Opinion
No. TTD CV07 4007459
December 16, 2009
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiffs, Joseph and Sonia Criniti, appeal from the decision of the defendant, the Stafford zoning board of appeals (ZBA), granting a variance to Thomas and Jennifer Dwyer, who are also named as defendants.
II FACTUAL BACKGROUND
On April 16, 2007, Thomas and Jennifer Dwyer applied for a variance from § 4.31 of the Stafford zoning regulations. (Return of Record [ROR], Exhibit [Exh.] 1.) Section 4.31 governs the area and frontage requirements for lots in residential districts. The Dwyers own property located at 1 Lake Shore Boulevard in an "AA" residential district in Stafford. (ROR, Exh. 1.) Pursuant to § 4.31 of the Stafford zoning regulations, building lots in the "AA" residential district must have at least 175 feet of frontage on a public street and consist of a minimum of 44,000 square feet. The Dwyers sought a variance from § 4.31 of the zoning regulations in order to create and build a single-family dwelling on a waterfront lot, which would have only 65 feet of frontage and consist of only 19,000 square feet. (ROR, Exh. 1.)
On May 3, 2007, the ZBA held a public meeting on the Dwyers' application. (ROR, Exh. 13.) At its conclusion, the ZBA tabled the Dwyers' application until it could confer with the building inspector, Wendall Avery, and the town attorney, Joseph Paradiso. (ROR, Exhs. 13 and 14.) Thereafter, at its June 6, 2007 meeting, the ZBA unanimously granted the Dwyers' application for a variance. (ROR, Exhs. 15 and 16.) Notice of its decision appeared in the Journal Inquirer on June 13, 2007. (ROR, Exh. 19.) The ZBA did not state any reasons on the record for granting the variance. (ROR, Exh. 19.) The plaintiffs commenced the present appeal by service of process on June 26, 2007. On October 1, 2009, the parties appeared before the court for trial.
III JURISDICTION
"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). General Statutes § 8-8(b) governs appeals from decisions of zoning boards of appeals to the Superior Court.
A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to [a] trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003). A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . . Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665. The standard for statutory aggrievement in zoning appeals is set forth in General Statutes § 8-8(a)(1), which provides in relevant part: "In the case of a decision by a . . . planning and zoning commission . . . `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."
At trial, the parties stipulated to the fact that the plaintiffs own property abutting the Dwyers' property. Based upon this stipulated fact, the court finds that the plaintiffs are statutorily aggrieved by the ZBA's decision pursuant to § 8-8(a)(1).
B Timeliness and Service of Process
Pursuant to General Statutes § 8-8(b), 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: "Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows . . . (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57 . . ." General Statutes § 52-57(b)(5) provides that in an action against a town commission, process must be served "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 . . ."
The ZBA published notice of its decision granting the Dwyers' application for a variance in the Journal Inquirer on June 13, 2007. (ROR, Exh. 19.) The plaintiffs commenced the present appeal by service of two copies of process on Carol Davis, the town clerk, on June 26, 2007. (Marshal's Return.) They served process on the Dwyers on the same date. Accordingly, the court finds that the plaintiffs' appeal was timely and that service of process was proper.
IV SCOPE OF REVIEW
"In reviewing the actions of a zoning board of appeals [the Supreme Court has noted] that such a board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal . . . The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision . . . In an appeal from the decision of a zoning board, [the court] therefore review[s] the record to determine whether there is factual support for the board's decision, not for the contentions of the applicant." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994). "The question is not whether the trial court would have reached the same conclusion . . . but whether the record before the [board] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board." (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, 285 Conn. 381, 427, 941 A.2d 868 (2008).
"When a zoning [board] has not stated on the record the basis of its determination, the reviewing court must search the record to determine the basis for the [board's] decision . . . If any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the [board] must be upheld . . . The evidence, however, to support any such decision must be substantial." (Citations omitted; emphasis in original; internal quotation marks omitted.) Clifford v. Planning Zoning Commission, 280 Conn. 434, 452-53, 908 A.2d 1049 (2006).
V DISCUSSION
The plaintiffs allege that the ZBA acted illegally, arbitrarily and in abuse of its discretion in granting the Dwyers' application for a variance because: (1) the legal notice of the public hearing was defective; (2) the Dwyers failed to establish the existence of a hardship; and (3) the ZBA failed to comply with § 6.62 of the Stafford zoning regulations.
A Whether Notice of the Public Hearing was Defective
The plaintiffs allege that the ZBA lacked jurisdiction to consider the Dwyers' application for a variance because the published notice of the public hearing did not adequately inform those who may be affected by the application of the precise action that the Dwyers were seeking from the ZBA. Specifically, they contend that the notice was inadequate because it failed to state that the Dwyers were seeking not only a variance from the frontage requirement of § 4.31 of the Stafford zoning regulations but also from the square footage requirement of § 4.31. The ZBA and the Dwyers maintain that the notice was legally sufficient, as it identified the subject matter of the application, the location of the property at issue, the owners of the property and the proposed use of the property, thereby adequately informing those who may be affected by the application of the nature and character of the action proposed.
