178 MOUNTAIN ROAD, LLC ET AL. v. SUFFIELD ZONING BOARD OF APPEALS.

2005 Ct. Sup. 13940-z, 40 CLR 145
No. CV 04 0835157 SConnecticut Superior Court Judicial District of Hartford at Hartford
October 13, 2005

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
ROBERT E. BEACH, JUDGE.

The plaintiff 178 Mountain Road, LLC, and its sole member, plaintiff Enrique Alvarez, appeal from actions of the defendant Zoning Board of Appeals (“board”) of the town of Suffield. The plaintiffs have sought for several years without success to obtain permission to place a sign in a position inconsistent with zoning regulations. This appeal is from final decisions of the board denying an appeal from a cease and desist order issued by the town’s zoning enforcement officer and denying an application for a variance.

The plaintiff Alvarez is a financial planner. He bought the premises at 178 Mountain Road in Suffield in 2002. He encountered a difficult situation regarding placement of a free-standing sign easily visible from the road. Although free-standing signs were generally permissible in the zone, they were, and are, subject to a setback line twenty feet from the street line and the “street line” is defined in the regulations as, for our purposes, the right-of-way line rather than the pavement line. See § 3.49 of the Suffield Zoning Regulations. The setback requirement was enacted in 1982. The setback would have presented no special difficulty had the state of Connecticut not condemned land for a highway right-of-way in 1936. The right-of-way line resulting from the taking extended to within five feet of the front of the plaintiff’s building. A sign complying with the setback requirement would be placed some fifteen feet behind the front of the plaintiff’s building.

In any event, the plaintiff’s requested variances in January, April and September of 2003, all of which were denied for reasons, including lack of hardship and questions regarding the leasing arrangement with the state. After negotiating for a lease with the state, the plaintiffs placed a sign within the right-of-way. The zoning enforcement officer ordered the sign removed in approximately February 2004. The resulting appeal from that action of the zoning enforcement officer and another application for a variance were the subjects of a public hearing in April CT Page 13940-aa 2004, and deliberations were continued until May 2004. The board denied the plaintiffs’ requests for relief. The plaintiffs have appealed to this court from those denials. The facts will be discussed in greater detail in the contexts of the specific claims of the parties.

I. Aggrievement.
The board claims that the plaintiff[1] is not aggrieved by the decisions of the board because, as a tenant of the state, it lacks classical and statutory standing. The board also filed a motion to dismiss the appeal prior to the hearing on the merits, and this court postponed decision on the motion to dismiss pending the introduction of evidence at the hearing on the merits. The gravamen of the board’s position is that: (1) the subject matter of the dispute is the placement of the sign; (2) the plaintiffs wish to place the sign within the state’s right-of-way, at a location which has been leased from the state; and (3) the lease, though for a five-year term with options to renew, is also terminable by either side on thirty days’ notice. The specific property in question, then, is essentially a tenancy at will which, according to authority advanced by the board, is insufficient to create an interest sufficient to support standing. The plaintiffs counter the board’s position by suggesting that: (1) the state’s property interest in the land is an easement rather than a fee interest and the plaintiffs own the fee of the land where the sign is sought to be located; they are, therefore, “owners” for the purpose of standing; (2) the plaintiffs are, at a minimum, statutorily aggrieved because they own, in its entirety, abutting land and are within one hundred feet of the property in question; and (3) they are classically aggrieved because of their interest in the subject matter and the fact that it was, after all, their sign which was the subject of the cease and desist order.

I hold that the plaintiffs are both statutorily and classically aggrieved for the purpose of this appeal. Pursuant to § 8-8(a)(1) of the General Statutes, an “aggrieved person” is not only one classically aggrieved by a decision of the board of appeals, but also includes any person owning abutting land or land within a radius of one hundred feet. The board has not contested the evidence in support of statutory aggrievement.

I also find classical aggrievement. The test has been stated many times. For example:

First, the party claiming aggrievement must demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished CT Page 13940-ab from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must establish that this specific, personal and legal interest has been specially and injuriously affected by the decision.

Hall v. Planning Commission, 181 Conn. 442, 444 (1980).

