Opinion
No. FST CV 05 4004143 S
August 8, 2007
MEMORANDUM OF DECISION
The plaintiffs, Andreas Savvidis, William Savvidis and Lambrini Savvidis, commenced this action against the City of Norwalk, and its Mayor, Town Clerk and Planning and Zoning Commission to issue a certificate of occupancy for property located at and known as 29 Bayview Avenue, Norwalk (the "Subject Property"). At issue in this case is whether the plaintiffs are entitled to Judgment ordering the defendants to issue a certificate of occupancy for work done on the property pursuant to a zoning approval and a building permit that was based on an incorrect understanding of the status of the property as a three-family residence.
The First Count of the plaintiffs' Amended Complaint seeks a writ of mandamus ordering the defendants to issue a Certificate of Occupancy for the subject property. The Second Count seeks monetary damages. The Third Count seeks an order expunging and rendering void a Judgment by Stipulation that plaintiff Lambrini Savvidis had agreed to in 1981.
The defendants have several special defenses. The first Special Defense alleges that the plaintiffs have no clear right to the relief which they seek. The Second Special Defense alleges that the plaintiffs failed to exhaust their administrative remedies with respect to the denial of a Certificate of Occupancy. The Third Special Defense alleges res judicata and collateral estoppel, based on the litigation history of the plaintiffs' property. The Fourth Special Defense alleges that the plaintiffs' failure to disclose the history of the property, specifically the 1981 Judgment, precludes them from obtaining a writ of mandamus in that they do not have clean hands. The Fifth Special Defense alleges that the remedy of mandamus is not a ministerial act, and the remedy of mandamus is not available to the plaintiffs.
Municipal Estoppel
To invoke municipal estoppel,
The law imposes a substantial burden on the party asserting municipal estoppel. Municipal 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 . . ." Cortese v. Planning Zoning Board of Appeals, 274 Conn. 411, 418 (2005).
The party asserting municipal estoppel must prove 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. Id. at 418.
In addition, the aggrieved party must establish that it would suffer "so substantial a loss as a result of enforcement . . . that such enforcement "would, in light of all the circumstances, be highly inequitable or oppressive." Id. at 418-19 (citing Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 636 (1994)). In Cortese v. Planning Zoning Board of Appeals, supra, 274 Conn. at 421, the Supreme Court reversed the trial court's finding that the payment of $655,000 to purchase property was insufficient to support a municipal estoppel claim because there was no evidence that the investment would be "lost." "Without some evidence of a substantial loss as a result of the defendant's action, not just a substantial investment on the part of the plaintiff, it was improper for the trial court to invoke the doctrine of municipal estoppel." Id.
Finally, the party seeking to invoke municipal estoppel must establish that it "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." Cortese v. Planning Zoning Board of Appeals, supra, 274 Conn. 418.
The court finds the plaintiff has proven municipal estoppel.
FINDINGS OF FACT
1. The plaintiff, Andreas E. Savvidis, at the time of trial was the sole owner of 29 Bayview Avenue, Norwalk, Connecticut.
2. That at the time of the commencement of the action herein, the property was owned by three plaintiffs in common, Lambrini Savvidis, William Savvidis and Andreas Savvidis.
3. In 1999 a criminal housing matter was presented against these three plaintiffs because of the existence of either five (5) or six (6) dwelling units at the aforesaid premises in a two-family zone.
4. The fact that the premises were in a two-family zone was always known to the defendant, if for no other reason than it being referred to in a series of violation letters directed to the plaintiffs.
5. The plaintiffs were represented by Attorney Marc Grenier in the criminal housing matter.
6. That as a course of conduct, Attorney Marc Grenier reviewed the zoning file and the state's attorney file.
7. That Aline Rochefort was the Deputy Zoning Officer during the course of the housing/criminal matter.
8. That as part of her duties she would review the history of the file which went back to the 40s.
9. That both the plaintiffs, through their attorney and the defendant through Aline Rochefort, were under the impression that the premises were, a legal three-family non-conforming use.
10. That after a series of appearances in the criminal housing court and after the eviction of several of the tenants an agreement was reached between the plaintiffs, the prosecutor and the defendant that the premises be reduced from a six (6) or five (5) dwelling unit to a three-family unit and a $400.00 donation be made to the Red Cross.
