Opinion
No. CV 04 0092297S
January 6, 2005
MEMORANDUM OF DECISION RE ZONING APPEAL
I. INTRODUCTION A. STATEMENT OF APPEAL
The plaintiffs, Robert Winston and John David Hunter, hereinafter referred to as the "plaintiffs," bring this appeal against the Washington Zoning Board of Appeals, hereinafter referred to as the "defendant," alleging to have been aggrieved by the defendant's December 18, 2003 decision denying the plaintiffs' application for a variance from the defendant's zoning regulations.
B. BACKGROUND
On November 25, 2003, the defendant received the plaintiffs' application for variance (Return of Record, B). The property subject of the variance request is located at 92 Bee Brook Road, Washington Depot. The property consists of approximately 1.14 acres, with an existing building of approximately 6,000 square feet within the Washington Depot business zoning district. The plaintiffs sought variance from the following regulations:
1. Section 11.5 maximum lot coverage;
2. Section 11.6 minimum set back in yard dimensions;
3. Section 17.4 non conforming structures (Return of Record, B Z).
In essence, the plaintiffs sought to add two triangular French doors extending from the westerly wall of the building to facilitate the display of merchandise sold by their retail business. The addition of the two triangular French doors would encroach upon the "set back" requirements of the zoning regulations.
In accordance with General Statute § 8-3c(b), a public hearing was held on Thursday, December 18, 2003 at 7:30 p.m. in the Land Use Room, 2 Brian Plaza, Washington, Connecticut. On that date, after the close of the public hearing, the defendant voted to deny the plaintiffs' application for variance. Notice of the Commission's decision was published in the Voices on Wednesday, December 24, 2003. On January 29, 2004, the plaintiffs filed this appeal pursuant to Connecticut General Statute § 8-8 in a one-count complaint dated January 6, 2004. The plaintiffs allege that the commission acted illegally, arbitrarily, capriciously, and abused its discretion because:
1. Members of the ZBA prejudged the application based on information communicated to them outside the public hearing thereon;
2. The ZBA improperly delegated to the town attorney responsibility for making findings of fact committed to the discretion of the ZBA;
3. The ZBA acted based on misstatement of the legal standard applicable to the availability of relief by a variance to an applicant with knowledge of the hardship applicable to the land which is the subject of an application made after the close of the public hearing by an alternate member of the ZBA who was not seated to act on the application, to which the appellants did not have an opportunity to respond;
4. The ZBA acted illegally, arbitrarily and abused the discretion vested in it in that the ZBA without a rationale purpose applied different standards to the application than to similar applications for variances involving construction in required front yards; and
5. The ZBA acted illegally, arbitrarily and abused the discretion vested in it in that the ZBA was predisposed to deny and/or prejudge the application.
The appeal was tried to this court on September 13, 2004. This decision is based upon the court's review of the entire record, including the parties' briefs, applicable regulations and statutes, transcripts and minutes of the commission meeting, maps, the Washington Zoning Regulations and the return of record.
II. PRELIMINARY ISSUES A. JURISDICTION
General Statutes § 8 — 8 governs appeals from combined planning and zoning commissions to the Superior Court. Connecticut General Statute § 8-8(b) provides that "any person aggrieved by any decision of a board . . . may take an appeal to the Superior Court for the judicial district in which the municipality is located." It is well settled that appellate jurisdiction in administrative appeals is created exclusively by statute and may only be exercised in the manner prescribed by statute. See Bridgeport Bowloroma Incorporated v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 1239 (2002).
"Aggrievement" is a prerequisite to the trial court's jurisdiction over the subject matter of an administrative appeal. Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002).
Connecticut General Statutes § 8 — 8 reads as follows:
"Aggrieved person means a person aggrieved by a decision of a board and includes any office or department or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. 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 a 100 feet of any portion of the land involved in the decision of the board."
Aggrievement pursuant to this statute section is commonly referred to as "statutory aggrievement."
