the City of Norwalk, a municipal corporation against the defendant Gaetana Bateman seeking injunctive relief.   She is the record owner of 10 Southwind Drive, Norwalk, Connecticut, the subject premises.  (Ex. F.) The court heard from William Bateman her son, and Valdimir Marino, the Deputy Zoning Inspector.   The court has reviewed the exhibits in making this decision, heard the arguments of counsel and has read the briefs.

In addition, the court read the transcript of the proceedings in the City of Norwalk v. Gaetnana Bateman, FST CV 10–6001751.   The proceedings were before the Honorable David Tobin on July 18, 2011, and on August 22, 2011.   The court has reviewed the court's actions in those cases and finds them not binding on this case as presently brought.

The City claims in its verified complaint (Pleading 100.31) allegations, that the court finds proven as follows.   On August 25, 2011 the defendant was issued an order to cease and desist for violations of the regulations of the City of Norwalk concerning conversion of a garage into living space without a permit, failure to provide a parking space behind the 30–foot setback, and parking within the front setback.  (Ex. C.)

On October 20, 2011 the defendant appealed the cease and desist order to the Norwalk Zoning Board of Appeals.   After hearing all the evidence, the Norwalk Zoning Board of Appeals voted to uphold the cease and desist order.   The court finds that on the day of this hearing, before this court, the violations existed.   In the examination of William Bateman, he admitted that the matters in the cease and desist order had not been complied with.   The defendant claims § 8–13a(a) of the General Statutes and the Benson case, Benson v. Zoning Board of Appeals of the Town of Westport, 89 Conn.App. 324, 335 (2005), creates a defense of the statute of limitations.   The defendant claims the action is barred by the three-year statute of limitations and the action must be dismissed.   This issue was not raised in the pleading, but the court addresses it anyway.   The court rejects that argument.

In Benson, the court said as follows:  “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 relations to the boundaries 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 ․” General Statutes § 8–13a(a).  Section 8–13a(a) “amounts to a statute of limitations for [certain] non-conforming buildings.”   R. Fuller, 9 Connecticut Practice Series:  Land Use Law and Practice (2d Ed.1999) § 4.35. P. 110.

In the Benson case, the court addressed the statute of limitations issue as follows:

The defendants argue vigorously that § 8–13a(a) was not enacted in order to protect the owners of structures such as the addition at issue here.   Their arguments are unavailing.   The intended policies for which the statute was enacted were (1) to protect landowners and the public interest by requiring municipalities to act reasonably quickly on certain zoning violations, and (2) to protect innocent landowners from being unable to provide marketable title when a land survey uncovers an existing setback violation.

This action by the city of Norwalk is not barred by the three-year statute of limitations in Connecticut General Statutes § 8–13a(a) because there is no alleged setback violation.

Since this action is by a municipality seeking to enforce its ordinances, the City need not prove irreparable harm or prove they lack an adequate remedy at law.   The court finds that the cease and desist order Exhibit C has not been complied with.   The court finds the.   Zoning Board of Appeal's decision upholding the cease and desist order Exhibit K, accurately reflects their action.   The court finds that no permits have been issued since August 25, 2011 to the defendant.   The court finds the defendant in violation of the cease and desist order.   The court orders the following:

1. An injunction pursuant to the provisions of Connecticut General Statutes §§ 8–12 and 52–471 et seq., and the common law.

The injunction issues as follows:

1. The defendant is to comply with the cease and desist order of August 25, 2011 (Exhibit C attached hereto).

2. The defendant is prohibited from continuing to violate the regulations.

3. The defendant is required to cure all existing violations of the Norwalk Building Zone Regulations and to cause no additional violations.

4. The defendant is to post a bond, cash or professional surety, sufficient to ensure that the zoning violations existing on the subject premises are corrected, and the subject premises are brought into compliance with the building zone regulations.   This bond is in the sum of $10,000.00.

5. Compliance with this order by September 10, 2013, a civil penalty in the amount of $150.00 per day for each day of violation, thereafter.

6. The zoning inspector of the City of Norwalk, or any deputy zoning inspector of the City of Norwalk may conduct a complete inspection of the property located and known as 10 Southwind Drive, Norwalk, Connecticut, including the interior of each and every structure on said premises within 30 days of this order at a mutually agreeable time.

SO ORDERED.

EDWARD R. KARAZIN, JR.

JUDGE TRIAL REFEREE

EXHIBIT C

NORWALK ZONING COMMISSIONNOTICE OF VIOLATION & ORDER TO CEASE & DESIST

August 25, 2011

Gaetana Bateman

10 Southwind Drive

Norwalk, CT 06854

Re:  10 Southwind Drive

District:  5;  Block:  58;  Lot:  412;  Map/Plate:  6SE

Dear Property Owner:

You are hereby ordered to cease and desist the following zoning violations:  Section 118–1420D & E and 118–1220J the Building Zone Regulations of the City of Norwalk, CT to wit:  conversion of a garage into living space without permits;  failure to provide a parking space behind the 30' front setback within a “B” residential zone;  parking within the front setback.

The following corrective action is required within 10 days:

1. Submit floor plans in order to obtain necessary permits to convert the garage back to a parking space;

2. If converting garage to living space, submit scaled floor plans in order to obtain permits for the conversion.   Submit an A–2 survey to show that an 8.5' by 19' parking space can be provided behind the 30' front setback and a driveway plan to show the reconfiguration of the driveway to access the required legal parking space;

3. Bring property into compliance with the Building Zone regulations of the City Norwalk, CT;

4. Obtain a certificate of zoning compliance.

Failure to comply with this order will subject you to corrective action fees stated in Section 118–1420J(1i) and to the penalties prescribed in Section 118–1460 of the Building Zone Regulations of the City of Norwalk, CT and Section 8–12 of the Connecticut Statutes Governing Municipal Planning & Zoning, copies of which are attached hereto.

Sincerely,

Vladimir Mariano

Deputy Zoning Inspector

Cc:  Building Dept.

Tax Assessor

Karazin, Edward R., J.T.R.