11. That pursuant to the aforesaid Agreement as reached between the parties, an application for zoning approval and zoning compliance was executed by Attorney Grenier on behalf of the plaintiffs on June 24, 1999.
12. That the aforesaid application recited that plans were submitted for the permits.
13. That the plans, as submitted, displayed a three-family dwelling unit.
14. That the application for zoning approval and zoning compliance had added to it by the defendant's representative, Aline Rochefort, the words "Note: 1972 permit for three family-0-55 and S-232."
15. The Application was approved by defendant through Aline Rochefort.
16. That a modified, more detailed set of plans were later submitted by plaintiff(s) to the defendant also displaying a three-family dwelling and the aforesaid application was supplemented by the defendant's representative, Aline Rochefort, with the statement "Plans revised to April 21, 2000."
17. That the attorney, Marc Grenier wrote his clients on June 25, 1999. Indicating that three units were allowed for the dwelling.
18. That the plaintiffs thereafter made application for a building permit on August 2, 1999 which recited "converted 6FR to Legal 3FR" which was likewise approved by the defendant's building official.
19. That throughout the building process, including extensions of time thereafter, the defendant continued to consent to all permits, be it mechanical, electrical, plumbing, heating or ventilating for a three-family dwelling.
20. That the inspections of the premises were performed by the defendant repeatedly and the work was approved throughout the project.
21. That on August 23, 1999 the Fire Marshal Division for the defendant, in its plan review remarks set forth "three-family house."
22. That the Fire Prevention Bureau of the Norwalk Fire Department issued a final inspection on August 24, 2000, which indicated the premises met the requirements of the Connecticut Fire Safety Code for Occupancy as "interior alterations and renovations to three-family house okay for conditional C/O . . ."
23. That on October 28, 2004 the defendant Department of Code Enforcement indicated to the plaintiff, Andreas Savvidis, that all building inspections and Fire Marshal inspections were completed and approved and because of some changes as-built plans were needed to be submitted.
24. That said as-built plans were submitted on November 4, 2004.
25. That throughout the proceeding in the criminal court to the present, the field card on file in the defendant's assessor's office indicated that the premises were "mainly classified as a three-family dwelling."
26. That the plaintiff, Andreas Savvidis, applied for a Certificate of Occupancy and was denied because of the existence of a Stipulation of Judgment limiting the property to two units.
27. That said Stipulation of Judgment was entered into on January 19, 1981 against Efsthathios and Lambrini Savvidis through Attorney George Vardamis, as attorney for the defendants.
28. That at the time of the entry of the Judgment Efsthathios Savvidis had already been dead for approximately five (5) months.
29. That Lambrini Savvidis knows little English and did not participate in business or real estate affairs in the family and was not in court during the criminal proceedings because of her age.
30. That the defendant was at all times aware that the subject premises were located in a two-family zone, even though the Stipulation of Judgment restricted the property to a two-family zone.
31. That plaintiff, Andreas Savvidis, was not named as a party in the Stipulation of Judgment and no evidence was shown to demonstrate he was aware of it, being a young man of approximately twenty-one years at the time.
32. The plaintiff's attorney was also unaware that a Stipulation of Judgment existed.
33. That the plaintiff has expended between $400,000-$500,000 for Renovations and took out a mortgage in order to finance it.
34. W.R. Ruggiero and Sons was the general contractor performing the renovations.
35. That in 1972 the home had at least three (3) kitchens.
36. That evidently multiple mistakes occurred on the part of the defendant in first issuing a 1972 permit for a three-family dwelling and then believing the premises were a non-conforming three-family use at the time of the criminal housing court agreement.
CONCLUSIONS OF LAW
1. That the defendant is charged with knowledge of its own file and the history of the subject premises.
2. That the defendant, by mistakes and by approving the plaintiff's application for zoning approval and compliance induced the plaintiffs to believe that they could proceed with the renovations and indeed acted on that belief.
3. That the amount of money spent in the renovations indicated a substantial detriment.
4. That the defendant is estopped from proceeding with its enforcement of its regulations.
RELIEF: First Count
The court grants a writ of Mandamus ordering the defendant to issue a Certificate of Occupancy for the Premises at 29 Bayview Avenue Norwalk.
Second Count
The court finds for the defendant based on the order in count one.
Third Count
The court finds for the defendant.
SPECIAL DEFENSES:
As to all special defenses the court finds that the defendant has failed to prove them by a preponderance of the evidence.
So Ordered.