138 Conn. App. 481
Conn. App. Ct.2012Background
- Green Falls Associates, LLC seeks a variance from Montville zoning board of appeals (ZBA) to build a 38x26 ft single-family home on an unimproved, nonconforming lot in WRP-160; setbacks require 75 ft front/rear and 30 ft side; the property was nonconforming for minimum lot area.
- Plaintiff entered into a purchase agreement with Arthur W. DeGezelle (Dec 1, 2006) with handwritten amendments (including building-permit contingency) and later acquired title (Sept 28, 2007).
- “Time of essence” clause not explicit; court found the agreement remained in effect and the plaintiff had a present or future interest in the property.
- Variance application filed June 1, 2007 (dated May 29, 2007) requesting relief from side and rear yard setbacks to construct a three-bedroom house with on-site septic.
- Public hearing (July 11, 2007) had multiple recusals; a proceeding continued to Sept 5, 2007; four members were available to vote: Adams, Fawcett, MacFadyen, Lakowsky; Lakowsky abstained.
- ZBA denied the variance despite three votes in favor and one abstention; plaintiff appealed to Superior Court, which dismissed; court certification led to the current appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the plaintiff has standing to seek a variance. | Plaintiff had a present or future right to possession and thus standing. | Agreement was void as of April 1, 2007; plaintiff lacked interest. | Plaintiff had standing; agreement remained in effect and gave purchaser an interest to seek a variance. |
| Whether Lakowsky’s abstention violated § 8-7 or prevented a valid vote. | Abstention reduced voting members to three so no valid vote. | Abstention is not an affirmative vote and does not render panel invalid. | Abstention did not create an impossibility under § 8-7; board could act with four present, but abstention not counted as affirmative. |
| Whether the lack of four affirmative votes warrants upholding the variance denial given abstention. | Four affirmative votes required to approve variance; abstention should not bar consideration. | Board can deny even without four affirmative votes if applicable law requires a specific vote; abstention not counted as affirmative. | Abstention does not constitute an affirmative vote; the board’s denial is sustained under the record. |
| Whether the denial constituted undue hardship or confiscation of the property. | Septic setbacks and nonconforming lot create unusual hardship; denial destroys value. | Hardship not established; smaller house feasible; no confiscation since some productive use remains. | No unusual hardship; smaller house could comply; no confiscation; denial affirmed. |
Key Cases Cited
- Stillman v. Zoning Board of Appeals, 25 Conn. App. 631 (Conn. App. 1991) (analogized hardship analysis; smaller project allowed on nonconforming lot)
- Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525 (Conn. 1987) (abstention in a three-to-three vote affirmed denial; abstention not to be counted as approval)
- Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (U.S. 1992) (regulatory takings; practical confiscation concept applicable to state zoning)
- Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221 (Conn. 1995) (confiscation requires loss of all beneficial use; not satisfied by price reduction alone)
- Garibaldi v. Zoning Board of Appeals, 163 Conn. 235 (Conn. 1972) (hardship must arise from conditions outside owner’s control and differ from typical cases)