Opinion
No. CV05 400 85 74 S
May 3, 2006
MEMORANDUM OF DECISION
The plaintiff, David Greenfield, appeals from the decision of the defendant, Westport Zoning Board of Appeals (ZBA), in which the ZBA granted multiple variances for the defendants, Carter and Eileen Wiseman, regarding their property situated at 2 West Branch Road, Westport, Connecticut.
On February 17, 2005, the Wisemans, owners of property situated in both the town of Weston and the town of Westport, applied to the ZBA for variances regarding the use of their detached garage as a separate, additional residence in a single-family zone. (Return of Record [ROR], Item 1.) Specifically, they sought variances for §§ 11-2.4.13(a), 11-2.4.8, 11-1, and 11-2 of the Westport Planning and Zoning Regulations (Regulations). They were prompted to do so at the suggestion of the town zoning officer who, in reviewing their permit to add a new driveway, discovered that the garage apartment had not been approved as a separate dwelling. (ROR, Item 1.)
The Wisemans' main residence is primarily situated in the town of Weston, and has a separate address, 16 West Branch Road, Weston, CT. (Return of Record [ROR], Items 1, 39.) The property map indicates that the lot consists of 94,665 square feet, or 2.173 acres, with only 26,075 square feet situated in Westport. (ROR, Item 39.) The lot is located in a two-acre zone in each town. (ROR, Item 39.) Weston levies taxes on the main residence, and Westport levies taxes on the garage residence. (ROR, Item 1.)
In 1980 and 1981, however, Westport issued permits for plumbing and electrical renovations that made the structure more suitable as a residence (ROR, Item 1); and since 1985 the Wisemans have been renting out the garage apartment. (ROR, Item 1.)
A public hearing was held on April 12, 2005 (ROR, Item 43); and the application was approved by the ZBA on April 26, 2005, with the condition that there be no further expansion of the structure. (ROR, Item 37.) They specifically stated that the hardship in this case arose from the "pre-existing non-conforming use" of the garage apartment as a dwelling. (ROR, Item 37.)
The plaintiff appeals the variances on the ground that the approval by the ZBA was illegal, arbitrary and an abuse of its discretion because: (1) the ZBA improperly determined that the Wisemans' use of the garage apartment as a residence constitutes a preexisting nonconforming use; (2) the ZBA failed to consider the comprehensive zoning plan as the variance presented a substantial inconsistent change; and (3) the Wisemans have failed to demonstrate that they suffer an unusual hardship. This court heard the appeal on April 13, 2006.
General Statutes § 8-8 governs an appeal from the decision 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." Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995).
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter 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.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "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.) Lewis v. Planning Zoning Commission, 275 Conn. 383, 391, 880 A.2d 865 (2005). General Statutes § 8-8(a)(1) provides in relevant part that: "In the 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."
The plaintiff has pleaded and argued that he is statutorily aggrieved. During the trial, the plaintiff testified that he was the owner of property situated in Weston that abuts the Wisemans' property. Accordingly, the court finds that the plaintiff is statutorily aggrieved by the decision of the ZBA.
General Statutes § 8-8(b) provides in relevant part: "[A]ny person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsection (f) and (g) of this section within fifteen days from the date that the notice of the decision was published by the general statutes." Subsection (f)(2) refers to § 52-57(b)(5) for instructions on the service of process for any appeal taken after October 1, 2004. See General Statutes § 8-8(f)(2). Section 52-57(b)(5) requires that the plaintiff serve process on the clerk of the town, provided that the plaintiff serve the clerk with two copies of which the clerk retains one and forwards the other copy to the ZBA. See General Statutes § 52-57(b)(5).
On April 29, 2005, legal notice of the ZBA decision to approve the variance was published in the Westport News. (ROR, Item 38.) On May 10, 2005, the plaintiff properly served both the town clerk and the ZBA. (Appeal, Service of Process.) Accordingly, the appeal was commenced in a timely fashion.
"The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . Where a zoning agency has stated its reasons for its actions, 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 [board] was required to apply under the zoning regulations . . . 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." (Citations omitted; internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "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 be disturbed, for if it did the right of appeal would be empty . . ." (Internal quotation marks omitted.) DiPietro v. Zoning Board of Appeals, 93 Conn.App. 314, 325, 889 A.2d 269 (2006).
