Opinion
No. CV04 400 37 69-S
November 18, 2005
MEMORANDUM OF DECISION
The plaintiff, Ash Creek, LLC, (hereinafter "Ash Creek") appeals from the decision of the zoning board of appeals of the town of Fairfield (hereinafter "ZBA"), denying its application to rescind a condition limiting Ash Creek's property to 1000 square feet of living space, which was imposed on the plaintiff's variance in 2002.
Ash Creek alleges it is the record owner of property located at 25 Harris Street in Fairfield, Connecticut. (Appeal, ¶ 1.) On July 10, 2002, John Farlekas, Jr., a "member" of Ash Creek, filed an application with the ZBA requesting a variance of § 5.1:1 of the Zoning Regulations of the town of Fairfield to reduce the property's minimum lot size from 6,000 square feet to 5,000 square feet, and to reduce the required minimal square from 60 feet to 50 feet. (Return of Record [ROR], Item 5.) The application also requested a variance of § 2.6 "to allow for the lot to be made nonconforming under the current regulations in order to create a building lot for a single-family residence." (ROR, Item 5.)
On September 5, 2002, the ZBA granted Ash Creek's variance subject to the following conditions: (1) "No more than one thousand (1,000) sq. feet of enclosed living space"; (2) "single family use only"; (3) "There shall be a driveway for off street parking"; (4) "There shall be no storage of commercial equipment outside . . ."; and (5) "Applicant shall record these restrictions within a covenant recorded on the Fairfield Land Records, and the variance is not effective until the covenant is so recorded." (ROR, Items 5 and 12.) Subsequent to the ZBA's approval, a single-family house was constructed on Ash Creek's property that has 1004 square feet of enclosed living space, and has an attic with an area of approximately 326 square feet. (ROR, Item 20, pp. 3 and 6, and Item 39.) The attic was intended to be used for storage space. (ROR, Item 20, p. 5.)
The ZBA's conditions are handwritten on the last page of Ash Creek's variance application to the zoning board of appeals. (ROR, Item 5.) On the copy before the court, the last sentence of condition number four was cut off. Since condition number four is not the subject of this appeal, the court is disregarding the sentence that was cut off.
After Ash Creek received the certificate of occupancy on November 5, 2003; (ROR, Item 48); the Fairfield tax assessor's office assessed the plaintiff's property to include approximately 1,330 square feet of enclosed living space. (ROR, Item 20, pp. 6 and 20.) The tax assessment was appealed to the board of tax review and was denied on March 3, 2004. (ROR, Item 20, p. 6, and Item 37.)
On June 18, 2004, Ash Creek filed a new application with the ZBA requesting a waiver of the condition limiting the amount of enclosed living space to 1000 square feet. (ROR, Item 15.) A hearing on Ash Creek's application was held on September 9, 2004 and the ZBA denied it on October 7, 2004. (ROR, Item 20, pp. 1-24, and Item 22.) Ash Creek appealed from the ZBA's decision to the Superior Court and this court conducted the trial on October 13, 2005.
General Statutes § 8-8 governs an appeal from the decision of a zoning board 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." (Internal quotation marks omitted.) Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
AGGRIEVEMENT
The fundamental test by which the status of aggrievement is determined encompasses a well-settled twofold determination. First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision . . . Aggrievement is an issue of fact . . . and credibility is for the trier of the facts . . . Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts . . ." (Citations omitted; internal quotation marks omitted.) Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 307-08, 592 A.2d 953 (1991).
At the trial on October 13, 2005, John Farlekas, Jr. presented a deed identifying Ash Creek as the owner of 25 Harris Street, which is the subject of this appeal. (Ash Creek's Exhibit 1.) The court finds that Ash Creek's status as owner of the property is sufficient to establish aggrievement. See Winchester Woods Associates v. Planning Zoning Commission, supra, 307.
TIMELINESS SERVICE OF PROCESS
Pursuant to § 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."
