Opinion
No. FST CV 05 4003423 S
September 12, 2006
MEMORANDUM OF DECISION
Helen and Theofilis Lazarides appeal from a decision of the City of Norwalk Zoning Board of Appeals (ZBA) that denied the Lazarides' application for variances which sought to increase from two to three the number of dwelling units allowed on the property owned by Helen Lazarides.
On November 5, 2004, the Lazarides applied for variances pursuant to § 118-1410A.(3) of the city of Norwalk building zone regulations; (Return of Record [ROR], Exhibit 4); to accommodate three dwelling units in their house at 25 Westport Avenue in Norwalk. (ROR, Exhs. 1, 3, 4.) The property is in a Business Number 2 zone, which permits multi-family dwellings; (ROR, Exhs. 4, 9); in accordance with the D residence zone regulations. (ROR, Exhs. 4; 22 p. 2, 24 p. 3.) The Lazarides requested a variance of driveway aisle width under § 118-1230D(1), proposing a width of 16.7 feet where 24 feet is the requirement. (ROR, Exhs. 1, 6.) A variance requesting an increase in the number of stories to three stories was sought, where two and one-half stories are allowed under § 118-360C. (ROR, Exhs. 1, 6.) The third variance requested, under §§ 118-810D and 118-360C, proposed to retain the existing 1.5-foot side-yard setback, where the required setback is ten feet. (ROR, Exhs. 1, 6.) The Lazarides represent that since the initial appeal, the sideyard setback requirement has been modified under the city zoning regulations, rendering that variance request moot. (Plaintiffs' brief pp. 2 n. 2, 13.) Since the three stories appear to predate zoning, it is the driveway variance which is critical here. (ROR, Exh. 4, pp. 2-3).
The Lazarides purchased the property on March 22, 1968. (ROR, Exh. 15.) The unusual shape of the property has remained unaltered since that time, measuring 32 feet in the rear, extending 163 feet along the sides, and measuring 65 feet across the front. (ROR, Exhs. 11, 12, 13, 14, 16, 23 p. 1; 25 pp. 1-2, 15.) At the time of the purchase, the nonconforming residential structure on the property contained five dwelling units. (ROR, Exhs. 4, 9, 15, 22 pp. 2, 3, 23 p. 3.) During the initial thirty-four years of ownership, the Lazarides used the property as a five-dwelling unit with no notices of any violation or any cease and desist orders. (ROR, Exhs. 23 p. 3; 25 p. 14.) The Lazarides paid real property taxes based on a five-unit dwelling. (ROR, Exhs. 4, 25.) Assessor's cards indicate a two-family dwelling unit existed in 1929 (ROR, Exh. 19); and a five-family dwelling unit existed in 1972; (ROR, Exh. 18); and in 2003. (ROR, Exh. 20.) The record does not reflect how or when the change on the assessor's cards from a two-family dwelling to a five-family dwelling came about. (ROR, Exhs. 9, 17, 24 p. 7; 25 p. 12.)
In 2002, as a result of a fire department inspection, a fire escape was to be added to one of the five dwelling units. (ROR, Exhs. 9, 24 p. 7.) Upon applying for a variance for the fire escape in 2002, it was discovered that the house was listed as a two-dwelling unit. (ROR, Exhs. 9, 24, pp. 7-8.) The deputy zoning enforcement officer issued a cease and desist order, on the basis that the house had been converted from a two-family dwelling to a five-family dwelling without the proper permits. (ROR, Exh. 24 pp. 7-8.) The Lazarides did not appeal the cease and desist order. (ROR, Exhs. 9, 24 pp. 7-8) In April of 2004, the Lazarides applied for variances required for a four-dwelling unit, which were denied by the ZBA on September 23, 2004. (ROR, Exhs. 4, n. 2, 7, 24 p. 28.) The Lazarides then applied for the variances required for a three-dwelling unit. (ROR, Exhs. 1, 4.) The ZBA denied that application on January 6, 2005, forming the basis of this appeal. (ROR, Exh. 25 p. 45.)
General Statutes § 8-8 governs an appeal taken from a zoning board of appeals. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
"[P]leading and proof of aggrievement are prerequisites to the trial courts jurisdiction over the subject matter of appeal." (Internal quotation marks omitted.) Albahary v. Bristol, 276 Conn. 426, 434 n. 5, 886 A.2d 802 (2005). "It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538, 833 A.2d 883 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39.
The Lazarides allege they have been owners of the property located at 25 Westport Avenue in Norwalk since 1968, with Helen Lazarides the current owner of record. (Plaintiffs' complaint ¶¶ 1, 5.) The Lazarides allege aggrievement under § 8-(8)(1)(a) and 8-8(b). After taking testimony, the court finds that Helen Lazarides is aggrieved as owner of the land which was the subject of the ZBA's decision. See Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991).
