Opinion
No. CV05-4003103 S
July 10, 2006
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiff, Rural Water Company, Inc. (RWC), appeals from a decision of the defendant, the zoning board of appeals of the town of Ridgefield (ZBA), in which the ZBA denied RWC's requests for variances from the Ridgefield zoning regulations.
II BACKGROUND
On February 24, 2005, Sturges Brothers, Inc., (applicant) with the consent of RWC, applied for variances from the Ridgefield zoning regulations for the premises located at Split Level Road in Ridgefield. (Return of Record [ROR], Exhibit I.B(I).) RWC is the owner of record of the premises, which are located in the RA residential zone. (ROR, Exh. I.B(I).) The property has an area of 12,392 square feet, with an 85-foot frontage and an average depth of 146 feet. (ROR, Exh. I.B(I).) RWC alleges that the premises also contain a well, which it had used for water supply purposes. (Appeal, ¶ 10.) RWC further alleges that, in 2004, Aquarion Water Company (Aquarion) replaced RWC as the water supplier after RWC abandoned its use of the well. (Appeal, ¶ 17.)
The application contained a proposal to have the premises designated a legal building lot and to construct a single-family dwelling on the lot. (ROR, Exh. I.B.(I).) In order to effectuate this proposal, variances from the following sections of the Ridgefield zoning regulations were requested: 403.0C(1), lot size, 403.0C(2), frontage, 403.0D, density, 403.0F, F.A.R., 403.0G, setbacks and 304.05, nonconforming lot. (ROR, Exh. I.B.(I).)
With respect to the requested variances, the ZBA held a public hearing on March 21, 2005, which was continued to April 4, 2005 and May 2, 2005. (ROR, Exit III.A; ROR, Exh. VI.A; ROR, Exh. IX.A.) On May 2, the ZBA voted to deny the petition by a three to two vote. (ROR, Exh. XI.A.) In its decision letter to RWC's counsel, dated May 5, 2005, the ZBA explained that it voted "[t]o [d]eny variances of Sections 3.04.0(5), nonconforming lot, 403.0A, uses as of right, 403.0C (1) and (2), lot size and area, and 403.0D, density, to allow an undersized parcel of land currently used for a water supply company, that is not a `legal nonconforming lot' under the zoning regulations, to be used as a building lot . . ." (ROR, Exh. XI.B.)
RWC now appeals from the ZBA's decision to the Superior Court, and the appeal was tried to this court.
III JURISDICTION
General Statutes § 8-8 governs an appeal taken from a decision of a zoning board of appeals. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
A 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). RWC alleges that it has been aggrieved by the ZBA's decision "as the owner of the subject property." (Appeal, ¶ 23.) An owner of property that is the subject of an application is aggrieved for the purpose of bringing an appeal, and a plaintiff may prove aggrievement by testimony at the time of trial. See Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991). From the facts adduced at trial, RWC is aggrieved for purposes of this appeal.
B Timeliness and Service of Process
General Statutes § 8-8(b) provides in relevant part that "[an] appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." General Statutes § 8-8(f) provides in relevant part that "[s]ervice of legal process for an appeal under this section shall be directed to a proper officer and . . . (2) shall be served in accordance with subdivision (5) of subsection (b) of section 52-57."
General Statutes § 52-57(b) provides in relevant part that "[p]rocess in civil actions against the following-described classes of defendants shall be served . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
Notice of the ZBA's decision was published in the Ridgefield Press on May 5, 2005. (ROR, Exh. XI.E.) The appeal was commenced by service of process on the ZBA on May 17, 2005 and in accordance with § 8-8(f)(2). Thus, the appeal was timely and properly served.
IV SCOPE OF REVIEW
"Generally, it is the function of a zoning board or commission 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 . . . In applying the law to the facts of a particular case, the board is endowed with a liberal discretion . . ." (Citations omitted; internal quotation marks omitted.) Irwin v. Planning Zoning Commission, 244 Conn. 619, 627-28, 711 A.2d 675 (1998). "The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Citations omitted; internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, CT Page 12539 778 A.2d 61 (2001). "Where a zoning agency has stated its reasons for its actions, 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 [board] was required to apply under the zoning regulations." (Internal quotation marks omitted.) Id.
In its decision letter, the ZBA set forth the following four reasons for its denial of the variances: (1) "No unusual hardship was presented that would justify the grant of the variances requested in this case"; (2) "The parcel has been used since the 1950s as a public utility, providing water to the surrounding subdivision. The wells and ancillary infrastructure are still in place and operable. Since it is the personal desire of the owner to close the wells, any hardship claimed is self-created"; (3) "The parcel is not being deprived of a use and there is no confiscation or taking of the land"; and (4) "It was noted that this is by far the smallest parcel of land in this subdivision, and its use as a residential lot is not consistent with the character of the surrounding neighborhood." (ROR, Exh. XI.B.)
