MTM v. Zoning Board of Appeals, City of Bridgeport (2014)

MEMORANDUM OF DECISION

FACTS

These consolidated appeals concern property located at 1234 Huntington Turnpike, Bridgeport.   The parcel, which is also known as 1294 and 1310 Huntington Turnpike (ROR 2), consists of 3.5 acres, and is located in a Residence A(R–A) Zone.

The property is located north of the intersection of Broadbridge Avenue and Huntington Turnpike.   It abuts the Trumbull town line.

1234 Huntington Turnpike, although located in a residential zone, has been the subject of land use proposals, seeking commercial and mixed use development of the property.   Before being purchased by its current owner in 2005 (Ex. 1), an application was made to the Bridgeport Zoning Board of Appeals in 1991.

The 1991 application contemplated the construction of a shopping center on the site.   Three variances were sought:  1) a use variance permitting a business use in an RA Zone, 2) a height variance to permit structures in excess of thirty-five (35) feet, and 3) waivers for onsite parking.

Following approval of the requested variances by the Bridgeport Zoning Board of Appeals, an abutting land owner filed an appeal.

On October 26, 1992, in a written opinion, authored by the Honorable L. Scott Melville, the decision of the Zoning Board of Appeals was reversed.

Judge Melville ruled that the Zoning Board of Appeals had exceeded its legal authority, when it approved the three variances (Docket # CV 91–279597 S).  He pointed out that any request to change the zoning classification of the property, should be addressed to the Bridgeport Planning and Zoning Commission, not the Zoning Board of Appeals.

The decision was received of record, and was date stamped October 27, 1992.

A notice of the granting of the variance was filed on the land records of the City of Bridgeport at Volume 2871 Page 132, on January 22, 1991.   No document was filed on the land records by any Bridgeport official, reflecting the decision of Judge Melville in October of 1992.   Judge Melville's decision was not appealed.

In 2005, the property known as 1234 Huntington Turnpike, 1294 Huntington Turnpike, and 1310 Huntington Turnpike was purchased by the current owner, MTM Family Limited Partnership (See Ex. 1, Volume 5396, Pages 281–83 of the Bridgeport Land Records).   The site was purchased as unimproved land, and has not been developed.

In November of 2005, the current owner submitted a proposal, seeking approval of a 16,380 square foot building, dedicated to both retail and residential use.   A change of zoning classification was sought, from Residence R–A to Office Retail (OR–R).  Special permit and site plan approval were also requested.

The application did not go forward to a public hearing.

In May of 2011, a similar application was the subject of a petition to the Bridgeport Planning and Zoning Commission.   A building consisting of 17,600 square feet was contemplated.   Approvals were sought for a change in zoning classification from Residence R–A to Office Retail (OR–R), along with a special permit and site plan review.

This application, seeking a change of zoning classification, and related approvals, would have required the Planning and Zoning Commission to hold a public hearing.¹

The proposal was withdrawn on June 27, 2011, and no public hearing was ever held.   However, prior to the withdrawal, a “Design Review” meeting was held on June 13, 2011.

In attendance at that meeting were Manuel Moutinho, representing MTM Family Limited Partnership, and an engineer, Pat Rose of Rose, Tiso and Company, the firm engaged by MTM. Fourteen (14) persons attended the meeting.   Among those in attendance were representatives of the Bridgeport Building Department, the Conservation Department, the Office of Planning and Development, and the Zoning Department.

During the course of that meeting, a representative of the City of Bridgeport suggested to the Plaintiff's representative, that use of the property for retail purposes had been approved by the Bridgeport Zoning Board of Appeals two decades earlier, in 1991.

The result of adopting the strategy suggested to MTM Family Limited Partnership by the City of Bridgeport, would be to eliminate the need for a change in zoning classification, in light of the 1991 variance.   Since variances run with the land, and are not personal to the applicant,² MTM would be in a position to proceed in accordance with the Zoning Board of Appeals decision.

