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l� Page 104 Land Use Law Report June 18, 2003 Nonconforming Uses Landowner May Add Second Story To Nonconforming Structure The Connecticut Appeals Court has issued an- other in a recent series of opinions discussing the vertical expansion of nonconforming structures (See LULR, April 23, p.70; May 7, p.76). The court held homeowners could add a second story to their house, a legal nonconforming use, that`.-intruded into the rear setback area (Vivian v. Zoning Board of Appeals of Clinton, No. AC 22472, June 10, 2003). Rudolph and Sophie Reu own a house on Wa- terside Lane in Clinton. The structure violates the setback requirements on one side and the rear. They applied for permission to build a second story dor- mer that would add four rooms to the building. The vertical expansion would not increase the size of the house's nonconforming footprint. After the zoning enforcement officer approved the applica- tion, the Reus' next -door neighbor, James Vivian, appealed. The zoning board of appeals upheld the enforcement officer's determination. The trial court dismissed Vivian's appeal from the board's deci- sion. Court Explains `Building Envelope' In his appeal, Vivian argued the trial court im- properly concluded that the zoning regulations' setback requirements have no vertical component. He argued there was no logical way for the court to conclude that setback requirements apply only at ground level when the zoning regulations have ex- press exemptions for marquees, canopies and simi- lar structures. The appeals court noted a setback is the distance between the point where a building touches the ground and the property line. It neces- sarily rises into the sky even though the regulations do not expressly say so. Likewise, the noncon- formity of a structure has a vertical component that adheres to the footprint of the building. over the existing nonconforming footprint, the Reus were not expanding the building into the setback to include land not subject to the nonconformity. Therefore, the court said, the trial court properly ruled the Reus' application conformed to the set- back regulations. The board did not apply the regulations to the facts of this case in an unreasonable, arbitrary or illegal manner, the court continued. In the past, the zoning enforcement officer had approved applica- tions to expand nonconforming buildings vertically. Historically, Clinton has not required a variance for the vertical expansion of a nonconforming building. When voting to approve the Reus' application, members of the board said past practice should take precedence, and that the board would be changing the current zoning regulations if it were to allow Vivian's appeal. Vivian failed to meet his burden of proving that the board acted improperly, the court concluded. The court's opinion is available from BPI's DocuDial service, No. 39 -4831, 10 p. END ------------=---------- I LAND USE LAW REPORT I 8737 Colesviile Rd., #1100, Silver Spring, MD 20910 -3928 Use this coupon to subscribe. ❑ YES, sign me up for a new subscription[ I ❑ Print Only: $397' ❑ E -mail (PDF format): $337 '$10 First class postage Included. I (Maryland addresses add 5% sales tax.) ❑ Check enclosed (payable Land Use Law Report) I ❑ Charge to: ❑ Visa ❑ MasterCard ❑ AMEX Card # - -- — Exp• -- ❑ Bill my organization. P,O. # (required) Signature (required on all orders)____ (Payment due upon receipt of invoice.) I PLEASE PRINT Name - - -- -- -- - - - - -- I Title — — _ - -- —_ —_ Organization Address_— -- ___ - -- I City /State /Zip +4 -- - - -- — I — I The regulations have an exception for intru- I Phone (__ —) __ -- I sions into the setback area, the court continued. I -- - - - - -- Marquees, canopies, eaves and similar projections I Fax No. can extend no more than five feet into the required I Email: (required for PDF delivery)____ - - -- - -__ —_ setback area. The court agreed with Vivian that a I I setback must be the space extending from the I m For fastest service: ground to the sky rather than just an area at ground I Phone your order to (800) 274 -6737 I level. However, the trial court did not decide oth- I In DC Metro Area (301) 589 -5103 I erwise. The regulations do not say the footprint of a I or FAX to: (301) 589 -8493 g y p I nonconforming structure is capped at its existing I custsery @bpinews.com height. The pertinent language of the regulations is I Visit our website: www.bpinews.com a provision that no nonconforming building or I structure may be enlarged to include any land not subject to the nonconformity. By adding a dormer I — — — — — — — — — — — — — — — — — — — — — @ 2003 Business Publishers, Inc. All rights reserved.