lajoie superior court ruling 0212

8/2/2019 Lajoie Superior Court Ruling 0212

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25846223@COLL43

Connecticut Trial Court Official Decisions

301 EAGLE ST., LLC v. ZBA OF BRIDGEPORT, No. CV 11-6015612 S (Feb. 16,

2012)

301 Eagle Street, LLC v. Zoning Board of Appeals of the City of Bridgeport.

2012 Ct. Sup. 772CV 11-6015612 S

Connecticut Superior Court

February 16, 2012

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]RADCLIFFE, J.

CT Page 772-A

MEMORANDUM OF DECISION

FACTS

The Plaintiff, 301 Eagle Street, LLC, is the owner of property known as 291-301 and

321 Eagle Street in the City of Bridgeport. The parcel, which is located at the intersection

of Eagle Street and Central Avenue in the city's East End, has been owned by 301 EagleStreet, LLC since August of 2007 (Ex. 1).

Prior to title vesting in 301 Eagle Street, LLC, the Plaintiff's predecessor in title,

Michael Infante, applied for a Certificate of Zoning Compliance (ROR 24, p. 5). The

June 21, 2007 application, signed by Michael Infante, listed the proposed use as "twofamily dwelling with office, storage of building equipment, materials, dump truck and

excavating equipment including loaders and shovels."

When the property was purchased by 301 Eagle Street, LLC in August of 2007, it was

situated in an Industrial Light (I-LI) zone. Effective January 1, 2010, the zoning

classification was changed to Mixed Use-Light Industrial (MU-LI).

On August 20, 2010, Bridgeport Zoning Enforcement Officer Neil Bonney issued acease and desist order (ROR 4) to the Plaintiff, regarding the property at 291-301 and 321

Eagle Street. The cease and desist order followed a citizen complaint, and an extensive

inspection of the site.


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The Plaintiff, 301 Eagle Street, LLC, appealed the cease and desist order to the

Bridgeport Zoning Board of Appeals, which, following a hearing, upheld the action of thezoning enforcement officer, on December 14, 2010 (Supplemental ROR 3, p. 13-14.)

This appeal followed. CT Page 772-B

The cease and desist order (ROR 4) contained the following language: "You are herebyordered to cease and desist the use and maintenance of the recycle-processing andtransfer station at the above address in an MU-LI zone."

The Plaintiff's appeal, dated September 2, 2010 (ROR 1), described the proposeddevelopment of the property as "Auto and truck salvage metal and building material

salvage." The use of the property was stated as "Auto and travel (sic) salvage metal and

building material salvage."

In its appeal (ROR 1), the Plaintiff claimed the existence of a "hardship" based upon an

alleged: "Pre-existing use. See Certificate of Zoning Compliance dated May 6, 2008 . . ."

The Application for Certificate of Zoning Compliance tendered by the Plaintiff's

attorney on May 6, 2008, less than one year after the June 21, 2007 application by thePlaintiff's predecessor in title, described the proposed use of the property as "Auto and

truck salvage metal and building material salvage . . ." Although the application received

over the counter approved on the day it was submitted, the certificate added a caveat:"automotive junk yard activity prohibited."

The zoning enforcement field card dated May 6, 2008, initialed by zoning enforcementofficer Dennis Buckley, contains the phrase "no work incidental to truck/equip. storage

and scrap metals." A hand written notation states "storage only."

No Special Permit or Coastal Area Management (CAM) Site Plan was submitted

before or after May 6, 2008, concerning the use of the property for "Auto and truck

salvage metal and building material salvage . . ."

Furthermore, the May 6, 2008 application for a certificate of zoning compliance was

submitted on behalf of "Lajoie's Auto Wrecking Company, Inc.," a sister corporation ofthe Plaintiff, 301 Eagle Street, LLC.

At trial, it was admitted that considerations of any alleged "hardship" are not pertinent

to the Plaintiff's appeal of the August 20, 2010 cease and desist order.

A hearing was held by the Defendant Zoning Board of Appeals concerning the cease

and desist order on October 12, 2010 (ROR 24).

Zoning Enforcement Officer Bonney reviewed the history of the property, including its

use in 1953 as a freight terminal used for housing and servicing trucks. CT Page 772-C

He reviewed the June 2007 Certificate of Zoning Compliance, and concluded that the


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property was approved for "a contractor's storage yard," which permitted the storage of

equipment, along with salvage materials, such as metal and wood (ROR 24, p. 5).

Following the receipt of a complaint on August 17, 2010, two inspections of thepremises were conductedthe first on August 17, 2010, and the second on August 24,

2010. The inspections revealed the following (ROR 24, p. 5-9):

1. A pole sign announcing Lajoie's Scrap Metal and Recycling, Bridgeport,Connecticut, with a phone number.

2. Dumpsters with writing "Lajoie's Scrap Metal Recycling," Norwalk.

3. Scrap metal on the ground in buckets and in dumpsters.

4. Scrap metal being delivered to the property and weighed.

5. Scrap metal being picked up with a claw machine.

6. A pneumatic cutting machine, located inside a building.

7. Operations on the site by a separate company to whom space is leased andwho had no certificate of zoning compliance.

8. Use of the claw machine for compacting.

9. Noise caused by the use of equipment which made it difficult to hear.

Bonney quoted a thirty (30) year employee of Lajoie's, who conducted the tour of the

property as saying: "Scrap metal is brought into this facility, some by regular suppliers. Itis weighed, and metals are separated by type and put into containers. Some metal is cut todivide different types of metal or to make suremake the size more manageable. Metals

were put into containers, metals are packaged, bundled, separated." (ROR 24, p. 7.)