As a result of the “Design Review” meeting, the petition filed in May of 2011 was withdrawn.

The Plaintiff, MTM Limited Family Partnership, proceeded to obtain approvals from officials in the City of Bridgeport, without subjecting its plans to the rigors and scrutiny of the public hearing process.   Site plan approval for a 19,000 square foot retail building was granted through administrative action in August of 2011.   The proposal called for seventy-three (73) parking spaces (ROR 7).

On November 3, 2011, MTM Family Limited Partnership obtained over the counter approvals of a Certificate of Zoning Compliance, and a Building Permit (ROR 7).

The request for a certificate of zoning compliance listed the proposed use as:  “Retail Center as approved by ZBA 1/8/91.”   The application was approved by an authorized agent of the City of Bridgeport, pursuant to S. 8–3(f) 3 of the General Statutes.

Armed with the necessary certificate of zoning compliance, site plan approval, and a building permit, the Plaintiff continued its site work on the property, in order to prepare for the construction of the retail center.

In September and October of 2011, following the administrative site plan approval, sitework was underway.   Trees were cleared, on site material was processed and crushed, and materials to be used as fill were brought to the site.  (ROR 11, TR p. 8–9.)

During this period, concerned and alarmed neighbors complained to the zoning office, regarding various aspects of the site work.   The zoning office informed those who questioned the activities that approvals had been obtained from the Bridgeport Zoning Board of Appeals in 1991.  (ROR 11, TR, p. 10–11.)

On December 5, 2011, a neighboring property owner delivered to Zoning Official Dennis Buckley, a copy of Judge Melville's decision.   On that same day, Buckley sent a letter addressed to:  “Manny Moutinho, Principal, MTM Family Limited Partnership.”   Buckley rescinded the certificate of zoning compliance, and recommended that the foundation permit be cancelled.

The letter (ROR 12) cited an unnamed individual as having informed Buckley:  “․ that your construction manager was made aware of this decision last summer.”

This letter was followed by a letter from Neil H. Bonney, Zoning Enforcement Officer, addressed to Manuel T. Moutinho.   The Bonney letter, which is dated December 19, 2011, (ROR 2), ordered MTM Family Limited Partnership to:  “․ cease and desist the use of this property for excavating/filling and rock crushing without first having a correct and valid Application for Certificate of Zoning Compliance for a permitted use in the R–A Zone.”

Bonney's letter gave three (3) conditions which he alleged violated the Bridgeport Zoning Regulations:  1) land was being excavated and filled and used for rock crushing without a certificate of zoning compliance, 2) site preparation was proceeding in anticipation of a retail building, a prohibited use in an R–A Zone, and 3) Pursuant to Section 4–8–4 of the Regulations, retail sales and service are a prohibited use in the R–A Zone.

An appeal of the cease and desist order (ROR 1) was filed on January 12, 2012, and a hearing was conducted on February 14, 2012.  (ROR 11.)

Following the public hearing, the Bridgeport Zoning Board of Appeals unanimously denied the appeal.   Several substantive reasons (ROR 9), were listed in support of the action:

1.  The project was stopped on December 19, 2011, yet the filling, excavating and rock crushing continued with no approvals in effect.

2. The project is now found to be in violation of Section 14–1 and Section 14–1–1 of the Zoning Regulations.

3. Rock crushing and storage of rock is not allowed in an RA Zone.

4. Site work, which includes excavation, filling, and rock crushing is no longer permitted without a site plan approved by the Inland and Wetlands Commission.

5. A soil erosion and sediment control plan approved by the City Engineer is needed to ensure no negative impact on the Wetland and Watercourse.

In addition to denying the appeal, the Zoning Board of Appeals ordered MTM Family Limited Partnership to file a site remediation plan with the Zoning Department, by March 13, 2012.  (ROR 9;  ROR 10, TR, p. 14–15.)

