Opinion
No. CV 04 0200032
March 6, 2006
I. STATEMENT OF APPEAL
The plaintiff, Peak Physique, Inc., appeals from a decision of the defendant Greenwich planning and zoning board of appeals (PZBA), in which the PZBA granted a special exception and a variance to the defendant, 600 West Putnam, LLC.
II BACKGROUND
In February 2004, the defendant, 600 West Putnam, LLC, applied to the PZBA for a variance and special exception in connection with the conversion of the existing building at 600 West Putnam Avenue, Greenwich, into an automobile dealership. (Complaint, ¶ 4.) The defendant has been the record owner of the subject real property since April 2000. (Return of Record [ROR], Exhibit 3.) The premises are located in a general business zone. As required by the Greenwich building zone regulations, the defendant submitted an application for preliminary site plan approval. (ROR, Exh. 5.) The application was approved on December 2, 2003, after a public hearing and several continuations thereof held on October 7, 2003, November 18, 2003, and December 2, 2003. (ROR, Exh. 3b.) The PZBA held a public hearing in connection with the variance and special exception application on March 10, 2004. (ROR, Exh. 7.) Finally, on March 22, 2004, the PZBA granted the special exception "to permit an automotive sales and service use and variances of required side and rear yards from Sections 6-203 and 6-205 of the Building Zone Regulations to permit a parking structure." (ROR, Exh. 8.) The PZBA found that the "special exception standards provided by Sections 6-19, 6-20, 6-100 and 6-105 of the Building Zone Regulations have been met. Further, the Board finds there is hardship due to the lot topography and irregular frontage on Holly Hill Lane. In addition, the Board notes that existing non-conformities of required parking, front yard parking, building coverage, lot coverage, and required rear yard will be eliminated or reduced." (ROR, Exh. 8.) The PZBA also emphasized that "this relief can be granted without detriment to the public welfare or impairment to the integrity of the regulations." (ROR, Exh. 8.)
The building inspector had denied the defendant's application for alterations and the defendant sought the variance and special exception in the context of an appeal to the PZBA. (ROR, Exh. 1.)
The plaintiff appeals the special exception and variance on the ground that the PZBA's approval was illegal, arbitrary and an abuse of its discretion because (1) the board erroneously determined that the defendant had a non-financial hardship; (2) the PZBA's decision erroneously determined that the application did not substantially affect the comprehensive plan; and (3) the application for a special exception does not comply with the requirements for special exception applications.
III JURISDICTION
General Statutes § 8-8 governs an appeal taken from a decision of a zoning board of appeals. "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).
A Aggrievement
"It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). The plaintiff has pleaded aggrievement based upon its status as lessee with ten-year renewal rights. (Complaint, ¶ 9.)
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . ." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430, 829 A.2d 801 (2003). "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 specifically and injuriously affected that specific personal or legal interest . . ." (Internal quotation marks omitted.) Stauton v. Planning Zoning Commission, 271 Conn. 152, 157, 856 A.2d 400 (2004). "[T]he extent to which a party with an interest in the property other than that of an owner is aggrieved depends upon the circumstances of each case . . ." Primerica v. Planning Zoning Commission, 211 Conn. 85, 93, 558 A.2d 646 (1989).
In this case, the plaintiff, as a long-term tenant of 600 West Putnam Avenue, has a personal and legal interest in the subject matter of the decision because it will affect its ability to remain on the premises. Previously, the court denied the defendant's motion to dismiss. Peak Physique, Inc. v. Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 0200032 (November 3, 2004, Nadeau, J.). The court held that "the plaintiff's status as a long-term past and future lessee of substantial space in the affected building constitutes classical aggrievement." Id.
At the trial on November 7, 2005, the defendant stated that the plaintiff would no longer be able to occupy the premises once construction began to transform the building and the lot into a car dealership. Moreover, the plaintiff, as a lessee since 1993 who has exercised its option on the lease to continue to occupy the premises with ten-year renewal rights, has a specific legal interest in the subject matter of the PZBA's decision. (ROR, Exh. 3e.) "Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected . . ." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 410, 788 A.2d 1239 (2002). As the plaintiff will no longer be able to occupy the premises once construction begins, its potential injury meets this standard. The plaintiff's status as a long-term lessee establishes classical aggrievement.
