Deborah Schiavone v. Charles Urbain et al. (2012)

MEMORANDUM OF DECISION

FACTS

The Plaintiff, Deborah Schiavone, is the owner of property located at 2115 Fairfield Beach Road, Fairfield.   According to her complaint, the property contains a residence, located between Long Island Sound and Fairfield Beach Road, and a garage located across Fairfield Beach Road, adjacent to Pine Creek.

The Defendants, Charles and Sophie Urbain, are the owners of property located at 2123 Fairfield Beach Road. The Plaintiff alleges that the Urbains have entered into a contract with the Defendant Thomas Kane Building and Remodeling, LLC and/or Thomas J. Kane Building and Remodeling, for the purpose of erecting buildings and improvements on 2123 Fairfield Beach Road.

Prior to beginning construction on the property, the Urbains sought and obtained a variance from the Defendant Zoning Board of Appeals of the Town of Fairfield.   The purpose of the variance was to permit the demolition and reconstruction of a residential dwelling.   The variance, which was approved in October of 2010, sought a variance of the setback requirement from 45 feet to 15.2 feet.

No appeal from the granting of the variance was instituted.

In May of 2011, Charles and Sophie Urbain sought an additional variance, for the purpose of constructing a two-story, one-car garage on the portion of their property located between Fairfield Beach Road and Pine Creek.   The setback variance sought was a variance of 3.5 feet, from 25 feet to 21.5 feet.   A variance was also sought to increase the coverage to 38.5 percent, from 31.6 percent.

The Plaintiff alleges that the application tendered in support of the variance, included a petition, which was submitted to the Zoning Board of Appeals.   The petition was offered, in light of a portion of the application form, which reads:

12.  OPTIONAL BUT HIGHLY RECOMMENDED.   All signed letters and/or petitions from abutting neighbors and those in close proximity, stating that they have been made aware of the proposal, should be brought to the public hearing (original submit to clerk and six (6) copies) and distributed by the applicant directly to the Board members.   The location of the properties of those persons that signed letters and/or a petition should be identified on a copy of an Assessor's map for illustrative purposes (Assessor's Map is available at this office upon request).

A petition labeled “Garage” was submitted to the Zoning Board of Appeals.   The petition reads:

This is to confirm that the undersigned have reviewed the plans to construct a one-car garage at 2123 Fairfield Beach Road, which will require a coverage and setback variance, and have no objection to the variance request.

The document contains four (4) signatures.   One signature is opposite the address “2115 Fairfield Beach Road.” The Plaintiff, Deborah Schiavone, claims that the signature is not her signature, and is a forgery.   She also maintains that another signature was a forgery.

The Plaintiff insists that she never received actual notice that a variance application was pending on behalf of Charles and Sophie Urbain, concerning 2123 Fairfield Beach Road.

The Zoning Board of Appeals granted the variance request by Charles and Sophie Urbain, after hearing, and construction of the garage commenced.   No appeal of the decision of the Zoning Board of Appeals was initiated, within the time provided by law.¹

The Plaintiff claims that the Zoning Board of Appeals “relied upon” the petition containing false signatures, in its decision to grant the requested variances.

She seeks an order directing the Fairfield Zoning Board of Appeals to rescind its granting of the variances in May of 2011, and asks that a mandatory injunction issue against the Urbains and Thomas J. Kane, in order to prevent construction of the contemplated garage.

In her Amended Verified Complaint, dated November 1, 2011, she has pled five counts.   Count one claims that the Zoning Board of Appeals relied upon the petition containing false signatures, and that its approval of the variances was the result of fraud.   Allegations of fraud are also leveled against the Urbains, and the builders.

Count two claims that the garage being erected at 2123 Fairfield Beach Road is the result of “malicious intent” on the part of the Urbains, while Count three alleges a violation of the Connecticut Unfair Trade practices Act (CUTPA) against Thomas J. Kane and Thomas J. Kane Building and Remodeling, LLC.

The fourth count claims that the construction of the garage has obstructed the Plaintiff's “vistas and views of Pine Creek,” and constitutes a nuisance.

Count five claims that the action of the Zoning Board of Appeals violated guarantees of due process, and its action granting the variances was therefore illegal.

On November 3, 2011, the defendants Charles and Sophie Urbain moved to dismiss the Plaintiff's complaint.   A similar motion was filed on behalf of Thomas J. Kane and Thomas J. Kane Building and Remodeling, LLC on November 10, 2011.

The Fairfield Zoning Board of Appeals agreed to join in both motions, when they were argued.

STANDARD OF REVIEW—MOTION TO DISMISS

A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court by saying that the plaintiff is unable, as a matter of law, to state a cause of action which can be heard.  Baskin's Appeal from Probate, 194 Conn. 635, 640 (1984);  Practice Book § 10–31.   The purpose of a motion to dismiss is to test whether, in the face of the record, the court lacks either personal jurisdiction over the party, or subject matter jurisdiction.  Pearson v. Bridgeport Hydraulic Co., 141 Conn. 646, 648 (1954).

