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