Opinion
No. CV10-6004583S
September 2, 2011
MEMORANDUM OF DECISION
FACTS
The Plaintiff, Woodmont Business Park, LLC, is the owner of property known as 354 Woodmont Road, Milford. The parcel is located in a commercial (1D) zone (ROR a), and is known as the Milford Business Center Park.
The property is situated at the intersection of Woodmont Road and Quarry Road, and includes a portion of the property which is designated as commercial condominium units 3 and 4 (ROR O, p. 1).
In 2008, Woodmont Business Park, LLC, sought and obtained, from the Defendant, Milford Board of Zoning Appeals, a variance of S. 5.5.5.1 of the Milford Zoning Regulations. The variance was obtained in order to permit an additional restaurant in the shopping center.
Section 5.5.5.1, Milford Zoning Regulations — . . . the use "shall be located at least 1,500 feet as measured from the nearest public entrance door (within street right-of-way) of any other restaurant or from any tavern, cafe or hotel permit, except as provided in these regulations."
The 1,500 foot distance between the establishments used as restaurants was reduced to 25 feet pursuant to the variance.
On May 13, 2008, the Board of Zoning Appeals approved the variance. A certificate attesting to the approval was recorded on the land records of the City of Milford on May 19, 2008 (ROR h).
On May 11, 2010, the Plaintiff, Side Step, Inc., a prospective tenant, along with Woodmont Business Park, LLC, tendered a second application to the Milford Board of Zoning Appeals, seeking the same variance which had been granted in 2008. (ROR a, ROR O).
According to the attorney who represented the applicants, the 2008 variance had expired, pursuant to a provision of the Milford Zoning Regulations, one year after it was approved (ROR O, p. 2-3).
Side Step, Inc. contemplates the operation of a pizza restaurant, with a liquor permit, on the site. The variance was approved unanimously, and with minimal discussion (ROR O).
Prior to the hearing, the agenda for the meeting was published in the New Haven Register on April 30, 2010, and again on May 5, 2010 (ROR e). Notice of the May 11, 2010 action approving the variance was published in the New Haven Register on May 14, 2010 (ROR i).
A notice of the approval was recorded in the Milford land records on June 30, 2010 (ROR l). No appeal from the decision was taken.
A zoning permit was issued on June 30, 2010 (ROR p, p. 1).
On July 27, 2010, Attorney Max Case wrote a letter to the Milford City Attorney (Ex. p). In the letter, Attorney Case claimed that the applicants for the 2010 variance failed to comply with the notice requirements contained in the Milford Zoning Regulations, prior to the May 11, 2010 meeting. The applicable regulation, S. 9.3.3.2, requires that notice be sent to the owners of land which is within 200 feet of the property which is the subject of the variance.
Attorney Case indicated in his letter, that he represents ATGCKG Real Estate, LLC, the owners of Units 1 and 2 at the Milford Business Center 1 Condominiums. He claimed that his client did not receive notice of the application, as required by the regulations, and that the action taken by the Board of Zoning Appeals on May 11, 2010 was illegal, and the action granting the variance was "void." (ROR p).
Upon receipt of the letter, the Milford City Attorney's office, acting through Assistant City Attorney Debra S. Kelly, sent memos to City planner David Sulkis, and Board of Zoning Appeals chairman Fred Katen. A letter was also sent to Attorney Thomas Lynch, who represented the applicant at the May 11, 2010 hearing.
Attorney Kelly opined that the failure to comply with the Milford notice requirements rendered the granting of the variances "void," and suggested that another hearing be held, due to the defective notice (ROR p).
She also expressed the opinion that the building permit, issued on June 30, 2010 following the granting of the variance, should be "immediately revoked." (ROR o, Memo to David Sulkis.)
In light of the opinion rendered by the Milford City Attorney, an item was included on the September 14, 2010 meeting of the Board of Zoning Appeals. The item was noticed in the New Haven Register on September 3, 2010 and September 8, 2010 (ROR r). The notice read: "354 Woodmont Road (Zone 1 D) Reconsideration of variance granted Side Step, Inc. On May 14, 2010, Map 91, Block 809 Parcel GBC."
The verbatim minutes of the September 14, 2010 meeting (ROR y) reflect that no one appeared either in support of the motion, or in opposition to it. The discussion referenced a letter sent by the Milford City Attorney, indicating that the variance approved on May 11, 2010 was void, due to "defective notice." (ROR y).
