Drew Friedman v. City of Norwalk Zoning Board of Appeals (2012)

MEMORANDUM OF DECISION

This case comes to this court as an appeal from the decision of the Zoning Board of Appeals in the City of Norwalk.   The court in rendering this decision has reviewed the record, the briefs of the parties, and her oral argument thereon.

On June 21, 2001, the owner of 94 East Avenue in Norwalk, (“Subject Premises”), Modest Properties, LLC (“Modest”), made an application for variances in order to build a second commercial building on the Subject Premises which is 2–1/2 stories, 4,800 square feet, with parking below and on the roof.   These variances were granted.   Modest did not obtain building permits for the work proposed within 180 days.   Norwalk City Code Section 116–9 states that “Where a variance or Special Permit is granted, a permit for the work contemplated shall be secured within one hundred eighty (180) days of the date of the action of the Board in granting the appeal ․ Upon failure to comply with these requirements, such approval shall be automatically rescinded.   Extensions of any of these time limits may be granted at the discretion of the Board of appeals upon its receipt, prior to the date such approval is rescinded, of a written request stating the reasons for granting of this extension.”   Modest did not appeal the decision of the Zoning Inspector to refuse to issue permits to the Zoning Board of Appeals or the Superior Court.

On June 5, 2003, Modest re-applied for the same variances it was granted in 2001.   This variance application was denied.   Modest did not appeal this decision of the Zoning Board of Appeals to the Superior Court.

On April 1, 2004, Modest again re-applied for the same variances it was granted in 2001.   This variance application was denied.   Modest did not appeal this decision of the Zoning Board of Appeals to the Superior Court.

In 2005, the Zoning Commission voted to change the Zoning District of the Subject Premises and the surrounding area from Restricted Business to East Avenue Village District.

On December 21, 2006, Drew Friedman purchased the Subject Premises from Modest.   On November 6, 2008, the plaintiff Drew Friedman applied to the Zoning Board of Appeals for the same variances previously applied for.   The Board decided to deny the variances for failure to demonstrate a hardship or practical difficulties.   This appeal ensued.

Both of the parties cite substantially the same cases on standard of review and hardship, and do not substantially disagree on the requirements on those issues.   Reviewing this application on its own, it is clear that it is necessary for the plaintiff to prove that the Board acted improperly.   The courts are not to substitute their own judgment for that of the Board, and that decision will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing.   It is the Board's responsibility pursuant to the statutorily required hearing to find the facts and to apply the pertinent zoning regulations to those facts.   This court has to determine on the basis on the record whether the substantial evidence has been presented to the Board to support the findings.   A decision of the Zoning Board of Appeals must be upheld if it is supported by substantial evidence.

Proof of the existence of practical difficulty or unusual hardship is a condition precedent to the granting of a variance.   The applicant must show that because of some peculiar characteristic of his property, the strict application of the zoning regulations results in an unusual hardship as opposed to the general impact which the regulation has on other properties in the zone.   The Board did not agree with the applicant that the topography was a valid hardship, or that there was any other hardship.   It is clear from the record that Mr. Hamlin and Chairman Strubinger felt that the topographical hardship claimed was insufficient to allow a thirty-seven percent (37%) coverage on the property, when they were only allowed twenty percent (20%).   The Board concluded that the application of the zoning regulations on this property did not create any significant difficulty or depravation that it does not create on any other property in the zone.   Every property in the zoning district is limited to a maximum of twenty percent (20%) coverage of the lot.

The plaintiff further contends that § 116–9a of the Norwalk Zoning Code is not legal or valid.   This section of the Code provides that “a permit for the work contemplated shall be secured within 180 days of the date of the action of the Board ․ extensions of any of these time limits may be granted at the discretion of the Board of Appeals.”   The plaintiff argues that the L,R & J Builders, LLC v. Zoning Board of Appeals of the City of Ansonia (2006 WL 1680026 Connecticut Superior) [41 Conn. L. Rptr. 467], substantiates their position.   Ansonia Regulations specify that work must be commenced within one year of the date of the granting of the variance.   In that decision the court stated that a Board is allowed to attach conditions, but there is no justification for the expiration date as a condition of the variance.

In the instant case, the ordinance does not directly place an expiration date on the variance, rather it allows the successful applicant to obtain an extension of time prior to the 180th day.   This ordinance did not place a limit on the number of extensions that a successful applicant can obtain.   By not applying for an extension of time to the defendant Board, the property owner failed to exhaust its administrative remedies.   The plaintiff argues that because § 116–9 of the Norwalk City Code is independent and not referenced in the Zoning Regulations, it cannot invalidate a variance.   The court does not find the plaintiff has cited any substantial evidence or cases for that proposition.   In fact, the entire authority and By–Laws of the Norwalk Zoning Board of Appeals are found in § 116 of the Norwalk City Code. The code section is separate from the zoning ordinance since it was created by special act.   Specifically according to a certain act “An act concerning zoning in certain cities and towns” adopted by the legislature in January of 1923 and approved June 7, 1923.

A zoning board of appeals is generally precluded from reversing a prior decision unless new or additional facts appear showing a change in conditions or other considerations materially affecting the merits have intervened since the former decision.  Rommell v. Walsh, 127 Conn. 272 (1940).   The Board found that there had been a change in conditions and considerations materially affecting the merits.   The zone change of the parcel from restricted business to East Avenue Village District (Exhibit 8, pg. 26).

The plaintiff argues that the change in zoning district should not be considered a change in conditions because the height and bulk requirements are the same.   However, there has been a change in the method of calculating the aggregate side yard.   Further, there is more to zoning than height and bulk requirements.   The purpose and intent of the zoning district is different.   The purpose and intent of the East Avenue Village District is to “preserve and enhance the character of the (district) by encouraging the preservation of sites and buildings of unique and historical and architectural value and ensuring new structures and uses will be in keeping with the established character of the area thereby strengthening the economy of the city and promoting the education, pleasure and welfare of its people.”   It is important to note that the existing building on the subject premises is listed in the Norwalk Historical resources inventory of November 21, 2002.   It is listed as a Greek revival style building erected in 1835.

The court further requested the parties to file supplemental briefs on the issue of whether the hardship that had been previously found to grant the 2001 variance, was hardship that ran with the land, and whether principals of res judicata or similar legal principals were involved in the instant application.

The court finds that where a party filed successive applications, the court makes two inquiries.  “The first is to determine whether the two applications seek the same relief.   The zoning board determines that question in the first instance, and the decision may be overturned only if it has abused its discretion.”  Fiorella v. The Zoning Board of Appeals, 144 Conn. 275, 279, (1957).  “If the applications are essentially the same, the second inquiry is whether there has been a change of conditions or other considerations have intervened which materially affect the merits of the matter decided.”   Malmstrom v. Zoning Board of Appeals, 152 Conn. 385, 393, 391 (1965).   In this case, the Zoning Board of Appeals did determine that there was a change of conditions since the first application in 2001.   Their decision pages 24 through 29 of the transcript indicates their discussion about the change in the character of the neighborhood and the significance of the zone change.

The Zoning Board of Appeals did not abuse its discretion in determining that there had been a change in the circumstances since the first 2001 variance application.

In this court's opinion, the fact that subsequent applications were filed was evidence of the fact that the plaintiff did not think the Zoning Board of Appeals were bound by the 2001 decision.

For all the foregoing reasons, the decision of the Zoning Board of Appeals is upheld, and the appeal is dismissed.

SO ORDERED.

EDWARD R. KARAZIN, JR.

JUDGE TRIAL REFEREE

Karazin, Edward R., J.T.R.