Sargent v. Zoning Board of Appeals

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Sargent v. Zoning Board of Appeals

GREGORY SARGENT v. ZONING BOARD OF

APPEALS OF THE TOWN OF FAIRFIELD

(AC 47532)

Clark, Seeley and DiPentima, Js.

Syllabus

The plaintiff property owner appealed from the trial court’s judgment dis-

missing his appeal from the decision of the defendant town zoning board,

which upheld the issuance of a certificate of zoning compliance by its zoning

enforcement officer to the intervening defendants, abutting property owners.

The plaintiff claimed, inter alia, that the court incorrectly concluded that a

variance that had been granted to the intervening defendants in 2011 properly

was considered in calculating the maximum building height of the interven-

ing defendants’ proposed residence. Held:

The trial court properly determined that there were no conditions attached

to the variance, as the line designated for conditions on the certificate of

variance issued by the board and filed in the land records was left blank,

and this court could discern no ambiguities in the certificate of variance

because it contained no language that reasonably could be construed as

imposing a condition.

The zoning board properly considered the 2011 variance in calculating the

maximum building height of the intervening defendants’ proposed residence,

as the variance was not rendered moot by a subsequent amendment to the

town’s zoning regulations, the plaintiff having cited no authority to support

the proposition that a variance may be rendered moot by a subsequent

amendment, and, pursuant to the statute (§ 8-6) governing a zoning board’s

authority to grant a variance, a variance runs with the land and is not

personal to the recipient of the variance.

Argued April 16—officially released November 11, 2025

Procedural History

Appeal from the decision of the defendant affirming

the decision of its zoning enforcement officer upholding

the issuance of a certificate of zoning compliance,

brought to the Superior Court in the judicial district

of Fairfield, where Barbara Bertozzi Castelli and Jose

Meller, as trustees of the BBC Revocable Trust, inter-

vened as party defendants; thereafter, the case was

transferred to the judicial district of New Britain; subse-

quently, the case was transferred to the judicial district

of Hartford, Land Use Docket; thereafter, the case was

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Sargent v. Zoning Board of Appeals

tried to the court, O’Hanlan, J.; judgment dismissing

the appeal, from which the plaintiff, on the granting of

certification, appealed to this court. Affirmed.

Nicholas R. Bamonte, with whom was Jason D.

Kaplan, for the appellant (plaintiff).

Joel Z. Green, with whom, on the brief, was Linda

Pesce Laske, for the appellees (intervening defendants).

James T. Baldwin, for the appellee (named defen-

dant).

Opinion

DiPENTIMA, J. The plaintiff, Gregory Sargent, appeals

from the judgment of the trial court dismissing his

appeal from the decision of the defendant, the Zoning

Board of Appeals of the Town of Fairfield (board),

which upheld the issuance of a certificate of zoning

compliance by the town’s zoning enforcement officer

to the intervening defendants, Barbara Bertozzi Castelli

and Jose Meller, as trustees of the BBC Revocable Trust.

On appeal, the plaintiff claims that the court incorrectly

concluded that a variance that had been granted to the

intervening defendants in 2011 properly was considered

in calculating the maximum building height of the

intervening defendants’ proposed residence.1 We dis-

agree and, accordingly, affirm the judgment of the

trial court.

1

In the ‘‘Statement of Issues’’ of his principal appellate brief, the plaintiff

identifies the issues raised on appeal as follows: (1) ‘‘[w]hether the trial

court erred in finding that the maximum height variance granted to the

intervening defendants in 2011 also applied to a proposal which they submit-

ted for zoning approval in 2020,’’ and (2) ‘‘[w]hether the trial court erred in

finding that the [board’s] denial of the plaintiff’s appeal was supported by

substantial evidence on the record.’’

For purposes of clarity, we have divided the arguments raised in support

of the first issue into two distinct claims, namely, (1) whether there were

conditions attached to the variance that had not been satisfied, and (2)

whether the variance was rendered moot by a subsequent amendment to

the pertinent regulations.

