Opinion
No. CV03-0349892 S
June 10, 2004
MEMORANDUM OF DECISION
The plaintiffs, William D. Weber and Elizabeth J. Weber, appeal from the decision of defendant, zoning board of appeals (ZBA) of Ridgefield, granting three variances to James and Annmarie Galowski. The Galowskis sought the variances, for setback, floor area ratio, and lot coverage, to allow construction of an addition to their home to be used, in part, as a garage. The plaintiffs, William D. Weber and Elizabeth J. Weber, bring this appeal pursuant to General Statutes § 8-8.
The Galowskis' property, to which James Galowski holds title as trustee, is located at the intersection of Ivy Hill Road and Branchville Road. (ROR, Exhibit IX(a), p. 117.) It is adjacent to the Webers' property, which is located on Branchville Road. The properties are located in an R-A zone, which presently requires, inter alia, a minimum area of one acre, a maximum lot coverage of 8 percent, a maximum floor area ratio (FAR) of 11 percent, and minimum side and rear setbacks of 25 feet. (ROR, Exhibit XIII, § 403.0.) The two parcels were originally one, and were legally divided in 1981. (ROR, Exhibit IX(a), p. 114.) The appellants' residence was originally a barn and the Galowskis' residence was the main house. Id. The main house was constructed in 1733 and used as a hospital during the Revolutionary War. (ROR, Exhibit II(e), p. 25.) The lot was subdivided in 1959. (ROR, Exhibit VIII(a), p. 102.) In 1981, the previous owner, a Galowski predecessor, was granted two variances. The first one permitted the retention of a shed, on what is now the Galowskis' property, at a distance of 2.4 feet from the side property line and the construction of a 24 by 24 foot garage at a distance of 8 feet from the division line. (ROR, Exhibit VIII(a), p. 103.) The second variance addressed some irregularities created by the new lot line. ( Id.) A garage was never constructed. (ROR, Exhibit II(e), p. 31.)
Section 301.0 of Ridgefield's zoning regulations provide in relevant part: "Floor area ratio. A ratio to determine the total gross floor area of buildings, including accessory structures, to the total area of a parcel or lot."
Section 403.0 of Ridgefield's zoning regulations provide in relevant part:
C. Lot size area. (1) No residence shall be erected, reconstructed or altered upon . . . any lot which shall be less than one (1) acre in area . . .
E. Maximum lot coverage. (1) The maximum lot coverage by buildings shall not exceed eight (8) percent of the lot area.
F. Floor area ratio (FAR). The maximum permissible FAR shall be .11 . . .
G. Setbacks. No part of any building or structure shall be located less than twenty-five (25) feet distant from any . . . side or rear lot line. CT Page 8915
On May 29, 2003, the Galowskis filed an application seeking variances from §§ 403.0E(1), lot coverage, 403.0F, FAR, and 403.0G, setback, of the town's zoning regulations. (ROR, Exhibit I(a), p. 7.) The zoning commission subsequently denied the Galowskis' application; the Galowskis timely appealed the decision to the ZBA. (ROR, Exhibit I(b), pp. 7-8.) On June 5, and 12, 2003, the ZBA published a legal notice that at its regularly scheduled meeting on June 16, 2003, it would hear the Galowskis' appeal. (ROR, Exhibit II(c), pp. 17-18.)
