Green Falls Associates, LLC v. Zoning Board of Appeals of the Town of Montville
Absent any express provision that states to the contrary, one who has contracted to purchase property has standing to apply for a variance governing its use. The plaintiff, Green Falls Associates, LLC, contracted to purchase an unimproved plot of land in Montville. The lot was validly nonconforming with respect to the minimum lot area requirements. The plaintiff applied for a variance to construct a 38 by 26 foot single family residence with an on-site well and septic system. Montville's zoning board of appeals denied the application with three members voting in favor of the application, one member recusing himself, one member absent and another member abstaining. The trial court dismissed the plaintiff's appeal. On appeal, the plaintiff argued that the trial court improperly determined that the variance application failed to receive the necessary votes pursuant to C.G.S. §8-7, that there was no unusual hardship and that the application's denial was not a confiscation. The defendant board rebutted these claims and challenged the plaintiff's standing to apply for a variance. The Appellate Court found that the plaintiff had standing but disagreed with its claims and affirmed the trial court's judgment. The defendant claimed that the plaintiff lacked standing to apply for a variance when the agreement to purchase the property had expired and was void. The trial court found, correctly, that there was no express statement of "time is of the essence" in the agreement and no basis to conclude that the parties to the agreement intended to nullify it. The agreement established the plaintiff's position as purchaser. Thus, the plaintiff had a sufficient interest in the property to apply for a variance. The trial court properly found that the variance application failed to receive the necessary four votes required by C.G.S. §8-7. A vote of three to zero with one abstention did not create an impossibility under C.G.S. §8-7. The abstention could not be considered an affirmative vote as contended. When a statute requires a number of affirmative votes, an abstention is not counted with the majority. The plaintiff failed to show that the inability to build its desired three bedroom house was anything beyond a disappointment. A smaller house could be built. The property retained productive use and, therefore, the denial did not constitute a confiscation.