Ash Creek alleges that the ZBA's decision was published on October 13, 2004. (Appeal, ¶ 3.) Further, Ash Creek commenced this appeal on October 25, 2004 by serving process on the following: Marguerite Toth, town clerk of Fairfield; Josephine O'Halleran, ZBA clerk; and Patrick Henry, chairperson of the ZBA. (Marshal's Return dated October 25, 2004.) As this appeal was commenced by service of process within fifteen days from the date of publication, the court finds that it is timely and that service was made upon the proper parties.
On July 13, 2005, the ZBA filed a motion to dismiss the appeal on the grounds that the plaintiff only filed one copy of the process on the town clerk of Fairfield in contravention of General Statutes §§ 8-8(f)(2) and 52-57(b)(5). Section 8-8(f)(2) provides in relevant part: "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. Such service shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the clerk of the municipality or the chairman or clerk of the board a necessary party to the appeal."
Section 52-57(b)(5) provides that two copies of process shall be served on the town clerk when serving a board. The reason for the service of two copies upon the town clerk is so the clerk could forward the second copy to the board. General Statutes § 52-57(b)(5).
Although only one copy of the process was served upon the town clerk in the present case, this is not a basis for dismissing the appeal. In this case, the town clerk and the chairperson of the ZBA were both served. As the court emphasized in Mucci Construction, LLC v. Oxford, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 4002344 (May 5, 2005, Shluger, J.), "to dismiss this appeal because the appellant had served one copy on the town clerk and one copy to the commission chair would serve an injustice particularly when the purpose of [§ 8-8(f)(2)] is simply to ensure that the clerk has sufficient copies to forward one to the commission chair who in this instance had, in fact, been served." Similarly, in the present appeal, the ZBA chairperson had been served. Therefore, there was no reason for the clerk to forward a copy of the service to him. Accordingly, this court denied the ZBA's motion to dismiss on October 7, 2005.
"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] 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." (Citation omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004). "The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal." RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61. The court is not bound to consider any claim of law not briefed. Moulton Bros., Inc. v. Lemieux, 74 Conn.App. 357, 363, 812 A.2d 129 (2002).
A review of the record reveals that the ZBA did not state its reasons for denying the plaintiff's waiver application. (ROR, Item 22.) "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.) Municipal Funding, LLC v. Zoning Board of Appeals, supra, 270 Conn. 454. Thus, this court must search the record to determine whether there is substantial evidence to support the ZBA's denial, and whether the ZBA acted unreasonably, arbitrarily, or illegally.
Ash Creek's position is that "[t]he imposition of the condition limiting the square footage of the house to one thousand square feet violates a strong public policy against the free alienability of property," and "[t]he fact that the condition was accepted by the applicant at the time of the hearing on the variance application is of no moment." (Plaintiff's Brief, pp. 7 and 11.)
Ash Creek concedes that it failed to appeal the imposition of the condition attached to the variance. It cites to Upjohn v. Zoning Board of Appeals, 224 Conn. 96, 616 A.2d 793 (1992), for the proposition that this is an "exceptional case" wherein a previously unchallenged condition is subject to challenge when the continued maintenance of the condition violates a strong public policy. It further analogizes the facts underlying its appeal to Gangemi v. Zoning Board of Appeals, 255 Conn. 143, 763 A.2d 1011 (2001). In Gangemi, the Supreme Court held that the continued maintenance of a no rental condition violated Connecticut's strong public policy against restrictions on the free alienability of property. Gangemi v. Zoning Board of Appeals, supra, 157. Ash Creek maintains that "the impact of the limitation in living area, discreetly imposed solely on this property, fails to serve a legitimate purpose of zoning and violates the public policy of lack of restriction on the alienability of real property." (Plaintiff's Brief, p. 11.) Even if the ZBA argues that Ash Creek "agreed" to the condition, Ash Creek contends that "a voluntary assumption of a condition can not be deemed to be voluntary" when, in the absence of that condition, the agency indicates that an approval would not be forthcoming. (Plaintiff's Brief, p. 11.)
