Opinion
No. CV 07 4015865S
July 24, 2008
MEMORANDUM OF DECISION
This is an appeal by plaintiffs James and Allison Gozzo from an October 1, 2007 decision by the Simsbury Zoning Commission (commission) granting a home occupation special permit request by the Gozzos with conditions. This appeal addresses the legality of the conditions placed on the grant of the special permit.
The following facts contained in the record are not in dispute. The plaintiffs own the property at 22 Bushy Hill Road, Simsbury, Connecticut. The property is a .6-acre lot in the R-15 residential zone. There are two buildings on the property: a single-family home and an accessory building. The plaintiffs use the accessory building for a home occupation, specifically a furniture restoration business. Because the property is in the R-15 zone, home occupations are permitted only by special permit. (Return of Record (ROR) at A, p. 26.) The regulations define "home occupation" as "An occupation customarily carried on by an occupant of a dwelling unit as a secondary use which is clearly incidental to the use of the dwelling unit for residential purposes." Id. at p. 11. The regulations regarding home occupations provide that:
Such occupation or profession shall be carried on wholly within the principal building or within an accessory building, and not more than one person outside the family shall be employed. There shall be no exterior storage of material and no other exterior indication of the home occupation or profession or variation from the residential character of the building, except that signs in accordance with Article Ten, Section C are permitted.
Id. at A, p. 26. When considering an application for a home occupation, the commission is required to consider the following:
a. The need for the proposed use in the proposed location;
b. The existing and future character of the neighborhood in which the use is to be located;
c. The location of main and accessory buildings in relation to one another;
d. The height and bulk of buildings in relation to other structures in the vicinity;
e. Traffic circulation within the site, location, amount, and access to perking, traffic load or possible circulation problems on existing streets;
f. Availability of water to the site and adequate disposal of sewage and storm water;
g. Location and type of display signs and lighting, loading zones, and landscaping;
h. Safeguards to protect adjacent property and the neighborhood in general from detriment.
Id. at p. 30-31.
The owner prior to the plaintiffs obtained a special permit for a home occupation in 1991. While the plaintiffs likely could have operated the business under the existing permit, the plaintiffs nevertheless decided to apply for and received their own home occupation special permit in 2001.
A few years after the plaintiffs purchased the property and obtained the special permit, an abutting property that is zoned industrial was developed into a self-storage facility. Lights and noise coming from activity at the abutting facility have caused problems for the plaintiffs' autistic daughter. (ROR at B, item 1, p. 3.) As a result of these health effects, the plaintiffs decided they needed to move from their home yet wanted to continue to operate the restoration business in the accessory building and rent the house to another occupant. This is not permitted under Simsbury zoning regulations because the regulations require the person operating the business to be an occupant of the dwelling unit of the property that is used for the home occupation. (ROR at A, p. 11.) Because the plaintiffs would no longer be living at the property, they would not be able to operate a home occupation there without a variance from the Zoning Board of Appeals. (ROR at C, item 9.) The plaintiffs applied for a variance and the Simsbury Zoning Board of Appeals (board of appeals) granted their application on May 23, 2007. The variance permitted ". . . use of the existing business premises by someone other than the person in residence in the existing single family house . . ." (ROR at C, item 2). The plaintiffs then applied to the commission for a new home occupation special permit, based on the variance.
The zoning regulations require the commission to hold a public hearing regarding a home occupation permit application before the permit can be approved. The commission held two hearings on the plaintiffs' application. The first hearing was held on July 16, 2007. At the first hearing, the commission decided to continue the matter to a later time so that they could receive guidance from the town attorney for their decision. (ROR at B, item 1, p. 13.) The second hearing, where the special permit was granted, was held on October 1, 2007.
At the first hearing, the plaintiffs' attorney Donahue gave the commission an overview of the history of the property and the need for the special permit. Attorney Donahue said that the adjacent self-storage site "impedes the Gozzo family because they have a daughter who is autistic, and this causes a health crisis in their family in their household. Mr. Gozzo wishes to proceed to be able to continue to operate his fine business there on the site, but to rent that house out to someone that doesn't have children . . ." Id. at p. 3, lines 1-6. When asked whether Mr. Gozzo could move the business to another location, Attorney Donahue replied, "he's very pleased with the location and just assume not." Id. at p. 6, lines 1-2.
