PHILPOT
v.
WOODBRIDGE ZBA

Connecticut Superior Court, Judicial District of New Haven at New HavenJun 19, 2003
2003 Ct. Sup. 8185 (Conn. Super. Ct. 2003)

No. CV 02 0463873 S

June 19, 2003


MEMORANDUM OF DECISION


STATEMENT OF APPEAL

The plaintiffs, W. Martyn Philpot, Jr. and Tracey Philpot (the Philpots), appeal from the decision of the defendant, the Woodbridge zoning board of appeals (the board), granting the March 20, 2002 variance application of the defendants, Robert Katzman and Betsy Katzman (the Katzmans).

II BACKGROUND

The record reveals the following facts. The Katzmans filed an application dated January 24, 2002 to the board for a variance seeking to reduce the minimum rear yard setback of 25 feet to 15 feet in order to construct an addition onto their house located on property they owned at 11 Old Barnabas Road. (Return of Record [ROR], Item 4.) A public hearing on the application was held on February 11, 2002 and continued on March 11, 2002. (ROR, Items 5, 7.) The board voted to deny the application at the March 11, 2002 hearing, at which time a board member stated that the Katzmans "are welcome to come back with a modified plan, if you so desire, to try to minimize the impact on this lot." (ROR, Item 7, p. 35.) In its notice of decision dated March 22, 2002, the board stated: "The Board members who voted against the variance, found that the hardships represented by the applicant as necessitating the variance did not fit the statutory criteria regarding hardship. Board members encourage the applicant to reapply seeking less relief." (ROR, Item 8.)

Two members voted in favor and two opposed while a majority of four was required to pass. See General Statutes § 8-7.

The Katzmans filed another variance application, dated March 20, 2002, which sought to reduce the minimum rear yard setback of 25 feet to 19 feet rather than to 15 feet. (ROR, Item 1.) A public hearing on the application was held on April 8, 2002, at which time the board voted CT Page 8185-ac unanimously to grant the application. (ROR, Item 2, pp. 32-33.) The board's notice of decision, dated April 10, 2002, stated: "By unanimous vote the Board acted to find that the requested variance fits the statutory criteria regarding hardship, due to the limitations imposed by the geometry of the lot, which creates a hardship of the land, and because the house was placed on the original survey maps in an incorrect location." (ROR, Item 3.)

In the part of the application where the applicant is asked to describe the "exceptional difficulty or unusual hardship," the Katzmans responded: "My house is set on a non-conforming lot as it was probably built before the current setback restrictions were set. The house is located in the left most rear section of the lot. It is impossible to put any addition on my house due to its location and the current setback restrictions. The lot also angles in at the rear of my house, making the lot a very odd shape. The front of my house does not meet the current minimum front yard setback of 75 feet. This again is probably because the house was built before the current regulations were in place. The side of my house is also almost at the current setback restrictions. It is impossible to put any addition on my house due to the current shape of my lot. Although the new addition will not be within the current setback restrictions, the space between the addition and my neighbor's house on that side of my house is approximately 300 feet. The distance between my new addition and the end of the wooded area on the neighbor's lot separating the same neighbor's house is approximately 250 feet. I do not feel that the addition will be intrusive on anyone's privacy or noticeable [sic] to anyone but myself since it is at the back of my house. I do not believe the addition will be visible from my neighbor's house either in the summer or winter as shown in the pictures taken in the winter when the trees are bare." (ROR, Item 1.)

Presently before the court is the Philpots' appeal from the board's approval of the March 20, 2002 application. As grounds for the appeal, the Philpots allege that the board acted illegally, arbitrarily and in abuse of its discretion in the following respects: (1) by allowing an expansion of a nonconforming use in violation of § 5.1 of the Woodbridge zoning regulations, without a request for such enlargement properly coining before the board; (2) no exceptional conditions, practical difficulties or unnecessary hardship was shown; (3) a prior application for a similar variance was denied; (4) the application was prejudged prior to its submission; and (5) the board's chairman participated in the hearing and deliberation session after disqualifying himself due to a conflict of interest. (Amended Complaint, ¶¶ 4, 6.) The court held a trial on this matter on October 30, 2002

III JURISDICTION

General Statutes § 8-8 governs appeals taken from the decisions of a zoning board of appeals to the Superior Court. "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.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).

A

Aggrievement

"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject mailer 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). The burden of proving aggrievement rests with the plaintiff. Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 702, 780 A.2d 1 (2001). "In the CT Page 8185-ad case of a decision by a . . . 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 Statutes § 8-8 (a) (1).

At the October 30, 2002 trial, W. Martyn Philpot testified that he is the owner of property that abuts the subject property. The Philpots also submitted a certified copy of the deed demonstrating that the they are grantees to property located at 117 Ansonia Road in Woodbridge. The court finds, accordingly, that the Philpots are statutorily aggrieved for the purpose of bringing this appeal.