From that decision, the Plaintiff brought an appeal (CV–12–6026208).

On the day before the Zoning Board of Appeals held its public hearing concerning the December 19, 2011 cease and desist order, February 13, 2012, Zoning Enforcement Officer Neil H. Bonney hand delivered (ROR 2) a cease and desist order to the Plaintiff.   The order stated:  “You are hereby ordered to cease and desist the use of the property for the rock crushing or rock delivered to the site (as well as on site rock) and outdoor storage of crushed Rock/Gravel without first having a current Application for Certificate of Zoning Compliance for the “Uses” which are not permitted in the R–A Zone.”

The order was appealed on March 7, 2012, (ROR 1), and a hearing was held on April 10, 2012.  (ROR 12:  ROR 13.)

The cease and desist order dated February 13, 2012, was sustained by the Zoning Board of Appeals.   The decision cited the Plaintiff's “continual disregard for the zoning regulations of the City of Bridgeport.”  (ROR 10.)   The Board upheld the determination of the Zoning Enforcement Officer, which found that the property was being used for a high impact industrial use, rock crushing, and the illegal storage of materials in an R–A Zone. (ROR 12, p. 23–24.)

This action was also appealed to the Superior Court (CV- 6027352).

Prior to the April 10, 2012 hearing, Neil Bonney, in his capacity as Zoning Enforcement Officer, filed an independent action against MTM Family Limited Partnership.   The two-count complaint, which was returnable to this court on April 2, 2012, sought relief by way of a mandatory injunction.   This action sought to prevent MTM from “continuing the illegal and improper rock crushing and storage operation ․” It was claimed that the public, and the environment, would suffer “irreparable harm,” if an injunction was not forthcoming.

In count two of the complaint, Bonney requested a court order, compelling MTM Family Limited Partnership to file a Plan of Remediation with the Bridgeport Zoning Board of Appeals.

In support of his claim for injunctive relief, Bonney referenced Chapter 916 of the General Statutes, specifically S. 52–471 et seq.

He did not plead reliance upon S. 8–12 of the General Statutes, which sets forth a procedure to be followed where it is claimed that zoning regulations are being violated.   It reads, in relevant part:

If any ․ land has been used in violation of the provisions of this chapter, or any by-law, ordinance, rule or regulation made under any authority conferred hereby, an official having jurisdiction, in addition to other remedies, may institute an action or proceeding to prevent such unlawful ․ use or to restrain, correct or abate such violation ․ or to prevent any illegal act ․ or use on or about such premises.

In an action to enforce its zoning regulations, a municipality acts on behalf of all property owners within the municipality.   It is not required to demonstrate irreparable harm in order to maintain the action.  Johnson v. Murzyn, 1 Conn.App. 176, 180 (1984).   Nor need the municipality prove that it lacks an adequate remedy at law, in order to prevail, in an attempt to prevent a violation, or threatened violation of its ordinances.  Conservation Commission v. Price, 193 Conn. 414, 429 (1984);  Kosilla v. Collins Group, Inc., 200 Ct.Sup. 14750, 29 Conn. L. Rptr. 11 (CV–00–080–57), j.d. of Hartford (Berger, J.).

Bonney's action was heard before the Honorable Richard P. Gilardi, Judge Trial Referee, at which time testimony was entertained, during the course of a three-day hearing.

In a Memorandum of Decision, dated January 28, 2013, Judge Gilardi acknowledged that the claim arose out of the two cease and desist orders, issued to MTM Family Limited Partnership.

Judge Gilardi, who heard the matter de novo, and not as an appeal from the decision of an administrative agency, made several findings, based upon the evidence, which have a bearing on this appeal.

He determined that the City of Bridgeport failed to prove that the site was being used for the storage of gravel, fill and equipment, and that a certificate of zoning compliance was required, in order for MTM Family Limited Partnership to proceed with site work.

