Opinion
No. CV 03-0475864 S
September 22, 2004
MEMORANDUM OF DECISION
STATEMENT OF APPEAL
The plaintiffs, Fifteen North Plains Industrial Road, LLC, and Precious Cargo Daycare and Learning Center, Inc., appeal from a decision of the defendant, the Wallingford zoning board of appeals, in which the board granted a variance application of the defendant, Walter Vining.
II. BACKGROUND
The defendant, Walter Vining, applied for a variance from § 6.10.B.2 of Wallingford's zoning regulations, the regulation setting forth the setback requirements for processing machinery, seeking "to operate a small scale materials processing operation." (Return of Record [ROR], Exhibit 1.) Vining sought to vary the setback from the required 200 feet to 16 feet. (ROR, Exh. 1.) The stated hardship was "the shape of the property as well as the location of wetlands dictates where the screener must go." (ROR, Exh. 1.) Following a public hearing conducted on March 3, 2003, and continued to March 17, 2003 (ROR, Exhs. 4; 8); the board approved the application "[t]o compensate for an irregularity in the land" (ROR, Exh. 1.)
The plaintiffs are Fifteen North Plains Industrial Road, LLC, the owner of "property . . . known as 15 North Plains Industrial Road," and Precious Cargo Daycare and Learning Center, Inc., the "lessor of 15 North Plains Industrial Road upon which it operates a day care center . . . [caring] for one hundred forty-three (143) children." (5/28/03 Amended Appeal, ¶¶ 1, 2.) They filed this appeal with the Superior Court on April 1, 2003, alleging that the board's approval of the variance application was arbitrary, illegal and an abuse of its discretion. The court, Burns, J., conducted the trial on March 2, 2004.
This appeal was consolidated with Fifteen North Plains Industrial Road, LLC v. Wallingford Planning Zoning Commission, Superior Court, judicial district of New Haven, Docket No. CV 03 0477240, by order of the court, Radcliffe, J., on August 25, 2003.
III. JURISDICTION
General Statutes § 8-8 governs an appeal from a zoning board of appeals to the Superior Court. A plaintiff may take advantage of a statutory right of appeal only by complying strictly with the statutory provisions governing that right. 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 matter of an administrative appeal." (Emphasis added; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). "Aggrievement is an issue of fact . . . and credibility is for the trier of the facts." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning and Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001). Fifteen North Plains and Precious Cargo allege that they "are aggrieved by the actions of the defendant." (5/28/04 Amended Appeal, ¶ 15.)
General Statutes § 8-8(a)(1) provides, in part, that "`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." The transcript of the March 17, 2003 public hearing reflects that Attorney Vincent McManus attended the hearing and stated on the record that he "represent[ed] the abutting property owner . . . in this matter." (ROR, Exh. 9, p. 3.) In addition, at the time of trial, a deed was submitted into evidence evincing the ownership interest of Fifteen North Plains in said property. (Plaintiffs' Exh. A.) Accordingly, the court finds that Fifteen North Plains and Precious Cargo have pleaded and proven aggrievement.
B. Timeliness and Service of Process
General Statutes § 8-8(b) provides that "[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 that "[s]ervice 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."
Fifteen North Plains and Precious Cargo allege that notice of the decision with respect to the subsequent application was published on March 21, 2003. (5/28/03 Amended Appeal, ¶ 13.) The application, itself, states that the decision was published in the Record Journal on March 21, 2003. (ROR, Exh. 1.) This appeal was commenced by service of process on the proper parties on March 26, 2003. Accordingly, this appeal was commenced in a timely manner.
IV. SCOPE OF REVIEW
"The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . ." (Internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) Id.
"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, supra, 259 Conn. 420. The board's stated reason for granting the variance application was "[t]o compensate for an irregularity in the land" (ROR, Exh. 1.) Accordingly, this court will confine its search of the record to determining whether the record supports that reason.
"A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). The granting of a variance, however, "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 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." (Citations omitted; internal quotation marks omitted.) Id., 206-07.
V. DISCUSSION
Fifteen North Plain and Precious Cargo appeal on the grounds that Vining, the applicant, failed to disclose his interest in the subject property on the application, and that the application proposed a "temporary screening operation," which constitutes a personal hardship, rather than the statutorily-required unusual hardship that runs with the land They further appeal on the basis that Vining's site plan was deficient, there is no hardship, and that the impetus for the application was financially based. In addition, they claim that Vining failed to apply to the wetlands commission for a permit, and, finally, that the board failed to consider the public safety and welfare when it approved the application.
Vining counters that he has a sufficient interest in the subject property to apply for a variance because he has demonstrated that he is a real party in interest. He further argues that substantial record evidence supports the board's approval of his variance application.
The board represents that it had requested additional evidence to determine whether Vining had a sufficient interest in the property to request a variance, but that the present record reveals that the owner consented and intends to use some of the fill from Vining's operation. The board concludes, therefore, that Vining had a sufficient interest to apply for a variance.
