76 Conn. App. 222 | Conn. App. Ct. | 2003
Opinion
This zoning appeal arises out of four consolidated zoning appeals concerning a restaurant in Norwalk. In each of the four cases, the parties are the same. The defendants Kevin Conroy, Steven Cook and
The second case is essentially the same as the first case except that the second case relates to the board’s reversal of the officer’s 1998 denial of the defendants’ application for a variance for the construction of the temporary enclosure. As we will set out, the court
The third case concerns the plaintiffs’ appeal from the board’s decision to grant the defendants’ application for a variance to construct a permanent enclosure for the dining area on the deck. Apparently because the claims made by the plaintiffs in the third case were virtually identical
The fourth case does not involve the deck, but instead arises out of a 1998 cease and desist order issued by the officer to the defendants concerning certain diagonal parking spaces in the front of the restaurant. The dispute involves the claimed transformation of three parallel parking spaces into eight diagonal parking spaces that were allegedly in violation of § 118-1220 (J) of the zoning regulations. The defendants appealed to the board from the order, invoking the preexisting, nonconforming use doctrine. The board sustained the appeal. The plaintiffs then appealed to the court, which reversed the board’s decision and held that the increase in parking spaces was an illegal expansion in the preexisting nonconformity and that the failure to have appro
On appeal to this court, the defendants raise the following issues: (1) whether under the zoning regulations, as interpreted by the board, a property owner can expand vertically a building or structure that is nonconforming as to its location over the setback lines if the construction does not go beyond the existing building footprint; (2) whether the court improperly substituted its opinion for the decision of the board and incorrectly concluded that the enclosure of the deck was an illegal expansion; (3) whether the court should have considered the defense, as advanced by the defendants, that a 1996 settlement agreement between the parties, which resulted in the withdrawal of prior litigation, bars the plaintiffs’ administrative appeals because they are inconsistent with the terms of that settlement agreement; (4) whether General Statutes § 8-13a
I
We take up initially the issue
As a preliminary matter, we set forth the standard of review. “Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the
Because the court, in interpreting the regulations, made conclusions of law in its memorandum of decision, our review is plenary. Ammirata v. Zoning Board of Appeals, 65 Conn. App. 606, 610, 782 A.2d 1285, cert. granted on other grounds, 258 Conn. 938, 786 A.2d 425 (2001); Fleet National Bank v. Zoning Board of Appeals, 54 Conn. App. 135, 139, 734 A.2d 592, cert. denied, 250 Conn. 930, 738 A.2d 656 (1999). “[W]e [therefore] must decide whether the conclusions are legally and logically correct and supported by the facts in the
The four cases before us were consolidated into a single appeal that was the subject of a public hearing before the board on June 4, 1998. After that hearing, the board passed the following two motions. The first motion encompassed the issues in the first, second and third cases
“[Acting chairwoman Anne] Greismer moved that the appeal be sustained on the basis that a regulation, specifically § 118-800 (D) (1), is sufficiently ambiguous that the interpretation could be realistically decided in favor either way, and that indicates that the relief must go to the property owner until such time that this regulation is clarified.” The motion passed unanimously. The second motion encompassed the issue in the fourth case
The court stated in its memorandum of decision: “Implicit in the board’s decision is its determination that § 118-800 (D) (1) does not prohibit the erection of either the retractable enclosure or a permanent enclosure on the deck.” The court, therefore, took the position that although the plaintiffs had challenged the board’s decision on several grounds, the board assigned only a single ground for its decision — the ambiguity of § 118-800 (D) (1) of the zoning regulations. Accordingly, it decided that the only issue before it, with respect to
On appeal, the defendants claim that the board, in effect, correctly decided that the zoning regulations permit a property owner to expand vertically a building or structure that is nonconforming as to its location or setback lines
The plaintiffs, on the other hand, claim in their brief that the court “properly found that the defendants’ retractable and later frame enclosure of [the] nonconforming waterfront deck was an illegal expansion or alteration of a nonconforming structure in violation of § 118-800 of the Norwalk zoning regulations.”
In its review, the court noted that implicit in the board’s decision was the determination that § 118-800 (D) (1) of the zoning regulations did not prohibit the erection of either the temporaiy or permanent enclosure of the deck. The validity of that observation is to be made in the context of any other applicable portion of the zoning regulations. The principal issue before us is the interpretation of certain provisions of the zoning regulations. We therefore must decide whether the court’s conclusions are legally and logically correct and are supported by the facts in the record. See Fleet National Bank v. Zoning Board of Appeals, supra, 54 Conn. App. 139.
