Perrie v. Middletown Zoning Board of Appeals
A zoning board of appeals cannot enforce a condition that was not included in the original variance. The plaintiff, Richard Perrie, requested a variance from the defendant zoning board of appeals, to expand and to relocate a shed that already existed. The plaintiff informed the board that he would use the shed to store furniture and boating equipment. The defendant zoning board of appeals granted the variance, and the plaintiff built a new shed that substantially conformed with the drawing that the plaintiff submitted to the defendant. In 2009, the municipal zoning enforcement officer issued a cease-and-desist order and claimed that the plaintiff violated the zoning regulations and the variance, because the shed had electricity. The plaintiff appealed to the board, which voted, 4-2, to deny the plaintiff's appeal. The plaintiff appealed to the Superior Court, which found that the original variance did not include any prohibition against a shed with electricity. Minutes of the hearing did not indicate that the board's approval was conditioned on the absence of electricity. Members of the board expressed concern that the plaintiff intended to build a shed that was really a dwelling. The board of appeals was entitled to attach conditions to the variance. To be enforceable, the zoning board of appeal's conditions must be expressed in sufficiently definite terms to inform the applicant and adjacent landowners about the restrictions on the use of the property. The defendant board failed to explicitly state that approval of the variance was conditioned on the absence of electricity. "Since the condition was never imposed by the variance," wrote the court, "the defendant cannot now enforce it." Addition of electricity did not change the nature and purpose of the shed, which continued to be used to store furniture and boating equipment and did not expand a nonconforming use beyond its reasonable scope. The board's decision to uphold the cease-and-desist order was illegal, arbitrary and an abuse of discretion, and the court sustained the plaintiff's appeal.