Anatra v. Zoning Bd. of Appeals of Town of Madison

• Decision Date: 05 February 2013
• Docket Number: No. 18784.,18784.
• Citation: 307 Conn. 728,59 A.3d 772
• Court: Connecticut Supreme Court
• Parties: Victor ANATRA et al. v. ZONING BOARD OF APPEALS OF the TOWN OF MADISON.

307 Conn. 728

59 A.3d 772

Victor ANATRA et al.

v.ZONING BOARD OF APPEALS OF the TOWN OF MADISON.

No. 18784.

Supreme Court of Connecticut.

Argued Nov. 1, 2012.

Decided Feb. 5, 2013.

Michael A. Zizka, Hartford, for the appellant (defendant).

Proloy K. Das, with whom was Glenn E. Coe, Hartford, for the appellees (plaintiffs).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH and HARPER, Js.^*

ZARELLA, J.

The principal issue in this appeal is whether the conditions attached to the granting of a variance must be explicitly described in the certificate of variance.¹ The defendant, the zoning board of appeals of the town of Madison (board), appeals from the judgment of the Appellate Court reversing the judgment of the trial court, which dismissed the appeal of the plaintiffs, Victor Anatra and Heather Anatra, from the board's decision upholding the denial of their application for a certificate of zoning compliance by the town zoning enforcement officer (zoning officer). The plaintiffssought permission to convert an existing balcony on their beachfront house into a large, uncovered deck that would fully comply with the zoning regulations but arguably would not comply with a previously approved variance limiting the size of the house to the footprint of the previous, nonconforming structure. The board claims that the Appellate Court's conclusion that the board could not deny the plaintiffs' application because the footprint limitation was not expressly described in the certificate of variance is not in accordance with the applicable law and nullifies important public safeguards provided by statutory and regulatory procedures. The plaintiffs respond that the Appellate Court's conclusion is consistent with the applicable law and with preserving public safeguards because requiring that conditions be explicitly described in a certificate of variance recorded in the land records is the best way to inform the public of the restrictions that may apply to a property. We agree with the board and, accordingly, reverse the judgment of the Appellate Court.

The following relevant, undisputed facts and procedural history are set forth in the Appellate Court's decision, which relied in part on the trial court's findings of fact. “On October 5, 2001, the [plaintiffs] applied for a variance to the [board] to replace the then-existing house on the footprint of that prior structure.² The prior structure was a much aged cottage. The proposed structure was a modern, multistory home. The [plaintiffs'] application requested variances for front yard and side yard setbacks, additional maximum building coverage, and [c]ritical [c]oastal [r]esource setback. Detailed plans were submitted with the application [which stated that the proposed residential use would remain the same without expanding the footprint of the building]. The application stipulated, immediately above the signature line, that THE PLANS SUBMITTED WITH THE BUILDING APPLICATION MUST BE THE SAME AS THOSE SUBMITTED AND APPROVED WITH [THE] VARIANCE APPLICATION....

“On [December 4, 2001], the [board] considered the application. The [plaintiffs'] architect, Robert Mangino, presented a floor plan and a model of the proposed house to the [board]. The minutes of the meeting state that Mangino referred to the model and said the house will not change from the model, although there may be a change in the windows. Neither the application nor the model included a deck extending beyond the footprint of the house.” (Internal quotation marks omitted.) Anatra v. Zoning Board of Appeals, 127 Conn.App. 125, 127, 14 A.3d 386 (2011). The minutes also state that the plaintiffs' attorney assured the board that the building was a two bedroom house that “cannot be enlarged” and that “the footprint will not be increased....” After the public portion of the hearing was closed, one of the board members likewise remarked that “[t]he footprint is the same....”

“The board granted the plaintiffs' application and issued a certificate of variance on December 4, 2001. The certificate of variance ... certifie[d] that on [December 4, 2001] a variance was granted to [the plaintiffs] ... by the [board] to vary the application of [§§ ] 2.1.7 and 3.6 [ (d) and (f) ] of the [Madison] [z]oning [r]egulations [zoning regulations].... The certificate also set forth the exact nature of the variance granted: To allow 10.9 [percent] area coverage, 35.1 [feet] front yard and 10.5 [feet] side yard variances to permit [the] existing structure to be replaced in the same location within 50 [feet] of the critical coastal resources as presented at the hearing and as shown on the plans and the survey submitted. [A] [c]oastal [s]ite [p]lan [r]eview was [also] approved with the following condition: [1] that all construction be in conformance with the construction standards put forth by ... [the Federal Emergency Management Agency (FEMA) ]; and [2] that the proposed harvesting and replanting of beach grass be scheduled for early spring to ensure the shortest period of plant storage and the best possible conditions for the re-establishment of the beach grass; careful watering of the replanted grass through the first growing season (typically from early spring through October) is recommended to aid its successful re-establishment within the disturbed area. The certificate [of variance] also contained a preprinted standard clause at the bottom of the page that provides: This variance shall not become effective until a copy of this [c]ertificate of [v]ariance, certified by the [board], is recorded in the [town] land records ... at the expense of the record owner.” (Internal quotation marks omitted.) Anatra v. Zoning Board of Appeals, supra, 127 Conn.App. at 131–32, 14 A.3d 386.

