Geraldine Kerstetter et al. v. Zoning Board of Appeals, City of Bridgeport (2013)

MEMORANDUM OF DECISION

FACTS

The Plaintiffs, Geraldine Kerstetter and Samuel Lauria, Jr., are the owners of two contiguous parcels of land in the City of Bridgeport, known as 3104 Fairfield Avenue, and 3120 Fairfield Avenue.   The properties, located at the corner of Fairfield Avenue and Morehouse Street, are situated in an OR–S Zone.

3104 Fairfield Avenue, beginning in 1947, was a repair service station, where motor vehicles were repaired, and gasoline was sold at retail.   The business was operated by Michael Iodice, who held a general repairer's license, following favorable action by the Bridgeport Zoning Board of Appeals.

The Plaintiffs in this action subsequently assumed ownership of both the real property and the repair license.   One of the conditions attached to the general repair and gas station license was:  “․ there shall be no storage of trucks, heavy equipment, or motor vehicles other than those awaiting service or repair on the premises.”

In 1984, the name of the business was changed from Mickey's Service Station, to its current designation, Mickey's Towing & Repair.   The change of name was approved by the Bridgeport Planning and Zoning Commission and the sale of gasoline at retail was discontinued.

Subsequently, the Bridgeport Zoning Board of Appeals granted an application by the Plaintiffs, concerning the use of the property for vehicle repairs.   The Board approved the construction of a structure consisting of “wood, masonry or metal,” so that vehicles could be repaired inside the structure.

As part of the approval, the Plaintiffs were required to install a privacy fence, and the repair of any vehicle parked in the front portion of the building was prohibited.   The approval also mandated that vehicles used in the towing business be parked behind the privacy fencing.   In March of 2011, the conditions were modified by the Zoning Board of Appeals, and an extension of time was granted, in order to secure compliance with the conditions.

A second extension of time to comply was granted in November 2011.   The extension was to run for six months from August 1, 2011, and the Plaintiffs were ordered to appear before the Board on February of 2012, and to provide an update concerning progress made toward the goal of complying with all zoning requirements.

The letter (ROR 2), contained a paragraph which distinguished the use of 3104 Fairfield Avenue and the use of 3120 Fairfield Avenue.

3120 Fairfield Avenue has not been approved for any motor vehicle use, or licensed by the State of Ct. Department of Motor Vehicles for any activity relating to the general repair facility at 3104 Fairfield Avenue.

Prior to February 1, 2012, the date on which the second extension of time was scheduled to expire, the Plaintiffs filed a petition (ROR # 1) with the Bridgeport Zoning Board of Appeals.   The Plaintiffs sought certain modifications, and asked for a third extension of time within which to comply with the conditions of approval imposed by the Zoning Board of Appeals on September 14, 2010.   They claimed that additional time was needed in order to bring the truck repair and towing business into compliance with the applicable OR Zoning Regulations.

A public hearing concerning the Plaintiffs' request for another extension of time and modification was scheduled for February 14, 2012.

The Plaintiffs' attorney indicated that more time was necessary in order to “do something” (ROR 11, p. 3), and explained that the house at 3120 Fairfield Avenue could not be taken down.

He further explained that discussions had been ongoing with City of Bridgeport officials, in an attempt to secure an alternate location, for the business.

Zoning Enforcement Officer Neil Bonney told the Board that little progress had been made since the last extension concerning landscaping, or efforts to bring the property into compliance with the zoning regulations.   He also indicated that the repair of vehicles was still taking place outside (ROR 11, p. 10), and produced numerous photographs of what were claimed to be ongoing violations (ROR 9).

The request for a further extension of time to bring the property into compliance with the zoning regulations and conditions imposed by the Zoning Board of Appeals drew opposition from the Black Rock NRZ (ROR 5), and others, who noted ongoing violations.

Following the public hearing, the Zoning Board of Appeals voted to deny any further extension of time.   In a letter of February 15, 2012 (ROR 8) three (3) reasons for the action were given:

1.  The petitioner's attorney stated it would be impractical to erect an addition to the existing antiquated building;  therefore it is necessary to continue conducting repairs in the open yard.   This is a violation of one of the original conditions of approval.

2. There has been no demonstration, or progress toward compliance by way of relocation or improvement to the properties as conditioned by previous approval for a request for an extension of time.

3. As this enforcement has been ongoing since 1997, it is the opinion of the Board members that the petitioners are not going to bring the properties into compliance;  therefore this petition was denied.

The Zoning Board of Appeals, in its discussion of the extension, also noted proceeding taking place in the Housing Court, in determining whether a further extension of time was warranted.

The Plaintiffs' attorney did not claim that his clients were in compliance with the zoning regulations and conditions of approval.   Any such claim would have rendered the application moot, if supported by verifiable evidence.