He further found that Bridgeport had failed to establish that irreparable harm would result, if an injunction did not issue, and that MTM should be permitted to continue work on the site plan.   At the time of the hearing before Judge Gilardi, site work was nearing completion.

Judge Gilardi noted that MTM Family Limited Partnership would be required to seek a “special case use variance to build a shopping center” on the site, should it desire to proceed further.

In his written opinion, Judge Gilardi found that the City of Bridgeport had failed to maintain adequate records concerning the approved use of the property.   Furthermore, he determined that MTM expended monies, and undertook site preparation work, as a direct result of representations made by a Bridgeport official during the June 2011 Design Review Committee meeting.   The subsequent issuance of a certificate of zoning compliance and a building permit, were the result of the representation made during the Design Review Committee meeting.

As a result, Judge Gilardi concludes:  “ ․ this court finds that the Board (the Zoning Board of Appeals) should be and is estopped from enforcing its cease and desist orders.”   He therefore declined to issue the injunctive relief which the City of Bridgeport had requested.

At the time these administrative appeals were heard, the court was informed that site work on the property had been completed, and that all equipment had been removed.

AGGRIEVEMENT

MTM Family Limited Partnership is the record owner of the property which was the subject of the cease and desist orders, having purchased the parcel in 2005 (Ex. 1).

The Partnership has owned the property continuously since the date of purchase.

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);  Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307 (1991).   The question of aggrievement is one of fact, to be determined by the trial court.  Primerica v. Planning & Zoning Commission, 211 Conn. 85, 93 (1989);  Hughes v. Planning & Zoning Commission, 156 Conn. 505, 508 (1968).

A party claiming to be aggrieved must satisfy a well established two-fold test:  1) that party must show that it has a specific personal and legal interest in the subject matter of the decision, as distinct from general interest such as concern for all members of the community as a whole, and 2) the party must show that the personal and legal interest has been specifically and injuriously affected by the action of the agency.  Cannavo Enterprises v. Burns, 194 Conn. 43, 47 (1984);  Hall v. Planning Commission, 191 Conn. 442, 444 (1980).

Ownership of the property which is the subject matter of an appeal demonstrates a personal and legal interest in the subject matter of the appeal.  Huck v. Inland Wetlands and Watercourses Commission, 203 Conn. 525, 530 (1987);  Bossert Corporation v. Norwalk, 157 Conn. 279, 285 (1969).

The decision of the Bridgeport Zoning Board of Appeals, to sustain both of the cease and desist orders issued by the Zoning Enforcement Officer, has specifically and injuriously affected the interest of MTM Family Limited Partnership in the property.   It is therefore found that the Plaintiff is aggrieved by both of the decisions, from which appeals to this court were initiated.

STANDARD OF REVIEW

When hearing an appeal from an order issued by a municipal zoning enforcement officer, a zoning board of appeals sits in a quasi-judicial capacity.   It hears and decides an appeal de novo.  Conetta v. Zoning Board of Appeals, 42 Conn.App. 133, 137 (1996).   The board is charged with the responsibility of finding the facts, and applying the zoning regulations to those facts.   Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560–61 (1967);  Connecticut Sand & Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442 (1963).   The action of the zoning enforcement officials is entitled to no special deference by a reviewing court.  Casserta v. Zoning Board of Appeals, 226 Conn. 80, 88–89 (1993).

The board 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);  Wing v. Zoning Board of Appeals, 61 Conn.App. 639, 643 (2001).   The burden of proof is upon the party seeking to overturn the board's decision to demonstrate that the board acted improperly.  Graff v. Zoning Board of Appeals, 277 Conn. 645, 669 (2006);  Sciortino v. Zoning Board of Appeals, 87 Conn.App. 143, 147 (2005).

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.  Jasser v. Zoning Board of Appeals, 43 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 the board to support its findings.  Smith Bros. 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 the board has stated specific reasons in support of its decision, a court must determine whether any reason given is supported by substantial evidence.  Gibbons v. Historic District Commission, 285 Conn. 755, 770–71 (2008).