B Timeliness and Service of Process CT Page 4546
General Statutes § 8-8(b) provides that "[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 that "[s]ervice of legal process for an appeal under this section shall be directed to a proper officer and . . . (1) . . . shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board and by leaving a true and attested copy with the clerk of the municipality."
Notice of the PZBA's decision was published in the Greenwich Time on March 26, 2004. (ROR, Exh. 4.) The appeal was commenced by service of process on the Greenwich town clerk, and with the agent authorized to accept service of process for 600 West Putnam, LLC on March 31, 2004. Donald Kiefer, the chairman of the PZBA, was served with process on March 31, 2004. Accordingly, the proper parties were served in a timely fashion.
IV SCOPE OF REVIEW
"When ruling upon an application for a special [exception], a planning and zoning board acts in an administrative capacity . . . Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply . . . In applying the law to the facts of a particular case, the board is endowed with . . . liberal discretion . . ." (Citations omitted; internal quotation marks omitted.) Irwin v. Planning Zoning Commission, 244 Conn. 619, 627-28, 711 A.2d 675 (1998).
"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.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations . . ." (Internal quotation marks omitted.) Id.
V DISCUSSION A Whether the PZBA Erroneously Determined that the Applicant Established a Non-financial Hardship.
General Statutes § 8-6 permits a zoning board of appeals to grant a variance from the town zoning regulations where "because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an unusual hardship . . ." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 207, 658 A.2d 559 (1995)
General Statutes § 8-6 provides, in relevant part: "(a) The zoning board of appeals shall have the . . . [power] . . . to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed."
The statute authorizes "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 . . . is insufficient to justify a variance . . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance." (Citations omitted; internal quotation marks omitted.) Id., 207-08. The defendant's stated hardship was the "two tier lot topography, lot configuration and the existence of a rock ledge . . ." (ROR, Exh. 1.)
The PZBA justified granting a variance to the defendant based upon the unusual hardship created by the "lot topography and irregular frontage on Holly Hill Lane." (ROR, Exh. 8.) In support of its decision, the PZBA further noted that the existing nonconformities of required parking, front yard parking, building coverage, lot coverage and required rear yard would be eliminated or reduced by the defendant's proposal. (ROR, Exh. 8.)
With respect to variances, §§ 6-203 and 6-205 of the Greenwich building zone regulations require a minimum side yard depth of thirty feet and a minimum rear yard depth of "10% of lot depth but not less than 30 ft."
Because the PZBA has stated its reasons for its decision, "the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations." (Internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, supra, 257 Conn. 470. "The hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance . . . and arises directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved." (Citations omitted.) Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 658, 427 A.2d 1346 (1980). "A hardship resulting from the peculiar topography or condition of the land or a particular location which makes the property unsuitable for the use permitted in the zone in which it lies may well be such a hardship as is contemplated by the ordinance." (Internal quotation marks omitted.) Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 280, 129 A.2d 619 (1957).
In Fifteen North Plains Industrial Road, LLC v. Wallingford, Superior Court, judicial district of New Haven, Docket No. CV 03 0475864 (September 22, 2004, Burns, J.T.R.), the defendant sought a variance to locate machinery for processing earth materials sixteen feet from a property line, where a minimum of 200 feet was required by the town's zoning regulations. The plaintiff claimed that it could not comply with the town's zoning regulations because doing so would force it to place the machinery in a wetlands buffer zone located in the center of its property. Id. The commission granted the variance and the Superior Court agreed, reasoning that the "existence of wetlands on the parcel, coupled with the location of the wetlands in the middle of the property, constitutes a topographical condition sufficient to support the commission's approval of [the applicant's] variance application." Id.