B

Timeliness and Service of Process

General Statutes § 8-8 (b) provides, in part: "The 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." Section 8-8 (f) provides, in part: "Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality." "It is well established that within the context of administrative appeals, defects in service of process deny the court subject matter jurisdiction over the appeal." Gadbois v. Planning Commission, 257 Conn. 604, 607, 778 A.2d 896 (2001).

Although the record does not contain an affidavit of publication, it is undisputed that the board's decision "was properly published in a newspaper on April 11, 2002." (Complaint, ¶ 2; Katzmans' Answer, ¶ 2; board's Answer, ¶ 2.) Therefore, the marshal would have had to serve process on either the chairman, or clerk, of the board and upon the clerk of the municipality by April 26, 2002 in order to comply with the statutory fifteen-day notice deadline. Although the town clerk was served timely on April 26, 2002, the chairman of the board was not served until May 1, 2002 and, therefore, the appeal was not served timely with respect to the chairman. (Officer's Return.)

"[F]or valid service of process in an administrative appeal from the decision of a zoning board or planning commission, service must be made by `leaving a true and attested copy of the process with . . . the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality.'" (Emphasis in original.) Gadbois v. Planning Commission, supra, 257 Conn. 609, quoting General Statutes § 8-8 (f).

Nonetheless, under certain circumstances, an appeal may be saved by General Statutes § 52-593a. Section 52-593a (a) provides: "Except in the case of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the CT Page 8185-ae passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within fifteen days of the delivery."

"[Section 52-593a] requires the [marshal] to have the appeal papers within the fifteen-day time limit for an appeal and to make an endorsement under oath on the return of service that the process was delivered within the time limit. The personal delivery requirement is met if the process is mailed to the [marshal] and as long as it is actually received within the fifteen-day time limit. Section 52-593a only applies if the [marshal] receives the process within the statutory time period, and [for example] where a first set of documents mailed within the 15 days was not received, and [where] a second set was delivered after the deadline and then served, the service [is] too late." R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d. Ed. 1999) § 25.10, p. 17; see, e.g., Russell v. Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV 00 0553810 (October 5, 2000, Hurley, J.T.R.) (determining that appeal is saved by § 52-593a because process delivered to marshal within time limited by law and served within fifteen days of delivery).

Applying § 52-593a (a) to this appeal, the Philpots' action would not be lost provided the marshal received the process by April 26, 2002 and served the process within fifteen days of the date the marshal received it. The officer's return fails to indicate, however, in accordance with subsection (b) of the so-called "savings statute," the date that the marshal actually received the process; and there is no evidence to inform the court of this date, which triggers the deadline for timely service. The latest the marshal could have received the process was on the day he served process on the town clerk, April 26, 2002, which is within the time period required by § 52-593a (a). The earliest the marshal could have received the process was the day that the citation and complaint were dated, on April 22, 2002. (Citation; Complaint.) Therefore, the earliest possible deadline for successful service by the marshal under § 52-593a (a) would have been May 7, 2002 (fifteen days from April 22, 2002). The court finds that this appeal is saved by virtue of § 52-593a (a) because all necessary parties were served by May 7, 2002.

General Statutes § 52-593a (b) provides: "In any such case the state marshal making service shall endorse under oath on such state marshal's return the date of delivery of the process to such state marshal for service in accordance with this section."

IV SCOPE OF REVIEW

"In reviewing an appeal from an administrative agency, the trial court CT Page 8185-af must determine whether the agency has acted unreasonably, arbitrarily, illegally or in an abuse of its discretion." (Internal quotation marks omitted.) Smith v. Zoning Board of Appeals, 227 Conn. 71, 80, 629 A.2d 1089, cert. denied, 510 U.S. 1164, 114 S.Ct. 1190, 127 L.Ed.2d 540 (1994). "In light of the existence of a statutory right of appeal from the decisions of local zoning authorities, however, a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty." (Internal quotation marks omitted.) Bethlehem Christian Fellowship, Inc. v. Planning Zoning Commission, 73 Conn. App. 442, 456, 807 A.2d 1089, cert. denied, 262 Conn. 928, 810 A.2d 278 (2002); see also Suffield Heights Corp. v. Town Planning Commission, 144 Conn. 425, 428, 133 A.2d 612 (1957). "The burden of proof is on the plaintiff to demonstrate that the commission acted improperly." Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991).

V

Whether the Board's Reasons for Finding Hardship are Sufficient

The Philpots appeal on the basis that: "No exceptional conditions, practical difficulties or unnecessary hardship was shown." (Amended Complaint, ¶ 4(b).) The Philpots argue that the record does not reasonably support the reasons given by the board to establish hardship and that there is no hardship to support a variance. The Katzmans and the board respond that the board's finding of hardship is adequately supported in the record and that the board's reasons for finding hardship are sufficient. The court agrees with the position of the Philpots.

