Opinion
No. CV 07 4006832
August 7, 2008
MEMORANDUM OF DECISION
This is an appeal by the plaintiff, Judith Iovanna, from the decision of the defendant, the Old Lyme Zoning Board of Appeals (zoning board), upholding a cease and desist order issued by the Town of Old Lyme zoning enforcement officer (ZEO), which denied the plaintiff's application for variance of § 7.4.2 of the Old Lyme zoning regulations (regulations).
The following facts and procedural history are relevant to the plaintiff's appeal. The plaintiff is the owner of property located at 28 Lone Pine Trail in the Town of Old Lyme. On August 22, 2006, the plaintiff submitted an application for a zoning permit to the ZEO prior to construction of a residence on the property, pursuant to § 51.2 of the regulations. In accordance with § 51.2, the plaintiff submitted an A-2 improvement location survey. The survey indicated the location of the proposed construction, which showed the front setback as twenty-five feet. On August 21, 2006, the ZEO approved the application and issued a zoning permit pursuant to § 51.5 of the regulations. The plaintiff then ordered the necessary materials and commenced construction. As required, the plaintiff submitted an A-2 as-built survey indicating the horizontal and vertical locations of the foundation on the property. The as-built survey showed the front setback from the foundation as twenty-five and one-half feet. On September 20, 2006, the ZEO approved the foundation. On October 18, 2006, the ZEO approved the structure.
Section 51.2 of the regulations provides in relevant part: "Application for Zoning Permit: APPLICATION for ZONING PERMIT shall be submitted to the Zoning Enforcement Officer prior to construction . . . of any building . . . The APPLICATION shall be accompanied by fees . . . and by a Plot Plan . . ."
Section 51.5 of the regulations provides in relevant part: "Approval and Issuance: The Zoning Enforcement Officer shall issue a ZONING PERMIT to authorize the construction . . . of a building . . . and shall issue a CERTIFICATE OF ZONING COMPLIANCE for the use or occupancy of land, buildings, other structures, or site development when such Officer determines that all of the requirements of these Regulations have been met."
On November 8 and 9, 2006, the ZEO received letters from neighbors concerning compliance of the plaintiff's property with the regulations, specifically the front setback requirements. On November 9, 2006, the ZEO issued a cease and desist order to the plaintiff "to stop all construction work except that work necessary to secure the safety of the site and the building, and work necessary to make the structure watertight to prevent damage to the structure until proper permit for construction of the house can be issued." The cease and desist order stated that the zoning permit "was issued in error and is hereby revoked." The order stated that the location of the proposed house does not comply with § 7.4.2 of the regulations, which provides: "Narrow Streets: The required setback from a street line of a town road or state highway having a width of less than 50 feet shall be increased by one half of the difference between 50 feet and the actual width of the street." Because the plaintiff's property is located on a narrow street, the front setback requirement for Lone Pine Trail is thirty-five feet rather than the standard twenty-five feet for a property located in an R-10 zone.
On November 29, 2006, the plaintiff filed an appeal with the zoning board concerning the cease and desist order issued by the ZEO revoking the zoning permit. On November 30, 2006, the plaintiff filed an application for a variance to construct a dwelling in the front setback area. On January 9 and 17, 2007, the zoning board conducted a hearing on both the appeal of the cease and desist order and the application for a variance. On January 17, 2007, the zoning board voted to uphold the zoning enforcement officer's cease and desist order and denied the plaintiff's application for a variance.
The plaintiff owns 28 Lone Pine Trail, in the Town of Old Lyme, which property is the subject of this appeal and her interests have been specifically and adversely affected by the decision of the defendant. The plaintiff has established aggrievement.
The plaintiff argues that (1) the zoning board is estopped from upholding the cease and desist order issued by the ZEO which revoked the zoning permit for the construction of her house; and (2) the zoning board acted illegally and in abuse of its discretion in denying her application for a variance of § 7.4.2 of the regulations.