Photographs depicting the coming and going of trucks from the site, and activities on

the property (ROR 24, p. 8-9) were presented. The photos show extensive piles of tin andother metals. The zoning enforcement officer presented an advertisement, which read:

"Lajoie's is coming to Bridgeport. Bring us your scrap. We pay dollars." The activities

were advertised, on the site, as "scrap metal and recycling" (ROR 24, p. 9).


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Bonney concluded by informing the Board that "the activities on the site did not

conform to the regulations, either the 1996 regulations applicable CT Page 772-D to an I-LI zone, or the applicable regulations in an MU-LI zone as of January 1, 2010." (ROR

24, p. 11-12.)

Residents of the East End testified in favor of upholding the cease and desist order.Former state senate Ernest Newton stated that the site was approved for storage: "Theywere going to be a storage facility and that's what their permit calls for, that's what they

should be," he said, before adding ". . . it's a poor area and they think they can do

whatever they want . . ." (ROR 24, p. 14.)

City Council member Andre Baker and Lillian Wade, the president of the East End

Neighborhood Revitalization Zone (NRZ) testified concerning the effect of the facility on

the immediate neighborhood. Ted Meekins, chairman of the East End CommunityCouncil, expressed similar sentiments.

A resident of Eagle Street, Nelson Ruggles, claimed that activities on the site hadchanged. He stated that work now begins at 6:30 a.m., when machines are turned on, and

excessive noise emanating from the site disturbs neighbors at all hours (ROR 24, p. 21-22).

Confronted by the extensive paper trail constructed by Neil Bonney, the siteinspections, and the mountain of scrap metal depicted in the photographs, the attorney for

301 Eagle Street, LLC, informed the Zoning Board of Appeals that his client was not

engaged in a recycling operation. When confronted by the sign advertising "recycling,"

the attorney opined: "well, the sign could say `beauty salon' . . . it doesn't really make adifference what it says." (ROR 24, p. 24.)

Counsel argued, in a prepared Memorandum (ROR 16), that "several" certificates of

zoning compliance had been received "as a contractor's yard and as a facility for scrap

and salvage materials."

He also claimed that the property "has been used legally as a scrap metal and salvage

yard for many years," and that the use "predates the adoption of the zoning regulationsand the zoning map on January 1, 2010." He therefore claimed that the "existing use" as a

scrap and salvage yard was legally nonconforming.

While no Special Permit or Coastal Area Management (CAM) Site Plan application

was ever submitted to the Bridgeport Planning and Zoning Commission, the Plaintiff's

attorney detailed his informal interaction with zoning official Dennis Buckley (ROR 24,p. 31-33), concerning the CT Page 772-E buying and selling of scrap metal on the site.

He claimed that the current activities are "grandfathered" under the 1996 regulationsand concluded his argument by claiming that his client had relied on documents issued by

the City of Bridgeport. At trial, any estoppel theory was expressly disavowed by trial

counsel.


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Following the close of the October 12 public hearing, the Zoning Board of Appeals

discussed the matter on the record. The item was tabled, pending receipt of additionalinformation.

Further discussion occurred on November 9, 2010. At that meeting Zoning

Enforcement Officer Buckley said: "I didn't expect it would turn into what it is."(Supplemental ROR 2, p. 2.)

The matter was again tabled by the Board.

At its December 14, 2010 meeting, the Zoning Board of Appeals voted to deny the

appeal of 301 Eagle Street, LLC, and to uphold the cease and desist order issued by the

zoning enforcement official.

The board voted to uphold the August 20, 2010 Cease and Desist order, based uponfourteen (14) specific findings:

1. Each member of the Board who will vote on this matter is personally

acquainted with the Zoning Department file for 301 Eagle Street and is familiarwith the site and its immediate environs and the information concerning the

prior and current use of the subject property.

2. The record shows that the Certificates of Zoning Compliance issued betweenApril 8, 1986 and November 10, 2009 under the Light Industrial ZoningRegulations allowed for storage only. The storage of metal is therefore a legally

nonconforming use.

3. The Board specifically finds that the property is not being used solely for the

storage of metals as allowed by the Certificate of Zoning Compliance dated

May 6, 2008. The photographs clearly establish that the cutting and separationof metals is currently occurring on site. This cutting and separation of metal

using a claw excavator is not permitted by the Certificate of Zoning

Compliance issued May 6, 2008 to Lajoie's and is therefore not a legally

nonconforming use. Appellants stated that scrap metal are brought in stored andremoved. The record, however, demonstrates that this is not accurate. These

metals are cut and separated using heavy and noisy equipment which is not a

legally

CT Page 772-F

nonconforming use under any of the Certificates of Zoning Compliance.


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4. The Certificates of Zoning Compliance issued to the former owner were

limited to storage. The April 8, 1986 Certificate of Zoning Compliance issuedto the former owner was limited to "storage." The June 21, 2007 Certificate of

Zoning Compliance was limited to "storage yard," "storage of equipment," and

"storage of building equipment.