"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, 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 authority was required to apply under the zoning regulations." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). "The [decision] must be sustained if even one of the stated reasons is sufficient to support it." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995). In this case, the board's notice of decision, dated April 10, 2002, stated: "By unanimous vote the Board acted to find that the requested variance fits the statutory criteria regarding hardship, due to the limitations imposed by the geometry of the lot, which creates a hardship of the land, and because the house was placed on the original survey maps in an incorrect CT Page 8185-ag location." (ROR Item 3.) Therefore, the dispositive issue for this court is whether either of these two grounds is sufficient to support the board's finding of hardship.

"It is well established . . . 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 (Rev. to 1993) § 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 . . . 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." (Citations omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206-08.

"In order to justify a variance, the hardship must differ from the conditions that generally affect the property owners in the same area and it must arise from circumstances beyond the control of the property owner seeking the variance . . . The hardship must originate in the regulation or ordinance and arise from the application of the regulation or ordinance to the subject property . . . Financial considerations are relevant only if the application of the regulation or ordinance practically destroys the value of the property for any use to which it may be put and the regulation or ordinance as applied to the subject property bears little relationship to the purposes of the zoning plan." (Citations omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 209-10. "[L]imitations imposed by the shape of the lot do not in themselves create a hardship . . ." (Internal quotation marks omitted.) Id., 210. "[T]he fact that an owner is prohibited from adding new structures to the property does not constitute a legally cognizable hardship. If it is a hardship to not be able to use one's property as one wishes, then most setback variance applications would have to be granted." (Internal quotation marks omitted.) Id., 210 n. 13.

"To establish a hardship under General Statutes § 8-6, an applicant must show not only that he is thwarted in a desired use of land, but also CT Page 8185-ah that he is being completely or almost completely deprived of the use of the value of that land." Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 546 n. 2, 684 A.2d 735 (1996). "Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship . . . It is well established that the power to grant a variance should be sparingly exercised." (Citation omitted; internal quotation marks omitted.) Id., 548.

As recounted above, the Supreme Court has stated that "limitations imposed by the shape of the lot do not in themselves create a hardship . . ." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 210. Accordingly, the court finds that the board's conclusion that there were limitations imposed by the geometry of the Katzmans' lot cannot, in itself create a legally cognizable hardship.

Thus, the court turns to the board's second ground for finding hardship, i.e., that the house was placed on the original survey maps in an incorrect location. The court finds that there is adequate support in the record for this conclusion and that it was significant to the board's finding of hardship. The remaining issue is whether this conclusion is "pertinent to the considerations which the [board] was required to apply . . ." (Internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 420. In other words, the court must decide whether the existence of a faulty survey map is sufficient to create a legally cognizable hardship.

At the hearing for their application, the Katzmans represented to the board that when they bought the subject property in 1989 they thought that there was enough room to add to the house. (ROR, Item 2, p. 2.) The Katzmans provided to the board a copy of the "original plot plan" from 1951 as their "Exhibit A" and represented that: "This is what was on file with the town; that's what's there now." (ROR, Item 2, p. 3.) The Katzmans then referenced their "Exhibit B," a survey done in 1992 while the Katzmans were building an unrelated addition to their house, which caused them to discover that their house was actually 10 to 15 feet from where they thought it was. (ROW, Item 2, p. 3.) The Katzmans stated: "We bought the house in good faith based on the plot plan on file with the Town of Woodbridge. It was — if the house was built where we thought it was, we would not be here for the variance, everything would fit in fine." (ROR, Item 2, p. 3.)

This is shown by multiple comments made by voting board members during their deliberations. For example, board member Elias stated: "Well, I would think that it is significant in determining hardship the fact that there was a — the survey indicates that the house was in a different location than it actually apparently is according to the drawing, which makes the fact of the odd shaped lot significant. If it wasn't — the house was where it was on this Exhibit A, at least according to what I — my thoughts are on looking at the plan, it would not effect — need a variance even with the odd shaped back lot" (ROR, Item 2, p. 24); and "I would say that the only reason I would think of granting this is because of — I believe that is the hardship issue here is that if the homeowner purchased the home based on a survey that indicated where the house was located on the lot line and it does look . . . If the angle was different that it would not have needed a variance to put on an addition or a reasonably-sized addition if it was placed where this map had said it was." (ROR, Item 2, p. 32.) CT Page 8185-al Board member Barkin stated: "I believe that . . . it is this unusually shaped piece of property evidenced by — also by this early survey that sort of misrepresented the plot of the building, it does create a genuine hardship." (ROR, Item 2, pp. 26-27.) Board member Dickerson stated, "if you look at the two drawings here [presumably Exhibits A and B], you can see very clearly that the house is nowhere near where it was supposed to be placed. And the owners of the property have stated that they believed it was in its proper position. And that's where in this case I can see a hardship, which I could not see prior to tonight, okay? By saying something is one thing, is not the same as showing someone a map which proves it; and I'm looking at this and realizing that if the house had been placed where it was originally intended, it wouldn't be here for a variance." (ROR, Item 2, pp. 30-31.) The board ultimately voted unanimously to grant the variance. (ROR, Item 2, p. 33.)

