Opinion
No. CV 10-6003173
April 12, 2011
MEMORANDUM OF DECISION
This is an appeal by the plaintiffs, John E. Vichi and Elizabeth B. Vichi, from a decision of the defendant, Zoning Board of Appeals of the Town of Stonington, which reversed the granting of a zoning permit by the Stonington Zoning Enforcement Officer to the plaintiffs to construct a single-family residence on property owned by them and located at 2 Orchard Hill Drive, Mystic, Connecticut. The plaintiffs claim that the Board acted illegally, arbitrarily and in abuse of its discretion in reversing the decision of the ZEO.
The plaintiffs' property at 2 Orchard Hill Drive, Mystic, is shown as Lot 23 on a "Plan of Property of N. Edward Dubois and Elise E. Dubois at Masons Island, Mystic, Connecticut dated March 19, 1954." The plan also included Lots 24, 25 and 26, which adjoin Lot 23. The plan was recorded in the Stonington Land Records in 1954, but no zoning regulations were in effect at the time and the plan was never approved by the Town of Stonington or any land use authority of the Town.
Zoning regulations were adopted by the Town of Stonington on July 20, 1961. At that time, Lots 23, 24 25 and 26 were separate unimproved lots as shown on the recorded property plan. The lots were zoned in a RA-4 residential district, which permitted the construction of single-family residences, but required a minimum lot area of 15,000 square feet.
By deed, dated April 8, 1968, Lot 23 was transferred to Mystic River Marina, Inc. Lots 24, 25 and 26 were transferred as three individual and separate lots to George and Catherine Standish by separate deeds, each dated April 16, 1968. In 1968, each of the owners of Lots 24, 25 and 26 made applications to Stonington zoning officials to build individual residential units on each of their lots. The owners of Lots 24, 25 and 26 were granted zoning compliance permits and/or building permits to build single-family residences on each of the lots even though each of the lots contained less than the 15,000 square feet of lot area required by the zoning regulations. The plaintiffs acquired title to their property by deed, dated June 27, 2001, from Mystic River Marina, Inc. The plaintiffs' property contained approximately 9,500 square feet of area, a square footage slightly larger than any of Lots 24, 25 and 26.
On October 29, 2009, the ZEO issued the plaintiffs a permit for the construction of a single-family residence on Lot 23. The issuance of the building permit gave the plaintiffs the same right to build a single-family residence as had been previously granted to the owners of Lots 24, 25 and 26. An appeal was taken to the Board from the issuance of the permit and the Board sustained the appeal. Therefore, the plaintiffs were denied a permit to build a single-family residence and have taken this appeal to reverse the Board's action.
The plaintiffs are the owners of the property which is the subject of this appeal and, accordingly, are aggrieved.
In Vichi v. Stonington Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. 565653 (August 26, 2004), this court considered a prior appeal by the plaintiffs from a decision of the Board relating to the same property involved in this appeal. In the prior case, the plaintiffs appealed the decision of the Board denying both their appeal from a decision of the ZEO in which the ZEO determined that the plaintiffs' lot does not qualify for development, as well as their variance application seeking, in the alternative, a reduction in the necessary lot area.
This court upheld the action of the Board in finding that the plaintiffs' lot did not qualify for development under § 5.21 of the original zoning regulations of the Town, which provided, in part: "A lot either owned individually and separately and separated from any adjoining tract of land on the effective date of these regulations or located in and part of a subdivision plan which has been given final approval by the Planning and Zoning Commission prior to such date, which has a total area or lot frontage less than the minimum required in the Bulk Table, may be used for a single-family detached residence . . ." The Board found that Lot 23 was not owned individually or separately from Lots 24, 25 and 26 and, thus, found that Lot 23 was not protected by § 5.21. This court affirmed that finding.
This court also affirmed the denial of the plaintiffs' request for an area variance on the basis that the plaintiffs failed to establish exceptional difficulty or unusual hardship because, when they purchased their lot, they were charged with notice of the nonconformity of the lot.
In the present case, the plaintiffs claim that they have not been treated fairly by the Board in view of the disparate treatment accorded by the Board to their lot as compared to the owners of Lots 24, 25 and 26.
