Opinion
No. CV05 40002573S
May 26, 2006
MEMORANDUM OF DECISION
The plaintiff, LRJ Builders, LLC, appeals from two decisions of the defendant Ansonia Zoning Board of Appeals (board), dismissing the plaintiff's appeal and upholding the denial by the Ansonia zoning enforcement officer of the plaintiff's application for a certificate of zoning compliance, and denying the plaintiff's application for the renewal of two zoning variances granted in 1992.
The plaintiff is the owner of a vacant lot located at 32 Holbrook Place, Ansonia, Connecticut. (Appeal, ¶ 1.) By application dated September 9, 2004, the plaintiff applied to the zoning enforcement officer (officer), Peter Crabtree, for a zoning permit for the construction of a 30" x 30" single-family dwelling at 32 Holbrook Place, Ansonia, CT. (Return of Record, [ROR], Item 1.) On that date, the officer denied the application for the permit, stating that the "(v)ariance granted 11/15/92, language needs clarification, subsequent request for clarification was denied by ZBA on 7 Nov. 03." (ROR, Item 1.)
The plaintiff appealed the decision to the board on the following grounds: "(a) the lot width and area variations were granted in November of 1992, (b) the variances run with the land and do not expire, either through change of ownership or failure to commence construction within one year and, (c) Section 260.7 of the regulations, which invalidates the variance if construction is not commence[d] within one year, is an invalid provision." (ROR, Item 1.)
The board held public hearings on the matter on November 5, 2004, December 3, 2005 and January 7, 2005. (ROR, Items 4, 7, 9.) At its regular meeting on February 4, 2005, the board dismissed the plaintiff's appeal and upheld the decision of the officer. (ROR, Item 12.)
The plaintiff also filed an application with the board for a renewal of the 1992 variances on October 7, 2004. (ROR, Item 2.) In its application, the plaintiff claimed: "(a) the same hardships which required the board of appeals to grant the variances in 1992 . . . `the lot preexisted zoning laws and has been used and taxed by the city as separate lots' and (b) the economic value of the property is virtually destroyed if the applicant cannot build a house on the property as a result of denial of the variance application." (ROR, Item 2.) The board held public hearings on this application on December 3, 2004 and January 7, 2005. (Appeal, Second Count ¶ 4; ROR, Items 7, 9.) At its regular meeting on February 4, 2005, the board denied the application for the renewal of the 1992 variances. (ROR, Item 12.)
Thereafter, the plaintiff appealed from the board's decisions to the Superior Court, and the appeal was tried to the court, Moran, J., on November 22, 2005. On that date, the court ordered the parties to file simultaneous post-trial briefs.
General Statutes § 8-8 governs appeals 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).
"It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, aggrieved person includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." (Internal quotation marks omitted.) General Statues § 8-8(a)(1).
The burden of proving aggrievement rests with the plaintiff. See Quarry Knoll II Corp. v. Planning Zoning Commission, CT Page 10144 256 Conn. 674, 702, 780 A.2d 1 (2001). A plaintiff may prove title to the subject property "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Id., 703.
In the present appeal, the plaintiff has alleged that it is aggrieved because it is the owner of the subject property. (Appeal, ¶¶ 6 7.) The plaintiff also has provided proof of ownership in the form of a warranty deed. (Exh. 1.) The court finds that the plaintiff has properly pleaded and proven aggrievement. See Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 702. Accordingly, the plaintiff is statutorily aggrieved pursuant to General Statutes § 8-8(a)(1).
General Statutes § 8-8(b) provides in pertinent part 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." Section 8-8(f)(1) further provides that "process shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality."
Legal notices of the board's decisions concerning the two applications were published in the New Haven Register on February 17, 2005. (ROR, Item 13.) The plaintiff commenced this appeal on March 1, 2005 by service of process upon the chairman of the board and the town clerk for the city of Ansonia. Therefore, the plaintiff made timely service of process upon the proper parties.
In reviewing the actions of a zoning board, the court notes that its "scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal." RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). The court reviews "the record to determine whether there is factual support for the board's decision, not for the contentions of the applicant." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994). "Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . . The burden of proof to demonstrate that the board acted improperly is upon the [plaintiff]." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, CT Page 10145 658 A.2d 559 (1995).
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, 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 authority was required to apply under the zoning regulations." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).
The plaintiff appeals on the ground that the board acted illegally, arbitrarily and in abuse of its discretion. Specifically, the plaintiff alleges that: "(1) the board erroneously believed that the variances it granted in 1992 became invalid after one year when construction had not commenced; and (2) there was no substantial evidence in the record to support the board's conclusion that the variances were voided after one year."
General Statutes § 8-6(a)(3) grants the authority to a zoning board of appeals of a municipality to "determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship . . ."
