Opinion
No. CV 09 4011571S
August 6, 2010
MEMORANDUM OF DECISION
FACTS AND PROCEDURAL HISTORY
The plaintiff, Frank Rogers, appeals from a decision of the defendant, the Orange zoning board of appeals (ZBA), upholding orders issued by the town's zoning enforcement officer (ZEO).
The plaintiff is the owner of certain real property situated at 158 Ohman Avenue in the town of Orange. The 158 Ohman Avenue property has 13,068 square feet and is nonconforming because it is in a zone requiring 60,000 square feet. On the lot is a single-family home with 855 square feet. In 2007, the ZBA granted a variance to permit the plaintiff to add a family room. The variance application included a site plan showing that the proposed family room would be twenty-two by twenty-two square feet with one and one-half stories and a maximum height of fifteen feet. With the additional 484 square foot addition, the resulting home would have a total of 1,339 square feet. The approval letter included and confirmed this use and these dimensions.
On October 20, 2008, the ZEO issued orders that the plaintiff cease and desist further construction on the 158 Ohman Avenue and required the plaintiff to dismantle and restore the dwelling because the addition being constructed was not in compliance with the previously approved variance. The ZBA considered the appeal at their meeting on April 6, 2009. After noting concerns that the "house exceeds the foundation that was poured," that the "board approved specific plans and that any modifications must come back to the board," that an applicant "cannot decide to add square footage without a second variance approval" and that the "addition was to be a one-story structure to be used as a family room," it ruled that the ZEO properly issued these orders. The plaintiff has appealed.
SCOPE OF REVIEW
The ZBA is authorized by the Connecticut General Statutes and the zoning regulations of Orange to hear and decide appeals from a decision of its ZEO. The scope of its review is limited and its role is to review the record to determine whether the zoning board acted properly in the exercise of its functions, and not to substitute its judgment for the judgment of the zoning authority. See DeMaria v. Planning Zoning Commission, 159 Conn. 534, 540, 271 A.2d 105 (1970). Zoning authorities are afforded great deference, and they are to be overruled only "when it is found that they have not acted fairly, with proper motives, and upon valid reasons." McMahon v. Board of Zoning Appeals, 140 Conn. 433, 438, 101 A.2d 284 (1953); Mallory v. West Hartford, 138 Conn. 497, 505, 86 A.2d 668 (1952). "It is only where the local zoning authority has acted arbitrarily or illegally and thus abused the discretion vested in it that the courts can grant relief on appeal." Timber Trails Assn. v. Planning Zoning Commission, 99 Conn.App. 768, 783, 916 A.2d 99 (2007).
In its appeal, the plaintiff raises three issues: (1) The addition complied with previously issued variances; (2) The vertical expansion did not increase the footprint or nonconformity; (3) The building department signed off on the plans.
AGGRIEVEMENT
"[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.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). "Aggrievement is an issue of fact." (Internal quotation marks omitted.) Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991). An owner of the subject property is aggrieved and, therefore, entitled to bring an appeal. See Id.
PREVIOUSLY ISSUED VARIANCES
"Our Supreme Court, in determining the use of property that a variance allows, has considered not only the language of the variance certificate, but also the specific use of the property proposed by the applicant, as set forth in the variance application . . . The proposition that the scope of a variance is determined by examining the specific use proposed in the variance application and approved by the zoning board of appeals is a necessary corollary of the limited nature of variances . . . Because a variance affords relief from the literal enforcement of a zoning ordinance, it will be strictly construed to limit relief to the minimum variance which is sufficient to relieve the hardship." L G Associates, Inc. v. Zoning Board of Appeals, 40 Conn.App. 784, 787-88, 673 A.2d 1146 (1996). "For this reason, courts and zoning authorities are fully justified in considering specific representations made in the variance application process." Antara v. Madison Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. CV 08 4030519 (May 14, 2009, Blue, J.) ( 47 Conn. L. Rptr. 857, 860).
In this case, the Certificate of Variance Approval for Petition #1671 granted permission to construct an addition to an existing dwelling for family room usage and noted the sections of the regulations impacted. The approval was based upon a plan submitted by the plaintiff, dated April 18, 2006, which showed the dimensions of the proposed addition. It was to be 22x22 feet with a maximum of 1 1/2 stories and fifteen foot height. Contrary to the plaintiff's position, the record does not support the claim that the construction was in accordance with the application, the submitted plans and the previously issued variances.
Certificate of Approval for Petition #1671
OWNERS: Frank W. Rogers. DESCRIPTION OF LAND: 158 Ohman Avenue; Located on the north side of the Ohman Avenue. North 130.52'; East 108.91'; South 120'; West 110.64'. NATURE OF VARIANCE: To construct an addition to an existing dwelling for family room usage. REGULATION VARIANCE: Variances of Section 383-30 A, Setback from Street line; and Section 383-30 B Setback from Rear Property Line were approved. Addition to encroach no closer than 46' to Street line and 41.7' to rear property line. VARIANCE MUST BE ACTED UPON WITHIN ONE (1) YEAR OR IT IS NOT VALID. Certified by the Board of Zoning Appeals. Noah Eisenhandler, Chairman [signed]. Dated: January 9, 2007.