In doing so, we must determine whether the court could have concluded, as it did, that the ultimate result of the board in deciding that there was no violation of the zoning regulations, as claimed, was legally and logically incorrect on the facts in the record and the applicable law.
At this juncture, we recognize that there is nothing in the record or the briefs that demonstrates that § 118-800 (D) (1) of the zoning regulations has ever been subjected to prior judicial scrutiny. That brings us within the general rubric that “the construction of a statute on an issue that has not previously been subjected to judicial scrutiny is a question of law on which an administrative ruling is not entitled to special deference.” Schlumberger Technology Corp. v. Dubno, 202 Conn. 412, 423, 521 A.2d 569 (1987). “[I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law.” (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 698, 784 A.2d 354 (2001).
We also note that “[a] court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation. . . . A zoning ordinance is a local legislative enactment, and in its inteipretation the question is the intention of the legislative body as found from the words employed in the ordinance.” (Citation omitted; internal quotation marks omitted.) Id. “The words [employed] in zoning ordinances are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms.” Coppola v. Zoning Board of Appeals, 23 Conn. App. 636, 641, 583 A.2d 650 (1990). “The language of the ordinance is construed so that no clause or provision is considered superfluous, void or insignificant.” Connecticut Resources Recovery Authority v. Planning & Zoning Commission, supra, 46 Conn. App. 571; see also Pelliccione v. Planning & Zoning Commission, 64 Conn. App. 320, 336, 780 A.2d 185, cert. denied, 258 Conn. 915, 782 A.2d 1245 (2001). “A statute should be construed so that no word, phrase or clause will be rendered meaningless.” C. White & Son, Inc. v. Rocky Hill, 181 Conn. 114, 122, 434 A.2d 949 (1980); see also Hasselt v. Lufthansa German Airlines, 262 Conn. 416, 424,815 A.2d 94 (2003). “Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legisla
With those principles in mind, we turn to § 118-800 (D) (1) of the zoning regulations,which the court correctly recognized must be considered with § 118-800 (A) as well as other sections of the zoning regulations. Section 118-800 is found in article eighty, entitled, “General Regulations,” and pertains specifically to “Nonconformities.” Section 118-800 (A) provides: “Purpose and intent. There exists throughout Norwalk lawful lots, structures and uses of land and structures which are nonconforming because they do not comply with these regulations as originally adopted or subsequently amended. The purpose of this regulation is to permit nonconformities to continue, but to strictly limit the extent to which nonconformities may be established, continued, expanded or altered. This regulation is intended to bring nonconforming uses into conformity with the regulations as quickly as the fair interests of the parties will permit.” (Emphasis added.)
A
Preliminarily, we examine the court’s analysis of § 118-800 (D) (1) of the zoning regulations in light of the claims of the parties. The defendants in their principal brief maintain that the regulation “contains an affirmative statement that a nonconforming structure may be enlarged or altered” and that “[t]he limitation on this enlargement is contained in the first sentence of § 118-800 (D) (1).” They argue that the “alteration is permissible under the regulation so long as it does not result in [an increase in] the extent to which the structure does not conform to these regulations and that extent of the nonconformity [in this case] is simply and clearly the measurement of the distance between the [rear] setback line and the existing deck.” Thus, the defendants claim that the nonconformity violates no
The plaintiffs, in urging the affirmance of the court’s decision, argue that the court correctly interpreted the regulations, that the “extent or magnitude” by which the structure is nonconforming was increased “both by horizontally expanding a building into the rear yard setback and by rendering a nonconforming structure a nonconforming [building].” They further contend that “the purpose of [ § 118-800] is to permit nonconformities to continue, [and that the regulations intend to] strictly limit the extent to which nonconformities may be established, continued, expanded or altered.'1'1 (Emphasis in original.) They also argue that the nonconformity was increased “by exchanging an open deck that [was] already located a mere eighteen inches from the water for an opaque building, thereby blocking visual access and frustrating the principles of the business three zone.”