"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 dispositive issue in this appeal is whether the ZBA has stated a valid hardship. The records reveals that the stated hardship for granting the variances was that the garage apartment was a "pre-existing non-conforming use." (ROR, Item. 37.) The court, therefore, will confine its search of the record to determine whether substantial evidence exists to support the finding of the ZBA. The plaintiff argues that the finding of a nonconforming use as a hardship is misplaced as the record is devoid of proof that the garage was used as an apartment prior to the enactment of the zoning regulations. The Wisemans contend that the ZBA correctly determined that the use of the garage apartment constituted a nonconforming use, because the zoning regulations provide for the legalization of accessory apartments that pre-date 1959. They argue that the nonconforming use qualifies as a valid hardship. In the alternative they argue that there is no need for the variances, because, pursuant to Regulations § 11-2.4.13(a), the use of the garage apartment constitutes a permitted use. Westport also argues that the garage apartment qualifies as a nonconforming use pursuant to § 8-2. The court finds that the record does not support the hardship finding or a finding that the garage apartment constitutes a permitted use, and, accordingly, the board has acted unreasonably, arbitrarily and illegally.
Both defendants also argue that the plaintiff has failed to demonstrate that the Wisemans have abandoned or extended their nonconforming use. The ZBA also argues that the nonconforming use does not violate the comprehensive plan. Since the court has concluded that the use of the garage apartment does not constitute a hardship, the court does not address these arguments.
The ZBA also argues that, pursuant to General Statutes § 8-13a(a), the structure itself is "grandfathered" as a nonconforming building. The court notes that, based on the ZBA's approval (ROR, Item 37); the application was concerned with securing a variance for the use of the garage apartment. Accordingly, there is no need to address § 8-13a(a).
The ZBA contends further that the fact that the property lies within two towns creates a unique hardship. The court, however, is constrained by law to address the formal, official and collective statement included in notice of decision. See Harris v. Zoning Commission, supra, 259 Conn. 421-22. The ZBA has clearly indicated that they believed that the property had a preexisting nonconforming use that constituted a hardship. (ROR, Item 37.)
A nonconforming use is defined as being "prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations are adopted." Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 710, 535 A.2d 799 (1988); see also R. Fuller 9A Connecticut Practice Series: Land Use Law and Practice (1999) § 52.1, p. 549 ("[A] nonconforming use is merely an existing use established prior to zoning regulations the continuance of which is authorized by statute or by the zoning regulations"). Specifically, General Statutes § 8-2 provides in relevant part: "Such regulations shall not prohibit the continuance of any nonconforming use . . . existing at the time of the adoption of such regulations." Section 6-5 of the regulations echoes the purpose of § 8-2 and provides that: "A non-conforming use or structure in a non-residence district must be supported by a written statement demonstrating that it legally existed at the time these regulations were first established, or was a permitted use under these regulations prior to their being amended; that it has been in continuous use; and that its scope has not been illegally expanded."
During the public hearing, the ZBA heard the testimony of Kathy Barnard, the planning and zoning director. (ROR, Item 43, pp. 6-8.) The testimony revealed that the Wisemans' garage apartment could not constitute a nonconforming use. (ROR, Item 43, p. 7.) Bernard specifically stated that: "Back in the late 80s and 90s the planning and zoning commission did adopt some zoning regulations to deal with what we call pre-1959 apartments. Because it was coming to our attention [that] there [were] quite a substantial number of apartments that did not pre-exist zoning, meaning they were not there before 1930, but seemed to have appeared from 1930 to 1959." (ROR, Item 43, p. 7.) Accordingly, based on the language of § 8-2 and Regulations § 6-5, the court cannot find that the garage, constructed in 1936 and preexisting the regulations, constitutes a nonconforming use.
Regulations § 11-2.4.13(a) allows these apartments to become permitted uses.
Assuming, arguendo, that the Wisemans had a valid nonconforming use, this court has recognized that a nonconformity is not a legally cognizable hardship if it is not unique to the property. See Feltman v. Zoning Board of Appeals, Superior Court, judicial district of Fairfield, Docket No. CV 054008779 (March 6, 2006, Owens, J.). General Statutes § 8-6 "authorize[s] 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." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 207, 658 A.2d 559 (1995). A hardship must be unique to the land. Campion v. Board of Aldermen, 85 Conn.App. 820, 846, 859 A.2d 586 (2004), cert. granted on other grounds, 272 Conn. 920, 867 A.2d 837 (2005). "It is well settled that the hardship must be different in kind from that generally affecting properties in the same zoning district . . ." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 790, 639 A.2d 519 (1994).
