Opinion
No. CV08-4010368S
January 25, 2010
MEMORANDUM OF DECISION
FACTS
The Defendant, Kevin Russo, is the owner of property located at 7 Plum Tree Lane, Shelton. The property is situated in an R-1 (Residential) zone, and is subject to a Conservation Residential Development (CRD), known as Meadow Woods Estates, which was approved by the Shelton Planning and Zoning Commission in 2001 (ROR E).
Russo is the owner of Lot #7 as shown on the Meadow Woods Estates subdivision map. His parcel contains a single-family residence, and consists of 57,000 square feet. The property is subject to an overhead utility easement in favor of the Connecticut Light and Power Company.
In April of 2007, Russo applied to the Shelton Planning and Zoning Commission, seeking a resubdivision, and a modification of the existing Conservation Residential Development (CRD). He sought to reconfigure the existing Lot #7 into a two-lot subdivision.
Section 33.13 of the Shelton Zoning Regulations allows for the creation of a Conservation Residential Development (CRD) in either a Residence R-1A or an R-1 zoning district.
The number of single-family homes permitted in a CRD may not exceed the number of lots which can be created in a conventional subdivision plan of the entire CRD parcel. (S. 33.13.1). However, due to requirements concerning the preservation of open space, and the desire to be sensitive to environmental concerns, lot area, shape and frontage requirements are flexible (S. 33.13).
In 2000, when the original application for the Meadow Woods Estates CRD subdivision was submitted, the applicant sought approval for eight Lots. The Shelton Planning and Zoning Commission approved seven lots, including that now owned by Kevin Russo.
Russo's request to the Shelton Planning and Zoning Commission for a resubdivision and a modification of the CRD subdivision, was denied. The commission rejected the modification, based upon the inability to satisfy the requirement of a 150-foot square on a conventional subdivision layout, given the presence of the overhead utility easement.
In light of the denial of his requested modification of the CRD subdivision, Russo applied to the Shelton Board of Zoning Appeals. He sought a variance concerning three provisions of the Shelton Zoning Regulations; Zoning Regulation 5.25, Zoning Regulation 24.1 and Zoning Regulation 24.2.
Regulation 5.25 provides:
5.25 Lot Area and Shape: In determining compliance with minimum lot area and shape requirements of these Regulations, land subject to easements for drainage facilities and underground public utilities may be included, but no easement for above ground public utility transmission lines or any part of a public or private street nor any easement which grants exclusive surface use of the property to anyone other than the owner may be included . . .
Regulation 21.1 reads:
24.1 "SCHEDULE B — STANDARDS" is hereby declared to be a part of these regulations.
3. Minimum dimension of square on lot: 150' (R-1 zone).
Regulation 24.2 states:
24.2 Lot Area, Shape and Frontage: Each lot, except permitted interior lots and parcels created as part of a planned residential community or other planned development under the provisions of the Connecticut Common Interest Ownership Act, shall have the minimum area as specified in SCHEDULE B . . . Each lot shall be of such shape that a square with a minimum dimension specified in SCHEDULE B will fit on the lot . . .
The purpose of the requested variances was to "Allow Location of 150' square on lot on conventional subdivision layout for CRD approval with utility easement." (ROR A.)
A public hearing was conducted by the Shelton Board of Zoning Appeals on April 15, 2008 (ROR E). On June 17, 2008, the board approved the variances as requested by Kevin Russo (ROR I).
In granting the variances, the board explained its rationale, including the fact that the parcel had sufficient square footage to meet the requirements of a lot under the zoning regulations (ROR U).
The Board of Zoning Appeals did not, however, describe the hardship on which its decision was based, as required by § 8-7 of the General Statutes.
Section 8-7. C.G.S. — ". . . When a board of appeals grants or denies any . . . variance in the zoning regulations applicable to any property . . . it shall state upon the record the reason for the decision . . . and where a variance is granted, describe specifically the exceptional difficulty or unusual hardship on which its decision is based . . ."