RECORD COMPILED IN HEARINGS BEFORE THE BRIDGEPORT ZONING BOARD OF APPEALS SUPPORTS CLAIM OF MUNICIPAL ESTOPPEL

Although the Plaintiff, MTM Limited Family Partnership, made no express claim of municipal estoppel during the course of two public hearings before the Bridgeport Zoning Board of Appeals, Judge Gilardi, in his decision of January 28, 2013, determined that the board should be “estopped from enforcing its cease and desist order.”

During the course of the April 10, 2012, hearing, counsel for MTM raised the issue by implication, when he stated:  “․ We didn't just say, ‘Oh, we can't build a retail center.’   We were told and led to believe that we could by the City.” (ROR 13, TR p. 37.)

The attorney also highlighted the actions of city officials, when he described what occurred at the Design Review Committee meeting held in June of 2011, and the events that followed:

During the course of a meeting with the City, the City official suggested why are you going to go for homes above and go through that whole process, when you already have retail approval?   My client said ‘You know, you're right.   We'll withdraw the mixed use and go with what's approved ․’ We got wind of the fact that someone said there was an appeal.   My client went right to the City ․ We got a confirming email from the City Attorney saying the appeal—I believe it was dropped.   It was an exhibit from last time.   So, on the faith of these representations, and including these emails from the City Attorneys office, that we could build a retail center, we were under the impression that we could build a retail center.  (ROR 13, TR p. 35.)

This court has therefore searched the record compiled during the public hearings, to determine whether the doctrine of municipal estoppel applies, and the scope of any application.

Estoppel requires proof of two essential elements:  1) the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief, and 2) the other party must change its position in reliance upon those factors.  West Hartford v. Rechel, 190 Conn. 114, 121 (1983);  Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 353 (1976).   In special circumstances, a municipality may be estopped from enforcing its zoning regulations, in situations where those officers are acting within the scope of their employment, and a party would be subject to substantial loss, if the municipality were permitted to negate the acts of its agents or employees.   Zoning Commission v. Lescynski, 188 Conn. 724, 731–32 (1982).

The doctrine of municipal estoppel may be invoked only with great care, and only when the resulting violation has been unjustifiably induced by an agent or employee having authority in such matters, and when special circumstances make it inequitable or oppressive to enforce the zoning regulations.  Dornfried v. October Tweny-four, Inc., 230 Conn. 622, 635–36 (1994);  Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 246–47 (1995).   The party seeking to invoke municipal estoppel has the burden of proof, including the obligation to prove that enforcement of a cease and desist order would be inequitable and oppressive, given the circumstances.  Cortese v. Planning & Zoning Commission, 274 Conn. 411, 418–19 (2005).

The City of Bridgeport, acting through Neil H. Bonney, was a party to the action tried before Judge Gilardi, just as Bridgeport, through its Zoning Board of Appeals, is before this court, in the administrative appeals brought by MTM Family Limited Partnership.

However, because the record of the two public hearings provides a basis for invoking the doctrine of municipal estopped, independent of the hearing before Judge Gilardi, it is not necessary to consider the doctrines of res judicata and collateral estoppel.

The record reveals that MTM purchased the property in 2005.   In performing its due diligence, a search of the land records was undertaken.   That search revealed the granting of a variance by the Zoning Board of Appeals in 1991, but did not reflect the fact that the variances had been voided as a consequence of Judge Melville's 1992 decision.

While MTM claims to have relied upon the 1991 variance when it purchased the property in 2005, it did not seek to develop the property, consistent with that variance, until 2011, six years after the purchase.

In November of 2005, an application was filed seeking a mixed use residential and retail use of the property.   The plaintiff sought a zone change from R–A to OR–R as a part of its proposal.

The petition filed in May of 2011 also sought a change in zoning classification, rather than relying upon the 1991 variance.