A public hearing was held on the application on June 16, 2003. (ROR, Exhibit II(e), p. 25.) The Galowskis' counsel argued that a garage is a necessity, and the lack of one is a hardship. No one appeared to speak against the petition and the meeting was continued to July 7, 2003, to allow the ZBA members to visit the site. On June 26, and July 3, 2003, the ZBA published a legal notice that at its regularly scheduled meeting on July 7, 2003, it would hear the continuation of the Galowskis' appeal. (ROR, Exhibit IV(c), p. 43.) At the hearing on July 7, 2003, appellant, William Weber, argued in opposition and questioned the Galowskis' alleged hardship. (ROR, exhibit IV(e), p. 48.) The meeting was again continued to allow the ZBA members an opportunity to view the site from the Webers' property. Id. On July 21, 2003, the ZBA voted to grant the Galowskis' application for the requested variances, with the condition that the addition be constructed exactly as presented to the ZBA during the hearing. (ROR, Exhibit VII(e), pp. 85-86.) The Webers now challenge the ZBA's decision on the following grounds: (1) the ZBA acted illegally, arbitrarily, and in abuse of its discretion by granting the variances in the absence of proof of hardship; and (2) the Galowskis acquired the property knowing of its limitations and, therefore, any hardship they may claim was self-imposed.
General Statutes § 8-8 governs an appeal from the decision of a board to the Superior Court. Section 8-8(b) provides, in relevant part, that "any person aggrieved by any decision of a board may take an appeal to the superior court . . ." "`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." General Statutes § 8-8(a)(1). "`Board' means a municipal zoning commission . . . zoning board of appeals or other board or commission." General Statutes § 8-8(a)(2). "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).
"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.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003). "Aggrievement falls within two broad categories, classical and statutory." (Internal quotation marks omitted.) Cole v. Planning Zoning Commission, 30 Conn. App. 511, 514, 620 A.2d 1324 (1993). "Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 129, 836 A.2d 144 (2003). A plaintiff may prove aggrievement "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d (2001).
In the present appeal, the Webers allege that they are aggrieved because their real property, located on Branchville Road, abuts the Galowskis' Ivy Hill Road parcel. (Complaint, ¶ 1.) In support, they offer a certified copy of their warranty deed. (Plaintiffs' Exhibit 1.) The court finds that the Webers are statutorily aggrieved pursuant to General Statutes § 8-8(a)(1).
The court finds that the plaintiffs commenced this appeal via notice in a timely manner upon the proper parties.
"It is well established that within the context of administrative appeals, defects in service of process deny the court subject matter jurisdiction over the appeal." Gadbois v. Planning Commission, 257 Conn. 604, 607, 778 A.2d 896 (2001). General Statutes § 8-8(b) provides in relevant part 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." Subsection (f) further provides that "[s]ervice of legal process for an appeal . . . shall be directed to a proper officer and shall be made 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."
The record contains a certificate of publication attesting that notice of the ZBA's decision was published in the Ridgefield Press on July 24, 2003. (ROR, Exhibit XII(a), p. 144.) On August 7, 2003, this appeal was commenced by service of process on Sandy Mosiello, the assistant town clerk of Ridgefield, authorized to accept service in the absence of the town clerk, and upon Charles E. Creamer, chairperson of the Ridgefield ZBA. (Marshal's Return.)
"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 (2001). "When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the [board's] decision . . . Rather, 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 authority was required to apply under the zoning regulations . . . The principle that a court should confine its review to the reasons given by a zoning agency . . . applies [only] where the agency has rendered a formal . . . statement of reasons for its action." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 420.
"The burden of proof is on the plaintiff to demonstrate that the [board] acted improperly." Spero v. Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991). "[T]he scope of review requires the appealing aggrieved party to marshal the evidence in the record, and to establish that the decision was not reasonably supported by the record . . ." (Internal quotation marks omitted.) JPI Partners, LLC v. Planning Zoning Board, 259 Conn. 675, 688, 791 A.2d 552 (2002). "The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to retry the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision . . ." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 812 A.2d 734 (2003). "[E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred." (Emphasis added; internal quotation marks omitted.) Id. "In light of the existence of a statutory right of appeal from the decisions of local zoning authorities, however, a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty." (Internal quotation marks omitted.) Quality Sand Gravel, Inc. v. Planning Zoning Commission, 55 Conn. App. 533, 537, 738 A.2d 1157 (1999).
