Town of Greenwich v. Kristoff

481 A.2d 77, 2 Conn. App. 515, 1984 Conn. App. LEXIS 670
CourtConnecticut Appellate Court
DecidedSeptember 11, 1984
Docket2383
StatusPublished
Cited by37 cases

This text of 481 A.2d 77 (Town of Greenwich v. Kristoff) 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
Town of Greenwich v. Kristoff, 481 A.2d 77, 2 Conn. App. 515, 1984 Conn. App. LEXIS 670 (Colo. Ct. App. 1984).

Opinion

Hull, J.

In November, 1974, the plaintiffs, the town of Greenwich and Maurice F. Roddy, the town’s zoning enforcement officer, brought an action seeking to enjoin the defendant, Lawrence E. Kristoff, from using his premises as a rooming house on the ground that such use violated the zoning regulations of the town of Greenwich. The defendant alleged as a special defense that his use of the premises constituted a valid, nonconforming use. After a trial, the court refused to resolve the issue of whether an injunction should be issued, in order to permit the defendant to apply for a change of use. The court also refused to consider whether the defendant had a valid nonconforming use. The plaintiffs appealed from that judgment and the Supreme Court, in Greenwich v. Kristoff, 180 Conn. 575, 430 A.2d 1294 (1980), remanded the case for the [517]*517narrowly focused purpose of determining whether the plaintiffs were entitled to the injunctive relief sought. On remand, the court found that the plaintiffs were entitled to injunctive relief and ordered the defendant to cease and desist from any further unlawful use of the premises in violation of the town zoning regulations. The defendant appeals1 from that judgment. We find no error.

In 1966, the defendant purchased a three-story building at 225 Mill Street in Greenwich. At that time, the second and third stories each consisted of two apartments, two furnished rooms and a bathroom. Subsequently, the defendant altered these two floors so that, as a result, there were nine furnished rooms, three common bathrooms and a common kitchen on each floor. The eighteen rooms were separately leased. The defendant never obtained the necessary certificate of occupancy from the zoning enforcement officer for such a change of use. Furthermore, from 1966 until September 15,1976, the premises in question were located in what was known as a B-C zone. Since September 15, 1976, the zone in which the premises are located has been designated as an LBR zone. Under either zone classification, use of the premises for rooming house purposes is in violation of the town zoning regulations.

On September 6,1974, the zoning enforcement officer for the town of Greenwich issued an order to the defendant to cease and desist the unlawful use of the premises as a rooming house. The defendant did not comply with this order, nor did he appeal the order to the zoning board of appeals. The plaintiffs thereafter sought injunctive relief in Superior Court.

After the trial, the plaintiffs appealed to the Supreme Court which held that while the court properly refused [518]*518to determine whether the defendant had a valid nonconforming use because such a determination must be addressed in the first instance by the proper administrative authority, the court “erred in refusing to resolve the issues raised by the plaintiffs in their attempt to obtain injunctive relief.” Greenwich v. Kristoff, supra, 578-79. The Supreme Court, therefore, set aside the judgment and remanded the case for further proceedings in accordance with the opinion of that court, to determine whether the plaintiffs were entitled to injunctive relief. Id., 579.

On remand, the court not only considered both the findings of the original court and the conclusions and directive of the Supreme Court, but also heard additional evidence and made additional findings of fact relating to the type of use made of the premises at the time of the hearing upon remand.2 The court found that both the second and third floors of the premises in question each had nine furnished rooms, three bathrooms and one kitchen; that each room was supplied with both maid and linen service; that the kitchen areas were, in addition to normal kitchen use, utilized by the tenants as social or “common” rooms; that none of the tenants was a member of the defendant’s family; that all tenants paid rent to the defendant; that the defendant and his family did not reside on the premises; that there had been no substantial change in the use of the premises since the original hearing; and that the defendant had not, to that date, complied with the cease and desist order or secured a certificate of occupancy from the proper authorities.

The court found that the town was entitled to injunctive relief and, therefore, in rendering judgment for the plaintiff on June 23, 1982, the court ordered and enjoined the defendant to cease and desist from the [519]*519unlawful use of the premises and to comply with the September 6,1974 order issued by the plaintiffs or, in the alternative, to bring the premises into conformity with existing zoning regulations on or before September 30, 1982.

From that judgment, the defendant appeals claiming that the court erred (1) in concluding that the premises were being unlawfully used as a rooming house, (2) in granting the injunction because the plaintiffs failed to establish irreparable harm and a lack of an adequate remedy at law, and (3) in refusing to find that the town was estopped from enforcing the zoning regulations applicable to the defendant’s premises.

I

The issue of whether there was a valid nonconforming use was one which should have been raised by way of an appeal to the zoning board of appeals. Greenwich v. Kristoff, 180 Conn. 575, 578, 430 A.2d 1294 (1980). Such an avenue for relief was available to the defendant, yet he chose not to pursue it. Where such relief is available, it is axiomatic in the area of zoning law that a party must exhaust that remedy before appealing to a court of law. Conto v. Zoning Commission, 186 Conn. 106, 114, 439 A.2d 441 (1982); Astarita v. Liquor Control Commission, 165 Conn. 185, 190, 332 A.2d 106 (1973); Holt-Lock, Inc. v. Zoning & Planning Commission, 161 Conn. 182, 186, 286 A.2d 299 (1971); Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 33, 193 A.2d 483 (1963); see General Statutes § 8-6. There are exceptions, most notably where the available administrative relief is inadequate or would prove futile or where local procedures cannot effectively, conveniently or directly determine whether the plaintiff is entitled to the relief claimed. Conto v. Zoning Commission, supra, 115. These exceptions are not applicable in this case, nor have they been claimed by the defendant.

[520]*520Upon remand, the judgment of the trial court was based upon a conclusion that the use was not a lawful use and that the court was foreclosed from determining whether the use was a valid nonconforming use because the defendant had not appealed to the town zoning board of appeals. The court, therefore, properly limited itself to determining whether the use was unlawful at the time of the hearing upon remand.

The defendant claims that the premises did not constitute a dwelling and did not, therefore, come within the purview of the pertinent town regulation which defines a rooming house.

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Bluebook (online)
481 A.2d 77, 2 Conn. App. 515, 1984 Conn. App. LEXIS 670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-greenwich-v-kristoff-connappct-1984.