45 Conn. App. 702 | Conn. App. Ct. | 1997
Opinion
The plaintiff, J and B Construction and Contracting Services, Inc., appeals from the judgment of the trial court dismissing its appeal from the decision of the defendant Hartford zoning board of appeals (board), which granted the application of the defendant Connecticut Prison Association, for a variance from the city of Hartford zoning ordinances.
A review of the following facts found by the court, which are undisputed by the parties, facilitates an understanding of the issues in this appeal. The property
The application lists the prison association as the applicant and Sun Life as the owner of the property. On April 4, 1995, the board held a public hearing on the prison association’s application. On April 7, 1995, the board granted the application. On April 24, 1995,
Before we reach the plaintiffs claims, we must first determine whether the proper parties were before the trial court. The defendant board argues that the dismissal of this appeal should be sustained on the alternate ground that Sun Life was an indispensable party to this action and was not joined in the trial court. It has been well established that parties are “indispensable when they not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such condition that its final [disposition] may be . . . inconsistent with equity and good conscience.” (Internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 225 n.10, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997), quoting Sturman v. Socha, 191 Conn. 1, 6, 463 A.2d 527 (1983). In Fong v. Planning & Zoning Board of Appeals, 212 Conn. 628, 633, 563 A.2d 293 (1989), our Supreme Court concluded that an applicant who receives a favorable decision from a planning and zoning board of appeals is a necessary and indispensable party to an appeal by persons aggrieved by the decision
Here, the application lists the prison association as the applicant and Sun Life as the owner of the property. The record reflects that the board referred to this matter as “case number 3: Connecticut Prison Association/Sun Life Insurance of America requesting variances . . . .” Further, notice of the subsequently granted variance has been filed in the Hartford land records and lists Sun Life as the owner of the property. By virtue of the board’s granting of the variance, Sun Life acquired a special interest in the subject matter of any appeal resulting from the proceeding that might deprive it of the benefit of the outcome before the board. See Fong v. Planning & Zoning Board of Appeals, supra, 212 Conn. 633-34. We conclude, therefore, that Sun Life was an indispensable party to the appeal from the board’s decision.
Having concluded that Sun Life was an indispensable party, we must determine whether this case should be
In the present case, Sun Life was an indispensable party to the appeal, and, similar to the applicant in Fong, its presence in the appeal was not statutorily mandated. Accordingly, we remand the case for a new trial of the appeal with the proper parties. As a result, we do not reach the merits of the appeal.
The judgment is reversed and the case is remanded so that the proper parties may be joined and for a new trial.
In this opinion the other judges concurred.
The prison association is a not-for-profit organization that provides residential, supportive and rehabilitative services to persons charged with or convicted of certain types of less serious criminal offenses. Approximately 90 percent of the prison association’s clients are Hartford residents. The prison association proposes to use the buildings both as a residence for some of its clients and as a center for educational, rehabilitative and vocational services.
Section 35-2 of the Hartford zoning code defines a rehabilitation home as “a dwelling housing a group of persons during a period in which such persons are being housed for periods of more than one (1) day in that dwelling for the primary purpose of undertaking aprogram of social rehabilitation or other similar program.”
In its brief submitted to the trial court, the prison association averred that, at the time of the application, Pinnacle Realty had an option to purchase the premises from the owner, that Pinnacle Realty had entered into lease negotiations with the prison association and that it had authorized the prison association to act on its behalf. No option agreement was ever offered into evidence nor was the relationship disclosed to the board prior to the granting of the variance.
The prison association states in its brief that Pinnacle Realty is the current owner of the property. If, in fact, Pinnacle Realty is the owner of the property, then it is an indispensable party to this appeal. It is well settled that a variance runs with the land and is not personal in nature. General Statutes § 8-6 (b) provides: “Any variance granted by a zoning board of appeals shall run with the land and shall not be personal in nature to the person who applied for and received the variance. A variance shall not be extinguished solely because of the transfer of title to the property or the invalidity of any condition attached to the variance that would affect the transfer of the property from the person who initially applied for and received the variance.” See Reid v. Zoning Board of Appeals, 235 Conn. 850, 858, 670 A.2d 1271 (1996).