The court began its analysis by stating that the issue of statutory interpretation it had to decide was “whether § 118-800 (D) (1) and (A) prohibit the erection of an enclosure on a setback nonconforming deck which extends both vertically to ceiling height and horizontally
B
In an appropriate case, § 118-800 (D) (1) allows a “structure” to be “enlarged” or “altered,” provided the enlargement or alteration “conforms to these regulations.” Norwalk Zoning Regs., § 118-800 (D) (1). We note at this point that the court acknowledged in its memorandum of decision that “no claim has been made [by either party] that the enclosure will violate any of the bulk restrictions except rear yard setback.” Yet, the
We therefore do not review any “bulk” determination made by the court except that which appropriately was presented.
The court went on to state that the regulations do not define either “structure” or “building.” It stated that “[o]ur courts have defined ‘structure’ as ‘any production or piece of work artificially built up, or composed of parts and joined together in some definite manner.’ Hendryx Co. v. New Haven, 104 Conn. 632, 640, 134 A. 77 (1926).” The Hendryx Co. case, we point out, concedes that this definition of “structure” is one “[i]n its widest sense . . . .” Id., 640.
We do not agree with the court and the plaintiffs that the temporary and the permanent enclosure converted
We do not look favorably on the plaintiffs’ argument that the enclosure turned a nonconforming structure, the deck, into a nonconforming building and that there is a distinction between them as to the regulation of nonconformities in § 118-800 of the zoning regulations. In advancing that argument, the plaintiffs refer to § 118-100, which is in article ten of the regulations and is entitled, “Definitions.” That article contains, inter alia, definitions of “nonconforming building or use”
D
That brings us to the question of whether the deck, which is attached to and part of the building, properly can be expanded vertically where that expansion does not involve any further extension beyond the existing building footprint. In resolving that question, the effect of § 118-800 (D) (1) of the zoning regulations is focal. The resolution of that issue clearly implicates the Doyen case, which, as we previously stated, was not decided until after the trial court decided the present case.
In Doyen, the property owners applied for a zoning permit to construct an addition that “contemplated a vertical expansion [of their residence] that would not exceed the ’existing structural footprint’ of their house.” Doyen v. Zoning Board of Appeals, supra, 67 Conn. App. 599. “The proposed addition would extend five to six feet over, but not beyond, the existing deck on the side of the house. The house, which was constructed prior to the adoption of the Essex zoning regulations in 1966, is a legally nonconforming structure in that a portion of the foundation and the deck attached to the same side of the house extend into the twenty-five foot side setback area required by the regulations.” Id. The Essex zoning board of appeals upheld the granting of the permit by the town’s zoning enforcement officer, which the trial court reversed. Id., 598. We subsequently reversed the court’s decision. Id., 612.
The parties differ as to the significance of Doyen to the case now before us. The plaintiffs greatly minimize the applicability of Doyen by attempting to distinguish it, while the defendants do much the opposite. The plaintiffs in their brief claim that “[f]irst and foremost, the posture and perspective of the [ordinances] is nearly opposite and their meanings are distinct.” They argue that the Essex regulation “imbue[d]” that town’s zoning board of appeals with discretion, while the Norwalk regulation limits such discretion. The plaintiffs further claim that the Norwalk regulations prohibit the expansion of nonconforming structures when the result would be “an increase in the extent to which the structure does not conform to these regulations . . . .” (Emphasis in original.) See Norwalk Zoning Regs., § 118-800 (D). Moreover, the plaintiffs claim that the deck enclosure would replace a nonconforming structure with a building that encroaches well into the rear
We now turn to the provision of the Essex zoning regulations that was highlighted in Doyen. Section 50D
We do not agree with the plaintiffs, as they argued before us, that the difference between the Norwalk and
E
Something should be said about the plaintiffs’ argument in their brief that in Doyen, the Essex zoning board of appeals “had no waterfront business zone language to consider . . . .”
The circumstances of this case do not persuade us to resolve a claim that was not raised in, let alone decided by, the trial court. Therefore, given that, it seems unfair for us to discuss that matter. As we have stated, “[i]t is well established that an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. Practice Book § 60-5; Yale University v. Blumenthal, 225 Conn. 32, 36 n.4, 621 A.2d 1304 (1993) (issue not reviewed because not raised at trial). . . . [B]ecause our review is limited to matters in the record, we [also] will not address issues not decided by the trial court. . . . Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996) (claims neither addressed nor decided by trial court are not properly before appellate tribunal) . . . .” (Internal quotation marks omitted.) Burnham v. Karl & Gelb, P.C., supra, 252 Conn. 170-71.
