Opinion
No. CV05-4015632S
November 29, 2006
MEMORANDUM OF DECISION
This is an appeal from the decision of the Branford Zoning Board of Appeals (the Board) denying the plaintiff's application for two variances from compliance with the requirements of the zoning regulations of the Town of Branford (the Regulations).
BACKGROUND
The plaintiff, Bertha Panaroni, applied for side yard and rear yard variances from Section 25.7.4 of the Regulations to benefit real property located in Zone IG-2 and known as 44 Tabor Drive (the Property). Specifically, the plaintiff requested variances which would permit the expansion of the area for the outside storage of portable toilets on the Property from thirty to ten feet from the side yard property line and from fifty to twenty-five feet from the rear yard property line. In her application, the plaintiff claimed that the hardship created by the strict application of the Regulations is that the size and shape of the property is such that the strict adheerence (sic) to the regulations would preclude the practical use of the property" [Return of Record (ROR) Ex.6].
The Board held a public hearing on the plaintiff's application on August 23, 2005. At the hearing, the Board received testimony on behalf of the plaintiff in support of the application. The Board also heard testimony in opposition to the application from neighbors and the Branford Town Planner (ROR Ex. 4). Immediately following the public hearing, the Board held a meeting at which a quorum was present and voted unanimously to deny the Plaintiff's application without prejudice. Notice of the Board's decision was published on August 31, 2005 in the Branford Review and the plaintiff brought this action pursuant to Connecticut General Statutes § 8-8.
At the hearing on this appeal, the plaintiff's counsel moved to substitute Peter Panaroni as the plaintiff in lieu of Bertha Panaroni and offered into evidence a certified copy of a Quit Claim Deed fron Bertha B. Panaroni to her son Peter J. Panaroni, Jr. dated August 24, 2005. The deed was recorded in the Branford Land Records on December 28, 2005 as evidenced by the Town Clerk's "received for record" stamp. The explanation offered by the plaintiff's counsel for the delay in recording the deed was that it "was being held in escrow for estate planning reasons." No written escrow agreement was submitted and no testimony concerning the terms or conditions of the escrow arrangement was offered by the plaintiff.
I AGGRIEVEMENT
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). "[T]he party alleging aggrievement bears the burden of proving it." Harris v. Zoning Commission, 259 Conn. 402, 410, 788 A.2d 1239 (2002). "Aggrievement presents a question of fact for the trial court." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665. A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." 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. (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665. "Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case.
Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665. "In zoning appeals, [t]his court has not set forth a precise standard that defines the required interest a nonowner must possess in order to become an aggrieved party . . . Rather, we have held that the extent to which a party with an interest in the property other than that of an owner is aggrieved depends upon the circumstances of each case, because the concept of standing is a practical and functional one designed to ensure that only those parties with a substantial and legitimate interest can appeal an order." (Internal quotation marks omitted.) Id., 666.
A
First, it is necessary to address the issue of whether the plaintiff, Bertha Panaroni who may have transferred title to the Property to a third party prior to commencing this appeal, was classically aggrieved at the time the appeal was commenced.
"[W]here the issue of title or ownership is directly involved, the proper way to prove title is by the production of the original documents or certified copies from the record . . . Moreover, when ownership has once attached, it is presumed to have continued until it has been shown to have ceased." (Citation omitted; internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 703.
In her brief, Bertha Panaroni the plaintiff, states that she conveyed the subject property to her son in December 2005, after the commencement of the appeal. Nevertheless, during the trial, it was disclosed that she executed the quitclaim deed on August 24, 2005, and placed it "in escrow." Consequently, the question arises whether, at the time that Bertha Panaroni commenced the appeal, she was the owner of the property and, therefore, was aggrieved by the Board's decision.
