Frank Losquardo v. Stratford Board of Zoning Appeals (2014)

MEMORANDUM OF DECISION

FACTS

The Plaintiff, Frank Losquardo, is the owner of property known as 156 Blakeman Place, Stratford.   The property, which consists of 0.17 acres, is located in an RS–4 Zone (ROR 2).

The parcel contains a two and one-half-story residential structure, which was built in approximately 1920.   When the Plaintiff took title to the property via a warranty deed dated September 9, 2004 (Ex. 1, Vol.2497, p. 20–21), the property was assessed, for property tax purposes, as a three (3) family residence (ROR 17, 2004 assessment).

In April of 2010, a violation of the municipal fire code concerning 156 Blakeman Place was noted by the Stratford Fire Marshall.   Violations included proper headroom for the front and rear stair exits, and the proper fire rating for both the front and rear exit stairs (ROR 6b).   As a result of receiving the notice of violation, the Plaintiff maintains that he evicted tenants from the third floor apartment (ROR 6, p. 2;  ROR 5).

In November of 2011, Zoning Enforcement Officer John A. Rusatsky sent a letter to the Plaintiff, ordering him to cease the “conversion” of the third floor into a separate apartment.   Rusatsky did not issue a certificate of zoning compliance, claiming that the property was a legal two-family dwelling (ROR 3;  ROR 4).

In the spring of 2012, Frank Losquardo submitted a plan to correct the violations which had been identified by the Fire Marshall (ROR 6e).   The Fire Marshall reviewed the proposed changes, and determined that they “․ appear to meet if not exceed the requirements needed to correct the violations and would be granted approval at the time of application.”  (ROR 6b.)

On May 21, 2012, in anticipation of implementing the changes necessary to comply with the municipal fire code, counsel for Frank Losquardo wrote to Zoning Enforcement Officer Rusatsky (ROR 6).   In the body of her letter, counsel requested that a certificate of zoning compliance be issued.   She further indicated that the action sought by the fire marshall involved “fire safety reasons,” and that no conversion or change in the use of the premises was desired.

The Zoning Enforcement Official refused to issue the requested certificate of zoning compliance.   In his May 31, 2012 letter (ROR 7), Rusatsky repeated his claim that the structure was a lawful two-family house, and was not approved as a three-family dwelling.

From this determination, on June 28, 2012 (ROR 8), the Plaintiff instituted an appeal.   He appealed Rusatsky's determination that the property was not a lawful, nonconforming three-family dwelling (ROR 8e).   In the appeal, Frank Losquardo insisted that the property had been used as a three-family dwelling since “at least 1960 through October 2001, when petitioner removed tenants ․ to comply with the Fire Marshall's order (ROR 8).”

A hearing before the Defendant Stratford Board of Zoning Appeals was noticed for Tuesday, September 4, in the Connecticut Post (ROR 22).   The notice read:  “Petition of Frank Losquardo, Jr. to appeal the decision of the Zoning Enforcement Officer as contained in a letter dated November 9, 2011.”

At the September 4 hearing, counsel for Frank Losquardo immediately called attention to the inaccurate notice.   She explained that the appeal did not result from the letter of November 20, 2011, but from the refusal of the Zoning Enforcement Official to issue the requested certificate of zoning compliance in May of 2012 (ROR 28, p. 1).   The refusal to issue the certificate of zoning compliance was announced, in a letter of May 31, 2012 (ROR 7).

The commission, in light of the allegedly defective notice, chose to proceed with the hearing, notwithstanding the Plaintiff's challenge, concerning the statutorily required notice.¹

The Plaintiff claimed that 156 Blakeman Place was subject to a nonconforming use as a three-family residential dwelling, and that evidence of such use would be presented, demonstrating the three-family use in the 1960s.   Counsel pointed out that the Town of Stratford was taxing the parcel as a three-family home, and that the 1964 assessment (ROR 8N), contained a reference indicating that the third floor was rented at $10 per month (ROR 28, p. 3;  ROR 8N, p. 2).

Peggy Marino, a neighbor who resides at 161 Blakeman Place, which is across the street from the Losquardo property, testified in person at the hearing, and also submitted an affidavit (ROR 8M).

Ms. Marino, whose date of birth is February 10, 1953, is the daughter of Michael and Margaret Kuhar.   The Kuhars owned 156 Blakeman Place, until 2003.   She informed the Board, “My parents owned the property from the time I was born, and as far back as I can remember it has always been rented, the third floor.”  (ROR 28, p. 4.) She learned from family members that her grandmother had also lived in the house, and that the third floor was a dwelling unit.