Additionally, a plaintiff may plead what is commonly referred to as "classical aggrievement." Classical aggrievement is satisfied by compliance with a two-prong test. "First, the party claiming aggrievement must demonstrate a specific, personal and legal interest in the subject matter of the decision, so as to distinguish from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must establish that this specific, personal and legal interest has been specifically and injuriously affected by the decision." Hall v. Planning Commission, 181 Conn. 442, 444, 435 A.2d 975 (1980). The question of aggrievement is one of fact to be determined by the trial court on appeal. Hughes v. Planning Zoning Commission, 156 Conn. 505, 508, 242 A.2d 705 (1968).
"This court has not set forth a precise standard that defines the required interests a non-owner must possess in order to become an aggrieved party under Section 8.8 and 8.9. 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." Primerica v. Planning Zoning Commission, 211 Conn. 85, 93, 558 A.2d 646 (1989).
B. SCOPE OF REVIEW
"In appeals from administrative zoning decisions, the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001).
"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 . . . 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 . . . Moreover, the plaintiffs bear the burden of establishing that the board acted improperly." (Citations omitted; internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, CT Page 423 697-98, 784 A.2d 354 (2001). "In short, [the court] may not substitute [its] own conclusions for those of the commission. Rather, [it is] limited to determining whether the commission's conclusions of fact were unreasonable, arbitrary, illegal or an abuse of discretion." (Internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 332, 732 A.2d 144 (1999). "[T]he decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . The trial court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board's] findings . . . Where, however, the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board's decision." (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 74 Conn.App. 155, 161 (2002), cert. granted in part, Municipal Funding, LLC v. Zoning Board of Appeals, 262 Conn. 945, 815 A.2d 675 (2003).
"In an appeal from the decision of a zoning board, we therefore review the record to determine whether there is factual support for the board's decision, not for the contentions of the applicant." Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, supra, 270.
Connecticut General Statute Section 8-6 authorizes a zoning board of appeals to grant a variance when the following 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.
As to the adverse affect on a town's comprehensive plan, the Supreme Court has stated:
"Unless great caution is used and variances are granted only in the proper cases, the whole fabric of town and city-wide zoning will be worn through in spots and raveled at the edges until its purpose in protecting the property values and securing the orderly development of the community is completely thwarted." Gregorio v. Zoning Board of Appeals, 155 Conn. 422, 427, 232 A.2d 330 (1967).
The "hardship" which justifies the granting of a variance must contain two characteristics: 1) It must arise out of the application of the particular zoning regulations; and 2) It must be beyond the control of the owner and not self-created. Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 658, 427 A.2d 1346 (1980). The hardship may not be financial unless it results in practical confiscation. Berlani v. Zoning Board of Appeals, 160 Conn. 166, 276 A.2d 780 (1970).
"It is well established that the granting of a variance must be reserved for unusual or exceptional circumstances." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206-07, 658 A.2d 559 (1995). "The power to authorize a variance is only granted for relief in specific and exceptional instances as opposed." (Internal quotation marks omitted.) Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 271, 588 A.2d 1372 (1991).
III. DISCUSSION A. ARE THE PLAINTIFFS AGGRIEVED?
In their complaint, the plaintiffs allege classical aggrievement. The complaint states, "the appellants are aggrieved by the decision of the ZBA because they have a specific personal and legal interest in the subject matter of the decision, which interest has been specifically and injuriously affected by the decision, in that the denial of variance prevents them from developing, redeveloping, or remodeling the building on the premises, in which they hold the possessory equitable interest . . ."
Although not briefed, at the time of trial the defendant argued the plaintiffs are not "aggrieved," either classically or statutorily, in that they are no longer tenants, nor owners of the subject property.
At the time of the plaintiffs' application and commencement of this action, the plaintiffs were tenants of the subject property. (Plaintiff's Exhibit #1.) While the case was pending the subject property was purchased by 92 Bee Brook Road, LLC. (Plaintiff's Exhibit #2.) 92 Bee Brook, LLC thereafter leased the subject property to Tulip Tree, Inc. (Plaintiff's Exhibit # 3.) The record is clear that the plaintiffs are the sole members of 92 Bee Brook Road, LLC. Additionally, the record is clear that the plaintiffs are the sole shareholders of Tulip Tree, Inc. It is clear from the record that although the plaintiffs' legal title and/or standing may have changed with respect to their interest in the subject property, their interest in the property, for purposes of this appeal, remains the same. The plaintiffs' interests are substantial and legitimate. The plaintiffs are aggrieved by the defendant's denial of the subject application and this court has jurisdiction to hear their appeal.