Only after the Design Review Committee meeting in June 2011, was a use of the property which relied upon the 1991 variance proposed.   The record reveals that MTM Family Limited Partnership elected to utilize the variance, at the suggestion of a Bridgeport official, and that all permits and over the counter approvals were obtained from the City of Bridgeport.

Based upon a communication from the president of Primrose Construction Company, received on December 5, 2011, the City of Bridgeport claims that MTM knew of Judge Melville's decision, before it began site work on the property.

This claim is not well taken.

The communication from John N. Guedes does not specifically reference the decision of Judge Melville.   The record reflects no additional information as to the date of the alleged conversation, or the identity of any individuals who were present.

Furthermore, the record reveals that MTM Family Limited Partnership, having learned of “some kind of appeal,” contacted the Office of the Bridgeport City Attorney.   An email, generated by the City Attorney, stated that the appeal had been abandoned.  (ROR 11, p. 57–58.)

MTM Family Limited Partnership justifiably relied upon the Bridgeport Land Records, a representation from the Bridgeport City Attorney, and the issuance of all necessary approvals by the Zoning and Building Departments, before proceeding with site work on the property.

As the record of the hearing demonstrates, substantial resources were invested in the site work, in the course of preparing the property for development.

Therefore, as found by Judge Gilardi after hearing, and demonstrated by a review of the record, the City of Bridgeport is estopped from enforcing any remediation plan, as ordered by the Zoning Board of Appeals.

Any portion of the cease and desist order which requires remediation, or other work by MTM, cannot be enforced.

However, although municipal estoppel requires that the status quo be maintained on the property, it cannot be employed to compel the future use of the property for any use which is not permitted in a Residence R–A Zone.

Subsequent to its purchase of the property in 2005, on two occasions, MTM proposed development which necessitated a change in zoning classification.   Therefore, it cannot be said that MTM relied upon the variance, prior to the summer of 2011, when attempting to develop the property.

Not until 2011, were any affirmative representations made by agents or employees of the City of Bridgeport.   Those 2011 representations consisted of the suggestion made at the Design Review Committee meeting, the email from the City Attorney, and the issuance of all necessary permits and approvals.

Whether the negligence attributed to various employees of the City of Bridgeport creates any cause of action against the City by MTM Family Limited Partnership is not before this court, and need not be addressed.

It must be noted, however, that any future application for a change in zoning classification, or special permit, must be subject to the public hearing process.

This process, going forward, cannot be circumvented through private meetings, or over the counter authorizations.

COMPLETED SITE PLAN CANNOT PROVIDE JUSTIFICATION FOR ANY USE NOT PERMITTED IN A RESIDENCE R–A ZONE.

The record reveals that at the time the Bridgeport Zoning and Building Departments issued the certificate of zoning compliance and the building permit, site work on the property was approaching completion.   A subsequent investigation by the zoning enforcement officer revealed piles of material on the site, including gravel, top soil, and crushed stones.   Heavy equipment was also present.

MTM Family Limited Partnership, on January 12, 2012 (ROR 1), appealed the order to comply dated December 19, 2011 (ROR 2).   No appeal was taken concerning the action of Dennis Buckley, the Zoning Official.   On December 10, 2011, Buckley rescinded the certificate of zoning compliance which he had previously issued.   Nor did the Plaintiff appeal the cancellation of the building permit.  (ROR 11, p. 12.)

Testimony by the zoning enforcement officer and neighboring property owners revealed intense activity on the site, during preparation for the construction of a retail shopping center.

However, in light of Judge Gilardi's refusal to grant the injunctive relief requested by the City of Bridgeport, and the subsequent completion of the preliminary site work, this court can grant no practical relief concerning the storage of materials and equipment.   The conditions sought to be remedied are no longer present on the site.   Nor is there any ongoing rock crushing operation as reported during the public hearing process.