The chairman and other panel members expressed reluctance to approve the application for the special permit despite the variance granted by the board of appeals. In reference to the variance, one panel member stated "I understand the action of the [board of appeals], but I'm not really quite sure what the land use, the land use hardship is." Id. at p. 9, lines 1-3. The chairman said that "I don't dispute this might be emotional and other difficulties, which are unique to the property, but our job is to look the land use issue, and I'm having difficulty finding what the land use hardships were." Id., lines 19-23. The chairman reiterated his concerns later in the hearing: "I'm not hard-hearted as to the personal problems that are involved here, but our job is to look at it as the land use issue. And I'm concerned that, a special exception on this matter, no matter what the [board of appeals] has said, could be a virtual semi-rezoning of the property." Id. at p. 13, lines 17-22.
Other panel members stated a clear desire to help the plaintiffs and find a way to approve the application. One member said "I'd like us to look at how we can make this happen as opposed to how we could stop it from happening, because they're in a bad spot." Id. at p. 13, lines 7-9. Another panel member echoed the concern of his colleague: "I guess that's what we're going to talk to the town attorney about, what we can and can't do, but I'd like to try to figure out a way that we could do it." Id. at 13, lines 13-16.
The commission then went on to hear public comment on the application. Joaquin Sastre, a neighbor of the plaintiffs, was the only member of the public to speak and he expressed his opposition to the application. Regarding the application, Mr. Sastre said "And so, now they're asking for this change, which in effect would give anybody the right to operate a business because . . . you can sell the property and the new owner could be a box-site landlord, renting the house to one party and renting the business to yet another party." Id. at p. 17, Line 22 — p. 18, line 3. He also stated his concern that "It's . . . not the character of the residential neighborhood." Id. at p. 18, lines 10-11. The matter was referred to the town attorney for advice and continued until October 1, 2007.
Following discussions with the town attorney, Hiram Peck, the Director of Planning, wrote a letter informing the commission of the scope of their consideration and possible conditions that may be attached to the grant of the special permit. (ROR at C, item 15.) In that letter, the director recommended that ". . . the Commission determine how the site will be used if the Special permit is granted." Id. at p. 1. He also wrote, "If it decides to approve the application the Commission may attach conditions which are directed at addressing the conditions presented in the application." Id. at p. 2. Specifically, "The commission might wish to explore the possibility with the applicant if a condition that the Special Exception expires when the applicant sells the property or relocates his business to another legal location is acceptable." Id.
During the October 1, 2007 hearing, members of the commission expressed their continued reluctance to grant the application. Regarding the approval of the special permit, the chairman said, "I don't see how we can frankly do it." (ROR at B, item 2, p. 13, lines 4-5.) The chairman reiterated his position later in the hearing by saying "So, I just can't, in my own mind, split the difference. And it's a difficult issue, but I don't see how it can be resolved other than lease the entire property and find another property for the business and for living until the property is sold." Id. at p. 13, lines 2-7. A panel member noted that they "continue to have a problem with the need for the proposed use." Id. at p. 16, lines 15-16. Mr. Sastre, the plaintiffs' neighbor, spoke again and said "I hope they won't pass this because, based on the zoning regulations, I don't think it can be allowed." Id. At p. 7, lines 16-18.
Other members of the panel expressed their concern with the application, but showed willingness to approve it with conditions. One panel member noted that they "have a problem with the need for the proposed use and the proposed location and the safeguard to protect the adjacent parties of the neighborhood in general from detriment." Id. at p. 13, lines 19-22. The panel member continued, saying "I was hoping that we have the ability to condition the grant of a special exception in this instance, impose a condition that the property owner has to continue to operate the business. I mean, one of the reasons you don't want to have split business uses and residential uses is that the business use will start detracting the residential character of the zone." Id. at p. 13, line 23 — p. 14, line 7. Attorney Donahue, the plaintiffs' attorney responded, "I think you can condition the special permit . . ." Id. at p. 14, lines 20-21. Another panel member stated, "I would be in favor of approving a special permit with certain restrictions. And not when years are involved . . . but until certain events happen, such as, as long as the owner of the home remains the owner of the home and is the person running the business . . ." Id. at p. 19, lines 8-15.