However, the failure to specify the hardship is not fatal to the board's action. In that event, the court is required to search the record in an attempt to determine some basis for the action. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369 (1988); Ward v. Zoning Board of Appeals, 153 Conn. 141, 144 (1965).
From the decision of the Shelton Board of Zoning Appeals, the Shelton Planning and Zoning Commission brings this appeal.
AGGRIEVEMENT
This appeal is presented in the name of the Shelton Planning and Zoning Commission, in its capacity as a land use commission of the City of Shelton. No individual plaintiffs have joined in the appeal, and no individual members of the commission claim standing in an individual capacity.
The question of aggrievement is essentially one of standing. Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 701 (2001); Beckish v. Manafort, 175 Conn. 415, 419 (1978). Because the issue of standing implicates subject matter jurisdiction, it must be addressed first. Fish Unlimited v. Northeast Utilities Service Co., 254 Conn. 21, 31 (2000). If it is determined that no Plaintiff is aggrieved, and the court therefore lacks subject matter jurisdiction, a trial court is without authority to decide the merits of an appeal. Keiser v. Zoning Commission, 62 Conn.App. 600, 601 n. 2 (2001).
Aggrievement falls into two broad categories — statutory aggrievement, and classical aggrievement.
Statutory aggrievement exists by legislative fiat, which grants standing to appeal by virtue of a particular statute, rather than an analysis of the facts of a particular case. Weill v. Lieberman, 185 Conn. 123, 124-25 (1986); Pierce v. Zoning Board of Appeals, 7 Conn.App 632, 635-36 (1986).
Section 8-8(a)(1) of the General Statutes defines "aggrieved person" for purposes of an appeal from the decision of a municipal land use agency. The statute reads:
(1) "Aggrieved person" means a person aggrieved by a decision of a board, and includes any officer, department, board or bureau of a municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a 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.
Classical aggrievement requires a party to satisfy, though evidence at trial, a well-established two-fold test: 1) The party claiming aggrievement must demonstrate a specific personal and legal interest in the decision appealed from, as distinguished from a general interest such as the concern of all members of the community as a whole, and 2) the party must show that the specific personal and legal interest has been specifically and injuriously affected by the action of the agency. Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47 (1984); Hall v. Planning Commission, 181 Conn. 442, 444 (1980); Nader v. Altermatt, 166 Conn. 43, 51 (1974).
The question of aggrievement is one of fact. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308 (1997); Hughes v. Town Planning Zoning Commission, 156 Conn. 505, 508 (1968). The burden of proving aggrievement, rests with the Plaintiff. London v. Planning Zoning Commission, 149 Conn. 282, 284 (1962).
At trial, no evidence was presented indicating that either the Shelton Planning and Zoning Commission, or any individual commission member, owned land within one hundred feet of 7 Plum Tree Lane. Furthermore, any individual commission member who claims, as a resident and taxpayer of the City of Shelton, that he has an interest in the strict enforcement of the zoning regulations, cannot use that interest as a basis for claiming aggrievement. Munhall v. Inland Wetlands Commission, 211 Conn. 46, 51-52 (1992).
If the commission is to satisfy the test for statutory aggrievement, it must do so as the agency of the City of Shelton which is "charged with the enforcement of any order, requirement, or decision" of the Shelton Board of Zoning Appeals.
The determination of whether the Shelton Planning and Zoning Commission is statutorily aggrieved by the decision which generated this appeal, begins with an examination of the Connecticut Supreme Court decision in Tyler v. Board of Zoning Appeals, 145 Conn. 655 (1958).
In Tyler, the Woodbridge Board of Zoning Appeals granted a setback variance, in order to permit the location of a dwelling closer to the street than was permitted by the zoning regulations. As is the situation in this case, no property owner abutting the subject property or owning land in the immediate vicinity, objected to the variance. An appeal was initiated by members of the town's zoning commission, and by an individual member of the commission who resided five miles from the subject property.