According to Peggy Marino, the third floor contained a kitchen, bathroom and bedroom.   The third floor was rented prior to 1964, and no changes had been made to the footprint of the structure (ROR 28, p. 5).

The Board of Zoning Appeals was also shown information concerning 134–136 Blakeman Place, the next-door residence which was also built in the early 1920s.   That home had been granted a certificate of zoning compliance as a three-family residence (ROR 16).   This was done when the owner of the property was attempting to remedy a fire code violation identified by the Stratford Fire Marshall (ROR 28, p. 9).

Stratford Planning and Zoning Administrator Gary Lorentson appeared at the public hearing, and indicated that he was speaking on behalf of the zoning enforcement officer, John Rusatsky, who provided no oral testimony during the course of the September 4 public hearing.

Lorentson cited the applicable regulation concerning the definition of a non conforming use, S. 14.1 of the Stratford Zoning Regulations.²  He did not, however, claim that Frank Losquardo, Jr. was in violation of S. 14–2.1 3 of the regulations, as Rusatasky had alleged in his November of 2011 correspondence (ROR 3;  ROR 4).

Other than the anticipated work designed to correct the violations identified by the Fire Marshall, there was no evidence that the Plaintiff had completed or attempted any structural alteration of 156 Blakeman Place, during his ownership of the property.

Lorentson conceded that the structure was built in the early 1920s, and was rendered nonconforming upon the adoption of zoning regulations by the Town of Stratford in 1927 (ROR 28, p. 6).   The B Zone established pursuant to the 1927 regulations allowed only single-family homes on the site.   The same restriction is continued in the amended regulations adopted in 1964, the current RS–4 Zone.

While Lorentson, the only witness who testified on behalf of the Zoning Enforcement Officer, acknowledged the nonconforming status of the property, he argued that the structure was nonconforming as a two-family home, not a three-family dwelling.   He based this conclusion upon records of the Stratford Tax Department, and field cards, which identified the property as a two-family home.

Lorentson argued that the tax cards (ROR 17), from 1954 supported his position, notwithstanding the three-family designation in the tax records for the entire time Frank Losquardo owned the property.   He also argued that the Plaintiff had not established the three-family character of the property in 1927, the year zoning regulations were first adopted by the Town of Stratford.

As a two-family residence, 156 Blakeman Place would be exempt from the requirements of the fire code, while the code regulations do apply to three-family dwellings.   Lorentson admitted this distinction (ROR 28, p. 7), and it is therefore clear that the Fire Marshall treated the property as a nonconforming three-family dwelling, when he issued the notice of violations.

A search of Stratford's municipal building records did not reveal the issuance of any building permit between 1927 and the 1950s, or any record concerning any interior renovations to the property (ROR 28, p. 12).   No photographs, documents or eyewitness testimony supported the claim that the property had been altered in any way prior to the adoption of the 1964 zoning regulations.

Lorentson did not address Rusatsky's letter of May 31, 2012 (ROR 7), which cited the 1964 field card in support of his refusal to issue a certificate of zoning compliance.   Inconsistencies in the various field cards, along with the testimony of Peggy Marino, were also dismissed (ROR 28, p. 14–15).

The Board of Zoning Appeals concluded the public hearing on September 4, 2012.  (ROR 28, p. 24.)   At its October 2, 2012 meeting, the item concerning 156 Blakeman Place was tabled (ROR 25).

When the matter was next before the Board of Zoning Appeals on November 8, 2012 (ROR 26), the minutes reflect discussion by the town attorney.   The attorney framed the issue as “․ it is up to the Board of Zoning Appeals to determine if the Zoning Officer is in error and 156 Blakeman Place is in compliance with the regulations.”

A motion was made to “support the Zoning Officer's decision.”   That motion passed unanimously.

No collective reasons were given by the Board, in support of the decision reached (ROR 26).

A notice of the decision was published in the Connecticut Post on November 16, 2012 (ROR 23), and a letter was sent by Lorentson, acting in his capacity as Secretary/Clerk of the Board of Zoning Appeals, on November 9 (ROR 21).

Lorentson's letter made no reference to Rusatsky's May 21, 2012 letter (ROR 7), which was the subject of the September 4 hearing.   Instead, he made reference to the letter of November 9, 2011 (ROR3;  ROR 4).

From the determination of the Board of Zoning Appeals to “support the Zoning Officer's decision,” the Plaintiff, Frank Losquardo, Jr., brings this appeal.