A variance is authority granted to the owner to use his property in a manner forbidden by the zoning regulations . . . The power of the board to grant a variance should be used only where a situation falls fully within the specified requirements . . . Thus, the power to grant a variance should be sparingly exercised . . . 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." (Citation omitted; internal quotation marks omitted.) Kaeser v. Zoning Board of Appeals, 218 Conn. 438, 445, 589 A.2d 1229 (1991).
The court first analyzes the decision by the board to uphold the officer's denial of the plaintiff's application for a certificate of zoning compliance. In its brief, the plaintiff claims that the 1992 variances remain valid because a variance cannot be conditioned to expire upon the lapse of a certain period of time, such as one year or the death of the applicant. In support of this argument, the plaintiff relies on the Supreme Court case of Reid v. Zoning Board of Appeals, 235 Conn. 850, 670 A.2d 1271 (1996), which held that the condition of "life use only" placed on the variance was illegal and invalid. Additionally, the plaintiff submits a legal analysis by the Ansonia corporation counsel wherein counsel advised the board that the 1992 variances were still valid.
In response, the board argues that the 1992 variances have expired. The board relies on Superior Court cases to argue that time limitations attached to variances are permitted and that variances can expire. Colangelo v. Zoning Board of Appeals, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 314768 (January 30, 1997, Moran, J.); Jacobs v. Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0145185 (February 28, 1996, Karazin J.). Furthermore, the board distinguishes Reid v. Zoning Board of Appeals, supra, 235 Conn. 850, on the grounds that the variance in that case was invalid because it was personal in nature as compared to the variance here which is based on property conditions. In addition, the board contends that the condition that work begin within one year of the variance's publication is integral to the validity of the variance. As such, the board argues that if the court finds the integral condition to be invalid then the court should also find that the variance as a whole is invalid.
The board upheld the officer's denial of the application for a certificate of zoning compliance for the reason that the § 260.7 of the Ansonia zoning regulations (regulations) requires an applicant to build within one year after the granting of a variance. Section 260.7 of the regulations provides that "[u]nless work is commenced and diligently prosecuted within one year of the date of the granting of a variance . . . such variance . . . shall become null and void." (Emphasis added.)
At issue here is whether a variance can be conditioned to expire within a certain time period. "[I]t is well settled that variances run with the land and are not personal in nature." Reid v. Zoning Board of Appeals, supra, 235 Conn. 859; General Statutes § 8-6(b). "Once a variance is granted by the zoning board of appeals and recorded pursuant to [General Statutes] § 8-7 . . . it is a legal status granted to the parcel of land without regard for ownership and runs with the land . . . It is an authorization obtained from the zoning board of appeals to use the property in a manner otherwise forbidden by the zoning regulations." (Citation omitted.) Adams v. Warren Planning and Zoning, Superior Court, judicial district of Litchfield, Docket No. CV 97 0074240 (December 19, 1997, Pickett, J.T.R.); see also Grillo v. Zoning Board of Appeals, 206 Conn. 362, 372, 537 A.2d 1030 (1988); Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972).
General Statutes § 8-6(b) provides that "[a]ny variance granted by a zoning board of appeals shall run with the land and shall not be personal in nature to the person who applied for and received the variance. A variance shall not be extinguished solely because of the transfer of title to the property or the invalidity of any condition attached to the variance that would affect the transfer of the property from the person who initially applied for and received the variance."
In Reid v. Zoning Board of Appeals, supra, 235 Conn. 850, the plaintiff owned property subject to a variance granted to his predecessor in title. Id., 851-52. The variance allowed the prior owner to occupy the property on a year-round basis for her lifetime. Id., 852. The zoning enforcement officer found the plaintiff in violation of the zoning regulations and ordered the plaintiff to cease occupying the property on a year-round basis. Id. Subsequently, the zoning board of appeals upheld the action of the officer. Id. Upon appeal to the Superior Court, the court determined that the condition that the prior owner have year-round occupancy for her "life use only" was unreasonable. Id., 853. Because the "condition was an integral part of the board's decision, it was not severable and the variance was void ab initio." (Internal quotation marks omitted.) Id., 854. As a result, the trial court dismissed the appeal. Id.
The plaintiff then appealed based on the passage of Public Act 93-385, which amended General Statutes § 8-6 by adding subsection (b). Reid v. Zoning Board of Appeals, supra, 235 Conn. 854; see supra note 1. The Supreme Court determined that the legislature intended Public Act 93-385 to apply retroactively. Id., 864. Accordingly, the Supreme Court concluded that "any prospective challenges to variances subject to otherwise invalid, integral conditions must result in the severance of the condition and the survival of the otherwise valid variance." Id. The Supreme Court, therefore, held that the "illegal condition of life use only is severed from the plaintiff's variance and that his variance survives and runs with the land, such that he is entitled to year-round occupancy of the subject premises." (Internal quotation marks omitted.) Id.