In the present case, § 6-19(3) of the Greenwich building zone regulations authorizes the PZBA to grant variances due to the "exceptional shape, size or topography" of a lot. Here, as in Fifteen North Plains Industrial Road, LLC, the record reveals that a topographical condition located in the center of the property makes it nearly impossible to make the proposed alterations to the property while remaining in compliance with the Greenwich building zoning regulations. (ROR, Exh. 7, p. 15.) More specifically, there is evidence of a ten- to fifteen-foot "grade differential between the front and the back of the property," over which the defendant wishes to build a parking deck to provide the additional parking required by the zoning regulations. (ROR, Exh. 7, p. 15.) The construction of the parking deck, however, would run afoul of the thirty-foot setback requirement embodied in § 6-205 of the Greenwich building zone regulations. Because the record reveals that the construction of the parking deck is an effort to combat the unusual topography of the lot; (ROR Exh. 1); the PZBA's finding of hardship is justified.
The property has been characterized by both parties as a "through lot." Section 6-205 of the Greenwich building zone regulations requires a setback of thirty yards from the property line for such lots rather than the ordinary fifty yards for lots that do not have this characteristic.
The plaintiff also argues that the defendant's hardship is not unusual because it is "self created" and "purely financial." (Plaintiff's pretrial brief, p. 9.) The plaintiff argues that the defendant was aware of the existing nonconformities on the property at the time of purchase and now requires a variance to provide additional parking to accommodate the proposed use. (Plaintiff's pretrial brief, p. 10.)
The defendant counters that a "purchaser is not barred from obtaining a variance merely because he purchased the property with knowledge of non-conformities." (Defendant's pretrial brief, p. 8, citing R. Fuller, 9 Connecticut Practices Series: Land Use Law and Practice (2d. Ed. 1999) § 9.4, p. 191.) The defendant claims that the "[t]he cases make a distinction between purchasing a non-conforming lot (or one with a non-conforming use) and purchasing a lot which is illegal, which has a problem due to self created hardship . . ." (Defendant's pretrial brief, pp. 8-9, citing 9 R. Fuller, supra, pp. 190-91.) Finally, the defendant emphasizes that the regulations authorize the PZBA to grant a variance based upon the lot topography and other exceptional situations, such as irregular frontage.
The defendant, the PZBA, adopted the brief of the co-defendant, 600 West Putnam Avenue, LLC. (Docket Item No. 121.)
"[T]he purchase with knowledge rule would bar the buyer of an illegal lot from obtaining a variance where he purchased the property with knowledge of the problem." (Emphasis in original; internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 93 Conn.App. 1, 20, 887 A.2d 442 (2005); see 9 R. Fuller, supra, § 9.4, p. 190; see also Haines v. Zoning Board of Appeals, 26 Conn.App. 187, 193, 599 A.2d 399 (1991) (holding that a purchaser of an illegally split lot had a self-created hardship). "[T]he knowledge required for self-created hardship is knowledge that the property never was intended for the use the plaintiff seeks." (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, supra, 93 Conn.App. 21. "[A] non-conforming use is not the same as an illegal use or a use allowed by variance." Jacobs v. Planning Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0145184 (February 28, 1996, Karazin, J.), quoting R. Fuller, 9 Connecticut Practices Series: Land Use Law and Practice (1993) § 52.1, p. 841. Rather, "[n]on-conforming [u]se shall mean a building or land, the use of which does not conform to the use regulations for the zone in which it is situated." (Internal quotation marks omitted.) Jacobs v. Planning Zoning Board of Appeals, supra, Superior Court, Docket No. CV 95 145184; see also Greenwich building zone regs., § 6-5(38).
In Haines v. Zoning Board of Appeals, supra, 26 Conn.App. 193, the plaintiff purchased the property with knowledge that the previous owner had illegally split a larger lot to create the subject premises, without the approval of the town's planning or zoning board. Because the plaintiffs knew that the lot was not zoned for residential use at the time of purchase, the Appellate Court held that its hardship was self-created. Id. See Mandanici v. Zoning Board of Appeals, 50 Conn.App. 308, 311, 717 A.2d 287, cert. denied, 247 Conn. 935, 719 A.2d 1174 (1998) (concluding that plaintiff's purchase of illegal lot constituted voluntary assumption of hardship that could not support grounds for variance); see Santos v. Stratford, Superior Court, judicial district of Fairfield, Docket No. CV 04 0411807 (July 19, 2005, Owens, J.T.R.) (same).