AGGRIEVEMENT

The Plaintiff, Frank Losquardo, Jr., purchased 156 Blakeman Place in 2004 (Ex. 1), and has owned the property continuously since that date.

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) the party must show that he has a specific personal and legal interest in the subject matter of the decision, as distinct from a general interest such as concern of all members of the community as a whole, and 2) he must show that the personal and legal interest has been specifically and injuriously affected by the decision which provoked the appeal.  Cannavo Enterprises v. Burns, 194 Conn. 43, 47 (1984);  Hall v. Planning Commission, 181 Conn. 442, 444 (1980).

Ownership of the property which is the subject of an appeal demonstrates a personal and legal interest in the subject matter of the appeal.  Huck v. Inland Wetlands & Watercourses Commission, 203 Conn. 525, 530 (1987);  Bossert Corporation v. Norwalk, 157 Conn. 279, 285 (1969).   The decision of the Stratford Board of Zoning Appeals, supporting the refusal of the Zoning Enforcement Officer to issue a certificate of zoning compliance, has specifically and injuriously affected Frank Losquardo, Jr.

It is therefore found, that the Plaintiff, Frank Losquardo, Jr., is aggrieved by the decision which produced this appeal.

STANDARD OF REVIEW

In an appeal concerning a decision rendered by a municipal zoning enforcement official, the action of the zoning enforcement official is entitled to no special deference, by either the zoning board of appeals, or a reviewing court.  Casserta v. Zoning Board of Appeals, 226 Conn. 80, 88–89 (1993).   The zoning board of appeals sits in a quasi-judicial capacity, and must hear and decide any appeal de novo.  Connetta v. Zoning Board of Appeals, 42 Conn.App. 133, 137 (1996).

Acting in a quasi-judicial capacity, 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 Board is endowed with liberal discretion, and its actions are subject to review by a court only to determine 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 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 reviewing court may not substitute its judgment for that of the board, so long as the board's decision represents an honest judgment, reasonably arrived at, based upon facts contained in the record.  Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 548 (1996).   The court is required to determine, based on the record, whether substantial evidence has been presented to support the findings of the zoning board of appeals.  Smith Bros. Woodland Management, LLC v. Zoning Board of Appeals, 108 Conn.App. 621, 628 (2008).

Section 8–7 of the General Statutes requires a zoning board of appeals to state the basis for its decision.   The statute reads:

Whenever a zoning board of appeals ․ sustains or reverses wholly or partly any order, requirement of decision appealed from, it shall state upon the record the reason for its decision.

Where a board has stated reasons for its decision, a court should go no further, and should only decide if any reason given is supported by substantial evidence.  Gibbons v. Historic District Commission, 285 Conn. 755, 770–71 (2008);  Vine v. Zoning Board of Appeals, 281 Conn. 553, 559–60 (2007).   However, the failure of a board to state specific reasons is not fatal.   In that event, a court must search the record to discover whether it discloses reasons to support the decision reached.  Manchester v. Zoning Board of Appeals, 18 Conn.App. 69, 70 (1989).

SEPTEMBER 4 HEARING PROPERLY NOTICED

The Plaintiff, at the outset of the September 4 public hearing, challenged the adequacy of the published notice (ROR 22).   He does not challenge the timeliness of the notice, only in its contents.

The published notice stated that the purpose of the hearing would be “to appeal the decision of the Zoning Enforcement Officer as contained in a letter of November 9, 2011.”   The address of the property, in the published notice, is listed as 156 Blakeman Place.

Courts have recognized a distinction between notice to specific individuals, and statutory requirements mandating public notice.   The failure to give personal notice consistent with a local ordinance may be waived by the party entitled to it.  Schwartz v. Hamden, 168 Conn. 8, 15 (1975);  Palo v. Rogers, 116 Conn. 601, 605 (1933).   The failure to give newspaper notice pursuant to a statute, however, implicates subject matter jurisdiction.   Lauer v. Zoning Commission, 220 Conn. 455, 461 (1991);  Wright v. Zoning Board of Appeals, 174 Conn. 488, 491 (1978).

The primary purpose for requiring notice is to advise all affected parties of their opportunity to be heard.   Adequate notice permits parties who have an interest in the subject property to know what is projected, and to have an opportunity to protest.  Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 47 (1972);  Peters v. Environmental Protection Board, 25 Conn.App. 164, 168 (1991).

Here, the published notice properly identified the party taking the appeal, the property involved, and the time and place of the hearing.