For a conveyance to be valid, delivery of a deed must be coupled with intent by the grantor to pass title. Young v. Young, 78 Conn.App. 394, 398 n. 5, 827 A.2d 722 (2003); McCook v. Coutu, 31 Conn.App. 696, 701, 626 A.2d 1321, cert. denied, 227 Conn. 911, 632 A.2d 692 (1993). "The delivery of a deed includes not only an act by which the grantor parts with the possession of it, but also a concurring intent on the part of the grantor that it shall vest the title in the grantee. Both elements involve questions of fact for the trier of fact." (Internal quotation marks omitted.) Young v. Young, supra, 78 Conn.App. 398 n. 5. "Without delivery, the mere execution of a deed does not effectuate a transfer of title." Barlow v. Cieplak, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 03 0083469 (August 9, 2004, Robinson, J.). "Delivery of possession is the foundation of a transfer . . . Without delivery and acceptance no conveyance of real estate is valid." (Citations omitted.) City National Bank v. Morrissey, 97 Conn. 480, 483, 117 A.2d 493 (1922). "It is for the court, as the trier of fact, to determine whether the deed was delivered, conditionally or otherwise, and if delivery occurred, what intent accompanied the delivery of the deed." Barlow v. Cieplak, supra, Superior Court, Docket No. CV 03 0083469.
Where a deed has been placed in escrow and the grantee has failed to satisfy the conditions agreed to for the delivery of the deed to be accomplished, the deed was not delivered to him, and the grantor remains the legal owner of the property. See Young v. Young, 64 Conn.App. 651, 656-57, A.2d 342, cert. denied, 258 Conn. 908, 782 A.2d 1255 (2001)
In Young v. Young, supra, 64 Conn.App. 653-57, where the mother instituted an action to evict her son from the property that she previously conveyed to him by a quitclaim deed, which she gave to the son's attorney to be held in escrow until the condition for delivery was satisfied, Appellate Court affirmed the trial court's conclusion that an escrow agreement existed between the parties and that there had been no delivery of the deed.
In the present case, Bertha Panaroni's claim that she transferred the Property in December 2005, after the commencement of the appeal, along with the assertions that she placed the deed in escrow, rather than delivering it directly to her son and that she, not her son, filed an appeal from the Board's decision, indicate that, at the time the appeal was commenced, she intended to retain control over the Property. Therefore, the court finds that by the execution and delivery of the deed in escrow in August 2005, the plaintiff Bertha Panaroni, did not divest herself of ownership of the Property and accordingly was classically aggrieved as the owner of the Property.
B
Next, the court must consider whether Peter Panaroni, to whom the original plaintiff transferred title after commencing the appeal and whom the plaintiff has moved to substitute as the party plaintiff, has standing to maintain this appeal.
In Fuller v. Planning Zoning Commission, 21 Conn.App. 340, 346-47, 573 A.2d 1222 (1990), the court recognized the trial court's substitution of the buyer as a plaintiff but reversed the trial court's finding that the substituted plaintiff was not aggrieved. This ruling indicates that the question of whether a party may be substituted and the question of whether the substituted party is aggrieved are separate issues.
1 Substitution of Peter Panaroni as the plaintiff
General Statutes § 8-8(p) provides in relevant part: "The appeal shall be considered to be a civil action and, except as otherwise required by this section or the rules of the Superior Court, pleadings may be filed, amended or corrected, and parties may be summoned, substituted or otherwise joined, as provided by the general statutes." Section 8-8 further provides, that the "right of a person to appeal a decision of a board to the Superior Court and the procedure prescribed in this section shall be liberally interpreted in any case where a strict adherence to these provisions would work surprise or injustice." General Statutes § 8-8(p).
It is well settled that "[t]he decision whether to grant a motion for the addition or substitution of a party to legal proceedings rests in the sound discretion of the trial court . . ." (Citations omitted; internal quotation marks omitted.) Middletown Commercial Associates Ltd. Partnership v. Middletown, 42 Conn.App. 426, 443, 680 A.2d 1350, cert. denied 239 Conn. 939, 684 A.2d 711 (1996).
