2005 Ct. Sup. 5750
No. CV 02-039 13 88 SConnecticut Superior Court Judicial District of Fairfield at Bridgeport
March 31, 2005
MEMORANDUM OF DECISION
RICHARDS, JUDGE.
The plaintiff, Imre Pleszko, appeals from a decision of the defendant, the zoning board of appeals of the town of Fairfield. The zoning board of appeals granted a variance application submitted by the defendants, Lynn and Charles Tuozzoli.
I BACKGROUND
By application filed January 17, 2002, the defendants, Charles and Lynn Tuozzoli, sought, in pertinent part, a variance from § 28.10 and § 28.11 of the Fairfield zoning regulations “to allow continued use of previously established partially on street/partially off street parking spaces. (Return of Record [ROR], Exbibits 4, 5, Schedule A.) These regulations govern off-street parking in Fairfield. (ROR, Exh. 14.) The property is located in a designed commercial district. (ROR, Exh. 4.) The Tuozzolis sought the variance to preserve the use of four parking spaces utilized by patrons of their business, “Hair.” (ROR, Exh. 5, Schedule B.) The zoning board of appeals granted the variance on March 7, 2002, following a public hearing on the matter. (ROR, Exh. 10.)
The plaintiff, Imre Pleszko, the owner of real property located at 3-30 Pleszko Place, Fairfield, Connecticut, appeals from the ZBA’s decision, alleging that his property abuts the property owned by Lynn Tuozzoli, located at 39 South Pine Creek Road, Fairfield, Connecticut, the property that is the subject of this appeal. (Appeal, ¶¶ 1, 2.) He alleges that, in a prior appeal, the Superior Court determined that a parking lot, constructed and maintained by the Tuozzolis, was subject to § 28.10 and § 28.11 of the zoning regulations of Fairfield. (Appeal, ¶ 3.)[1]
CT Page 5751 Pleszko asserts that the Tuozzolis’ parking lot violates both of these sections. (Appeal, ¶ 4.)
II JURISDICTION
General Statutes § 8-8 regulates an appeal from a zoning board of appeals to the Superior Court. The parties must comply strictly with any provision governing a statutory right of appeal.
Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
A Aggrievement
General Statutes § 8-8(a)(1) provides, in part, that ” `aggrieved person’ includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.”
A plaintiff must both plead and prove aggrievement. Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). Pleszko alleges that his property abuts the property of Lynn Tuozzoli, the subject of the decision appealed from; (Appeal, ¶ 2); and he has submitted a deed; (Plaintiff’s Exh. A); from which the court made a finding of aggrievement.
B Timeliness and Service of Process
General Statutes § 8-8(b) provides that “[an] appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes.” General Statutes § 8-8(f)(1) further provides that “[f]or any appeal taken before October 1, 2004, process shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality.” CT Page 5752
Pleszko alleges that the ZBA’s decision was published on March 13, 2002; (Appeal ¶ 8); both the ZBA (Answer, ¶ 8); and the Tuozzolis; (Answer, ¶ 8); admit this date in their respective answers. The marshal’s return attests that the appeal was commenced by service of process on the Fairfield town clerk the chairman of the ZBA and upon the Tuozzolis on March 18, 2002. Therefore, it is submitted that the proper parties were served in a timely fashion.
III SCOPE OF REVIEW
In reviewing the actions of an administrative agency, a court must not “substitute its judgment for that of the agency or to make factual determinations on its own.” (Internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). If the agency has stated “reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission’s decision.” (Internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 420. Conversely, “[w]here a zoning board of appeals does not formally state the reasons for its decision . . . the trial court must search the record for a basis for the board’s decision.” (Internal quotation marks omitted.) Municipal Funding LLC v. Zoning Board of Appeals, 270 Conn. 447, 454, 853 A.2d 511
(2004). In the present appeal, the board failed to state its reasons on the record, therefore, the court will search the record for a basis for the ZBA’s approval of the Tuozzolis’ variance application.
