Opinion
No. CV 08-4038815
June 14, 2010
MEMORANDUM OF DECISION
This decision addresses two consolidated appeals, which both relate to the plaintiff's construction of an accessory building which exceeded the height allowed by the Enfield Zoning Regulations by more than eight feet. In the first appeal, No. CVO8-4038815, the plaintiff appeals from the decision of the Enfield Zoning Board of Appeals ("ZBA") upholding the violation notice issued to the plaintiff by the Zoning Enforcement Officer ("ZEO"). That violation notice stated that the plaintiff's garage exceeded height limitations.
In the second appeal, CV 08-4039966, the plaintiff appeals from the decision of the ZBA denying a variance application which the plaintiff filed simultaneously with his appeal of the ZEO's violation notice. That variance application sought a height variance of 8 feet for the accessory building for which the ZEO issued the violation notice.
Factual and Procedural History
The plaintiff owns approximately seven acres of property located at 29 Weymouth Road in Enfield. (the "Property"). The Property is zoned residential and surrounded by other residences. At the time of the first variance application in April 2007, a 50' by 25' residence, a 10' by 15' shed and a 18' by 35' barn were located on the Property. In April 2007, the plaintiff applied to the ZBA for a variance to add a "garage/workshop."
The plaintiff repeatedly represented to the ZBA that the structure for which he sought a variance was a garage/workshop, which is an accessory building under the Enfield Zoning Regulations. Therefore the only issues before the ZBA at the time of the original variance application were the setback from the road (minimum 35 feet required) and the accessory building setback (behind the rear line of the house). The ZBA discussed the plaintiff's option of locating the garage behind the rear line of the house, but the existence of wetlands on the rear area of the Property was a concern to the ZBA. The plaintiff requested that the garage be built 30 feet off the street, thereby requiring a variance of a 5-foot setback and a variance of the regulation requiring the accessory building to be behind the house.
The ZBA granted the variance. The plaintiff never expressed any interest in building a farm building at any time prior to obtaining the variance. Enfield Zoning Regulation § 3.30.7A provides that an accessory building be no more than 12 feet high. A farm building had no height limitation. However, farm buildings are required to be set back 100 feet from the road. Therefore, if he had applied for a farm building variance, the plaintiff would have also needed a 70-foot setback variance, rather than the 5-foot setback variance for which he applied.
On June 6, 2007, the plaintiff submitted a Zoning Permit Application for a garage/workshop. On June 7, 2007, the ZEO signed the plaintiff's application, which did not provide height dimensions. The original plans submitted by the plaintiff showed 12 foot walls. However, the building permit could not be approved because the Wetlands Agent had not yet signed off on the application.
On November 26, 2007 the plaintiff submitted to the Inland Wetland and Watercourses Agency ("IWWA") a determination of permit need for "construction of a farm building within the regulated area," pursuant to the agricultural exemption contained in § 4.1a of the Wetlands regulations, to house and repair equipment for his property. On December 18, 2007, the IWWA determined that "this is an exempted activity and that a permit is not needed."
On December 31, 2007, the plaintiff submitted his revised plans to the building department stamped "revised December 10th." The building department issued a building permit for a garage with 12 foot walls and a trussed roof.
On May 1, 2008, the Building Department issued a stop work order, citing § R106.4 of the Connecticut State Building Code, which requires that buildings conform to approved construction documents. The order issued because the height of the plaintiff's garage/workshop building walls exceeded the approved 12 feet. At that point the walls were 15' 6" and the roof exceeded 20 feet.
On May 5, 2008 the ZEO issued a violation notice. On June 2, 2008, the plaintiff submitted to the Planning Department an appeal of the ZEO's violation notice and an application for variance of building height restrictions of the garage.
The plaintiff's appeal from the ZEO's decision was heard by the ZBA on June 30, 2008. The ZBA upheld the ZEO's order. On August 25, 2008 the ZBA denied the plaintiffs height variance. These appeals followed.
