Bloom v. Zoning Bd. of Appeals of City of Norwalk
| Decision Date | 16 May 1995 |
| Docket Number | No. 15147,15147 |
| Citation | 658 A.2d 559,233 Conn. 198 |
| Court | Connecticut Supreme Court |
| Parties | Hillard BLOOM et al. v. ZONING BOARD OF APPEALS OF the CITY OF NORWALK. |
Louis S. Ciccarello, with whom was Harry H. Hefferan, Jr., Norwalk, for appellants (plaintiffs).
Robert L. Genuario, Norwalk, for appellees (intervening defendant Kevin Conroy et al.).
Before PETERS, C.J., and BORDEN, BERDON, KATZ and PALMER, JJ.
The dispositive issue in this zoning appeal is whether the principles of equitable estoppel entitle the owners of a legally nonconforming building to a variance on the ground of hardship when, in reliance on an erroneously issued building permit, the owners have expanded and altered the building within the nonconforming areas. We conclude under the circumstances of this case that the property owners' reliance on an erroneous building permit does not constitute such a hardship.
The following facts are undisputed. The defendants Kevin Conroy, Steven Cook and William Conroy (owners) 1 are the owners of a restaurant located at 89 Rowayton Avenue in Norwalk. The property is zoned for business and a restaurant is a permitted use. The building that houses the restaurant, however, is nonconforming because part of the structure is within the thirty-five foot front setback included in the Norwalk zoning regulations. 2 Because the building predates the present zoning regulations, it is a legally nonconforming structure that requires no modification. 3
The owners decided to renovate the building and applied to the Norwalk zoning commission for approval. The proposed renovations included the construction of a dormer, which consists of a new raised roof with vertical windows, and the addition of a stoop. The proposed dormer was to be constructed above a nonconforming portion of the preexisting structure within the thirty-five foot setback. Also, the owners intended to add the stoop to a nonconforming portion of the building, slightly increasing the preexisting encroachment on the setback requirement. The owners did not provide the local zoning authorities with a map or survey indicating the front setback line.
On June 19, 1991, the Norwalk zoning enforcement officer approved the project and certified that it complied with applicable zoning regulations. On July 17, 1991, the plan review committee of the Norwalk zoning commission and the Norwalk zoning commission approved the project. The owners' application was approved on July 31, 1992, and a building permit was issued in August, 1992. Pursuant to these approvals, the owners began construction sometime in August or September, 1992.
In January, 1993, as a result of a complaint filed by the plaintiffs, 4 the zoning enforcement officer issued a cease and desist order to the owners because the construction of the dormer and the stoop violated the thirty-five foot setback provision of the regulations. In response, on February 3, 1993, the owners applied to the defendant Norwalk zoning board of appeals (board) for a variance of fourteen feet for the dormer and 9.8 feet for the stoop. After a duly noticed public hearing, the board granted the owners' application for the variance without making a specific finding regarding what hardship the owners would otherwise suffer. The plaintiffs appealed to the trial court.
On appeal, the trial court first concluded that the record failed to reflect any hardship that preexisted the construction that was commenced pursuant to the erroneously issued building permit. The court noted that a hardship is sufficient to justify a variance if it results from the peculiar topography, location or condition of the land that makes the property unsuitable for the use permitted in the zone. In this case, the trial court determined that the owners' restaurant was a viable, ongoing concern before the construction began and that no hardship resulted from the characteristics of the property or the enforcement of the zoning regulations.
The trial court also rejected the owners' argument that they were entitled to the variance under Lessner v. Zoning Board of Appeals, 151 Conn. 165, 195 A.2d 437 (1963), in which the court upheld a variance that was granted for construction that previously had been commenced pursuant to a zoning permit. The trial court distinguished Lessner by determining that the outcome in that case had turned on the fact that without the variance the defendant's property would have been worthless and not on any finding that the defendant had obtained a zoning permit before undertaking construction.