The plaintiff has withdrawn count three alleging that the zoning board's actions resulted in confiscation or taking of her property.
"Issues such as . . . estoppel are properly brought to the court for resolution, even though the subject matter was presented originally to a zoning board for review . . . While such claims are more likely to arise in an injunction action [brought] to enforce municipal regulations . . . these are also proper issues to raise in an appeal from a decision of a zoning board of appeals upholding a decision of the zoning enforcement officer." Hallahan v. Zoning Board of Appeals, Superior Court, judicial district of Middlesex, Docket No. CV 96 80697 (March 4, 1999, Higgins, J.) An evidentiary hearing should be held by the court to determine the factual issues to support equitable estoppel. See Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205 (1995) ("the factual issues that must be raised in order to support equitable estoppel require an evidentiary hearing").
In Cortese v. Planning and Zoning Board of Appeals, 274 Conn. 411, CT Page 13216 418-20 (2005), the Supreme Court set forth the standards for the application of the doctrine of municipal estoppel, as follows:
The contours of the application of the doctrine of municipal estoppel to zoning regulations are well established in our jurisprudence. [I]n special circumstances, a municipality may be estopped from enforcing its zoning regulations . . . In municipal zoning cases, however, estoppel may be invoked (1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations . . . Moreover, it is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge . . .
To summarize, in order for a court to invoke municipal estoppel, the aggrieved party must establish that: (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief; (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents. (Internal quotation marks omitted.)
Based on the testimony before the court, there exists substantial evidence that the plaintiff has proven the first and third prongs of the four-prong Cortese test for invoking municipal estoppel. The ZEO and the plaintiff's son, Matthew Iovanna (Iovanna), had several discussions concerning the construction of the plaintiff's house. Iovanna received a copy of the regulations from the ZEO with the relevant provisions highlighted, which included setbacks. The ZEO indicated to Iovanna that the required front setback for the property was twenty-five feet. Iovanna had an A-2 improvement location survey completed showing the proposed location of the house. The survey reflected the front setback as twenty-five feet. The survey was submitted to the ZEO as part of the application for the zoning permit. After approval from the ZEO, Iovanna laid the foundation for the house. Iovanna was then required to submit another survey to ensure that the foundation had been laid properly. Iovanna complied and submitted an as-built survey of the location of the foundation. The as-built survey of the foundation reflected the front setback as twenty-five and one-half feet. The ZEO reviewed and approved the survey and issued a zoning permit. Iovanna relied on the ZEO for the setback requirements for the property and he had even previously altered the design of the house based on potential setback violations. Specifically, Iovanna wanted a Bilco door stairway down into the basement. The ZEO informed Iovanna that the Bilco door, as designed, would have been over the setback. As a result, Iovanna removed the Bilco door from the design of the house.
The plaintiff depended on her son, Matthew Iovanna, to obtain the necessary zoning permits for construction of the house and ensure compliance with the regulations because she suffers from Parkinson's Disease. The court finds that an agency relationship existed between the plaintiff and Iovanna.
Based on the above evidence, the court finds that the ZEO is an authorized agent of the Town of Old Lyme, that she intended that the plaintiff believe that the required front set back for her house was twenty-five feet, that she expected the plaintiff to act on that belief and that the plaintiff relied on that belief in establishing the front set back of her house.
Accordingly, the only questions before the court concern the second and fourth prongs of the test for municipal estoppel. The second prong requires that the plaintiff exercise due diligence in her efforts to ascertain whether her application for a zoning permit conformed to the zoning regulations and that she not have actual knowledge concerning the narrow street setback requirement. The fourth prong requires that the plaintiff be subjected to a substantial loss if the zoning board were permitted to uphold the ZEO's revocation of the zoning permit.
Addressing the second prong, the zoning board argues that the plaintiff cannot show that she exercised due diligence and had no convenient means of acquiring the knowledge that her application was in violation of § 7.4.2 of the regulations because copies of the regulations were available to the plaintiff throughout the application process and it was her responsibility to ensure that her application was in compliance with the regulations.