Discussion of the Law and Ruling Aggrievement
"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." General Statues § 8-8(a)(1).
The burden of proving aggrievement rests with the plaintiff. See Quarry Knoll II Corp. v. Planning and Zoning Commission, 256 Conn. 674, 702, 780 A.2d 1 (2001). In the present appeal, the plaintiff is statutorily aggrieved pursuant to General Statutes § 8-8(a)(1) because he owns the Property that was subject to the ZEO's order and the ZBA's decisions upholding that order and denying the height variance.
First Appeal
An agency's factual and discretionary determinations are to be accorded considerable weight by the courts. Heim v. Zoning Board of Appeals, 289 Conn. 709, 715, 960 A.2d 1018 (2008). The burden of proving that the ZBA acted improperly is on the party seeking to overcome the decision of the ZBA. Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).
In an appeal from the ZEO's order, the ZBA conducts a de novo review. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 88-89, 626 A.2d 744 (1993). The "Board is in the most advantageous position to interpret its own regulations and apply them to the situation before it." Doyen v. Zoning Board of Appeals, 67 Conn.App. 597, 603, 789 A.2d 478, cert. denied, 260 Conn. 901 (2002).
Section 2.30.3 of the Enfield Zoning Regulations defines "accessory building" as "a building . . . in addition to the principal building . . . which is clearly subordinate to an customarily incidental to an located upon the same lot as the principal building." Section 3.30.7(A)(I) provides that "Accessory buildings shall not be more than 12 feet in height."
Section 4.2, Use Requirements, provides a table establishing use requirements for residential districts. Farms are allowed by right in the plaintiff's district. Note 5 of § 4.20.1 provides:
All Farm buildings and uses, other than the growing of crops and raising of livestock, shall meet Special Permit standards . . . Buildings used for the storage of agricultural products are an accessory use . . . Buildings used for the storage of motor vehicles and equipment used in the operation of the farm are permitted as an accessory use.
Section 3.00 of the Enfield Zoning Regulations provide that accessory uses not expressly permitted are prohibited. They do not provide for a "farm related accessory building," as the plaintiff claims they do. Section 4.39.1A of the Zoning Regulations provides that all farm buildings shall be at least 100 feet from the street line.
"Zoning boards of appeal are entrusted with the function of deciding, within prescribed limits and consistent with the exercise of a legal discretion, whether a regulation applies to a given situation, and the manner of its application." Molic v. Zoning Board of Appeals, 18 Conn.App. 159, 165, 556 A.2d 1049 (1989). In discharging this responsibility, a board is endowed with a liberal discretion and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal. Loring v. Planning Zoning Commission, 287 Conn. 746, 777, 950 A.2d 494 (2008).
The ZBA performed a thorough de novo review of the facts and the zoning regulations application to the issues raised by the plaintiff in his appeal from the order of the ZEO. The board members reviewed the Record of the original 2007 variance application and correctly determined that that application had no mention whatsoever of a farm building. Rather, the application specifically stated that the plaintiff was building a garage.
At the hearing on the appeal from the ZEO's order, ZBA member Maurice LaRosa correctly noted:
. . . on the [original variance] application it was actually put that it was going to be a garage/workshop. You [Attorney Fader] stated a few minutes ago that the intention was to always be a farm building. I pulled this quote directly from the application and I quote: `I would like to build a garage/workshop thirty feet back from the street." It said nothing about a farm building and it wasn't this board sitting but it was the ZBA Board. I'm sure they would have made you aware of the fact that if it was going to be a farm building that the variance asked for on the application would have been incorrect because a farm building — correct me if I'm wrong Roger — would have to be 100' from the road and not 35.' The other problem would be if in fact the plan in any way in whole or in part were changed after the ZBA had gotten a copy of it to review for that hearing, then the application would be null and void and you would not be able to take part in a hearing that night. It would have to be resubmitted with a new set of plans. Therefore, they could make an accurate vote and decision on that property. So if, in fact, at some point whether you talked to the Building Department or the Zoning Officer and came up with hey let's make it a farm building, you would have had to change the plans and then resubmit an application and come before the Board because now the whole rule between the farm building as opposed to an accessory building drastically changes. It goes from 35' to 100.' And possibly that Board, had they known you wanted a farm building, which was never stated, they may not have granted the variance. They may have. I don't know. But it was specifically stated and I will quote again: `I would like to build a garage/workshop 30' from the street' never indicating that you wanted to put farm equipment or anything else in this structure."