General Statutes § 8-7d governs "all matters wherein a formal petition, application, request or appeal must be submitted to a . . . planning and zoning commission . . . and a hearing is required or otherwise held on such petition, application, request or appeal . . ." It provides in relevant part that "[n]otice of the hearing shall be published in a newspaper having a general circulation in such municipality where the land that is the subject of the hearing is located at least twice" prior to the date of the hearing. "Compliance with prescribed notice requirements is a prerequisite to a valid action by a zoning board of appeals and failure to give proper notice constitutes a jurisdictional defect . . . Strict compliance with statutory mandates regarding notice to the public is necessary . . . The burden of proving that the notice was defective rests on the persons asserting its insufficiency." (Citations omitted; internal quotation marks omitted.) Urbanowicz v. Planning Zoning Commission, 87 Conn.App. 277, 299, 865 A.2d 474 (2005).
"[I]mperfections in the contents of a notice do not automatically deprive a zoning board of the authority to act on an application. A notice is not misleading even though it does not describe the proposed action in detail or with exactitude . . . Notice of a hearing is not required to contain an accurate forecast of the precise action which will be taken upon the subject matter referred to in the notice." (Citation omitted; internal quotation marks omitted.) Mohican Valley Concrete v. Zoning Board of Appeals, 75 Conn.App. 45, 53, 815 A.2d 145 (2003). However, it "must fairly and sufficiently [apprise] those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing, if such action seems desirable." (Internal quotation marks omitted.) Cassidy v. Zoning Commission, 116 Conn.App. 542, 543-44, 976 A.2d 29 (2009).
In the present case, the plaintiffs have not met their burden of proving that the published notice of the hearing on the Dwyers' application for a variance was defective. The ZBA published notice of the hearing in the Journal Inquirer on April 20, 2007 and April 27, 2007. (ROR, Exh. 12.) The notice stated: "Application of Thomas Dwyer requesting variance of Section 4.31 to construct residential dwelling on lot with insufficient frontage. Location: 1 Lake Shore Boulevard, Assessor's Map #15A, Lot #34.1, AA Zone." (ROR, Exh. 12.) Even though the notice does not state that the lot has insufficient square footage, it sufficiently apprises those who may be affected by the application of the nature and character of the action proposed, as it states that the Dwyers are seeking a variance from § 4.31 in order to construct a residential dwelling on a nonconforming lot. As noted supra, the notice need not describe the proposed action with exactitude. Consequently, the court finds that the notice was not defective.
B Whether the Dwyers Established a Legal Hardship
The plaintiffs assert that the Dwyers failed to establish a hardship on which to base a variance from the zoning regulations. They argue that the Dwyers' contention that their lot conforms to and exceeds the size of adjacent neighborhood lots does not provide a basis for finding a hardship and that if anything, it demonstrates that the zoning regulations do not affect their property differently than other properties in the neighborhood. They also argue that any hardship that the Dwyers' may have is personal and financial, as they are seeking a variance in order to subdivide their property and build a "nicer" house for themselves on the waterfront lot. The ZBA and the Dwyers counter that they did demonstrate a hardship because the lot on which they are seeking to build their new house existed prior to 1983, has only 65 feet of frontage on a public street and consists of only 19,000 square feet. Therefore, strict adherence to the zoning regulations would prevent the lot from being developed for any purpose, as it lacks the minimum amount of frontage and square footage required for lots in the "AA" residential district.
"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(a)(3)] 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." (Internal quotation marks omitted.) Moon v. Zoning Board of Appeals, 291 Conn. 16, 24, 966 A.2d 722 (2009). Section 6.61 of the Stafford zoning regulations contains similar language.
Section 6.61 of the Stafford zoning regulations provides in relevant part: "The Zoning Board of Appeals shall have the following powers and duties . . . c. To determine and vary any requirement of the Zoning Regulations in harmony with their general purposes and intent so that substantial justice may be done. This authority shall be exercised solely in instances where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of these Regulations, and shall maintain the security of public health, safety and welfare."
In the present case, there is no dispute that there is substantial evidence in the record to support a finding that the Dwyers demonstrated that the requested variance would not substantially affect the comprehensive zoning plan, as single-family homes are permitted as of right in the "AA" residential district. See Stafford Zoning Regs., § 4.21. There is, however, a dispute over whether there is substantial evidence in the record to support a finding that the Dwyers demonstrated that strict adherence to the zoning regulations results in an unusual hardship to their property. At the May 3, 2007 public hearing, upon being asked to state the hardship, Tom Dwyer stated: "[N]ew lot conforms to and exceeds size of adjacent neighborhood lot[s] none of which conform to § 4.31." (ROR, Exh. 13, p. 12.) Tom Dwyer further testified that his wife and he intended to build a single-family dwelling on the "new" lot and sell off their existing house and the lot on which it is located in order to fund the construction of the new house. (ROR, Exh. 13, p. 10.)