"On this element, the question is whether the plaintiffs as lay persons could be reasonably expected to undertake an investigation, and if so, whether that investigation would disclose a problem." Osterberg v. Zoning Board of Appeals, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 90 031218 (November 15, 1990, Fuller, J.) (3 Conn. L. Rptr. 538); see also West Hartford v. Rechel, 190 Conn. 114, 124 (1983) (court found property owners exercised due diligence even though the relevant town ordinances were available for their inspection because "as lay persons, [they] could not reasonably be expected to detect problems with apparent prior conforming uses that two separate corporate counsel had been unable to uncover"). The plaintiff has the burden of showing that, in constructing her house, she exercised due diligence in ascertaining its legality. Zoning Commission v. Lescynski, 188 Conn. 724, 732-33 (1982).
The plaintiff exercised due diligence in ascertaining the legality of the construction of her house by following and complying with the ZEO's procedures for obtaining the zoning permit. Compare Olsen v. Zoning Board of Appeals, Superior Court, judicial district of Litchfield, Docket No. CV 07 4005870 (April 9, 2008, Pickard, J.) [45 Conn. L. Rptr. 322] (court found property owner did not exercise due diligence because he failed to obtain survey before attempting to locate barn that was mistakenly constructed a few feet inside a setback requirement); DeVeau v. Zoning Board of Appeals, Superior Court, judicial district of Middlesex, Docket No. CV 02 0099749 (October 7, 2005, Holzberg, J.) (40 Conn. L. Rptr. 112) ("The failure to submit a copy of the actual plans with the application for a building permit, coupled with the [property owners'] resistance to the Building Inspector's inquiries concerning this very issue, could be construed to reflect the [property owners'] actual knowledge that the house they were building in fact did not comply with the site plan approval").
The plaintiff submitted two A-2 surveys, an improvement location survey, and an as-built survey, as required by the ZEO. The surveys reflected the front setback for the house as twenty-five feet and twenty-five and one-half feet. The plaintiff believed that her proposed house was in compliance with the regulations based on the ZEO's approvals of the surveys. "[I]t is both expected and necessary to consult with zoning officials in an effort to bring a proposal into compliance with the regulations. Individuals have a right to expect that if they submit, in good faith, an application that a town's ZEO subsequently approves, they may, barring timely revocation of approval, rely on the zoning permit as evidence that their property, when built in accordance with the zoning permit, complies with the zoning regulations." Polatnicic v. Zoning Board of Appeals, Superior Court, judicial district of Middlesex, Docket No. CV 98 0084267 (October 12, 1999, Mullarkey, J.). Furthermore, in Polatnick, the court found municipal estoppel in favor of the plaintiff and noted the fact that the zoning enforcement officer had "approved the plaintiff's application not once but twice." Id. Similarly, the plaintiff in this case had her application approved by the zoning enforcement officer twice when she submitted the two surveys.
To defeat the second prong, the ZEO argues that the plaintiff had actual knowledge about the narrow street setback requirement from her immediate neighbor, Damian Ranelli. Ranelli drafted and initiated a petition drive in the neighborhood to oppose any variance for the plaintiff's property. Ranelli is opposed to the plaintiff's house as it is currently constructed. The first floor of Ranelli's house has a twenty-five-foot setback as a preexisting nonconforming structure. Ranelli had applied for a variance of the setback requirement for his second floor addition. As part of his variance application, Ranelli testified that he spoke with the neighbors, including Iovanna, about the setback requirements. A hearing was held on whether to grant Ranelli's variance. Ranelli claims that because Iovanna attended the hearing and responded during opposition, he knew about the thirty-five-foot setback requirement. Iovanna testified that he did not discuss with Ranelli the fact that Lone Pine Trail had a different setback requirement. Iovanna further testified that he attended Ranelli's variance hearing because he was concerned as to whether there would be any impact caused by the variance on the septic system which he had recently placed in his backyard and that during Ranelli's variance hearing he was in and out of the room. Based on this evidence, the court finds that Iovanna did not have actual knowledge of the narrow street setback requirement for Lone Pine Trail.
