DEAN V. TINE et al. v. ZONING BOARD OF
APPEALS OF THE TOWN OF LEBANON et al., SC 18872
Judicial District of New London
Zoning; Whether General Statutes § 8-13a Barred Zoning Enforcement Action Where Town had no Notice of Zoning Violation; Whether Plaintiffs' Deck a "Building" for Purposes of § 8-13a; Whether Plaintiffs were Equitably Estopped from Claiming Protection of § 8-13a. The plaintiffs own lakefront property in the town of Lebanon. Prior to constructing a single family house on the property, the plaintiffs obtained a variance of the town's setback requirements that allowed them to extend the house thirty-five feet into the setback area from the lake. The plans that the plaintiffs submitted to the town for the permitting process did not include a deck on the back of the house facing the water. When construction was completed in 2003, the rear of the house went right up to the setback line permitted by the variance. In 2004, the plaintiffs constructed a deck that had stairs for access to the house through French doors on the second level and that was located completely beyond the permitted setback. The plaintiffs did not notify the town of the construction of the deck, which is not visible from the street. In 2008, the plaintiffs requested a certificate of occupancy for the property in connection with a possible sale. The town inspected the property and issued a notice of violation and a cease and desist order because the deck was in violation of the permitted setback. The zoning board of appeals upheld the decision. The trial court reversed the board's decision on the ground that General Statutes § 8-13a provides the plaintiffs with protection from enforcement of the setback requirement. Section 8-13a provides that "[w]hen 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 trial court found that the deck is a "building" within the meaning of the statute because it is an integral part of the house that is required as one means of access into the house. The trial court further found that the statute's three year time period began to run when the deck was constructed in 2004, not when the town got actual notice of the violation in 2008. The court rejected the defendants' claim that the plaintiffs were equitably estopped from receiving the benefits of the statute, finding that the record did not establish misleading conduct by the plaintiffs or detrimental reliance by the defendants. The court also noted that while it did not condone the plaintiffs' conduct, the fact that the deck was built illegally without a permit did not in itself bring equitable estoppel into play to bar the operation of the statute.