Posted by: Patricia Salkin | April 11, 2013

Conn. Supreme Court Holds Deck was Not a “Building” for Zoning Enforcement Purposes

The Tines purchased a lakefront property in Lebanon, Conn., in 1999 and obtained a variance to build a single-family residence which would extend 35 feet into a prohibited setback area designed to preserve the lake’s water quality.  The variance application did not include any plans for a deck.  The Zoning Board approved the variance, as well as zoning and building permits to construct the house.  When Town officials inspected the building, no deck had been constructed.  The house completed in 2003 conformed to the plan the Tines had submitted to the Town when they sought their variance.

In mid-2004, the Tines built a deck on the back of the house which was not visible from the street and extended twelve additional feet toward the lake, further into the setback area.  The Town did not perform any inspections after 2003, and did not appear to know about the deck, since the Tines did not obtain any building permits or other permission for the deck project.  When the Tines decided to sell the property in 2008, they sought a certificate of zoning compliance and certificate of occupancy from the Town, which sent an official to inspect the property.  The official discovered the illegal deck during that inspection.  At that point, the Tines sought to obtain a variance for the deck, which the Zoning Board denied.

In January 2009, the Town sent the Tines a notice of violation and cease and desist letter ordering the Tines to remedy the setback violation caused by the deck.  The Tines appealed the order, claiming that the statute of limitations on enforcement against them for the illegal deck had lapsed, since the violation had existed for more than that statutory three years.  The Zoning Board denied the appeal; a decision which the Tines appealed in Connecticut state court.

At trial, the court concluded that the statute of limitations for enforcement of zoning violations began to run at the time of construction, not at the time that the Town was given notice of the zoning violation, and finding that the deck in this case was a “building” for purposes of applying the statute of limitations.  Since more than three years had elapsed since the offending building was constructed, the court held that the Town’s attempt to pursue the zoning violation and enforce the setback was untimely.  The Town here appeals.

On appeal, the Connecticut Supreme Court considered whether the deck constituted a “building” for statute of limitations purposes.  Conn. General Statutes § 13(a) provided that “when a building is so situated on a lot that it violates a zoning regulation of a municipality which prescribes the location of such a building in relation to the boundaries of the lot . . . and when such building has been so situated for three years without the institution of an action to enforce such regulation, such building shall be deemed a nonconforming building in relation to such boundaries.”  The statute does not define “building,” but the Court determined that the plain meaning of the term contemplated a structure with walls and a roof, not merely an attached deck.  Therefore, the Court held that a deck was not a “building” under § 13(a) and the Town’s enforcement action against the Tines for the illegal deck was not barred by the 3-year statute of limitations set forth in that provision.  The Court reversed the trial court’s decision and upheld the Zoning Board’s decision to dismiss the Tines’ appeal of the enforcement order.

Tine v. Zoning Board of Appeals of the Town of Lebanon, 308 Conn. 300 (Conn. 4/23/13)

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=14764313810007497123&hl=en&as_sdt=2&as_vis=1&oi=scholarr


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