A motion was made to rescind the approval of the variance. The motion passed, 5-0 (ROR y, p. 3).
A letter confirming the rescission was sent to Attorney Lynch on September 15, 2010 (ROR u), and notice of the action was published in the New Haven Register on September 17, 2010 (ROR t).
The rescission notice was recorded on the land records on September 17, 2010 (ROR v).
This appeal by Woodmont Business Park, LLC and Side Step, Inc. followed.
AGGRIEVEMENT
Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an appeal. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996); Winchester Woods v. Planning Zoning Commission. 219 Conn. 303, 307 (1991). The question of aggrievement is one of fact. Hughes v. Town Planning Zoning Commission, 156 Conn. 505, 508 (1968).
One claiming to be aggrieved must satisfy a well-established two-fold test: 1) the party must demonstrate a specific personal and legal interest in the decision appealed from, as distinct from a general interest such as concern of all members of the community as a whole, and 2) the party must prove that the specific personal and legal interest has been specifically and injuriously affected by the action of the agency whose decision is appealed. Primerica v. Planning Zoning Commission, 211 Conn. 85, 93 (1989); Hall v. Planning Commission, 181 Conn. 442, 444 (1986).
The Plaintiff, Woodmont Business Park, LLC, is the owner of the property which is the subject of the requested variance, having acquired the property on February 18, 2005, by warranty deed. (Exhibit 1.) The owner of property which forms the subject matter of an action before an agency, has a specific personal and legal interest in the decision of the agency, and is aggrieved by an adverse decision of the agency. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530 (1987); Bossert Corporation v. Norwalk, 157 Conn. 279, 285 (1968).
It is therefore found that Woodmont Business Park, LLC, is aggrieved by the decision of the Milford Board of Zoning Appeals, which generated this appeal.
At trial, testimony was received from Richard Urban, who identified himself as the president of Side Step, Inc. He explained that Side Step, Inc. desires to operate a pizza restaurant with a liquor permit, on the property which is the subject of the variance. Side Step, Inc. applied for the variance, which the Board of Zoning Appeals granted in May of 2010.
Side Step, Inc. does not have a lease covering the property where the restaurant is to be located. According to Urban, no deposit has been placed with the owner of the property, and no terms of any lease agreement have been finalized.
There is no written agreement between Side Step, Inc. and Woodmont Business Park, LLC, and neither the monthly rental for the premises, nor the term of any lease, has been discussed with the president of Side Step, Inc.
According to Richard Urban, he has been assured that he will receive a lease covering the subject premises by one Gus Curcio, whom he identified as a "consultant." Mr. Curcio, according to Richard Urban assured him that lease would be forthcoming, but provided no specifics concerning terms or conditions.
Legal title to property is not required, in order for a party to satisfy the test for aggrievement. Antennucci v. Hartford Catholic Dioceses Corporation, 142 Conn. 349, 355 (1955). Aggrievement has been found where an individual was the holder of a security interest, Goodridge v. Zoning Board of Appeals, 58 Conn.App. 760, 767 (2000); where the party was a contract purchaser, Shapero v. Zoning Board, 192 Conn. 367, 276 (1984); and where a leasehold interest was maintained. Michel v. Planning Zoning Commission, 28 Conn.App. 314, 324-25 (1992).
Where the issue involved statutory aggrievement, pursuant to § 8-8(1) of the General Statutes, the holder of a life estate satisfied the ownership requirement of the statute. Smith v. Planning Zoning Board, 203 Conn. 317, 323 (1987).
Section 8-1(1), C.G.S. — "`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' 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."
In DeBonaventura v. Zoning Board of Appeals, 24 Conn.App. 369, 376 (1991), the Appellate Court determined that one could be aggrieved by a decision, even if the party did not have a legally enforceable interest in the property.
DeBonaventura involved an application to use property as a used car dealership and car repair business. Richard DeBonaventura, Jr., whose father was the owner of the parcel, had the oral approval of this father to use the property, and to apply for a certificate of approval from the zoning board of appeals. The court determined that the son was aggrieved by the denial of the certificate of approval, notwithstanding the lack of a formal written agreement between father and son. DeBonaventura v. Zoning Board of Appeals, supra, 376.