R. 47, pp. 7-8.
The following exchange between Mr. LaRosa and the plaintiff's attorney, Bruce Fader, occurred at the hearing:
Maurice LaRosa: The issue in front of us right now is the fact that the accessory building of twelve feet in height was approved yet a subsequent farm building of fourteen feet was constructed.
Attorney Bruce Fader: Actually it was even higher than fourteen feet.
Maurice LaRosa: So we went from twelve feet to the existing height which is in violation of the zoning code for what you were approved to build. That's why we're doing this right now.
Attorney Bruce Fader: Correct . . .
Maurice LaRosa: Given the fact that you're saying its twenty feet, the issue in front of us is you built a twenty foot tall building in a location where you were given permission to build a twelve foot tall building.
Attorney Bruce Fader: Yes, correct . . .
R 47, p. 9.
The ZBA upheld the enforcement ruling of the ZEO because the plaintiff had clearly built a building that violated the zoning regulations (exceeded the height limitation of 12 feet for an accessory and was 70 feet closer to the road than the regulations permitted for a farm building) and that had different dimensions from those approved by the ZBA when it granted the original variance and from those approved by the building department when it signed the building permit.
The plaintiff argues that the actions of the ZBA should be estopped under the doctrine of municipal estoppel. He cites West Hartford v. Rechel, 190 Conn. 114, 459 A.2d 1015 (1983), in support of his argument. The facts of Rechel are quite different from those in the present case. In Rechel the Court considered whether a municipality can be estopped from enforcing its zoning regulations because of a longstanding pattern of conduct permitting unauthorized uses of private property. The conduct at issue in Rechel was the issuance by Town officials of rooming house licenses for two properties owned by the defendants. The validity of the use of those properties as rooming houses had been attested to in two separate opinions by Town Counsel and the defendants had purchased the properties in reliance on the existence of the licenses.
In the current case, the argument of municipal estoppel is based solely on the plaintiff's claim that an agent of the Inland Wetlands Commission, Mr. Sadlowski, advised him that farm buildings have no height restriction. This was information which was obvious from the Zoning Regulations. The plaintiff does not claim that Mr., Sadlowski advised him that farm buildings had no setback restrictions. Moreover, Mr. Sadlowski had no authority to sign building permits. The plaintiff had a building permit which was signed by a building official. He does not claim that Mr. Sadlowski told him he did not need the permit, or could ignore it.
The Court in Rechel stated:
This court has recently restated the law of municipal estoppel. In Zoning Commission v. Lescynski, 188 Conn. 724, 731-32, 453 A.2d 1144 (1982), we held that, in special circumstances, a municipality may be estopped from enforcing its zoning regulations. We recognized that estoppel always requires "proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief, and the other party must change its position in reliance on those facts, thereby incurring some injury. Bozzi v. Bozzi, 177 Conn. 232, 242, 413 A.2d 834 (1979); Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 353, 365 A.2d 1093 (1976); Pet Care Products, Inc. v. Barnett, 150 Conn. 42, 53-54, 184 A.2d 797 (1962)." Zoning Commission v. Lescynski, supra, 731. 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. Dupuis v. Submarine Base Credit Union, Inc., supra, 354." Id., 732; see also 8A McQuillin, Municipal Corporations (3d Rev.Ed. 1976) 25.349; 9 McQuillin, supra, 27.56; 3 Rathkopf Law of Zoning and Planning
(4th Ed. 1982) 45.05[l][b].
