Swiconek v. Zoning Board of Appeals

978 A.2d 1174, 51 Conn. Supp. 190, 2009 Conn. Super. LEXIS 816
CourtConnecticut Superior Court
DecidedMarch 20, 2009
DocketFile No. CV-08-4038134-S
StatusPublished
Cited by1 cases

This text of 978 A.2d 1174 (Swiconek v. Zoning Board of Appeals) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swiconek v. Zoning Board of Appeals, 978 A.2d 1174, 51 Conn. Supp. 190, 2009 Conn. Super. LEXIS 816 (Colo. Ct. App. 2009).

Opinion

HON. JOHN J. LANGENBACH, JUDGE TRIAL REFEREE.

On May 15,2008, the defendant Mill Street Realty II, LLC (applicant), filed an application with the defendant zoning board of appeals of the town of Glastonbury (board) seeking a variance from side yard restrictions on its property, which is located at 45 Mill Street in Glastonbury. Notice of the public hearing was published in the Glastonbury Citizen on May 22 and 29, 2008. Following a public hearing on June 2, 2008, the board granted the application, and notice of this decision was published in the Glastonbury Citizen on June 5, 2008.

The plaintiff, Fill R. Swiconek, commenced this timely appeal by service of process on the defendants on June 13, 2008. In the appeal, the plaintiff alleges that he is the trustee of the Marion E. Swiconek revocable trust, dated February 8, 2007 (trust), and that he resides at 27 Garland Drive in Glastonbury. He claims to be aggrieved by the board’s decision “in that he owns abutting property located at 65 Mill Street, Glastonbury, Connecticut.” The plaintiff alleges that the board “acted illegally, arbitrarily and in abuse of the discretion vested” in it because (1) the applicant did not demonstrate a legal hardship, (2) the board’s decision is unsustainable in view of the evidence before the board, (3) the board’s decision to grant the variance “is based upon such errors of law and fact as the record may reveal,” and (4) the board’s decision did not conform to the zoning regulations concerning variances, including the stated criteria for granting variances.

The defendants filed their answers on September 23 and 29, 2008, and the board filed the return of record [192]*192on October 17, 2008. The plaintiff filed a pretrial brief on December 9, 2008, and the defendants filed a joint brief on February 9,2009. The parties were heard before this court on February 18, 2009. Prior to the hearing, the plaintiff also filed a reply memorandum, which the court will consider for purposes of the present appeal.

“The standard of review on appeal from a zoning board’s decision to grant or deny a variance is well established.” Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205, 658 A.2d 559 (1995). The court must find “that the board’s act was not arbitrary, illegal or an abuse of discretion. . . . Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing. . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons. . . . The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs.” (Citations omitted; internal quotation marks omitted.) Id., 205-206.

“[Pleading and proof of aggrievement are prerequisites to a trial court’s jurisdiction over the subject matter of an administrative appeal. . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved. . . . Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.” (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399-400, 920 A.2d 1000 (2007).

“Two broad yet distinct categories of aggrievement exist, classical and statutory. . . . Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other [193]*193words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.” (Internal quotation marks omitted.) Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 156, 953 A. 2d 1 (2008).

General Statutes § 8-8 (a) (1) provides in relevant part: “ Aggrieved person’ means a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a . . . zoning board of appeals, ‘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.”

Although the defendants do not admit in their answer that the property held by the trust at 65 Mill Street abuts the applicant’s property at 45 Mill Street, the site plan submitted with the application shows that the properties are abutting. Therefore, 65 Mill Street falls within the zone of statutoiy aggrievement.

The defendants contend, however, that the plaintiff is not aggrieved because he is not the “owner” of 65 Mill Street for purposes of § 8-8 (a) (1). The defendants argue that (1) the plaintiff must prove that he is the trustee of a valid trust, (2) the plaintiff is not aggrieved because he has admitted that his mother, not the trust, owns the abutting property, and (3) that even if the trust is valid, the plaintiff is not aggrieved because the settlor of a revocable trust, not the trustee, is the owner of the trust property.

“The requisite elements of a valid and enforceable trust are: (1) a trustee, who holds the trust property and is subject to duties to deal with it for the benefit of one or more others; (2) one or more beneficiaries, [194]*194to whom and for whose benefit the trustee owes the duties with respect to the trust property; and (3) trust property, which is held by the trustee for the beneficiaries. 1 Restatement (Third), Trusts § 2, comment (f), p. 21 (2003) . . . .” (Citation omitted; internal quotation marks omitted.) Palozie v. Palozie, 283 Conn. 538, 545, 927 A.2d 903 (2007).

The plaintiff has submitted a copy of the Marion E. Swiconek revocable trust dated February 8, 2007. The introductory clause of the trust states that Marion E. Swiconek is the grantor and Fill R. Swiconek is the trustee. Article V lists the beneficiaries to the trust. Article I states that the grantor has conveyed property listed in the attached schedule A to the trust as well as “any other property that may be received or which has been received by the trustees . . . .” Schedule A lists assets, including a stamp collection and a coin collection. In addition, the plaintiff has submitted a certified copy of a quitclaim deed transferring the property at 65 Mill Street to “Fill Swiconek, trustee of the Marion E. Swiconek revocable trust dated February 8, 2007,” on April 13, 2007.

The trust is valid and enforceable because it identifies a trustee, beneficiaries and trust property held for the beneficiaries.

It is true that “the settlor may reserve extensive powers over the administration of a trust . . . and may reserve the right to modify or revoke the trust at will.” (Citation omitted; internal quotation marks omitted.) Palozie v. Palozie, supra, 283 Conn. 546. Yet “[t]heissue of intent as it relates to the interpretation of a trust instrument ... is to be determined by examination of the trust instrument itself and not by extrinsic evidence of actual intent . . . .” (Citation omitted; internal quotation marks omitted.) Id., 546-47.

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Douglas v. Planning & Zoning Commission
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Bluebook (online)
978 A.2d 1174, 51 Conn. Supp. 190, 2009 Conn. Super. LEXIS 816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swiconek-v-zoning-board-of-appeals-connsuperct-2009.