Clearly, the notice should have identified the correct letter, that of May 31, 2012, rather than the November 2011 correspondence.   However, both letters were signed by the zoning Enforcement Officer, John Rusatsky, and both were premised on the assertion that 156 Blakeman Place was a legal nonconforming two-family structure, not a lawful nonconforming three-family home.

Furthermore, no appeal concerning the November 9, 2011 letter would have been timely, since S. 8–7 requires that an appeal be taken, absent a local rule, within thirty (30) days of the decision.

The letter of November 9, 2011, claimed that the third floor was being “converted” into a separate apartment.   No evidence of any “conversion” was presented on September 4, 2012.   The only issue before the Board of Zoning Appeals was whether 156 Blakeman Place is a legally nonconforming three-family dwelling.

It is therefore found that the Stratford Board of Zoning Appeals had jurisdiction to consider the appeal of the May 31, 2012 order of the Zoning Enforcement Officer.

PLAINTIFF HAS DEMONSTRATED THAT 156 BLAKEMAN PLACE IS A LEGALLY NONCONFORMING THREE–FAMILY DWELLING

All parties agree that 156 Blakeman Place was constructed prior to the adoption of zoning regulations by the Town of Stratford in 1927.   The Defendant concedes, as did Planning and Zoning Administrator Gary Lorentson, that the Plaintiff may maintain the property as a two-family dwelling, even though the “B Zone” adopted in 1927 permits only a single-family residence on the site.

It should also be noted that the Plaintiff, Frank Losquardo, although maintaining that the property is a legally nonconforming three-family dwelling, does not challenge the right of the Town of Stratford to regulate the use of the property, consistent with its police powers.   He seeks to comply with the request of the Stratford Fire Marshall, and the applicable provisions of the fire code.   These code requirements, as admitted by Lorentson, do not apply to two-family residences.

The Plaintiff has expressly recognized that a municipality is not prohibited from regulating the operation of a nonconforming use.   Such uses are not exempt from all regulations merely by virtue of their nonconforming status, and reasonable regulations are valid and enforceable.  Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 242–43 (1995);  Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483–84 (1979);  Ammirata v. Zoning Board of Appeals, 65 Conn.App. 606, 614 (2001).

The Plaintiff claims, based upon the evidence presented to the Board of Appeals at the September 4, 2012 hearing, that 156 Blakeman Place is a legally conforming three-family dwelling, and that he is entitled to a certificate of zoning compliance with recognizes that status.

The Court agrees.

In order for a use to be considered nonconforming under a municipal zoning regulation, it must 1) be a lawful use, and 2) must have been in existence at the time the zoning regulation rendering it nonconforming, was adopted.   Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 212 (1986);  Bianco v. Darien, 157 Conn. 548, 558–59 (1969).

A nonconforming use is a vested right, is entitled to constitutional protection, and runs with the land.  Petruzzi v. Zoning Board of Appeals, Supra, 484.   Nonconforming uses are protected by statute,⁴ and may continue as they existed prior to the date of the adoption of the zoning regulation, rendering the use nonconforming.  Essex Landing, Inc. v. Zoning Board of Appeals, 206 Conn. 595, 607 (1988);  Helbig v. Zoning Commission, 185 Conn. 294, 306 (1981).   The burden is upon the owner of the property to prove the existence of a nonconforming use.  Pleasant Valley Farms Development, Inc. v. Zoning Board of Appeals, Supra, 272.

In determining the existence and extent of any nonconforming use, courts have adopted a “know in the neighborhood test.”   This test requires premises to be utilized and employed for a given purpose.  Helicopter Associates, Inc. v. Stamford, Supra, 713;  Raymond v. Zoning Board of Appeals, 76 Conn.App. 222, 256–57 (2003).

The record compiled at the September 4 hearing confirmed that 156 Blakeman Place was listed as a three-family dwelling on the Stratford tax records when Frank Losquadro purchased the property in 2004.

Earlier tax documents, while listing the parcel as a two-family dwelling, are ambiguous, concerning the actual use of the premises.   On one tax record, there is a notation concerning the use of the third floor as rental property (ROR 17).

There is, however, no ambiguity concerning the testimony of the only witness at the hearing who provided historical context through eyewitness testimony.   Peggy Marino, who resided at 156 Blakeman Place as a child, and still lives in the neighborhood, maintained that the structure was a three-family dwelling with tenants in possession, dating back to the 1950s.