5. The Certificates of Zoning Compliance issued to the current owner were

limited to storage. The March 19, 2008 was limited to "buying and selling scrap

metals." The May 6, 2009 Certificate of Zoning Compliance Field Card statedproperty was for "storage only." "No work incidental to truck/equip. storage

and scrap metals." On March 10, 2010 the Certificate of Zoning compliance

issued to Lajoie's was for "truck and equipment storage and scrap metal(storage only)."

6. The record clearly establishes that heavy equipment is being used in the open

yard to cut and separate metal into separate containers of metal for recycling asdocumented by numerous photographs taken and received as of August 13,

2010 which were introduced into the record. The Zoning Enforcement

Inspection Report dated August 17, 2010 states that the property was beingused as a recycling facility with the metal being cut, separated packaged or

bundled and then sent to Lajoie's facility to Norwalk to be recycled. These

photographs show adjoining residences around the subject property.

7. The Board finds that the property is not being used solely for the storage of

metal as allowed by the Certificate of Zoning Compliance dated May 6, 2008.

The photographs clearly establish the current cutting and separating of metal isoccurring on site. This cutting and separating of metal using a claw excavator is

not a legally nonconforming use. Appellants stated that "scrap metal is brought

in stored and removed." The record demonstrates that this is not accurate.These metals are cut and separated using heavy equipment which is not a

legally nonconforming use. It is a prohibited use in the MU-LI zone.

8. Appellant neither proved hardship nor did it establish when it applied for anapplication for a Certificate of Zoning Compliance on May 6, 2008 to use the

property for "buying and selling scrap metals" this also authorized the use of

the property for "auto and travel salvage

CT Page 772-G

metal and building material salvage" as claimed on September 2, 2010. Since

the property was not previously approved for "auto and travel salvage metaland building material salvage" this is not an approved pre-existing use. The


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Board therefore finds that: 1) the existing legally conforming use of the

property does include storage of metals; and 2) separating, crushing and cuttingof metals is not a legally nonconforming use on this property.

9. The Board further finds that the appellant has subleased a portion of the siteto a separate company which compacts metals and distributes scrap metal into

dumpsters. No Certificate of Zoning Compliance has ever been filed for this

tenant/subcontractor of Lajoie's Scrap Metal and Recycling, that this is not a

legally nonconforming use, and is in fact a prohibited use.

10. The appellant claimed but never provided any specific claim for a hardship.

The Board finds that the appellant did not establish any specific hardship.

11. The Board finds that the cutting and crushing of metals represents an illegal

increase in the intensity of use of the property.

12. The Board finds that cutting and crushing of metals are prohibited uses andare detrimental to the general health safety and welfare.

13. The Board also finds that the cutting and crushing of metals is injurious,

obnoxious, dangerous and a nuisance to the city and to the neighborhoodthrough noise, vibration and dust. See Sec. 4-8-4.

14. Based on this factual record, the Board finds, Pursuant to Section 8-6 of theGeneral Statutes and Section 7-7-4 of the Bridgeport Zoning Regulations, thatthe appeal of the Zoning Enforcement Official's order to comply must be

denied.

From this decision, upholding the cease and desist order, the Plaintiff, 301 Eagle

Street, LLC, instituted this appeal.

On April 25, 2011, the East End Tabernacle Church, Inc., Ivette Rodriguez, Nelson

Burgos and the St. Mark's Day Care Center filed a Motion to Intervene as Defendants in

this action. The Motion to Intervene was granted by the Court (Dooley, J.) on June 7,2011 [52 Conn. L. Rptr. 187]. CT Page 772-H

A Cross Appeal was filed by the Intervening Defendants on July 22, 2011. In theirCross Appeal, the Interveners challenge paragraph 5 of the conclusions reached by the

Bridgeport Zoning Board of Appeals.


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They maintain, in the Cross Appeal: "To the extent that the Defendant ZBA found that

there was a March 19, 2008 certificate of zoning compliance issued to the current ownerauthorizing the buying and selling of scrap metal at the property, such finding is

erroneous."

AGGRIEVEMENT

The Plaintiff, 301 Eagle Street, LLC, is the owner of property known as 291-301 and

321 Eagle Street, which is the subject of this appeal. The property was purchased by its

current owner in August of 2007 (Ex. 1), and has been owned since that date.

The four Intervening Defendants, East End Baptist Tabernacle Church, Ivette

Rodriguez, Nelson Burgos and St. Mark's Day Care Center, Inc., entered into astipulation of facts with the Defendant Bridgeport Zoning Board of Appeals (Ex. A).

The Plaintiff, and the Intervening Defendants who are Plaintiffs on the Cross Claim, all

claim to be aggrieved by the decision of the Bridgeport Zoning Board of Appeals whichgenerated this appeal.

Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over

the subject matter of an appeal.Jolly, Inc. v. ZoningBoard 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, which must be determined

by the trial court. Primerica v. Planning & Zoning Commission, 211 Conn. 85, 93 (1989).

Aggrievement falls into two broad categoriesstatutory aggrievement, and classicalaggrievement.

Statutory aggrievement exists by legislative fiat, which grants standing to appeal byvirtue of a particular statute, rather than through an analysis of the facts of a particular

case. Weill v. Lieberman, 185 Conn. 123, CT Page 772-I 124-25 (1986); Pierce v. Zoning

Board of Appeals, 7 Conn.App. 632, 635-36 (1986).