According to the Dwyers and the ZBA, the Dwyers' property consists of two separate lots. The map attached to the Dwyers' application does indicate that the Dwyers' property consists of lots 35 and 34.1. (ROR, Exh. 1.) The lot for which the Dwyers were seeking a variance, lot 34.1 on the map, according to them, has lacked the requisite frontage and square footage since its creation, which was prior to the Dwyers' ownership of it. Therefore, they argue that a strict application of the zoning regulations imposes a unique hardship on the Dwyers' property because it deprives them of the reasonable use of their property, as they cannot build a house on it. In contrast, the plaintiffs contend that the Dwyers own a single lot and that even if the Dwyers' property consisted of two lots at one time those lots have since merged pursuant to § 3.05 of the Stafford zoning regulations, which provides that "[w]here two (2) or more non-conforming adjoining lots of record are in the same ownership, then such lots shall be combined to meet, or more nearly meet, the lot area and lot frontage requirements of these regulations." Stafford Zoning Regs., § 3.05. They accordingly argue that the Dwyers failed to establish the existence of a hardship because they would not be deprived of the reasonable use of their property without the variance, as they already have a single-family home on the property.
After reviewing the record, the court concludes that it does not contain substantial evidence in support of a finding that the Dwyers established a hardship. At the May 3, 2007 public hearing, Tom Dwyer explained that "prior to 1983 [the] lot where [their] house sits now was a lot of record and by itself the other parcel was added on because . . . one time the (Reynolds?) owned [the Dwyers'] property the Criniti's property they split off a chunk and added it onto [the Dwyers']." (Emphasis added.) (ROR, Exh. 13, p. 9.) This apparently occurred prior to the Crinitis' deed. (ROR, Exh. 13, p. 10.) Besides this testimony, there is no evidence in the record regarding the creation of the lot in question or its chain of title. "Where the applicant or his predecessor creates a nonconformity, the board lacks power to grant a variance. Where, however, the hardship is created by the enactment of a zoning ordinance and the owner of the parcel could have sought a variance, a subsequent purchaser has the same right to seek a variance and, if his request is supported in law, to obtain the variance." CT Page 1218 Kulak v. Zoning Board of Appeals, 184 Conn. 479, 482, 440 A.2d 183 (1981). There is no evidence in the record establishing that the claimed hardship was not self-created; that is, that it was created by the enactment of the zoning regulations as opposed to by the Dwyers or their predecessors in interest. "[I]t is well settled that . . . self-created hardship is not considered grounds for a variance." Farrington v. Zoning Board of Appeals, 177 Conn. 186, 189, 413 A.2d 817 (1979).
Moreover, "[m]erger may occur if the owner of contiguous lots intends to form one tract . . . or by operation of law . . . The one occasion . . . where merger may occur by operation of law is that found in some zoning regulations that may require, either expressly or implicitly, that under certain conditions a nonconforming lot merges with contiguous land owned by the same owner . . . Whether a zoning regulation requires two commonly owned and adjacent lots to be merged is ascertained by examining the regulation itself." (Citations omitted; internal quotation marks omitted.) Goulet v. Zoning Board of Appeals, 117 Conn.App. 333, 339-40, 978 A.2d 1160 (2009). As noted by the plaintiffs, § 3.05 of the Stafford zoning regulations provides that two or more nonconforming adjoining lots of record in the same ownership "shall be combined." Stafford Zoning Regs., § 3.05. In addition, the Dwyers' application and statements at the public hearing indicate that they believed they were seeking a variance to subdivide their property and create a waterfront lot, which suggests that they had previously treated the lots as one. (ROR, Exhs. 1 and 12, p. 12.) Consequently, the lots may have been merged by the Dwyers' intent for them to form one lot. If the lots have been merged then the Dwyers' hardship would be self-created, as "[t]he desire to subdivide property into [two] lots is a voluntary hardship created by the applicant requiring denial of a variance." (Internal quotation marks omitted.) Dupont v. Zoning Board of Appeals, 80 Conn.App. 327, 330, 834 A.2d 801 (2003).
At trial, the Dwyers argued that the travel and sewer easement on their property prevents the lots from merging. This may be the case, as a right-of-way can interrupt the contiguity of adjoining lots. See Bankers Trust Co. v. Zoning Board of Appeals, 165 Conn. 624, 634, 345 A.2d 544 (1974) (holding that a parcel divided by a forty-foot, 0.32-acre right-of way "cannot reasonably be considered a single lot under a generally accepted definition of lot and under the circumstances of this case"). However, overall, the record lacks substantial evidence to support a finding that strict adherence to the zoning regulations imposes an unusual hardship on the Dwyers' property, as it contains insufficient evidence demonstrating that the Dwyers' hardship is not self-created, either by a predecessor in interest or by merger of the lots and a subsequent desire to redivide the lots.
C Whether the ZBA Complied with § 6.62 of the Zoning Regulations
The plaintiffs contend that the decision of the ZBA must be overturned because it failed to make specific findings prior to granting the variance, as required by § 6.62 of the Stafford zoning regulations. In light of the court's determination that the record does not contain substantial evidence to support a finding of hardship, it is not necessary for the court to address this additional ground.
VI CONCLUSION
Based on the foregoing, the plaintiff's appeal from the decision of the ZBA granting a variance to the Dywers is sustained.