At the conclusion of the hearing, a panel member moved to "approve the special exception condition [sic] upon the owner of the property being the party [sic] both owns and operates the business and . . . that the special exception is personal, it does not run with the land." Id. at p. 21, lines 12-16. The commission then voted to approve the special permit. In its letter to the applicants, the commission noted their approval of the application for a special permit and attached the following conditions:
1. This Special Exception shall pertain only to the present owner of the property and shall not run with the property.
2. The applicant is required to continue to own the property as long as he continues to use the existing accessory building for the conduct of the furniture refinishing business.
3. The applicant is required to file an annual certification with the Planning Office on October 1, as to whether they are still in compliance with the requirements of this Special Exception. If this annual certification is not filed the Commission may take whatever enforcement action it deems appropriate.
(ROR at D). The plaintiffs are appealing specifically from these conditions and not the grant of the special permit.
"Pleading and proof of aggrievement are prerequisites to a 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). "It is therefore fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." Id. During the hearing, Mr. Gozzo testified that he owns the property at 22 Bushy Hill Road. The plaintiffs' testimony was uncontested by the commission and there is no question that the plaintiffs own the property that is the subject of this appeal. As the owners of the property, the plaintiffs are statutorily aggrieved and have standing to bring this appeal. Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991).
The plaintiffs claim that the conditions are arbitrary, capricious and inconsistent with Connecticut law because first, special exceptions cannot be personal in nature and must run with the land and second, there is no provision of the zoning regulations that provides for permit holders to certify compliance annually. Pls' compl., ¶ 8.
"The parameters of the commission's review of a special permit application are well established. When considering an application for a special permit, the commission acts in an administrative capacity. The commission's sole function is to determine whether the applicant's proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations are satisfied." (Internal quotation marks omitted.) Kobyluck v. Planning and Zoning Commission of the Town of Montville, 84 Conn.App. 160, 169-70, 852 A.2d 826 (2004). Conditions attached to the grant of a special permit are not per se invalid and their validity must be determined on a case-by-case basis. Id. at 171. "The trial court should reverse the zoning board's actions only if they are unreasonable, arbitrary or illegal . . ." (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 102 Conn.App. 863, 869, 927 A.2d 958 (2007).
The plaintiff claims that the first condition is invalid because it is personal to the applicant and does not run with the land. Several persuasive authorities support the plaintiffs' argument. "[A] special permit may not be conditioned to terminate when the title to the land is conveyed to one other than the applicant." Anderson, American Law of Zoning (4th Ed. 1996) § 21.32, p. 820. In his land use treatise, Judge Fuller explains that a special permit runs with the land under Connecticut law. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (3rd Ed. 2007) § 53:8, p. 254. Judge Fuller cites two Superior Court cases to support this rule: Beeman v. Guilford Planning Zoning Commission, Superior Court, Docket No. CV99 0427275, (April 27, 2000, Downey, J.) [27 Conn. L. Rptr. 77] and Griswold Hills of Newington Limited Partnership v. Town Plan and Zoning Commission of the Town of Newington, Superior Court, judicial district of Hartford-New Britain, Docket No. CV95 0705701S (June 9, 1995, Berger, J.) [14 Conn. L. Rptr. 405].
In Griswold-Hills, the court noted a Supreme Court decision holding that variances run with the land: Garibaldi v. Zoning Board of Appeals of the city of Norwalk, 163 Conn. 235, 239, 303 A.2d 743 (1972). The court also relied on a decision by the Appellate Court holding that, like a variance, a wetlands permit also runs with the land: Fromer v. Two Hundred Post Associates, 32 Conn.App. 799, 805, 631 A.2d, 347 (1993). The court reasoned that "There is no real difference, in terms of this discussion, amongst any of the land use permits whether it be an inland wetlands permit, a variance, a site plan, special permit or subdivision permit." The court held that "the special permit approval and site plan approval run with the land." Griswold-Hills, supra.
In Beeman, the trial court examined a condition similar to the first condition in this case that a special permit would become void if the property was transferred to a new owner. The court agreed with the holding in Griswold-Hills that a special permit runs with the land. Citing to the Supreme Court in Reid v. Zoning Board of Appeals of the Town of Lebanon, 235 Conn. 850, 857, 670 A.2d 1271 (1996), the Beeman court decided that "A condition personal to the applicant is invalid." The court went on to hold that a condition that terminates a special permit when the property is transferred is invalid because it is personal to the applicant." Beeman, supra.