The current condition of the property results from the site preparation work, completed by MTM Family Limited Partnership.   That site preparation work was a direct result of various actions and inactions by officials and employees of the City of Bridgeport which, taken together, justify a finding of municipal estoppel.

The City failed to record a notice on the land records, indicating that the variances granted by the Zoning Board of Appeals in 1991 were invalid, in light of Judge Melville's decision.

An employee of the City of Bridgeport, during the course of the 2011 Design Review Committee meeting, suggested to MTM that it rely upon the 1991 variance, as the basis for proceeding with work on a retail shopping center.

Over the counter approvals for a certificate of zoning compliance and a building permit were granted, because officials in those departments were unaware that the 1991 variances were void.

Based upon an inquiry from a representative of MTM Family Limited Partnership, the office of the Bridgeport City Attorney, which had represented the Zoning Board of Appeals in the appeal which culminated in Judge Melville's decision, stated its belief that the appeal had been withdrawn.

As site preparation work proceeded, and complaints were received on a regular basis from residential property owners near the site, no department of the City of Bridgeport secured a copy of Judge Melville's decision, until the Memorandum of Decision was presented to Zoning Official Dennis Buckley by a neighboring property owner.

During the course of the two public hearings, it was apparent that neighbors of the subject property feel a sense of outrage, concerning the site preparation work, and the inability to halt the activities.

Unfortunately, that outrage should be directed to officials and employees of the City of Bridgeport, rather than toward the owner of the property.

Although many of the conditions from which relief was sought during the Zoning Board of Appeals hearings no longer are present on the property, a portion of the cease and desist orders has merit, and application to future proceedings.

To the extent that the cease and desist order sought to prohibit the use of the property for any use which is not permitted in a Residence R–A Zone, the action of the Board must be upheld.

It bears reiterating, that any future use of the property for commercial or retail purposes must be submitted to the public hearing process, during which transparency is mandated, and the public's right to be heard in an open forum, on the record, is guaranteed.

CONCLUSION

The appeals of the Plaintiff, MTM Family Limited Partnership, are SUSTAINED IN PART, and DENIED IN PART.

Judgment may enter accordingly.

RADCLIFFE, J.

FOOTNOTES

FN1. Section 8–3(c), C.G.S.—”All petitions requesting a change in ․ the boundaries of a zoning district shall be submitted in writing on a form prescribed by the commission, and shall be considered at a public hearing ․ Whenever such commission makes any change in a regulation or boundary, it shall state upon its record the reason why such change is made ․”.  FN1. Section 8–3(c), C.G.S.—”All petitions requesting a change in ․ the boundaries of a zoning district shall be submitted in writing on a form prescribed by the commission, and shall be considered at a public hearing ․ Whenever such commission makes any change in a regulation or boundary, it shall state upon its record the reason why such change is made ․”

FN2. Section 8–6(b), C.G.S.—”(b) Any variance granted by a zoning board of appeals shall run with the land and shall not be personal in nature to the person who applied for and received the variance.   A variance shall not be extinguished solely because of the transfer of title to the property ․”.  FN2. Section 8–6(b), C.G.S.—”(b) Any variance granted by a zoning board of appeals shall run with the land and shall not be personal in nature to the person who applied for and received the variance.   A variance shall not be extinguished solely because of the transfer of title to the property ․”

FN3. Section 8–3(f), C.G.S.—”No building permit or certificate of occupancy shall be issued for a building use or structure subject to the zoning regulations of a municipality without certification in writing by the official charged with enforcement of such regulations, that such building use or structure is in conformity with such regulations, or is a valid nonconforming use under such regulations ․”.  FN3. Section 8–3(f), C.G.S.—”No building permit or certificate of occupancy shall be issued for a building use or structure subject to the zoning regulations of a municipality without certification in writing by the official charged with enforcement of such regulations, that such building use or structure is in conformity with such regulations, or is a valid nonconforming use under such regulations ․”

Radcliffe, Dale W., J.