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HomeMy WebLinkAboutVariance (944) MEMORANDUM TO: Zoning Board of Appeals FROM: Barry D. Guliano Town Attorney DATE: October 4, 2001 RE: Application #2511-01 - Messiah Evangelical Lutheran Church Imposing Conditions Upon Placement of Sign The Zoning Board of Appeals has asked for an opinion regarding whether the Board can condition approval of an application for the placement of a sign, so that it would remain twenty-two feet (22') from the roadway. The question which has been posed is whether the sign would need to be repositioned if the roadway were reconstructed so as to be closer to the sign. Although there is no specific statutory authorization, it is well settled in Connecticut that a Zoning Board of Appeals may, without express authorization, attach reasonable conditions to the granting of a variance. Town of Burlington v. Jencik, 168 Conn. 506, 509 (1975). Where a variance is granted subject to conditions, the variance is contingent upon satisfaction of those conditions. Id. at 510. The conditions attached to the variance by the Board must be reasonable and not contrary to the zoning regulations. Warner v. Zoning Board of Appeals of Town of Easton, 24 Conn. App. 393, 397 (1991). The Zoning Board of Appeals October 4, 2001 Page 2 The applicant for the variance is also precluded, under ordinary circumstances, from bringing another application to invalidate the condition where the Board had the authority to oppose it initially. Gangemi v. Zoning Board of Appeals of Town of Fairfield, 54 Conn. App. 559, 565 (1999). Where a condition attached to a variance becomes a problem, however, it may be eliminated by the Zoning Board of Appeals, provided the applicant demonstrates hardship and not merely that a material change in circumstances has made the condition unreasonable. Fleet National Bank v. Zoning Board of Appeals of Town of Winchester. 54 Conn. App. 135, 141 (1999). Applying this analysis to the present issue, the Zoning Board of Appeals may condition approval of the application upon the sign remaining twenty-two feet (22') from the roadway. I would recommend that the "roadway" be very well defined, so that there is no doubt in anyone's mind in the future as to the specific condition. I would suggest expressing the condition in terms such as "the sign must remain twenty two feet (22') from the edge of the paved portion of the roadway which is closest to the sign, even if the position of said paved portion of roadway is altered in the future." In this way, there is no doubt as to the precise terms of the condition should it need to be enforced in the future. The Zoning Board of Appeals October 4, 2001 Page 3 Upon imposing such a condition, it would remain in place until such time as the applicant was able to establish that there was a material change in circumstances which created a hardship. As noted above, this requires more than a showing that the material change in circumstances has merely made the condition unreasonable. If a hardship were shown by the change in circumstances, the Board would have discretion, as it does in all cases involving hardship, as to whether to maintain the condition or to eliminate it. If you have any further questions, I would be happy to address them. BDG/mpg