VERTICAL EXPANSION
The plaintiff also claims that the addition and vertical expansion of the dormer neither increased the footprint of the building nor increased the structure's nonconformity. The granted variances did not, however, indicate approval of such a two-story addition with a great room, bathroom and two bedrooms on two floors.
"Generally, it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court [has] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal." Wood v. Zoning Board of Appeals, 258 Conn. 691, 697, 784 A.2d 354 (2001).
In Munroe v. Zoning Board of Appeals, 75 Conn.App. 796, 797 (2003), the Appellate Court found that it was necessary to interpret the local regulation to determine if a variance was required to "expand vertically an existing, nonconforming structure." Id., 802. The court held that it was the function of the ZBA to make the initial determination, but that the question was one of law over which the Appellate Court had plenary review. Id., 803. In Munroe, the Branford regulations being reviewed were identical to these Orange regulations and the Appellate Court determined that: "The relevant question is whether the addition of a second story to Simjiam's garage, which does not enlarge the existing ground level footprint, would be an extension, enlargement, reconstruction or structural alteration that increases the nonconformity." Id., 805. The court concluded that: "A structure alteration exists if a building would be changed into a different structure . . . We conclude that the addition of a second story is a structural alteration because the addition would convert the garage into a substantially different building." (Citation omitted.) Id., 807.
With regard to the vertical expansion, the Appellate Court stated in Munroe that: "A vertical extension of a building by adding a second story can change and affect the amount of air or light between buildings and may detract from the aesthetic value of a neighborhood. The addition of a second story is not a negligible or cosmetic change from the original nature of the nonconformity. The bulk of the building has been increased in quantity and dimension, thereby intensifying the conformity. The second story provides a significant additional amount of enclosed space within the confines of the nonconforming footprint, causing a substantial increase in the nonconformity." Id., 810-11. The Appellate Court ruled that the zoning enforcement officer should not have issued a certificate allowing the vertical expansion without a variance. Id., 811.
Similarly, in the present case, it was for the ZBA to consider the plaintiff's vertical expansion, done without a variance permitting the same, to see if it was permitted by the regulations of the town of Orange. This is exactly what they did. They upheld the decision of the ZEO and determined that the vertical expansion undertaken by the plaintiff required approval by the ZBA and was not permitted without a variance. This decision was within the prescribed limits and consistent with the exercise of its legal discretion, and is in accord with the decision in Munroe v. Zoning Board of Appeals, supra, 75 Conn.App. 811.
BUILDING OFFICIAL SIGNED OFF ON PLANS
The plaintiff also claims that the ZEO must be estopped from issuing the orders to cease and desist and to dismantle work "because the Town of Orange issued a building permit and/or approved the addition." The plaintiff fails to provide any authority for this proposition. Our Supreme Court, in Bloom v. Zoning Board of Appeals, 233 Conn. 198, 199, 658 A.2d 559 (1995), stated that an owner's reliance on a building permit does not create a legal hardship.
A building official does not have the power to vary zoning regulations. In Bloom v. Zoning Board of Appeals, supra, 233 Conn. 199, the Supreme Court considered a situation where the only evidence of hardship that the owners presented to the board consisted of their reliance on an improperly granted building permit. "[T]he owners would not have been entitled to a variance before the improvements were made pursuant to the improperly granted building permit . . . Therefore, the only existent hardship resulted exclusively from the owners' reliance on the improperly granted building permit. We have never held that such an administrative error creates a legal hardship." Id., 210-11. Accordingly, the court determined that the owners were not entitled to the variance. Id., 211.
The requirements for the application of municipal estoppel were addressed in Cortese v. Planning Zoning Board of Appeals, 274 Conn. 411, 413, 876 A.2d 540 (2005). "[I]n 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 . . . Furthermore, because municipal estoppel should be invoked only with great caution, our case law clearly imposes a substantial burden of proof on the party who seeks to do so." (Citations omitted; internal quotation marks omitted.) Id., 418-19.
In the present case, the plaintiff has not met the required burden of proof. The plaintiff did not provide any evidence to show that the ZEO did anything calculated or intended to induce the plaintiff to believe that the building could be constructed in accordance with the permits and to act on that belief. It cannot be found that plaintiff exercised due diligence to ascertain the truth with respect to the building. The problem arose out of the fact that plaintiff consistently, in all applications, stated that the height of the building would be thirty feet. Considering the record and the lack of authority presented, the court cannot find that acted illegally, arbitrarily or in abuse of its discretion in failing overturn the orders of the ZEO the Board. Accordingly, the decisions of the Board are sustained.
For all of the above reasons, the appeal is dismissed.