The ZBA's determination that the Wisemans' preexisting nonconforming use solely constitutes a hardship is a misapplication of the law. There is no question that there are other properties in the same zoning district that have apartments existing on the same lot along with a single-family dwelling, because the regulations provide a specific procedure to make those apartments permitted uses in that same district. See Regulations § 11-2.4.13. The record indicates that the ZBA has approved around 350 apartments under that regulation. (ROR, Item 43, p. 7.) Based on the record, the ZBA could not have reasonably concluded that the Wisemans' putative hardship was unique. Since the Wisemans have failed to demonstrate a unique hardship, the court concludes that the variances were improperly granted by the ZBA.
The court next addresses whether, pursuant to Regulations § 11-2.4.13(a), the garage apartment constitutes a permitted use. At the outset the court recognizes that a permitted use is not a nonconforming use. See generally Crabtree Realty Co. v. Planning and Zoning Commission, 82 Conn.App. 559, 563, 845 A.2d 447 (2004) (recognizing that there is a difference between a nonconforming use and a permitted use); see also R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1999) § 2.2, p. 20. Further, a permitted use does not require a variance. See Gay v. Zoning Board of Appeals, 59 Conn.App. 380, 384, 757 A.2d 61 (2000). Even though the court has determined that the determination by the ZBA of the existence of a preexisting nonconforming hardship is flawed, the court recognizes that the ZBA based their hardship determination on their analysis of Regulations § 11-2.4.13(a), therefore, the court will conduct an analysis of the regulation to determine whether the use is permitted.
Fuller distinguishes the categories of land uses by listing them by the degree of protection afforded them under the law. R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (1999) 52.1, p. 547. They are, in order from most protection to least: (1) uses exempt from regulation by statute or by sovereign immunity; (2) permitted uses; (3) permitted uses subject to conditions in the regulations; (4) nonconforming uses; (5) authorized illegal uses (variances); and (6) illegal uses not protected. Id.; see also Munroe v. Zoning Board of Appeals, 75 Conn.App. 796, 806, 818 A.2d 72 (2003) (same).
Section 11-2.4.13(a) states in relevant part that: "Apartments which have existed on a single family residential lot along with the single family dwelling prior to 10/1/59 may be allowed to continue to be used for separate dwelling purposes subject to site plan approval and the following conditions: (a) Qualifications — The property owner or his designee must provide . . . an affidavit acceptable to the Commission by a person other that the property owner stating that such person had direct personal knowledge of the existence of a kitchen in the dwelling unit(s) in question prior to or on 10/1/59."
"The interpretation of a regulation is a question of law . . . A zoning regulation is legislative in nature, and its interpretation involves the principles of statutory interpretation." (Citation omitted; internal quotation marks omitted.) Smith-Groh, Inc. v. Planning Zoning Commission, 78 Conn.App. 216, 232, 826 A.2d 249 (2003). The court is guided by General Statutes § 1-2z, which instructs the court to follow the plain meaning rule. See Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398, 405, 891 A.2d 398 (2006).
General Statutes § 1-2z provides: "The meaning of a statute shall, in the first instance be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
The relevant part of the regulation requires that the property owner submit an " affidavit acceptable to the Commission by a person other than the property owner stating that such person had direct knowledge of the existence of a kitchen in the dwelling unit . . . prior to [October 1, 1959]." (Emphasis added.) Regulations § 11-2.4.13(a). The court does not find this provision to be ambiguous. The regulation puts the burden on the property owner to provide an affidavit acceptable to the commission. The Wisemans failed to provide the ZBA with an affidavit attesting to presence of a kitchen prior to October 1, 1959. They did provide a letter, signed by Virginia Ashe, that would provide the needed information pursuant to the regulation. (ROR, Item 11.) This letter, however, does not constitute an affidavit. An affidavit is a "voluntary declaration of facts written down and sworn by the declarant before an officer authorized to administer oaths, such as a notary public." Black's Law Dictionary (8th Ed. 2004). The Ashe letter was not confirmed by an oath.
Nor can the argument be made that the phrase "acceptable to commission," which qualifies the term "affidavit," be interpreted as providing the ZBA with the power to accept the letter as an affidavit. To permit such an interpretation would strip the term "affidavit" of its well established meaning. The qualifying phrase "acceptable to the commission" provides the ZBA with the power to determine if the affidavit is acceptable, based on their judgment as to the credibility of the declarant. Such determinations are similar to those made by juries, who are also finders of fact.
Accordingly, since the Wisemans failed to provide an affidavit, the garage apartment does not qualify as a permitted use pursuant to Regulations § 11-2.4.13(a).
The court finds that the ZBA could not reasonably conclude that the Wisemans' garage apartment constituted a nonconforming use or a hardship. Further, the garage apartment does not qualify as a permitted use under the zoning regulations.
The appeal is sustained.