Opinion
No. 563733
August 7, 2003
MEMORANDUM OF DECISION
This is an appeal by plaintiff, Dana Murphy, from the decision of the defendant, Zoning Board of Appeals Town of Stonington, in denying plaintiff's application for a variance.
For reasons hereinafter stated the decision of the Board is affirmed.
Plaintiff has instituted this appeal under the provisions of C.G.S. § 8-8b. Section 8-8b limits appeals to persons aggrieved by the decision appealed from. Pleading and proof of aggrievement as essential to establish subject matter jurisdiction over an appeal. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996). The question of aggrievement is essentially one of standing. McNally v. Zoning Commission, 225 Conn. 1, 5-6 (1993).
The evidence indicates, that at the time plaintiff filed her application for a variance with the defendant Board, she was under contract to purchase the subject property. The evidence further indicates that on or about October 4, 2002, plaintiff acquired title to the subject property by warranty deed from Craig L. Smith. From such evidence, it is found that plaintiff is aggrieved and has standing to prosecute this appeal.
No questions have been raised as to any jurisdictional issues. All notices required to have been published appeared to have been published in accordance with the law and no jurisdictional defects have been noted in any stage of the proceedings.
The record indicates that on or about July 12, 2002, plaintiff applied to the defendant Board for a variance from the strict application of the zoning regulations to real property at 9 Beach Drive in the Town of Stonington. At the time of the application, the property was owned by Craig L. Smith. Plaintiff applied for the variance as a contract purchaser.
The property was located in the R.M. 15 Zone. It was described as lot 3 on a "plan of property in N. Edward Dubois and Elsie Dubois at Masons' Island, Mystic, Connecticut." The plan was dated March 19, 1954 and filed at that time in the land records in the Town of Stonington. This was before the adoption of subdivision regulations and the establishment of a planning and zoning commission by the town. The Dubois plan had never been approved by any such commission.
The lot was 75 feet in width and 100 feet in depth with frontage on Beach Drive. It was not in compliance with the current zoning regulations in effect on July 12, 2002.
In her application to the Board, plaintiff sought a variance in the application of § 5.1.1, bulk requirements of the regulations. This section required that lots in the R.M. 15 Zone be 15,000 square feet in area, have frontage of 100 feet and a set back from the street of 30 feet. Plaintiff sought to vary the regulation to allow a lot size of 7,500 square feet, a reduction of the frontage required to 75 feet and a reduction of the front set back line to 24 feet.
The purpose of the variance request was to enable plaintiff to construct a single-family residence on the property.
The application was scheduled for a public hearing to be held August 13, 2002. At plaintiff's request, the public hearing was rescheduled for September 10, 2002.
A public hearing was held on September 10, 2002. At the hearing plaintiff was heard and presented evidence in support of the variance. Parties in opposition were also heard.
At the conclusion of the public hearing, the Board considered the application. After discussion, three members of the Board voted to approve the application and two voted to deny the application. C.G.S. § 8-7 and § 8.10.7 of the Zoning Regulations required for approval of a variance, the affirmative concurring vote of four members of the Board. Since the approval was less than that required by law, the application was in effect denied. The Board gave as a reason for the denial, that the hardship was self-imposed as it was created by the two and one split of the three lot parcel at the original sale to Lynwood Smith.
Within the time allowed by statute, plaintiff instituted the present appeal.
In deciding appeals such as we have here, the court operates under certain restrictions. The court is not at liberty to substitute its judgment for that of the administrative tribunal. Hall v. Planning Zoning Board, 153 Conn. 574, 577 (1966). The court may only determine whether the Board acted arbitrarily or in abuse of its discretion. Raybestos-Manhattan, Inc. v. Planning Zoning Board, 186 Conn. 466, 470 (1982). The decision of defendant Board may be reversed only if it is found that the Board's action was illegal, arbitrary or in abuse of its discretion. Cameo Park Home, Inc. v. Planning Zoning Commission, 150 Conn. 672, 677 (1963).
The plaintiffs have the burden of proving that defendant Board acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988).
Plaintiff has appealed the action of the Board in denying its application for a variance. A variance constitutes permission for a party to use their property in a manner otherwise prohibited by the zoning regulations. For this reason, the granting of a variance is generally reserved for unusual or exceptional circumstances. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995).
The Board derives its authority to vary the application of the zoning regulations from the provisions of General Statutes § 8-6 (3) and § 8.10 of the Stonington Zoning Regulations.