As previously noted, the ZBA granted the Galowskis' variance application and set forth the following reasons:
1. The house on [the Galowskis'] property was constructed in 1733, long before zoning in Ridgefield. This, combined with the locations of the current structure and the driveways which dictate the siting of the proposed addition, represents both an unusual hardship and practical difficulty that justify the grant of the variances requested in this case. No other feasible or reasonable location exists for the addition.
2. A variance issued in 1981 (No. 81-033) permits a garage of unspecified height in this general vicinity at a distance of 8 ft. from the lot line. The proposed garage is 11 ft. from the line and reduces the setback encroachment.
The ZBA could not locate any floor plans regarding the garage for which it issued the setback variance in 1981. (ROR Exhibit III(a) p. 32.)
3. This is a historical building, used during the Revolutionary War as the hospital for the British troops. The need to protect the historic nature of the main building also represents an unusual hardship that also justifies the grant of the variances in this case.
4. The proposal is in harmony with the general scheme of development in the area and is not contrary to the public health, safety or welfare. Because of existing screening between this property and the adjoining property to the north, the impact will be minimal.
(ROR, Exhibit VII(e) pp. 85-86.)
The Webers allege that the ZBA acted illegally, arbitrarily, and in abuse of its discretion in that the Galowskis have failed to demonstrate legal hardship pursuant to General Statutes § 8-6. The Webers further contend that the Galowskis acquired the property knowing it lacked a garage, that they had notice of the zoning restrictions limiting future construction of a garage and, therefore, any hardship they may claim is self-created. Finally, the Webers argue that the lack of a garage and the inability to acquire an additional 1,769 square feet of living space is not a hardship, and even if it is, the hardship is personal to the Galowskis. The Galowskis counter that under General Statutes § 8-6(a)(3), they have met the two-part test for variances inasmuch as the proposed addition is consistent with other uses in the area and that they have established sufficient proof of hardship.
The ZBA's finding that the proposed addition "is in harmony with the general scheme of development in the area and is not contrary to the public health, safety or welfare"; (ROR, Exhibit X(b), p. 129); is adopted, having gone largely unchallenged, and, accordingly, the first prong of the two-part test for variances is met.
"Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 207-08, 658 A.2d 559 (1995). "Pursuant to General Statutes . . . § 8-6, the power to vary the application of zoning regulations falls within the exclusive jurisdiction of the zoning board of appeals." Torrington v. Zoning Commission, 261 Conn. 759, 779-80, 806 A.2d 1020 (2002). "General Statutes § 8-6(a)(3) provides that zoning boards of appeal may vary the application of zoning regulations if (1) the variance is shown not to affect substantially the comprehensive plan and (2) adherence to the strict letter of the zoning regulation is shown to cause unusual hardship unnecessary to carrying out the general purpose of the plan . . . The statute provides that the board may grant variances 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 . . . To support a variance, therefore, a hardship must arise from a condition different in kind from that generally affecting properties in the same zoning district and must be imposed by conditions outside the property owner's control." (Citations omitted; internal quotation marks omitted.) Norwood v. Zoning Board of Appeals, 62 Conn. App. 528, 532-33, 772 A.2d 624 (2001).
"Personal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance." (Internal quotation marks omitted.) Pollard v. Zoning Board of Appeals, 186 Conn. 32, 44, 438 A.2d 1186 (1982). In addition, "[t]he zoning authority lacks the authority to grant a variance where the claimed hardship is due to some voluntary act of the owner of the property and, therefore, a self-created or voluntarily assumed hardship cannot serve as a valid basis for a variance . . ."
"One specific type of voluntarily assumed hardship is embodied in what has been termed `the purchase with knowledge rule' . . . Under that rule, if a purchaser acquires property with knowledge of the applicable zoning regulations and later attempts to use that property in a manner that is proscribed by the regulations, the purchaser is barred from obtaining a variance." (Citations omitted.) Kalimian v. Zoning Board of Appeals, CT Page 8913 65 Conn. App. 628, 632, 783 A.2d 506, cert. denied, 258 Conn. 936, 785 A.2d 230 (2001).