The board suggests that because the land on which the sign is currently placed[2] is leased from the state, the plaintiffs’ interest is not sufficient. The board refers to Primerica v. Planning Zoning Commission, 211 Conn. 85 (1989) for the proposition that a tenant at will does not have standing. Although there indeed is mention of tenancy at will in Primerica, the context was distinguishing an out-of-state case, in which tenancy at will was held not to be sufficient to confer standing, from the facts of Primerica in which the tenancy was sufficient. The analysis in Primerica is instructive: the court stated the standard test for classic standing, and then stated:

The question of aggrievement is one of fact to be determined by the trial court on appeal . . . This court has not set forth a precise standard that defines the required interest a nonowner must possess in order to become an aggrieved party under 8-8 and 8-9. Rather, we have held that the extent to which a party with an interest in the property other than that of an owner is aggrieved depends upon the circumstances of each case, because the concept of standing is a practical and functional one designed to ensure that only those parties with a substantial and legitimate interest can appeal an order.

Id., 93.

In the case then under consideration, our Supreme Court stated that lessees can be aggrieved in circumstances in which they have a substantial interest at stake, and that Primerica in the circumstances of that case had such an interest. In the case at hand, I find that the combination of circumstances compels the conclusion that the plaintiffs have such a substantial interest. First, the sign is theirs. Second, although the leasehold may technically be terminable at will, the lease contains a five-year term with options for renewal. As a practical CT Page 13940-ac matter, the state is not likely to terminate the lease unless it broadens the highway, and no evidence was presented one way or another on that question. Third, and perhaps most critically, the interest in the sign is derived directly from the reasonable use of the adjoining property, owned by the plaintiffs. Fourth, and perhaps least importantly, the plaintiffs probably own the land “underneath” the state’s easement. See, e.g. Alemany v. Commissioner of Transportation. 215 Conn. 437, 441-42 (1990). The owner of property subject to a highway easement ordinarily is entitled to use the property in any way not inconsistent with the easement. Id. All of the factors compel the conclusion that the plaintiffs have a substantial and legitimate interest greater than that of the general public and satisfy the tests for classical aggrievement.[3]

II. Hardship.
The board considered evidence during the public hearing of April 27, 2004, and additionally considered materials forming portions of the record on appeal. The essential evidence as to hardship is that the 1936 highway taking had the effect of advancing the “street line” to within five feet of the front of the plaintiffs’ building, and the 1982 zoning regulations required signs, if any, to be placed at least twenty feet from the street line.[4] The plaintiffs, then, cannot place any free-standing sign that complies with regulations. The plaintiffs presented evidence to the effect that there are a number of other signs in the immediate area which are in violation of the zoning requirements. Some are within the street line.[5] There was testimony by Alvarez that some clients had trouble finding the premises when there was no sign, and a letter from a client was submitted to the board, which letter stated that the client drove by the building when it did not have a sign and had to turn around. Several business people in the area wrote letters saying that they had no objection to the sign, which by all accounts is tasteful.

The deliberations, which took place on April 27 at p. 79 et seq. of the transcript and on May 25, 2004, show that the members of the board wrestled with the hardship issue. Many ideas and opinions were expressed. Members stated their recollections as to what the law required, and many of the recollections were quite accurate. Ultimately the members voted 3-2 to deny the variance, on the ground of “lack of hardship.” Several members had suggested that a sign could be placed on the building itself. While recognizing that such an arrangement would probably not be as useful to the owner as a free-standing sign, it would provide some benefit and would be in compliance with the regulations. While troubled by the evidence that many signs in the neighborhood were not in compliance with the regulations, there was a suggestion that many CT Page 13940-ad of the signs were grandfathered and, though some variances had been granted, each variance would have to stand on its own.

The criteria for the granting of a variance are statutory. Section 8-6(a)(3) of the General Statutes provides that a zoning board of appeals has the power:

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 . . .

The black letter law echoes that statutory requirement. Generally, a variance may be granted if literal enforcement of a regulation causes exceptional difficulty or hardship because of some unusual characteristics of the property and if the comprehensive zoning plan would not be substantially and adversely affected. See, e.g., Giarrantano v. Zoning Board of Appeals, 60 Conn.App. 446, 453-54 (2000).

