186 Conn. 32 | Conn. | 1982
The defendants Robert Vadas and Donald Vadas have appealed from a judgment of the Superior Court overruling a decision of the Norwalk zoning board of appeals granting a variance of a lot width requirement to the defendants.
The defendants are beneficiaries of the estate of Nellie J. Hodges. For many years, the decedent owned a certain parcel of land known as No. 8 Camp Street in Norwalk upon which her one family house was located. This property, when acquired by Nellie J. Hodges and her husband James H. Hodges, was described in the deed as having a frontage on Camp Street of “one hundred feet more or less.” The property is located in a C-Residence zone which allows one and two family houses to be constructed on lots with a minimum width at the street frontage of fifty feet.
Following the death' of Nellie J. Hodges, the executrix of her estate, Maysie Aussenhofer, hired a licensed surveyor, Dennis Deilus, to survey the
The house and lot located at No. 8 Camp Street were subsequently sold to the plaintiffs Robert and Betsy Turner by warranty deed which referred to the Deilus subdivision map then filed in the Norwalk land records. On September 8, 1977, the executrix sold the vacant lot No. 6%, also by warranty deed which referred to the Deilus map, to Anthony Romano who later conveyed a one-half interest to his partner, Nicholas Spagnuolo. This parcel is the subject of the present litigation. The new owners, Romano and Spagnuolo, hired their own surveyors to survey the property in preparation for the commencement of construction on the vacant lot. These surveyors based their survey on the prior Deilus
Between September 12-14, 1977, and after Russo had informed the surveyor hired by Romano and Spagnuolo of the possible boundary line error, the vacant lot at No. 6% was cleared and, after excavation, the concrete slab was poured and the blocks for foundation walls were erected. Since the foundation was placed approximately two feet inside what Russo claimed was her property line, she obtained an injunction prohibiting further work on No. 6% Camp Street. It was eventually determined that Russo’s survey was correct and that the Deilus survey was in error. This error left the lot at No. 6^ Camp Street with frontage of 46.40 feet and a width of 48.84 feet at the point 70 feet from the front line of the property, thereby resulting in a violation of the minimum frontage and side yard setback requirements.
On December 30, 1977, Romano and Spagnuolo applied to the Norwalk zoning board of appeals
On April 14, 1978, Romano and Spagnuolo again applied to the zoning board of appeals but only for a variance of the minimum lot width requirement, having subsequently decided to move the location of the structure to avoid the necessity of obtaining a side yard setback variance. This second application also differed from their first application in that a variance for only a single family house was sought in the second application. The applicants justified this second request for a variance on the grounds that “the surveyor for the Estate of Nellie Hodges created the error, and the parcel is now unbuildable unless the variance is granted.” The board voted on a motion to deny the application on June 15, 1978. Two members voted in favor of this resolution and three voted against it. No other action was taken on this second application.
In the meantime, Maysie Aussenhofer, the executrix of the estate of Nellie J. Hodges, was sued in a
The plaintiffs are property owners adjacent to or located within one hundred feet of the subject property. See General Statutes § 8-8. They appealed the decision of the zoning board of appeals to the Superior Court alleging that the defendant zoning board of appeals acted illegally in reversing its
The defendants have-basically set forth five claims of error. They argue: (1) that all of the necessary prerequisites for a variance were established; (2) that denial of the variance would amount to a confiscation of the property; (3) that the 2 to 3 vote to deny the second application was not a valid denial which would invoke the “material change in circumstances” test for successive applications; (4) that a 1977 amendment to General Statutes § 8-6 changes prior case law; and (5) that the trial court abused its discretion in substituting its judgment for that of the zoning board of appeals. Our resolution of the first of these issues is dispositive of this appeal.
