65 Conn. App. 628 | Conn. App. Ct. | 2001
Opinion
The plaintiff appeals from the judgment of the trial court denying his appeal from the decision by the defendant zoning board of appeals of the city of Norwich (board), which granted the application by the
The following undisputed facts and procedural histoiy are relevant to our resolution of the plaintiffs appeal. Brenneisen purchased property at 45 Church Street in Norwich. That property was conveyed to Brenneisen by quitclaim deed dated September 4, 1998. The property is in a neighborhood that is principally devoted to residential use. The Norwich zoning regulations do not permit manufacturing within that zone.
On September 14, 1998, Brenneisen applied to the board for a variance from § 9.4.1 (A) (l)
The plaintiff, the record owner of property across the street from Brenneisen’s property, appealed to the Superior Court from the board’s decision. The plaintiff argued that the board acted illegally, arbitrarily and in abuse of its discretion because it approved Brenneisen’s variance application without enforcing the requirement
At the outset, we note our standard of review. “It is well settled that courts are not to substitute then-judgment for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . .” (Internal quotation marks omitted.) Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 547, 684 A.2d 735 (1996). “Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or
The controlling issue on appeal is whether the court properly concluded that the board’s decision to grant Brenneisen’s application for a variance on the basis of hardship was not arbitrary, illegal or an abuse of discretion. The plaintiff argues that the boar d abused its discretion in granting Brenneisen a variance because an applicant’s voluntary assumption of hardship cannot constitute grounds for a variance. We agree.
We begin our analysis with a review of the law pertaining to variances. “It is well established . . . that the granting of a variance must be reserved for unusual or exceptional circumstances.” Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206-207, 658 A.2d 559 (1995). Accordingly, § 8-6 (a) (3) authorizes a zoning board to grant a variance only when two conditions are met: “(1) the variance must be shown not to affect substantially the comprehensive zoning plan; and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.” (Internal quotation marks omitted.) Mandanici v. Zoning Board of Appeals, 50 Conn. App. 308, 311, 717 A.2d 287, cert, denied, 247 Conn. 935, 719 A.2d 1174 (1998).
Further, the “hardship must arise from . . . circumstances or conditions beyond the applicant’s control.”
One specific type of voluntarily assumed hardship is embodied in what has been termed “the purchase with knowledge rule.” R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 9.4, p. 190. Under that rule, if a purchaser acquires property with knowledge of the applicable zoning regulations
In the present case, by virtue of the zoning regulations in effect, Brenneisen was charged with notice of the
We conclude that the court improperly determined that the decision of the board was supported by evidence in the record because the board did not have authority in the first instance to grant a variance due to hardship that Brenneisen had voluntarily assumed. Given our resolution of this claim, we need not address the plaintiffs remaining claim.
The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs appeal.
In this opinion the other judges concurred.
The parties do not dispute that manufacturing is not permitted in the zone where the Church Street property is located. The return of record reflects that the following uses are permitted in that zone: Apartment house, warehouse, storage, sales office and museum.
General Statutes § 8-6 (a) provides in relevant part: “The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter; (2) to hear and decide all matters including special exceptions and special exemptions under section 8-2g upon which it is required to pass by the specific terms of the zoning bylaw, ordinance or regulation; and (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. ...”
A purchaser of real property is charged with knowledge of the zoning regulations that apply to that property. M & L Homes, Inc. v. Zoning & Planning Commission, 187 Conn. 232, 244-45, 445 A.2d 591 (1982); B.I.B. Associates v. Zoning Board of Appeals, 163 Conn. 615, 616-17, 316 A.2d 414 (1972).