Although the parties' arguments are based upon the premise that the Galowskis' parcel does not have a garage, that presumption is not quite so completely correct. While it is true that a garage does not presently exist, the Galowskis purchased the property "garage ready" inasmuch as the aforesaid 1981 variance runs with the parcel. "Where a nonconformity exists, it is a vested right which adheres to the land itself and the right is not forfeited by a purchaser who takes with knowledge of the regulations which are inconsistent with the existing use." (Internal quotation marks omitted.) Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 712, 535 A.2d 799 (1988). Therefore, despite having notice of the applicable zoning regulations restricting future construction, the Galowskis already have an undisputable right to build a garage based on the 1981 variance. The "purchase with knowledge rule," under which the Galowskis are deemed to have notice of the applicable setback, coverage and FAR restrictions, in effect permits the Galowskis to maintain that they knew of the 1981 variance granting the property owner the right to build a garage. Consequently, the Galowskis did not voluntarily, and to their detriment, assume a hardship under the so-called purchase with knowledge rule.
"[Z]oning variances run with the property and not with the individual who [obtained] the change." (Internal quotation marks omitted.) Reid v. Zoning Board of Appeals, 235 Conn. 850, 860, 670 A.2d 1271 (1996).
A purchaser of real property is charged with notice of the zoning regulations that apply to the purchased parcel. ML Homes, Inc. v. Zoning Planning Commission, 187 Conn. 232, 244-45, 445 A.2d 591 (1982).
Although the 1981 setback variance runs with the land and, therefore, a garage may be built within 8 feet of the mutual lot line, the lot coverage and FAR regulations, which predate the Galowskis' ownership, but were enacted subsequent to 1981, still must be addressed. (ROR, Exhibit VIII(a), p. 101.) In support of their claim that these regulations impose a hardship, the Galowskis rely on Stillman v. Zoning Board of Appeals, 25 Conn. App. 631, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991), for the general proposition that the configuration of the lot, the size of the existing home and the respective locations of the house and driveway dictate the siting of the proposed addition in order to preserve the home's architectural integrity. In Stillman, the property owner sought a variance in order to construct an addition that would encroach upon the setback area because the placement of a well and septic system on the subject property prevented construction of the desired addition anywhere else. Id., 633. Although the trial court found that the hardship was personal to the applicant, the Appellate Court disagreed. Id., 637. The Appellate Court determined that the hardship arose from the configuration of the applicant's lot, as well as the locations of the well and septic system. Id., 636-37. The Appellate Court further determined that these unique conditions were not personal to the applicants because they "would exist no matter who owned the lot" and granted the variance. Id.
Although the record does not include a copy of the James E. Galowski Revocable Trust deed evidencing the date of acquisition of title, James Galowski testified at the June 16, 2003 hearing that, at that time, he (as trustee) had owned the property for approximately fifteen months. (ROR, Exhibit III(a) p. 34.) Section 403.0E(1) was amended effective May 18, 2001. Section 403.0F was added to Ridgefield's ordinances on May 18, 2001.
In Bloom v. Zoning Board of Appeals, 233 Conn. 198, 210 n. 13, 658 A.2d 559 (1995), the Supreme Court, although not expressly overruling Stillman, cited Stillman with some disapproval, but distinguished it from Bloom on its facts.
Similarly, the ZBA found that the Galowskis' hardship arises from a combination of the home's location, the driveway's location and the historic nature and size of the existing home. (ROR, Exhibit VII(e), pp. 85-86.) If the board strictly applied the coverage and FAR regulations to the Galowskis' property, the Galowskis would be unable to construct a garage architecturally suited to the home. Furthermore, these conditions are not personal to the Galowskis because they would exist no matter who owns the property. Based on the foregoing, the plaintiffs have failed to demonstrate that the ZBA acted improperly because the grounds upon which the ZBA based its decision are reasonably supported by the record as a whole. Accordingly, the appeal is dismissed.
Nadeau, J.