RWC argues that only the first two reasons given by the ZBA for the denial of the variances should be considered because only those represent "collective" reasons stated by the three members who voted to deny the application. Reasons three and four, RWC contends, were not supported by the statements of the ZBA members in either their discussion of the application for the variance requests, or indicated on the members' voting sheets. The ZBA counters that a search of the record supports the third and fourth reasons given by it.
In Smith-Groh, Inc. v. Planning Zoning Commission, 78 Conn.App. 216, 218, 826 A.2d 249 (2003), the planning and zoning commission of the town of Greenwich considered a plaintiff's application for a second final site plan and special permit. After a public hearing and a special meeting, a motion to approve failed to carry. Id., 221. Shortly thereafter, the town planner sent a denial letter to the plaintiff and the commission members that outlined several reasons for the denial. Id. The plaintiff appealed the commission's decision to the Superior Court, but the court dismissed the appeal. Id., 221-22. On appeal from the trial court's judgment, the plaintiff argued, inter alia, that the court should not have considered the town planner's letter because it contained reasons that were neither discussed, nor voted on, by the commission. Id., 224. In determining whether the letter constituted a formal, collective, official statement of the commission, the court identified several problems: "[n]one of the commission members signed the letter. The letter was dated more than ten days following the special meeting denying the application and two days after the publication of the denial. It also contained many reasons not stated by the two commission members for their denial of the application." Id., 226. Therefore, the court concluded that "the letter was not a collective statement of the commission." Id. The court also determined that the individual statements that the commission members made during the course of the special meeting did not amount to a collective statement. Id. With respect to that determination, the court explained that "[i]ndividual reasons given by certain members of the commission [do] not amount to a formal, collective, official statement of the commission . . . and are not available to show the reason[s] for, or the ground[s] of, the [commission's] decision." (Internal quotation marks omitted.) Id.
In the present appeal, the ZBA members failed to articulate statements supporting reasons three or four during its decision session; (ROR, Exhibit XI.A); and such reasons did not appear on their individual voting sheets (ROR, Exhibit XI.D). Rather, the statements that were made during the decision session only related to reasons one and two. Dr. Seemann stated that RWC "could sell [the parcel] either to the adjacent parcel or [RWC] could sell it to the community and say if you would like a park so you don't have to worry about a house, [RWC] could also do that . . . So I don't feel that we are depriving [RWC] of the right to get relief from that lot, that parcel." (ROR, Exh. XI.A.) Also, Mr. Creamer stated that "I think [RWC] created their own hardship here, number one, the way they handled the lot in the first place. Number two, they used it since the 1950s as a public utility, the lot; they are pumping water to supply the neighborhood. That water can be pumped out of there today." (ROR, Exh. XI.A.) Additionally, the reasons that were given on the voting sheets only related to reasons one and two. Those reasons were that "[n]o unusual hardship exists that justifies a grant of a variance in this case"; "[n]o hardship demonstrated . . . [property] significantly smaller than other parcel in the subdivision"; and "[t]he well is operable and is a self created hardship in closing it down." (ROR, Exh. XI.D.) Therefore, the court shall limit its review to the first two reasons given by the ZBA for denying the variance because the third and fourth reasons do not represent a "formal, collective, official statement." See Smith-Groh, Inc. v. Planning Zoning Commission, supra, 78 Conn.App. 226-27.
V DISCUSSION
"A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town . . . 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, [the Supreme Court has] interpreted General Statutes . . . § 8-6 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." (Citations omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206-08, 658 A.2d 559 (1995).
"Disadvantage in property value or income, or both, to a single owner of property, resulting from application of zoning restrictions, does not, ordinarily, warrant relaxation in his favor on the ground of practical difficulty or unnecessary hardship . . . Financial considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations to the property greatly decreases or practically destroys its value for any of the uses to which it could reasonably be put and where the regulations, as applied, bear so little relationship to the purposes of zoning that, as to particular premises, the regulations have a confiscatory or arbitrary effect." (Citations omitted; internal quotation marks omitted.) Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988). RWC contends that the ZBA incorrectly determined that there was no unusual hardship to justify granting a variance because that finding is not supported by substantial evidence in the record. Specifically, RWC argues that the ZBA's denial precludes any meaningful use of the property because, without a variance, it cannot build a residence on the premises. The construction of a residence is necessary, RWC asserts, because the property can no longer be used as a water supply source after it closed the well, with the approval of the department of public utility control, due to high radon levels in the water. RWC contends that, by closing the well, it eliminated a nonconforming use, and that this creates an independent ground for approving a variance under Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, 785 A.2d 601 (2001). RWC also contends that pursuant to Grillo v. Zoning Board of Appeals, supra, 206 Conn. 369, financial considerations are relevant to a hardship analysis if applying the zoning regulation destroys or drastically reduces the value of the property and has a confiscatorial effect.
The ZBA argues that RWC is merely seeking to maximize the financial value of its property by creating a building lot, and that financial considerations do not give rise to a legally cognizable hardship. The ZBA asserts that RWC cannot properly claim a hardship because it has several viable alternatives to building a residence on the premises. The ZBA contends that RWC may continue to use the well as a water supply source because it discontinued its use of the well of its own volition rather than by legal mandate. Another alternative for RWC, the ZBA argues, is to sell the property to an adjoining property owner or to others in the neighborhood.