The trial court dismissed the appeal as to all plaintiffs, and an appeal to the Supreme Court followed.
The Supreme Court found that the individual commission member, who claimed an interest in the strict enforcement of the zoning regulations, was not aggrieved. Tyler v. Board of Zoning Appeals, supra, 662.
The Court went on to explain that the Woodbridge Board of Selectmen or its duly authorized agent, rather than the zoning commission, was charged with the enforcement of the town's zoning regulations.
The Court then explicitly stated that the zoning commission was not authorized to take an appeal from a decision of the zoning board of appeals, where a ruling of its own was not in issue. Tyler v. Board of Zoning Appeals, supra, 659.
The Shelton Planning and Zoning Commission first seeks to distinguish Tyler, by claiming that it is the agency charged with the enforcement of the decision of the Shelton Board of Zoning Appeals, and is therefore statutorily aggrieved, pursuant to § 8-8(a)(1) of the General Statutes.
The answer to this claim, requires an analysis of the relevant provisions of the Shelton Zoning Regulations.
Section 3.1 of the Shelton Zoning Regulations provides for the appointment of a Zoning Enforcement Officer, utilizing the requirements of the Personal Merit (civil service) system. The regulations reads:
§ 3.1 Zoning Enforcement Officer: There shall be a Zoning Enforcement Officer who shall be appointed in accordance with the City of Shelton's Charter and Personnel Merit System. The Zoning Enforcement officer shall report to the chairman of the Planning and Zoning Commission or his designee for his regular duties, and to the Planning and Zoning Administrator for administrative purposes. The Zoning Enforcement Officer shall have the responsibility and authority to enforce the provisions of these Regulations, in accordance with administrative rules and procedures established by the commission.
While § 3.10 of the Shelton Zoning Regulations gives to the Planning and Zoning Commission the legislative function of establishing rules of procedure, no provision of the regulations confers upon the commission any powers of enforcement. Section 4.3 of the Regulations makes no mention of the planning and zoning commission, concerning the enforcement of the zoning regulations. It provides:
"3.10 — Administrative Rules: The Planning and Zoning Commission may, by resolution, establish rules and procedures necessary to administer and enforce these regulations."
. . . Any party aggrieved by a ruling of the Zoning Enforcement Officer, Planning Administrator or any other official charged with the enforcement of these regulations may take . . . an appeal, using a form provided by the Board of Zoning Appeals, which specifies the grounds for such appeal, and includes such other information as may be required. (Emphasis added.)
The zoning regulations do not contemplate an appeal from an enforcement order of the planning and zoning commission, or a "board" of the City of Shelton.
The Shelton Planning and Zoning Commission argues, however, that it is statutorily aggrieved, because it has "overall authority" for the enforcement of the zoning regulations, consistent with § 8-3(e) of the General Statutes. It reads:
(e) The zoning commission shall provide for the manner in which zoning regulations shall be enforced.
Any such claim is contrary to the explicit holding in Tyler, which precludes a zoning commission from appealing unless a ruling or order of its own is in issue. Tyler v. Board of Zoning Appeals, supra, 659.
To adopt such an expansive view of aggrievement, would render any variance granted by a zoning board of appeals, vulnerable to a court challenge, merely because a majority of the planning and zoning commission disagrees with an action taken by a super-majority of the zoning board of appeals. No variance can be approved, without the concurrence of four zoning board of appeals members.
Section 8-7, C.G.S. — "The concurring vote of four members of the zoning board of appeals shall be necessary . . . to vary the application of the zoning bylaw, ordinance, rule or regulation . . ."
The planning and zoning commission lacks the authority to overturn an action of the zoning board of appeals on its own motion. However, the exercise of such broad authority to resort to legal recourse, can have the inevitable effect of chilling the exercise of the separate and independent powers committed by law to a zoning board of appeals. Fuller, Robert A., " Land Use Law and Practice," (2d Ed.), Vol. 9A, S. 32.4, p. 104 (1999); S. 8-6, C.G.S.