The Lazarides allege that the ZBA acted illegally, arbitrarily, capriciously, and in abuse of its discretion when it denied the variances. (Plaintiffs' complaint ¶ 22.) They allege that the ZBA's findings, conclusions and decision were not supported by substantial evidence. (Plaintiffs' complaint ¶ 22(d).) They allege also that the ZBA's actions were contrary to the use of the property for over thirty-five years as a multi-family dwelling with no violations or cease and desist orders. (Plaintiffs' complaint ¶ 22(e).) They also allege that the ZBA ignored the evidence of hardship caused by the narrowing of the property in the rear as it affected the driveway problem in the rear. (Plaintiffs' brief, p. 7).
Of all the functions a zoning authority performs, the power to grant variances is the most limited. Since a variance allows an owner to use his property in contravention of zoning regulations, Sec. 8-6(a)(3), General Statutes, permits a variance only where (1) it will not adversely affect the comprehensive plan, and (2) adhering to the strict letter of the law would lead to exceptional difficulty or unusual hardship. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368-73, 537 A.2d 1030 (1988); Dolan v. Zoning Board of Appeals, 156 Conn. 426, 430, 242 A.2d 713 (1968). A finding of hardship is a condition precedent to the granting of a variance. Smith v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542 (1978). However, the hardship must originate and arise out of the application of the zoning regulations and it must be beyond the control of the owner. It may not be self-created; Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 658, 427 A.2d 1346 (1980); or financial — unless it amounts to confiscation. Berlani v. Zoning Board of Appeals, 160 Conn. 166, 171, 276 A.2d 780 (1970).
Accordingly, our courts emphasize that the power to grant a variance should be reserved for exceptional circumstances; Dolan v. Zoning Board of Appeals, supra, 156 Conn. 429; and be exercised sparingly. Allen v. Zoning Board of Appeals, 155 Conn. 506, 510, 235 A.2d 654 (1967). Proof of exceptional difficulty or unusual hardship is absolutely necessary. Point O'Woods Ass'n. v. Zoning Board of Appeals, 178 Conn. 364, 368, 423 A.2d 90 (1979). On appeal, the "burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the decision." Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994); Libby v. Board of Zoning Appeals, 143 Conn. 46, 52, 118 A.2d 894 (1955).
It is also clear that the court may not substitute its own judgment or discretion for that of the board. The court is bound by the strictures of the law. It may interfere only if it finds that the board acted in an arbitrary or illegal manner or unreasonably abused its discretion. Courts may not "substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing." Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547, 684 A.2d 735 (1996). The court's role is severely limited. Piccirillo v. Board of Appeals on Zoning, 139 Conn. 116, 120, 90 A.2d 647 (1952). Its job is to review the board's decision to determine whether it can legally, logically and reasonably be supported.
I
The board denied the request for variance on January 6, 2005, but did not state specific reasons for doing so. If the board fails to articulate the reasons for its decision, the court must search the record to determine whether there is a basis for the board's decision. Grub v. Zoning Board of Appeals, supra, 206 Conn. 369; Jaser v. Zoning Board of Appeals, supra, 43 Conn.App. 545; Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206-08, 658 A.2d 559 (1995).
Having searched the record, the court is satisfied that "substantial evidence has been presented . . . to support [the board's conclusion];" Jaser v. Zoning Board of Appeals, supra, 43 Conn.App. 548; as outlined above. Moreover, there is no evidence the board ignored evidence nor acted on evidence not in the record. The board's discussion considered that the unauthorized five-family usage predated 1968 when the plaintiff purchased it; that there is no evidence it was a legal nonconforming use that predated zoning; that there was a later cease and desist order preventing use of the property for five families that was not appealed; that the regulation in question was intended to safeguard health and safety, and that made it necessary to curtail the use to two families; and that the owner was chargeable with knowledge of the illegal use. The board was aware that a variance required a hardship that qualified under the law. The majority did not believe one existed.
II
The plaintiff argues that the property narrows substantially in the rear, preventing the owner from having the required vehicle turnaround space. Thus a hardship arises, she claims, from the shape of the property as the regulations impact upon it.
