Opinion
No. FST CV 04 4001719
April 12, 2007
MEMORANDUM OF DECISION
I. Background
In March 2006 Robert Meyer appealed from a decision of the Town of Westport Zoning Board of Appeals (ZBA) which denied his application for a variance because "no hardship was proven." Subsequently, Meyer filed a second application, which was later withdrawn, and then entered into settlement discussions with the ZBA, resulting in a tentative agreement. A public hearing was held in Westport on January 23, 2007 after which the ZBA approved the settlement.
On January 24, 2007 Meyer moved that judgment be entered in the pending appeal in accordance with a written stipulation and agreement between him and the ZBA. Pursuant to General Statutes § 8-8(n) a hearing was held before the court on March 21, 2007. Prior to that date, three neighbors owning property abutting, or within one hundred feet of, Meyer's property sought to intervene in the Section 8-8(n) hearing. Intervention was denied, but this court ordered the parties to the appeal to notify the three putative intervenors of the date of the Section 8-8(n) hearing in sufficient time for their counsel to file a brief and for them to arrange to appear. All of the putative intervenors either spoke at the hearing or submitted a letter considered by the court, and their counsel both spoke and submitted a brief. Notice of the hearing was published in the Westport News on March 14, 2007.
General Statutes § 8-8(n) states in pertinent part that the subject appeal may not be withdrawn or settled:
unless and until a hearing has been held before the Superior Court and such court has approved such proposed withdrawal or settlement.
II. Standard of Review
Section 8-8(n) does not set forth any standards or criteria to guide the court as to whether to approve a settlement. Certain Appellate Court and Connecticut Supreme Court cases have provided assistance in fleshing out the purpose of the hearing. These cases were reviewed in a comprehensive decision in Reed v. Branford ZBA, Superior Court, judicial district of New Haven, CV 03 0475239 (January 7, 2004, Corradino, J.) [ 36 Conn. L. Rptr. 392]. In Sendak v. Ridgefield Planning and Zoning Commission, 7 Conn.App. 238 (1986) the court said the statute recognized the "competing interests" of both the legitimacy of settling land use cases and the need for court review to avoid abuses. Id., 243 n. 1. In Levine v. Planning Zoning Commission of Fairfield, 25 Conn.App. 199, 203 (1991) the Appellate Court characterized § 8-8(n) as "prohibiting `side' or secret settlements" and ensuring public scrutiny. The Connecticut Supreme Court has held that the failure to hold a § 8-8(n) makes the settlement unenforceable and stressed that the hearing's purposes was to protect the integrity and openness of land use proceedings and to consider the fairness of the settlement. Willimantic Car Wash, Inc. v. Zoning Board of Appeals, Windham, 247 Conn. 732, 745 and n. 16 (1999). In Brookridge District Ass'n v. Planning Zoning Commission, Greenwich, 259 Conn. 607, 616 (2002) the Connecticut Supreme Court said the provision [at that time § 8-8(m)] promoted judicial economy by promoting settlements and protected against collusion or other improper conduct.
What this court gleans from the above cases is that the purpose of a Section 8-8(n) hearing is to (1) protect against collusion, fraud, frivolous appeals or other matters which would detract from the integrity of land use decisions while recognizing the powerful interest in reaching settlements of disputes (2) to insure openness and public scrutiny of the process, and (3) to assure the fairness of the settlement but respecting the Superior Court's traditionally limited role in land use appeals by not inserting the court too far into the process so as usurp the recognized and authorized role of local authorities in managing their affairs and substituting the court's judgment for that of the local agency.
III. Discussion
At the March 21, 2007 hearing, counsel for the ZBA and for Meyer spoke in favor of the settlement agreement. As noted, counsel for three abutting or close neighbors spoke as well as presented a brief opposing the settlement. Two of those neighbors Mssrs. Rosenfeld and Chaves were also heard and the third wrote a letter to the court. Two other neighbors Donald Bergman and Catherine DiScala presented a written opposition to the settlement and Mr. Bergmann spoke in opposition. The court has considered all the statements and written materials.
The opposition to the settlement seems to center around a few somewhat overlapping points. First, it was expressed that, although characterized as a settlement, essentially Meyer received the variance he sought but originally had been denied. According to the opposition this resulted from the ZBA improperly changing its original finding of no hardship. Second, there was serious concern that Meyer's residence was simply overpowering the neighborhood with especial emphasis on the size and height of the roof. Third, there was frustration that the ZBA had not taken account of the opposition to the variance application and by agreeing to settle the matter left no avenue available for the opposition to seek judicial review.
At the outset the court finds there was no evidence of collusion among the parties, nor any evidence of bad faith. The opposition did not press those issues. Furthermore, there have been at least two public hearings in addition to the publicly noticed court hearing in connection with the variance application and appeal. While the actual settlement negotiations were not public, the final settlement agreement between the parties has been publicly disclosed. There have been no secret settlements, and there has been public scrutiny and debate. It is difficult to be completely certain without the benefit of briefs and adversarial arguments on contested issues, but this court finds that the appeal of Meyer is not a frivolous one. In his appeal papers Meyer contends that the steeply upward slope on his lot from front to back coupled with its non-conforming size was a legally sufficient hardship and that the ZBA had found these conditions on several neighboring properties to constitute a hardship. Documents accompanying the appeal as Exhibit B, while not proving the point, do constitute some evidence that the appeal is not frivolous.
Finally, the court turns to the issue of fairness. One of the elements those opposing the settlement have emphasized as being unfair is that the settlement denies a meaningful judicial review of their position that no hardship exists to support Meyer's application for a variance. This is not an easy issue to resolve, as the opposition sees the ZBA as switching sides away from protecting their interests and leaving them defenseless. Without getting into the issue of whether those opposing neighbors could have intervened in the appeal and thereby effectively vetoed any settlement (there was disagreement at the hearing on that point) the court notes that the settlement also effectively removes the possibility that Meyer might win his appeal and have his initial application approved in toto. That, in essence, is the nature of a settlement, and this court cannot find it unfair. The court notes that the settlement agreement brings the Meyer lot more into compliance by slightly reducing building by coverage, cures a purportedly unsafe condition by widening a driveway and increasing parking therein, and by requiring the relocation of air conditioning units to a less conspicuous location. The settlement also removed an un-permitted roof and allowed construction of a roof in compliance with regulations.
The court is aware that at least some of those in opposition contend that Meyer gave up very little in this settlement. However, this is not obvious from the record. Moreover, that contention does not necessarily take into account the likelihood, or not, that the ZBA's initial finding of no hardship would be overturned on appeal. It is precisely that kind of judgment that the ZBA, informed by counsel, should be permitted to make even though others may disagree. Furthermore the court determines that the ZBA should also be allowed certain discretion in assessing whether the perceived advantages of a settlement out weigh those advantages to be gained by proceeding with defending an appeal. The court also notes that the new roof is within all applicable regulations and therefore may not be within the ZBA's purview.
Conclusion
Based on the discussion above, including the court's interpretation of its role under Section 8-8(n) the court finds no basis on which to disapprove the settlement agreement and grants the motion to enter judgment in the pending appeal in accordance therewith.