Raymond Mallozzi et al. v. Zoning Board of Appeals of the City of Stamford (2013)

MEMORANDUM OF DECISION

The plaintiffs Raymond and Antoinette Mallozzi who are owners of real property at 2661 Long Ridge Road in Stamford appeal from the decision of the Zoning Board of Appeals (“board”) denying their appeal from the order of the city zoning enforcement officer to cease and desist from continuing a zoning violation by using a vacant lot in the RA–2 residential zone as a contractor's materials and storage yard.   The parties stipulated that the Mallozzis were the owners of the property at all times relevant to this appeal.   On the basis of that fact the court finds that Raymond Mallozzi and Antoinette Mallozzi are aggrieved.  Goldfeld v. Planning and Zoning Commission, 3 Conn.App. 172 (1984).   Because no evidence was offered to establish a factual basis for the aggrievement of a third plaintiff, Michael Caraher, is found not to be aggrieved.

The court begins by reviewing the general principles applicable to the action of a zoning authority which has acted in its administrative capacity.   It is well settled that the burden of overturning the decision of an administrative agency rests upon the plaintiff.  Spero v. Zoning Board of Appeals, 217 Conn. 435, 440 (1991).   The standard which governs this court's review of the defendant's action is whether the board acted illegally, arbitrarily or in abuse of its discretion in reaching its decision.  Doyan v. Zoning Board of Appeals, 67 Conn.App. 597 (2002).   The court may not substitute its judgment for that of the board.   Moreover, there must be substantial evidence in the record to support the board's decision.  Torsiello v. Zoning Board of Appeals, 3 Conn.App. 475 (1984).  “Evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred ․ The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion.”  Pelliccione v. Planning and Zoning Commission, 64 Conn.App. 320, 326–28 (2001).

“[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 ․ [T]he zoning board of appeals makes a de novo determination of the issue before it, without deference to the actions of the zoning enforcement officer.”  Cockerham v. Zoning Board of Appeals, 146 Conn. 355, 363–64 (2013).

The plaintiffs claim to have established before the board that since 1951 when the property was classified RA–2 residential, the property has been used continuously for the storage of construction equipment, construction vehicles and construction materials commonly referred as a “contractor's yard.”   Accordingly, they argue that they are entitled to maintain that nonconforming use pursuant to the saving provision of G.S. § 8–2(a).   The zoning enforcement officer on the contrary claims to have submitted evidence that the use was abandoned by non-use for a substantial period of time coupled with an articulated intent to abandon by the owners.

The record does not contain a formal statement of the defendant's reasons for denying the appeal.  “Where the board states its reasons on the record we go no further.”  (Citations omitted;  internal quotation marks omitted.)  Id., 547–48.   Where, however, the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board's decision.  Grillo v. Zoning Board of Appeals, 209 Conn. 362, 369 (1988);  Parks v. Planning & Zoning Commission, 178 Conn. 657, 662 (1979).   More specifically, the trial court must determine whether the board has “acted fairly or with proper motives or upon valid reasons.”  (Internal quotation marks omitted.)  Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995).”  (Alternate citations omitted.)  Norwood v. Zoning Board of Appeals, 62 Conn.App. 528, 632 (2001).

It is clear from the transcript that the board upheld the action of the zoning enforcement officer because it determined that the use of the property as a contractor's yard had been abandoned.

“The party claiming the benefit of a nonconforming use bears the burden that the nonconforming use is valid.”  Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn.App. 622, 628 (2003).  “Abandonment is a question of fact which implies a voluntary and intentional renunciation.   Nevertheless, the intent to abandon may be inferred as a fact from the circumstances ․ The mere discontinuance of a use where there is no intent to abandon is not enough ․ To establish abandonment, the intention on the part of the owner [must be] to relinquish permanently the nonconforming use.”  Id. at 631.

The board had before it conflicting evidence concerning the issue of abandonment.   The plaintiff produced affidavits from which attested to the continuous use of the parcel as a contractor's yard.   As to the issue of intent to abandon, the plaintiff, Raymond Mallozzi executed an affidavit in which he averred that he “never discontinued or abandoned using 2661 Long Ridge Road, Stamford, Connecticut as a contractor's storage yard during my entire term of ownership.”   Live testimony from the current occupant, Richard Caraher, corroborated that statement for the years 1997 to 2011.   The property consists of three lots, two of which front on Long Ridge Road and the third on an adjoining street.   The Long Ridge frontage consists of the lot on which is located a legally nonconforming gasoline service station (Lot A) and the subject lot which adjoins the gas station to the north (Lot B).