It is undisputed that "[a] zoning board of appeals may, without express authorization, attach reasonable conditions to the grant of a variance." (Internal quotation marks omitted.) Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 161, 763 A.2d 1011 (2001); Burlington v. Jencik, 168 Conn. 506, 509, 362 A.2d 1338 (1975). "Reasonable conditions attached to a variance are those conditions that are in general harmony with the purposes and intent of the zoning regulations . . . If conditions attached to the granting of a variance, however, are outside the authority of the zoning board, the action will not be sustained." (Citation omitted.) Gay v. Zoning Board of Appeals, 59 Conn.App. 380, 385, 757 A.2d 61 (2000).
"In those cases deciding that a condition is invalid, the universal thread, as is true in cases upholding the validity of the condition, rests on the closeness of the relationship of the condition to the action sought from the zoning entity and whether the entity had the authority to require the condition." Gay v. Zoning Board of Appeals, supra, 59 Conn.App. 386.
In the present case, the variance recorded in Volume 282, page 540 of the Ansonia land records states in pertinent part that "IN ACCORDANCE WITH SECTION 260.7 OF THE ZONING ORDINANCES FOR THE CITY OF ANSONIA THAT UNLESS WORK IS COMMENCED AND DILIGENTLY PROSECUTED WITHIN ONE YEAR FROM THE DATE OF THE GRANTING OF A VARIANCE OR ADMINISTRATIVE PERMIT SUCH VARIANCE OR ADMINISTRATIVE [PERMIT] WILL BECOME NULL AND VOID . . . THIS APPROVAL WILL BECOME EFFECTIVE 15 DAYS AFTER THE PUBLISHING OF THE DECISIONS MADE BY THIS BOARD IN THE EVENING SENTINEL." (Internal quotation marks omitted.) (ROR, Item 2.)
In Connecticut, while there is no appellate authority on this issue, "it is unlikely that the zoning board of appeals can place an expiration date on a variance except in special situations. If a variance is granted by the board because it meets the requirements of hardship and compatibility with the comprehensive zoning plan, then the property requires relief from the provisions of the zoning regulations. That situation does not change with the passage of time, and expiration of a variance would turn a use that is allowed into an illegal use . . . An expiration date on a variance in effect reimposes a hardship on use of the property, which was the reason a variance was required in the first place. An expiration date as a condition would only be justified in those rare cases where the hardship on use of the property is clearly temporary only." (Emphasis added; footnote omitted.) R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1999) § 50.1, pp. 516-17.
Consistent with this language, Ansonia corporation counsel issued two letters to the board concerning the validity of the 1992 variances. In a letter dated December 23, 2004, counsel stated in relevant part: "[i]t is my legal opinion, as Corporation Counsel for the City of Ansonia, after reviewing the material submitted at your December meeting and the current law, that the variance of 1992 is still valid notwithstanding Section 260.7 of the Zoning Board of Appeals Regulations for the City of Ansonia."
Similarly, in a letter dated February 3, 2005, counsel wrote in relevant part: "It is my opinion, as Corporation Counsel for the City of Ansonia, that the variance was properly granted at the Zoning Board of Appeals meeting in November of 1992. Furthermore, it should be noted that if there had been an issue regarding the propriety of the proceedings (notice or otherwise), these issues should have been raised during the appeal period provided under State statute. No appeal was raised in a timely manner. Therefore, it remains my opinion that the variance that was granted in 1992 is valid and that it was not necessary for the applicant to be before the current Zoning Board of Appeals as the variance was still valid. Therefore, no action needs to be taken by the Zoning Board of Appeals. As such, the only thing that is necessary, in order to commence with any type of construction on the property, is for the applicant to obtain all necessary permits."
On the basis of the foregoing, the court concludes that the condition that "unless work is commenced and diligently prosecuted within one year from the date of the granting of a variance . . . such variance . . . will become null and void" is unreasonable. While the court recognizes that in order to protect the community, a board is allowed to attach conditions to a variance, the court, nevertheless, finds that there is no justification for the expiration date as a condition on the variance. R. Fuller, supra, § 50.1, pp. 517. When a board imposes a condition that is unreasonable and beyond its authority, "it may be revoked, set aside and declared to be void and of no force." (Internal quotation marks omitted.) Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 66, 574 A.2d 212 (1990).
Consistent with the Supreme Court's ruling in Reid v. Zoning Board of Appeals, supra, 235 Conn. 850, this court severs the illegal condition of one year from the plaintiff's variance. Consequently, the variance survives and runs with the land notwithstanding the otherwise invalid condition. Because the variance is still valid and never expired, the court need not address the plaintiff's appeal of the board's second decision denying the application for renewal of the 1992 lot width and lot area variances.
The board therefore acted arbitrarily, illegally and in abuse of its discretion in upholding the officer's denial of the plaintiff's application for a certificate of zoning compliance and in denying the application for renewal of the 1992 variances.
The appeal of both decisions is sustained.