Opinion
No. CV 09-4041891
October 16, 2009
MEMORANDUM OF DECISION
I
The plaintiff, Scarborough Holdings, LLC, appeals from a decision of the defendant, the Zoning Board of Appeals of the town of Simsbury (ZBA), which denied its application for a variance from the frontage requirement for property it owns at 82 Climax Road in Simsbury.
This appeal was originally brought by the previous owners and applicants, Richard J. and Bronislawa A. Kulikowski. After the appeal was commenced, the property was sold to Scarborough Holdings, LLC, and a motion to substitute the latter as plaintiff was granted on August 4, 2009.
II
On or about October 24, 2008, Richard J. and Bronislawa A. Kulikowski submitted an application to the ZBA seeking a variance from the 200-foot frontage requirement set forth in article 8, § A, of the Simsbury zoning regulations. If the variance application had been granted, it would have allowed their new lot, which was created by a "free cut" of their existing nonconforming lot, to qualify as a building lot. (Return of Record [ROR], Item 4; Item C 2, p. 5.) On November 19, 2008, after giving the requisite notice, the ZBA opened the public hearing on the application, at which time it tabled discussion of the application to the next meeting on December 17, 2008. (ROR, Item C 1, p. 8; ROR, item 8.) At the December 17, 2008 meeting, the ZBA unanimously voted to deny the variance. (ROR, Item C 2, p. 103.) The Kulikowskis appealed from this decision to the Superior Court. On February 6, 2009, a motion to substitute Scarborough Holdings, LLC, as the plaintiff was filed. This motion was granted, and the appeal was tried to this court on August 4, 2009. At the trial, the court ordered supplemental briefs, which were filed on August 20, 2009.
III
General Statutes § 8-8 governs an appeal from a zoning board of appeals to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
A Aggrievement
"Aggrievement presents a question of fact for the trial court and the party alleging aggrievement beats the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d. 883 (2003). "[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). "Aggrievement is an issue of fact . . . and credibility is for the trier of the facts." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [controversy], as opposed to a general interest that all members of the community share . . . Second, the party must also show that the [alleged conduct] has specially and injuriously affected that specific personal or legal interest." (Internal quotation marks omitted.) Pond View, LLC v. Planning Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2008).
In the complaint, the Kulikowskis alleged that they "are aggrieved by the action of the defendant Simsbury Zoning Board of Appeals because they are the owners of the property which was the subject of the application and the denial of the application for a variance has had an adverse affect on their property in that it renders a validly standing and validly constituted lot unable to be used for the purpose for which it is zoned within the town of Simsbury. The plaintiffs' right to use their property is adversely affected by the board's denial of the variance application." (Complaint, ¶ 7.) As noted above, a motion to substitute Scarborough Holdings, LLC, as the party plaintiff to this appeal was filed, which was subsequently granted by this court. At the trial held on August 4, 2009, the plaintiff submitted into evidence a deed showing that the subject property was sold by the Kulikowskis to Scarborough Holdings, LLC, on March 24, 2009. (Plaintiff's Exhibit 20.) Also at trial, William K. Woodman, on behalf of the plaintiff, presented testimony demonstrating that it is aggrieved as the owner of the property that was the subject of the application, which was denied. Based on the facts adduced at trial, the court finds that the plaintiff has proven that it is classically aggrieved because it has demonstrated a specific, personal and legal interest in the subject matter of the appeal and that the ZBA's denial of its variance application has specially and injuriously affected that specific interest.
B Timeliness and Service of Process
General Statutes § 8-8(b) provides that "[an] appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." General Statutes § 8-8(f) provides that "[s]ervice of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows: . . . (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57. Such service shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the clerk of the municipality or the chairman or clerk of the board a necessary party to the appeal." General Statutes § 52-57(b) provides in relevant part: "Process in civil actions against the following-described classes of defendants shall be served as follows: . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
Notice of the decision was published in the Hartford Courant on December 23, 2008. (ROR, Item 32.) On January 6, 2009, this appeal was commenced by service of two copies of process on the ZBA, by leaving two "true and attested, verified" copies of the writ, summons, citation, complaint and appeal with the Simsbury town clerk. Accordingly, the court finds that this appeal is timely and that service of process was proper.