Section 8-8(a)(1) of General Statutes defines "aggrieved person" for purposes of an

appeal from the decision of a municipal land use agency. The statute reads:

(1) "Aggrieved person" means a person aggrieved by a decision of a board, andincludes any officer, department, board or bureau of a municipality chargedwith enforcement of any order, requirement or decision of the board. In the

case of a decision by a zoning commission or a zoning board of appeals,"aggrieved person" includes any person owning land that abuts or is within a

radius of one hundred feet from any portion of the land involved in the decisionof the board.

Classical aggrievement requires a party to satisfy, through evidence at trial, as well-established two-fold test: 1) the party claiming aggrievement must demonstrate a specific


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personal and legal interest in the decision appealed from, as distinguished from a general

interest such as concern of all members of the community as a whole, and 2) the partymust show that the specific personal and legal interest has been specifically and

injuriously affected by the action of the agency. Cannavo Enterprises, Inc. v. Burns, 194

Conn. 43, 47 (1984);Hall v. Planning Commission, 181 Conn. 442, 444 (1980).

The burden of proving aggrievement rests with the person or entity claiming to beaggrieved.London v. Planning & Zoning Commission, 149 Conn. 282, 284 (1962).

Ownership of the property which is the subject of the appeal demonstrates a personaland legal interest in the subject matter of the decision appealed from. Huck v. Inland

Wetlands & Watercourses Agency, 203 Conn. 525, CT Page 772-J 530 (1987);BossertCorporation v. Norwalk, 157 Conn. 279, 285 (1968).

The Plaintiff, 301 Eagle Street, LLC, is the owner of 291-301 and 321 Eagle Street

(Ex. 1). Its interest has been specifically and injuriously impacted by the action of the

Bridgeport Zoning Board of Appeals which generated this appeal. It is therefore foundthat 301 Eagle Street, LLC is aggrieved by the decision which generated this appeal.

The Intervening Defendants, Plaintiffs on the Cross Claim, maintain that they are

aggrieved, based upon the Stipulation of Facts (Ex. A) received at the hearing on January

27, 2010.

The East End Baptist Tabernacle Church, in addition to the church sanctuary located at

524 Central Avenue, 350 feet from the subject property, (Ex. A, par. 5), owns property at290 Smith Street which abuts the property affected by the cease and desist Order. (Ex. A,

par. 2.) It is therefore found that the East End Baptist Tabernacle Church is statutorily

aggrieved.

The Intervening Defendant Ivette Rodriguez owns property at 288 Eagle Street, where

she resides with her husband, Nelson Burgos. The property is across the street from theproperty owned by the Plaintiff (Ex. A, par. 3). It is found that Ivette Rodriguez is

statutorily aggrieved.

The Stipulation of Facts states that the activities at 291-301 and 321 Eagle Street

generate noise, dust vibrations and truck traffic. (Ex. A, par. 4.) The trucks arrive in the

vicinity of the day care center, located at the corner of Newfield Avenue and EagleStreet, and deliver scrap metals and other materials to the site during the early morning

hours. (Ex. A, par. 4-7.)

Since the Plaintiff, and two of the Intervening Defendants have been determined to be

statutorily aggrieved, the court has jurisdiction over both the appeal and the cross appeal,

and it is unnecessary to determine whether the remaining Intervening Defendants areclassically aggrieved.


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However, since aggrievement is established if there is a possibility, as distinguished

from a certainty, that some legally protected interest has been affected; Ponazi v.

Conservation Commission, 220 Conn. 476, CT Page 772-K 483 (1991); it is found, based

upon the stipulation of facts, that both Nelson Burgos and the St. Mark's Day Care Center

are classically aggrieved by the decision of the Bridgeport Zoning Board of Appeals.

STANDARD OF REVIEW

When hearing an appeal from an order issued by a municipal zoning enforcement

officer, a zoning board of appeals sits in a quasi-judicial capacity. In that capacity, thezoning board of appeals hears and decides an appeal de novo. Conetta v. Zoning Board of

Appeals, 42 Conn.App. 133, 137 (1996). The board is charged with the responsibility of

finding the facts, and applying the zoning regulations to those facts. Toffolon v. Zoning

Boardof Appeals, 155 Conn. 558, 560-61 (1967); Connecticut Sand & Stone

Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442 (1963). The action of the

zoning enforcement official is entitled to no special deference by a reviewing court.

Casserta v. Zoning Board of Appeals, 226 Conn. 80, 88-89 (1993).

The Board is endowed with liberal discretion, and its actions are subject to review by acourt only to determine whether the action was unreasonable, arbitrary or illegal.

Pleasant Valley Farms Development, Inc. v. ZoningBoard of Appeals, 218 Conn. 265,

269 (1991); Wing v. Zoning Board ofAppeals, 61 Conn.App. 639, 643 (2001). The

burden of proof to demonstrate that the board acted improperly is upon the party seekingto overturn the board's decision. Graff v. Zoning Board of Appeals, 277 Conn. 645, 669

(2006); Sciortino v. Zoning Board of Appeals, CT Page 772-L 87 Conn.App. 143, 147

(2005).

