Opinion
No. CV 07 4006952
June 24, 2009
MEMORANDUM OF DECISION
This is an appeal by the plaintiff from the denial by the defendant, Town of Ledyard Zoning Board of Appeals (the "Board"), of the plaintiff's request for a variance of a front yard setback requirement for a lot owned by the plaintiff at 83 Inchcliff Drive, Ledyard, Connecticut, upon which lot the plaintiff wished to build a house.
The facts in this appeal are not contested. The Board conducted a public hearing on the plaintiff's application on February 21, 2007. Prior to the commencement of the public hearing, the Board's chairman informed the plaintiff and other applicants present that four members of the Board would hear the appeals scheduled to take place that night. Prior to the vote on the plaintiff's application, the Board's vice-chairman advised the plaintiff that three of the four members of the Board hearing his appeal would have to vote in the affirmative for his variance to be approved and offered the plaintiff the opportunity to have the vote on his application postponed to a subsequent meeting. The plaintiff rejected the offer, a vote was taken and three votes were cast in the affirmative. Consistent with the announcement made by the Board's chairman, the plaintiff's variance was considered approved.
On February 22, 2007, the secretary of the Board wrote to the plaintiff and confirmed the approval of his application. On February 26, 2007, notice of the Board's decision granting the plaintiff's variance was published and was recorded in the Ledyard Land Records.
On March 1, 2007, the Board's attorney wrote to the plaintiff and informed him that four affirmative votes were needed to approve his application and, as a consequence, the effect of the vote taken by the Board was to deny his application. A corrected notice of decision was thereafter published.
The plaintiff claims on appeal to this court that the Board is estopped from reversing its decision, the Board's chairman was without authority to correct the decision and the Board was precluded from reversing the decision.
The plaintiff is the owner of property which is situated at 83 Inchcliff Drive, Ledyard, Connecticut, and which is the subject of this appeal. As the owner of the property, the plaintiff is aggrieved by the action of the defendant.
The powers of a municipal zoning board of appeals are derived from § 8-6(a)(3) of the General Statutes, which provides board authority to:
(3) determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their 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 public safety and welfare secured . . .
A zoning board of appeals is endowed with liberal discretion and its decisions are subject to review by the court only to determine whether the board acted arbitrarily, illegally or unreasonably. Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269 (1991). The burden of demonstrating that the board acted improperly is upon the party seeking to overturn the board's decision. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988).
A court should not usurp the function and prerogatives of a zoning board of appeals by substituting its judgment for that of the board where an honest judgment has been reasonably and fairly exercised after a full hearing. Bloom v. Zoning Board of Appeals, supra, 206. The question is not whether another decision maker, such as the trial court, would have reached the same decision, but whether the record complied before the agency supports the decision reached. Calandro v. Zoning Commission, 176 Conn. 439, 440 (1979).
A decision must be upheld if it is supported by substantial evidence. The substantial evidence rule has been defined as similar to and analogous to the standard to be applied in judicial review of jury verdicts. It must be enough to justify, if a trial were to a jury, a refusal to direct a verdict where the conclusion sought to be drawn is one of fact. Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993).
1. Municipal Estoppel
The elements of municipal estoppel are well-established. In Zoning Commission v. Lescynski, 188 Conn. 724, 731 (1982), the Supreme Court stated:
Under our well established law, any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury . . . an exception is made where the party claiming estoppel would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents. (Citations omitted.)
There has been no showing in this case that the plaintiff would incur substantial loss by the denial of his variance. Accordingly, the claim for municipal estoppel is denied.
2. Authority to Correct Decision
The plaintiff claims that the Board's chairman was without authority to correct the decision.
Connecticut General Statutes § 8-7 provides, in part:
The concurring vote of four members of the zoning board of appeals shall be necessary . . . to decide in favor of the applicant any matter upon which it is required to pass under any bylaw, ordinance, rule or regulation or to vary the application of the zoning bylaw, ordinance, rule or regulation.
Pursuant to this statute, the three votes in favor of the plaintiff's application amounted to a denial of the variance. The Board's vice-chairman was without authority to change the provisions of § 8-7 by the statement he made prior to the vote on the plaintiff's application and the subsequent action by the Board to correct the record in accordance with § 8-7 was warranted.
During the hearing in this case, the court ordered the plaintiff's counsel to find a case in any jurisdiction where, in spite of a statutory violation, a published notice of decision was found to be binding on a municipal board. The plaintiff claims in his post-hearing brief that several cases he cites set out the rule that even in light of a statutory violation a municipal board or commission may not reverse a published legal decision. The cases cited by the plaintiff, however, are clearly distinguishable from the present case.
In Kasper v. Board of Appeals of Watertown, 326 N.E.2d 915 (Mass.App.Ct. 1975), the court held that the failure of the defendant board to give the plaintiff abutter notice of a public hearing on a petition for a special permit did not deprive the board of jurisdiction to act on the petition. The abutter had received actual notice of the petition, attended the public hearing and opposed the petition. The Kasper case concerns the adequacy of notice of a public hearing, a matter not involved in the present case.
In Sharp v. Zoning Board of Appeals. 43 Conn.App. 512 (1996), the defendant board voted to grant an appeal by the plaintiff to lift a cease and desist order and published notice of its decision. Subsequently, the board held a second meeting to reconsider its previous decision and reversed its previous decision. The court ordered the reinstatement of the original decision because the board had reopened its decision after publication of notice. In the present case, the Board did not reopen and reverse a prior decision. It merely published a notice to correctly reflect the effect of its decision.
In Tenneco Oil Co. v. City Council of Springfield, 549 N.E.2d 1135 (1990), the defendant city council, on August 24, 1987, voted to grant a special use permit to the plaintiff and filed public notice of its decision. On September 8, 1987, the defendant met and voted to rescind its earlier action. Notice requirements were not complied with in regard to the vote to rescind and, accordingly, the court found that the rescission of the original decision was invalid. As noted in the discussion of the Sharp case, in the present case there was no reconsideration of a prior decision, but merely publication of a notice to correctly reflect the effect of the Board's decision.
In Potter v. Board of Appeals of Mansfield, 294 N.E.2d 587 (Mass.App.Ct. 1973), the defendant board denied a special permit until revised plans were submitted and notice of the decision was filed with the town clerk. Subsequently, the board voted to approve the special permit on conditions, indicating the vote was intended to clarify the prior decision. The court held that the reversal of the original decision was ineffective because of lack of compliance with notice and hearing requirements. Again, in the present case, there was no meeting held to reconsider a prior decision, but merely publication of a notice to correctly reflect the effect of the Board's decision.
In Board of Selectmen of Stockbridge v. Monument Inn, Inc., 391 N.E.2d 1265 (Mass.App.Ct. 1979), the plaintiff board granted a special permit to the defendant to operate a hotel facility subject to certain conditions. A record of the board's proceedings was filed with the town clerk. Approximately four years later, the board sought to require the defendant to comply with additional conditions. The case was returned to the trial court to determine whether the permit was subject to the additional conditions. The decision in the Stockbridge case has no relevance to the present case.
The above cases relied upon the plaintiff do not involve facts similar to the present case and they do not support the plaintiff's claims that the Board's action in the present case was improper.
3. Board was Precluded from Reversing Decision
The final claim made by the plaintiff was that the Board was precluded from reversing its decision.
The immediately preceding section of this decision is equally applicable to this claim by the plaintiff and, therefore, the plaintiff's claim that the Board is precluded from reversing its decision is denied.
4. Conclusion
For the reasons stated above, the plaintiff's appeal is dismissed.