With respect to the second issue identified in the plaintiff’s statement of

issues—whether the court erred in finding that the board’s decision was

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Sargent v. Zoning Board of Appeals

The record reveals the following undisputed facts

and procedural history. In May, 2011, the intervening

defendants applied for a variance from the thirty foot

building height restriction set forth in § 11.7 of the Fair-

field Zoning Regulations (regulations) to construct a

single-family residence with a height of 31.33 feet on

beachfront property located at 1623 Fairfield Beach

Road in Fairfield. The proposed residence had a con-

temporary design including a flat roof, with a limited

128 square foot area that would exceed the maximum

building height by 1.33 feet.2

The plaintiff, who owns abutting property at 1609

Fairfield Beach Road, received notice of the intervening

defendants’ application and had no objection to the

variance. After a hearing, the board unanimously voted

supported by substantial evidence in the record—the plaintiff raises various

overlapping claims of error regarding the court’s reliance on testimony from

James Wendt, the town’s planning director. The plaintiff contends that the

court disregarded the documentary evidence before the board and relied

instead on testimony from Wendt, who ‘‘effectively stepped into the shoes

of a party to the appeal, namely, the [zoning enforcement officer],’’ and

whose testimony consisted of ‘‘legal conclusions’’ which were not entitled

to any deference. It is clear from our review of the court’s decision that it

appropriately conducted its own independent analysis of the questions of

law at issue and properly reviewed the record in concluding that the record

contained substantial evidence. See Cockerham v. Zoning Board of Appeals,

146 Conn. App. 355, 370, 77 A.3d 204 (2013) (although board considered

and credited current and past zoning enforcement officers’ application of

regulatory language, it reached independent decision and did not simply

defer to officer’s interpretation), cert. denied, 311 Conn. 919, 85 A.3d 653

(2014), and cert. denied, 311 Conn. 919, 85 A.3d 654 (2014). Accordingly,

we reject the plaintiff’s second claim.

2

In their application for the 2011 variance, the intervening defendants

stated that they were ‘‘requesting a variance of [§] 11.7 [of the regulations]

to permit an increase in height from 30 feet to 31.33 feet . . . . The height

variance request is due to the nature of the proposed construction and the

proposed [roofline]. The new home will be a contemporary design which

will incorporate a flat roof. As shown [in] the architectural plans, the area

which exceeds the height limitation of 30 feet is very limited in size. . . .

This area of exceedance is essentially a room at the top of the stairs utilized

to access the proposed [rooftop] deck.’’

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Sargent v. Zoning Board of Appeals

to grant the requested variance. The variance was

recorded on the land records on July 19, 2011.

The intervening defendants did not begin construc-

tion of the proposed residence due to Hurricane Irene

in August, 2011, Hurricane Sandy in October, 2012, and

subsequent changes to the zoning regulations. In 2013,

the regulations were amended to require that dwellings

be built from a certain minimum height, or base flood

elevation (BFE), in the beach district and the coastal

high hazard zones, where the proposed residence was

located.3 In addition, § 11.7 of the regulations was

amended to permit an increased maximum building

height; specifically, in addition to the thirty feet already

permitted, ‘‘one foot of additional height shall be permit-

ted for every two (2) feet of vertical distance between

existing average grade and the base flood elevation.’’

In 2019, the intervening defendants modified the

design for the proposed residence. A new survey dem-

onstrated that 2000 square feet of the property had

been lost and, therefore, the residence had to be made

smaller. The modified plans included a pitched roof

design rather than a flat roof design, and the size of

the area that exceeded the height restriction set forth

in § 11.7 of the regulations increased from 128 square

feet to 456 square feet.

In January, 2020, the intervening defendants submit-

ted their materials to the town for approval. The town’s

3

Specifically, § 32.5 of the Fairfield Zoning Regulations provides in rele-

vant part: ‘‘In the coastal high hazard zones, designated as VE, the following

provisions shall additionally apply . . . (c) All new construction and sub-

stantial improvements shall be elevated on adequately anchored pilings or

columns, and securely anchored to such piles, and columns so that the

lowest structural member of the lowest floor, excluding piles or columns,

is elevated to or above the base flood level. . . .’’

Section 32.8 (d) of the Fairfield Zoning Regulations defines BFE as ‘‘the

elevation of the crest of the base flood or 100-year flood. The height in

relation to mean sea level expected to be reached by the waters of the base

flood at pertinent points in the floodplains of coastal and riverine areas.’’

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Sargent v. Zoning Board of Appeals

zoning enforcement officer endorsed the modified plan

and the new survey, in effect issuing a certificate of

zoning compliance. The zoning enforcement officer

noted that he approved the proposed residence with a

height of 34 feet, 1.625 inches, which took into account

the 1.33 feet from the 2011 variance.4 The plaintiff first

became aware of the certificate of zoning compliance

in February, 2020. In March, 2020, he appealed to the

board from the decision of the zoning enforcement offi-

cer.

