Joseph Criniti v. Stafford Zoning Board of Appeals (2009)

MEMORANDUM OF DECISION

I

STATEMENT OF APPEAL

The plaintiffs, Joseph and Sonia Criniti, appeal from the decision of the defendant, the Stafford zoning board of appeals (ZBA), denying their application for a variance.

II

FACTUAL BACKGROUND

On March 15, 2006, the plaintiffs applied for a variance from § 4.31 of the Stafford zoning regulations.  (Return of Record [ROR], Exhibit [Exh] 1.) Section 4.31 sets the area and frontage requirements for lots in residential districts.   The plaintiffs own property located at 33 Colburn Road in an “AA” residential district in Stafford.  (ROR, Exh. 1.) Pursuant to § 4.31 of the Stafford zoning regulations, a building lot in an “AA” residential district must have at least 175 feet of frontage on a public street and consist of an area of at least 44,000 square feet.   The plaintiffs sought a variance from § 4.31 in order to subdivide their property into two lots, one of which would only have 70 feet of frontage.  (ROR, Exhs. 1 and 2.) It was their intention to build a single-family home on each lot;  one for themselves and one for their elderly parents.  (ROR, Exh. 1.)

On April 5, 2007, the ZBA held a public hearing on the plaintiffs' application.  (ROR, Exh. 6.) It continued the hearing to May 3, 2007, at the conclusion of which it tabled the plaintiffs' application until it could confer with the building inspector, Wendall Avery, and the town attorney, Joseph Paradiso.  (ROR, Exhs. 9 and 11.)   At its next regular meeting, on June 6, 2007, the ZBA unanimously denied the plaintiffs' application for a variance.   (ROR, Exh. 12.)   Notice of its decision appeared in the Journal Inquirer on June 13, 2007.  (ROR, Exh. 15.)   The ZBA did not state any reasons on the record for denying the application.  (ROR, Exh. 15.)   The plaintiffs commenced the present appeal by service of process on June 26, 2007.   On October 1, 2009, the parties appeared before the court for trial.

III

JURISDICTION

“A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.”  (Internal quotation marks omitted.)  Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).  General Statutes § 8-8(b) governs appeals from decisions of zoning boards of appeals to the Superior Court.

A

Aggrievement

“[P]leading and proof of aggrievement are prerequisites to [a] trial court's jurisdiction over the subject matter of a plaintiff's appeal ․ [I]n order to have standing to bring an administrative appeal, a person must be aggrieved.”   (Citation omitted;  internal quotation marks omitted.)  Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006).   “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003).   A plaintiff may prove aggrievement by testimony at the time of trial;  Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991);  or “by the production of the original documents or certified copies from the record.”  (Internal quotation marks omitted.)  Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).

“Two broad yet distinct categories of aggrievement exist, classical and statutory ․ Classical aggrievement requires a two part showing.   First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share ․ Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest ․ 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.)  Moutinho v. Planning & Zoning Commission, supra, 278 Conn. 665.   The standard for statutory aggrievement in zoning appeals is set forth in General Statutes § 8-8(a)(1), which provides in relevant part:  “In the case of a decision by a ․ planning and zoning commission ․ ‘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.”

At trial, the parties stipulated to the fact that the plaintiffs own the property that is the subject of the decision being appealed.   Based upon this stipulated fact, the court finds that the plaintiffs are statutorily aggrieved by the ZBA's decision pursuant to § 8-8(a)(1).

B

Timeliness and Service of Process

Pursuant to General Statutes § 8-8(b), 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 in relevant part:  “Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows ․ (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57 ․” General Statutes § 52-57(b)(5) provides that in an action against a town commission, process must be served “notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency ․”

The ZBA published notice of its decision denying the plaintiffs' application for a variance in the Journal Inquirer on June 13, 2007.  (ROR, Exh. 15.)   The plaintiffs commenced the present appeal by service of two copies of process on Carol Davis, the town clerk, on June 26, 2007.  (Marshal's Return.)   Accordingly, the court finds that the plaintiffs' appeal was timely and that service of process was proper.

IV

SCOPE OF REVIEW

“In reviewing the actions of a zoning board of appeals [the Supreme Court has noted] that such a board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal ․ The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision ․ In an appeal from the decision of a zoning board, [the court] therefore review[s] the record to determine whether there is factual support for the board's decision, not for the contentions of the applicant.”  (Internal quotation marks omitted.)  Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).  “The question is not whether the trial court would have reached the same conclusion ․ but whether the record before the [board] supports the decision reached ․ If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board.”  (Internal quotation marks omitted.)   Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 427, 941 A.2d 868 (2008).

“When a zoning [board] has not stated on the record the basis of its determination, the reviewing court must search the record to determine the basis for the [board's] decision ․ If any reason culled from the record demonstrates a real or reasonable relationship to the genera] welfare of the community, the decision of the [board] must be upheld ․ The evidence, however, to support any such decision must be substantial.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)   Clifford v. Planning & Zoning Commission, 280 Conn. 434, 452-53, 908 A.2d 1049 (2006).