A court may not substitute its judgment for that of the zoning board of appeals, so longas the board's decision reflects an honest judgment, reasonably arrived at, based upon thefacts in the record.Jaser v. ZoningBoard of Appeals, 43 Conn.App. 545, 548 (1996). The

court's function is to determine on the basis of the record, whether substantial evidence

has been presented to the board to support its findings.Huck v. Inland Wetlands

&Watercourses Agency, supra, 540; Smith Bros. Woodland Management, LLC v.Zoning

Board of Appeals, 108 Conn.App. 621, 628 (2008). The credibility of witnesses and the

determination of factual issues are matters within the province of the agency. Stankiewicz

v. Zoning Board of Appeals, 15 Conn.App. 729, 731-32 (1988).

Section 8-7 of the General Statutes requires a zoning board of appeals to state upon therecord the basis for its decision. Where, as here, the board has compiled a detailed and

comprehensive statement in support of its decision, a court must determine whether any

of the reasons 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 (1988).


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USE OF THE PROPERTY AS A SCRAP METAL AND SALVAGE YARD WAS

NOT A PERMITTED USE UNDER THE INDUSTRIAL LIGHT (I-LI) ZONINGREGULATIONS

The Plaintiff claims that 291-301 and 321 Eagle Street has been legally used as a scrap

metal and salvage yard for many years. It further contends that such legal use predatedthe adoption of zoning regulations which changed the CT Page 772-M property fromIndustrial Light (I-LI) to Mixed Use Light Industrial (MU-IL) on January 1, 2010.

This claim finds no support in the record, and is unable to withstand even minimalscrutiny.

In order for use to be considered nonconforming under a municipal zoning regulation,it 1) must be a lawful use, and 2) must have been in existence at the time the zoning

regulations making the use nonconforming were enacted.Helicopter Associates, Inc. v.

Stamford, 201 Conn. 700, 712 (1986); Petruzzi v. Zoning Board of Appeals, 176 Conn.

479, 482-83 (1979).

Nonconforming uses are protected by statute. Section 8-2 of the General Statutesprovides that regulations enacted by a municipal planning and zoning commission "shall

not prohibit the continuance of any nonconforming use, building or structure existing at

the time of the adoption of such regulations."

A lawfully established nonconforming use is a vested right, which runs with the land,

and is entitled to constitutional protection. Petruzzi v.Zoning Board of Appeals, supra,484. It may continue as it existed before the date of the adoption of the zoning regulation

rendering it nonconforming.Essex Landing, Inc. v. Zoning Board of Appeals, 206 Conn.

595, 607 (1988);Helbig v. Zoning Commission, 185 Conn. 294, 306 (1981).

The use of the property as a legal nonconforming use is permitted, because it legally

existed when the adoption of new regulations rendered it nonconforming.Adolphson v.

Zoning Board of Appeals, 206 Conn. 595, 607 (1988). The burden is on the owner of the

property to prove the existence of a nonconforming use. Pleasant Valley Farms

Development, Inc. v. Zoning Boardof Appeals, supra, CT Page 772-N 272; Friedson v.

Westport, 181 Conn. 230, 234 (1980).

When 301 Eagle Street, LLC purchased the subject property in 2007, it was located inan IL-L zone. Section 7-3-1 of the Bridgeport Zoning Regulations defines the purpose of

the zone: "The Light Industrial (I-LI) zone is intended to promote a concentration of

industrial uses having minimal off-site impacts . . ."

This purpose is certainly consistent with the Certificate of Zoning Compliance issued

less than two months prior to the purchase, on June 21, 2007. That document described aproposed use for ". . . storage of building equipment, materials, dump trucks, and

excavating equipment . . ." In other words, the Certificate of Zoning Compliance

described a legally nonconforming contractor's storage yard.


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The I-LI regulations provide for certain Industrial Uses, including "Auto and truck

salvage and wrecking." (Second Supplemental ROR 1, p. 83.)

However, pursuant to Table 7-3-2, Industrial Services uses are only permitted, after aSpecial Permit has been issued following favorable action by the Bridgeport Planning and

Zoning Commission. (Second Supplemental ROR, p. 69-70; Special Permit Procedures,p. 143-44.)

A General Statute, S. 8-3c(b) requires that a public hearing be conducted by the body

being asked to issue the Special Permit. This is part of a process which involves scrutinyby members of the planning and zoning commission, and the public, in an open forum.

A planning and zoning commission may impose conditions, prior to granting anyrequest for a Special Permit. The process mandates transparency, and provides for both

public and zoning commission input and scrutiny which is not present when a certificate

of zoning compliance is sanctioned over the counter.

The record clearly demonstrates that neither the current owner, or its predecessor in

title, sought to establish a permitted use in the I-LI zone, through resport to the SpecialPermit process. Nor does it appear that the sale of the property was in any way

conditioned upon the ability of the buyer to secure a Special Permit for either an "Auto

and truck salvage and wrecking" use, or a "metal and building CT Page 772-O materials,salvage or wrecking . . ." use, from land use agencies of the City of Bridgeport.

Whether this failure, as suggested at the October 12 hearing, represented a calculateddecision because the East End "is a poor area, and they think . . . they can do whatever

they want," or resulted from mere inadvertence, cannot be conclusively determined from

the record.

However, it is unambiguously clear that the use of 291-301 and 321 Eagle Street for

either purpose was not a permitted use in the I-LI zone when the zoning classificationwas changed on January 1, 2010.