In Moutinho v. Planning Zoning Commission, our Supreme Court recognized, without specifically addressing the issue, the trial court's granting of a motion to substitute a grantee as plaintiff after an appeal was commenced. Moutinho v. Planning Zoning Commission, supra, 278 Conn. 663; see also Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 697-98 (court granted grantee's motion to be substituted as plaintiff after appeal was commenced). In Fuller v. Planning Zoning Commission, supra, 21 Conn.App. 346, where the property owner seeking to be substituted as plaintiff, purchased his lot after the commencement of an appeal challenging the grant of a special exception for a residence across the street, the Appellate Court concluded that "the trial court was well within its discretionary bounds in granting [the new owner's] motion to be substituted as plaintiff."
The plaintiff Bertha Panaroni's motion to substitute Peter Panaroni as the plaintiff in this appeal is granted.
2 Standing of Peter Panaroni
Next, the court must consider whether Peter Panaroni, as substituted plaintiff, has standing to maintain this appeal.
"A difficult question is whether a person who acquires property from the appellant after commencement of the appeal and successfully intervenes as a plaintiff . . . has standing as an aggrieved party to maintain the appeal." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice, (1999) § 32.5, p. 109. In one Superior Court case, where the original plaintiff conveyed the subject property after the appeal was commenced and the transferee moved to join as a party plaintiff, the court denied the motion to join and dismissed the case holding that the original plaintiff lost standing because it no longer owned the property and the grantee did not have standing because it was not an owner at the time the appeal was commenced. Nichols v. Planning Zoning Commission, Superior Court, judicial district of Waterbury, Docket No. 76834 (October 6, 1987, Healey, J.) ( 2 C.S.C.R. 1128). Nevertheless, several appellate level decisions demonstrate a trend away from the overly technical application, in Nichols, of the test for aggrievement, toward allowing a grantee to maintain an appeal commenced by the original owner.
In Fuller v. Planning Zoning Commission, supra, 21 Conn.App. 345, the court found that the substituted plaintiff, who purchased the property after the commencement of the appeal, had standing as a statutorily aggrieved party, despite the fact that he was not aggrieved at the time that the appeal was commenced. Furthermore, the court rejected the commission's contention that aggrievement could not be transferred along with the property. Id. Similarly, in Neumann v. Zoning Board of Appeals, supra, 14 Conn.App. 56 n. 1, the court, finding the buyer of the subject property to be aggrieved, explained: "The applicant for the permit before the commission and the defendant board was [the original plaintiff], who then owned the property in question. After . . . the appeal was filed, [the original plaintiff] transferred the property and his claim in connection therewith to the [third party], and [the court] granted [that party's] motion to be substituted as the plaintiff . . . Under these circumstances, the plaintiff has sustained his interest in the property throughout the course of the appeal, and is aggrieved."
In Quarry Knoll II Corp. v. Planning Zoning Commission, supra, 256 Conn. 697-98, the original plaintiff, a real estate developer, transferred title to the property that was the subject of the zoning application and assigned all of its rights and interests to another developer during the pendency of the appeal. The Supreme Court granted the transferee's motion to be substituted as the party plaintiff over the defendants' objection that the transferee lacked standing. Id., 697. The court concluded that the trial court properly found that the original plaintiff was aggrieved by the decision of the commission because the ownership of the property "is presumed to have continued until it has been shown to have ceased. " Id., 703. "In granting [tranferee's] motion to be substituted as the party plaintiff, [the court] necessarily recognized that [the tranferee] had succeeded to all rights, title and interest in the property that the prior plaintiffs had possessed" and, therefore, had standing to maintain the appeal. Id., 705.
