Michael Roby et al. v. Town of Killingly Zoning Board of Appeals (2012)

MEMORANDUM OF DECISION

I

STATEMENT OF APPEAL

The plaintiffs, Michael Roby and Carol Roby, appeal from the decision of the defendant, the zoning board of appeals of the town of Killingly (ZBA), denying their application for a variance to modify an existing side setback variance.

II

FACTUAL BACKGROUND

On September 18, 2008, the plaintiffs made application to the ZBA seeking a variance to permit the construction of a two-car attached garage on their property located at 1204 Hartford Pike in Killingly.  (Supplement to Return of Record [SROR], Exh. R.) The plaintiffs requested a variance from § 450, Dimensional Requirements, Table A, of the Killingly zoning regulations to reduce the side setback from twenty feet to thirteen feet.  (SROR, Item R, p. 4.) The ZBA approved this variance on October 9, 2008.  (SROR, Item T.) On April 6, 2010, Killingly's zoning enforcement officer sent a letter to the plaintiffs informing them that the garage was less than ten feet from the side property line.  (Return of Record [ROR], Exh. N.)

On April 22, 2010, the plaintiffs made application for a variance to modify the existing variance from thirteen feet to nine feet.  (ROR, Exh. A.) The ZBA held a duly noticed public hearing on the application on May 13, 2010;  (ROR, Exh. B);  which was continued to June 10, 2010.  (ROR, Exh. E.) On June 10, 2010, the ZBA resumed its public hearing on the applications for the variance, after which the ZBA denied the plaintiffs' variance application.  (ROR, Exh. K.) The plaintiffs appealed from the ZBA's decision to the Superior Court.   The trial was completed on February 14, 2012.

III

JURISDICTION

General Statutes § 8–8 governs appeals from decisions of zoning boards 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.”  Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).

A

Aggrievement

“[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ․ [I]n order to have standing to bring an administrative appeal, a person must be aggrieved.”  (Internal quotation marks omitted.)  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007).   “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  (Internal quotation marks omitted.)  Id., 400.   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 [controversy], as opposed to a general interest that all members of the community share ․ Second, the party must also show that the [alleged conduct] 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.”  Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2008).  General Statutes § 8–8(a)(1) provides in relevant part, “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.”  Section 8–8(b) provides in relevant part, “any 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 plaintiffs allege that they are statutorily and classically aggrieved by the ZBA's decision as owners of the subject property.  (Complaint, ¶ 16.)   The plaintiffs introduced at trial a deed which shows that the plaintiffs are the owners of the property that is the subject matter of the ZBA's decision.   From this undisputed evidence, the court finds that the plaintiffs own the subject property and that the plaintiffs, therefore, are statutorily aggrieved by the ZBA's decision.

Moreover, the plaintiffs' status as owners of the subject property establishes that they have a specific personal and legal interest in the subject matter of the decision.   The fact that the board's decision resulted in the denial of the plaintiffs of the ability to use their property as proposed establishes that this specific personal and legal interest has been specially and injuriously affected.   See Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987).   Accordingly, the court concludes that the plaintiffs are classically aggrieved by the ZBA's decision also.

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) provides that “[p]rocess in civil actions against the following-described classes of defendants shall be served as follows ․ (5) against a board, commission, department or agency of a town, city or borough, 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.”

Notice of the ZBA's decision was published in the Norwich Bulletin, a newspaper of general circulation in the Killingly area, on June 15, 2010.   (ROR, Exh. L.) The plaintiffs commenced this appeal on June 29, 2010, less than fifteen days from the date of publication, by service of process upon the ZBA, by leaving two copies of the citation, complaint and appeal and demand for relief and exhibits with the town clerk of the town of Killingly.  (Marshal's Return.)   Accordingly, the court finds that this appeal is timely and that service of process was proper.

IV

SCOPE OF REVIEW

“The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal ․ 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.)  R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).  “In order to determine whether the board properly granted the subject variance, [the court] must first consider whether the board gave reasons for its action ․ Where a zoning board of appeals does not formally state the reasons for its decision ․ the trial court must search the record for a basis for the board's decision.”  (Internal quotation marks omitted.)  Moon v. Zoning Board of Appeals, 291 Conn. 16, 25, 966 A.2d 722 (2009).

Here, the ZBA did not state any reasons on the record.   Therefore, the court will search the record for a basis for the ZBA's denial of the plaintiffs' variance application.