Additionally, in their attempt to distinguish Doyen from this case, the plaintiffs correctly argue that Doyen was decided against a background of consistent interpretation of the Essex regulations by its zoning board of appeals, which is not present in this case. In the case before us, the two Norwalk officers who interpreted the Norwalk regulation came to two completely different and inconsistent results. That, however, only very
Next, with reference to distinguishing Doyen from this case, the plaintiffs assert that the Essex zoning board of appeals, unlike the Norwalk board, did not have a regulation that made a defined distinction between nonconforming structures and buildings. That is a puzzling basis on which to advance a valid distinction. The Norwalk regulations do not have a “defined distinction” between nonconforming structures and buildings. The court, in its analysis, honed in on § 118-800 (D) (1) of the zoning regulations, captioned “Nonconforming Structures,” which does not define nonconforming structures, and § 118-800 (A), captioned “Nonconformities.” As we have discussed, the court, in construing the former provision, used the definition of “structure” employed in Hendryx Co. v. New Haven, supra, 104 Conn. 640, which appeared in a building permit ordinance of the defendant city of New Haven. In defining
Finally, the plaintiffs claim in their brief that “most importantly,” the Essex zoning board of appeals did not have before it any “prohibition against allowing expansion where to do so would encroach upon other regulations even if the existing nonconformity charac
On the applicability of Doyen to this case,
Doyen recognized that in a proper case, a vertical expansion of a nonconforming use that is entirely within
For all of the previously stated reasons, including the applicability of Doyen, the judgment must be reversed
II
We now address the defendants’ claim as to the fourth case, which is that the court improperly reversed the decision of the board, which had reversed the officer’s order that the defendants cease and desist
At this point, we mention the defendants’ assertion in their principal brief that the solution of the parking issue is a matter for the “legitimate exercise of the police powers of the municipality and should not be viewed as a zoning issue at all.” We do not agree, but will address the matter briefly and, in doing so, note that the defendants’ analysis is scant, at best, and without legal citation. We need not consider on appeal
Certain background circumstances may appropriately be set out at this point. Section 118-1220 (J) of the zoning regulations provides in relevant part: “All off-street parking and loading facilities shall be located to the rear of the required setback line as now or hereafter established. The area between the street line and the front setback line, except for vehicle and pedestrian access ways, shall be landscaped with lawns or other appropriate planting.”
That regulation became effective on March 1, 1985. The defendants claimed that eight diagonal parking spaces or stalls that extend from the easterly facade facing on Rowayton Avenue, which is the front of the restaurant building, constitute a valid nonconforming use of the front setback area for parking. From the record, it would appear that controversy swirls about the defendants’ claim that the present use of that area by the defendants for eight diagonal parking spaces constitutes a valid nonconforming use. The plaintiffs dispute that claim and argue that the defendants’ diagonal parking claim has not been proven to be a valid nonconforming use of the front setback area. Specifically, the plaintiffs refer to certain evidence that, prior to 1985, shows three motor vehicles parked parallel to and alongside what was an open porch with “each vehicle facing due south,” as the court stated in its memorandum of decision. It is the legal status of the eight diagonal spaces versus the three parallel spaces that is
On appeal, the court considered the evidence that the parking spaces had been in existence since 1985. We note that the defendants do not argue that the court did not consider the evidence on the parking issue, but do strenuously object to the court’s conclusion that the evidence does not demonstrate a valid nonconforming use for the eight diagonal spaces.
In its review, the court referred to the testimony of longtime neighborhood residents to the effect that they remembered cars parking in front of the defendants’ building as long as they had been there, which would have been several years before 1985, as well as photographs,
Further, the court pointed out that the defendants had made “no claim that they had diagonal parking
We turn next to the plaintiffs’ argument that unless pattern parking is permitted by local ordinances, General Statutes § 14-251 prohibits diagonal vehicular parking on any public highway in the state. The court reiterated that the record did not indicate that Norwalk had such an ordinance. It then determined that it needed no evidence to conclude that any activity that constitutes a violation of our state traffic laws would necessarily produce “a substantially different effect upon the neighborhood from that which existed prior to the change (parallel parking).” The court concluded by sustaining the plaintiffs’ appeal in that the court found that the board had acted illegally and abused its discretion. We agree with the conclusion of the court.