Here, unlike in DeBonaventura the record reveals no familial relationship between Richard Urban and either the principals of Woodmont Business Park, LLC, or his "consultant," Gus Curcio. The mere expectation of a lease, without more, is insufficient to satisfy the test for aggrievement.
It is found, that Side Step, Inc. is not aggrieved by the decision of the Milford Board of Zoning Appeals.
However, since the owner of the property is a party to this appeal, and is aggrieved, the court has jurisdiction.
STANDARD OF REVIEW — ZONING BOARD OF APPEALS
The powers of a municipal zoning board of appeals are derived from § 8-6(3) of the General Statutes. This statute gives a zoning board of appeals authority:
(3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent, 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 preserved.
A zoning board of appeals is endowed with liberal discretion, and its decisions are subject to review by a court only to determine whether the board acted arbitrarily, illegally or unreasonably. Pleasant Farm Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269 (1991); Torsiello v. Zoning Board of Appeals, 3 Conn.App. 47, 50 (1984). The burden of demonstrating that the board acted improperly is on the party seeking to overturn the board's decision. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988); Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654 (1980).
A court should not usurp the function and prerogatives of a zoning board of appeals by substituting its judgment for that of the board, where an honest judgment has been reasonably and fairly exercised after full hearing. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995).
The question is not whether another decision maker, such as the trial court, would have reached the same conclusion, but whether the record before the agency supports the decision reached. Calandro v. Zoning Commission, 176 Conn. 439, 440 (1979).
A decision must be upheld, if it is supported by substantial evidence. Substantial evidence is enough evidence to justify, if the trial were to a jury, a refusal to direct a verdict, if the conclusion sought to be drawn is one of fact. Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993). The possibility of drawing two inconsistent conclusions from the evidence does not prevent a decision from being supported by substantial evidence. Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 697-98 (1993).
DECISION NOT SUPPORTED BY THE RECORD, GIVEN PLAINTIFFS' CLAIMS REGARDING LACK OF PERSONAL NOTICE
The Plaintiffs maintain, that neither the owner of the shopping center, Woodmont Business Park, LLC, nor the prospective tenant, Side Step, Inc., received notice pursuant to the Milford Zoning Regulations, that the Board of Zoning Appeals was poised to reconsider its May 11, 2010 granting of a variance at the September 14, 2010 meeting.
They further claim, that any failure to give notice to ATGCKG Real Estate, LLC prior to the May 11, 2010 meeting, did not render the approval of the requested variance "void."
They ask that the matter be remanded to the Board of Zoning Appeals, and that their appeal be sustained. They claim that evidence to be presented at the hearing will reveal that representatives of ATGCKG Real Estate, LLC, had actual notice of the May 11, 2010 Board of Zoning Appeals hearing concerning the requested variance, yet they elected not to attend.
The record reveals that the Board of Zoning Appeals provided constructive notice by publication of its intention to consider rescinding the variance at its September 14, 2010 meeting. The agenda item was noticed in the New Haven Register (ROR r).
It is claimed that the Board of Zoning Appeals did not comply with § 9.4.1 of the Milford Zoning Regulations. That section reads:
. . . Before the Zoning Board of Appeals may revoke its action in granting such variance, it shall hold a public hearing thereon, of which the applicant and property owner in each case shall be given the opportunity to be heard.
The Plaintiffs maintain that their first notice of the contemplated action on September 14, 2010, was a letter to Attorney Lynch dated September 15, 2010 (ROR u).
The record compiled at the September 14, 2010 hearing, was extremely sparse (ROR y). There was no testimony at the hearing, only discussion among the board members based upon a communication from the city attorney. The transcript of the meeting does not reflect the presence of any member of the city attorney's office, nor any of the parties to this appeal, who requested that the variance be granted on May 11, 2010.
Nothing in the record reveals that personal notice was given to either Side Step, Inc., or to the owner of the shopping center, Woodmont Business Park, LLC. It is therefore found that notice was not provided to either the owner of the property or the prospective tenant, that the variance they had obtained on May 11, 2010 was in jeopardy at the September 14, 2010 meeting.
Reference was made at the September 14 meeting (ROR y), by implication, to the memo from Attorney Kelly, wherein she stated "the granting of the variance was void." (ROR p.)
The board did not give any collective reasons for its decision to rescind the granting of the variance. However, one board member, H. Haberman, stated "Oh, I understand so we're not going to put it on the table, the motion that we need to rescinding the approval, the decision to approve because of lack of proper notice" (ROR y, p. 3).