Ann C. Brown, the zoning enforcement officer for the Town of Old Lyme was added as a defendant for purposes of the evidentiary hearing.
Under the fourth prong for the municipal estoppel claim, the plaintiff has the burden of proving that she would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents. In Cortese v. Planning Zoning Board of Appeals, supra, 274 Conn. 420, the Supreme Court stated:
In Dornfried we addressed the issue of what constitutes a substantial loss for purposes of municipal estoppel . . . Although we made no attempt to define a specific level of economic loss that would qualify as substantial, we noted that the defendants [had] offered no evidence of any out of pocket investment, such as a capital investment in equipment, a building, or real property, that would be lost if the town zoning regulation were enforced . . . In contrast, we referred to the definition and discussion of the concept of substantial loss as developed by the Illinois courts in Cities Services Oil Co. v. Des Plaines, and the cases cited therein. In each of the Illinois cases, the aggrieved party had made significant economic investments in improvements to property that would have been rendered useless or had to be destroyed if municipal estoppel had not been invoked. (Emphasis in original; citations omitted.)
In Cortese, the court disallowed the enforcement of a cease and desist order even when the plaintiff spent a significant amount of money to purchase land in reliance on a letter countersigned by a zoning enforcement officer that outlined the plaintiff's expected nonconforming uses because there was no evidence concerning the extent to which the plaintiff's investment would be lost if the municipality was not estopped from enforcing the cease and desist order. Id., 420. The plaintiff in that case also claimed she would suffer serious business difficulties if the municipality was not estopped, but the court stated that "she neither offered any evidence nor made any attempt to quantify her potential economic losses." Id., 421.
In the present case, the plaintiff has made a significant investment in the construction of her house and a part of her house would have to be removed if municipal estoppel were not invoked. The proposed house infringes on the front setback by ten feet. The foundation for the house has already been poured and the second floor of the house has already been framed out. In order to remove the front setback infringement, part of the garage, which is on the first floor, and part of the bedroom, which is on the second floor, would have to be removed. The plaintiff expended approximately $85,000 to $90,000 on construction of the house prior to the cease and desist orders. She would incur additional costs of approximately $46,000 to eliminate the front setback infringement and to retain the use that she intended for the property. Most of such costs would be incurred to remove just the area encroaching in the front setback because the structure would still have to be taken down and then rebuilt.
Based on the foregoing, the court finds that the plaintiff would be subject to substantial loss if the ZEO were permitted to revoke the zoning permit issued to the plaintiff.
Furthermore, "[c]ases where the estoppel defense has succeeded are ones in which town officials acted to issue approvals when they were fully aware of the intended [use] to which a property or structure was to be put." Osterberg v. Zoning Board of Appeals, supra, 33 Conn. L. Rptr. 538; see also Zoning Commission v. Lescynski, supra, 188 Conn. 735. Here, the ZEO was fully aware of the proposed location of plaintiff's house.
The plaintiff has sustained her burden of proving that the zoning board should be prevented, under the equitable principles of estoppel, from requiring that she bring her house into compliance with the front setback requirement.
Because the conclusions of the court regarding estoppel resolve this appeal in favor of the plaintiff, it is not necessary to address the plaintiff's variance claim.
CONCLUSION
Based on the above analysis, the court sustains the plaintiff's appeal and reverses the decision of the zoning board. Further, the court finds that doctrine of municipal estoppel limits the enforcement power of the zoning authorities. Specifically, the zoning board may not enforce the existing regulations regarding the front setback requirement of the plaintiff's property to the extent that the property and structure conform to the zoning permit issued by the ZEO.