Neither the Katzmans nor the board have cited any legal authority for finding hardship based on a faulty survey map. Once again, Bloom v. Zoning Board of Appeals, supra, is instructive to this court. The undisputed facts in that case were that the property owners applied for a setback variance after beginning construction of a dormer and stoop on a building in reliance on a building permit and approval of the project by the zoning commission and the zoning enforcement officer. Bloom v. Zoning Board of Appeals, supra, 233 Conn. 200-01. The Supreme Court stated: "It is apparent from the record that the only evidence of hardship that the owners presented to the board consisted of their reliance on an improperly granted building permit. We can reasonably conclude from the record that the board granted the variance because it determined that the owners had received approval for the improvements from the zoning commission and to require the removal of the dormer and the stoop would constitute a hardship." Id., 209. "[T]he owners would not have been entitled to a variance before the improvements were made pursuant to the improperly granted building permit . . . The owners have shown only that their building is located on an irregularly shaped lot . . . CT Page 8185-ai Furthermore, there was not evidence that if the variance were denied the owners' property would become worthless. On the contrary . . . the building housed a restaurant that was a viable business and going concern." Id., 210. "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., 211. Accordingly, the court determined that the owners were not entitled to the variance. Id.

The court finds that the faulty survey map in this case is comparable to the improperly granted building permit in Bloom v. Zoning Board of Appeals, supra, and that the Supreme Court's statement that "[w]e have never held that such an administrative error creates a legal hardship . . ."; Id., 211; applies equally here.

"The hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance . . . and arises directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved." (Internal quotation marks omitted.) Kaeser v. Zoning Board of Appeals, 218 Conn. 438, 445, 589 A.2d 1229 (1991). "Variances cannot be personal in nature, and may be based only upon property conditions . . . In fact . . . [p]ersonal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance . . . [T]he basic zoning principle that zoning regulations must directly affect land, not the owners of land . . . limits the ability of zoning boards to act for personal rather than principled reasons, particularly in the context of variances." (Citations omitted; emphasis added; internal quotation marks omitted.) Reid v. Zoning Board of Appeals, 235 Conn. 850, 857-58, 670 A.2d 1271 (1996). In this case, the basis for hardship, i.e., the faulty survey map, does not originate from a zoning regulation; nor does it arise directly out of the application of a regulation to a condition of the land. Since the claimed hardship is not based on a property condition, it may be considered a personal hardship and not one that justifies a variance.

Furthermore, even if the board had concluded that the Katzmans acted in reliance on the faulty survey map, such a circumstance would not create a legal hardship. See Bloom v. Zoning Board of Appeals, supra, 233 Conn. 209-11 (owners' reliance on improperly granted building permit does not create legal hardship); see also Gurski v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. 324584 (May 13, 1997, Grogins, J.) (finding insufficient hardship to support a variance where owner relied on faulty survey map and consequently paid taxes on more land than she had and could not subdivide her property in CT Page 8185-aj way she envisioned in order to plan retirement).

The court recognizes that the Katzmans represented to the board that they bought the house in good faith based on the faulty survey map. (ROR, Item 2, p. 3.) Nonetheless, "[w]hen a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision." Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). The board's notice of decision indicates, in pertinent part, that the reason for finding hardship was "because the house was placed on the original survey maps in an incorrect location." Thus, the board's basis for its finding of hardship was the mere existence of the faulty survey map and did not include any reference to any finding of reliance by the Katzmans.

Finally, the record reveals that the Katzmans are currently making use of their property as a residential dwelling. (ROE, Item 1; Item 2, p. 2.) This is not a case where the property owners have been completely deprived of the use of the value of their property. Although the Katzmans' disappointment in not being able to construct an addition to their existing home is understandable, it is not a proper basis to find the legal hardship necessary for a variance.

For the above reasons, the court finds that neither of the board's two grounds for finding hardship are legally sufficient. Since a legal hardship is necessary to grant a variance, the court sustains the appeal on this ground.

Thus, it is not necessary for the court to address the Philpots' remaining grounds for their appeal.

For the foregoing reasons, the appeal is sustained.

Robert P. Burns Judge Trial Referee