The defendants’ first claim is that the trial court erred in overruling the zoning board’s decision because all of the prerequisites for the granting of a variance were satisfied. Specifically, the defendants claim that the trial court erred in finding that the defendant zoning board of appeals acted illegally in granting the variance where the only hardship shown was self-created and consisted solely of financial loss to the defendants Robert and Donald Vadas. “A local zoning board has the power to grant a variance under General Statutes § 8-6 (3) where two basic conditions are satisfied: ‘(1) the
In Smith v. Zoning Board of Appeals, supra, we stated that “[i]t is well settled that the hardship must be different in kind from that generally affecting properties in the same zoning district, and must arise from circumstances or conditions beyond the control of the property owner.” Id., 327. “Where the hardship involved ‘arises as the result of a voluntary act by one other than the one whom the variance will benefit, the board may, in the sound exercise of its liberal discretion, grant the variance.’ Belknap v. Zoning Board of Appeals, 155 Conn. 380, 384, 232 A.2d 922 (1967). Where the claimed hardship arises from the applicant’s voluntary act, however, a zoning board lacks the power to grant a variance. Abel v. Zoning Board of Appeals, 172 Conn. 286, 289, 374 A.2d 227 (1977); Booe v. Zoning Board of Appeals, 151 Conn. 681, 683, 202 A.2d 245 (1964); Spalding v. Board of Zoning Appeals, 144 Conn. 719, 722, 137 A.2d 755 (1957); Devaney v. Board of Zoning Appeals, 132 Conn. 537, 544, 45 A.2d 828 (1946). The hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance; Booe v. Zoning Board of Appeals, supra; cf. Devaney v.
The defendants claim that the self-created hardship rule does not apply here because, first, the hardship was caused by the surveyor, Deilus, and not the estate and, second, even if the surveyor’s mistake were imputed to the estate, it should not be further imputed to them as beneficiaries of the estate. The defendants interpret the self-created hardship rule as applying only to the deliberate conduct or voluntary purchase of the subject property by the owner. In support of this claim, they point out that neither the executrix nor the defend
The fact that the surveyor, Deilus, and not the defendants or the executrix committed the error which resulted in the hardship is not critical. In Highland Park, Inc. v. Zoning Board of Appeals, supra, an error was made by a surveyor or foundation contractor, employed by the plaintiff corporation,
At the time of Deilus’ actions, the defendants were the legal owners of the subject property. “On the death of an owner, title to real estate at once passes to his heirs, subject to being defeated should it be necessary for the administration of the estate that it be sold by order of the court, and subject to the right of the administrator to have ‘possession, care and control’ of it during the settlement of the estate, unless the probate court shall otherwise
The hardship in this case arose as the result of voluntary acts on behalf of one whom the variance would benefit and, therefore, was self-created. See Highland Park, Inc. v. Zoning Board of Appeals, supra; Deer-Glen Estates v. Board of Adjustment & Appeal, 39 N.J. Super. 380, 121 A.2d 26 (App. Div. 1956).
The defendants claim that this result is unfair because they had no knowledge of the errors in the Deilus survey and because the hardship arose from circumstances beyond their control. However, as between the defendants, on the one hand, who held legal title to the property, and the executrix, who hired the errant surveyor and conveyed the property away, and, on the other hand, the city of Nor-walk, the zoning regulations of which have been violated, the burden must fall on the former two parties. “Personal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance.” Garibaldi v. Zoning Board of Appeals, supra, 239-40. “It is not the function or responsibility of the board of appeals to seek ways to extricate [the applicant] from his self-created difficulties.” 3 Yokley, Zoning Law and Practice (4th Ed.) § 21-5.
Since we find that any hardship was self-created, the zoning board was without power to grant a variance under any circumstances. Kulak v. Zoning Board of Appeals, supra, 482; Booe v. Zoning Board of Appeals, supra, 683. Therefore, we need not address the defendants’ remaining claims of error.
There is no error.
In this opinion the other judges concurred.
Building Zone Regulations of the City of Norwalk, Conn., § 118.100, “Minimum Size of Plot, Width.” (Am. 1979)
The total amount of frontage does not materially differ from the description in the deed by which Nellie J. Hodges and her husband acquired title which stated the frontage measurements as “one hundred feet more or less.”