The board had several pieces of evidence before it which contradicted the plaintiff's offerings.   James Lunney, the zoning enforcement officer, placed in evidence Exhibit 10 which is an aerial photograph of the property from 1998 obtained from the city records.   This aerial view shows Lot B as entirely vacant but for two motor vehicles located in the southeast corner of the lot.   Exhibit 10 also shows aerial images from 2005 and 2009 which depict the lot in varying stages of use as a contractor's yard.

Relevant to the board's consideration of the factual basis for a finding of abandonment is the record in a lawsuit brought in 1987 by these very same plaintiffs against the city of Stamford returnable to Superior Court at Stamford.   That action sought to obtain an injunction to prevent the zoning enforcement officer from “closing down” a use of one of the bays of the service station as a video rental store which the zoning enforcement officer claimed was an illegal use of the premises.   In the memorandum of law which the Mallozzis' attorney filed in that case there was a section entitled “Facts.”   At page 3 of that section the following statement appeared:

The property, as well as an adjoining property of the applicants, was originally located in the C–N zone which would permit a video rental business.   However, in April of 1985, the property was changed to RA–2 by the Zoning Board.   The applicants were able to keep the commercial use of the gas station but lacked the funds and time needed to set up a commercial use for their adjoining property, which is still vacant today.

(Emphasis added.) ¹

The court notes that the “adjoining property” referred to is Lot B. Attached to this memorandum were affidavits of both plaintiffs in which each swore to the truth of the statements contained in the litigation papers that accompanied the summons and complaint.   This statement is consistent with the condition of Lot B as it existed in 1998 as shown on Exhibit 10.

Also before the board was Exhibit 11 which is a letter from Paula Tranchida, a tenant at 2221 Long Ridge Road, dated October 21, 2011 in which she refers to a lease agreement between her and the plaintiffs dated February 25, 1992 pursuant to which Raymond Mallozzi told her that “no activity was permitted on the vacant residential lot adjacent to the service station” (Lot B).  The letter states further that this condition continued for ten years.

Next, in 2004 the city took enforcement action against the use of Lot B in the form of a warning letter from the city's assistant corporation counsel.   In September of 2005, in compliance with that warning, Raymond Mallozzi executed another affidavit (Exhibit 23) which referred to 2661 Long Ridge Road as a whole but does differentiate between Lots A and B. Nevertheless, the document contains the following statements which are relevant to the board's determination:

3.  All trucks have been removed and will not be housed any longer on property.

4. Property will not be used as a storage facility for contractors' materials.

5. Two trucks on site must remain until lawsuit is settled.

6. Pictures submitted fairly represent condition of property.

7. Wood stored on property is used as fuel for furnace which supplies heat to station.

Through his counsel at the hearing before the board, Raymond Mallozzi stated that he could not explain the language in the affidavit.   He now argues that the affidavit was intended to be limited to Lot A, on which the service station was located.   The board was at liberty to accept or reject that explanation.   The board's rejection of that explanation is entirely reasonable in view of the fact that use of Lot A for storage of contractor's materials (see # 4 above) was never at issue with the zoning enforcement officer.

It is well established that “the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency.”  Hack v. IWWCA, 203 Conn. 525, 540–41 (1987).  “The reviewing court must take into account [that there is] contradictory evidence in the record ․ but ‘the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence ․’ “ American Textile Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490, 523 (1981), quoting Consolo v. Federal Maritime Commission, supra.

“We have said that an administrative agency is not required to believe any witness, even an expert, nor is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair.  Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697 (1980).”  (Alternate citations omitted.)  Id. at 542.

Thus, not only did the board enjoy the right to decide whom to believe, viz:  the property owners' witnesses who testified by affidavit and in person, or the testimony of James Lunney, the zoning enforcement officer and the documentary evidence which he submitted, but also in view of the evidence which Mr. Lunney presented, the board had the further right to determine the contours of the averments contained in the affidavits and whether they were limited to Lot A or referred to Lot B.