In response, the commission claims that special permits limited as to time are common. To support this position, the commission cites NL Associates v. Planning and Zoning Commission of the City of Torrington, Superior Court, judicial district of Litchfield, Docket No. CV04 0093492S (June 8, 2005, Pickard, J.) [39 Conn. L. Rptr. 466]. In that case, the court upheld a special permit for gravel excavation with a requirement that it be renewed every two years. The commission claims "If a commission can limit a special exception to a specific period of time, based on the specific owner's need to extract grave, it may also limit a home occupation permit to a period of time based on a specific owner's use of the property." Def.'s Brief, p. 11.
The court disagrees with the commission's argument for two reasons. First, the NL Associates court also held that, even though the permit required renewal, it nevertheless ran with the land under general principles of zoning law. This directly contradicts the commission's argument. Second, the facts of NL Associates are easily distinguished from the present case. A condition that a permit be renewed every two years is different from a condition that the permit shall expire altogether if and when the property is sold. Additionally, as the plaintiffs point out, special permits for gravel excavations reflect a significantly different type of use than a home occupation permit. Gravel permits relate to a specific ongoing project and renewal requirements permit the town to monitor the progress of the excavation until completion. A home occupation is not a project that progresses until it is finished. It is more perpetual in nature and does not require the town to monitor its progression.
The court agrees with the reasoning of the above authorities that special permits run with the land as a matter of law. Accordingly, the court finds that the commission has imposed a condition that is illegal. The first condition that the permit does not run with the land is therefore invalid.
The second condition requires the plaintiffs to continue to own the property as long as they use the business at that location. Both the plaintiffs and the commission agree that the second condition is related to the first. Pl.s' Br., p. 9; Def.'s Br., p. 12. The plaintiffs argue that this condition is impermissibly tied to ownership and is invalid because "[z]oning is concerned with the use of specific existing buildings and lots and not primarily with their ownership." Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 484, 408 A.2d 243 (1979).
The commission argues that this condition is necessary to protect the residential character of the neighborhood by requiring the plaintiffs to own the property as long as they operate the business there. Connecticut General Statutes § 8-2 says that a town "may provide that certain . . . uses of land are permitted only after obtaining a special permit or special exception . . . subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values." Conn. Gen Stat. § 8-2 (2007). "It is within the scope of the zoning regulations for the commission to impose conditions related to aesthetics and property values on the granting of the special permit." (Internal quotation marks omitted). Kobyluck, 84 Conn.App. at 170. At the public hearings, at least one panel member and the plaintiffs' neighbor stated their fear that separating the business use from the residential use would detract from the residential character of the neighborhood. The commission claims that split use of the home and the business will lead to detriment of the neighborhood and that this condition is necessary to protect public interests.
There are several problems with the commission's claim. First, the zoning regulations regarding home occupation permits do not require the person running the business to also own the property. The regulations only require that the person operating the business be the resident of the home. This requirement was set aside for this property by the variance granted to the plaintiffs by the board of appeals. Under the variance, there will always be split residential and business use regardless of who owns the property.
Second, the regulations themselves already contain conditions meant to address the problem of detriment to the residential character of the neighborhood: the business must be carried out wholly within the accessory building, not more than one person outside the family can be employed, there can be no exterior storage of material, there can be no exterior indication of the business, there can be no variation from the residential character of the building, and any exterior signs must comply with article ten, section C of the regulations. The commission gives no reasons why these conditions, already contained in the regulations, are inadequate to protect the character of the neighborhood. Further, the commission gives no reasons why a change in ownership in and of itself would detract from the residential character of the property. Even if the plaintiffs were to sell the property and continue to use the business, they would still have to comply with the conditions already found in the regulations regardless of who owned the property.