Variances are, in a sense, the "antitheses of zoning." Zoning is regulation by the municipality of the use of land within the community, and the buildings and structures which may be located thereon, in accordance with a general plan. The General Statutes authorize such regulation of land and the use of buildings. Such regulations, however, must be applied uniformly throughout each district. A variance disrupts the conformity and constitutes permission to act in a manner that is otherwise prohibited by the zoning regulations. Simko v. Ervin, 234 Conn. 498, 505-06 (1995).
The two basic conditions which must be met for the granting of a variance are (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. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368 (1988).
An applicant for a variance must show that, because of some peculiar characteristic of its property, the strict application of the zoning regulations produces an unusual hardship as opposed to the general import which the regulations have on other properties in the zone. Dolan v. Zoning Board of Appeals, 156 Conn. 426, 430 (1968).
Where a disadvantageous situation arises from a voluntary act on the part of the applicant, it cannot be considered a hardship and the Board does not have authority to grant a variance Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39 (1982). The Board is under no duty to extricate an applicant from a self-created hardship. Pollard v. Zoning Board of Appeals, supra, 44. Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship. Krejpico v. Zoning Board of Appeals, 152 Conn. 657, 662 (1965).
Where, as here, the Board has stated the reasons for its action, "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." Bloom v. Zoning Board of Appeals, supra, 233 Conn. 208.
In her brief, plaintiff has raised two issues which must be addressed. The first issue to be considered is whether the chairman of the defendant Board, Edward T. Sullivan, should have disqualified himself from the matter under the provisions of C.G.S. § 8-11. The second issue is whether the Board of Appeals could find that plaintiff's hardship was self-created.
The court is not bound to consider any claim of law not briefed. Shaw v. Planning Commission, 5 Conn. App. 520, 525 (1985); Moulton Bothers, Inc. v. Lemieux, 74 Conn. App. 357, 363 (2002).
Plaintiff claims that the chairman of the defendant Board, Edward T. Sullivan, should have disqualified himself from hearing plaintiff's appeal for a variance because of the provisions of C.G.S. § 8-11. This statute provides in pertinent part that:
. . . No member of any zoning commission or board and no member of any zoning board of appeals shall participate in the hearing or decision of the board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense . . .
On this issue, the record has been supplemented by the deposition of Edward T. Sullivan taken January 16, 2003. Mr. Sullivan was the chairman of the Zoning Board of Appeals and participated in that capacity at the hearing of plaintiff's application for a variance. In his capacity of chairman, Mr. Sullivan actively participated in the hearing and his vote to deny plaintiff's application was crucial because of the provisions of C.G.S. § 8-7 and § 8.10.7 of the Zoning Regulations.
There is no claim that Mr. Sullivan had a financial interest in the matter but it is claimed that he had a personal interest because of his relationship with James O. Buckley and his wife Rosemary Buckley. Mr. Sullivan has been a resident of the Town of Stonington since 1947. The Buckleys have been his next-door neighbor during this entire period.
Mrs. Buckley is the owner of lots 1 and 2 of the Dubois subdivision. Lot 2 adjoins plaintiff's property, lot 3. Both Mr. and Mrs. Buckley spoke against the granting of the variance at the public hearing.
The claim here is that Mr. Sullivan, because of his relationship to the Buckleys, had a personal interest in the variance requested. A personal interest, as used in § 8-11 has been defined as: "A personal bias or prejudice which imperils the openmindedness and sense of fairness which a zoning official in our state is required to possess." Fletcher v. Planning and Zoning Commission, 158 Conn. 497, 506 (1969). "Neutrality and impartiality of members are essential to the fair and proper operation of . . . (zoning) authority." Id., 507. "The appearance of impropriety created by a public official's participation in a matter in which he has a . . . personal interest is sufficient to require disqualification." Nazarko v. Conservation Commission, 50 Conn. App. 548, 552 (1998). "The decision as to whether a particular interest is sufficient to disqualify is necessarily a factual one and depends on the circumstances of a particular case." Id.
The principal factual evidence on the issue of disqualification is found in Mr. Sullivan's deposition.
In the deposition, Mr. Sullivan testified that he was familiar with the statute, § 8-11, and had recused himself in the past when he perceived that a conflict existed.
Mr. Sullivan testified that he has known the Buckleys since he moved to the town in 1979 and that he met them during the process of moving in. His relationship with the Buckleys was characterized as neighborly. Mr. Sullivan denied that they were personal friends. He stated that he had never had meals with the Buckleys or cookouts. He never attended any theatrical or sporting event with them or received any invitations from them to such events or any other events. He admitted to being a member of the same church as the Buckleys and that he and his wife went to Mr. Buckley's mother's wake and funeral. It appears that Mr. Sullivan was aware of the fact that Mrs. Buckley inherited the Beach Road property. He did not give very much thought to it. He never considered that he had a conflict of interest in the matter.
