Agenda - Planning Commission - 01/06/1998

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Page 8 -- November 25, 1997 Z.B. whole outweighed the interests of an owner with respect to mineral rights. Variance Company sues variance applicant, not property owner J & B Construction and Contracting Services Inc. v. Zoning Board of Appeals of the City of Hartford, 697A.2d 721 (ConnecticuO 1_997 The Connecticut Prison Association wanted to use four vacant office buildings as rehabilitation homes. The buildings had been vacant for 10 years and were in a neighborhood that had state offices, courthouses, multifamily dwellings, businesses, and residences converted to office use. The prison association applied for a variance to allow it to use the buildings. It needed a variance because the buildings were in a residential-office zone in which rehabilitation homes weren't permitted, and because the properties didn't meet the minimum side and rear lot requirements for rehabilitation homes. When it applied for the variance, the association didn't own the property, nor did it have a formal lease for the premises. It claimed, however, that it had entered into lease negotiations with a realty company that had an option to buy the buildings. The association's variance application listed the association as the applicant and identified the property's owner. The city zoning board of appeals granted the association a variance. A construction company appealed the board's decision to court, naming the board and the prison association as defendants. According to the company, because the association neither owned nor leased the buildings, it had no legal right to seek a variance. The company also claimed the association failed to show the hardship necessary for a variance. The court dismissed the company's appeal, finding the association had a right to apply for a variance based on its future right to possession. It also found sufficient hardship existed for a variance. The company appealed again. The board argued the dismissal had to be affirmed because the company didn't name the property's owner as a defendant in its appeal. DECISION: Reversed and returned to the trial court. The owner of the property on which the buildings were located was an "indispensable party" to the appeal. The matter was returned to the lower court for a new trial with the proper parties. An applicant who received a favorable decision from a planning and zoning board of appeals had to be named in a subsequent appeal "because were the appeal to be sustained the result would be the invalidation and deprivation of a right granted to the applicant by the zoning board." Although the variance application listed the association as the applicant, it also identified the property's owner. By virtue of the board's granting of the variance, the owner acquired a special interest in the subject matter of any appeal that might deprive it of the benefit of the outcome before the board. That the owner was a necessary party didn't mean that the company's appeal had to be dismissed. The lower court could hold another trial on the appeal with the r~ror~er t>arties.