IV DISCUSSION
Pleszko alleges that the Tuozzolis constructed and maintained a parking lot that the Superior Court ultimately determined was subject to Fairfield zoning regulations § 28.10 and § 28.11. He claims that this parking lot violates Fairfield’s parking regulations and that the Tuozzolis applied for a variance from these regulations which, ultimately, was granted by the ZBA. Pleszko alleges that the ZBA acted arbitrarily, illegally and in abuse of its discretion in granting the variance because the CT Page 5753 Tuozzolis suffer no unusual hardship from complying with Fairfield’s parking regulations § 28.10 and § 28.11, any hardship experienced by the Tuozzolis is self-created, and the variance substantially affects the comprehensive zoning plan.
In his memorandum of support, Pleszko explains that, in October of 1997, he complained to the zoning enforcement officer that a paved parking lot, maintained by the Tuozzolis, half on and half off of their property, violated the zoning regulations. The ZEO determined that the parking was on-street, rather than off-street parking and was not subject to the zoning regulations. Pleszko appealed the decision to the ZBA, which upheld the ZEO, and he further appealed that decision to the Superior Court.[2]
The court held that the off-street parking regulations applied to the Tuozzolis’ parking lot, and ordered the ZBA to apply such regulations to that lot. Pleszko claims that the ZEO ordered the Tuozzolis to remove the blacktop and install a streetside curb to prevent the Tuozzolis’ customers from using the lot. Subsequently, the Tuozzolis filed an appeal from that decision, as well as a variance application which the ZBA granted.
Pleszko argues that the Tuozzolis have failed to demonstrate a hardship. He notes that one of the Tuozzolis’ stated hardships was that a 1997 approval of a site plan required for a minor expansion of their business showed the existence of the subject parking lot. Pleszko argues that such a hardship is not sustainable because the parking lot existed illegally prior to the site plan approval. He further argues that the Tuozzolis second stated hardship, that the creation, and/or widening of Pleszko Place impacted their ability to create a legal off-street parking lot in its present location, is not maintainable either. He observes that there is nothing in the record that demonstrates that the town changed the boundaries of Pleszko Place. Finally, Pleszko contends that the variance substantially impacts the town’s comprehensive zoning plan.
The Tuozzolis counter that they have operated a beauty salon, “Hair,” at its present location since 1969 and that this use included a provision for four parking spaces, established partially on the property and partially in the street right-of-way.[3] They claim that these spaces have been utilized by their customers continuously throughout the period of operation of the business. With respect to the comprehensive zoning plan, they maintain that the ZBA concluded that the loss of the parking spaces served no constructive purpose, would CT Page 5754 result in unnecessary inconvenience to the salon’s patrons, and would lead to further congestion in the area’s public streets. The Tuozzolis further argue that the ZBA reasonably concluded that continued utilization of the spaces would benefit public safety because, if eliminated, it would add to additional on-street parking in the area.
With respect to hardship, the Tuozzolis argue that they were required to submit survey plans in 1997, pursuant to alterations and expansion of the business structure located on the property, and that these survey plans contained the existing location of the four parking spaces at issue. Prior to the site plan review, the ZBA had granted several variances connected with the expansion of the structure and these approvals were granted based upon the submitted survey plans. They conclude that the 1997 variance approvals constitute a basis upon which the ZBA could have made its 2002 determination that hardship existed for the variances at issue in this appeal. In addition, they observe that the ZBA was aware that the location of the town’s right-of-way along Pleszko Place and the previous widening of Pleszko Place created a unique circumstance vis-a-vis the Tuozzolis’ property and the contested parking spaces, factors existing beyond their control.
“A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town.” Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559
(1995). “It is well established, however, that the granting of a variance must be reserved for unusual or exceptional circumstances.” Id., 206-07. “An applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone . . . Accordingly, [the Supreme Court has] interpreted General Statutes . . . § 8-6 to authorize a zoning board of appeals to grant a variance only when two basic requirements are satisfied: (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.) Id., 207.