Finally, the court noted that no case supports granting a variance because substantial construction had been undertaken based on the issuance of a building permit. Accordingly, the trial court determined that no traditional, legally cognizable hardship justified the variance. Ordinarily, as the trial court pointed out, this would have concluded its inquiry. Nevertheless, the trial court went on to conclude, in light of the principles of equitable estoppel, that the owners had demonstrated a hardship. On this basis, the court dismissed the plaintiffs' appeal.
The plaintiffs appealed from the judgment of the trial court to the Appellate Court, and the appeal was transferred to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). The plaintiffs present the following claims on appeal, all of which pertain to the issue of equitable estoppel: (1) the trial court improperly determined that equitable estoppel gave rise to a hardship that justified the variance; (2) the trial court improperly imputed to the plaintiffs the conduct of the local zoning officials that was pertinent to the court's estoppel analysis; (3) the trial court violated the plaintiffs' due process rights by failing to hold a hearing on whether equitable estoppel applies to this appeal; and (4) even if the principles of equitable estoppel apply to variances, the requirements for its application were not satisfied in this case. The owners raise as alternate grounds for affirmance 5 that the board properly granted the variance because the evidence submitted to the board was sufficient to establish that the owners had demonstrated a legally cognizable hardship. We agree with the trial court's conclusion that there was no hardship according to the traditional analysis as it applies to variances. We conclude, however, that the trial court incorrectly dismissed the plaintiffs' appeal on the ground that the variance was properly predicated on the principles of equitable estoppel. Accordingly, the judgment of the trial court cannot be sustained.
After rejecting any justification for the variance based on traditional grounds for hardship, the trial court stated that the owners "have another arrow in their quiver" and decided the appeal in their favor on the ground of equitable estoppel. 6 The trouble with the trial court's reasoning is that the arrow was not fashioned by the owners but by the trial court itself. The court, sua sponte, discussed at length the proposition that because the construction at issue had been induced by the acts of the zoning commission upon which the owners had justifiably relied, a hardship would result if the owners were now required to remove the improvements. The trial court concluded that the principles of equitable estoppel supported a finding of hardship and dismissed the plaintiffs' appeal.
The theory of equitable estoppel had not been raised before the board. Furthermore, the owners had not raised it in the trial court, either in their response to the plaintiffs' appeal, during the hearing in the trial court, or in their trial brief. 7 Although the owners have been unable to cite to any case in which the doctrine of equitable estoppel was invoked successfully to support a variance, 8 we have acknowledged that there are situations where the doctrine may be applicable to municipalities in the enforcement of the zoning laws. Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 634, 646 A.2d 772 (1994); Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 354, 365 A.2d 1093 (1976). The doctrine requires, however, more than a mere act in reliance on the conduct of the municipality; see, e.g., Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 149, 527 A.2d 679 (1987); and the factual issues that must be raised in order to support equitable estoppel require an evidentiary hearing. Because the court held no evidentiary hearing on this subject, the plaintiffs never had an opportunity to present evidence to the trial court 9 nor were they permitted the opportunity to present an argument on the legal applicability of the doctrine of equitable estoppel to justify a variance. A fundamental premise of due process is that a court cannot adjudicate any matter unless the parties have been given a reasonable opportunity to be heard on the issues involved; Sassone v. Lepore, 226 Conn. 773, 777, 629 A.2d 357 (1993); Costello v. Costello, 186 Conn. 773, 776-77, 443 A.2d 1282 (1982); and to present evidence and cross-examine adverse witnesses. Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). Accordingly, the trial court incorrectly raised and decided the issue of whether the principles of equitable estoppel could support a hardship for the purposes of a variance.
We next turn to the alternate grounds for affirmance--the owners' contention that they have established a legally cognizable hardship. The standard of review on appeal from a zoning board's decision to grant or deny a variance is well established. We must determine whether the trial court correctly concluded that the board's act was not arbitrary, illegal or an abuse of discretion. Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988); Pike v. Zoning Board of Appeals, 31 Conn.App. 270, 624 A.2d 909 (1993). ...
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