Conetta v. Zoning Board of Appeals

677 A.2d 987, 42 Conn. App. 133, 1996 Conn. App. LEXIS 345
CourtConnecticut Appellate Court
DecidedJuly 9, 1996
Docket14620
StatusPublished
Cited by38 cases

This text of 677 A.2d 987 (Conetta v. Zoning Board of Appeals) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Conetta v. Zoning Board of Appeals, 677 A.2d 987, 42 Conn. App. 133, 1996 Conn. App. LEXIS 345 (Colo. Ct. App. 1996).

Opinion

LAVERY, J.

The defendants1 appeal from the judgment of the trial court sustaining the plaintiffs appeal and reversing the decision of the Stamford zoning board of appeals (board) that the defendant’s plumbing business constituted a lawful nonconforming use. The controlling issue in this appeal is whether the trial court [134]*134impermissibly substituted its factual findings for those of the board.

The facts are as follows. In March, 1993, the plaintiff, a neighbor of the defendant, complained to the Stamford zoning enforcement officer that the defendant was conducting an illegal plumbing business in a residential zone that prohibits commercial uses. After investigation, the zoning enforcement officer refused to issue a cease and desist order, finding that the plumbing business being conducted at the premises by the defendant was a continuation of a valid nonconforming use. The plaintiff, pursuant to statute, appealed the zoning enforcement officer’s ruling to the board.

At a public hearing, the plaintiff conceded that the defendant’s father purchased the property in May, 1950, prior to the enactment of the applicable zoning regulations,2 and began to build on the property later that year. The building was not completed until 1952. The defendant’s father owned the property from 1950 until his death in 1980, at which time it passed by will to his widow who, in turn, conveyed it to the defendant. At the time the defendant’s father purchased the property, he was working as a plumber. The plaintiff claimed before the board that the defendant’s plumbing business did not exist on the premises prior to November 30, 1951, or, in the alternative, that the nonconforming use was abandoned between 1981 and 1990, when it was illegally expanded.

[135]*135The zoning enforcement officer testified before the board that he conducted an investigation upon receiving the plaintiffs complaint. He talked to the defendant and inspected the property. The officer also reviewed affidavits submitted by Gerald Pellegrino, Jerry Sessa and Nicoletta Sessa, which became part of the record before the board. Pellegrino, who identified himself as a cousin of the defendant, attested that the defendant’s father bought the vacant land in 1950 and immediately began using it for his plumbing business. Pellegrino stated that he knew that because he worked on the construction of the house with the defendant’s father. Jerry Sessa, the defendant’s uncle, stated that his brother bought the property in May, 1950, and immediately began using it for his plumbing business. The defendant’s mother stated that her husband bought the property in 1950 and immediately began using it for his plumbing business.

The defendant’s attorney told the board that two of the affiants were present and would testify that the defendant’s father used the property for the operation of his plumbing business prior to November 30, 1951. The defendant’s attorney stated that Pellegrino and Jerry Sessa would testily that during the construction of the house, pipes were strewn all over the ground, an area was set aside for parking the plumbing trucks and that “[a]ll during the time that this house was being constructed ... if you needed a certain piece of pipe, you would go out on the lawn and look around and kick some grass and there was some pipe and it was all over the place.”

The defendant’s next-door neighbor since 1956 was also available to testify at the hearing. The defendant’s attorney stated that the neighbor would testify that since 1956 the Sessa family had operated the plumbing business on the property. The defendant’s attorney also told the board that the defendant was present and that [136]*136the board could question him. The defendant’s attorney also stated that when the defendant was in high school he became an apprentice with his father and that he had run the family business since that time.

The board upheld the decision of the zoning enforcement officer. In its decision, the board stated: “The board finds that the business has been in continuous operation since November 30, 1951. The board also finds that the business is confined to the garage and the trucks parked on the premises and therefore there has been no illegal expansion of this nonconforming use.” The plaintiff appealed to the Superior Court claiming that (1) the business did not exist at the location prior to the adoption of the zoning regulations so that no legal nonconforming use ever existed, (2) the addition of a four car garage that houses the plumbing business was an illegal expansión of a nonconforming use, and (3) the defendant abandoned the legally nonconforming use between 1985 and 1990 when the defendant operated his business from an entirely different location.

The trial court found that the board acted illegally, arbitrarily and in abuse of its discretion in affirming the zoning enforcement officer’s decision and concluded that the nonconforming use did not exist on the premises at the time of the adoption of zoning regulations on November 30, 1951.3 The trial court concluded from its examination of the record that the board knew that construction of the residence was not completed until 1952, that there was no telephone there until 1952 and that no reference exists in local business directories of a plumbing business at that location in November, 1951. The trial court held that the board abused its [137]*137discretion because it was difficult to see how a vacant lot or one with a house under construction could be adapted or actually employed for a plumbing business. The trial court did not attach significance to the affidavits because the affiants did not offer evidence showing that the plumbing business had begun immediately or explaining how the business could be conducted from an empty lot.

In Caserta v. Zoning Board of Appeals, 226 Conn. 80, 88-89, 626 A.2d 744 (1993), our Supreme Court held that a zoning board of appeals hears and decides an “appeal” de novo. The Caserta court stated: “Our case law further reinforces the de novo nature of the hearing conducted by the zoning board of appeals. It is the board’s responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts. Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560-61, 236 A.2d 96 (1967); Connecticut Sand & Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442, 190 A.2d 594 (1963). In doing so, the board ‘is endowed with a liberal discretion . . . .’Id. Indeed, under appropriate circumstances, the board ‘may act upon facts which are known to it even though they are not produced at the hearing.’ Parsons v. Board of Zoning Appeals, 140 Conn. 290, 99 A.2d 149 (1953). The principal procedural limitations on the hearing are that ‘there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary or to be fairly apprised of the facts upon which the board is asked to act.’ Id., 293.” Id., 90.

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Bluebook (online)
677 A.2d 987, 42 Conn. App. 133, 1996 Conn. App. LEXIS 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conetta-v-zoning-board-of-appeals-connappct-1996.