A variance cannot be granted to allow a use which is not otherwise permitted in the municipality. Bradley v. Zoning Board CT Page 5755 of Appeals, 165 Conn. 389, 395-96, 334 A.2d 914 (1973). “It should not be used to accomplish what is, in effect, a substantial change in the uses permitted in a specified zone.”Dooley v. Town Plan Zoning Commission, 151 Conn. 304, 313, 197 A.2d 770 (1964).
The record reveals that the Tuozzolis sought a variance from § 28.10 and § 28.11 to allow continued use of four parking spaces utilized by patrons of their hair salon. (ROR, Ext. 5, Schedule B.) The parking lot is comprised of four spaces, in which cars park in a perpendicular manner in relation to Pleszko Place. (Supp. ROR: Photographs.) The spaces are located partially on the Tuozzolis’ property, and located partially in the right-of-way of the town. (ROR, Ext. 5, Schedule B; ROR, Exh. 12, p. 3.) With respect to the impact on the comprehensive zoning plan, the application states that the continued use of the parking spaces benefits public safety because, if eliminated, it would cause increased street parking. (ROR, Exh. 5, Schedule B.) The application further provides that the hardship is two-fold: “the spaces in question have previously been reviewed and authorized as part of a Planning and Zoning site plan review conducted in 1997. Furthermore, the location of the town right of way, established many years ago at the time that Pleszko Place was created and widened causes a unique circumstance with regard to the property beyond the control of the applicants which justifies a finding of hardship with regard to the matter.” (ROR, Exh. 5, Schedule B.)
The verbatim transcript of the March 7, 2002 public hearing reveals that the Tuozzolis’ attorney represented that Charles Tuozzoli had operated the salon since 1969, and that the parking spaces had existed in their present configuration since that time. (ROR, Ext. 12, p. 2.) He observed that there had been no other complaints about the spaces, and that a review of police department records over the past thirty-three years revealed no traffic or pedestrian accidents related to the spaces. (ROR, Exh. 12, p. 4.) He further observed that the continued use of the spaces would beneficially impact the comprehensive zoning plan, and he reiterated the nature of the two-fold hardship. Prior to the close of the public hearing, a town resident spoke in favor of the variance application on behalf of her family. (ROR, Ext. 12, pp. 13-14.) She, herself, had never observed any safety issues concerning the parking spaces, and she believed that “taking away those four spaces would be detrimental to that area, because what you’re doing is, you’re not forcing the employees, CT Page 5756 you’re forcing the customers to park on the street.” (ROR, Exh. 12, p. 15.)
The record also contains a zoning map, dated December 28, 2001, which shows the four parking spaces. (ROR, Exh. 7.)
Section 28.10, entitled “Construction,” provides that “All off-street parking . . . shall be suitably improved, graded, striped and marked, stabilized and maintained so as to cause no nuisance or danger from dust or from storm water flow onto any public street or adjacent property. Except for necessary driveway entrances and except for parking spaces provided in connection with a dwelling or leased room in a dwelling, all off-street parking . . . shall maintain a minimum setback of tenoften (10) feet from any street line. The minimum setback area for parking and loading shall be suitably landscaped and permanently maintained for no other purpose. The Commission may adjust the aforesaid requirement to particular circumstances of lot lines, topography, soil conditions and site design while preserving the purpose and intent of these parking regulations.” (ROR, Exh, 14.)
Section 28.11, entitled “Design Standards,” further provides that “Except for parking spaces provided in connection with a dwelling for one (1) or two (2) families, and leased rooms in a dwelling, each parking space shall be provided with adequate area for approach, turning and exiting of an automobile having an overall length of eighteen (18) feet without need to use any part of a public street or right of way. Points of entrance and exit for driveways onto the street shall be located so as to minimize hazards to pedestrian and vehicular traffic in the street.” (ROR, Ext. 14.)