Therefore, the Plaintiff cannot claim that a legal use was rendered nonconforming byvirtue of the change in zoning classification.

Nor can the Plaintiff utilize the May 6, 2008 Certificate of Zoning Compliance to

accomplish through private meetings, that which he did not seek to accomplish through

the Special Permit process. The field card dated May 6, 2008 contains the handwrittennotes "storage only," and "automotive junk yard not part of this approval."

Simply referencing "10-4 Industrial Services" on the Application for a certificate ofzoning compliance, cannot serve as a vehicle for administratively validating a legal

nonconforming use.


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As found by the Bridgeport Zoning Board of Appeals, the current use of the property

cannot be sanctioned, based upon the May 6, 2008 Certificate of Zoning Compliance.

USE OF THE PROPERTY BY ITS CURRENT OWNER REPRESENTS ANEXPANSION OF THE PREEXISTING NONCONFORMING USE AS A

CONTRACTOR STORAGE YARD

The Bridgeport Zoning Board of Appeals found that the current use of 291-301 and

321 Eagle Street represents an illegal expansion of a nonconforming use. This

determination finds ample, and overwhelming support in the record.

In determining whether an activity is legally nonconforming, or whether the current

activity constitute an impermissible expansion of a nonconforming use, three factors mustbe considered: 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 the use involved, and

3) any substantial differences in the effect upon the neighborhood resulting from

differences in the activities conducted on the property.Bauer v. WasteManagementCTPage 772-P of Connecticut, Inc., 234 Conn. 221, 236-37 (1995).

It is a general, well-established principle of zoning law that nonconforming uses

should be abolished, or reduced to conformity as quickly as the fair interest of the parties

will admit. In no case, should they be permitted to increase. Hyatt v. Zoning Board ofAppeals, 163 Conn. 379, 382 (1972);Raffaele v. Planning & Zoning Board of Appeals,

157 Conn. 454, 462 (1969);McMahon v. Board of Zoning Appeals, 140 Conn. 433, 440

(1953).

The record reveals that immediately prior to the Plaintiff's purchase of the property in

August of 2007, the former owner, Michael Infante, received a Certificate of ZoningCompliance. The certificate stated that the use of the property was for a "two family

dwelling, with office, storage of building equipment, materials, dump trucks and

excavating equipment including loaders and shovels." The certificate also includes anotation: "no work."

The parcel was legally conforming as a contractor's storage yard, which did notinvolve work on the site. The zoning compliance field card stated that the property was a

"contractor storage yard."

While the Bridgeport Zoning Regulations do not define "storage," Black's Law

Dictionary provides a common sense definition: "storage," keep (goods, etc.) in safe

keeping for future delivery in an unchanged condition."

An appropriate definition of the verb "To Store" is found in another respected

dictionary: "to place or leave in a lotion (as a warehouse, library or computer memory)for preservation or later use or disposal." (Merriam-Webster's Collegiate Dictionary (10th

Ed. 2001)).


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The May 6, 2008 application for a certificate of zoning compliance represents a subtle,

but significant shift away from the use of the parcel as a contractor's storage yard. For thefirst time, the phrase "Auto and trucksalvage metal and CT Page 772-Q building material

salvage . . ." (Emphasis added) appears. A hand written notation "automotive scrap/junk

yard would need P&Z Approvals" provides some restraint.

No application was made to the Bridgeport Planning and Zoning Commission for suchapproval, nor was a Special Permit or Site Plan review initiated.

The March 19, 2009 application for a certificate of zoning compliance, filed byLajoie's Auto Wrecking Company, Inc., states a proposed use of "buying and selling

scrap metals." This is the first indication of any trade or commerce taking place on the

subject property.

Once, again, no Special Permit or Coastal Area Management (CAM) Site Plan Review

was sought.

Following the zoning reclassification which was effective January 1, 2010, the Plaintiff

asked for permission to erect a sign on the property, in conjunction with use of theproperty as a "scrap metal recycling center." This was followed by a March 10

Application for Certificate of Zoning Compliance in preparation for the opening of the

business (ROR 25).

Advertisements, published in the Connecticut Post, described the business as "Lajoie's

Scrap Metal Recycling, Bridgeport, CT." (ROR 25.)

The record supplies no supports for the claim that the use of the property as observed

by the zoning enforcement official in August of 2010, existed prior to the change in thezoning regulations in January 1, 2010.

As previously noted, it is a cardinal principle of land use policy, that nonconforming

uses should be reduced to conformity where possible and should not be permitted to

expand in any case.Hyatt v. Zoning Board of Appeals, supra, 382.

The Plaintiff, 301 Eagle Street, LLC, has disemboweled that rule of law, and tossed it

upon the scrap heap it now claims is entitled to legal sanction as a nonconforming use.

While this court recognizes that a mere increase in the amount of business done

pursuant to a nonconforming use is not an illegal expansion of the original use; Zachs v.Zoning Board of Appeals, 218 Conn. 324, 331 (1991); in this situation, the nature and

purpose of the original use as a contractor's CT Page 772-R storage yard bears little or no

resemblance to the observations documented by Neil Bonney during his site inspectionsin August of 2010.