In the present case, at the time the plaintiff moved to substitute Peter Panaroni as the plaintiff, Peter Panaroni was the owner of the Property. Moreover, if Bertha Panaroni and Peter Panaroni entered into an oral or written agreement regarding the transfer of title to the Property or the assignment of rights and interests in the Property, Peter Panaroni would be classically aggrieved at the time the appeal was commenced because he would have had a specific and personal interest in the Property. See Moutinho v. Planning Zoning Commission, supra, 278 Conn. 668-69; see also DiBonaventura v. Zoning Board of Appeals, supra, 24 Conn.App. 376-77. Accordingly, Peter Panaroni has standing to maintain this appeal.
"[A] landowner and a nonowner developer need not have a written, legally enforceable agreement when other facts, such as the existence of a credible, oral agreement, establish that the [nonowner] has a specific, personal stake in the property." Moutinho v. Planning Zoning Commission, supra, 278 Conn. 668-69.
II DENIAL WITHOUT PREJUDICE
The court must next consider whether the Board's denial "without prejudice" is a final decision from which an appeal can be taken.
In its brief, the Board argues that the plaintiff is not aggrieved because the Board did not deny the plaintiff's variance application on its merits but rather denied it "without prejudice" pursuant to the "specific request of plaintiff's counsel." Implicit in this argument is the contention that the Board's decision was not a final decision from which an appeal can be taken.
"[T]he notion that a property owner must obtain a decision from a zoning board of appeals prior to seeking review in the Superior Court is well established in our case law requiring the exhaustion of administrative remedies." Grasso v. Zoning Board of Appeals, 69 Conn.App. 230, 241, 794 A.2d 1016 (2002) "[The] right [to appeal] is limited to appeals of final decisions." Fort Trumbull Conservancy, LLC v. Planning Zoning Commission, 266 Conn. 338, 359, 832 A.2d 611 (2003). "The board is disallowed from revisiting [a] prior determination [on the merits] because, if a reversal of that determination was allowed, there would be no finality to the proceeding [and] the result would be subject to change at the whim of members or due to the effect of influence exerted upon them, or other undesirable elements tending to uncertainty and impermanence." (Internal quotation marks omitted.) Grasso v. Zoning Board of Appeals, supra, 69 Conn.App. 245. Generally, "[o]nce the board published notice of the decision, its decision [is] final and [cannot] not be opened." Sharp v. Zoning Board of Appeals, 43 Conn.App. 512, 526, 684 A.2d 713 (1996).
"The effect of a denial of a motion or application `without prejudice' will often prevent that ruling from becoming res judicata upon its merits and leave the matter open for further presentation and consideration in the same or another proceeding. " Varanelli v. Luddy, 130 Conn. 74, 80, 32 A.2d 61 (1943). For these reasons, our courts have criticized the practice of denying land use applications "without prejudice." See Bright v. Zoning Board of Appeals, 149 Conn. 698, 704, 183 A.2d 603 (1962); see also Ferndale Dairy, Inc. v. Zoning Commission of Town of Berlin, 148 Conn. 172, 176, 169 A.2d 268 (1961); and Varanelli v. Luddy, supra, 130 Conn. 80-81.
"Under the doctrine of res judicata, a final judgment, when rendered on the merits, is an absolute bar to a subsequent action . . . between the same parties or those in privity with them, upon the same claim." (Internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 541, 555, 848 A.2d 352 (2004).
The Supreme Court has stated that an order of denial "without prejudice" "should not be made, even, by a court, except in situations where there is some reasonable ground for a conclusion that the issues should not be finally decided on the existing situation; otherwise, the tribunal would have the power of postponing the ultimate determination indefinitely." Bright v. Zoning Board of Appeals, 149 Conn. 698, 704, 183 A.2d 603 (1962). In addition, denial "without prejudice" would permit interested parties to be "unduly harassed and injured through being called upon to contest repeated and frequently recurring agitations pertaining to the same subject matter." (Internal quotation marks omitted.) Id., 705.