IV
"[A zoning] board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994). "In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Citations omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004).
"The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations . . . It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Citations omitted; internal quotation marks omitted.) R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d. 61 (2001).
Here, the record contains a formal, collective statement of the reasons for the ZBA's decision in the notice of decision that was mailed to the Kulikowskis, in which the ZBA stated that it "believes that the hardship was self-imposed when the first cut was made." (ROR, Item 33.) Accordingly, the court is limited to determining whether that reason is supported by substantial evidence in the record and may not search the record for other reasons supporting the ZBA's decision.
V
In the complaint, the plaintiff alleges that in approving the variance application, the ZBA acted illegally, arbitrarily and in abuse of its discretion in several ways. Although the plaintiff has alleged several grounds in support of this assertion, it has not briefed all of those grounds. "Issues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided." Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 109 n. 3, 682 A.2d 1070, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996). Accordingly, the court will address only those issues that were adequately briefed or argued.
In its brief, the plaintiff first argues that the ZBA "wrongfully adopted a self creation of hardship rationale." (Appellant's brief p. 7.) It argues that the act of filing the map of their first cut division had no impact on the frontage of their lot because the original nonconforming parcel had no frontage at all since prior to the adoption of zoning regulations in Simsbury. It argues that because both the existing lot and the new lot have never had frontage, the act of dividing the parcel into two lots did not reduce the frontage and, therefore, did not create the hardship. It maintains that the lack of frontage on a public street, therefore, is not a self-created hardship, but is a hardship created by the regulations themselves.
In support of these assertions, the plaintiff argues that "the factor of noncompliance existed by and at the inception of the adoption of the Zoning Regulations." It contends that a hardship is not self created where the regulations themselves create a hardship and the other requirements for a variance are met. It goes on to argue that because zoning applies to the land, and not to the owner, one who purchases land with knowledge of a zoning restriction may not be precluded from obtaining a variance if a previous owner could have established a hardship to obtain a variance at an earlier time. It maintains that the Kulikowskis "did not create a `self created' hardship when they filed a map of division with the Town of Simsbury, they were simply fulfilling a statutory right." (Appellant's brief, p. 10.)
Further, the plaintiff maintains that a regulation that permanently restricts the use of property for any reasonable purpose constitutes a taking. It contends that the application of the zoning regulations that were enacted after the creation of the original lot is a hardship and that application of the frontage requirement to the lot that was created pursuant to a statutory right "would amount to a confiscation because it removes all value and practical use of the land."
The ZBA counters that its decision to deny the application is supported by substantial evidence in the record because the applicants failed to establish a hardship that is not self-created. It argues that the claimed hardship was caused entirely by the applicants' own actions in dividing their lot for the purpose of creating a new building lot. It further contends that the subject property has no distinguishing characteristics that warrant the issuance of a variance. It notes that the original lot was not adversely affected by the frontage requirement because it was a legal nonconforming lot that predated the adoption of zoning regulations. It maintains that any new lots created from the original lot, whether by free cut or by subdivision, must conform to the zoning regulations.
The ZBA next argues that the requested variance would not be in harmony with the general purpose and intent of the zoning regulations. It argues that rear lots are permitted under a separate provision in the Simsbury zoning regulations and that to allow the applicants to circumvent those regulations by obtaining a variance from the frontage requirement would not be in harmony with the comprehensive zoning plan. It further maintains that the denial of the variance does not deprive the applicants of the reasonable use of their land because disappointment in the intended use of the land does not constitute exceptional difficulty or unusual hardship to support the issuance of a variance.