Critical to the review of a decision of a zoning board of appeals is the scope of review. The court is not permitted to substitute its opinion, should it differ, for that of the board. Rather, the action is reviewed only to determine whether the board’s actions were unreasonable, arbitrary or illegal. The court is to review the record to determine whether there is factual support for the board’s decision; it doesn’t matter whether there also might be factual support for another conclusion. E.g., Giarrantano supra, 451-52.

Although there was evidence to support many of the elements of a qualifying hardship,[6] I find that there is evidence to support the board’s ultimate determination that there was not a hardship sufficient to compel a variance. Statutory and case law refers to exceptional
difficulty or unusual hardship. The inability to place a free-standing sign is undoubtedly an inconvenience and, in the circumstances here, understandably a source of frustration. It does not foreclose a reasonable use of the property, though, and some ability to place signage CT Page 13940-ae exists. This court cannot in conscience hold that the action of the board was taken without an evidentiary basis or that its exercise of discretion was contrary to law. In the circumstances presented, I find that the board’s determination of lack of actionable hardship may not be overturned by the court.

III. Discrimination.
The plaintiffs claim that the decision of the board should be overturned because of improper discrimination by reason of ethnic heritage, in that Mr. Alvarez is Hispanic[7] and there are not many people of Hispanic heritage in Suffield. It of course would be highly improper to take any zoning action on the basis of an applicant’s ethnic or cultural background, and proof of such motivation ought to void such a decision. The plaintiffs’ argument is essentially that his was the only sign subject to a cease and desist order by the zoning enforcement officer and he was the only Hispanic.

The parties did not suggest a specific framework for analyzing the problem. It seems appropriate to me to adopt the procedure typically used in discrimination cases. A three-step process is used. First, it is the plaintiff’s burden to establish a prima facie case of discrimination. This burden is not great. If a prima facie case is established, the burden shifts to the defendant to provide a neutral reason for whatever action was taken. This burden likewise is not a high one. If both initial burdens are met, the plaintiff then has the burden to establish that the impermissible reason more likely motivated the decision or that the reason suggested by the defendant was merely pretextual. See, e.g., Ford v. Blue Cross Blue Shield of Connecticut, Inc., 216 Conn. 40, 53-54
(1990).

The circumstantial evidence presented by the plaintiffs supports a prima facie case of discrimination, and the defendant likewise has satisfied its initial burden of showing nondiscriminatory reasons for the denial of the application for the variance. The issue for resolution is whether the plaintiffs have sustained their burden of showing that the discriminatory reason was still a motivating factor or that the stated reasons were pretextual.

I have examined the record and carefully considered the evidence presented at the hearing of this case in this court. There was no direct evidence of discriminatory intent; for that matter, I could find no mention whatever of anything to do with Alvarez’ ethnicity and no “code words,” at least with which I might be familiar. Ms. Rago was asked on the witness stand about any discrimination, and I found her to be CT Page 13940-af forthright and sincere. Mr. Presser similarly testified sincerely and, to my mind, honestly. Perhaps more persuasively, the deliberations covered scores of transcript pages. Unless the members were accomplished actors, they were legitimately grappling with a difficult case. The photographs of the signs were reviewed, as were the maps and diagrams presented. In sum, I am persuaded that the decision was one reached not without difficulty by a group of well-intentioned volunteers. Though Alvarez’ apprehensions are understandable and the court has some sympathy with his position as well, I find that the decision was not motivated by discriminatory intent nor was the stated reason, lack of hardship, pretextual.

IV. Estoppel
The plaintiffs claim that several statements of municipal officials led Alvarez to believe that the town authorities had no jurisdiction within the boundaries of the land “taken” by the state in 1936, and that he relied on those statements in placing the sign. He points to comments of the chairman of the Planning Zoning Commission, the town attorney and various members of the board, as well as a comment of the town’s economic development director published in a newspaper. These remarks, with varying degrees of certainty and varying specificity regarding the plaintiffs’ property, are claimed to estop the town from enforcing its zoning regulations in the area of the state’s easement.