Subject matter jurisdiction is the power of a court to hear and determine cases of the general class to which the proceedings in question belong.   Gurliacci v. Mayer, 218 Conn. 53, 542 (1991);  LeConche v. Elligers, 215 Conn. 701, 709 (1990).

Once raised, the issue of subject matter jurisdiction must be considered and determined, prior to any further proceedings.  Cahill v. Board of Education, 198 Conn. 229, 238 (1985).

FAILURE OF AN APPLICANT FOR A VARIANCE TO COMPLY WITH PARAGRAPH 12 ON THE APPLICATION FORM DOES NOT RENDER ANY DECISION EITHER VOID OR VOIDABLE

The plaintiff does not claim that the notice required pursuant to the General Statutes prior to a hearing, was not provided in advance of the May 5, 2011 ZBA meeting.   Nor does she deny that she failed to prosecute a timely appeal of the granting of the garage variances, following publication of the decision on May 11, 2011.

She claims, however, that she may challenge the decision of the Zoning Board of Appeals, because the applicant failed to comply with the notice requirements contained in paragraph 12 of the application form, and that the document submitted contained forged signatures.

The failure of a municipal land use body to provide the notice mandated by the General Statutes implicates subject matter jurisdiction.   It cannot be conferred by consent, and cannot be waived.  Lauer v. Zoning Commission, 220 Conn. 455, 461–62 (1991);  Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 44 (1972).

The failure to comply with an ordinance which requires that a notice of an application be posted conspicuously on the affected property is a requirement designed to provide notice to the public at large, and to amplify the statutory requirements.   Therefore, subject matter jurisdiction is impacted.  Wright v. Zoning Board of Appeals, 174 Conn. 488, 491 (1978).

The purpose of a personal notice requirement is to give actual notice to a person entitled to it.  Schwartz v. Hamden, 168 Conn. 8, 15 (1975).   A failure to give personal notice to a particular individual is not a jurisdictional defect, and can be waived by the party entitled to receive it.   Sachem's Head Assn. v. Lufkin, 168 Conn. 365, 370 (1975);  Palo v. Rogers, 116 Conn. 601, 605 (1933).

Actual notice of a pending matter may act as a waiver, where personal notice, as opposed to statutory or constructive notice, is involved.  Sachem's Head Assn. v. Lufkin, supra, 370.

While the Town of Fairfield is free to enact an ordinance requiring personal notification to all abutting land owners, it has not chosen to do so.   Paragraph 12 of the application is “OPTIONAL” and a failure to comply does not render an action “voidable.”

Use of the word “OPTIONAL” indicates a conscious decision to permit a land use body to act on an application, even in the absence of a failure of an applicant to notify all landowners abutting the subject property.   The requirement should not be rewritten by a court to render it mandatory, when the municipal zoning authority has specifically declined the opportunity.

The Fairfield Zoning Board of Appeals, even in the absence of a waiver of notice by the Plaintiff, had jurisdiction to hear and to decide the request for a variance submitted by Charles and Sophie Urbain, concerning their purposed garage.

The Plaintiff also claims that the Zoning Board of Appeals “relied upon” the allegedly fraudulent signatures, when granting the requested variances.   In this way, she seeks to attack the decision of the Fairfield Zoning Board of Appeals, notwithstanding her failure to initiate a timely appeal, challenging the action.

When a party has a statutory right of appeal, she may not bring an independent action designed to test the issue, which would have been examined in an appeal.  Carpenter v. Planning & Zoning Commission, 176 Conn. 681, 598 (1979).   As a general rule, the failure of a party to appeal from the action of a zoning authority renders the action final, and not subject to corrective action or review by a court.  Upjohn v. Zoning Board of Appeals, 224 Conn. 96, 102 (1992);  Spectrum of Connecticut, Inc. v. Planning & Zoning Commission, 13 Conn.App. 159, 163 (1988).

Furthermore, even assuming that the information contained in the petition is inaccurate, either through inadvertence or premeditation, the Plaintiff's claim is not advanced.

In order to grant a variance, a zoning board of appeals must find that two conditions have been satisfied:  1) the variance must be shown not to affect substantially the municipal comprehensive plan, and 2) adherence to the strict letter of the zoning ordinance must cause unusual hardship, unnecessary to the carrying out of the general purpose of the zoning plan.  Francini v. Zoning Board of Appeals, 228 Conn. 785, 790 (1994);  Smith v. Zoning Board of Appeals, 174 Conn. 323, 326 (1978).

Variances run with the land, and must be based on property conditions.   Reid v. Zoning Board of Appeals, 235 Conn. 850, 860 (1996);  § 8–6(b), C.G.S. This focus on the unique condition of the property renders the identity of the applicant irrelevant.  Dinan v. Zoning Board of Appeals, 220 Conn. 61, 66–67 (1992).