B. DID THE DEFENDANTS ERR IN CONCLUDING THAT THE PLAINTIFFS DO NOT SUFFER UNUSUAL HARDSHIP BY APPLICATION OF THE ZONING REGULATIONS?
The plaintiffs assert that the enforcement of the zoning regulations results in an unusual hardship by virtue of the fact that there exists an unusually wide right of way between the building or the subject premises and the traveled portion of Bee Brook Road.
This claim was considered by the defendant. The chairman stated: "You know, so the bottom line is that what we're looking at is because there is a, a large area in front of the front yard line, it, does that really constitute a hardship to the extent that the building can't be effectively used?" (R.O.R. Y at pg. 14.)
The defendant concluded that the large right of way did not interfere with the plaintiffs' reasonable use of the property.
A review of the transcript of the hearing clearly indicates that the defendant thoughtfully considered the issue of "hardship," but was hard pressed to avoid the conclusion that the plaintiffs' application sought essentially an aesthetic modification for purposes of enhancing their business. Additionally, the record is clear that the plaintiffs could accomplish the same goal by modifying the front of their building in such a way that increases their exposure without encroaching on the set back requirements. Although clearly not preferred by the plaintiffs, for aesthetic reasons, there was a viable alternative that would accomplish the plaintiffs' purpose.
The record clearly supports the defendant's position that the plaintiffs suffered no unusual hardship by application of the subject zoning regulations.
C. DOES AN ALTERNATE'S PARTICIPATION IN THE BOARD'S DISCUSSION OF THE PENDING APPLICATION PRIOR TO ITS VOTE RENDER THE BOARD'S ACTION ILLEGAL?
The plaintiffs argue that the defendant's denial of the variance was illegal, arbitrary, capricious, and an abuse of discretion because an alternate participated in the board discussion after the close of the hearing. In support of this position, the plaintiff cites one Superior Court case, Weiner v. New Milford Zoning Commission, 195 Conn., supra, Lexis 1511 A.4 (1995). which would appear to be the only existing relevant case law. In the Weiner case, the court specifically found that the subject alternate had a "persuasive impact on the voting members." The court further concluded that "in this case it is clear that Charles Raymond (alternate) had a profound affect upon the deliberation. Under these circumstances, the commission effectively was comprised of six members, not five."
No such evidence was presented either in the record or at trial that would support a similar factual finding by this court in the present appeal.
The record is devoid of any evidence that the alternate, subject of this appeal, had any sort of "profound" affect upon the voting members and that this commission was somehow comprised of six voting members as opposed to five as required by statute. Clearly, the alternate member did speak one time after the close of the public hearing. His comment does not appear to echo a sentiment that was inconsistent with the sentiments raised by the other members. The record would not demonstrate that this particular alternate was advocating a position one way or another. His comment was as follows:
"I, I think there's been no doubt that this will make an aesthetic improvement. I would like to say as far as the hardship that we've all said that we're kind of desperately groping for, that eighteen feet. That eighteen feet was known before the piece of property was purchased. And so this is not a surprise. That is not a, so this, you know, property was gone into with that knowledge, very similar to lot coverage and other things of that nature." (R.O.R. Y at pg. 27.)
Although this court would agree that the more appropriate procedure for the defendant would have been to dismiss the alternate once the defendant was ready to discuss the pending application and take a vote, the comment by the alternate does not rise to the level of illegality or abuse. On the facts of this case alone, the plaintiffs' argument that the alternate's comments during the defendant's discussion of the pending of the application was illegal fails.
IV. CONCLUSION
For the foregoing reasons, the plaintiffs' appeal is denied.
BY THE COURT,
Bozzuto, J.