Furthermore, the use of the property by the current owner, as catalogued by the zoningenforcement officer and reinforced at the public hearing, has a devastating and unhealthy


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impact upon the neighborhood, which a passive contractor's storage yard does not

produce. The Bridgeport Zoning Board of Appeals found the activities "detrimental to thegeneral health safety and welfare," and went so far as to label the situation a "nuisance."

In a situation in which the zoning laws and zoning officials of a municipality cannot or

will not provide relief from such conditions, an affected neighborhood may resort to civilremedies in the form of a private nuisance action, as an alternative means of seeking theelimination of the offending conditions. Pesty v. Cushman, 259 Conn. 345, 360-61

(2002).

In evaluating a situation to determine whether a given use involves an expansion of a

preexisting nonconforming use, courts have utilized a "known in the neighborhood" test.

Helicopter Associates, Inc. v. Stamford, supra, 713. In applying this test, courts look to

the actual use of the land, not merely its contemplated use. Melody v. Zoning Board of

Appeals, 158 Conn. 516, 520 (1969); Wallingford v. Roberts, 145 Conn. 682, 684 (1958).

The evaluation regarding utilization of the premises is based upon actual use in theneighborhood, rather than decisions reached in private meetings, prior to over the counter

approvals being secured.

The substantial change visited upon this East End neighborhood by the increase in the

use of the property is irrefutable. A contractor storage yard, with minimal off-site impact,has morphed into a facility which accepts metal, cuts and separates metal, and trucks

metal off the site through narrow streets, while producing intensive noise and generating

off-site pollutants. CT Page 772-S

Applying the known in the neighborhood test, supports the conclusion of the

Bridgeport Zoning Board of Appeals, which found that an expansion of a nonconforminguse had occurred.

Given the rule prohibiting expansions of nonconforming uses, courts have carefullyscrutinized any change in use, to determine whether it involves a mere intensification, or

is an expansion of a use.

In Salerni v. Scheuv, 140 Conn. 566 (1954), the Plaintiff sought a full liquor permit on

property where a restaurant with a beer permit was a lawful nonconforming use. The

court found this full liquor permit to be an expansion of a nonconforming use, eventhough both uses involved the sale of food and alcoholic beverages. Salerni v. Scheuv,

supra, 571-72.

In a similar vein, conversion of summer cottages to year-round use has been found an

expansion of a nonconforming use; Cummings v. Tripp, 204, Conn. 67, 85-86 (1986); and

adding additional parking made possible by the acquisition of property next to anonconforming use was not permitted.Raffaele v. Planning & Zoning Board of Appeals,

supra, 462.


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Here, the preexisting nonconforming use is that of a contractor storage yard. On a

contractor storage yard, wood, metal and heavy equipment, including claws of the typeobserved on August 20, 2010 are stored. Such items are routinely retained on the site.

However, the presence of wood on a contractor storage yard would not justify

operating a lumber yard, where wood is cut, received, transformed, and sold at retail orwholesale.

The presence of trucks on a contractor storage yard does not authorize the use of the

premises as a truck rental business, or a used car lot where motor vehicles are brought onto the site for purposes of sale or trade.

Likewise, the ability to store metals on a contractor storage yard may not be extendedto a use which buys and sells metals, crushes metals, cuts them, moves them with heavy

equipment, and trucks the metal off-site to a facility in Norwalk.

A nonconforming use enabling a property owner to store metal cannot be contorted tosanction the presence on the site of a metallic Mount Trashmore, which towers over CT

Page 772-T the neighborhood.

There can be no creditable claim that the use of 291-301 and 321 Eagle Street by the

current owner is a lawful, nonconforming use.

The Bridgeport Zoning Board of Appeals properly found that the use of the propertyconstitutes an expansion of a nonconforming use.

THE APPEAL FILED BY THE INTERVENING DEFENDANTS MUST BE

SUSTAINED

The Intervening Defendants have filed a cross appeal dated July 22, 2011. The appeal

was amended, with the consent of the Defendant Bridgeport Zoning Board of Appeals, on

January 24, 2012. An answer was filed on January 26, 2012.

The Interveners claim that a portion of the decision of the Bridgeport Zoning Board

Appeals is subject to misinterpretation, or conjecture. They hypothesize that Section II,paragraph 5, might be read to state that a Certificate of Zoning Compliance was issued,

authorizing the buying and selling of scrap metal on the site. The paragraph reads:

5. The certificates of zoning compliance issued to the current owner werelimited to storage. The March 19, 2008 was limited to"buying and selling

scrap metals." The May 6, 2009 Certificate of Zoning Compliance field card

stated the property was for "Storage only." "No work incidental to truck/equip.storage 7 scrap metals." On March 10, 2010, the Certificate of Zoning

Compliance issued to Lajoie's was for "truck and equipment storage and scrap

metal (storage only) (emphasis added).


17/19

A search of the record reveals that the only activity on March 19 was an application for

a certificate of zoning compliance. The date, however, is March 19, 2009, not 2008.

The portion of paragraph 5 which reads: "the March 19, 2008" was limited to "buyingand selling scrap metals" is not a complete sentence. The phrase "certificate of zoning

compliance" does not appear in the language.

It is clear that the proper reference is to March 19, 2009, based on the record. The

reference was to an application for a certificate of zoning compliance.

To the extend that paragraph 5 could be interpreted as a finding that the buying and

selling of scrap metal at 291-301 and 321 Eagle Street was ever authorized, the cross

appeal is sustained.