The commission cites cases where courts have upheld a variety of conditions on home occupation permits. In one case, the court upheld conditions limiting the number and type of vehicles that can be parked on the property. Esparo v. Durham Planning and Zoning Commission, Superior Court, judicial district of Middlesex, Docket No. CV05 003652S (June 20, 2006, Aurigemma, J.). The commission in that case justified this condition because of past problems with parking at the residence. Another case allowed conditions that limited the number of clients that could be seen at the property during the week and prohibited the business from seeing any clients on the weekends. Christiano v. Prospect Planning and Zoning, Superior Court, Docket No. CV01 0166040S (July 24, 2002, Wolven, J.) [32 Conn. L. Rptr. 648]. In this case, the commission was concerned with traffic flow and parking on a residential street if too many clients were going to and from appointments and using the street to park their cars. In each of these cases, the conditions were narrowly tailored to address specific problems that would accompany the home occupation.
However, in the case before this court, the commission imposed a blanket condition prohibiting the owner from selling the property and continuing his business there. The commission provided no reasons why this condition is necessary to protect the neighborhood or how the ownership of the property will impact the residential character of the neighborhood. Further, the commission gave no reasons why the conditions already contained in the regulations are inadequate to address their concerns. The commission went too far and has imposed a condition so broad that it is unreasonable. "[A]ny conditions imposed by the zoning authority must be reasonable." Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 64, 574 A.2d 212 (1990). The court finds that the commission acted unreasonably in imposing the second condition that the plaintiffs must continue to own the property as long as they operate the business there. The second condition is invalid.
The third condition requires the plaintiffs to file an annual certification of their compliance with the requirements of the special exception. The plaintiffs argue that this self-policing requirement is not based in the regulations and is improper. The court disagrees. This condition, unlike the second, is more narrowly directed at ensuring compliance with the regulations and appears to be a valid exercise of the commission's discretion.
There are however, other problems that undermine the validity of this condition. The third condition does not appear to be part of the commission's decision at the October 1, 2007 hearing. Only the first two conditions were included in the motion approved by the commission. The record is not clear as to when this third condition was added, however, if it was not part of the commission's vote, it is likely invalid. Floch v. Planning Zoning Commission of Town of Westport, Superior Court, judicial district of Fairfield, Docket No. CV92 0299970 (October 12, 1993, Fuller, J.) [10 Conn. L. Rptr. 235], aff'd, 38 Conn.App. 171 (1995); Carnese v. Planning Zoning Commission of Town of Westport, Superior Court, judicial district of Fairfield, Docket No CV92 0299969S (July 6, 1993, Levin, J.).
Additionally, the court notes that both the second and the third condition specifically apply only to "the applicant" and not to any subsequent owners of the home. The personal language of the second and third conditions reflects the intention of the commission that the permit shall apply only to the plaintiff and shall not run with the land. These conditions are intimately tied to the first condition and dependant on its validity because, like the first condition, they are directed specifically to the applicant and not intended to run with the property. To the extent that these conditions are personal to the plaintiffs and reflect that this permit will not run with the land, they are invalid.
Having determined that the conditions of the special permit are invalid, the court must now decide the appropriate remedy. "The dispositive consideration in determining whether modification or reversal is in order is whether the illegal conditions are an `integral' part of the zoning authority's decision." Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 66, 574 A.2d 212 (1990); Floch v. Planning and Zoning Commission of the Town of Westport, 38 Conn.App. 171, 173, 659 A.2d 746 (1995). "When a commission states its reasons in support of its decision on the record, the court goes no further, but if the commission has not articulated its reasons, the court must search the entire record to find a basis for the commission's decision." (Internal marks omitted.) Azzarito v. Planning Zoning Commission, 79 Conn.App. 614, 618, 830 A.2d 827, cert denied, 266 Conn. 924, 835 A.2d 471 (2003).
The record provides substantial evidence to indicate that the conditions were an integral part of the commission's decision. During the hearings, members of the commission stated their reluctance to grant the application at all. Two members of the commission expressed their willingness to grant the permit if conditions were attached. When the commission voted to approve the motion to grant application, two of the conditions were part of that motion. Because of the remarks made by the panel members at the two hearings regarding the necessity of conditions and the fact that at least two conditions were part of the motion to approve the permit, the court finds that the conditions are an integral part of the commission's decision.
The plaintiffs' appeal is sustained and the decision to place the specific conditions on the special permit is reversed. The matter is remanded to the Simsbury Zoning Commission for further proceedings consistent with this opinion.