233 Conn. 198 | Conn. | 1995
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 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 zon
In January, 1993, as a result of a complaint filed by the plaintiffs,
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
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
I
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.
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.
II
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
A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town. Burlington v. Jencik, 168 Conn. 506, 508, 362 A.2d 1338 (1975). The Norwalk zoning regulations strictly limit the extent to which structural nonconfor-mities may be expanded or altered. Norwalk Zoning Regs. § 118-800. “A nonconforming structure shall not be enlarged or altered if the result would be an increase in the extent to which the structure does not conform to these regulations. A nonconforming structure may be enlarged or altered, provided that the enlargement or alteration conforms to these regulations.” Norwalk Zoning Regs. § 118-800 (D) (l).
It is well established, however, that the granting of a variance must be reserved for unusual or exceptional
In order to determine whether the board properly granted the subject variance, we must first consider whether the board gave reasons for its action. Scalzo v. Danbury, 224 Conn. 124, 129, 617 A.2d 440 (1992); Schwartz v. Planning & Zoning Commission, supra, 208 Conn. 152. “Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations. . . . The [decision] must be sustained if even one of the stated reasons is sufficient to support it. . . . [This] applies where the agency has rendered a formal, official, collective statement of reasons for its action.” (Citations omitted; internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 544, 600 A.2d 757 (1991). Where a zoning board of appeals does not formally state the reasons for its decision, however, the trial court must search the record for a basis for the board’s decision. Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 743, 626 A.2d 705 (1993). In this case, although individual members of the board
During the public hearing regarding the variance, evidence was presented that the zoning commission had granted the owners a permit to proceed with the construction of the dormer and the stoop, and that the owners had relied in good faith on the building permit when they commenced construction. It is apparent from the record that the only evidence of hardship that the owners presented to the board consisted of their reliance on an improperly granted building permit. We can reasonably conclude from the record that the board granted the variance because it determined that the owners had received approval for the improvements from the zoning commission and to require the removal of the dormer and the stoop would constitute a hardship.
In order to justify a variance, the hardship must differ from the conditions that generally affect the property owners in the same area and it must arise from circumstances beyond the control of the property owner seeking the variance. Smith v. Zoning Board of Appeals, supra, 174 Conn. 327. The hardship must originate in the regulation or ordinance and arise from the appli
In this case, the trial court found that the owners would not have been entitled to a variance before the improvements were made pursuant to the improperly granted building permit. We agree. The owners have shown only that their building is located on an irregularly shaped lot and “limitations imposed by the shape of the lot do not in themselves create a hardship . . . .” T. Tondro, Connecticut Land Use Regulation (2d Ed. 1993 Sup.) p. 29. Furthermore, there was no evidence that if the variance were denied the owners’ property would become worthless. On the contrary, as the trial court determined, the building housed a restaurant that was a viable business and a going concern.
The judgment is reversed and the case is remanded to the trial court with direction to sustain the plaintiffs’ appeal.
In this opinion the other justices concurred.
The trial court granted the owners’ motion to intervene as defendants.
The front setback is a zoning limitation that prohibits construction within thirty-five feet of the center line of the street. See Norwalk Zoning Regs., Schedule Limiting Height and Bulk of Buildings, Commercial and Industrial, Part 1 (1992).
Section 118-530 (C) (1) of the Norwalk zoning regulations provides in pertinent part: “The height, bulk, location and use of all buildings in existence at the time of adoption of this section are hereby declared to be in conformance with the requirements of this section . . . .”
The plaintiffs are Hillard Bloom, the estate of Norman Bloom, Willis Cavanagh, Peter Drummond-Hay, Bettina Drummond-Hay, Frank E. Raymond and Esther Raymond. The trial court found that Cavanagh and Drummond-Hay owned property within a radius of 100 feet from the land for which the variance was granted and that they were therefore aggrieved. General Statutes § 8-8 (1). The trial court went on to determine that “[s]ince some of the plaintiffs are aggrieved by the decision of the board, it is not necessary to resolve whether the other plaintiffs are aggrieved . . . .” (Internal quotation marks omitted.)
Practice Book § 4013 (a) (1) provides in pertinent part: “If any appellee wishes to (A) present for review alternate grounds upon which the judgment may be affirmed . . . that appellee shall file a preliminary statement of issues within fourteen days from the filing of the appellant’s preliminary statement of the issues.”
Equitable estoppel has been applied to municipalities in the enforcement of zoning laws to prevent the enforcement of zoning regulations under certain circumstances. Generally, estoppel requires that “the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury.” Dornfried v. October Twenty-Four, Inc., 230 Conn. 622, 635, 646 A.2d 772 (1994). “Although estoppel may not generally be invoked against a public agency in the exercise of its governmental functions . . . an exception is made where the party claiming
The transcript of the hearing in the trial court was not filed in this appeal.
The issue of whether the doctrine of equitable estoppel may be invoked to support a variance is not before us and we leave it for another day.
See General Statutes § 8-8 (k), which provides: “The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it, pursuant to section 8-7a, or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. The court may take the evidence or may appoint a referee or committee to take such evidence as it directs and report the same to the court, with his or its findings of facts and conclusions of law. Any report of a referee or committee shall constitute a part of the proceedings on which the determination of the court shall be made.”
The owners applied for a variance instead of appealing the cease and desist order, and have never argued that the construction of the dormer and stoop conformed to the regulations. Therefore, the board and the trial court considered the additions as increases in the extent to which the building did not conform to the regulations. We do the same.
General Statutes (Rev. to 1993) § 8-6 provides in pertinent part: “powers and duties of board of appeals. The zoning board of appeals shall have the following powers and duties ... (3) to 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 so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. . . .”
When the chairman of the zoning board of appeals moved to grant the variance, he stated: “Whereas the applicant has demonstrated [that] this is a legally non-conforming use at a twenty-five point two tenths setback where thirty-[five] feet is required. Whereas applicant proposes to provide a modest dormer addition to the North side of the property built upon the existing footprint and to provide a modest stoop at the South portion of the property with a suitable handrail for delivery of said supplies, and whereas a granting of [the] variance requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands, buildings or structures in the same zoning district, I move for the granting of the variance. ...”
The owners rely on Stillman v. Zoning Board of Appeals, 25 Conn. App. 631, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991), where a variance was granted for the construction of an additional encroachment on the setback in a legally nonconforming building. We do not consider Stillman dispositive in this case. In Stillman, there were permanent structures on an undersized but legally nonconforming lot that prevented the defendant from constructing the proposed addition at any location other than within the setback. Therefore, because construction was possible only within the setback, the court concluded that the defendant was entitled to a variance. Id., 636-37. In the case before us, the owners presented no evidence that the renovations could only be accomplished within the front setback. Furthermore, the fact that an owner is prohibited from adding new structures to the property does not constitute a legally cognizable hard