The denial of a zoning application "without prejudice" may be considered a final decision for the purposes of appeal under certain circumstances. In Bright v. Zoning Board of Appeals, supra, 149 Conn. 701, the board, after a hearing on the merits, denied the application "without prejudice." The board assigned no reason for denying the application specifically "without prejudice" nor did the record disclose a valid reason for doing so. Id., 705. The court held that the ZBA's denial "without prejudice" was a final decision and that the ZBA was not permitted to revoke its decision "unless there has been a change in conditions or new considerations materially affecting the merits of the subject matter have intervened." Id., 705-06.
In Heithaus v. Planning Zoning Commission, 258 Conn. 205, 206-07, 228, 779 A.2d 750 (2001), where the commission denied the plaintiffs' application "without prejudice" after a hearing on the merits and the trial court sustained the plaintiffs' appeal from that decision, the Supreme Court granted certification for appeal from the trial court's decision. Although neither the trial court nor the Supreme Court addressed the denial "without prejudice" directly, it can be reasonably inferred that both courts considered the commission's denial "without prejudice" to be a final decision from which an appeal could be taken.
Where an application is denied "without prejudice" because of a procedural defect, our courts have allowed applicants to reapply without having to demonstrate "a change in conditions" or an intervention of "new considerations materially affecting the merits of the subject matter." See Iarullo v. Inland Wetland Watercourses Commission, 263 Conn. 572, 577 n. 5, 821 A.2d 734 (2003) (commission allowed applicant to resubmit application after denying first application "without prejudice" because of notice problem); see also Bethlehem Christian Fellowship, Inc. v. Planning Zoning Commission, 73 Conn.App. 442, 446 n. 6, 807 A.2d 1089 (2002) (commission allowed applicant to resubmit application immediately after denying first application "without prejudice" when it discovered that the recording of the hearing was defective).
In the present case, the Board denied the plaintiff's variance application "without prejudice" and published the notice of its decision without an assignment of the reason for the denial. A review of the record reveals that, before entering its order, the board considered the merits of the plaintiff's application.
Although the Board argues in its brief that it denied the application "without prejudice" pursuant to the plaintiff's request, rather than on its merits, the record provides no support for that argument. After the discussion on the merits of the application was closed and before the vote was taken, the plaintiff's counsel addressed the Board, with the following statement: " If you are going to deny it, and you're probably going to deny it, if you could deny it without prejudice so that if we get a signed lease from a new tenant we could bring it back." (Emphasis added.) (ROR, p. 32.) There is no support in the record for the Board's contention that the Board denied the application only because the plaintiff's counsel asked for it. Moreover, even if the plaintiff resubmitted the application, the Board would not necessarily be permitted to revoke its decision even though it was made "without prejudice." See Bright v. Zoning Board of Appeals, supra, 149 Conn. 705. The plaintiff would have had to demonstrate that "there has been a change in conditions or new considerations materially affecting the merits of the subject matter have intervened." Id.
In the present case, a review of the record reveals that the denial "without prejudice" was based on the merits of the application and was a final decision from which an appeal can be taken.
THE APPEAL
Having found aggrievement and subject matter jurisdiction, the court must now consider the merits of the appeal from the Board's denial of the plaintiff's application for variances.
Section 8-8(h) requires that an appeal ". . . shall state the reasons on which it has been predicated . . ."
The plaintiff's complaint alleges that the Board's denial of the plaintiff's application was ". . . illegal, arbitrary and in abuse of the discretion vested in it in that:
a. The use is permitted by Connecticut General Statute and the local zoning regulations;
b. The decision of the defendant Board is not supported by the record;
c. The plaintiff demonstrated sufficient evidence of a legal hardship to be entitled to the variance; and
d. The Town of Branford should be estopped from denying the validity of the use based on the prior actions of the town in approving said use, which action was relied upon by the plaintiff.
e. The Board's decision is arbitrary and capricious.
f. The Town of Branford had already given the plaintiff express permission to use the property in the current manner and has done so for an extended period of time."