Municipal estoppel is difficult to prove. The elements are stated i Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 247-48
(1995) and most recently in Cortese v. Planning Zoning Board of Appeals, 274 Conn. 411, 418-19 (2005). For a court to find municipal estoppel, the plaintiff must establish that:

(1) an authorized agent of the municipality had done or said something calculated or intended to induce the party to believe that certain facts existed and to act on that belief; (2) the party had exercised due diligence to ascertain the truth and not only lacked knowledge of the true state of things, but also had no convenient means of acquiring that knowledge; (3) the party had changed its position in reliance on those facts; and (4) the party would be subjected to a substantial loss if the municipality were permitted to negate the acts of its agents.

CT Page 13940-ag

Cortese, supra, 418.

The application of the doctrine is further qualified, however, in the case of municipal zoning:

In municipal zoning cases, however, estoppel may be invoked (1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations . . . Moreover, it is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge . . .

Cortese, supra.

I have reviewed the evidence submitted and I do not find proved several of the necessary elements. I do not find that statements were calculated or intended to induce the plaintiffs to act, among other elements, nor do I find special circumstances making enforcement of the regulations highly inequitable or oppressive, nor do I find a substantial loss. Compare the factual situations in Cortese, supra, and in Dornfried v. October Twenty-Four, Inc., 230 Conn. 622 (1994). Here, the loss, if any, arising from reliance on statements by the various officials would presumably be the cost of the sign and the “rent” paid to the state. I understand the rent to be twenty-five dollars per month. Even if reliance were induced in an intentional manner, which, as stated above, I do not find, enforcement of the zoning regulation has not resulted in a substantial loss as defined by the case law and the result is not highly oppressive.

IV. Miscellaneous Grounds
I shall consider under one section the grounds which relate to the integrity of the proceedings. The plaintiff’s claim that the board, and board member Chris Rago in particular, was biased and had predetermined the outcome. They rely on several statements in the transcripts and on a letter to the board, apparently written by a member of the audience at the public CT Page 13940-ah hearing or deliberations, which complained about the demeanor of a board member. Ms. Rago also testified at the hearing in this court, as did Mr. Alvarez and his wife.

I find no credible evidence supporting the contention that Ms. Rago was impermissibly biased and had prejudged the application. During the deliberation stage, she was surely an advocate for the position that there was no hardship, but members are supposed to have opinions. Se Cioffoletti v. Planning Zoning Commission, 209 Conn. 544, 553-56 (1989). The question is whether members had made up their minds prior to the hearing, and voted accordingly, “regardless of any arguments that may have been advanced at the hearing.” Cioffoletti, supra, 555. I cannot find such a hard and fast predetermination here. Indeed, at one point in the deliberations Ms. Rago agreed that she had been persuaded on an issue. See transcript of May 25, 2004, at 16. Ms. Rago may have expressed some impatience, but I found nothing rising to the level of conduct proscribed by cases such a Cioffoletti. It should also be noted in this context that the application in issue was apparently the fourth that had been submitted by the plaintiffs, so the underlying facts were not entirely new.

The plaintiffs claim that the town attorney had advocated a certain result at the April meeting, and that such advocacy exceeded the proper role of the town attorney. The attorney agreed that he had overstepped his bounds, and submitted a letter to the board asking them to disregard any of his comments. At the beginning of deliberations the letter was read and the board agreed to put his comments aside. Although the argument may be made that it is hard to “unring” a bell, the record does show that the deliberations were thorough and not without disagreement; indeed, two members voted to grant the requested variance. There was never another mention of the town attorney’s prior statements. If juries can disregard evidence, then surely commission members can avoid undue influence through recognition of the problem. There is nothing in the record to suggest that the members did anything other than properly to perform their designated roles. CT Page 13940-ai

The plaintiffs further advance a somewhat vague argument to the effect that the decision was arbitrary and unfair, and constituted a denial of equal protection. As to this contention, the plaintiffs suggest that because Alvarez is Hispanic and his reportedly was the only sign to be the subject of a cease and desist order, then the decision must have been made on the basis of ethnic background. This contention has been addressed above, insofar as the issue of improper ethnic discrimination is concerned. I simply do not find proved the suggestion that Alvarez’ membership in any class, suspect or not, motivated the decision of the board. The equal protection aspect is that the zoning enforcement officer did not take action against signs other than Alvarez’ sign and that the only logical basis for the distinction could have been his ethnicity. It is of course true, however, that the noncompliance of others does not constitute a defense for one’s own noncompliance, nor, necessarily, does the granting of variances to others in similar situations. See, e.g. Haines v. Zoning Board of Appeals, 26 Conn.App. 187
(1991).

