Vine v. Zoning Bd. of Appeals

• Decision Date: 31 July 2007
• Docket Number: No. 25837.,25837.
• Citation: 927 A.2d 958,102 Conn. App. 863
• Court: Connecticut Court of Appeals
• Parties: Wanda VINE v. ZONING BOARD OF APPEALS OF the TOWN OF NORTH BRANFORD et al.

927 A.2d 958

102 Conn.App. 863

Wanda VINE v.ZONING BOARD OF APPEALS OF the TOWN OF NORTH BRANFORD et al.

No. 25837.

Appellate Court of Connecticut.

Submitted May 25, 2007.

Decided July 31, 2007.

Daniel C. Burns and Pasquale Young, New Haven, for the appellant(plaintiff).

John M. Gesmonde, Hamden, for the appellee(named defendant).

Frank S. Marcucci, East Haven, for the appellee(defendantM & E Construction, Inc.).

SCHALLER, McLACHLAN and GRUENDEL, Js.

SCHALLER, J.

This zoning appeal returns to this court on remand from our Supreme Court;Vine v. Zoning Board of Appeals,281 Conn. 553, 916 A.2d 5(2007); for resolution of the claim of the plaintiff, Wanda Vine, that the trial court improperly determined that the defendant zoning board of appeals of the town of North Branford(board) had the authority to grant a variance after it previously had denied the first application for a variance by the defendantM & E Construction, Inc.(M & E).¹We affirm the judgment of the trial court.

In the plaintiff's first appeal to this court, she claimed that "the court improperly determined that (1) the hardship claimed by M & E was not self-created, (2) the claimed hardship was not merely financial, (3) the `purchaser with knowledge' rule did not apply, and (4) material differences existed between the application for the variance at issue in this appeal and the application M & E filed in 2001 that was denied, which permitted the board to reverse its 2001 decision."Vine v. Zoning Board of Appeals,93 Conn.App. 1, 2-3, 887 A.2d 442(2006), rev'd, 281 Conn. 553, 916 A.2d 5(2007).In a divided opinion, the majority of this court concluded that the board lacked authority to grant the variance because any hardship incurred by M & E was purely financial in nature.Id., at 7, 887 A.2d 442.As a result of this conclusion, the majority of this court did not reach the other issues raised by the plaintiff.Id., at 3 n. 4, 887 A.2d 442.Additionally, the majority stated: "In both its brief and at oral argument, the board noted that a purpose of zoning is to eliminate nonconformities as quickly as possible and that the elimination of a nonconforming use may serve as an independent basis for the granting of a variance.SeeStancuna v. Zoning Board of Appeals,66 Conn.App. 565, 572, 785 A.2d 601(2001).That issue, however, was raised neither before the board nor the trial court and, therefore, is not properly before this court.SeeRaymond v. Zoning Board of Appeals,76 Conn.App. 222, 247, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177(2003).Furthermore, the defendants have not raised that issue as an alternate ground for affirming the court's decision.We, therefore, decline to consider that argument.SeeNew Haven v. Bonner,272 Conn. 489, 497-98, 863 A.2d 680(2005)."Vine v. Zoning Board of Appeals,supra, at 3 n. 3, 887 A.2d 442.

Our Supreme Court granted the petitions for certification filed by the board and M & E, limited to the following issue: "Did the Appellate Court properly conclude that the variance granted by the named defendant, the zoning board of appeals of the town of North Branford, was improper because the hardship was merely financial?"(Internal quotation marks omitted.)Vine v. Zoning Board of Appeals,277 Conn. 918, 895 A.2d 794(2006).Our Supreme Court acknowledged that "the Appellate Court ... was technically correct when it determined that the board previously had not raised or preserved for review the claim that it properly had granted the variance because it would reduce a preexisting nonconforming use under Stancuna [v. Zoning Board of Appeals, supra, 66 Conn.App. at 572, 785 A.2d 601]andAdolphson [v. Zoning Board of Appeals, 205 Conn. 703, 708-10, 535 A.2d 799(1988)]."Vine v. Zoning Board of Appeals,supra, 281 Conn. at 567, 916 A.2d 5.