The board argues that any hardship is self-imposed. Essentially, it adopts the doctrine of cases like Devaney v. Board of Zoning Appeals, 132 Conn. 537, 544, 45 A.2d 828 (1946) and Mandanici v. Zoning Board of Appeals, 50 Conn.App. 308, 717 A.2d 287, cert. denied, 247 Conn. 935, 719 A.2d 1174 (1998) that "[w]hen [the applicant] bought the property he voluntarily took a chance that he would be permitted to use it for a purpose expressly prohibited . . ." Devaney v. Board of Zoning Appeals, supra, 544. It also argues that if the board granted that permission it would have acted without authority and in clear abuse of its power; Id.; and that any hardship was voluntarily assumed by the plaintiff and thus cannot constitute grounds for the granting of a variance. Kulak v. Zoning Board of Appeals, 184 Conn. 479, 481, 440 A.2d 103 (1981); Mandanici v. Zoning Board of Appeals, supra, 50 Conn.App. 311.
The board's position, of course, is that like all others, the plaintiff is "charged with knowledge of the law." Pallman v. Town of East Haven, 135 Conn. 593, 594, 67 A.2d 560 (1949). The principle that all citizens are presumptively charged with knowledge of the law goes back to Blackstone's Commentaries. Atkins v. Parker, 472 U.S. 115, 130, 105 S.Ct. 2520, 86 L.Ed.2d 81 (1985). That the plaintiff may have bought the property under a mistaken view of zoning law, is in the board's view, no excuse from the general rule.
Our reports contain many cases of self-created hardship. Typically, the land-owner unilaterally engages in activity contrary to the zoning ordinances, and then when challenged, seeks a variance that cannot be granted. 7 Patrick J. Rohan, Zoning and Land Use Controls, § 43.02[6] at 43-66 (1998). In most cases, there is no question about the landowner's knowledge of the violation. In this case, it is not altogether clear whether the plaintiff purchased the property with actual knowledge that the five-family use by the prior owner was a violation of the zoning regulations. That does not however, make a difference in this case. There is no evidence in the record that the usage preexisted zoning and thus was a legal non-conforming use. Moreover, the existence of an unappealed Cease and Desist Order further complicates the plaintiff's case.
If when the plaintiff and her husband purchased the property from an owner who used the property for five families without zoning approval, they investigated the state of the law, vis-a-vis the property, they could have discovered the illegality prior to the purchase. There was ample warning available in the zoning regulations to alert the plaintiff that the five-family usage was not a legal usage. The plaintiff did not show — and could not show — that she had no means of acquiring the knowledge she lacked. Bergan v. Lundgren, Super.Ct., judicial district of Middlesex, #02-0099396 (8/31/04, Walsh, J.); Mucci Construction v. Stratford Planning Commission, Super.Ct., judicial district of Fairfield, #03-0403940 (2/22/05, Owens, J.) Therefore, whether she was — or was not — aware of the illegality, the plaintiff brought the problem on herself, see also Spalding v. Board of Zoning Appeals, 144 Conn. 719, 137 A.2d 755 (1957); Abel v. Zoning Board of Appeals, 172 Conn. 286, 374 A.2d 227 (1977); and she cannot benefit from a mistake she induced. Black v. Zoning Board of Appeals, Super.Ct., judicial district of New London at Norwich, #97-0112867 (6/4/99, Parker, J.).
It does not matter that the zoning violation was created by the plaintiff or by a predecessor in title. "Where the applicant or his predecessor (emphasis added) creates a nonconformity, the board lacks power to grant a variance." Haines v. Zoning Board of Appeals, 26 Conn.App. 187, 193, 599 A.2d 399 (1991); see also, Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 300, 429 A.2d 883 (1980). Accordingly, since the hardship qualifies as self created, the plaintiff's remedy does not lie with this court. "Self-inflicted or self-created hardship, therefore, is never considered grounds for a variance." 3 Yokely, Zoning Law and Practice, (4th Ed., 2002) § 20-11, p. 20-49; MR Enterprises, Inc. v. Zoning Board of Appeals, 155 Conn. 280, 282, 231 A.2d 272 (1967). In effect, when the plaintiff bought the property, she voluntarily took a chance that the use would be permitted. Devaney v. Zoning Board of Appeals, supra, 132 Conn. 544.
In the final analysis, the plaintiff may lose considerable rental income. However, "[d]isadvantage in property value or income, or both . . . resulting from application of zoning restrictions, does not, ordinarily, warrant relaxation in his favor on the ground of . . . unnecessary hardship." Norwood v. Zoning Board of Appeals, 62 Conn.App. 528, 534, 772 A.2d 624 (2001). See also, Bloom v. Zoning Board of Appeals, supra, 233 Conn. 208. Only in exceptional situations where the application of the regulations on property virtually destroys its value for any of the uses for which it reasonably could be put, so that they have a confiscatory effect, are financial considerations relevant. But that is not our case. That the plaintiff seeks maximum economic utilization of her property is not sufficient justification for a variance. Norwood v. Zoning Board of Appeals, supra, 62 Conn.App. 534-35. Neither financial loss nor the potential for financial gain will support a variance. Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972).
