Reid v. Zoning Bd. of Appeals of Town of Lebanon

• Decision Date: 30 January 1996
• Docket Number: No. 15152,15152
• Citation: 670 A.2d 1271,235 Conn. 850
• Court: Connecticut Supreme Court
• Parties: Aaron REID v. ZONING BOARD OF APPEALS OF the TOWN OF LEBANON.

Page 1271

670 A.2d 1271

235 Conn. 850

Aaron REID v. ZONING BOARD OF APPEALS OF the TOWN OF LEBANON.

No. 15152.

Supreme Court of Connecticut.

Argued Oct. 26, 1995.

Decided Jan. 30, 1996.

Walter A. Twachtman, Jr., Glastonbury, for appellant (plaintiff).

Mary E. Driscoll, with whom was Edward B. O'Connell, New London, for appellee (defendant).

Before PETERS, C.J., and CALLAHAN, NORCOTT, KATZ and PALMER, JJ.

KATZ, Associate Justice.

The plaintiff, Aaron Reid, is the owner of property in the town of Lebanon (town) subject to a variance granted in 1975 to his predecessor in title, Florence Kastner, which gave her the right to use the property on a year-round basis for her lifetime. That variance has become the subject of this appeal, which presents three related issues of whether: (1) the doctrines of res judicata and collateral estoppel bar reconsideration of the variance, where no appeal had been taken from the grant of that variance; (2) the variance was invalid from its inception because of the "life use" condition; and (3) No. 93-385 of the 1993 Public Acts (P.A. 93-385) ¹ has any bearing on the variance.

The following undisputed facts are pertinent to this appeal. Kastner, the plaintiff's predecessor in title, applied to the defendant, the zoning board of appeals of the town of Lebanon (board), in 1972 requesting a variance to allow for year-round occupancy of her home located at 257 Deepwood Drive, Amston Lake, in Lebanon (lot 120C). Kastner had requested the variance because of economic hardship following the death of her husband. This request was denied because "[g]ranting of the variance would present danger to public health and safety" and "[t]he hardship is not unique to the applicant." A second request, in 1973, was equally unsuccessful, based upon a finding that the hardship had been caused by the applicant. In 1975, Kastner resubmitted her request, this time asking the board to grant her the variance "for her life use of the property only." On the basis of its finding of personal hardship, the board granted the variance for "Mrs. Kastner's life use only, subject to the condition that Lots 149 and [120C] must be combined as one lot." The board also stated that the variance would not be effective until Kastner recorded it in the town land records.

Although Kastner combined lots 149 and 120C by quitclaim deed on September 22, 1975, the variance was not recorded until March 26, 1990. No appeal was taken from the granting of the variance in 1975 and Kastner continued to occupy the premises until she sold the property to the plaintiff in 1990.

On May 19, 1992, stating that the plaintiff's occupancy on a year-round basis violated Lebanon's zoning regulations, the Lebanon zoning enforcement officer (officer) ordered the plaintiff to cease occupying the premises at 257 Deepwood Drive as a year-round dwelling. The plaintiff appealed to the board claiming that the officer had incorrectly interpreted the terms of the variance granted to Kastner in 1975, which, he argued, gave him year-round occupancy. The board upheld the action of the officer, finding the cease and desist order to be valid.

The plaintiff appealed to the trial court claiming that the board's decision was arbitrary, illegal and an abuse of the board's discretion. Before the trial court, the plaintiff argued, inter alia, ² that he "is entitled to the benefit of the legal status that the variance was granted when it was passed back in 1975, to wit, it runs with the land and passes to subsequent owners (subject to the condition of Mrs. Kastner's survival)." The plaintiff argued that the variance, delimited to the period of Kastner's life use, is analogous to the creation of a life estate in real property so that the grantor can pass to the grantee a right to possess, use or enjoy property during the period of the grantor's life. The board argued, inter alia, ³ that because it had lacked the authority to grant a variance that was based on personal financial hardship, the variance was void ab initio.