The Court interprets the grounds for appeal set forth in the plaintiff's Complaint as claims that the Board's actions were "unreasonable, arbitrary or illegal" while (d) and (f) of the Complaint appear to be redundant claims of governmental estoppel.
STANDARD OF REVIEW
"The Superior Court's scope of review [on appeal from a zoning board's decision to grant or deny a variance] 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 burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 223 Conn. 198, 206, 658 A.2d 559 (1995). The Court may not substitute its judgment for that of the local authority. Frito-Lay, Inc. v. Planning and Zoning Commission, 206 Conn. 554, 572-73 (1988), Raybestos-Manhattan, Inc. v. Planning and Zoning Commission of the Town of Trumbull, 186 Conn. 466, 469 (1982).
When the zoning body has made known on the record the reasons for its actions, "the reviewing court ought only to determine whether the assigned grounds are reasonably supported by the record or whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." Fedorich v. Zoning Board Of Appeals, 178 Conn. 610, 613 (1979), quoting First Hartford Realty Corporation v. Plan and Zoning Commission, 165 Conn. 533, 543 (1973). Furthermore, where the zoning board fails to give reasons for denying a variance, or gives inadequate reasons for doing so, the trial court must review the record to determine whether a valid basis exists for the action taken. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369 (1988); Stankiewicz v. Zoning Board of Appeals, 211 Conn. 76 (1989). In either case, the Court must focus on the evidence before the board that supports, rather than contradicts, the board's decision. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 86 (1983).
Moreover, the Court must sustain the board's action if any reason, either stated by the board or discerned from the record, is sufficient to support the decision. Primerica v. Planning and Zoning Commission, 211 Conn. 85 (1989); Burnham v. Planning and Zoning Commission, 189 Conn. 261, 265 (1983). If the record indicates that the board reasonably exercised its judgment following a hearing, the Court must be cautious about disturbing the board's decision. Raybestos-Manhattan, Inc. v. Zoning Commission, supra at 469.
The combined transcript of the public hearing and Board meeting consists of 34 pages. A substantial portion of the transcript reflects discussion of complaints of offensive odors and alleged land use and environmental violations arising from the business operations (storage of portable toilets) conducted on the Property by the sole third-party tenant. It is important to note that although much of the testimony and discussion in the record was devoted to these collateral issues, the scope of review by this court is to determine whether the Board, in rendering its decision, acted ". . . fairly or with proper motives or upon valid reasons . . ." (internal quotation marks omitted) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995).
ESTOPPEL
The plaintiff claims that the Town of Branford should be estopped from "denying the validity of the use" of the property based upon the town's "prior actions."
"In special circumstances, a municipality may be estopped from enforcing its zoning regulations . . . In municipal zoning cases, however, estoppel may be invoked (1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations . . . Moreover, it is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge . . .
To summarize, in order for a court to invoke municipal estoppel, the aggrieved party must establish that: (1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief; (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents." (Citations omitted, internal quotation marks omitted.) Bayer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 246-47, 662 A.2d 1179 (1995).
The plaintiff has mistakenly introduced the concept of equitable defense into this appeal. Although the plaintiff at the hearing made reference to a site plan approval granted by the Town in 1983, which the plaintiff argued permitted the use of the Property for the storage of portable toilets, the plaintiff apparently attempted to make a vague argument that the earlier approval eliminated the applicability of side yard and set back regulations to the Property. The doctrine of municipal estoppel may be asserted in the defense of a enforcement action by a municipal body under certain circumstances, not as the grounds for appeal from the denial of a variance. The standard of review by this court in this action is to determine the validity of the Board's denial of the plaintiff's application for variances based upon the plaintiff's failure to demonstrate the legally required showing of undue hardship.