We note that Norwalk certainly cannot enact an ordinance that prohibits diagonal parking outside its limits
We will not indulge in an exegesis on the issue, but simply note that the local regulation here does not conflict with state law. Section 118-1220 (J) of the zoning regulations does not permit something the state prohibits, i.e., diagonal parking by virtue of General Statutes § 14-251. The circumstance that the diagonally parked vehicles are partially parked illegally in the public highway (Rowayton Avenue) does not “sap” the zoning authority from enacting an ordinance as to off street parking of such vehicles on municipal property.
The court characterized the issue as whether the actual nonconformity can lawfully ripen into the present parking configuration. It opined that the board’s “undeclared reason” for reversing the decision of the
It is appropriate here to set out certain applicable legal principles to test the propriety of the court’s sustaining the plaintiffs’ appeal on the parking issue. Initially, we set forth the applicable standard of review. “The legality of an extension of a nonconforming use is essentially a question of fact.” Helicopter Associates, Inc. v. Stamford, supra, 201 Conn. 716; Guilford v. Landon, 146 Conn. 178, 183, 148 A.2d 551 (1959). “The sufficiency of the evidence to support a finding, however, clearly presents a question of law.” Zachs v. Zoning Board of Appeals, supra, 218 Conn. 331. As we have stated, we examine questions of law under the plenary standard of review. Ammirata v. Zoning Board of Appeals, supra, 65 Conn. App. 610.
“A [nonconforming] use is merely an existing use the continuance of which is authorized by the zoning regulations.” (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, supra, 258 Conn. 693 n.3. Stated another way, it is a “use . . . prohibited by the zoning regulations but . . . permitted because of its existence at the time that the regulations [were] adopted.” Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 710, 535 A.2d 799 (1988). “[T]he rule concerning the continuance of a nonconforming use protects the right of a user to continue the same use of the property as it existed before the date of the adoption of the [relevant] zoning regulations.” (Internal quotation marks omitted.) Helbig v. Zoning Commission, 185 Conn. 294, 306, 440 A.2d 940 (1981); Cioffoletti v. Planning & Zoning Commission, 24 Conn. App. 5, 8, 584 A.2d 1200 (1991). To be a nonconforming use, not only must the use be lawful, but it also must “be an existing use, [for which the] premises must be so utilized as to
In Zachs, our Supreme Court stated that “[i]n deciding whether the current activity is within the scope of a nonconforming use consideration should be given to three factors: (1) the extent to which the current use reflects the nature and purpose of the original use; (2) any differences in the character, nature and kind of use involved; and (3) any substantial difference in effect upon the neighborhood resulting from differences in the activities conducted on the property.” Id., 332.
In this case, the court stated that there was “scant evidence”
After an independent search of the record to determine how, “if at all,” as the court stated, the Zachs factors had been satisfied, the court stated that the record revealed first that “while the principal use which the parking serves remained unchanged, the accessory use of parking has not only virtually tripled in number but in doing so further frustrates the goal of § 118-1220 (J) to maintain the setback area with ‘appropriate planting[s].’ ” Furthermore, the court decided that the second Zachs factor was “unchanged, as the kind of use [parking] was identical.” Additionally, the court decided that the third Zachs factor involved “an evaluation of the effect of the eight spaces upon the neighborhood,” stating that there was little, if any, evidence on that factor except for three color photographs from which the court made some telling observations. The court pointed out that the photographs not only showed vehicles parked in the spaces in question with their rear portions extending into the “traveled [paved portion of Rowayton Avenue],” but also that if “those vehicles were transposed onto exhibit ten, it would become apparent that all but a small portion of all eight vehicles would be parked on Rowayton Avenue with only a small portion of the front of the vehicle being parked on the [defendants’] property.”
In reviewing the court’s analysis of the Zachs factors, we keep in mind the defendants’ claim that the present formulation of the diagonal parking should be “continued” as a valid, nonconforming use. As to the first Zachs factor, we observe that § 118-1220 (J) of the zoning regulations provides in relevant part that “[a]ll off-street parking . . . shall be located to the rear of the required
As to the second Zachs factor, we agree with the court when it stated that the kind of use is identical which, from the context, we take to mean that the earlier and the current use is for parking.
