E & F ASSOCIATES, LLC v. ZONING BOARD OF APPEALS OF THE TOWN OF FAIRFIELD et al., SC 19325

Judicial District of Fairfield at Bridgeport

 

      Zoning; Whether Zoning Board Properly Approved Variances Allowing the Vertical Extension of a Nonconforming Building Within a Regulated Setback Area; Whether Decision Illegal Because Applicant’s Attorney was a Nonvoting Ex-Officio Member of the Zoning Board.  The defendant applicant owns a single story brick building in Fairfield that was constructed prior to the adoption of the town’s zoning regulations and is nonconforming as to the applicable setback requirements.  In 2012, the applicant applied for variances as to the zoning regulations that govern street and rear setbacks.  The variances were sought in anticipation of the construction of a second floor that was to be part of a boutique restaurant.  The variances were required because the zoning regulations treat any vertical extension of a building within a setback area as an expansion of an existing nonconformity.  The zoning board approved the variances, and the plaintiff, which owns property that abuts the applicant’s property, appealed.  The trial court dismissed the appeal, finding that the zoning board was justified in concluding that the applicant’s proposal was in accord with the municipal comprehensive plan.  It reasoned that restaurants are permitted uses in the commercial zone where the property is located and that other buildings in the area are multistoried structures.  It also determined that the configuration of the property, coupled with the applicable setback requirements, constituted a hardship in that any vertical expansion must occur within the setback area.  It explained that the one story structure was built directly on the property line before the adoption of the zoning regulations and that it therefore cannot be expanded horizontally.  The court also emphasized that the regulations prohibit any increase in the height of a building within the area that is covered by the setback regulations.  Accordingly, the court concluded that substantial evidence in the record supported the zoning board’s approval of the requested variances.  The court also rejected the plaintiff’s claim that the applicant’s attorney should not have been permitted to represent the applicant because, at the time of the public hearing on the requested variances, the attorney was a member of the town’s Board of Selectmen and therefore a nonvoting ex-officio member of the zoning board.  It reasoned that the record contained no evidence suggesting any actual bias on the part of the voting members of the zoning board and that there was no basis for alleging any improper conduct on the part of any attorney involved in the litigation.  It also emphasized that there is a distinction between an elected member of a zoning authority and one who is designated as an ex-officio member without the right to vote.  It further opined that General Statutes § 8-11, which prohibits a member of a zoning board from representing someone in any matter pending before the board, was inapplicable because it does not extend to nonvoting ex-officio members of a zoning board.  The plaintiff appeals, challenging the trial court’s findings that the variances were justified by hardship and that the participation of the applicant’s attorney did not create an actual or apparent conflict of interest and an appearance of impropriety that rendered the zoning board’s decision illegal.