Mr. Sullivan never had any business or financial dealings with the Buckleys and he never discussed the variance application with them.
Although Mr. Sullivan had been a neighbor of the Buckleys since 1979, he stated that they visited each other's houses only once and that was at the time he moved in. The visits to each home did not exceed forty-five minutes.
The burden of proving that Mr. Sullivan should have been disqualified from hearing the case was on the plaintiff. Furtney v. Zoning Commission, 159 Conn. 585, 595 (1970). Plaintiff has not sustained this burden. The facts and the circumstances of the case do not establish that Mr. Sullivan, because of his tangential relationship with the Buckleys, might have a personal interest in the outcome of the variance application. The fact that the Buckleys were neighbors, in itself, does not rise to the level of the appearance of impropriety. There is no evidence of any other relationship between the parties that will allow a finding that Mr. Sullivan had a personal interest in the matter.
Plaintiff relies on the case of Nazarko v. Conservation Commission, supra, 50 Conn. App. 548, in which the court found that an appearance of impropriety existed. The facts in that case, however, were quite different from the present case. In Nazarko, the official who it was found had the appearance of impropriety was a member of the club which sought the permit and owned a business which would profit from the granting of the application.
Although it is difficult to determine when plaintiff first learned that Mr. Sullivan and the Buckleys were neighbors, certainly if this fact were known at the time of the hearing and plaintiff considered that a conflict of interest existed, this claim should have been raised at that time. Courts look with disfavor on the failure to raise issues when error is claimed until it is too late for the error to be corrected and, thereafter, if the outcome is unsatisfactory, to use such claimed error as grounds for an appeal. Fletcher v. Planning and Zoning Commission, supra. 158 Conn. 508.
It must be concluded that plaintiff has failed to establish that Mr. Sullivan had a personal interest in the variance application or that an appearance of impropriety existed so as to disqualify him from participating in the hearing and decision which is the subject of this appeal.
II.
In effectively denying plaintiff's application for a variance, the Board cited as its reason that the hardship claimed was self created.
The facts underlying the self-created hardship conclusion are undisputed.
As previously noted, the lot which is the subject of this litigation was described as Lot 3 on a layout of lots shown as "plan of property in N. Edward Dubois and Elsie Dubois at Masons' Island, Mystic, Connecticut" filed in the land records of the Town of Stonington in 1954. This was prior to the adoption of zoning regulations on July 20, 1961. It was also prior to the enactment of subdivision regulations.
Lots 1, 2 and 3 on the Dubois map were acquired by Orville M. and Claire E. Sorenson by deed dated May 2, 1960. On August 7, 1969, after the enactment of zoning regulations, the Sorensons conveyed Lots 1 and 2 to Alfred W. and Mary N. Rowland. At the time of the conveyance, the individual lots were not in compliance with the existing zoning regulations. Lots 1 and 2 together, however, were in compliance.
The conveyance of Lots 1 and 2 while retaining Lot 3 by the Sorensons constitute the self-created hardship found by the Board. Haines v. Zoning Board of Appeals, 26 Conn. App. 187, 193 (1991).
Lot 3 was conveyed by the Sorensons to Lynwood V. and Agnes M. Smith. Craig L. Smith acquired Lot 3 by deed on October 12, 1985. Plaintiff applied for the variance as a contract purchaser from Mr. Smith and subsequently acquired title to the lot. It is undisputed that Lot 3 when it was separated from Lots 1 and 2 on August 1, 1969 did not conform to the applicable bulk regulations in force at the time. Plaintiff claims that the separation of Lot 3 was not illegal because of the provisions of § 5.21 of the regulations in force at the time of conveyance. This regulation appears to have been drafted to cover certain smaller lots which would not be in compliance with the new regulations. These lots could be used for single-family detached residence provided they met the reduced requirements of § 3.12 or the table included in § 5.21. It appears that Lot 3 could meet these reduced requirements. Section 5.21 provides in part:
5.21 Small Lots for Single-Family Detached Residences. A lot either owned individually and separately and separated from any adjoining tract of land on the effective date of these regulations or located in and part of a subdivision plan which has been given final approval by the Planning and Zoning Commission prior to such date, which has a total area or lot frontage less than the minimum required in the Bulk Table, maybe used for a single-family detached residence, provided such lot shall conform to the Use Regulations and all the other Bulk Regulations applicable to a particular lot size as stated in § 3.12 or the Table below.
The first prerequisite for a lot to qualify under § 5.21 was that the lot be `either owned individually or separately and separated from any adjoining tract of land on the effective date of these regulations." On the effective date of the regulations, Lot 3 was not owned individually or separately from adjoining lots. It was owned by the Sorensons together with the adjoining Lots 2 and 1.