"[T]he granting of a variance must be reserved for unusual or exceptional circumstances . . . An applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone . . . Accordingly, [the Supreme Court has] interpreted General Statutes . . . § 8-6 to authorize a zoning board of appeals to grant a variance only when two basic requirements are satisfied: (1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan . . . Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance . . . A mere economic hardship or a hardship that was self-created, however, is insufficient to justify a variance . . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance." (Citations omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206-08, 658 A.2d 559 (1995).
First, the court must consider whether the plaintiff has met its burden of establishing a hardship that is not self-created. At the public hearing on December 17, 2008, the plaintiff's attorney, T.J. Donohue, argued that "the hardship is that when the [t]own said this is R-40, and at the same time required frontage for R-40 lots, that's the hardship." (ROR, Item C 2, p. 15.) He further explained that "[o]ur hardship is that when zoning was created in Simsbury, imposed on this lot of 6.5 acres, the lot had an absolute right to a statutory cut, which it exercised this year, and your zoning created the hardship that the free cut lot can't be used for anything unless you give a variance for zoning — for frontage, to allow us to comply with all of the other requirements of zoning in the lot." (ROR, Item C 2, p. 84.)
In Dupont v. Zoning Board of Appeals, 80 Conn.App. 327, 834 A.2d 801 (2003), the Appellate Court explained: "The desire to subdivide property into [two] lots is a voluntary hardship created by the applicant requiring denial of a variance . . . Where the claimed hardship arises from the applicant's voluntary act . . . a zoning board lacks the power to grant a variance." (Citation omitted; internal quotation marks omitted.) Id., 330. In Dupont, the plaintiff had applied for a variance from the lot area requirement in the Manchester zoning regulations in order to subdivide his lot into two parcels, one of which would not comply with the applicable minimum lot area requirement. Although the plaintiff claimed that the reason for the hardship was that "[t]he street line of Prospect Street cut and established by the town of Manchester adversely impacts [the applicant's] lot as it intersects with Hackmatack Street"; id., 328; the Appellate Court held that "the plaintiff's desire to subdivide his property in this case is a self-created hardship that does not entitle him to a variance"; id., 331; and reversed the judgment of the trial court, which had sustained the applicant's appeal from the zoning board of appeals' denial of the variance application.
In sustaining the appeal from the zoning board of appeals' denial, the trial court had reasoned that "the hardships were created by the town of Manchester in laying out Prospect Street and in the zoning ordinance/zoning regulations in which the minimum lot requirement was raised to 15,000 square feet and then 18,000 square feet where parcel B is approximately 12,000 square feet, long after the plaintiff and his predecessors in title had taken title to the property and the dwelling had been built, which was in 1847." (Internal quotation marks omitted.) Id.
In reversing the judgment of the trial court, the Appellate Court reasoned that "[h]ere, the applicant sought to subdivide a lot, which under current zoning regulations had no preexisting nonconformities, into two lots, one of which would have less than the required square footage . . . If we were to entertain the proposition that a property owner has a right to subdivide his property simply because he owns it, then we would be undermining the policy identified by our Supreme Court that variances are to be granted only in limited circumstances. `[U]nless great caution is used and variances are granted only in proper cases, the whole fabric of town-and city-wide zoning will be worn through in spots and raveled at the edges until its purpose in protecting the property values and securing the orderly development of the community is completely thwarted.' . . . Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 270-71, 588 A.2d 1372 (1991)." Dupont v. Zoning Board of Appeals, supra, 80 Conn.App. 331-32. The Appellate Court then concluded "that when a property owner's situation is self-created, that is not a sufficient reason to depart from the zoning regulations. Accordingly, the [trial] court improperly found that a valid hardship existed." Id., 332. The variance application at issue in the present case is analogous to that addressed in Dupont. In this case, as in Dupont, the applicants created their hardship when they each decided to divide their lot into two lots, one of which would violate the zoning regulations if a variance were not granted. In both cases, the original lot did not violate the regulations prior to the division. Also, in both cases, the regulations that restricted the applicants' ability to divide the lots were enacted after the applicants' predecessor in interest purchased the land. In other words, even though the land at issue might legally have been divided into two building lots prior to the enactment of the zoning regulations, the court held that the enactment of the regulation at issue did not impose a legally cognizable hardship because to hold otherwise would remove any limitation on the issuance of variances. Any property owner would be able to obtain a variance from any zoning restriction if at some earlier point in time, such a restriction did not exist. As the Appellate Court stated in Dupont, if the court were to allow a variance under such circumstances, it "would be undermining the policy identified by our Supreme Court that variances are to be granted only in limited circumstances." Id. Accordingly, the ZBA's determination that the claimed hardship was self-created was not arbitrary, illegal or an abuse of discretion and is supported by substantial evidence in the record.