Turning to the third Zachs factor, the court’s analysis makes a strong point in evaluating the defendants’ claim of whether the current activity is within the scope of a valid, nonconforming use. The record evidence showed
The plaintiffs point out that unless permitted by local ordinance, General Statutes § 14-251 prohibits diagonal parking on any public highway in the state. Norwalk has no such ordinance. Given that, the court decided that it needed no evidence to conclude, while aware of the third Zachs factor, that a violation of our state traffic laws necessarily would produce an effect on the neighborhood substantially different from the parallel parking that existed prior to the diagonal parking. The defendants’ illegal diagonal parking, the court indicated, fairly could be said to have brought about a “substantial” difference in its effect on the neighborhood. The circumstance, as the defendants’ claim, that under the diagonal parking formulation, only a small part of the front end of each vehicle is on their property does not bar Norwalk’s authority to prohibit that incursion. The “courts allow a zoning authority wide and libera! discretion ... in determining the public need and the means of meeting it, because the local authority lives close to the circumstances and conditions which create the problem and shape the solution . . . .” (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 518, 636 A.2d 1342 (1994); Burnham v. Planning & Zoning Commission, 189 Conn. 261, 266, 455 A.2d 339 (1983).
The judgments in the first three cases, involving the vertical expansion, are reversed and those cases are remanded with direction to render judgments affirming
In this opinion the other judges concurred.
The defendants are the zoning board of appeals of the city of Norwalk; R.S.R., LLC; Kevin Conroy; Steven Cook; and James Bradley, zoning inspector for the city of Norwalk. Conroy, Cook and R.S.R., LLC, own the restaurant in question. The board did not appeal, but filed a brief in which it adopted the brief of the other defendants, with the caveat that it does not agree with the other defendants’ assertion in their principal brief that the parking issue in this case “should not be viewed as a zoning issue at all.” We refer in this opinion to Conroy, Cook and R.S.R., LLC, as the defendants.
Initially, the plaintiffs were Frank E. Raymond, Willis Cavanaugh, Jacqueline Cavanaugh, Hillard Bloom and the estate of Norman Bloom. Frank E. Raymond died some time during the proceedings, but there has not been a substitution of an executor for him. The trial court found that Jacqueline Cavanaugh had failed to provide any evidence of aggrievement, and she, therefore, is not a party to this appeal. The court found that the remaining plaintiffs were statutorily aggrieved by virtue of their ownership of real property that abutted the property involved in this appeal.
The deck is attached to the existing restaurant building, and although it extends over the rear setback line, it has existed in that location since 1992. The deck was built with the approval of the zoning and building authorities of Norwalk.
In 1996, the owners of the restaurant added the temporary enclosure to permit dining during inclement weather.
Section 118-800 (D) of the Norwalk zoning regulations, entitled “Nonconforming structures,” provides in relevant part: “(1) A nonconforming structure shall not be enlarged or altered if the result would be an increase in the extent to which the structure does not conform to these regulations. A nonconforming structure may be enlarged or altered, provided that the enlargement or alteration conforms to these regulations.”
In the first case, the officer also issued a cease and desist order against the owners for the construction of a new movable stoop at the front of the restaurant building to which the plaintiffs had objected. That order was overturned by the board on appeal. The court subsequently reversed the board’s decision. That portion of the judgment, however, has not been appealed from.
One factor that distinguishes this case from the others is the defendants’ claim that a December, 1996 written settlement agreement in a case not presently before us bars the plaintiffs from challenging the legality of the deck enclosures. On appeal, the defendants claim that the 1996 settlement agreement operates to bar the plaintiffs’ appeal in all four cases.
The court refused to rule on the merits of that claim. In doing so, the court stated in its memorandum of decision that “[i]t would be improper for the court, in its role as a court of appeal, to determine the intent of the parties to that agreement .... Whether the agreement should be enforced in this proceeding is beyond the proper scope of this court’s review.” (Citation omitted.)
General Statutes § 8-13a (a) provides: “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 relation to the boundaries of the lot or when a building is situated on a lot that violates a zoning regulation of a municipality which prescribes the minimum area 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 or to the area of such lot, as the case may be.”
Because the issue is essentially common to the first, second and third cases, our discussion and analysis in part I applies to all three cases unless otherwise noted.
The plaintiffs, on the other hand, claim that the defendants’ expansion on the restaurant deck not only is an impermissible vertical expansion, but also an impermissible horizontal expansion of the nonconforming use of the deck. As we will discuss, we do not agree with the plaintiffs with respect to their claim of a horizontal expansion.