As the court analyzes the evidence before the board, it would be illogical for the board to hold that the 2005 affidavit (Exhibit 23) was limited to Lot A. Likewise, paragraph 4 of that affidavit which negates use of a storage facility for contractor's materials, clearly refers to Lot B because such storage on Lot A was not an issue at any time with the zoning enforcement officer.   Finally, paragraph 7 refers to the storage of wood used for fuel at the gas station.   There is no evidence in the record that firewood was stored anywhere but on Lot B. Finally, there is nothing in the record to indicate that the “housing of trucks” as referred to in paragraph 3 related to Lot A because Exhibit 26 reflects that the enforcement action taken at that time related to the “storage of numerous commercial vehicles” on Lot B.

In Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn.App. 622, 630 (2003), our Appellate Court ruled that in finding abandonment of a nonconforming use it was reasonable for a zoning board of appeals to rely on a letter from the trustee of a filling station property which stated that during the five-year period during which the gasoline tanks formerly on the property had been removed, she did not intend to restore the tanks to the property.   Similarly, in the present case the board relied in part on a letter from a tenant (Paula Tranchida) who described the use during her ten-year occupancy.   Such evidence cannot be deemed unreasonable because to do so would be to substitute the court's judgment for that of the board.

At oral argument the plaintiffs' counsel introduced a new argument in support of the claim that the board acted illegally and arbitrarily in finding that the use was abandoned.   The plaintiffs now argue that the board made no finding that the co-owner of the property, Antoinette Mallozzi, had herself as distinct from her husband Raymond Mallozzi, alleged or demonstrated an intent to abandon the use.

It is well established that a court is under no obligation to review issues which have not been briefed.   CL & P Co. v. DPUC, 266 Conn. 108, 120 (2003).   However, the court invited counsel to furnish some authority to support that argument.   The parties thereafter filed simultaneous briefs addressing the issue.

It is noted that neither party has cited to any authority, Connecticut or elsewhere for the proposition that in assessing whether a nonconforming use has been abandoned, a zoning board of appeals must make a specific finding of intent to abandon as to each joint owner of the property.   The court likewise was unable to uncover any such authority.   However, it is noted that in the “Facts” section of the plaintiffs' memorandum of law which was filed in the 1987 injunction action, Antoinette through her attorney, stated that she and Raymond “lacked the funds and time needed to set up a commercial use for their adjoining property (Lot B) which is still vacant today.”   Thus, there was substantial evidence before the board to permit a determination (though unexpressed at the hearing) that Antoinette likewise intended to abandon the use.

Additionally, there are certain principles which can be gleaned from our decisional law which provide some guidance on the issue.   First, it has long been held that joint tenancy requires a unity of interest.  New Haven Trolley Bus Employees Credit Union v. Hill, 145 Conn. 332, 335 (1958).   Consistent with the unity of interest of a joint tenancy is the rule that notice to one joint tenant is notice to the other.   The rationale is that there is a presumption that joint owners are jointly pursuing the common purpose of selling, leasing or managing their real estate.  Katz v. West Hartford, 191 Conn. 599, 601 (1983).   Also, the identity of a particular user of the land is irrelevant to zoning.  Reid v. Zoning Board of Appeals, 235 Conn. 850, 857 (1996).  “Zoning enabling acts authorize local regulation of land use and not regulation of the identity or status of owners or persons who occupy the land.”  Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 156 (2001).   Finally, in a 1932 case our Supreme Court said the following about an owner's unexpressed intent to abandon a use.  “It would be immaterial if ․ the owner, not withstanding such change “(in use), entertained an unmanifested intention not to permanently abandon use of the property for business purposes.”   Darien v. Webb, 115 Conn. 581, 587 (1932).

The court concludes that in upholding the cease and desist order of the zoning enforcement officer the board had substantial evidence before it and did not act illegally, arbitrarily or in abuse of its discretion.   The appeal is therefore dismissed.

BY THE COURT

A. WILLIAM MOTTOLESE, J.T.R.

FOOTNOTES

FN1. The general rule is that admissions, if relevant and material, made by an attorney incidental to the general authority of the attorney to represent his client in connection with and for the purpose of controlling the matter committed to him, are admissible against the client.  Collens v. New Canaan Water Co., 155 Conn. 477, 496 (1967)..  FN1. The general rule is that admissions, if relevant and material, made by an attorney incidental to the general authority of the attorney to represent his client in connection with and for the purpose of controlling the matter committed to him, are admissible against the client.  Collens v. New Canaan Water Co., 155 Conn. 477, 496 (1967).

Mottolese, A. William, J.T.R.