Next, the court must consider what effect, if any, the substitution of Scarborough Holdings, LLC, has on the issue of whether the hardship is self-created. At trial on August 4, 2009, the court ordered additional briefing on the issue of whether the substitute plaintiff stands in the shoes of the Kulikowskis for purposes of determining whether the hardship was self-created. A review of the law outlined in those briefs, as well as the court's independent research on this issue, reveals that although the substitute plaintiff, Scarborough Holdings, LLC, did not create the hardship by dividing the lot itself, as it purchased the land after it was divided by the Kulikowskis, the plaintiff is barred from obtaining a variance under the purchase with knowledge rule. "One specific type of voluntarily assumed hardship is embodied in what has been termed `the purchase with knowledge rule.' R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 9.4, p. 190. Under that rule, if a purchaser acquires property with knowledge of the applicable zoning regulations and later attempts to use that property in a manner that is proscribed by the regulations, the purchaser is barred from obtaining a variance." Kalimian v. Zoning Board of Appeals, 65 Conn.App. 628, 632, 783 A.2d 506, cert. denied, 258 Conn. 936, 785 A.2d 231 (2001). In this case, the plaintiff purchased the subject property with knowledge that the newly created lot would not be a legal building lot under the regulations without a variance because it filed the motion to substitute itself as the plaintiff in this action prior to purchasing the land from the Kulikowskis. Accordingly, it is barred from obtaining a variance because it voluntarily assumed the hardship, and that hardship, therefore is considered self-created under the purchase with knowledge rule.
Finally, the court must address the plaintiff's takings claim. The plaintiff argues that the "effect of the ZBA variance denial is confiscatory in that the lawfully created lot cannot be used for the purpose allowed in the Zone as set forth in the Zoning Regulations." (Appellant's supplemental brief, p. 3.) The plaintiff has not presented or referred the court to any evidence in support of this assertion, and the court finds none in the record, other than the plaintiff's attorney's unsupported assertion that "[t]he diminution of value is that you have a lot which is created by right, the 3.25-acre parcel, and you can't use it for anything. If it was in a business zone or industrial zone, you could use it for business or industrial. They have no requirements for frontage. But in an R-40 lot you can't use it for an R-40 lot unless I get a variance . . ." (ROR, Item C2, pp. 84-85.) When Commissioner Blackburn responded by stating that the lot could be used for other things, just not a building lot, Donohue responded, "Yes, and that's a good point," but argued that with an R-40 lot "you ought to be able to put a single-family house on it" because the use must be "meaningful within the zoning classification." (ROR, Item C 2, p. 85.) The plaintiff has not presented any evidence to the ZBA as to the amount of any diminution of the property's value. As the record in this case is silent as to whether there is any alternative use for the property or the extent of the financial impact to the plaintiff as a result of the denial of the requested variance, the ZBA's denial of the plaintiff's application on the basis of a lack of hardship was not arbitrary, illegal or an abuse of discretion. See Santos v. Zoning Board of Appeals, 100 Conn.App. 644, 652, 918 A.2d 303 (2007). Accordingly, the court holds that the decision of the Simsbury ZBA to deny the variance is affirmed.
The court concludes that the record contains substantial evidence in support of the ZBA's determination that the plaintiff's hardship was self-created.
VI CONCLUSION
For the foregoing reasons, the plaintiff's appeal is hereby dismissed.