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Vaszauskas v. Zoning Bd. of Appeals of Town of Southbury

Supreme Court of Connecticut

May 15, 1990


Argued March 6, 1990.

Timothy S. Hollister, with whom was Thomas J. Rechen, Hartford, for appellants (defendants).

Lawrence R. Pellett, with whom was Robert L. Chase, Waterbury, for appellee (plaintiff).


[215 Conn. 59] SHEA, Associate Justice.

The principal issue in this appeal is whether the trial court erred in concluding that an invalid condition could be severed from the approval of an application for a zoning variance, thus upholding the granting of the variance. The plaintiff, Randy Vaszauskas, appealed from a decision rendered by the defendant zoning board of appeals of the town of Southbury (board), [1] granting him a variance from the application of two relevant zoning regulations, subject to the fulfillment of several conditions. The trial court determined that one of the conditions was invalid, since it was incapable of being met. The court concluded, nevertheless, that the invalid condition was not an [215 Conn. 60] "integral" part of the board's decision and, therefore, could be severed from the remainder of the otherwise valid variance.

The record reveals the following relevant facts. On January 11, 1988, the plaintiff applied to the board for a variance from certain zoning regulations, so that he might enlarge a pond already existing on his farm and also excavate a second pond on the same property. The plaintiff intended to use the ponds to raise trout and also to provide increased irrigation for his

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crops. The plaintiff required a variance because the property, located on Crook Horn Road in the town of Southbury, was located within a flood plain and the proposed plan required the removal of soil from his property. Removal was necessary because the soil excavated for the ponds could not have been stored on the plaintiff's property without affecting the function of the flood plain.

After several hearings, the board granted the plaintiff's application for a variance [2] subject to three conditions, one of which was that he "receive the required temporary soil extraction permit from the Planning Commission...." [3] At trial, the plaintiff argued that [215 Conn. 61] the board had abused its discretion by requiring that he obtain the soil extraction permit and, consequently, asked that the court remove that condition from the operation of the variance, pursuant to General Statutes § 8-8(f). [4] The court noted that the plaintiff had abandoned all other grounds for his appeal from the board's decision and, therefore, sought to contest only the condition imposed by the board requiring that he obtain a soil extraction permit. The board conceded, Before the trial court, that it would have been impossible for the plaintiff to obtain the required soil extraction permit since the planning commission was without authority to issue such a permit when, as was the case here, the property in question was located within a flood plain district. [5]

The court found that in granting the variance, the board had specifically concluded that the plaintiff's proposed excavation was directly linked to his farming, and thus constituted a permitted use under paragraph 8.2.6 of the zoning regulations. Because of this finding, the court concluded that, under the regulations, a soil extraction permit would not have been required for the plaintiff's proposed excavation, except for the [215 Conn. 62] condition imposed by the board when it approved the variance. The court noted that the zoning regulations specifically empowered the board to vary the zoning regulations and Flood Plain Management Ordinance to allow the excavation and removal of soil in a flood plain district. [6] Recognizing that the board was charged with determining whether the proposed excavation and removal were reasonably

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necessary to establish or support a permitted use or variance, the court concluded that, having made such findings, the board in this case "mistakenly exceeded its authority by requiring [the] plaintiff to obtain a soil extraction permit, which was not required by the regulations, was unnecessary to the granting of the variance, and [was] not available under the circumstances." On this basis, the court ruled that the third condition imposed by the board had to be severed from the variance in order to uphold the remainder of the board's decision, which was otherwise supported by sufficient evidence and presumed to be valid.

The board has appealed from this decision, claiming that the trial court erred in holding that: (1) the board did not have the authority, in this case, to attach as a condition to the variance a requirement that the plaintiff comply with the zoning regulations concerning soil extraction; and (2) the condition was not an integral part of, and therefore could be severed from, the board's decision to grant the variance in this case. We agree with the board that the second holding was erroneous and, therefore, that the trial court erred in sustaining the plaintiff's appeal.

[215 Conn. 63] I

The board argues that it was empowered to condition its approval of the plaintiff's variance application upon his first having obtained a soil extraction permit from a coordinate town agency. Relying upon Blaker v. Planning & Zoning Commission, 212 Conn. 471, 481-82, 562 A.2d 1093 (1989), and Lurie v. Planning & Zoning Commission, 160 Conn. 295, 302-306, 278 A.2d 799 (1971), the board claims that it may properly impose conditions on the granting of variances from any applicable zoning regulations. Thus, the defendants argue, this court's holding in Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 592-93, 409 A.2d 1029 (1979), that approval of a subdivision plan cannot depend upon a condition that cannot be fulfilled by either the applicant or the zoning authority, is not controlling in this case, since: (a) conditions may be imposed on the granting of a variance; see Burlington v. Jencik, 168 Conn. 506, 509-10, 362 A.2d 1338 (1975); and (b) "a zoning board of appeals, acting on a variance, has an even stronger right than a zoning commission acting on a special permit to impose as a condition compliance with the requirements of a coordinate agency."

We have no reason in this case to address fully the board's reasoning, since its argument ignores a significant aspect of the principle underlying our decisions in Blaker and Lurie. In Lurie, we held that "where an exception or a special permit is granted and the grant is otherwise valid except that it is made reasonably conditional on favorable action by another agency or agencies over which the zoning authority has no control, its issuance will not be held invalid solely because of the existence of any such condition." (Emphasis added.) Lurie v. Planning & Zoning Commission, supra, 160 Conn. at 307, 278 A.2d 799; Blaker v. Planning & Zoning Commission, supra, 212 Conn. at 482, 562 A.2d 1093. [215 Conn. 64] As it relates to this case, the operative portion of our holding in those cases is that any conditions imposed by the zoning authority must be reasonable. The board has conceded, Before both this court and the trial court, that the third condition ...

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