Notwithstanding the endorsement of the "overall authority" rule in Superior Court cases (see North Stonington Planning Zoning Commission v. North Stonington Board of Appeals, Docket No. 4008291 (November 7, 2008, Peck, J.) [ 46 Conn. L. Rptr. 609], and Bouvier v. Zoning Board of Appeals, 28 Conn.Sup. 278, 286 (1969, Mignone, J.), there is no Appellate authority which has undermined the essential holding in Tyler.
If one plaintiff in an appeal establishes aggrievement, a court has subject matter jurisdiction. It is not necessary for all plaintiffs to be aggrieved. Protect Hamden/North Haven From Excessive Traffic and Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 529 n. 3 (1991). Therefore, in situations where both the commission and an official charged with enforcement functions are party plaintiffs, the commission's aggrievement is not dispositive of the court's jurisdiction (See Lisbon Planning Zoning Commission v. Lisbon Zoning Board of Appeals, Judicial District of New London, Docket No. 546894 (October 11, 2000, Purtill, J.T.R.) [ 28 Conn. L. Rptr. 400]; Shelton Planning Zoning Commission v. Shelton Zoning Board of Appeals, Judicial District of Ansonia-Milford, Docket No. 0066574 (November 18, 1999, Sequino, J.); Ridgefield Planning Zoning Commission v. Ridgefield Zoning Board of Appeals, Judicial District of Danbury, Docket No. 0342219 (April 12, 2002, Radcliffe, J.) [ 31 Conn. L. Rptr. 703].
North Stonington Planning Zoning Commission v. North Stonington Zoning Board of Appeals, supra, involved a circumstance in which the position of zoning enforcement officer was vacant, and the total responsibility for enforcing the zoning regulations rested with the planning and zoning commission. Furthermore, the zoning board of appeals decision which produced the appeal, was a variance of a moratorium on commercial uses and subdivisions, which had been voted by the planning and zoning commission. Therefore, the validity of the nine-month moratorium, an order of the commission, was at issue in the appeal.
This court believes that the better approach is that advocated by former Superior Court Judge Robert Fuller, and Judge Maloney, in East Hartford Planning Zoning Commission v. East Hartford Zoning Board of Appeals, Judicial District of Hartford, Docket No. 0808097 (May 17, 2002, Maloney, J.) [ 32 Conn. L. Rptr. 205]. Fidelity to the Tyler rule recognizes and respects the broad powers accorded, by statute, to a municipal zoning board of appeals; Stillman v. Zoning Board of Appeals, 25 Conn.App. 631, 635 (1991); and avoids the potentially costly practice occasioned by one municipal land use body having the ability to sue another board, merely because it disagrees with a specific decision. Fuller, Robert A., " Land Use Law and Practice" (2d Ed.), supra; East Hartford Planning Zoning Commission v. East Hartford Zoning Board of Appeals, supra, 6711.
Nor can the Shelton Planning and Zoning Commission argue that it is aggrieved, because it had refused to grant the defendant Kevin Russo's application to re-subdivide Lot 7.
In reviewing a subdivision application, a municipal planning and zoning commission sits in an administrative capacity, rather than in a legislative of quasi-judicial capacity. Reed v. Planning Zoning Commission, 208 Conn. 431, 437 (1987); Forest Construction Co. v. Planning Zoning Commission, 155 Conn. 669, 674 (1967). The commission's authority is limited to determining whether the plan before it complies with the regulations adopted for its guidance. Blakeman v. Planning Commission, 152 Conn. 303, 306 (1965).