UNDUE HARDSHIP
With respect to the plaintiff's burden to show that the strict application of the Regulations would result in the required statutory finding of "exceptional difficulty or undue hardship," at the hearing, the plaintiff's attorney stated that the hardship claimed is predicated on the shape of the Property, which was described as "odd shaped" rather than a "perfect rectangle" [ROR, Ex.4, pgs. 3-4]. In response to questions from members of the Board, the plaintiff's attorney indicated that if the Board granted the variances, the storage area on the Property would be increased from 19,496 square feet to 28,249 square feet and the plaintiff could "attract a better tenant than is there or a better purchaser for the property." [ROR, Ex. 4, pg. 4]. With the exception of the foregoing testimony by the plaintiff's attorney, a review of the entire record shows that little or no additional evidence of any exceptional difficulty or undue hardship was submitted to the Board.
The plaintiff argues in its brief that the Board "abused its discretion in failing to grant the variances." In support of this claim, the plaintiff further asserts that portions of the record show that ". . . the Board felt inclined to deny the variance because they either did not care for the owner of the property and/or did not care for the `type' of outdoor storage on the property" and that ". . . the judgment of the Board was clouded by their personal feelings toward the applicant."
Although the Board's discussion on the record frequently included references to complaints about the use of the property for the storage of portable toilets, which was claimed by the town planner to be illegal, to pending cease and desist orders and alleged land use violations, a review of the entire record reveals that the Board, in reaching its decision, did not lose sight of its obligation to determine whether the applicant demonstrated sufficient hardship to warrant the granting of the variances:
Fisher: We have to make this decision on whether . . . because the hardship stems from the land. Not the property, you know, not a financial circumstance . . .
Brown: I understand.
Fisher: The property has . . . either has a hardship or it doesn't . . .
Brown: I agree.
Fisher: If we believe the property suffers from a hardship then there's merit to granting a variance and if we believe there's no particular hardship associated with that property, then they don't get the variance." (ROR 11).
Brown: Larry Fisher makes the correct point. The bottom line is we're here to determine whether or not there's a hardship or not. It's as simple as that, right?
Harrington: That's true. (ROR 19).
In the absence of a formal collective statement of reasons for a board's decision, it is not appropriate for a reviewing court to attempt to glean the reasons for the decision from the remarks of individual commissioners, but it is well established that, in such absence, the court is required to search the entire record to find the basis for the commission's decision. Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 600 A.2d 757 (1991).
Although a review of the record shows that the evidence presented at the hearing included a description of the subject property as being "odd-shaped" so as to create a hardship (ROR 3-4), the record shows that the plaintiff also introduced evidence that the property had been leased for many years in its present state and that if the variances were granted allowing for even greater storage the plaintiff would be able to get ". . . a better tenant than is there [now] or a better purchaser for the property." (ROR 4.) It is well established that the financial loss or the potential of financial advantage to the applicant is not the proper basis for a variance. Garibaldi v. Zoning Board of Appeals of City of Norwalk, 163 Conn. 235, 239, 303 A.2d 743, 745 (1972), Carlson v. Zoning Board of Appeals, 158 Conn. 86, 89, 255 A.2d 841, and cases cited.
The concern that any hardship was only financial was recognized by members of the Board in their deliberations.
Harrington: . . . there may be a hardship in terms of the shape of the lot, but the result of it is . . . it's an economic one (ROR 32).
Brown: . . . and I've seen no demonstration that there isn't a commercial operation that can't go in there with the existing lawful amount of storage. (ROR 32.)
Hardship may not be financial or economic unless the regulations result in practical confiscation of the property. Berlani v. Zoning Board of Appeals, 160 Conn. 171 (1970).
Upon a search of the entire record, the court finds that the Board's actions were neither illegal, arbitrary nor an abuse of its discretion and that there was sufficient evidence to support the Board's decision to deny the plaintiff's application due to the failure of the plaintiff to show undue hardship. Accordingly, the plaintiff's appeal is dismissed.