A. Whether the Applicant Had a Sufficient Interest in the Subject Property to Request a Variance
"[T]he standard for determining whether a party has standing to apply in a zoning matter is less stringent [than establishing aggrievement]." Gladysz v. Planning Zoning Commission, 256 Conn. 249, 257, 773 A.2d 300 (2001). "[I]t is not possible to extract a precise comprehensive principle which adequately defines the necessary interest which a nonowner must possess in order to have standing to apply for a special permit or a variance. The decisions have not been based primarily on whether a particular applicant could properly be characterized as an optionee or a lessee, but, rather, on whether the applicant was in fact a real party in interest with respect to the subject property. Whether the applicant is in control of the property, whether he is in possession or has a present or future right to possession, whether the use applied for is consistent with the applicant's interest in the property, and the extent of the interest of other persons in the same property, are all relevant considerations in making that determination." Richards v. Planning Zoning Commission, 170 Conn. 318, 323-24, 365 A.2d 1130 (1976).
"The gist of the action is the same. It is still a mere possessory action and possession alone will maintain it so far as the plaintiff's right is concerned. The person in possession the law regards as owner, except in a content with one who has the true title." Fowler v. Fowler, 52 Conn. 254, 257. Accord Cavallaro v. Chapel-Heights Corporation, 141 Conn. 407, 411. Antenucci v. Hartford Roman Catholic Diocesan Corporation, 142 Conn. 349, 355.
In the present appeal, the record demonstrates that Vining signed the application as the "applicant," and Keith Devit signed the application as the "property owner of record." (ROR, Exh. 1.) Further, Vining submitted the affidavit of the owner of record, Devit, attesting to Devit's ownership of the subject property, and further attesting that Vining has equipment at the property, and that Vining has Devit's permission to use the equipment as long as Devit "doesn't need the room." (Supp. ROR.) The record also reflects that Devit would "use [the material produced] as fill material, which is allowed, in his own operation in our site." (ROR, Exh. 9, p. 2.)
In DiBonaventura v. Zoning Board of Appeals, 24 Conn.App. 369, 588 A.2d 244, cert. denied, 219 Conn. 903, 593 A.2d 129 (1991), at issue was an application for a certificate of approval for a used car dealership and a car repair business. The father, the owner of the subject property, intended to provide the land for the business, and the son, the sole listed applicant of record, planned to operate and manage the business. The zoning board of appeals denied the application. The plaintiffs appealed, but the trial court concluded that neither plaintiff could prove aggrievement. The court reasoned that the father, the property owner, had not been an applicant for the certificate and "had failed to establish that his interest had been injuriously affected by the decision." Id., 373. The trial court further determined that the son, the applicant of record, had failed to "prove a legally enforceable interest in the subject matter of the decision." Id., 373.
The Appellate Court disagreed, concluding that "given the special circumstances presented by this case — the property owner's written consent to his son's use of that property, the appearance of father and son before the board as applicants, and the board's admission in its pleading that the plaintiffs were applicants — that the trial court's decision that neither plaintiff is aggrieved is an overly technical application of the test for aggrievement." Id., 376-77.
In the present appeal, the court finds that Vining is a real party in interest vis-a-vis the variance application. Vining signed the application in his capacity as the "applicant" and has produced written evidence demonstrating the owner's approval of the application.
Therefore, the court will not sustain the appeal on this basis.
B. Whether the Record Supports the Board's Reason for Granting the Variance Application
As previously set forth, Vining sought a sideyard setback variance from the 200 feet required by § 6.10.B.2 to a proposed setback of 16 feet in order to operate a small-scale materials processing operation. The subject parcel is located in an industrial district (I-40) zone (ROR, Exh. 1); and, subject to site plan approval, the processing of materials is a permitted use in the district. (ROR, Exh. 12, § 4.8.B.3.) The board granted the application "[t]o compensate for an irregularity in the land" (ROR, Exh. 1.)
Section 6.10.B.2 provides "No processing machinery shall be erected or maintained on the lot within 200 feet of any property or street lines, and any such machinery shall be removed from the lot upon termination of the permit. No materials shall be stockpiled and no equipment or structures covered by the permit shall be operated or located outside the permit area. Except in an industrial district, no screening, sifting, washing, crushing or other forms of processing shall be conducted upon the premises. No other machinery, not required for the operation, shall be on the site." (ROR, Exh. 12.)