Unlike Haines v. Zoning Board of Appeals, supra, 26 Conn.App. 187, 600 West Putnam Avenue is not an illegally created lot; the property is nonconforming only as to setbacks, parking, building and total lot coverage. Though the defendant purchased the property with knowledge of these non-conformities, the record reveals that the defendant plans to reduce some of the nonconformities while transforming the premises from one permitted use to another, specifically to change an office building into a car dealership. (ROR, Exh. 8.) Because the plaintiff had knowledge only of nonconformities, as opposed to any possible illegality of the lot, the hardship cannot be considered self-created.
A variance must not substantially affect the comprehensive zoning plan. The PZBA had found that the application could be granted "without detriment to the public welfare or impairment to the integrity of the regulations." (ROR, Exh. 8.) The comprehensive plan is a "general plan to control and direct the use and development of property in a municipality . . ." 9 R. Fuller, supra, § 2.2, p. 21. The comprehensive zoning plan is found in the scheme of the zoning regulations. Id. As will be discussed, infra, the approved application at issue would not adversely impact the comprehensive zoning plan.
The court finds that the record supports the PZBA's grant of a variance from §§ 6-203 and 6-205 of the Greenwich building zone regulations on the basis of lot topography, irregular street frontage and reduction of nonconformities.
B Whether the PZBA Found that the Special Exception Standards of §§ 6-19, 6-20, 6-100 and 6-105 of the Greenwich Building Zone Regulations Had Been MetSection 6-20 of the Greenwich building zone regulations sets forth the requirements that an applicant must satisfy for the zoning board to grant a special exception. "[Z]oning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes . . . Thus, in construing regulations, our function is to determine the expressed legislative intent . . . Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended . . . and the words employed therein are to be given their commonly approved meaning." (Citations omitted; internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 699, 784 A.2d 354 (2001). "A court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation . . . Common sense must be used in construing the regulation, and we assume that a rational and reasonable result was intended by the local legislative body." (Internal quotation marks omitted.) Blakeman v. Planning Zoning Commission, 82 Conn.App. 632, 639, 846 A.2d 950, cert. denied, 270 Conn. 905, 853 A.2d 521 (2004). " We seek to determine the meaning of the regulations by looking to the words of the regulation . . . and to its relationship to other regulations governing the sane general subject matter." (Emphasis in original; internal quotation marks omitted.) Id., 638; see also Berger v. Planning Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 0200758 (September 1, 2005, Grogins, J.T.R.).
Section 6-20(c) of the Greenwich building zone regulations provides, in relevant part: "The Board shall grant all applications for special exceptions . . . provided that the particular requirements specified in this Article are met, and provided further that the Board shall find in each case that the proposed building or structures or proposed use of land: (1) Be in accordance with the plan of conservation and development. (2) Will not create a traffic hazard or congestion due to type or amount of vehicles required or hamper the Town pattern of highway circulation. (3) Will not create a physical hazard due to fire, explosion, or any other similar cause. (4) Will not create or aggravate a nuisance . . . (5) Will not discharge harmful waste material on or under land or into a sewer or drain. (6) Will not be detrimental to the neighborhood or its residents or alter the neighborhood's essential characteristics. (7) That a proposed business or industry is light in nature . . ."
Berger v. Planning and Zoning Board of Appeals, supra, Superior Court, Docket No. CV 04 0200758, presented the court with facts similar to that of this appeal. In Berger, the defendants also sought relief from certain provisions of the Greenwich building zone regulations to operate a car dealership and showroom on the premises. Id. As in the present case, the plaintiffs found support for their appeal of the PZBA's decision to grant a special exception because the defendant had not satisfied all of the requirements of § 6-20(c) of the Greenwich building zone regulations. Id. The court reasoned that "[section] 6-20(c) does not exist in a vacuum." Id. Rather, § 6-20(c) is "meant to be interpreted with the purposes and intent set forth in § 6-1 and the requirements specified in other relevant sections [of the Greenwich building zone regulations]." Id. Thus, "[w]hile . . . all relevant sections of Article 6 must be complied with before approval can be granted . . . it must be read in light of other relevant regulations to render a reasonable overall interpretation." (Emphasis in original; internal quotation marks omitted.) Id. The court emphasized that the property was located in the general business zone, "where five other dealerships are located on the same street." Id. Accordingly, the court concluded that "the PZBA's decision was consistent with the purpose of § 6-1." Id.