V

DISCUSSION

The plaintiffs appeal on the grounds that in denying their application, the ZBA acted illegally, arbitrarily and in abuse of the discretion for several reasons.  (Complaint, ¶ 15.)   Although several grounds for appeal are listed in the complaint, the plaintiff has not briefed all of these grounds.  “Issues that are initially raised in a [land use] 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 (1996).   Accordingly, any claim which has not been briefed will be considered abandoned.

In their brief, the plaintiffs present two arguments.   First, the plaintiffs argue that the ZBA's denial of their second application exceeded its statutory authority.   Specifically, the plaintiffs assert that the basis for the ZBA's determination with regard to the first application that a hardship existed still remains and that the denial illegally overruled the ZBA's decision on the first variance because there has been no material change in circumstances.   The plaintiffs maintain that the ZBA is collaterally estopped from relitigating the issue of whether the plaintiffs qualified for the original variance because the hardship has not changed and the ZBA's original decision was not appealed or otherwise overturned.   Second, the plaintiffs argue that the ZBA denied the second variance based upon improper considerations, including the opposition of the plaintiffs' neighbors to the variance.

The ZBA counters that its decision was not arbitrary, illegal or an abuse of discretion because the alleged hardship was self-created.   The ZBA argues that the hardship was self-created “because the errors of both the applicants and the contractor that resulted in the garage being constructed too close to the side-line are voluntary acts taken on behalf of the applicants ․” The ZBA also argues that the hardship in this case is a personal hardship, which does not provide a sufficient ground for a variance.   It contends that the hardship existing when the first application was granted was resolved by the original variance allowing the plaintiffs to build a smaller garage.   The ZBA further maintains that the plaintiffs have not met their burden to prove that a hardship existed beyond their control and was not merely economic, so the ZBA did not have the power to grant a variance.   Moreover, the ZBA asserts there has been a change of conditions that materially affected the merits, specifically, the plaintiffs' widening of the footprint of the garage without properly measuring the distance to the side-line boundary.

“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.”  (Internal quotation marks omitted.)  Moon v. Zoning Board of Appeals, supra, 291 Conn. 24.

Accordingly, our 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 ․ Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance ․ A mere economic hardship or a hardship that was self-created, however, is insufficient to justify a variance ․ and neither financial loss nor the potential for financial gain is the proper basis for granting a variance.”  (Internal quotation marks omitted.)  Id., 24–25.

First, the court must consider whether the ZBA improperly overruled its previous decision to grant the original variance when it denied the plaintiffs' second variance application.  “When a party files successive applications for the same property, a court makes up to 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 its decision may be overturned only if it has abused its discretion ․ 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.”  (Internal quotation marks omitted.)  Vine v. Zoning Board of Appeals, 102 Conn.App. 863, 869–70, 927 A.2d 958 (2007).

With respect to the first inquiry, the ZBA implicitly determined that the two variance applications sought essentially the same relief, namely, permission not to comply with the twenty-foot side setback requirement contained in the zoning regulations.   See id., 870 (finding that the board implicitly determined that the two variance applications sought the same relief).   Therefore, the court turns to the second inquiry, which is whether the board properly determined that there had been a change of conditions or other considerations had intervened that materially affected the merits of the matter decided.

The record reveals that the plaintiffs stated in their April 22, 2010 variance application that the hardship was the fact that a septic system in the front left-side yard and a well behind the house meant the best placement for the garage, which they should be allowed to have, “is attached to [the] right side of house.”  (ROR, Exh. A, p. 4.) This is the same hardship stated in the first variance application.  (Supplement to ROR, Exh. R, p. 4.)

In their oral presentation to the ZBA, the plaintiffs explained that they built a garage, but “it was found that the dimensions were wrong, and it's actually a 9' setback now.”  (ROR, Exh. O, p. 2.) The plaintiffs admitted that “we measured wrong, to put it simply.”  (ROR, Exh. O, p. 2.) The plaintiffs went on to explain that they “actually pinned out the garage well in advance.   So that everybody could see it.”  (ROR, Exh. O, p. 5.) Nevertheless, what they “thought were the sidelines, evidently weren't the sidelines.”  (ROR, Exh. O, p. 6.) The plaintiffs expand on this point:  “[W]e measured to what we thought was the sidelines.   And evidently that wasn't quite right.   Another thing that happened along the way is, knowing we had a limited space to work with, we wanted to ask for a 22' garage figuring ․ that's where our initial measurements came from.   It was suggested to us why don't you go for a 24.'   And I don't think at that time ․ I did not change those 2' so that accounts for some of the error.”  (ROR, Exh. O, p. 6.)