Therefore, even assuming, arguendo, that the ZBA decision was vulnerable to a collateral attack, the opinion of an abutting landowner is not relevant to the criteria which must be met, if a variance is to be granted.   An abutting landowner, while statutorily aggrieved pursuant to § 8–8(1) 2 of the General Statutes, does not have the ability to veto the approval of a variance.   In any appeal, the abutting owner must demonstrate that the variance is either inconsistent with the comprehensive plan, or that a legally cognizable hardship is missing.

COUNTS ONE THROUGH FOUR, AS TO CHARLES AND SOPHIE URBAIN, THOMAS J. KANE, AND THOMAS J. KANE BUILDING AND REMODELING, LLC, ARE NOT SUBJECT TO DISMISSAL

In Count One, the Plaintiff claims that one or more of the Defendants fraudulently procured signatures on a petition, and submitted that petition to the Zoning Board of Appeals.

In order to prevail on this claim, she must prove not only the fraudulent act on the part of one or more of the individual Defendants, but that the Zoning Board of Appeals voted to grant the variance due to its collective reliance upon the petitions.   In other words, the Plaintiff must prove that the Zoning Board of Appeals did not apply the appropriate criteria, when voting upon the variance, but instead relied upon the petition.

Although the Plaintiff has a monumental, perhaps insurmountable burden, and faces an equally daunting task when compelled to prove damages based upon the alleged fraud, the motion to dismiss must be denied.

This in no way precludes the Defendants from revisiting this claim, by way of a motion to strike, and/or a motion for summary judgment.

In Count Three, the Plaintiff claims that Thomas J. Kane, and/or Thomas J. Kane Building and Remodeling, LLC, violated the Connecticut Unfair Trade Practices Act, § 42a–110a et seq. of the General Statutes.

Section 42a–110b(a) provides:  “No person shall engage in unfair methods of competition and unfair or deceptive practices in the conduct of any trade or commerce.”

A party seeking to recover damages pursuant to a CUTPA claim, must meet two requirements:  1) she must establish that the conduct at issue constitutes an unfair or deceptive trade practice, and 2) she must prove a reasonable estimate of the damages suffered—that is, she must prove that she has suffered ascertainable loss.  Beverly Hills Concepts, Inc. v. Schatz, Schatz, Ribicoff and Kotkin, 247 Conn. 48, 78–79 (1998);  Reader v. Cassarino, 51 Conn.App. 292, 298–99 (1998).

While proof of ascertainable loss would appear problematic, the motion to dismiss this count must also be denied.   This issue may also be revisited via a motion to strike, and/or a motion for summary judgment.

While Count Two (malicious erection of a structure) and Count Four (private nuisance) will also withstand the motion to dismiss, as to the Urbains and Thomas J. Kane and Thomas J. Kane Building and Remodeling, LLC, the claims raised in these counts would also appear tenuous.

In order to recover damages in a common-law private nuisance cause of action, a plaintiff must demonstrate that the conduct of the defendant was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of her property.  Pesty v. Cushman, 259 Conn. 345, 361 (2002);  4 Restatement (Second) Torts, § 822.   Nuisance involves the breach of a duty by a property owner, to make reasonable use of his property, without occasioning unnecessary damages or annoyance to his neighbor.  Herbert v. Smith, 155 Conn. 78, 82 (1967).   If the use is unreasonable, the law will hold the owner accountable.  Krulikowski v. Polycase Corporation, 153 Conn. 66, 669 (1966).

While it might be difficult to sustain a claim that building a garage on one's own property constitutes an unreasonable interference with the Plaintiff's use and enjoyment of her property, the claim will survice a motion to dismiss.   However, this court has found no Connecticut case recognizing a viable cause of action, based upon any alleged interference with a plaintiff's easement of light, air, or scenic vistas.

These claims will also be resurrected, via a motion to strike, and/or a motion for summary judgment.

CONCLUSION

The motion to dismiss, as to the Defendant, Zoning Board of Appeals of the Town of Fairfield, is GRANTED, as to all Counts, including Count Five, in which the ZBA is the only Defendant.

The motions to dismiss, as to Counts One through Four are DENIED, as to the remaining Defendants.

RADCLIFFE, J.

FOOTNOTES

FN1. Section 8–8(b), C.G.S.— ․ 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 appeal shall be commenced by service of process ․ within fifteen days from the date that notice of the decision was published ․.  FN1. Section 8–8(b), C.G.S.— ․ 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 appeal shall be commenced by service of process ․ within fifteen days from the date that notice of the decision was published ․

FN2. Section 8–8(1), C.G.S.—”(1) “Aggrieved person” means a person aggrieved by a decision of a board ․ In the case of a decision by a ․ zoning board of appeals, “aggrieved person” shall include 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.”.  FN2. Section 8–8(1), C.G.S.—”(1) “Aggrieved person” means a person aggrieved by a decision of a board ․ In the case of a decision by a ․ zoning board of appeals, “aggrieved person” shall include 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.”

Radcliffe, Dale W., J.