Agenda - Planning Commission - 01/06/1998

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Page 8. December 10, 1997 Z.B. Variance -- Did town's failure to enforce lot coverage regulations exempt owner's property? Chester ~: Zoning Board of Appeals of the Town of Westport, 698 A.2d 371 (ConnecticuO 1997 Chester owned a house in the town of Westport, Conn. A deck on her property apparently violated the town's setback and lot coverage regula- tions. The town planning and zoning commission ordered Chester to either bring her deck into compliance or remove it. Instead, Chester applied to the town zoning board of appeals for a variance from the town's setback and lot coverage regulations. At the board hearing, Chester claimed she was entitled to a variance. She also claimed her property was exempt from the town's lot coverage regulations under state law. She argued that because the town had not attempted to enforce the lot coverage regulation for more than three years while the deck was on her property, her property was exempt from that regulation. Under state law, if a building violated a setback or lot size regulation and the town didn't bring an enforcement action within three years, the building was deemed a legal nonconforming building. The town zoning board of appeals denied Chester's request for a variance, and she appealed to court. The court dismissed Chester's appeal. It found the board properly denied Chester's variance request because she failed to prove the town's enforcement of its zoning regulations would create an unnecessary hard- ship. The court also found the state law exempting from zoning regulations buildings that were nonconforming for three years did not exempt Chester's deck. Chester appealed, claiming the court improperly decided the state law did not exempt her property from the town's lot coverage regulation. DECISION: Affirmed. The trial court properly denied Chester's request for a variance. The only issue before the trial court in Chester's zoning appeal was the board's denial of her request for a variance. The court properly decided that issue based on Chester's failure to prove a hardship. Chester didn't challenge the court's finding of no hardship in her appeal. The court's discussion of whether the law exempted Chester's property from enforcement of the town's lot coverage regulations was irreIevant and not binding on the parties. The appeals court refused to either reject or endorse the trial court's opinion on whether the law applied to Chester's property. see also: Hubbell h~c. ~: Bridgeport, 692 A.2d 765 (1997). see also: 14qlliamson County Regional Planning Commission ~: Hamilton Ba~tk, 473 U.S. 172, 105 S. Ct. 3 108 (1985).