In Megin v. Zoning Board of Appeals, 106 Conn.App. 602, 607-08, cert. denied, 289 Conn. 901 (2008), the Appellate Court noted: "We generally employ a deferential standard of review to the actions of a zoning board . . . [C]ourts are not to substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . ." (Emphasis in original; citation omitted; internal quotation marks omitted.). In Megin, the plaintiff challenged the fundamental fairness of the zoning board's hearing. Specifically, the plaintiff claimed that the board improperly permitted the land use inspector to participate in its deliberations after the close of the public hearing, thereby violating his right to fundamental fairness.
In addressing the plaintiff's claim, the Megin court distinguished the common-law right to fundamental fairness from the right to due process. "Although the plaintiff at times references a `due process' violation, he acknowledges . . . that `[w]hat is required is the common-law right to fundamental fairness' and argues that the administrative proceeding at issue `was fundamentally unfair.' That common-law right is not coextensive with constitutional due process . . . The right to fundamental fairness in administrative proceedings encompasses a variety of procedural protections, including the right to adequate notice that is at issue in this case . . . In a number of administrative law cases decided after [ Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)], we have characterized these procedural protections as `due process' rights . . . Although the `due process' characterization, at first blush, suggests a constitutional source, there is no discussion in these cases of a property interest in terms of constitutional due process rights. These decisions are, instead, based on a line of administrative law cases and reflect the development, in Connecticut, of a common-law right to due process in administrative hearings. Although the facts of the present case do not require us to explore its boundaries, this common-law right is not coextensive with constitutional due process . . . Therefore, to eliminate any further confusion, we will discontinue the use of the term `due process' when describing the right to fundamental fairness in administrative proceedings . . . In accordance with that precedent, we likewise describe the plaintiff's claim as one invoking his right to fundamental fairness." (Citation omitted; internal quotation marks omitted.) Megin v. Zoning Board of Appeals, supra, 607 n. 6.
In determining that the inspector's participation in the board's business meeting did not amount to a violation of the plaintiff's right to fundamental fairness, the court further described the right. "While proceedings before zoning and planning boards and commissions are informal and are conducted without regard to the strict rules of evidence . . . they cannot be so conducted as to violate the fundamental rules of natural justice . . ." Id., 608.
This court is aware that the fundamental fairness doctrine discussed by the Megin court has typically been applied to cases where the plaintiff complains of a procedural irregularity in a zoning board's decision-making process. See e.g., Timber Trails Associates v. Planning Zoning Commn., 99 Conn.App. 768, 774-82 (2007). Given the unique circumstances presented by this case, however, the court is satisfied that the doctrine of fundamental fairness should be applied to the defendant's decision denying the plaintiffs' permit. The fact that the owners of Lots 24, 25, and 26 were all granted permits and have built houses on their lots, despite the zoning regulations, provides a sufficient basis for the court's decision that the plaintiffs should be accorded equal treatment and their requested permit should be granted.
The plaintiffs also claim that their property has been rendered virtually worthless by the action of the Board in that a residence cannot be built upon it and, accordingly, the Board's action is confiscatory and arbitrary.
In Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369 (1988), the Appellate court said that: "Disadvantage in property value or income, or both, to a single owner of property, resulting from application of zoning restrictions, does not, ordinarily, warrant relaxation in his favor on the ground of practical difficulty or unnecessary hardship . . . Financial considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations to the property greatly decreases or practically destroys its value for any of the uses to which it could reasonably be put and where the regulations, as applied, bear so little relationship to the purposes of zoning that, as to particular premises, the regulations have a confiscatory or arbitrary effect." (Citations omitted; internal quotation marks omitted.) Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988).
The present case is distinguishable from Grillo. Here, the plaintiffs have been prohibited from building a single-family residence on their property, as their neighbors have already done. As a result of the defendant's prohibition, their property has been rendered virtually useless. The plaintiffs are asking for no more than what their neighbors were permitted to do on their adjoining lots nearly fifty years ago and should be allowed to do so.
For the foregoing reasons, the plaintiffs' appeal of the Board's decision denying their permit is sustained.