225 Conn. 691 | Conn. | 1993
The principal issue in these appeals is whether a zoning board of appeals must decide an applicant’s appeal from the decision of a zoning enforcement officer denying a building permit before it can act on the applicant’s request for a variance. These appeals arise from a decision of the defendant New Britain zoning board of appeals (board) granting the defendant West Main Street Associates (West Main) a variance from certain parking space requirements. The plaintiffs
West Main is the owner of a building located at 667-677 West Main Street in New Britain. At all times relevant to these appeals, the building was leased in part to an entertainment center called The Sting and a cafe called Molly Malone’s Pub. In July, 1990, West Main agreed to lease the remaining space in its building to the American Totalisator Company for use as an off-track betting (OTB) parlor.
In October, 1990, West Main applied for a permit to establish an OTB parlor. The plaintiff Norman F. Wnuk, zoning enforcement officer for the city of New Britain, determined that the off-street parking available at West Main’s building would be insufficient under §§ 240-10 and 240-30
On April 15,1991, West Main submitted an application to the board. The application stated that West Main was both appealing Wnuk’s decision not to issue a budding permit and seeking a variance from § 240-10-20.
The plaintiffs appealed from the granting of the variance to the Superior Court. They contended that the variance should be overturned because it was not justified by any unusual hardship. Because the board did
On appeal to this court, the plaintiffs make two principal arguments for overturning the variance: (1) the board’s failure to decide West Main’s appeal before granting a variance violated General Statutes § 8-6a; and (2) neither the alleged arbitrariness of the zoning officer’s decision, nor the purported uncertainty of the ordinances, constituted the undue hardship necessary to support a variance. Because we find these issues dis-positive, we do not consider the plaintiffs’ other arguments.
Local zoning boards are vested with a liberal discretion. Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269, 588 A.2d 1372 (1991). A trial court must, however, review the
General Statutes § 8-6a provides: “Whenever an application to a zoning board of appeals for the grant of a variance is joined with an appeal from 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, the board shall first decide the issues presented by such appeal.” (Emphasis added.) The language of the statute mandates that where an applicant seeks both to appeal an order and to obtain a variance, the appeal must be decided before a variance may be granted. See Miniter v. Zoning Board of Appeals, 20 Conn. App. 302, 309, 566 A.2d 997 (1989) (“it was the board’s duty, pursuant to General Statutes § 8-6a, to review and decide the plaintiffs’ appeal before acting on the application for a variance”).
West Main concedes that it appealed Wnuk’s decision to the board, and it is clear from the record that the board never issued a decision on the appeal. The board, therefore, acted in violation of § 8-6a, and the trial court incorrectly upheld the variance instead of remanding the case to the board to resolve the appeal from Wnuk’s decision first.
Our resolution of this issue disposes of the appeal. Because it is an issue that could arise on remand, however, we deem it appropriate to address the plaintiffs’ claim that neither the alleged arbitrariness of Wnuk’s decision nor the arguable uncertainty of the parking ordinances can properly support a grant of variance in this case. We agree with the plaintiffs.
The arbitrariness of a zoning enforcement officer’s decision is an inappropriate basis for a finding of undue
The trial court also found that it was the “lack of specificity in the zoning regulations” together with Wnuk’s arbitrariness in calculating the parking space requirements that formed the basis for the board’s finding of undue hardship. Thus, we will also consider
The defendants claim that §§ 240-10 and 240-30 of the New Britain zoning ordinances are impermissibly uncertain and cause undue hardship because they provide insufficient guidance on how to classify uses like The Sting or an OTB parlor. The only authority they cite for the proposition that the uncertainty of a zoning ordinance is a proper basis for a finding of undue hardship is Leveille v. Zoning Board of Appeals, 145 Conn. 468, 144 A.2d 45 (1958).
In Leveille, a 1950 zone change created a commercial zone of unascertainable depth within a residential zone. The uncertainty of the depth of the commercial zone made it impossible to determine how it applied to two parcels of property. Id., 470. The property owners sought either a change of zone or a clarification of the zoning boundaries established by the 1950 zone change. After these requests were denied, they sought and obtained a variance that allowed them to use their properties commercially. Id., 471,473. In upholding the zoning board’s grant of the variance, this court held that the undue hardship was “[t]he uncertainty as to what portions of the properties . . . were placed in a commercial zone in 1950 [which] practically destroyed their salability by rendering the title of each property unmarketable.” Id., 472.