The record demonstrates beyond a question, CT Page 772-U that the buying andselling of scrap metal was never authorized, and cannot be sanctioned as a pre-existing

nonconforming use.

POSSIBLE FUTURE ACTIONS DISCUSSED

Although it is not necessary to consider hypothetical future actions in thedetermination of this appeal, the court notes that the Defendant, Bridgeport Zoning Board

of Appeals, in its decision, looked to the future, and not simply the past.

The Board stated: "Appellant can either comply with zoning enforcement order orapply to the planning and zoning commission for a special permit under the MU-LI

Zoning Regulations or apply to the ZBA for a variance."

It should be clear, that compliance with the Cease and Desist Order is in no waycontingent upon future action by any land use body in the City of Bridgeport. The

dismissal of this appeal will result in a binding order, not an election of remedies.

At trial, counsel for the Bridgeport Zoning Board of Appeals acknowledged that the

current use of the property is not a permitted use in an MU-LI zone. Therefore, before

any Special Permit may be requested (accompanied by a Coastal Area Management(CAM) Site Plan) a use variance, approved by a super majority of the Bridgeport Zoning

Board of Appeals, must be obtained.

Any such variance would seem to be problematic.

Before a Zoning Board of Appeals can grant a variance, two conditions must befulfilled: 1) the variance must be shown not to affect substantially the comprehensive

plan, and 2) adherence to the strict letter of the zoning ordinances must be shown to cause

unusual hardship, unnecessary to the carrying out of the general purposes of the zoningplan. Francini v. ZoningBoard of Appeals, 228 Conn. 785, 790 (1994); Smith v. Zoning

Board ofAppeals, 174 Conn. 323, 326 (1978). The comprehensive plan consists of the


18/19

zoning regulations, and the zoning map.Burnham v. Planning & ZoningCommission,

189 Conn. 261, 267 (1983).

In this case, because a request for a CT Page 772-V use variance would seekauthorization to use the property for a use which is not permitted in an MU-LI zone, it

might be determined that any use variance would be inconsistent with the comprehensiveplan. A zoning board of appeals is without power to grant a variance, where the grantingof the variance would impair the integrity of the comprehensive plan. Whitaker v. Zoning

Board of Appeals, 179 Conn. 650, 656 (1980); Parsons v. Zoning Board ofAppeals, 140

Conn. 290, 295 (1953).

A finding of hardship is even more tenuous.

By definition, a variance constitutes permission to act in a manner which, without the

variance, would be prohibited by the zoning ordinances of the municipality.Burlington v.

Jencik, 168 Conn. 506, 508 (1975). Therefore, an applicant must show, that because of

some peculiar characteristics of his property, the strict application of the zoningregulations produces a hardship, not affecting other properties in the zone.Dolan v.Zoning Boardof Appeals, 156 Conn. 426, 430 (1968).

Any hardship must be imposed by conditions outside the property owner's control.

Norwood v. Zoning Board of Appeals, 62 Conn.App. 528, 533 (2001). If the hardship isself-inflicted, arising out of the voluntary act of the applicant, the board does not have the

authority to grant a variance. Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39

(1982). Hardships which are personal to the applicant do not provide sufficient grounds

for the granting of a variance. Gangemi v. Zoning Board of Appeals, 54 Conn.App. 559,564 (1999). CT Page 772-W

Future possibilities should have no affect upon the city's efforts to ensure compliance

with the Cease and Desist Order issued by Zoning Enforcement Official Bonney. Nor

should future applications deter the City of Bridgeport from pursuing all remediesavailable to it, in order to bring about swift compliance with its zoning regulations.

CONCLUSION AND ORDER

The appeal of the Plaintiff, 301 Eagle Street, LLC, is DISMISSED.

The cross appeal, filed by the Intervening Defendants, is SUSTAINED.

The Plaintiff, 301 Eagle Street, LLC, is ordered, consistent with the findings of the

Bridgeport Zoning Board of Appeals, to immediately cease and desist from the buying

and selling of scrap metal on the premises, and from the separating, crushing, and thecutting of metals on the premises, since those activities constitute an illegal expansion of

the nonconforming use of the property as a contractor storage yard.


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The Plaintiff is further ordered to remove its mountains of metal from the property, as

depicted in the photographs presented to the Bridgeport Zoning Board of Appeals.Although the storing of metal is a nonconforming use incident to the operation of a

contractor's storage yard, the material currently being stored on the property is not being

stored consistent with the preexisting nonconforming use of the property as a contractor's

storage yard.

The Plaintiff is ordered to cease and desist from the weighing, packaging and

containerizing of scrap metal on the property, except such as may be necessary to effect

the removal of the offending piles of scrap metal.

The Plaintiff is further ordered not to transport any additional scrap metal or similar

materials to the property at 291-301 and 321 Eagle Street, except as may be incidental to

the maintenance on the property of a contractor's storage yard.

Although heavy equipment may be stored on the property, the Plaintiff is ordered to

cease and desist from operating the heavy equipment on the property, except as may benecessary to remove from the property the piles of scrap metal and debris which were

revealed in the August 2010 on-site inspections.

* Syllabi and Procedural History, 2009 Connecticut Secretary of State. Compilation 2009 Loislaw.com, Inc. All Rights

Reserved.

lajoie superior court ruling 0212

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