Another member, K. Kuchta, referring to the city attorney's communication, stated ". . . it's just because of the improper notice the action that you took was void, it wasn't noticed properly." (ROR y, p. 1.)
A reading of the transcript (ROR y), the memo from the city attorney (ROR p), and the letter submitted to the city attorney by Attorney Max Case (ROR p), leads to the conclusion that the Milford Board of Zoning Appeals believed that the action it took on May 11, 2010 was "void." The board believed that it had no alternative, but to rescind its granting of the variance based upon the lack of personal notice to ATGCKG Real Estate, LLC. There was no discussion of the distinction between an action which was "void," and one which was merely "voidable," and did not affect subject matter jurisdiction.
The assumption that the granting of the variance on May 11, 2010 was "void" was incorrect, and cannot form the basis for the rescission of the variance on September 14, 2010.
Regulations, such as § 9.4.1 of the Milford Zoning Regulations, and others which address notification to adjoining landowners, are considered personal notice requirements. Fuller, Robert A. " Land Use Law and Practice" (3rd ed., 2007) § 46.1, p. 7; Lauver v. Canterbury, 60 Conn.App. 504, 509 (2000). The failure to provide personal notice, such as that required to be given to ATGCKG Real Estate, LLC, prior to the May 11, 2010 hearing, renders a land use decision voidable, and does not affect the agency's subject matter jurisdiction. Lauer v. Zoning Commission, 200 Conn. 455, 465 (1991). The failure to give personal notice may be waived by the party entitled to it. Palo v. Rogers, 116 Conn. 601, 605 (1933); Schwartz v. Hamden, 168 Conn. 8, 15 (1975). 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, 168 Conn. 365, 370 (1975).
While a failure to give statutory notice to the general public is a defect which implicates subject matter jurisdiction, and cannot be cured through waiver or consent; Lauer v. Zoning Commission, Supra, 161-62; there is no claim that the notice required by statute for either the May 11, 2010 meeting or the September 14, 2010 meeting was deficient.
In his letter of July 27, 2010 addressed to the Milford City Attorney, Attorney Case cited Wright v. Zoning Board of Appeals, 174 Conn. 488, 491 (1978), in support of his contention that the granting of the variance was "illegal." Attorney Kelly cited Wright in materials forwarded to the Milford Board of Zoning Appeals, for the proposition that the granting of the variance was "void." (ROR p.) The reliance upon Wright is misplaced.
Wright involved a failure to comply with an ordinance which required that a notice of application sign be posted on the property of an applicant, in a conspicuous manner. The court determined that the purpose of the ordinance was to amplify the statutory requirements, and was designed to give notice of the pending zoning application to as many aggrieved and potentially aggrieved persons as possible. Wright v. Zoning Board of Appeals, supra, 491.
The notice required here, unlike in Wright, is notice to specific persons, rather than notice to the public generally. Subject matter jurisdiction is, therefore, unaffected.
It is found that the decision of the Milford Board of Zoning Appeals rescinding the granting of the May 11, 2010 variance is not supported by substantial evidence in the record, and resulted from an incorrect application of the law regarding personal notice.
The appeal of the Plaintiff, Woodmont Business Park, LLC, must therefore be sustained, on that basis.
VARIANCES RUN WITH THE LAND AND CREATE VESTED PROPERTY RIGHTS
The record reveals, that on two separate occasions the Defendant, Milford Board of Zoning Appeals, granted variances of S. 5.5.5.1 of the Milford Zoning Regulations. The first was granted on May 13, 2008, and was recorded on the land records on May 19, 2008 (ROR h).
A second application seeking the identical variance was tendered in 2010, solely because a provision of the Milford Zoning Regulations, requires that a building permit be issued within one year of the granting of a variance (ROR o, p. 2). Because the legal and factual issues in 2010 were identical with those which existed in 2008, the 2010 application received unanimous approval from the Board of Zoning Appeals, following a brief discussion (ROR o).
A zoning permit was issued by the City of Milford following the granting of the May 2010 variance. The permit was issued on June 30, 2010.
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 purposes 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 (1975).
In 1993, the General Assembly amended § 8-6 of the General Statutes, through the addition of subsection (b). Section 8-6(b) reads:
Public Act 93-385.
