DocketNumber: No. CV 97-0407375 S
Citation Numbers: 2002 Conn. Super. Ct. 14377
Judges: ARNOLD, JUDGE.
Filed Date: 11/13/2002
Status: Non-Precedential
Modified Date: 7/5/2016
By way of complaint dated November 18, 1997, the plaintiff filed the present action alleging a taking under Article
The defendants East Haven contend that no genuine issue of material facts exist in that: (1) the plaintiffs claims are not ripe for judicial review; (2) the takings issue has been precluded by the actions of the zoning board; (3) the land in question retains some value, so no takings have occurred; (4) the plaintiff did not have a reasonable investment backed expectation thereby prohibiting a takings claim; (5) the zoning board lacked statutory authority to grant the variance because any hardship suffered by the plaintiff was self-created; (6) the Connecticut "practical confiscation" test for takings is the same as the Federal test for a takings claim, requiring the land to be without value; and (7) the Connecticut "balancing test" weighs in favor of the defendants.
A summary of prior legal procedures between the present parties involving the same real property is necessary in determining the present issues before the court.
The Estate of Savino Caponera owns a back lot located at 284 Short Beach Road in East Haven. (Mr. Caponera will be referred to as "Caponera," and his estate will be referred to as the "estate.") The lot, which has an area of six acres, is zoned for residential use but is CT Page 14378 undeveloped. The primary problem is the lot's frontage, or lack thereof, on Short Beach Road. The lot is separated from Short Beach Road by other property facing the road. When Caponera purchased the lot in 1972, he obtained a right of way on a driveway going through the adjoining land to Short Beach Road. The frontage of this right of way on Short Beach Road is 30 feet. The minimum lot frontage required by the East Haven Zoning Regulations is 80 feet. The minimum dimension of a square on the lot is also 80 feet pursuant to the East Haven Zoning Regulations, § 25.2.
The record establishes that two applications were made to the East Haven Zoning Board of Appeals ("ZBA") for variances prior to the application in question here. In 1986, Caponera proposed a four-lot subdivision and requested a variance of the 80 foot minimum lot frontage to 30 feet. He additionally requested a variance of the minimum square requirement. The ZBA denied this request on February 25, 1987.
In 1994, the estate applied to the ZBA for a variance of the minimum lot frontage to 30 feet. According to the estates complaint, filed in a subsequent judicial appeal, the 1994 application "thereby implicitly [requested] a variance as to square on lot if required." Estate ofCamponera v. Zoning Board of Appeals, No. 364166 (New Haven J.D.) (complaint dated August 4, 1994). This application was denied on July 21, 1994.
The estate appealed the denial of the 1994 application to the Superior Court. On November 17, 1995, the Court (Booth, J.) dismissed the action because it had been brought in the name of the estate rather than of the administrator. Estate of Caponera v. Zoning Board of Appeals of the Townof East Haven, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 940364166 (November 17, 1995) (Booth, J.),
Another application was filed on April 12, 1996. The variance requested was "Schedule B, 4 minimum lot, frontage 80 feet to 30 feet and Section
The estate, this time through its executor, filed a timely appeal to the superior court. A hearing was held on June 9, 1997. The appeal was dismissed, the court finding that there had been no material change in circumstances with regard to the plaintiffs property. In dismissing the plaintiffs appeal, Judge Blue stated as follows:
"In this case, the estate makes no claim that there has been a material change of external circumstances CT Page 14379 affecting the merits of its various applications filed since 1986. The question presented is whether the 1996 application now before the court was for a use that materially differed in nature and degree from either of its predecessors. Both the 1986 and the 1984 applications must be considered in this respect.
The record establishes that the 1986 application was considered in the context of a request for a four-lot subdivision. The 1996 application (like the 1994 application) makes no mention of such a subdivision. Rather, the 1996 application (again like the 1994 application) was considered in the context of a request to build a single family house on the subject property. The 1996 application was thus for a use that materially differed in nature and degree from the 1986 application and was not precluded by the denial of the 1986 application.
The 1994 application, however, presents no such distinguishing characteristic. Like the 1996 application, it requested a variance of the 80 foot minimum lot frontage to 30 feet. At argument, the estate suggested that the applications were dissimilar because the 1996 application expressly requested a variance of the minimum square requirement whereas the 1994 application did not. As already mentioned, however, the complaint in the 1994 appeal (signed by the very attorney representing the estate in the present appeal) I characterized the 1994 application as "implicitly [requesting] a variance as to square on lot, it required . . ." Under these circumstances, there is no basis for a finding that the 1996 application was for a use that materially differed in nature and degree from the 1994 application. Moreover, to the extent that the 1996 application did differ from the 1994 application in expressly requesting a variance of the minimum square requirement, this additional request merely serves to make the 1996 application more objectionable rather than less. See Pieretti v. Mayor,
Estate of Caponera v. Zoning Board of Appeals, Superior Court, judicial district of New Haven at New Haven, Docket No. 387959 (June 24, 1997) (Blue, J.),
"A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried."Wilson v. New Haven,
The plaintiff, either individually or through his estate, has repeatedly requested that the defendant zoning board of appeals, grant a variance lowering the 80 foot lot frontage requirement to 30 feet. This does not demonstrate, as the defendant argues, that the defendants will CT Page 14381 not allow any reasonable use of the plaintiffs property. It only shows that the defendants will not grant the requested variance.
The plaintiff has claimed that his property cannot be used for any reasonable or proper purpose and that the zoning regulations and the denial of the requested variance "destroys or nullifies its value in that the plaintiff cannot use the property for anything except to leave it in its natural state." A successful taking claim under the
In the present case, the plaintiff purchased the land knowing the zoning regulations and the limits placed on building a dwelling on the land. He knew he would require a variance. "The granting of a variance must be reserved for exceptional circumstances." Bloom v. Zoning Board ofAppeals,
The defendants were without authority to grant the requested variance because the plaintiff voluntarily assumed the hardship. Archambaelt v.Wadlow,
Accordingly, for the reasons set forth herein, the defendants' motion for summary judgment is hereby granted.
The Court
by ___________________
Arnold, J. CT Page 14384
Brecciaroli v. Commissioner of Environmental Protection , 168 Conn. 349 ( 1975 )
Lucas v. South Carolina Coastal Council , 112 S. Ct. 2886 ( 1992 )
Abel v. Zoning Board of Appeals , 172 Conn. 286 ( 1977 )
State National Bank v. Planning & Zoning Commission , 156 Conn. 99 ( 1968 )
Figarsky v. Historic District Commission , 171 Conn. 198 ( 1976 )
Samp Mortar Lake Co. v. Town Plan & Zoning Commission , 155 Conn. 310 ( 1967 )