Although the issue as stated by the plaintiffs refers only to the temporary enclosure, we treat it as also encompassing the matter of the defendants’ application for the permanent enclosure (third case). That did not disadvantage the plaintiffs, either in their briefing or at oral argument. Actually, in urging us to adopt the court’s analysis of that issue, the plaintiffs in their brief clearly state that “[t]he trial court’s analysis [of the temporary enclosure] applies afortiori to the proposed permanent deck enclosure.” (Emphasis added.)
Those appeals involve the temporary enclosure and the permanent enclosure.
That appeal involves the parking issue.
Although the defendants use “setback lines” in the plural, it is clear to us that the only setback line to which the construction is nonconforming is the rear setback. The plaintiffs suggest that it is nonconforming also as to side “setback” lines. That suggestion, however, has not been proven or demonstrated by the plaintiffs.
During oral argument before this court, the plaintiffs emphasized the term “altered,” which appears twice in § 118-800 (D) (1) of the zoning regulations, and claimed that that part of the ordinance was violated by the deck enclosures. In addition, the plaintiffs claim that the defendants violated the “enlarged” limitation of the ordinance. When asked if the claim of alteration was made “anywhere” in the prior proceedings, the plaintiffs’ counsel indicated that it had been, but not in so many words, and that our plenary review permits this court to address the claim. We do not agree.
We have examined the court’s memorandum of decision carefully and find no indication that the court construed that term. Quite to the contrary, the court’s memorandum of decision is rife with references to the “enlarged” part of § 118-800 (D) (1). Those include the plaintiffs’ claims of “enlargement” so as to violate § 118-800 (D) (1) where the court stated that “[i]n the final analysis . . . the [temporary] and perforce the permanent enclosure constitutes an impermissible expansion of the nonconforming deck" (Emphasis added.) The court did not analyze the “altered” prong of § 118-800 (D) (1) or base its conclusion on that portion of the regulation.
It is true that the plaintiffs discuss in their brief the “altered” prong,
We do not believe that plenary review encompasses review of a claim not appropriately — if at all — raised at trial. It also does not encompass a claim never decided by the trial court. “[BJecause these issues were not adjudicated in the trial court, the record before us is incomplete.” Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 718, 519 A.2d 49 (1986); Brehm v. Brehm, 65 Conn. App. 698, 702-703, 783 A.2d 1068 (2001); cf. State v. Dabkowski, 199 Conn. 193, 198, 506 A.2d 118 (1986) (claims “functionally made and the record [was] adequate for [appropriate] review”); Salmon v. Dept. of Public Health & Addiction Services, 259 Conn. 288, 305, 788 A.2d 1199 (2002) (claims reviewed where Supreme Court “persuaded” plaintiff “functionally raised [the] issue in [both] the administrative and trial court proceedings” [emphasis added]).
The Doyen case is not referred to in the defendants’ brief, which was filed in this court on November 5,2001. The Doyen opinion was not officially released until January 15, 2002, some time before the plaintiffs’ brief was filed on March 4, 2002. The defendants, however, in their reply brief filed March 20, 2002, discuss Doyen extensively.
That does not state the issue quite accurately. The plaintiffs claim in their brief that “the extent or magnitude to which the structure is nonconforming is increased both by horizontally expanding a building into the rear yard setback by rendering a nonconforming structure a nonconforming [building].” (Emphasis added.) The court, however, did not actually find that there was an impermissible horizontal extension of any nonconformity. Instead, the court found that “[n]o portion of the enclosure protrudes beyond the structural limits of the deck.” Our review of the record also reveals that there was no evidence of any horizontal extension. First, not only is there no such extension “into the rear yard setback,” but there is no horizontal extension anywhere of the legal nonconformity admittedly existing.
Moreover, the plaintiffs, in their “analysis,” did not raise the claim of “horizontal extension” above the level of an assertion. Further, in their
An interesting analysis of the conjunction “but” applicable here discloses the following: “The word ‘but’ is used conjunctively in the sense of ‘on the contrary,’ and connects two clauses of the sentence in such a way as to
That definition in Hendryx Co. (which contains other definitions of “structure”) occurred in a case in which the plaintiff, which owned manufacturing property on both sides of a public street in New Haven, built without a building permit, an overhead bridge from one building on one side of the street to its building on the other side of the street. Hendryx Co. v. New Haven, supra, 104 Conn. 638. The case involved the construction of a New Haven city ordinance that required a building permit. Id., 639. The ordinance provided in relevant part: “(1) Before the erection, construction or alteration of any building or structure . . . there shall be submitted to the Building Department an application for a [building] permit . . . .” (Emphasis added; internal quotation marks omitted.) Id., 635. Interestingly, we note, the Hendryx Co. court stated that there are “many forms of structures which are attached to buildings . . . .” Id., 641.
