Construction plan falls outside the 'zone'
Law of the Land
November 18, 2009
By Tara-Nicholle Nelson
Inman News®
In the case Cimino v. Zoning Board of Appeals of the Town of Woodbridge, Christine Cimino purchased a 5-acre parcel of undeveloped land in an area where a lot was required to have 2 acres of contiguous non-wetland as a specific setback requirement in order to get a building permit.
More than 20 years prior to Cimino's purchase of the property, a prior owner had applied on three separate occasions for the parcel to be zoned a buildable lot. While the surrounding land was subdivided into buildable lots, the inland wetlands agency denied each of the prior owner's applications to approve this particular parcel. The rest of the parcels became numbered lots, while the remaining parcel was labeled "Remaining Land of __________, Trustee." It was transferred along with a neighboring lot until purchased from the owner of the neighboring lot by Cimino.
Cimino applied to the zoning board for a variance from the setback requirement and a variance allowing her to build on the property despite it having only 1 acre of contiguous non-wetland. The zoning board denied Cimino's application for a variance, given that the parcel had not been a buildable lot when originally subdivided, nor when purchased by Cimino, so the value of the lot was the same after the board's denial of a variance and permit as it had been when Cimino purchased it.
Cimino's appeal of the board's decision to the superior court was denied on grounds that the parcel was never a zoned lot and that Cimino had not demonstrated a hardship or compliance with the town's zoning ordinances.
The Connecticut Appellate Court affirmed the lower court's denial of Cimino's appeal. First, the court explained, the fact that Cimino's parcel was never a buildable lot in the first place was not a dilemma that was even legally capable of having been resolved or overcome by a variance.
Additionally, the court opined, the fact that the owner was aware that the property was not a buildable lot at the time she purchased it invoked the "purchase with knowledge rule," and meant that her purchase with knowledge, not the denial of the variance, was the cause of any hardship the owner experienced.
As such, the appellate court upheld the lower court's ruling.
Tara-Nicholle Nelson is author of "The Savvy Woman's Homebuying Handbook" and "Trillion Dollar Women: Use Your Power to Make Buying and Remodeling Decisions." Ask her a real estate question online or visit her Web site, www.rethinkrealestate.com.
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