In order to subdivide the property into two lots, it was necessary to acquire an initial variance from the Norwalk zoning board of appeals because the existing dwelling house was within the minimum side yard setback distance of six feet from the newly drawn property line. This variance was granted on July 7, 1977. Zoning Board of Appeals Case No. 77-0707-01. The disposition of this variance is not at issue here.
Zoning Board of Appeals Case No. 78-0119-01. The vote was 4-1 in favor of denial.
Zoning Board of Appeals Case No. 78-0504-04. Our disposition of this appeal does not require that we reach the issue raised by the 2 to 3 vote on the resolution to deny the application. General Statutes § 8-7 requires the concurring vote of four members of a zoning board of appeals to grant a variance.
Although the Vadas brief indicates that “the executrix of the [Hodges] estate was sued in a rescission action and required to reacquire the lot,” the application filed August 14, 1979, and whieh is the subject of this appeal lists Romano and Spagnuolo as the “owner [s]” and Robert Vadas and Donald Vadas as the “applicant^].” That application also indicates that after the rescission action was brought, the applicants (Vadas) filed a cross complaint against the surveyor Deilus and that in connection with the lawsuit the applicants “had repaid substantially all of the purchase price back to Romano and Spagnuolo, who still remain the legal owners of the property, subject to the final resolution of the lawsuit.”
Robert and Donald Vadas had previously applied for a similar variance on June 1, 1979, but this application was withdrawn after repeated postponements of the hearing.
The individual plaintiff-appellant in Highland Park was the principal stockholder, director, president and chief executive officer of the corporate appellant, Highland Park, Inc. See Highland Park, Inc. v. Zoning Board of Appeals, 155 Conn. 40, 42, 229 A.2d 356 (1967); see also Records & Briefs A-467, p. 117.
In Deer-Glen Estates v. Board of Adjustment Appeal, 39 N.J. Super. 380, 121 A.2d 26 (App. Div. 1956), the court affirmed the rejection by the zoning board of appeals of the owner-applicant’s petition for a variance which claimed that the owner’s architect made a mistake in laying out the building on the premises which was practically completed at the time the variance was sought. The court found that the hardship complained of was “self-imposed” or
The defendants have stated that the executrix and, ultimately, the defendants themselves should not be forced to bear the consequences of the independent contractor’s mistake. In faet, it appears from the record that neither any party nor the trial court ever mentioned or raised this issue at trial. We have repeatedly stated that we will not consider claims of error unless there has been compliance with § 3063 of the Practice Book. Burritt Mutual Savings Bank of New Britain v. Tucker, 183 Conn. 369, 377, 439 A.2d 396 (1981); Capozzi v. Luciano, 174 Conn. 170, 173-74, 384 A.2d 359 (1978).
We note, however, that even if it were established that Deilus was an independent contractor for certain purposes, it would not preclude a finding that he was also an agent or employee of the executrix for other purposes arising out of the same relationship. See 41 Am. Jur. 2d, Independent Contractors §§ 2, 18; 19 A.L.R. 270, § 20; Restatement (Second), Ageney § 2 (3).
We have considered this latter act alone as sufficient justification for denying a variance application. See Booe v. Zoning Board of Appeals, 151 Conn. 681, 202 A.2d 245 (1964).
Even if we assume, for these purposes only, that the executrix was a “predecessor” of the defendants, under Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 429 A.2d 883 (1980), we would reach the same conclusion that the defendants are barred from a variance by .the self-created hardship rule. Since it cannot be denied .that the exeeutrix voluntarily hired the surveyor, she would be barred from obtaining a variance; see Highland Park, Inc. v. Zoning Board of Appeals, 155 Conn. 40, 229 A.2d 356 (1967). If a predecessor would be barred from obtaining a variance by his voluntary acts, then his successor would face a similar situation given the same set of circumstances. See Johnny Cake, Inc. v.