On March 24, 2006, pursuant to General Statutes § 8-8(k), the Superior Court, Marano, J., heard additional evidence on the issue of whether the denial of the variance amounted to a confiscation or inverse condemnation. At the hearing, RWC introduced a land appraisal report, indicating that the property has a value of $260,000, "subject to the site being a legal, buildable lot." (Plaintiff's Exhibit 1.) Stephen Polizzi, RWC's president and fifty percent owner, indicated that he was willing to sell the property without a building permit for $210,000 and that he offered the lot to Aquarion for that amount, but that Aquarion declined the offer. (Plaintiff's Exhibits 4, 5.) Polizzi also testified that he offered to sell the lot to four abutting property owners, but that none of those individuals wanted to purchase the property. RWC failed to produce evidence, however, of the value of the property if it could not be used as a buildable lot. Nor did RWC produce evidence of the price at which it offered the lot to its neighbors.
General Statutes 8-8(k) provides in relevant part that "[t]he court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if . . . (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal."
Grillo v. Zoning Board of Appeals, supra, 206 Conn. 362, and Norwood v. Zoning Board of Appeals, 62 Conn.App. 528, 772 A.2d 624 (2001) assist in the court's resolution of the appeal. In Grillo, the West Haven zoning board of appeals granted variances from minimum area and street frontage requirements for the construction of a dwelling. On appeal, the plaintiff claimed, inter alia, "that the trial court erred in concluding . . . that there was sufficient evidence of hardship to support the grant of a variance." Grillo v. Zoning Board of Appeals, supra, 363. The plaintiff, an adjoining landowner, argued that the evidence presented at the hearing concerning the lot's potential increase in value if a dwelling could be constructed on it demonstrated a mere financial advantage rather than unusual hardship. Id., 369. The Supreme Court agreed and explained that although the lot would have a much higher value if it could be used as a building lot, "[a] zoning regulation that prevents land from being used for its greatest economic potential, however, does not create the exceptional kind of financial hardship that we have deemed to have a `confiscatory or arbitrary' effect." Id., 370. Significantly, the court found "no evidence that the vacant lot is unmarketable for its present use as a side yard enhancing the value of . . . other adjoining properties . . ." Id., 371. The court emphasized that "[p]roof of financial hardship having a `confiscatory or arbitrary' effect requires more than testimony that property can be sold only for a price substantially lower than can be obtained if a variance is granted to permit a use otherwise prohibited by the zoning regulations." Id.
In Norwood, the Branford zoning board of appeals granted variances for a reduction in the minimum lot area for the construction of dwellings on the lots of two defendants. Norwood v. Zoning Board of Appeals, supra, 62 Conn.App. 529. The plaintiffs appealed the granting of the variances to the trial court, which sustained the appeal because the defendants merely alleged financial loss. Id., 531. The defendants subsequently appealed the trial court's determination that the claimed hardships were insufficient because they merely claimed financial loss. Id. The Supreme Court noted that one of the defendants produced evidence which showed that without the variance, she would lose the profit that she would have realized from a pending sale of the lot. Id., 534. The court was unpersuaded by this evidence, however, because there was no indication that denying the application for the variance "greatly decreases or practically destroys the lot's value." Id. Thus, the court concluded, in pertinent part, that the claimed hardship merely involved financial loss, which was not a valid basis for granting the variance. Id., 535. The court also concluded that the denial of the variance did not amount to a confiscation of the lot at issue because the lot could have value as an abutting lot. Id.
In the present appeal, RWC failed to produce evidence that the application of the zoning regulations either destroyed or drastically reduced the value of its lot. Specifically, RWC failed to demonstrate (1) the value of the lot if it could not be used as a buildable lot and (2) at what price it was willing to offer the parcel to its neighbors. As RWC did not indicate that it would accept anything less than $210,000 for the property, the ZBA's decision to deny the requested variances was reasonably supported by the record. The ZBA did not act unreasonably, arbitrarily or illegally when denying the variances requested by RWC because RWC's request is based upon financial considerations which are only relevant if the application of the regulations to the property greatly decreases, or practically destroys, its value. RWC has failed to provide such evidence.
Additionally, RWC's reliance on Stancuna v. Zoning Board of Appeals, supra, 66 Conn.App. 572, for the proposition that eliminating a nonconforming use creates an independent ground for approving a variance, is misplaced. In Stancuna, the court explained "[t]hat a variance will eliminate a nonconforming use constitutes an independent ground for sustaining the granting of a variance." (Emphasis added.) Id. It does not necessarily follow, however, that eliminating a nonconforming use creates an independent ground for overturning the denial of a variance. The discontinuance of the well, therefore, does not dictate that the ZBA had to approve the requested variances.
The parties also briefed the issue of self-created hardship. However, because the court has determined that the ZBA properly found that RWC had not established any hardship, the court is not required to address the issue of self-created hardship.
VI Conclusion
For the foregoing reasons, RWC's appeal is dismissed.