When the ZBA began discussing whether to approve the application, one board member, Paul Whitehead, noted that “just doing the math, the garage isn't going to fit.”  (ROR, Exh. O, p. 27.)   Patrick Garrity, another member, agreed, noting that the plaintiffs “could have put a single car garage.   It didn't have to be 28' [sic] it could have been 22'.”  (ROR, Exh. O, p. 27.)

This evidence in the record supports a finding that there was a change in conditions because the plaintiffs could have built a garage that did not exceed the side setback line established by the 2008 variance.¹  That is, the hardship of not being able to build a garage on the property was relieved by the first variance, so this hardship no longer exists.   The ZBA members recognized this fact during their discussion when they noted that a smaller garage would have fit.   The plaintiffs' desire to have a bigger garage is not a sufficient hardship upon which to grant a variance.   See Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 548, 684 A.2d 735 (1996) (where zoning regulations allowed plaintiffs to build house, although not type they desired, no hardship existed;  disappointment in use of property does not constitute exceptional difficulty or unusual hardship).   Thus, substantial evidence in the record demonstrates that although the plaintiffs' hardship in the first variance application was the inability to construct a garage due to the characteristics of the property and the enforcement of the zoning regulations, the original variance removed that hardship by allowing a garage to be built.   Accordingly, substantial evidence in the record would support a finding that there had been a change of conditions that materially affected the merits of the matter decided.   In their second variance application, the plaintiffs' hardship is the fact that they constructed their garage in a manner that violates the setback requirement despite having the ability to build the garage in conformance with the original variance.

Turning to the issue of whether this hardship is self-created, our Supreme Court has stated that “[w]here the condition which results in the hardship is due to one's own voluntary act, the zoning board is without the power to grant a variance.”  (Internal quotation marks omitted.)  Vine v. Zoning Board of Appeals, 281 Conn. 553, 561, 916 A.2d 5 (2007).

“In Highland Park, Inc. v. Zoning Board of Appeals, [155 Conn. 40, 229 A.2d 356 (1967) ], either the surveyor or the foundation contractor employed by the plaintiff corporation made an error that caused a house to be constructed on a lot so that it was positioned in violation of the applicable zoning regulations ․ Without the variance, the house would have to be demolished ․ The zoning board of appeals denied a variance request, finding that the condition was self-inflicted ․ In sustaining the trial court's dismissal of the appeal, our Supreme Court stated that any hardship present in the situation is due to the property owner's own error, or the error of those employed by the owner, and does not arise from the application of the zoning regulations themselves.”  (Citations omitted;  internal quotation marks omitted.)   Marikawa v. Zoning Board of Appeals, supra, 126 Conn.App. 410.   Our Supreme Court “squarely held in Highland Park, Inc., that it would not [uphold the grant of a variance] when the hardship arises as a result of the property owner's own error or the error of those employed by the owner.”  Id., 411.

Here, substantial evidence in the record shows that, to the extent the plaintiffs need an additional variance, their hardship is self-created and purely economic.   The plaintiffs made a mistake in measuring and staking out the garage.   This error, as in Highland Park, “does not arise from the application of the zoning regulations themselves.”   Thus, the hardship was due to the plaintiffs' own voluntary actions, so “the zoning board is without the power to grant a variance.”  (Internal quotation marks omitted.)  Vine v. Zoning Board of Appeals, supra, 281 Conn. 561.

The plaintiffs' two remaining arguments need not be addressed in detail.   Collateral estoppel is inapplicable because the issue of a self-created hardship was not addressed by the ZBA's first decision.   See Corcoran v. Department of Social Services, 271 Conn. 679, 689, 859 A.2d 533 (2004) (noting that in order “[t]o invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding”).   The final argument, that the ZBA denied the second variance based upon improper considerations, is incorrect.   Substantial evidence in the record supports the denial of the application because the hardship is self-created and purely economic.

VI

CONCLUSION

For the reasons set forth above, the court denies the plaintiffs' appeal.

Edward Graziani, Judge of the Superior Court

FOOTNOTES

FN1. This finding differs from that of Manzi v. Zoning Board of Appeals, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 92 012300 (January 8, 1993, Hickey, J.).   The Manzi court found that the circumstances had not changed between the first and second application despite a variance be granted in the first application.   This court reaches the opposite conclusion because the granting of the first variance does materially change the circumstances..  FN1. This finding differs from that of Manzi v. Zoning Board of Appeals, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 92 012300 (January 8, 1993, Hickey, J.).   The Manzi court found that the circumstances had not changed between the first and second application despite a variance be granted in the first application.   This court reaches the opposite conclusion because the granting of the first variance does materially change the circumstances.

Graziani, Edward C., J.