Gabriele v. Zba of the Town of Darien, No. Cv 96 0152270 (Apr. 20, 1998)

Connecticut Superior Court

Gabriele v. Zba of the Town of Darien, No. Cv 96 0152270 (Apr. 20, 1998)

1998 Conn. Super. Ct. 4076

CourtConnecticut Superior Court

DecidedApril 20, 1998

DocketNo. CV 96 0152270

StatusUnpublished

This text of 1998 Conn. Super. Ct. 4076 (Gabriele v. Zba of the Town of Darien, No. Cv 96 0152270 (Apr. 20, 1998)) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gabriele v. Zba of the Town of Darien, No. Cv 96 0152270 (Apr. 20, 1998), 1998 Conn. Super. Ct. 4076 (Colo. Ct. App. 1998).

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Opinion

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION This is an administrative or record appeal by the plaintiffs, Giovanni Gabriele and Antonio Giordano, from a decision by the defendant, the Zoning Board of Appeals of the town of Darien (ZBA), affirming the issuance of a cease and desist order to the plaintiffs by the town's zoning enforcement officer (ZEO) The plaintiffs own and operate a restaurant located at 2748 Boston Post Road in Darien, known as Giovanni II. The plaintiffs propose to use a portion of the lower level or basement of the restaurant for social purposes such as wedding receptions. The issue in this case is whether such proposal constitutes an intensification or an illegal expansion of a legally nonconforming use.

The parties agree that a portion of the application by the plaintiffs to the ZBA relates to a decision by the ZEO that the proposed use of the basement for customers of the restaurant would be an illegal expansion of a nonconforming use. The plaintiffs appealed the issuance of this order to the defendant ZBA as authorized by General Statutes § 8-6 (a). The parties also agree that the ZEO was present at a closed meeting of the ZBA held after the public hearing and participated in the discussion and decision regarding his cease and desist order. It is also not disputed that the ZEO, at this meeting, presented the ZBA with some floor plans of the subject premises, which plans were not submitted or discussed at the public hearing, but were relevant to the decision of the defendant.

The plaintiffs have cited Blaker v. Planning ZoningCommission, 212 Conn. 471, 478, 562 A.2d 1093 (1989); Keyser v.Zoning Board of Appeals, 155 Conn. 236, 251, 230 A.2d 595 (1967); CT Page 4077Faith Tabernacle Church, Inc., Superior Court, judicial district of Hartford/New Britain at Hartford, Docket Nos. 94-0537604, 94-0537605 (May 6, 1995, Holzberg, J.); Gallicchio Brothers. Inc. v.Zoning Board of Appeals, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket Nos. 90-0381861, 90-0387502 (July 12, 1993, Parker, J.); and Tevis v. Planning Zoning Commission, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 90-0105178 (February 28, 1991, Cocco, J.), for the propositions that the ZEO should not have attended the meeting at which the propriety of his action was being decided, and that the defendant ZBA should not have been presented with or accepted material which was relevant to its decision but which was not disclosed at the public session. The court agrees that these cases do stand for those propositions and also believes that the plaintiffs were prejudiced thereby.

Accordingly, the appeal is sustained and the matter is remanded to the ZBA for a new hearing at which the plaintiffs may present a new application, or resubmit the existing one. At such hearing, the plaintiffs are authorized to present new evidence and the ZEO is not to attend any meeting of the ZBA at which the propriety of his actions as ZEO in this case is discussed or decided.

So Ordered.

Dated at Stamford, Connecticut, this 20th day of April, 1998.

William B. Lewis, Judge

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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION This is an administrative or record appeal by the plaintiffs, Giovanni Gabriele and Antonio Giordano, from a decision by the defendant, the Zoning Board of Appeals of the town of Darien (ZBA), affirming the issuance of a cease and desist order to the plaintiffs by the town's zoning enforcement officer (ZEO) The plaintiffs own and operate a restaurant located at 2748 Boston Post Road in Darien, known as Giovanni II. The plaintiffs propose to use a portion of the lower level or basement of the restaurant for social purposes such as wedding receptions. The issue in this case is whether such proposal constitutes an intensification or an illegal expansion of a legally nonconforming use.

The parties agree that a portion of the application by the plaintiffs to the ZBA relates to a decision by the ZEO that the proposed use of the basement for customers of the restaurant would be an illegal expansion of a nonconforming use. The plaintiffs appealed the issuance of this order to the defendant ZBA as authorized by General Statutes § 8-6 (a). The parties also agree that the ZEO was present at a closed meeting of the ZBA held after the public hearing and participated in the discussion and decision regarding his cease and desist order. It is also not disputed that the ZEO, at this meeting, presented the ZBA with some floor plans of the subject premises, which plans were not submitted or discussed at the public hearing, but were relevant to the decision of the defendant.

The plaintiffs have cited Blaker v. Planning ZoningCommission, 212 Conn. 471, 478, 562 A.2d 1093 (1989); Keyser v.Zoning Board of Appeals, 155 Conn. 236, 251, 230 A.2d 595 (1967); CT Page 4077Faith Tabernacle Church, Inc., Superior Court, judicial district of Hartford/New Britain at Hartford, Docket Nos. 94-0537604, 94-0537605 (May 6, 1995, Holzberg, J.); Gallicchio Brothers. Inc. v.Zoning Board of Appeals, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket Nos. 90-0381861, 90-0387502 (July 12, 1993, Parker, J.); and Tevis v. Planning Zoning Commission, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 90-0105178 (February 28, 1991, Cocco, J.), for the propositions that the ZEO should not have attended the meeting at which the propriety of his action was being decided, and that the defendant ZBA should not have been presented with or accepted material which was relevant to its decision but which was not disclosed at the public session. The court agrees that these cases do stand for those propositions and also believes that the plaintiffs were prejudiced thereby.

Accordingly, the appeal is sustained and the matter is remanded to the ZBA for a new hearing at which the plaintiffs may present a new application, or resubmit the existing one. At such hearing, the plaintiffs are authorized to present new evidence and the ZEO is not to attend any meeting of the ZBA at which the propriety of his actions as ZEO in this case is discussed or decided.

So Ordered.

Dated at Stamford, Connecticut, this 20th day of April, 1998.

William B. Lewis, Judge

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1998 Conn. Super. Ct. 4076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gabriele-v-zba-of-the-town-of-darien-no-cv-96-0152270-apr-20-1998-connsuperct-1998.

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