The defendant also argues that § 6-141(b)(2) of the Greenwich building zone regulations authorizes a special exception in cases where the existing structure is nonconforming as long as the proposed alteration meets the standards of site plan review under § 6-15 of the Greenwich building zone regulations and does not increase the overall level of nonconformity. In Berger, the court held that § 6-20(c) "should be read in conjunction with § 6-141 . . . allow[ing] for such changes in instances when the degree of nonconformity is not increased." (Citations omitted; internal quotation marks omitted.) Berger v. Planning Zoning Board of Appeals, supra, Superior Court, Docket No. CV 04 0200758. As in the Berger appeal, 600 West Putnam Avenue is located in the general business zone. (ROR, Exh. 10.) Transforming the property in the manner sought by the defendant would not be out of character for the neighborhood because West Putnam Avenue is home to commercial establishments; (ROR, Exh. 7, p. 29); and "has a history of former use as a car dealership." (ROR, Exh. 1.) In addition, at the public hearing, the defendant's attorney observed that the property's "unique position between West Putnam Avenue and Holly Hill Lane which allows a nice flow of traffic in and out [for] the delivery of motor vehicles"; (ROR, Exh. 7, p. 12); makes it suitable for a car dealership. Therefore, the PZBA's decision was consistent with the purposes of § 6-1 of the Greenwich building zone regulations.
Prior to the hearing before the PZBA regarding special exception and variance, the defendant received preliminary site plan approval for its proposed alteration from the planning and zoning commission.
Section 6-141(b)(2)(A) of the Greenwich building zone regulations provides, in relevant part: "A non-conforming building . . . may be altered or permitted to expand provided that such alteration or addition meets the standards for site plan under Sec. 6-15, and further provided that such alteration and expansion shall not increase the degree of non-conformity."
Prior to its conversion to an office building in 1978, the property had housed car dealerships from 1948 through 1978. (ROR, Exh. 7, p. 11.)
Numerous nonconformities currently exist on the premises. (ROR, Exh. 7, p. 12.) Similar to Berger, the defendant's proposal, while not completely eliminating all nonconformities, actually reduces the overall level of nonconformity on the premises. The defendant's attorney represented at the public hearing that the proposed alterations to the property would reduce the amount of impervious surfaces, excess lot coverage and the nonconformity of the setback of the existing structure. (ROR, Exh. 7, p. 12.) He further stated that the proposal would also lessen the current nonconformity in the front yard and required parking through the construction of parking deck on the property. (ROR, Exh. 7, p. 12.)
"It is a general principle in zoning that nonconforming uses should be abolished or reduced to conformity as quickly as the fair interest of the parties will permit." (Internal quotation marks omitted.) Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 383-84, 311 A.2d 77 (1972); see Berger v. Planning and Zoning Board of Appeals, supra, Superior Court, Docket No. CV 04 0200758. A nonconforming use, however, "may be changed to another nonconforming use with the approval of the zoning board of appeals, so long as the use is not extended or expanded." Point O'Woods Ass'n., Inc., v. Zoning Board of Appeals, 178 Conn. 364, 369-70, 423 A.2d 90 (1979).
While the defendant's proposal does not eliminate every nonconformity on the premises, it does not expand or extend the existing nonconforming use. See Point O'Woods Ass'n., Inc., v. Zoning Board of Appeals, supra, 178 Conn. 369. Rather, the record reflects that it would significantly reduce the level of nonconformity while altering the property in a manner not inconsistent with commercial character of the neighborhood. Thus, the PZBA's decision to grant a special exception, pursuant to §§ 6-20(c) and 6-141(b)(2) of the Greenwich building zone regulations, was not in error. Judgment may enter in accordance with this decision.
For the foregoing reasons, the court dismisses the plaintiff's appeal.