It is also true that a difference in treatment by a governmental entity cannot permissibly be entirely arbitrary or intentional; see Village of Willowbrook v. Olech, 528 U.S. 562 (2000); see also Bianco v. Darien, 157 Conn. 548, 559-60 (1969); even if there is no discrimination because of membership in a suspect class. Here, however, I do not find that the decision was entirely arbitrary, because the sign quite clearly violated zoning regulations, nor, for reasons stated above, was there intentionally different treatment. There was some indication that several of the signs which were in place existed prior to the 1982 regulation or replaced pre-existing signs. And, perhaps most persuasively, during deliberations, Mr. Presser expressed the difficulty of a member in a situation where some signs undoubtedly were out of compliance. He worried that he did not know the history of the other signs, and he suggested that disparity in treatment was troubling. This did not mean, however, that the board could not enforce regulations. Perhaps the zoning enforcement officer should take action against other signs not in compliance. See transcript of May 25, 2004, p. 17, 20. CT Page 13940-aj In any event, I do not find the decision to be arbitrary or impermissibly discriminatory.

Finally, the plaintiffs did not brief, in the post-trial papers, the claim that the town did not have jurisdiction in the state right-of-way to enforce zoning regulations. It would appear to be quite clear, moreover, that the lease with the state required compliance with town zoning regulations, and that §13a-80d[8] of the General Statutes forecloses the argument.

Both appeals are dismissed.

[1] Except where the context otherwise requires, “plaintiff” will refer interchangeably to 178 Mountain Road, LLC or to Mr. Alvarez.
[2] It was reported in the hearing of the appeal that the sign has been permitted to remain in place pending this appeal.
[3] Standing as to the cease and desist order also appears to be self-evident in that the plaintiff owned the sign which was the subject of the order.
[4] The plaintiffs suggest, though quite clearly quasi-facetiously, that the placement of the sign technically satisfies the regulation because the sign apparently is more than twenty feet from the street line. The only problem is that the sign is between the street and the street line rather than between the street line and the building. The regulation states that the sign must be at least 20 feet “back of” the street line. I do not take seriously this proposed construction of the regulation, nor, I suspect, do the plaintiffs.
[5] An additional aspect is shown by the highway maps submitted into evidence by the plaintiffs. The taking line, created by the 1936 activity, is not always parallel to the pavement. The resulting street line is farther from the pavement in the area of the plaintiffs’ lot than it is in the case of most of the other nearby properties (approximately fifty feet). Thus it would be difficult to create signage beyond the street line, let CT Page 13940-ak alone beyond the setback line. The materials show that the January 2003, application sought to place a sign approximately on the street line, and that application narrowly missed approval.
[6] I do not find, for example, that the condition claimed to be a hardship was self-created, as urged by the board. Although the property was bought presumably with knowledge of the difficulty in placing a sign, the condition was not created by the act of either the plaintiffs or their predecessors in interest. The condition was created by the 1936 highway taking and the 1982 zoning regulation, and thus was beyond the control of the owner. Smith v. Zoning Board of Appeals, 174 Conn. 323, 328 (1978). An owner can purchase the property with knowledge of the difficulty and still be eligible to seek a variance, so long as neither (s)he nor a predecessor created the hardship. Kulak v. Zoning Board of Appeals, 184 Conn. 479, 482 (1981).
[7] Alvarez was born in Cuba and emigrated to this country as a youth.
[8] “The use of any space on, over or below any state highway right-of-way leased by the Commissioner of Transportation to a lessee shall conform with zoning regulations and ordinances of the local government in which the land is located or as modified by a variance pursuant to legal process.”

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