The Defendant, Board of Zoning Appeals, seems to suggest that absent direct, eyewitness testimony concerning the use of the property during the 1920s and 1930s, the Plaintiff's claim must fail.   This rule would establish an impossible standard, and one which this court is unwilling to adopt.

Use of the premises during the period prior to 1950 may be demonstrated and proven through circumstantial evidence, and by drawing reasonable inferences from the facts presented in the record.

The Town of Stratford is the custodian of all public records concerning 156 Blakeman Place, which was built in the 1920s, since zoning regulations were adopted eighty-five (85) years prior to the September 4, 2012 public hearing.

There were no records presented or referred to concerning any interior renovations, prior to 1950.   There is no indication, by way of drawings or plot plans, that the footprint of the building was ever increased.

The record reveals that the home was used as a three-family dwelling prior to the amendments to the Stratford Zoning Regulations in 1964.   Peggy Marino testified to that effect, and there is no record which reflects an attempt to enforce the B Zone regulations by agents of the Town of Stratford.   The use of the property as a three-family home was never the subject of a cease and desist order, at a time when memories were fresh, and those who would recall the status of the property in 1927 were alive.

The next-door neighbor, living in a virtually identical home, was granted a certificate of zoning compliance as a three-family dwelling by the Town of Stratford when that property was upgraded, in order to comply with the applicable fire codes.

The Fire Marshall treated 156 Blakeman Place as a three-family dwelling, when he issued a notice of violation which would have no application to a two-family home.

Against this evidence, tax cards which note tenants in possession, while stating that the structure is a two-family home, cannot supply substantial evidence in support of the Board's decision.

Furthermore, the minutes of the November 8 meeting (ROR 26) indicate that the Board of Zoning Appeals applied an incorrect standard, when evaluating the evidence presented at the public hearing.

The minutes reflect a motion to “support the zoning officer's decision.”   This resolution, in its most literal sense, represents an abdication by the Board of its role as fact-finder, in a quasi-judicial proceeding.

The Zoning Enforcement Official, John A. Rusatsky, who signed the letter of May 31, 2012, did not testify at the public hearing.

Because it is found, based upon a review of the record compiled at the September 4, 2012 public hearing, that 156 Blakeman Place is a lawful nonconforming three-family dwelling, the Plaintiff's appeal must be sustained.

CONCLUSION

The Plaintiff's appeal from the decision of the Stratford Board of Zoning Appeals is SUSTAINED.

The Zoning Enforcement Officer is ordered to issue to the Plaintiff, Frank Losquardo, Jr., a certificate of zoning compliance confirming that 156 Blakeman Place is a lawful, nonconforming three-family dwelling.

The structure located at 156 Blakeman Place, Stratford, may be utilized as a three-family dwelling, following the completion of work required by the Stratford Fire Marshall, in order to meet applicable fire code standards.

RADCLIFFE, J.

FOOTNOTES

FN1. Section 8–7, C.G.S.—”An appeal may be taken to the zoning board of appeals by any person aggrieved ․ and shall be taken within such time as is permitted by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days ․ The board shall hold a hearing on such appeal in accordance with section 8–7d.. “.  FN1. Section 8–7, C.G.S.—”An appeal may be taken to the zoning board of appeals by any person aggrieved ․ and shall be taken within such time as is permitted by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days ․ The board shall hold a hearing on such appeal in accordance with section 8–7d.. “

FN2. Section 14.1, Stratford Zoning Regulations—” a nonconforming use is a use of any lot or building which does not conform to the regulations applicable to the zone in which the same is located, but which legally existed at the effective date of these regulations, or at the effective date of any amendment thereto.”.  FN2. Section 14.1, Stratford Zoning Regulations—” a nonconforming use is a use of any lot or building which does not conform to the regulations applicable to the zone in which the same is located, but which legally existed at the effective date of these regulations, or at the effective date of any amendment thereto.”

FN3. Section 14.2.1, Stratford Zoning Regulations—”Such nonconforming building shall not be structurally altered, except in conformity to Section 14.2, provided, however, that such maintenance and repair work as is required to keep a nonconforming building or structure in such condition shall be permitted ․”.  FN3. Section 14.2.1, Stratford Zoning Regulations—”Such nonconforming building shall not be structurally altered, except in conformity to Section 14.2, provided, however, that such maintenance and repair work as is required to keep a nonconforming building or structure in such condition shall be permitted ․”

FN4. Section 8–2, C.G.S.—”․ Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations.”.  FN4. Section 8–2, C.G.S.—”․ Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations.”

Radcliffe, Dale W., J.