(b) Any variance granted by a zoning board of appeals shall run with the land, and shall not be personal in nature to the person who applied for and received the variance. A variance shall not be extinguished solely because of the transfer of title to the property or the invalidity of any condition attached to the variance that would affect the transfer of the property from the person who initially applied for and received the variance.
Section 8-6(b) provided a legislative reaffirmation of the principle that variances run with the land, and must be based upon property conditions. Reid v. Zoning Board of Appeals, 235 Conn. 850, 860 (1996); Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239 (1972). This focus on the unique condition of the property for which the variance is sought renders the identity of the applicant irrelevant. Dinan v. Zoning Board of Appeals, 220 Conn. 61, 66-67 (1972).
Although not directly addressed by the parties to this appeal, the court is compelled to note the provision of the Milford Zoning Ordinance which renders a properly granted variance void, if no permit is issued within one year. This provision flies on the face of the unambiguous public policy, announced in General Statutes § 8-6(b).
Faced with a provision of the Ansonia Zoning Regulations, which invalidated a variance if construction was not commended within one year of the granting of the variance, the court, Moran, J.T.R., concluded that the condition attached to the variance was unreasonable, and no justification for the expiration date existed. LR J Builders v. Zoning Board of Appeals, (CV-05-40002573 S) 2006 Ct.Sup. 10142 (2006) (Moran, J.T.R.) [ 41 Conn. L. Rptr. 467].
The court agrees with Judge Moran's determination that an expiration date on a variance has the effect of reimposing a hardship on the affected property, which the variance was designed to alleviate.
The record presented in this appeal reveals no basis for voiding the 2008 variance. In the absence of any change of circumstances, that variance cannot be invalidated through the passage of time.
However, at trial, counsel indicated that the 2008 variance had also been questioned, and was rescinded, by the Board of Zoning Appeals. In light of this information, the court has elected not to find that the granting of the 2010 variance was superfluous, and uphold the variance based upon the 2008 action of the Board of Zoning Appeals.
It should be noted that variances should not be granted, or capriciously cast aside by a zoning board of appeals. A variance creates vested rights in a parcel of land, and, as noted, runs with the land, not the owner of the property. Because the granting of a variance permits a property owner to use his property even though a violation of the zoning ordinances would result, it is reserved for unusual or exceptional cases. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206-07 (1995); Ward v. Zoning Board of Appeals, 153 Conn. 141, 145 (1965).
CONCLUSION
The appeal of the Plaintiff, Woodmont Business Park, LLC, is SUSTAINED, and the matter is remanded to the Milford Board of Zoning Appeals for further proceedings.
The Milford Board of Zoning Appeals is ordered to hold a hearing to determine the continued validity of the 2010 variance, based upon the finding that the action of May 11, 2010 is "voidable," not void.
The Board of Zoning Appeals is ordered to determine whether the principals or agents or ATGCKG Real Estate, LLC, had actual notice of the meeting of May 11, 2010, and, if so, whether actual notice constituted a waiver of the municipal notice requirements.
In light of the fact that the Defendant, Milford Board of Zoning Appeals, on two separate occasions, granted a variance to the subject property, it must be mindful of the general rule which states that a zoning board of appeals may not reverse itself, unless a change of circumstances intervenes which materially affects the merits of the case. Rommell v. Walsh, 127 Conn. 272, 277 (1940); Mynk v. Stratford Zoning Board of Appeals, 151 Conn. 34, 37 (1963).
The Board of Zoning Appeals must also determine whether the issuance of the zoning permit on June 30, 2010, or the recording of both variances on the Milford Land records, affects the ability of the Board of Zoning Appeals to act upon any rescission motion. The primary purpose for recording certificates of variance approvals on the land records, is because a variance runs with the land. Anatra v. Zoning Board of Appeals, 127 Conn.App. 125, 135 (2011).
The board must also consider, assuming it follows the dictates of Robert's Rules of Order in its deliberations, the application of Parliamentary Procedure. A review of the record seems to indicate that the terms "rescind" and "reconsider" were used as if they were synonyms. Assuming that the board is governed by Robert's Rules of Order, the two terms have different meanings, and applications (See Robert, Henry M. III, " Robert's Rules of Order Newly Revised"; 10th Ed., (2000.).
The appeal of the Plaintiff, Woodmont Business Park, LLC, is SUSTAINED.