Opinion
No. CV05-4102509
July 31, 2007
MEMORANDUM OF DECISION
This is an appeal by the plaintiff Renee S. Lantzius, from the decision of the defendant, Zoning Board of Appeals of the Town of North Stonington ("the Board"), granting an application of the defendant, Town of North Stonington ("the Town"), for variances for property owned by the Town to reduce a twenty-five-foot setback from the southerly boundary of the property required by the Town of North Stonington Zoning Regulations to a five-foot set-back and to expand a non-conforming structure into a vehicle car wash facility on the property known as 11-13 Wyassup Road, North Stonington ("the property").
The property is located in a R-80 Zone. The variances are sought only as to 11 Wyassup Road. The Town acquired title to 11 Wyassup Road on April 20, 1935. North Stonington enacted its first zoning regulations on May 29, 1964 and, therefore, 11 Wyassup Road is a legal non-conforming use of the property. The plaintiff is the owner of property known as 17 Wyassup Road, North Stonington, which property abuts the Town's property. As an owner of abutting property, the plaintiff is aggrieved by the action of the Board.
I. Publication of Notice of Public Hearing
The plaintiff claims that notice of the public hearing held by the Board on June 14, 2005, on the Town's application did not meet requirements of Conn. Gen. Stat. § 8-7d, which provides, in part:
Notice 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, at intervals of not less than two days, the first not more than fifteen days or less than ten days and the last not less than two days before the date set for the hearing.
The plaintiff argues that the failure to meet such requirements creates a jurisdictional defect rendering the Board's actions null and void.
Conn. Gen. Stat. § 8-8(i) provides, in part:
Within thirty days after the return date to court, or within any further time the court allows, the board shall transmit the record to the court. The record shall include, without limitation, (1) the original papers acted on by the board and appealed from, or certified copies thereof, (2) a copy of the transcript . . . The court may require or permit subsequent corrections or additions to the record.
The original return of record filed by the Board on December 12, 2005 indicates that a notice of the public hearing was published on June 2, 2005. No reference to the second required notice was made in the original record.
On June 1, 2006 the plaintiff filed her brief in this matter raising, among other issues, the failure to publish a second notice of the public hearing. On October 27, 2006, the Board filed a motion to supplement the return of record to allow the addition to the record of an affidavit of publication certifying to the publication of a notice of the public hearing on June 10, 2005, together with a copy of the notice. The plaintiff objected to the Board's motion. The Board then filed a supplemental return of record which included the same documents as the motion. On January 4, 2007, the Board withdrew its motion. The motion was never heard or acted upon by the court.
This court, therefore, is presented with an omitted portion of the record before the Board which a court has not permitted to be added to the record before this court. The issue presented is whether the court is without subject matter jurisdiction to hear the appeal because the administrative record is incomplete.
This very issue was addressed by the Supreme Court in Ghent v. Planning Commission, 219 Conn. 511 (1991). In Ghent, the defendant planning commission failed to file in court the transcript of the public hearing before it. The plaintiff, who objected to the approval of a proposed subdivision, argued that the court lacked jurisdiction to consider the appeal. The Supreme Court construed Section 8-8(c), a predecessor statute to Section 8-8(i), and found that the requirement of Section 8-8(c) that a record be filed is directory and not mandatory and concluded that "the absence of a complete record did not divest the trial court of jurisdiction to entertain the appeal." Id., 516.
In the present case, the lack of certification in the record before this court of a second notice of the public hearing before the Board is not nearly as significant as the lack of a transcript of the hearing before the administrative body whose decision is the subject of an appeal. Actual notice was given twice in this case in accordance with Section 8-7d and the failure to include a copy of such notice in the record does not deprive this court of jurisdiction.
In a post-trial supplemental brief, the plaintiff argues that the notice provisions of Section 8-7d do not meet the due process requirements of the United States Constitution. This court allowed the plaintiff to file a supplemental brief limited to the effect of the failure of the record to contain a copy of the second notice of the public hearing. The constitutional issue raised by the plaintiff was not previously presented to the court and is beyond the briefing authority given to the plaintiff by this court. In any event, in support of its constitutional claim, the plaintiff relies upon evidence as to the extent of the circulation of the Westerly Sun and the adequacy of the Board's attempt to reach the plaintiff by certified mail, which evidence is not in the record and which may not be considered by this court.
Accordingly, the court denies the plaintiff's appeal based on the insufficiency of publication of notice of public hearing.
II. Improper Expansion of Existing Non-conforming Use or Non-conforming Structures
The plaintiff claims that the Board cannot grant a variance to expand non-conforming uses or non-conforming structures under Regulations § 207, which states "a variance to permit a use not presently allowed by these Regulations shall not be granted by the Zoning Board of appeals."
The Town requested variances to construct a vehicle wash facility for its vehicles. Regulations § 403.2 specifically allows "Town Building" in an R-80 Zone. The vehicle wash facility is clearly a town building and is, therefore, a use permitted on the property.
The plaintiff also claims that Regulations § 1103.2, which provides that a "non-conforming building or structure can not he enlarged in a manner that extends the non-conforming aspect of the building" prohibits the Board from granting a variance to a non-conforming property.
Section 1103.2 is a subsection of Regulations § 1103, which provides, in full, as follows:
1103 Non-conforming Structures
A building containing a non-conforming principal use shall not be enlarged to accommodate an expansion of such use.
CT Page 13429
1103.1 A non-conforming building destroyed beyond 50 percent of its fair market value shall not be reconstructed except in conformity with these Regulations, except as provided in Section 405.5.
1103.2 A non-conforming building or structure shall not be enlarged in a manner that extends the non-conforming aspect of the building.
1103.3 A non-conforming building shall not be moved on the same lot except where the relocation results in greater conformity with these Regulations.
Since the use of the vehicle washing facility is for town use, it is a conforming use and the vehicle wash facility is not a building "containing a non-conforming principal use" (emphasis supplied) and, therefore, is not subject to the provisions of subsection 1103.2.
The court, therefore, denies the plaintiff's claim of an improper expansion of an existing non-conforming use or non-conforming structure.
III. Insufficient Evidence to Support Board's Decision
The plaintiff claims that no evidence was presented to show the effect on the Town's comprehensive zoning plan or that the zoning ordinance created the hardship complained of. The plaintiff further claims that the hardship was self-created.
One seeking a variance from a municipal zoning board of appeals must satisfy two basic requirements: 1) the variance must be shown not to affect substantially the comprehensive zoning plan, and 2) adherence to the strict letter of the zoning ordinances must be shown to cause unusual hardship, unnecessary to the carrying out of the general purposes of the zoning plan. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368 (1988). Proof of exceptional difficulty or unusual hardship because of some peculiar characteristic of the parcel of land is a condition precedent to the granting of a zoning variance. Reid v. Zoning Board of Appeals, 235 Conn. 850, 857 (1996).
A zoning board of appeals is endowed with liberal discretion and its decisions are subject to review by a 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 compiled 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. Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993).
A review of the record reveals that there is substantial evidence to support the Board's action. The property is very narrow (102 feet wide and 880 feet deep) and has limited space for traffic flow. A setback variance would permit safer traffic flow. The record also reveals that the property has topographical and wetlands problems which prevent the location of the proposed building on the northern portion of the property and, further, that the location of the proposed building on the front north side of the property would make it visible from the road.
The Board decided, based on the evidence presented to it at the public hearing, to grant the variances requested by the Town. The evidence in the record supports the Board's action. Accordingly, the court finds that the Board did not act arbitrarily, illegally or unreasonably.
IV. Conclusion
For the reasons set forth above, the court denies the appeal of the plaintiff.