The Rechel Court emphasized that the town official who misled the defendant was acting within the scope of his authority. Here, Mr. Sadlowski had no authority to issue or change a building permit. Moreover, the permit was not changed, and the plaintiff's counsel admitted before the ZBA that the plaintiff built his garage in violation of the existing permit:
John Rinaldi [ZBA member]: To clarify this, the plans that were used to build the existing building — were those plans approved by the town?
Robert Robbins: The plans that were approved by the Building Department and a permit issued as a result . . . had a wall height of twelve feet. The building — the wall that was built — the carpenter used 14' two by sixes instead of 12' two by sixes like he was supposed to. So to answer your question, no, it was built two feet higher than what the town Building Inspector had approved.
R 47, p. 7
The Court in Rechel further emphasized that one who asserts municipal estoppel must have exercised due diligence. The plaintiff here clearly was aware that he had been issued a building permit, and constructed his garage without complying with the permit.
For the foregoing reasons, the ZBA acted properly in denying the plaintiffs appeal from the ruling of the ZEO and the facts of this case do not warrant the application of the municipal estoppel doctrine. The first appeal is hereby dismissed.
Second Appeal
In reviewing a zoning board's decision to grant or deny a variance the trial court must determine whether "the board's act was not arbitrary, illegal or an abuse of discretion . . . Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing . . . 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." Moon v. Zoning Board of Appeals, 291 Conn. 16, 24, 966 A.2d 722 (2009). In this case the ZBA issued a collective official statement for its action:
The Board determined by upholding the ZEO order the applicant built a structure not conforming to the filed ZBA variance for an accessory structure. The building was not built according to the plans filed. The applicant created the hardship by building the accessory structure higher than the Zoning Regulations allow.
Variance Record 15.
The Court in Moon stated:
It is well established, however, that the granting of a variance must be reserved for unusual or exceptional circumstances . . . An applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone . . . Accordingly, we have interpreted [General Statutes § 8-6(a)(3)] to authorize a zoning board of appeals to grant a variance only when two basic requirements are satisfied: (1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan . . . Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance . . . A mere economic hardship or a hardship that was self-created, however, is insufficient to justify a variance . . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance.
In order to determine whether the board properly granted the subject variance, we must first consider whether the board gave reasons for its action . . . Where a zoning board of appeals does not formally state the reasons for its decision . . . the trial court must search the record for a basis for the board's decision." (Citations omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205-08, 658 A.2d 559 (1995); see also Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294-96, 947 A.2d 944 (2008).
The Enfield Zoning Regulations provide:
Section 11.20
A. No variance shall be granted by the ZBA unless it finds:.
i. That there are special circumstances or conditions, fully described in the findings of the ZBA, applying to the lot or structure for which the variance is sought, which are peculiar to such lot or structure and do not apply generally to lots or structures in the neighborhood and which have not resulted from any willful act of the applicant subsequent to the date of adoption of the regulation from which the variance is sought, whether in violation of the provision herein or not;
ii. That, for reasons fully set forth in the findings of the ZBA, the aforesaid circumstances or conditions are such that the particular application of the provision of these Regulations would deprive the applicant of the reasonable use of the lot or structure, that the granting of the variance is necessary for the reasonable use of the lot or structure, and that the variance a granted by the ZBA is the minimum adjustment necessary to accomplish this purpose;
iii. That the granting of the variance shall be in harmony with the general purposes, and intent of these Regulations and the Town's Plan of Conservation and Development, and shall not be injurious to the neighborhood or otherwise detrimental to the public health, safety and welfare.
The record in this case makes it quite clear that the plaintiff's "hardship" was entirely self-created. Board member Yarum correctly summed up the situation when he stated: "He is coming in as an accessory building and under the regulations an accessory building will not exceed twelve feet in height. Now, he's coming back and saying I've got more than twelve feet in height. I need a variance because I have over-designed this building." Variance Record 7, p. 17.
The court finds that the ZBA's reasons stated for denying the variance were clearly supported by the record and, therefore, the Second Appeal is hereby dismissed.