Thereafter, the plaintiffs built a new house on the property in accordance with the submitted plans. “On September 2, 2003, the plaintiffs were issued another certificate of variance to enable them to install new stairs and an air conditioning unit on the outside of their new home. This certificate provides: This certifies that on [September 2, 2003] a variance was granted to Victor Anatra ... by the [board] to vary the application of [§§ ] 2.1.7, 3.6 [ (d) and (f) ] and 12.6 of the [z]oning [r]egulations.... The certificate also set forth the exact nature of the variance granted: To allow an increase in coverage from [10.9 to 11.1 percent] and side variances of 19.5 [feet] to [the] new west side stairs, 16 [feet] to [the] air conditioning unit on [the] west side and 2 [feet] to [the] new deck on the south side and front yard variances of 27 [feet] to [the] new stairway on the east side, 21 [feet] to [the] new deck on the east side and 36 [feet] to [the] new stairway on the west side and to allow the generator and air conditioning units in the critical coastal resource area as presented at the hearing subject to the condition that the air conditioning units be 18 SEER [seasonal energy efficiency ratio] or better. The certificate also contained the same preprinted standard clause at the bottom of the page, providing: This variance shall not become effective until a copy of this [c]ertificate of [v]ariance, certified by the [board], is recorded in the [town] land records ... at the expense of the record owner.” (Internal quotation marks omitted.) Id., at 132–33, 14 A.3d 386.

“On July 27, 2006, [t]he [plaintiffs] filed an application for [a] variance modification to add [nine feet] to [the] existing balcony in [the] rear of [the] house—[nine feet by twenty feet]. The existing balcony—which appears to be within the footprint of the existing structure—was stated to be [three feet by twenty-two feet]. The proposed addition extended beyond that footprint. On September 5, 2006, the [board] denied the application. The [plaintiffs] did not appeal [from that] decision.

“On December 19, 2007, the [plaintiffs] decided to try again. This time, instead of requesting another variance modification, they submitted an application for a [certificate of zoning compliance] to the [zoning officer]. A drawing attached to the application show[ed] a proposed deck [thirty-two] feet long and [seven] feet wide for [twenty] feet of the total length, expanding to [ten] feet wide in the last [twelve] feet of length. A privacy wall was to be built at the narrow end of the deck. The proposed deck and privacy wall extend[ed] beyond the footprint of the existing structure.

“On January 3, 2008, the [zoning officer] denied the application. [The] denial state[d] that ... [p]rior variances for this building were granted by the [board] based on specific plans and representations for the building. The variances are effective for that building only. Any modification to the building must be approved by the [board].

“On January 11, 2008, the [plaintiffs] appealed [from] the decision of the [zoning officer] to the [board]. The appeal describe[d] the [plaintiffs'] application as one for zoning approval for [a] building permit to construct [an] extension to [the] existing balcony in the rear of [the] home. [The] [p]roposed extension is an uncovered deck in accordance with [§ ] 19.5.1 [of the zoning regulations], [seven feet] wide for [twenty feet] then [ten feet] wide for [twelve feet], set entirely within the side and rear yard setbacks. On March 4, 2008, the [board] voted to uphold the decision of the [zoning officer]. On March 25, 2008, the [plaintiffs] ... appeal[ed] to the [trial] [c]ourt....” (Internal quotation marks omitted.) Id., at 127–28, 14 A.3d 386. In a memorandum of decision dated May 14, 2009, the trial court concluded that the board properly had upheld the decision of the zoning officer denying the plaintiffs' application for a certificate of zoning compliance and dismissed the appeal.

The plaintiffs appealed to the Appellate Court, on the granting of certification, from the trial court's judgment of dismissal. The plaintiffs argued that the proposed uncovered deck was in full...