The trial court determined that it was unreasonable for the board to have granted the variance with the condition that Kastner have year-round occupancy for her "life use only." The trial court stated that because "a zoning board of appeals lacks authority to impose an unreasonable condition, the board was without jurisdiction to impose this condition when it granted the variance to Kastner in 1975." Further, the trial court found that because the "condition was an integral part of the board's decision," it was not severable and the variance was void ab initio. Accordingly, the trial court dismissed the plaintiff's appeal.

The plaintiff then filed a motion to reargue, in light of the legislature's passage of P.A. 93-385. The trial court denied this motion without comment. The plaintiff appealed from the trial court's judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). Thereafter, the plaintiff moved the trial court to articulate its reason for denying the plaintiff's motion to reargue. The motion was granted and, in its articulation, the trial court stated that because the 1975 variance was void ab initio, there was no variance to which the amendment could apply.

On appeal to this court, the plaintiff claims that the trial court improperly: (1) failed to apply the doctrines of res judicata and collateral estoppel to bar reconsideration of a variance granted by the board in 1975 and from which no appeal had been taken; (2) declared this variance void ab initio although the original granting of the variance had never been appealed and the plaintiff and Kastner had complied with other conditions of the variance in justifiable reliance on the validity of the variance; and (3) determined that P.A. 93-385 has no impact on this case when the facts of this case typify the problems sought to be remedied by the legislature. The board argues in response that: (1) the trial court properly concluded that the variance was invalid because (a) it contained an impermissible condition, (b) it had been based solely on personal hardship, and (c) the board "was 'impotent to reverse' " its 1972 decision denying the variance; (2) if the variance is valid, the plaintiff was precluded from residing year-round on the property once Kastner had ceased to occupy the premises; and (3) P.A. 93-385 cannot be applied retroactively and, therefore, has no effect on this appeal because it changes existing case law stating that conditions that are illegal and are an integral part of the board's decision to grant the variance render the variance void.

At the outset we note that "land use regulation embodies a clash of conflicting forces: the common law right of a property owner to use his land as he pleases, as long as that use does not create a nuisance, and the exercise of the police power to regulate the use in the interest of public health, safety, morals and the general welfare of the community." R. Fuller, 9 Connecticut Practice Series, Land Use Law and Practice (1993) § 1.2, citing Steiner, Inc. v. Town Plan & Zoning Commission, 149 Conn. 74, 76, 175 A.2d 559 (1961), and Service Realty Corp. v. Planning & Zoning Board of Appeals, 141 Conn. 632, 635, 109 A.2d 256 (1954). Variances play an important role in land use regulation. "The existence of the variance power recognizes that zoning regulations which permit some uses of land and limit or prohibit others will adversely affect individual property rights in some cases, and variances furnish elasticity in the application of the regulations so they do not operate in an arbitrary or confiscatory and therefore, unconstitutional manner. Without authorization to a board of appeals or some similar agency to grant variances, it would be difficult, if not impossible, to keep the law 'running on an even keel' and to prevent attacks upon the constitutionality of the zoning ordinance." R. Fuller, supra, § 9.1.

The passage of P.A. 93-385 reflects these strong public policy concerns regarding variances. "[I]n deference to the existing statutory scheme through which the legislature has chosen to define this field"; Garrity v. McCaskey, 223 Conn. 1, 7, 612 A.2d 742 (1992); we first address the issue of whether P.A. 93-385, as it amended § 8-6(b), affects the variance in this case. Because we decide that P.A. 93-385 should be applied retroactively, and that, consequently, any owner of 257 Deepwood Drive is entitled to year-round occupancy, we do not address the remaining claims. ⁴

Our law governing variances is well settled. Section 8-6(a)(3) provides in relevant part that a zoning board of appeals may "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...." (Emphasis added.) "A variance is authority granted to the owner to use his property in a manner forbidden by the zoning regulations.... The power of the board to grant a variance should be used only where a situation falls fully within the specified requirements.... Thus, the power to grant a variance should be sparingly exercised.... An applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone." (Internal quotation marks omitted.) Kaeser v. Zoning Board of Appeals, 218 Conn. 438, 445, 589 A.2d 1229 (1991)....