The ZBA responds that Ash Creek is precluded from challenging the previously unappealed "maximum living space" condition. The ZBA contends that it properly denied Ash Creek's application, and that Ash Creek is now precluded from contesting the condition because it did not take an appeal from the imposition of the condition in 2002. It counters that this is not a rare "exceptional case" permitting the mounting of an appeal of a previously unchallenged condition. The ZBA distinguishes Ash Creek's appeal from the collateral exception set forth in Upjohn v. Zoning Board of Appeals, supra, 224 Conn. 96. It further distinguishes the appeal from the facts contained in Gangemi v. Zoning Board of Appeals, supra, 255 Conn. 143. The ZBA argues that Gangemi is distinguishable from the present case on the basis that the condition in this case is a "maximum living space" condition, not a "no rental" condition as in Gangemi. In Gangemi, the ZBA argues, the "no rental" condition stripped the Gangemis of "one-third of their bundle of economically productive rights." The ZBA further argues that Ash Creek is free to live in, rent, and sell its single-family dwelling, and its "bundle of economically productive rights remain entirely intact." Accordingly, the ZBA argues that the general rule in Upjohn, not the exception applied in Gangemi, controls in this case.
The majority in Gangemi reasoned that "[o]wners of a single-family residence can do one of three economically productive things with the residence: (1) live in it; (2) rent it; or(3) sell it." Gangemi v. Zoning Board of Appeals, supra, 255 Conn. 151-52. These are the "bundle of rights" property owners enjoy. Id., 151.
In Upjohn Co. v. Zoning Board of Appeals, the Supreme Court concluded that, as a general proposition, one may not accept "both the benefits of the permit and the condition attached to it, by failing to challenge the condition by way of direct appeal . . . and then years later, defend against the enforcement of the condition by attacking its validity void ab initio." (Citation omitted.) Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 101-02. The court recognized, however, "that there may be exceptional cases in which a previously unchallenged condition was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it, or in which the continued maintenance of a previously unchallenged condition would violate some strong public policy. It may be that in such a case a collateral attack on such a condition should be permitted." Id., 104-05.
The Supreme Court has observed that "[a] zoning board of appeals may, without express authorization, attach reasonable conditions to the grant of a variance . . . The power to impose conditions is implied in the power to grant variances . . . The purpose of a condition, however, must be to ensure that the variance is in harmony with the general purpose and intent of the zoning ordinance." (Citations omitted; internal quotation marks omitted.) Gangemi v. Zoning Board of Appeals, supra, 255 Conn. 161.
In its application to rescind the 2002 condition limiting the living space to 1000 square feet, Ash Creek stated the following: "The applicant seeks a waiver of the condition limiting the living area to 1,000 square feet based upon the fact that such a limitation creates a hardship, singling out the applicant for living area much reduced in size from that of surrounding neighborhood homes. This hardship was not self created, but was created by the condition imposed by the Zoning Board of Appeals upon the granting of the originally requested variance. A waiver of this condition will not adversely impact the neighborhood and to all outside appearances, will not impact the neighborhood at all." (ROR, Item 15.)
A review of the record reveals that Ash Creek's property is located in a Residence B district. (ROR, Item 15.) Section 5.2.6 of the Zoning Regulations of the town of Fairfield provides that the minimum square feet of floor area for dwellings in a Residence B district is as follows: for a one-story dwelling, seven hundred and fifty (750) square feet; for a split-level dwelling, one thousand (1000) square feet; and for two (2) stories or more, six hundred and fifty (650) on the ground floor and one thousand (1,000) in the aggregate, and each dwelling for two or more families shall have a minimum floor area of five hundred (500) for each family. (ROR, Item 52, pp. 23-24.) The plaintiff's house is 1 1/4 stories with a living area of 1,004 square feet and the attic is 326 square feet. (ROR, Item 39.)
The record also shows that the living area space of the houses located on Harris Street range from 768 square feet to 3,131 square feet. (ROR, Item 31.) The houses also range from 1 to 2 stories. (ROR, Item 31.) A review of the record also demonstrates that the houses located on the streets near Harris Street are 1 to 3 story houses and range in living area space from approximately 704 square feet to approximately 3346 square feet. (ROR, Items 32, 33 and 34.)