V

DISCUSSION

The plaintiffs allege that the ZBA acted illegally, arbitrarily and in abuse of its discretion in failing to grant their application for a variance because they had established the existence of an unusual hardship and that the requested variance would not substantially affect the comprehensive zoning plan.¹

“A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town ․ It is well established, however, that the granting of a variance 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(a)(3) ] 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.”   (Internal quotation marks omitted.)  Moon v. Zoning Board of Appeals, 291 Conn. 16, 24, 966 A.2d 722 (2009).   Section 6.61 of the Stafford zoning regulations contains similar language.²

In the present case, there is no dispute that the record supports a finding that the plaintiffs demonstrated that the requested variance would not substantially affect the comprehensive zoning plan, as single-family homes are permitted as of right in the “AA” residential district.   See Stafford Zoning Regs., § 4.21. Instead the dispute revolves around whether the record supports a finding that the plaintiffs met their burden in proving that strict adherence to the zoning regulations results in a unique hardship to their property.   At the May 3, 2007 public hearing, upon being asked to state the hardship, Joseph Criniti stated:  “I don't have enough room for the second house.   I only have a 70 foot frontage.”  (ROR, Exh. 10, p. 1.) In their brief, the plaintiffs assert that the zoning regulations impose a hardship on them because unlike other properties in the neighborhood their property consists of enough square footage to build a two-family dwelling and thus, the regulations require them to build one structure rather than two.   The ZBA contends that any hardship suffered by the plaintiffs is the result of their voluntary act in subdividing their property and is personal since they can build a two-family dwelling without violating the zoning regulations but prefer to build two single-family dwellings.

“Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship ․ Additionally ․ [p]ersonal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance ․ [T]he basic zoning principle that zoning regulations must directly affect land, not the owners of land ․ limits the ability of zoning boards to act for personal rather than principled reasons, particularly in the context of variances.”  (Citations omitted;  internal quotation marks omitted.)  Curran v. Zoning Board of Appeals, 117 Conn.App. 458, 463-64, 979 A.2d 599 (2009).   “If ․ the hardship arises from a voluntary act on the part of the applicant, the board does not have the authority to grant a variance.”  Archambault v. Wadlow, 25 Conn.App. 375, 381, 594 A.2d 1015 (1991).

There is substantial evidence in the record supporting the ZBA's decision to deny the plaintiffs' application for a variance.   The plaintiffs' stated reason for applying for the variance was that they wanted to subdivide their property into two lots and build a single-family dwelling on each lot in lieu of building a two-family dwelling on their property.  (ROR, Exh. 1.) Absent the requested variance, they would not be able to do so because they do not have the requisite frontage to create two lots.   Their property, as is, does not violate the zoning regulations.   By subdividing their property, the plaintiffs are, therefore, creating the nonconformity for which they are seeking a variance.   As noted supra, “[w]here the applicant ․ creates a nonconformity, the board lacks power to grant a variance.”  (Internal quotation marks omitted.)  Osborne v. Zoning Board of Appeals, 41 Conn.App. 351, 354, 675 A.2d 917 (1996).   In fact, the Appellate Court has held that “[t]he desire to subdivide property into [two] lots is a voluntary hardship created by the applicant requiring denial of a variance.”  (Internal quotations marks omitted.)  Dupont v. Zoning Board of Appeals, 80 Conn.App. 327, 330, 834 A.2d 801 (2003).   Accordingly, the ZBA did not act arbitrarily, illegally or in abuse of its discretion in denying the plaintiffs' application for a variance from the Stafford zoning regulations, as the plaintiffs failed to establish the existence of a hardship that was not self-created.

VI

CONCLUSION

For the foregoing reasons, the appeal is dismissed.

Klaczak, J.T.R.

FOOTNOTES

FN1. The plaintiffs raised other issues in their appeal but failed to brief them.  “Issues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided.”  Cybulski v. Planning & Zoning Commission, 43 Conn.App. 105, 109 n.3, 682 A.2d 1073, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996)..  FN1. The plaintiffs raised other issues in their appeal but failed to brief them.  “Issues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided.”  Cybulski v. Planning & Zoning Commission, 43 Conn.App. 105, 109 n.3, 682 A.2d 1073, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996).

FN2. Section 6.61 of the Stafford zoning regulations provides in relevant part:  “The Zoning Board of Appeals shall have the following powers and duties ․ c. To determine and vary any requirement of the Zoning Regulations in harmony with their general purposes and intent so that substantial justice may be done.   This authority shall be exercised solely in instances where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of these Regulations, and shall maintain the security of public health, safety and welfare.”.  FN2. Section 6.61 of the Stafford zoning regulations provides in relevant part:  “The Zoning Board of Appeals shall have the following powers and duties ․ c. To determine and vary any requirement of the Zoning Regulations in harmony with their general purposes and intent so that substantial justice may be done.   This authority shall be exercised solely in instances where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of these Regulations, and shall maintain the security of public health, safety and welfare.”

Klaczak, Lawrence C., J.T.R.