With respect to variances, the regulations provide that "Variances, where by reason of exceptional narrowness, shallowness, shape, topographical or unusual condition of a specific property, and not common to the surrounding areas as a whole, and where the strict application of the requirement or limitations of any district would result in peculiar and undue hardship upon the use of the property, as contrasted with merely granting an advantage or convenience, the regulations may be varied." (ROR, Exh. 12, § 9.1.H.) Section 9.1.H.1 further provides that prior to "granting a variance on the basis of unusual difficulty or unusual hardship, the [board] shall consider the following conditions: (a) That if the owner complies with the provisions of these regulations, he would not be able to make any reasonable use of his property. (b) That the difficulties or hardship are peculiar to the property in question, in contrast with those of other properties in the same district. (c) That the hardship was not the result of the applicant's own action. (d) That the hardship is not merely financial or pecuniary." (ROR, Exh. 12, § 9.1.H.1.a.b.c.)
The topography of an applicant's parcel may constitute a hardship justifying the approval of a variance; however, "[t]o support the granting of a variance, a hardship must arise from a condition different in kind from that generally affecting properties in the same zoning district and must be imposed by conditions outside the property owner's control." Stillman v. Zoning Board of Appeals, 25 Conn.App. 631, 636, CT Page 14192 596 A.2d 1, cert denied, 220 Conn. 923, 598 A.2d 365 (1991).
At the March 3, 2003 public hearing, the chairman reiterated that Vining sought the variance "to locate earth materials' processing machinery 16 feet from the property line, where a minimum of 200 feet are required for an earth materials' processing operation . . ." (ROR, Exh. 5, p. 4.) Vining emphasized that he had to move the screener away from the wetlands that were located on the property because, at the present time, the screener was sitting on the wetlands buffer. (ROR, Exh. 5, p. 4.) The assistant town planner also attended the hearing, and he informed the board that he had been present at a meeting involving Vining and the wetlands consultant, and that the consultant advised Vining "to move the equipment and the stockpile back out of the wetlands buffer . . ." (ROR, Exh. 5, p. 6.)
The March 3, 2003 public hearing was continued to March 17, 2003, where Vining's licensed professional engineer, Christopher Juliano, spoke on behalf of the application. Juliano stated that "[t]he reason for the variance is to keep . . . both the operation and stockpiling as far away from the wetlands and wetlands buffer as possible. These are some sensitive areas in this location . . . In addition, the location of the screener and the stockpile is well over 200 feet away from the . . . abutting property owner, which at one time was Verna Home Builders and I understand now it's an operational day care facility. So we should have little to no impact on the facility." (ROR, Exh. 9, p. 2.) Referring to the site map (ROR, Exh. 2); Juliano further explained that "the southern bound along the daycare is 328 feet long. The northeastern bound along Church Street, if you add the two distances, you're about 303 feet. So if we were to put in a 200-foot offset — front setback from North Plains Industrial Road, 200 feet back, and a 200-foot setback from the Wilbur Cross, they would be overlapping each other. So that is the hardship. We can't go anywhere on this property that we're not in violation of the 200-foot setback. That is the hardship — coupled with the fact that there is a standing wetlands running through the middle on which we would not be able to locate a use such as this because it would be a filling operation and the attendant possibility of fill going into the wetlands. There is the hardship. The screening operation just cannot be put on this piece of property without violating that 200-foot setback. This is a location in which we maintain at least 200 feet from the daycare. We're next to the Wilbur Cross Parkway, which is probably the best location for it and as far away from 68 as we can be without affecting the proposed use. We're off North Plains Industrial Road. It won't be visible — won't affect the wetland So this is probably one of the best locations on the site. Again, the property is too narrow. It's only 300-303 feet, 328 feet. If you offset 200 feet from any setback or from any property line, you're going to be in violation. Therein lies the hardship." (ROR, Exh. 9, p. 6.)
Following the close of the March 17 public hearing, a motion was made to "approve the variance to compensate for an irregularity in the land on the property line." (ROR, Exh. 9, p. 8.) The motion passed, with four in favor and one opposed. (ROR, Exh. 9, p. 8.)
An examination of the site plan map reveals that the existence of wetlands on the parcel, coupled with the location of the wetlands in the middle of the property, constitutes a topographical condition sufficient to support the board's approval of Vining's variance application.
The other basic requirement authorizing a board to grant a variance is that "the variance must be shown not to affect substantially the comprehensive zoning plan . . ." Bloom v. Zoning Board of Appeals, supra, 233 Conn. 207. "A comprehensive plan has been defined as a general plan to control and direct the use and development of property in a municipality or a large part thereof by dividing it into districts according to the present and potential use of the properties." (Internal quotation marks omitted.) First Hartford Realty Corp. v. Plan Zoning Commission, 165 Conn. 533, 541, 338 A.2d 490 (1973).
Here, as discussed, supra, the subject parcel is located in an industrial district zone (ROR, Exh. 1); and, subject to site plan approval, materials processing is a permitted use. Accordingly, the board could have found that the requested variance did not violate the comprehensive zoning plan.
B. CONCLUSION
For the foregoing reasons, the court dismisses the appeal of Fifteen North Plains and Precious Cargo.
Robert P. Burns
Judge Trial Referee