Grillo v. Zoning Board of Appeals

537 A.2d 1030, 206 Conn. 362, 1988 Conn. LEXIS 107
CourtSupreme Court of Connecticut
DecidedFebruary 23, 1988
Docket13132
StatusPublished
Cited by221 cases

This text of 537 A.2d 1030 (Grillo v. Zoning Board of Appeals) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grillo v. Zoning Board of Appeals, 537 A.2d 1030, 206 Conn. 362, 1988 Conn. LEXIS 107 (Colo. 1988).

Opinions

Shea, J.

The plaintiff, Abele E. Grillo, has appealed from a judgment upholding the action of the defendant West Haven zoning board of appeals (board) in granting variances of minimum area and street frontage requirements of the West Haven zoning regulations for a lot owned by the defendant Jessica F. DeFrank so that it may be used for the construction of a one-family or two-family dwelling. Grillo claims that the trial court erred in concluding (1) that DeFrank’s application for a variance could be considered by the board on its merits when no change in conditions or new considerations had intervened since the board had granted an earlier application concerning the same lot subject to the condition that the property “shall not be treated as an approved building lot,” and (2) that there was sufficient evidence of hardship to support the grant of a variance. We find error on the second ground and remand the case with direction to sustain the appeal.

There is no substantial dispute about the facts. In 1946, DeFrank acquired two contiguous rectangular lots, each having a frontage of forty feet on the north [364]*364side of Blohm Street in West Haven, a depth of approximately 134 feet, and an area of approximately 5360 square feet. A house was situated wholly within the easterly lot and the remaining lot was used as a side yard for the house. A survey dated May 9,1957, about ten years before the zoning regulations became effective, shows the entire property as two separate adjoining lots. The assessment records for West Haven indicate that the vacant lot has always been assessed separately from the lot on which the house is situated.

Zoning regulations became effective in West Haven on February 2, 1967. Section 23-3.1 of these regulations established 6000 square feet as the minimum area and § 23-3.3 established fifty feet as the minimum frontage for a building lot in a R3-2 zone, in which the DeFrank property was situated. Each of the lots owned by DeFrank lacked 640 square feet of the area and ten feet of the frontage required for a building lot by these regulations. Section 23-5.1 of the regulations, however, contains “special provisions for existing small lots” that permit a residence to be built upon a lot with less than the prescribed minimum area and frontage if that lot “was owned separately and individually from all other adjoining tracts of land on the effective date” of the zoning ordinance, provided the lot area and frontage equal the average for all lots in the same block.1

On August 12,1982, DeFrank applied for a “special exception” for the vacant lot in order “to sell lot which [365]*365is less than now required 50 feet frontage and 6000 square feet area.” The application referred to § 23-5.1, “special provisions for existing small lots,” as the section of the zoning regulations involved and specified, as the hardship claimed, “all lots on street [are] same dimensions or less.” The board, however, as its minutes indicate, treated the application as seeking a variance of § 23-5.1 “to sell a lot which is less than the required 50 feet frontage and 6000 square feet.” In granting a variance on September 15,1982, the board imposed the condition that “the property shall not be treated as an approved building lot.” As its reason for granting the variance, the board expressed its view “that the applicant suffered from unnecessary hardship and practical difficulties and that the variance requested would have no adverse effect upon neighboring property owners.”

This 1982 application was made in relation to discussions between DeFrank and the plaintiff, who owned property adjoining the west side of the vacant lot, about his proposed purchase of the lot for approximately $8000. No such sale, however, was ever consummated. Instead DeFrank applied to the board expressly seeking a variance of § 23-3.1, the minimum lot area requirement, and of § 23-3.3, the minimum frontage requirement. The only hardship claimed in this application was that all other lots on the street were undersized. The board granted this application on May 18, 1983. The plaintiff appealed this action of the board and his appeal was ultimately sustained by the Appellate Court. Grillo v. Zoning Board of Appeals, 4 Conn. App. 205, 493 A.2d 275 (1985). The Appellate Court concluded that the minutes of the hearing before the board contained no evidence to support the claim that the lot was valueless if it could not be used as a building lot. Id., 208-209.

On August 20, 1985, DeFrank filed another application with the board in which she sought a variance of [366]*366§§ 23-3.1 and 23-3.3. This application made no reference to § 23-5.1, the small lot provision, nor did it mention the “variance” that had been granted in 1982 regarding that provision. As the purpose of the requested variance, the application stated the need for relief from the lot area and frontage requirements because of the status of the lot as an individual building lot prior to zoning “so that the property may become an accepted building lot.” DeFrank claimed hardship because the lot had existed as a “single piece” prior to zoning, had been taxed as such, and would be greatly decreased in value unless it could be used as a building lot. At the public hearing DeFrank presented evidence of financial hardship in that the value of the lot, if available for construction of a two-family house, a permitted use within the zone, would be approximately $26,000 as compared with its market value of $5000 on the assessment records. There was also evidence that the plaintiff had offered about $8000 for the lot in 1982 and was still interested in purchasing the lot. The board granted the application, stating only that “hardship was shown.”

In his appeal from the granting of the 1985 application, the plaintiff raised both issues pursued before us, the absence of any circumstances justifying removal of the restriction against building imposed when the board granted the 1982 variance and the lack of sufficient evidence of hardship. The trial court held that the action of the board in imposing a building prohibition when the 1982 application was granted did not bar the 1985 application, even without proof of changed circumstances, because each application sought different relief and in the 1982 application, DeFrank “was in effect asking the board to grant a right which she already had.” The court also concluded that hardship had been shown because the zoning regulations deprived DeFrank of the ability to build on the vacant lot, as [367]*367she could have done before their enactment, and that “the board could have found that because DeFrank could make no reasonable use of the lot, its market value was minimal,” being of use only “to enhance the enjoyment of adjacent lots.”

I

We agree with the trial court that the restriction against building imposed by the board in granting a variance in 1982, after DeFrank had applied for a “special exception” in respect to § 23-5.1 for the purpose of selling her undersized vacant lot, did not bar consideration of her most recent application for a variance on its merits, as the plaintiff claims. “Ordinarily, an administrative agency cannot reverse a prior decision unless there has been a change of conditions or other considerations have intervened which materially affect the merits of the matter decided.” Malmstrom v. Zoning Board of Appeals, 152 Conn.

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Bluebook (online)
537 A.2d 1030, 206 Conn. 362, 1988 Conn. LEXIS 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grillo-v-zoning-board-of-appeals-conn-1988.