The second requirement for § 5.21 treatment that the lot be part of a subdivision given approval by the Planning Zoning Commission cannot apply to Lot 3 since the Dubois subdivision was never approved by the Commission.
Plaintiff seeks to impose on § 5.21 an ambiguity that does not exist. It is claimed that the phrase ". . . a lot owned individually and separated from any adjoining tract of land on the effective date of these regulations . . ." does not clearly establish the regulations effect on subdivision plans filed prior to the effective date of the zoning regulations.
The plain language of § 5.21 does, however, comport with the obvious intent of the regulation. The regulation appears to have been enacted to protect the owners of smaller lots which could not comply with the new regulations. It was not designed to allow parties who owned contiguous parcels of land which together were in compliance with the regulations to create a lot or lots which were not in compliance with the regulations.
Considering the provisions of § 5.21, together with the definition of "lot" found in § 1.22 of the original zoning regulations does not alter this situation.
In denying the variance, the Board rejected plaintiff's interpretation of § 5.21. It I cannot be found that in so doing the Board abused the discretion vested in it.
Plaintiff's attorney, in preparation for the hearing on the variance request, did considerable research into the history of building activity and zoning permits in the area. This information was presented to the Board at the public hearing. It was argued that this research showed that during the 1960s and later, the authorities having responsibility for enforcement of the zoning regulations interpreted the regulations so that the individual lots in the Dubois layout were considered as lots conforming to the zoning regulations then in effect. There was testimony that property owners were led to believe that individual lots in the Dubois subdivision were buildable lots. There was also some testimony to the contrary.
It was argued by plaintiff that this change in the interpretation of the regulations came well after the conveyance by Sorenson in 1969 and that the Board's conclusion that the hardship was created by the Sorensons' conveyance is invalid.
The fact that variances may have been granted or that actions were taken with respect to other properties years ago is not binding on this Board. The situation here is similar to that found in Haines v. Zoning Board of Appeals, supra, 26 Conn. App. 187, cited by both parties. Haines acquired a lot on an unapproved dirt road and sought a variance to build a residence on such lot. At the time, there were seven existing residences on the road. At least one of these residents had secured a variance to allow construction. The zoning board of appeals denied the variance, but on appeal, the trial court reversed the board's decision on the basis of the granting of the prior variance. The appellate court rejected the argument that a prior variance bound the board to grant a second variance. At page 193, the court held that "any hardship the plaintiffs suffered was self created. The answer to zoning board member Mills' query `What's the hardship?' is clear from an examination of the record: There is none. The plaintiffs purchased a parcel of land from a predecessor in title that had been improperly split, without an Oxford planning or zoning approval in 1979. Because the zoning regulations were clearly in effect at the time of the purchase, the plaintiffs purchased a piece of property that clearly was a nonconformity created by the predecessor in title and clearly did not qualify for residential construction. `Where the applicant or his predecessor creates a nonconformity, the board lacks power to grant a variance.' Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 300, 429 A.2d 883 (1980); Garibaldi v. Zoning Board of Appeals, supra, 239."
Considering all of the record, it cannot be found that in denying plaintiff's request for a variance, the Board acted illegally, arbitrarily or in abuse of its discretion.
III.
In its brief, the Board claims that plaintiff's application for a variance was properly denied because a prior application seeking the same variance had been denied by the Board. "[A] zoning board of appeals cannot grant a variance, when a similar, prior variance application was denied unless there is a material change in circumstances where other considerations affecting the merits of the decision have intervened and no vested rights are effected." R. Fuller, 9 Connecticut Practice Series: Land and Use Law and Practice (1993), § 22.11, p. 501-02.
A prior application by plaintiff for a variance on the same lot was the subject of questions asked of Mr. Sullivan during his deposition. A public hearing was held on this prior application on March 12, 2002, and the variance was denied. In questioning Mr. Sullivan, plaintiff's attorney described the second application as "the same, basically similar" to the first application. The second application involved a reduction in the size and area of the proposed building and two items of variance were eliminated. In their deliberations prior to voting on the variance, the Board discussed the prior application and considered whether it differed from the application then being considered. The minutes did not indicate that the Board reached any conclusion on this issue. The similarity with the prior denied application was not cited by the Board as a reason for its denying the second application. It cannot then be found that the denial of the first application was a factor in the decision of the Board.
IV.
The grounds assigned by the Board for the denial of the variance were reasonably supported by the record and are pertinent to the considerations which the Board was required to apply. In denying the variance, the Board did not act illegally, arbitrarily or in abuse of its discretion.
Accordingly, the decision of the Board denying the variance is sustained.
Joseph J. Purtill Judge Trial Referee