On May 21, 2020, the board held a public hearing on

the plaintiff’s appeal from the issuance of the certificate

of zoning compliance. At the hearing, the plaintiff argued

that the intervening defendants should have been

required to obtain a new variance due to the changes

set forth in the modified design. Specifically, he argued

that the intervening defendants had obtained the 2011

variance based on the flat roof design of the proposed

residence and the ‘‘very limited’’ size of the area that

would exceed the maximum building height set forth in

the regulations, which was reflected in the intervening

defendants’ application for the 2011 variance and the

plans submitted in support thereof. The plaintiff explained

that the flat roof design was ‘‘part of their hardship,’’5

as they needed a small room at the top of the stairs to

access the rooftop deck. The plaintiff argued that, under

the modified plan for the proposed residence, the flat

4

Specifically, on the modified plan, the zoning enforcement officer wrote:

‘‘Approved for zoning compliance for: const. of a el. two sty. one fam. D.

w/ vehicle parking beneath & mech. attic; O.A. dims. 37’-7’’ X 51’-5’’ X 34’-

1 5/8’’ H. The lowest horizontal structural member & all mechs. including

the bot. of all duct wk. & wiring shall be const. above el. 16.1 N.A.V.D.; 51%

of gd. level walls to remain open; proposed 1st fl. el. 18.0’+.’’

5

The plaintiff further argued: ‘‘[T]he hardship that they claim is one they

created. . . . [Y]ou cannot create your hardship to then claim to ask for a

variance.’’ As set forth previously, however, the plaintiff had no objection

to the granting of the variance in 2011, and the board’s decision to grant

the 2011 variance in the first instance is not at issue in this appeal.

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Sargent v. Zoning Board of Appeals

roof design was now a pitched roof design, and the

area that ‘‘was a small room utilized to access the roof-

top deck has turned into an almost [twenty-four] foot by

[nineteen] foot floor, approximately 450 square feet.’’

James Wendt, the town’s planning director, spoke at

the hearing. He stated in relevant part: ‘‘I agree that

there has been a change in the plan, there are two

different architects, it’s a different roof design. We have

no quarrel with those facts as they were laid out by

[the plaintiff]. Our position on this is the height relative

to what the variance was granted has not changed. What

has changed in the intervening nine years is the flood

map has changed that requires a higher starting eleva-

tion . . . for the first floor which raised the house in

absolute terms by a couple of feet. But in terms of the

calculation of the midpoint of the height, the difference

between what the permitted height is and what the

variance was granted has not changed. So, the magni-

tude of the height variance that the board had granted,

which was the variance that was approved in . . . how-

ever many years ago it was, nine or eleven years ago

now, has remained the same. The design has changed,

but the . . . magnitude of the difference in what the

permitted height would be versus what the variance

that was granted has not changed, even though . . .

there was a change in the design of the style of the

house. . . .

‘‘[W]e did recognize that there are some changes to

the plan as pointed out by [the plaintiff], but in our view

we didn’t think it was of a magnitude that warranted

a new application to [the board]. That’s really the long

and short of it. . . . [T]he [regulation] changed that

pushed the starting point of the house up a little bit,

and they get credit for that under the regulations, but

how height is calculated under the revised plan, the

ultimate measurement of that height does not exceed

the scope of the variance that had been previously

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Sargent v. Zoning Board of Appeals

granted. It may be modestly larger in terms of the foot-

print of that third floor attic space that that variance

applies to, but I don’t argue with that part of the presen-

tation. But we didn’t think that changed the scope of

the variance that was ultimately approved. So, that is

why we went forward with the . . . issuance of that

permit because we didn’t believe it changed the scope

of the . . . variance that was first approved.’’

The board also heard from Castelli, one of the

intervening defendants, about the modifications to the

design of the proposed residence. Castelli explained

that she and Meller postponed construction of the pro-

posed residence because the changes to the zoning

regulations implemented after Hurricanes Irene and

Sandy resulted in a long period of uncertainty about

whether the design of the house had to be changed.

Castelli further explained that they had to remove a

deck from the design of the house because the house

now needed to be built on stilts. In addition, because

they lost 2000 square feet of the property, they rede-

signed the house to make it smaller, reducing each floor

of the three-story house by approximately 100 square

feet. The plaintiff agreed with Castelli that the footprint

of the house was smaller, but he argued that the removal

of the deck was then ‘‘padded . . . into [the] house.’’

Following the hearing, a majority of the board voted

to deny the plaintiff’s appeal. The board did not provide

a formal, collective statement of reasons for its action.

The plaintiff appealed from the board’s decision to the

trial court pursuant to General Statutes § 8-8.

