Connecticut Supreme Court Decides Two Important Zoning Issues
May 23, 2013
The Connecticut Supreme Court recently decided two cases that resolved a pair of thorny zoning issues. Coincidentally, both cases involved decks and variances, but the issues raised in each case were quite different.
In the first case, Anatra v. Zoning Board of Appeals of the Town of Madison, 307 Conn. 728 (2013), the Supreme Court ruled that the conditions attached to the granting of a variance do not need to be explicitly described in the certificates filed in the land records in accordance with Conn. Gen. Stat. § 8-3d. The ruling reversed an Appellate Court decision to the contrary.
The plaintiff landowners in the Anatra case had sought side-yard and coverage variances to demolish a one-story beachfront cottage and replace it with a much larger, two-story house. Because the premises were located within the coastal zone, the plaintiffs also needed coastal site plan approval. The zoning board of appeals had denied the plaintiffs’ first variance application based on concerns that the proposed new house would be too massive to be compatible with nearby properties. However, several months later, the plaintiffs filed a second variance application with modified building plans. The board approved the second application.
In both applications, the plaintiffs had represented that the "residential use will remain the same without expanding footprint of building." In addition, the plaintiffs and/or their attorney, as their agent, signed each application form directly below an acknowledgment that the applicants had "read and understand" the following statement: "THE PLANS SUBMITTED WITH THE BUILDING APPLICATION MUST BE THE SAME AS THOSE SUBMITTED AND APPROVED WITH YOUR VARIANCE APPLICATION." At the public hearing on the second application, the plaintiffs’ architect displayed a model of the proposed building and represented that the house "will not change from the model, although there may be a change in the windows." Neither the application nor the model included a deck extending beyond the footprint of the house.
The board’s certificate of variance stated:
NATURE OF VARIANCE GRANTED: To allow 10.9% area coverage, 35.1 ft. front yard and 10.5 ft. side yard variances to permit existing structure to be replaced in the same location within 50 ft. of the critical coastal resources as presented at the hearing and as shown on the plans and the survey submitted. The Coastal Site Plan Review was approved with the following conditions: 1) that all construction be in conformance with the construction standards put forth by FEMA [the Federal Emergency Management Agency]; and 2) that the proposed harvesting and replanting of beach grass be scheduled for early spring to ensure the shortest period of plant storage and the best possible conditions for the re-establishment of the beach grass; careful watering of the replanted grass through the first growing season (typically from early spring through October) is recommended to aid its successful re-establishment within the disturbed area.’’
The plaintiffs subsequently built the house as shown on the approved plans. However, several years later, they sought to add a deck. Although, in the absence of the variances, the deck would have conformed to the zoning regulations, the zoning enforcement officer concluded that it would violate the condition of approval restricting the size of the house to what was shown on the plans approved by the board. The plaintiffs appealed that decision to the board, but the board upheld the zoning officer’s decision. On further appeal, the trial court upheld the board’s decision. However, the Appellate Court ruled that, because the § 8-3d certificates served an important public-notice purpose, the town should be precluded from enforcing any conditions that were not explicitly stated. They also concluded that the language in the notice was not specific enough to indicate that the landowner would be restricted to the home layout shown on the plans approved by the board.
The Supreme Court disagreed. It stated, "Among the reasons for reviewing the public record is that a variance application and accompanying materials, the testimony at the hearing, and the comments of board members as revealed in the minutes and hearing transcripts provide more comprehensive information than the language in a certificate of variance regarding the changes being sought and the nature of the limitations and conditions imposed by a board." Id. at 745. The Court also referred to a variety of prior decisions in which it had held that notices required, by state law, to be filed or published need not be detailed. Rather, such notices generally need to contain only such information as is necessary to allow the reader to be aware of the basic circumstances and, in the exercise of due diligence, to gather additional information by review of other available records. The Court then held that the condition limiting the plaintiffs to the layout of the home as shown on the approved plans was sufficiently clear from a review of the entire record.
The Anatra decision represents an important victory for town land use agencies, which often make decisions in reliance on an applicant’s representations. The decision also protects the public interest because Conn. Gen. Stat. § 8-3d does not specify a time within which a variance certificate must be filed, nor does it require any notice to the public when it is filed. Therefore, if the Appellate Court’s ruling had been upheld, a badly drafted § 8-3d certificate could undo all of the protections afforded by an agency’s public hearing process, and neither the agency nor the public would have had any recourse.
The Supreme Court’s second deck decision came in the case of Tine v. Zoning Board of Appeals of the Town of Lebanon, 308 Conn. 300 (2013). The case involved the meaning of the word "building" in Conn. Gen. Stat. § 8-13a, which provides, "When a building is so situated on a lot that it violates a zoning regulation of a municipality which prescribes the location of such a building in relation to the boundaries of the lot or when a building is situated on a lot that violates a zoning regulation of a municipality which prescribes the minimum area of the lot, and when such building has been so situated for three years without the institution of an action to enforce such regulation, such building shall be deemed a nonconforming building in relation to such boundaries or to the area of such lot, as the case may be." The Court held that an open, unroofed deck was not a "building" and, therefore, did not qualify for the statute’s protection.
The plaintiffs in the case had obtained a variance to build a home closer to a lake than the zoning regulations would allow. However, after constructing the home, they added a deck even closer to the lake, without seeking or obtaining a new variance or additional building permits and without notifying town officials. The zoning officer did not learn that the deck had been constructed until four years later, when the plaintiffs sought a certificate of occupancy. The zoning officer issued a cease-and-desist order, which the plaintiffs appealed to the zoning board of appeals on the grounds that the deck had existed for more than three years without the commencement of an enforcement action by the town. The board denied the appeal, but the trial court, on further appeal, held that the statute protected the deck, even though the town had never been properly notified that it was being constructed. The Supreme Court reversed, holding that the deck was not a building.
Unfortunately, because it did not need to go further, the Court declined to consider what was certainly the more important issue in the case: whether the statutory three-year period begins upon completion of a building, even when the building has been surreptitiously constructed, without notification to town officials and without the landowner seeking or obtaining necessary building permits. As to that issue, the Court stated, "This is not to say that, even if the deck was deemed a building and therefore fell under the purview of the statute, the cease and desist order would have necessarily been untimely. Whether the order would have been timely depends on whether the statute of limitations begins running upon construction of the offending building or when the town receives notice of the violation. As we stated in footnote 7 of this opinion, we need not resolve this issue in the present case." Id. at 307, fn. 8.
The impact of the Tine case may be especially short-lived. On May 20, the Governor signed Public Act 13-9, which amends Conn. Gen. Stat. § 8-13a to extend "grandfathering" protection to structures, as well as buildings. Interestingly, the new public act allows municipalities to define the term "structure" in different ways, meaning that the scope of the statute’s protection could vary from town to town.
Attorney Michael Zizka of Murtha Cullina represented the zoning boards of appeal in both cases. Further questions about the cases may be directed to Mike at 860-240-6144 or firstname.lastname@example.org.