Section 118-100 of the Norwalk zoning regulations defines “nonconforming building or use” as “[o]ne that does not conform with the regulations of the zoning ordinance of the zone in which it is situated.” There also is a separate definition of “nonconforming use.”
Section 118-100 of the Norwalk zoning regulations defines “nonconforming structure” as “[a] structure, the size, dimensions or location of which was lawful prior to the adoption or amendment of a zoning regulation, but which fails by reason of such action to conform to the present requirements of the zoning district in which it is located.”
See footnote 16. After reviewing the applicable case law, including Connecticut cases and those from other jurisdictions, the court concluded that there did not exist in Connecticut any controlling authority on whether an enlargement that extends vertically and horizontally over a setback nonconforming structure, but does not encroach farther into the setback, constitutes an unlawful expansion of the nonconforming structure.
In Doyen, we did not analyze § 50D in isolation, but in the context of the Essex zoning regulations, including the preamble in § 10B, which provides in relevant part: “ [I] t is a fundamental principle of zoning law that nonconformities are not to be expanded and that they should be abolished or reduced to conformity as quickly as the fair interests of the parties will permit. This principle is declared to be the intent of these regulations.” (Internal quotation marks omitted.) Doyen v. Zoning Board of Appeals, supra, 67 Conn. App. 605.
Parenthetically, in the context of “permissiveness”, we note that § 118-800 (C) (4) of the Norwalk zoning regulations provides in relevant part that “[a] nonconforming use of land or structure may be changed to another nonconforming use” under certain circumstances. (Emphasis added.)
The subject location is in a business three zone and is situated right on what was referred to as the Five Mile River. At oral argument before this court, the defendants maintained that the Five Mile River was S shaped, that their restaurant was located at the bottom of the “S” and that there was no blockage by the enclosure to a view of the river.
See General Statutes § 22a-90 et seq. That legislation, known as the Coastal Management Act, provides an additional level of regulation besides conventional land use controls in the coastal area. See R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 12.3, p. 281. The Coastal Management Act “was expressly concerned with providing uniform standards for evaluating the impact of coastal development, while allowing municipalities to maintain local control over the process.” Read v. Planning & Zoning Commission, 35 Conn. App. 317, 324, 646 A.2d 222 (1994).
We note that the definition of the word “building” does not appear anywhere in § 118-800. We therefore assume that although the court did not reference a definition of that term, it was using the “definition” in § 118-100, captioned “Definitions,” which provides: “Nonconforming building or use — one that does not conform with the regulations of the zone in which it is situated.”
We do point out that significantly, the plaintiffs, in their claims to distinguish Doyen, do not claim that Doyen is dissimilar because that case did not involve any horizontal expansion of the nonconformity, whereas they advance a claim of horizontal nonconformity in this case.
Again, we point out that no portion of the enclosures goes into or beyond the legally existing rear yard nonconformity.
The cease and desist order also included the officer’s order that the defendants remove a certain “stoop” at the front of the restaurant building. The portion of the judgment concerning the “stoop" has not been appealed from. Consequently, the issue is limited to the matter of the parking spaces.
As stated in footnote 1, the board filed a one page brief that “adopts” the defendants’ brief “in its entirety” except for two paragraphs of the defendants’ principal brief on the parking issue. Those two paragraphs concern essentially the defendants’ arguments that the parking issue is not a zoning issue at all, but rather one subject to the legitimate exercise of the police power of the municipality.
The board did not provide an analysis of that issue, but instead left its resolution “to the court and briefs of the remaining parties.”
As to other photographs placed into evidence by the defendants showing neighboring properties with parallel parking at the curb except where the particular business establishment had its own off street parking lot, the court observed that those photographs had little probative value.
The court also determined that “while the front porch of the building was in place, there could have been no diagonal parking because to do so would have required the vehicles to extend the traveled portion of Rowayton Avenue.” The front porch was not. removed until 1992.
We read that to mean that the court believed that the evidence supporting the board’s decision was not substantial.
The status of the service stoop is not part of this appeal.