The entire field of subdivision regulation is peculiarly a creature of state statute, and a commission may only act as it is authorized by § 8-25 and § 8-26 of the General Statutes. Nicoli v. Planning Zoning Commission, 171 Conn. 89, 91 (1976). In passing upon a proposed subdivision plan, a commission is bound by its regulations. RK Development Corporation v. Norwalk, 156 Conn. 369, 375 (1968). Because the commission is not acting legislatively, it cannot make law, and a proposal must be denied if it does not meet the requirements of the regulations. Westport v. Norwalk, 167 Conn. 151, 157-58 (1974); Gagnon v. Municipal Planning Commission, 10 Conn.App. 54, 57 (1987).
A municipal zoning board of appeals, on the other hand, derives its powers and authority from § 8-6(3) of the General Statutes. This section provides authority to:
(3) . . . determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with the general purpose and intent, and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done, and the public safety and welfare secured.
In order to grant a variance, a zoning board of appeals must find that two conditions have been satisfied: 1) the variance must be shown not to affect substantially the comprehensive plan, and 2) adherence to the strict letter of the zoning ordinance or regulation must be shown to cause unusual hardship, unnecessary to the carrying out of the general purposes of the zoning plan. Francini v. Zoning Board of Appeals, 228 Conn. 785, 790 (1994); Smith v. Zoning Board of Appeals, 174 Conn. 323, 326 (1978). The comprehensive plan consists of the zoning ordinances, and the zoning map. Burnham v. Planning and Zoning Commission, 189 Conn. 262, 267 (1983).
The Shelton Board of Zoning Appeals does not have the authority to overturn, amend, or modify the decision of the Shelton Planning and Zoning Commission which denied Kevin Russo permission to resubdivide his property.
Its jurisdiction is limited to deciding whether the granting of the variance would substantially affect the comprehensive plan of the City of Shelton, and whether a hardship, unique to the Russo property, was present.
No order or decision of the Shelton Planning and Zoning Commission was before the Board of Zoning Appeals. Instead, the refusal of the commission to approve the re-subdivision of Lot #7 must be accepted as valid, prior to determining whether a legally cognizable hardship is present. A variance permits a property owner to use his property, even though a violation of the letter of the zoning ordinances will result. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206-07 (1995).
It is therefore found, that the Shelton Planning and Zoning Commission is not statutorily aggrieved, by the decision of the Shelton Board of Zoning Appeals, from which this appeal originated.
The Shelton Planning and Zoning Commission also claims that it is classically aggrieved by the decision of the Board of Zoning Appeals, granting the variances to Kevin Russo. It claims classical aggrievement, based upon the fact that, in light of the variance, it will be required to give its "stamp of approval" to an application which is contrary to the zoning regulations.
This argument is not persuasive.
A variance, by definition, constitutes permission to act in a manner that is otherwise prohibited under the zoning laws or ordinances of the municipality. Burlington v. Jencik, 168 Conn. 506, 508 (1975). A variance runs with the land; Reid v. Zoning Board of Appeals, 235 Conn. 850, 858 (1996); § 8-6(b), C.G.S.; and must be based on property conditions. Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239 (1972). The identity of the applicant is irrelevant. Dinan v. Board of Zoning Appeals, 220 Conn. 61, 66-67 (1991).
The Plaintiff's claim of classical aggrievement, seems to restate the "overall authority" argument, advanced in support of statutory aggrievement.
A zoning board of appeals was determined to be classically aggrieved, where a planning and zoning commission had restricted its ability to grant use variances, to situations in which an unconstitutional taking of property without compensation resulted. Zoning Board of Appeals v. Planning Zoning Commission, 27 Conn.App. 297, 303 (1992). Because the planning and zoning commission had no authority to change the standard for granting the variances, the zoning board of appeals was found to be specifically and injuriously affected by the regulation.
In this case, the Shelton Board of Zoning Appeals has not sought to limit the legitimate exercise of the powers and prerogatives of the Shelton Planning and Zoning Commission.
CONCLUSION
It is found that the Shelton Planning and Zoning Commission is not aggrieved by the decision of the Shelton Board of Zoning Appeals, granting variances to Kevin Russo.
The appeal is therefore DISMISSED.