Leveille is a unique case in our zoning jurisprudence and must be limited to its specific facts. The regulation at issue in Leveille was so vague that it was not even susceptible to interpretation.
Leveille must be placed in the category of cases holding that extreme financial hardship can support a grant of variance. See, e.g., Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 365 A.2d 387 (1976) (undue hardship may exist where strict application of a regulation would be tantamount to confiscation of the applicant’s property).
In this opinion the other justices concurred.
There are five plaintiffs in these consolidated appeals. Norman F. Wnuk, the common council of the city of New Britain, and the building commission of the city of N ew Britain are the plaintiffs in the first appeal (Docket No. 14482). Two abutting landowners, The Stanley Works and American Savings Bank, are the plaintiffs in the second appeal (Docket No. 14484). These two groups of plaintiffs appealed separately to the Superior Court.
The trial court consolidated the two appeals and issued a joint memorandum of decision dismissing them both.
General Statutes § 8-8 (o) provides in relevant part: “There shall be no right to further review except to the appellate court by certification for review . . . .”
Subsection 20 of § 240-10 of the New Britain zoning ordinances (1966), as amended, provides that if there are multiple uses on a property, then the off-street parking space requirements for that property ‘ ‘shall bo determined by establishing the requirements for each component use from the schedule of such requirements which is a part of this Section, and adding them together.” Section 240-30 provides the schedule of off-street parking space requirements for a number of specific nonresidential uses. Subsection 40 of § 240-10 provides that if a use is not specifically listed in the schedule, then “the requirement shall be the same as for the most similar listed use.”
Wnuk classified both The Sting (800 person capacity) and Molly Malone’s Pub (80 seats) as a restaurant or club, which must provide one space per four permanent seats or the floor area equivalent. He classified the OTB parlor as an auditorium, theater “or other place of public assembly not otherwise classified,” which must provide one space for each eight permanent seats or the floor area equivalent. New Britain Zoning Ordinances § 240-30 (1966), as amended. Since the OTB parlor had not yet been constructed, Wnuk
General Statutes § 8-6 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 . . . 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 . . . .”
Specifically, we do not reach the plaintiffs’ claims that West Main did not exhaust its administrative remedies, and that the trial court improperly heard additional testimony and substituted its own reasons for those of the defendant zoning board of appeals. The plaintiffs also argue that the trial court improperly allowed West Main to raise the alleged arbitrariness of Wnuk’s actions and the purported uncertainty of the ordinances as special defenses to the appeal below. In light of our holding that neither the alleged arbitrariness of Wnuk’s actions nor the purported uncertainty of the ordinances could constitute undue hardship, these special defenses were legally insufficient.
Furthermore, the legislature has determined that an appeal is the proper mechanism for challenging the decision of a zoning enforcement officer. General Statutes § 8-6 provides that a zoning board of appeals shall “hear and decide appeals where it is alleged that there is an error in any . . . decision made by the official charged with the enforcement of . . . any bylaw, ordinance or regulation . . . .” (Emphasis added.) We would undermine this statutory framework if we allowed the arbitrariness of a decision to serve as a basis for the finding of undue hardship needed to support a variance.
West Main does not claim that the ordinances are unconstitutionally vague. See, e.g., Barberino Realty & Development Corporation v. Planning & Zoning Commission, 222 Conn. 607, 618-20, 610 A.2d 1205 (1992).
The regulation changed the zoning of “ ‘the property fronting on both sides of West Main Street’ ” from residential to commercial. It, however,
In addition, for a hardship to justify the granting of a variance, it “must be different in kind from that affecting generally properties in the same zoning district . . . .” (Internal quotation marks omitted.) B.I.B. Associates v. Zoning Board of Appeals, 163 Conn. 615, 616, 316 A.2d 414 (1972). Even if it is assumed that the uncertainty of an ordinance could cause a hardship, a variance would ordinarily be inappropriate because an identical claim could be made by any property owner who sought approval for a use that was not specifically addressed by the ordinance. For example, any property owner who wanted to establish an off-track betting parlor but did not have sufficient on-site parking could claim hardship based on the uncertainty of § 240-10-20 of the New Britain zoning ordinances (1966), as amended. The hardship would not be unique to the owner’s property, however, and therefore could not support a grant of variance. See Ward v. Zoning Board of Appeals, 153 Conn. 141, 145, 215 A.2d 104 (1965) (variance inappropriate where “the rationale behind the granting of a variance for one piece of property would apply in like manner to the surrounding properties”).