However, in their Brief, the Plaintiffs allege that they are “in compliance with the conditions established by the ZBA.” (P. 6.)

The Zoning Board of Appeals (ROR 10), voted, unanimously, to deny the third request for an extension of time, and failed to make any modifications to any previously imposed conditions.

From that decision, denying the extension of time, the Plaintiffs bring this appeal.

AGGRIEVEMENT

In their Brief, the Plaintiffs claimed to be in compliance with the conditions established by the ZBA.

However, In that same Brief, when discussing aggrievement, they maintained:  “The Defendant's action In denying the Plaintiffs extension of time to comply with a previous order of conditions pertaining to the use of their property ․ will directly impact the manner in which the Plaintiffs are permitted to utilize the property.”

Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an appeal.  Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996).   The question of aggrievement is one of fact, which must be determined by the trial court.  Primerica v. Planning & Zoning Commission, 211 Conn. 85, 93 (1989).   The burden of proving aggrievement rests with the person claiming to be aggrieved.  London v. Planning & Zoning Commission, 149 Conn. 282, 284 (1962).

Ownership of the property which is the subject of an appeal demonstrates a personal and legal interest in the subject matter of the decision appealed from, sufficient to satisfy the requirement of aggrievement.  Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 530 (1987);  Bossert Corporation v. Norwalk, 157 Conn. 279, 285 (1968).

It is found that the Plaintiffs, Geraldine Kerstetter and Samuel Lauria, Jr., are aggrieved by the decision of the Bridgeport Zoning Board of Appeals, which generated this appeal.

STANDARD OF REVIEW

A zoning board of appeals is endowed with liberal discretion, and its actions are subject to review by a court only to determine whether the action was unreasonable, arbitrary or illegal.  Pleasant Valley Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269 (1991).   The burden of proving that the board acted improperly is upon the party seeking to overturn the board's decision.  Graff v. Zoning Board of Appeals, 277 Conn. 645, 669 (2006).

A court may not substitute its judgment for that of the zoning board of appeals, so long as the board's decision reflects an honest judgment reasonably arrived at, based upon the facts in the record.  Jaser v. Zoning Board of Appeals, 45 Conn.App. 545, 548 (1996).   The court's function is to determine on the basis of the record, whether substantial evidence has been presented to support the board's findings.  Smith Bros. Woodland Management, LLC v. Zoning Board of Appeals, 108 Conn.App. 621, 628 (2008).   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, 731–32 (1988).

Where a municipal zoning agency has stated collective reasons for its decision, as it did in this instance, a court should only decide whether any reason is supported by substantial evidence in the record.  Gibbins v. Historic District Commission, 285 Conn. 755, 770–71 (2008);  Vine v. Zoning Board of Appeals, 281 Conn. 553, 559–60 (2007).   The possibility of drawing two inconsistent conclusions does not prevent a decision from being supported by substantial evidence.  Property Group, Inc. v. Planning & Zoning Commission, 226 Conn. 684, 697 (1993).

DECISION OF ZONING BOARD OF APPEALS SUPPORTED BY SUBSTANTIAL EVIDENCE

The Bridgeport Zoning Board of Appeals was not called upon to determine the number and the extent of any violations of the applicable zoning regulations, or conditions imposed upon the Plaintiffs' property in earlier proceedings.

Any such determination can only be made, if, and when, a zoning enforcement official issues a cease and desist order, concerning 3104–3120 Fairfield Avenue.

The Plaintiffs may, of course, appeal any such order to the Zoning Board of Appeals, which would hear and decide the issues presented de novo.  Conetta v. Zoning Board of Appeals, 42 Conn.App. 133, 137 (1996).   The board would be sitting in a quasi-judicial capacity, and would be charged with the responsibility of finding facts, and applying the zoning regulations to those facts.  Toffolon v. Zoning Board of Appeals.   155 Conn 558, 560–61 (1967).

The only issue before the Board in this case, was whether it should, for a third time, extend the time within which the Plaintiffs were required to comply with the zoning regulations, and with conditions imposed by the Board and the Planning and Zoning Commission.

Based upon the evidence presented from multiple sources, which indicated minimal progress with compliance, and little headway in finding an alternative location, its decision represented a reasonable and proper exercise of discretion.

The Board was fully justified in finding that violations of both the special conditions and the regulations were present in February of 2012, and that the Plaintiffs had not brought the property into compliance, despite ample opportunity to do so.

The reasons given for the decision are supported by substantial evidence in the record.

Therefore, the appeal of the Plaintiffs, Geraldine Kerstetter and Samuel Lauria, Jr., is DISMISSED.

RADCLIFFE, J.

Radcliffe, Dale W., J.