Due to the "extraordinary circumstances" of this case, our Supreme Court determined that review of the defendants' claim that Stancuna and Adolphson applied was warranted.Id., at 569, 916 A.2d 5.The court explained: "First, the issue before us is a pure question of law and does not involve the exercise of discretion by the board or the trial court.Second, unlike the trial court in nonadministrative appeals, the board, which was the initial decision maker in this case, is a party to this appeal and raises the issue that we review.Consequently, we know how the board would have ruled on the issue if it had been raised previously, and there is no possibility that we might usurp its discretion by reviewing it.Third, the record is adequate for review, the issue has been fully briefed by all of the parties, and considering the claim could result in no unfair surprise or prejudice to the plaintiff."Id.

Our Supreme Court concluded that Stancuna and Adolphson provided an alternate ground for affirming the decision of the board because "granting the variance would increase the size and buildable area of the lots, resulting in a development that more nearly conforms to the technical requirements of the town's zoning regulations."Id., at 570, 916 A.2d 5."This conclusion disposes of all of the plaintiff's claims on appeal to the Appellate Court relating to the merits of M & E's application for a variance.The Appellate Court must address on remand, however, the plaintiff's claim that the board improperly reversed its denial of M & E's first application for a variance because material differences existed between the first application and the application under review in this appeal."Id., at 572, 916 A.2d 5.

The facts underlying this appeal were set out at length in our previous opinion."M & E acquired real properties located at 66, 72 and 76 Notch Hill Road in North Branford (town).Those properties, described in the land records as lots 26, 26A and 26B, were created by a subdivision approved in 1968 and are located in a zoning district designated as R-40.In 1977, the town amended its zoning regulations and included a requirement for a 150 foot buildable square on a lot for properties in the R-40 district.In 2001, M & E sought to combine the three lots into two proposed lots, designated A and B, and to build a residential home on each.A portion of proposed lot A was encumbered by an aboveground utility easement for electrical transmission lines that Connecticut Light and Power Company had obtained in 1981 after initiating condemnation proceedings.

"On October 15, 2001, the board denied M & E's first application for a variance.On November 15, 2002, M & E filed a second application for a variance with respect to two sections of the town's zoning regulations.First, § 24, schedule B, requires a minimum 150 foot square on each building lot.Second, § 6.25 provides that `[i]n determining compliance with minimum lot area and shape requirements of these Regulations, land subject to easements for drainage facilities and underground public utilities may be included, but not ... easement[s] for above-ground public utility transmission lines....'Because of the utility easement, the 150 foot square could not be located on the proposed lot A.A variance, therefore, was needed to build M & E's proposed residential dwelling.

"On April 14, 2003, the board held a public hearing on M & E's application.Despite expressing some concerns about the project, the board granted the variance by a four to one vote.M & E was notified of the approval by a letter from the board dated April 15, 2003.Notice of the approval was published in the New Haven Register on April 17, 2003.

"On April 24, 2003, the plaintiff appealed from the board's actions to the trial court.On July 7, 2004, the court issued its memorandum of decision and dismissed the plaintiff's appeal.The court concluded that the property was subject to an `uncommon' hardship as a result of the utility easement that resulted from the condemnation proceeding and that the comprehensive zoning plan would not be affected.The court, quoting one of the board members, stated: The record reveals that the variance is so nominal and the impact so minimal on neighbors and the lot in general that it is form over substance to require M & E to comply with the minimum square lot requirements."(Internal quotation marks omitted.)Vine v. Zoning Board of Appeals,supra, 93 Conn.App. at 3-5, 887 A.2d 442.

As instructed by the remand from our Supreme Court, the sole issue for our consideration is the plaintiff's claim that the board lacked the authority to grant M & E's second application for a variance because no material differences existed between the first application and the second application.The following additional facts are necessary for our discussion.In July, 2001, M & E submitted an application to the board for a variance for the adjoining properties located at 66 and 72 Notch Hill Road.Following a public hearing held on October 15, 2001, the board, by a three to one vote, denied the application for a variance.

At the April 14, 2003 public hearing on M & E's second application for a variance, Paul Lamber, a professional engineer, stated that the proposed lot line that separated lot A from lot B was changed in the second application for a variance to accommodate the proposed driveway.The board also learned, for the first time, that the property was assessed and had been taxed as three separate building lots.Finally, the board was made aware of the scope and substantial effect of the easement on the subject property.

As a preliminary matter, we set forth our standard of review and the applicable legal principles."Trial courts defer to zoning boards and should not disturb their decisions so long as honest judgment has been reasonably and fairly exercised after a full hearing....The trial court should reverse the zoning board's actions only if they are unreasonable, arbitrary or illegal....The burden of proof is on the plaintiffs to demonstrate that the zoning board acted improperly....

"When a...