“A comprehensive plan has been defined as a general plan to control and direct the use and development of property in a municipality or a large part thereof by dividing it into districts according to the present and potential use of the properties . . . The requirement of a comprehensive plan is generally satisfied when the zoning authority acts with the intention of promoting the best interests of the entire community.” (Citation omitted; internal quotation marks omitted.)Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 551, 600 A.2d 757 (1991).
Here, the hair salon is a permitted use in the designed CT Page 5757 commercial district. (ROR, Exh. 14, § 12.4.24.) The purpose of a designed commercial district “is to provide for retail uses as well as business and professional offices.” (ROR, Ext. 14, § 12.4.) The record reveals that the variance granted by the ZBA is consistent with the commercial character of Fairfield’s designed commercial district. The address in question is a multi-story commercial building containing four parking spaces located in a perpendicular angle in relation to the street. (Supp. ROR: Photographs.) The spaces are partially on-site and partially off-site; (ROR, Exh. 12, p. 3); and the record reveals that the ZBA could have determined that the present parking situation would lessen vehicular congestion in the area; (ROR, Exh. 12, pp. 4, 13, 14-15); and would not, therefore, substantially impact the comprehensive zoning plan.
Concerning the hardship issue, the concept that grounds for the variance must arise from circumstances beyond the applicant’s control is related to the concept that variances cannot be granted for a self-created hardship. “The self-created hardship rule provides that [w]here the applicant . . . creates a nonconformity, the board lacks power to grant a variance.” (Internal quotation marks omitted.) Osborne v. Zoning Board of Appeals, 41 Conn.App. 351, 354, 675 A.2d 917 (1996). In th Osborne case, a surveyor had staked the property owner’s sideline at a point which resulted in a setback less than the required footage. The property owner sought a variance, which was granted. On appeal, the trial court concluded that the property owner had hired the surveyor whose error had created the illegality, therefore, the property owner’s hardship was self-created. The Appellate Court, however, determined that the property owner’s architect, rather than the property owner, had hired the surveyor. The Appellate Court determined that “in the absence of any evidence that the surveyor was other than an independent contractor in control of his own means and methods of work, except as to the result of his work . . . the trial court incorrectly found that the hardship was self-created . . .” (Citation omitted; internal quotation marks omitted.) Id.,
354-55. Similarly, a court will refuse to find self-created hardship when the hardship arises from an improperly granted building permit. In Gallagher v. Wallingford, Superior Court, judicial district of New Haven, Docket No. CV 95 0378775 (January 17, 1997, Munro, J.) (18 Conn. L. Rptr. 544), a property owner had constructed a garage within the sideyard setback based upon a town-issued building permit. The property owner sought a variance, claiming that the issuance of the building permit CT Page 5758 caused the unusual hardship. The zoning board of appeals granted the variance, and abutting landowners appealed. The trial court agreed with the ZBA, observing that “the [ZBA] could reasonably have found that the Wallingford building official who granted the permit for the garage was no agent of the property owner . . . but was operating [independently] of her, indeed, on behalf of the [t]own.” Id.
In the present appeal, the Tuozzolis claim hardship due to the creation and widening of Pleszko Place and because the parking spaces had been authorized as part of a 1997 site review. (ROR, Exh. 5, Schedule B.) As a threshold matter, the court finds that the existing record is devoid of evidence concerning the creation or widening of Pleszko Place, or of any relationship between the configuration of Pleszko Place and a hardship.
With respect to the 1997 site review approval, the court notes that the Tuozzolis’ attorney represented that the parking spaces existed at the site from 1969. (ROR, Ext. 12, p. 2.) Therefore, unlike the facts in the Osborne and Gallagher cases, the illegality did not arise from an act performed by a non-agent of the property owner; the illegality existed long before. Therefore, even if the court were willing to deem this a hardship, it would find that such hardship was self-created.
For the foregoing reasons, the court sustains Pleszko’s appeal.
RICHARDS, J.
CT Page 5759