The plaintiff also alleged that they had paid taxes on the basis of a five-family house. It has been held, however, that increased taxes are not a basis for a variance. Dixon v. Zoning Board of Appeals, 19 Conn.Sup. 349, 353, 113 A.2d 606 (1955). See also, R. Fuller, 9 Conn. Practice Series, Land Use Law and Practice (2nd Ed. 1999) § 9.3, p. 182. Moreover, while she paid more taxes, she also got the benefit of the five-family use. Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662, 211 A.2d 687 (1965); Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206-8; Thayer v. Zoning Board of Appeals, 114 Conn. 15, 22, 157 A.2d 273 (1931).
III
The court searched for cases factually close to the instant case to determine whether the law might look more kindly upon the plaintiff because of the long time the property had been used as a five-family house without municipal enforcement of the regulations. It is clear, however, that municipal action did not induce the plaintiff's actions. Moreover, the plaintiff did not exercise due diligence nor act in reliance on positive acts of municipal officials. There is no municipal estoppel here — and the law does not favor laches or estoppel in zoning matters.
In 1969, in Bianco v. Darien, 157 Conn. 548, 556, 254 A.2d 898 (1969), our Supreme Court allowed the town to enforce its zoning ordinances after a thirty-six-year lapse.
In Carini v. Zoning Board of Appeals, 164 Conn. 169, 173, 319A, 390 (1972), cert. den. 414 U.S. 831, 94 S.Ct 64, 38 L.Ed.2d 66, the facts were similar to this case. The premises had been operated as a rooming house for 28 years, which included 20 years under a rooming house license from West Hartford. The applicant argued that it was arbitrary to refuse a variance to allow continued use after a lengthy failure to enforce the regulations. The court held "[i]t is not the function of a zoning board of appeals to consider matters such as estoppel or laches in determining whether a variance should be granted." Id. The board, it held "was limited to that provided by the zoning ordinance in accord with legislation." It concluded that the "municipality cannot be prevented from enforcing its zoning regulations by the unauthorized acts of its officers or agents in matters involving a governmental function." Id. The court relied on Bianco v. Darien, supra, 157 Conn. 548, 556.
In 1983, in West Hartford v. Rechel, 190 Conn. 114, 120, 459 A.2d 1015 (1983), the court stated that it was "not prepared . . . to overrule our holding in Bianco that a zoning commission is not estopped by laches from enforcing its zoning laws." See also, 4 Rathkopf, Law of Zoning Planning, (4th Ed. 1994) 45.04[1][b] p. 45-39. "The failure of the municipality to enforce the ordinance in the past is immaterial since the board cannot consider estoppel or laches." R. Fuller, 9 Conn. Practice Series, Land Use and Practice, (2d Ed. 1999) § 9.3, p. 151. As a general rule, a zoning commission is not prevented by delay or the doctrine of laches from enforcing its zoning laws. It is also the rule that the doctrine of estoppel does not prevent a municipality from exercising its police power. R. Fuller, supra, Vol. 9A (1999) § 53.1, p. 569.
The property had been in use as a five-family house for almost forty years without municipal interference. While longevity is not an excuse for violating the law; nevertheless the law is ripe with ameliorating doctrine based upon inactivity. Among them are statutes of limitation, both civil and criminal, estoppel, laches, and even adverse possession. Our Supreme Court might decide to take another look at whether lack of enforcement over a prolonged time might have consequences in zoning situations which favor the landowner — especially when the misuse arose from a predecessor in title and without knowledge by the purchaser of the illegal use. It might wish to ask whether the Bianco decision is an efficient or inefficient use of the law; and whether it maximizes values that support the public good. See, Economic Analysis of Law, (Boston, Little Brown, 6th Ed. 2003) by Judge Richard Posner of the U.S. 7th Circuit Court. If the Supreme Court is not yet prepared to overrule or modify its earlier decision in Bianco, it appears that the sole remedy in such cases lies with the legislature.
In view of the weight of the case law, the court's duty must be to uphold the decision of the Norwalk Zoning Board of Appeals. Variances cannot allow a use not otherwise permitted; R. Fuller, supra, § 9.2, p. 180; see also, Bradley v. Zoning Board of Appeals, 165 Conn. 389, 395, 334 A.2d 914 (1973); and they should not be used to accomplish what is, in effect, a substantive change in the uses permitted in a particular zone. Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218, Conn. 265, 271, 588 A.2d 1372 (1991); R. Fuller, supra, § 9.2, p. 180. The board did not act illegally, arbitrarily, unreasonably or in abuse of its discretion in denying the plaintiff's application for a variance.
The appeal is dismissed.