A review of the record reveals that the imposition of the 2002 condition was discussed at the public hearing on September 9, 2004. (ROR, Item. 20, p. 9.) A member of the ZBA testified that "there was a terrific upsurge from the neighborhood that was actually upset about a bigger house and it went quite a long time and the neighbors came out in force. There was like a split and some were for and some were against. As a result, what was agreed to by satisfying the neighbors and seemed to satisfy the applicant was this limiting to 1,000 square feet because they were worried about the size, etc. etc. I recall that vividly, that was the sequence of events. This was a compromise that [the plaintiff] agreed upon due to that uprising." (ROR. Item 20, p. 9.)
The present case is similar to Upjohn v. Zoning Board of Appeals. In Upjohn, the plaintiff secured a zoning permit in 1983 subject to a condition, but did not challenge it by direct appeal until 1986. Upjohn v. Zoning Board of Appeals, supra, 224 Conn. 102. The Supreme Court held that the plaintiff was precluded from challenging it in 1986, which was three years later. Id. In the present case, Ash Creek now seeks to challenge, by direct appeal, a condition that was imposed in 2002.
Although Ash Creek's living space is slightly smaller in square footage than the houses in its neighborhood, the condition imposed on the 2002 variance complies with § 5.2.6 of the Zoning Regulations. The condition ensures that Ash Creek's house is in harmony with its neighborhood. Ash Creek agreed to the condition in 2002, and it was not "so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it." Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 105. Therefore, this is not an exceptional case that would allow a waiver of the 2002 condition, and similar to the plaintiff in Upjohn, Ash Creek should be precluded from now challenging the condition.
Further, Ash Creek's reliance on Gangemi v. Zoning Board of Appeals, supra, 255 Conn. 143, is misplaced. Gangemi involved a no rental condition, which restricted the plaintiffs from renting their property, and the court recognized that it put other property owners at an unfair advantage over the plaintiffs in the marketplace. Id., 152-53. The court in Gangemi stated that "[a] house, particularly a house in a beach district, that can never be rented obviously would be significantly less desirable to a potential purchaser than the rest of the houses in the beach district, which do not have such a drastic limitation on their economic use." Id., 153. The court held that "the continued maintenance of the no rental condition serves no valid purpose, and violates the strong and deeply rooted public policy in favor of the free and unrestricted alienability of property." Id., 157.
Distinguishable from the no rental condition in Gangemi, Ash Creek's 2002 condition does not put it at an unfair advantage in the marketplace compared to other property owners in its neighborhood. There is nothing in the record indicating that the 2002 condition bars Ash Creek from renting or selling its property. Ash Creek is still free to sell, rent, or live in the house. The ZBA acted within its authority in imposing the condition, and the 2002 condition does not violate the public policy favoring the free and unrestricted alienability of property.
In addition, Ash Creek argues that the condition imposed was not voluntary on its part, and that it had to comply with the condition in order to obtain the approval for the variance. The ZBA does not directly respond to this argument. The ZBA does take the position, however, that Ash Creek has an avenue for relief through tax appeals. The ZBA further argues that the fact that Ash Creek has been assessed as if the "maximum living space", condition attached to the variance did not exist, has no relevance to the question in this appeal, and does not mandate that the ZBA provide relief by rescinding the condition.
As part of the record, Ash Creek provided site plans of its property, which reveals that the size of the living area space as 997.5 square feet. (ROR, Item 40.) If Ash Creek was unhappy with the condition, it could have brought an appeal within the statutory time period under § 8-8(b) in 2002. Ash Creek, however, did not bring an appeal until approximately two years later, which was after the Fairfield tax assessor increased the plaintiff's property tax.
Moreover, at the public hearing on September 9, 2004, one of the ZBA members asked Ash Creek's attorney if the condition was mentioned during the presentation before the tax board. (ROR, Item 20, p. 19.) Ash Creek's attorney responded: "Oh, absolutely, I submitted that into the record, all of the approvals. Had we gotten relief we wouldn't [have] thought to come back to review the law, the conditions, and so forth and so on." (ROR, Item 20, p. 20.) This statement demonstrates that the increased tax assessment was a major factor in challenging the condition.
Plaintiff's appeal is dismissed.