Posted by: Patricia Salkin | June 14, 2010

CT Supreme Court Finds ZBA Has Authority to Determine Whether Plans Are in Accordance With Stipulation of Settlement

After the zoning enforcement officer denied the necessary certificate of zoning compliance to Hasychak who wanted to make substantial renovations to his seasonal cottage, which was a legal, nonconforming structure on a legal, nonconforming lot, he applied to the zoning board of appeals for variances which were denied.  Hasychak filed a lawsuit and an adjacent property owner joined the town as a party defendant. The parties then entered into a stipulation which allowed Hasychak to complete his renovations and so long as the renovations complied with the conditions thereto stipulated, he would be deemed to have been granted the required variances and certificate of zoning compliance. 

Hasychak revised and submitted his plans for renovation.  The zoning enforcement officer issued a certificate of zoning compliance.  Watstein then appealed the zoning enforcement officer’s issuance of the certificate to the ZBA, alleging that the revised plans were not in compliance with the terms of the stipulated judgment. The Board sustained Watstein’s appeal.  Hasychak appealed to the Superior Court, alleging that the ZBA lacked jurisdiction to determine whether the revised plans comported with the stipulated judgment.  The trial court ruled that the zoning board of appeals lacked jurisdiction to determine whether the zoning enforcement officer properly issued a certificate of zoning compliance to Hasychak.  Both parties filed appeals.. 

CT General Statute § 8-6(a), states that, The zoning board of appeals shall have the following powers  and duties: (1) to hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter.” Section 71.2 of the Old Saybrook zoning regulations contains similar language.  Watstein alleged that this language explicitly authorized the Board to hear administrative appeals from decisions made by a zoning enforcement officer.  On the other hand, Hasychak contended that the appellate jurisdiction of the board extends only so far as decisions based on regulations or ordinances implemented by the municipality, but not to conditions imposed via a judgment.  Hasychak also alleged a conflict of interest in allowing the board to decide this matter because it was a party to the controversy from which the stipulated settlement at issue arose. 

To settle the dispute, the court first turned to the text of the statute and found that it plainly and unambiguously grants appellate authority over Watstein’s appeal to the Board. The narrower interpretation of the statutes put forth by Hasychak, that the Board could only hear appeals pertaining to the enforcement of actions governed by the municipal zoning regulations (here, the action was not governed by the zoning regulation, insofar as the stipulated judgment had been accepted by the parties as a way to get around the provisions of the zoning regulation) was rejected by the court because it was unsupported by precedent.  Additionally, the court noted that Hasychak’s interpretation was contrary to the plain meaning of the statue.  In support of their position, the court specified that the appearance of the word “any” in the statue was apparently used to give broad jurisdiction to the board. 

Although having rejected Hasychak’s narrow interpretation, the court noted that under this construction it would still find in favor of Watstein because “once a court renders a stipulated judgment, it becomes part of and may alter the zoning regulations that are applicable to a particular parcel.  Further, the zoning compliance officer was acting in a capacity governed by the Town zoning regulation. While acknowledging the validity of courts continuing jurisdiction pursuant to their inherent powers to effectuate prior judgments, the court rejected the idea that jurisdiction was held solely by the issuing court.    

Concerning the propriety of the Board being able to decide a matter to which it was a party, the court did not find a conflict of interest because of the common practice of court intervention between applicant and municipal board followed by remand to the municipal board.  If prejudicial effect were a concern this practice would occur in few, if any, cases. 

 Hasychak v. Zoning Board of Appeals of the Town of Old Saybrook, 2010 WL 1959801 (Conn. 5/25/2010). 

The opinion can be accessed at:

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