In his appeal to the trial court, the plaintiff claimed

that the board’s decision upholding the issuance of the

certificate of zoning compliance was illegal, arbitrary

and an abuse of its discretion, and it was not supported

by substantial evidence in the record. The intervening

defendants subsequently intervened in the plaintiff’s

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Sargent v. Zoning Board of Appeals

appeal. The parties submitted briefs and supporting

documentation, including, inter alia, the intervening

defendants’ application for the 2011 variance; the certif-

icate of variance for the 2011 variance;6 the minutes

from the board’s July 7, 2011 meeting,7 at which it con-

sidered the intervening defendants’ application for the

2011 variance; copies of the original and modified

designs of the proposed residence; the transcript and

minutes from the board’s May 21, 2020 meeting, at

which it considered the plaintiff’s appeal from the issu-

ance of the certificate of zoning compliance; and a copy

of the regulations that were in effect at the time the

certificate of zoning compliance was approved. The

parties presented oral argument to the trial court,

O’Hanlan, J., on October 20, 2022, and June 29, 2023.

In a memorandum of decision dated January 3, 2024,

the court concluded that the board properly upheld the

issuance of the certificate of zoning compliance.8 At

the outset, the court determined that the maximum

building height of the residence was 34.48 feet—which

included 33.15 feet pursuant to § 11.7 of the regulations9

6

In the present case, the document issued by the board and filed in the

land records, certifying that a variance was granted, is labeled as a ‘‘notice

of filing.’’ The parties refer to this document as the certificate of variance,

which is consistent with our case law. Accordingly, for ease of reference,

we refer in this opinion to the notice of filing as the certificate of variance.

7

The record does not contain a transcript from the board’s July 7, 2011

meeting.

8

The court noted that ‘‘[i]t is undisputed that [the intervening] defendants’

dwelling has been built as per the plans subject to this appeal.’’

9

Because § 11.7 of the regulations permitted a maximum building height

of thirty feet plus ‘‘one foot of additional height . . . for every two (2) feet

of vertical distance between the existing average grade and the base flood

elevation,’’ the court concluded that the intervening defendants were entitled

to 3.15 feet of additional height pursuant to that regulation. The court reached

this figure using a starting elevation of sixteen feet, with a BFE of fifteen

feet plus one foot pursuant to the Connecticut State Building Code. Pursuant

to the calculation set forth in § 11.7 of the regulations, the court determined

that the distance between the existing average grade (9.7 feet) and the

starting elevation (sixteen feet) was 6.3 feet, then divided that figure by two.

The plaintiff had raised numerous arguments before the trial court chal-

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Sargent v. Zoning Board of Appeals

and 1.33 feet from the 2011 variance—and, therefore,

the height of the proposed residence conformed to the

regulations.10 In concluding that the board properly took

into account the 1.33 feet from the 2011 variance, the

court rejected the plaintiff’s arguments that (1) the vari-

ance was conditioned on the original flat roof design

and the limited area that would exceed the maximum

building height set forth in § 11.7 of the regulations,

and (2) the variance was rendered moot by the amend-

ment to § 11.7 of the regulations providing for an

increased maximum building height. Finally, the court

concluded that the board’s decision was supported by

substantial evidence in the record, specifically, Wendt’s

testimony11 explaining that the magnitude of the height

variance had not changed. Accordingly, the court dis-

missed the plaintiff’s appeal. This appeal followed.

On appeal, the plaintiff claims that the 1.33 feet from

the 2011 variance should not have been considered in

the calculation of the maximum building height because

(1) the conditions attached to that variance had not

been satisfied, and (2) the variance was rendered moot

by the 2013 amendment to § 11.7 of the regulations.

Before considering these claims, we recite certain

well established principles. ‘‘A zoning enforcement offi-

cer acting on an application for a zoning permit has a

lenging the calculation of the maximum building height under § 11.7 of the

regulations, including that § 11.7 does not recognize ‘‘fractional feet,’’ and

that the one extra foot from the Connecticut State Building Code should

not be taken into consideration. On appeal to this court, the plaintiff does

not challenge the trial court’s application of the Connecticut State Building

Code or its calculation of the maximum building height aside from its

inclusion of the 1.33 feet from the 2011 variance.

10

As set forth previously, the zoning enforcement officer approved the

proposed residence with a height of 34 feet, 1.625 inches.

11

‘‘Our decisional law commonly refers to the ‘testimony’ offered at the

public hearings of municipal land use agencies in this state without regard

to whether it was offered under oath.’’ Parker v. Zoning Commission, 209

Conn. App. 631, 669 n.38, 269 A.3d 157, cert. denied, 343 Conn. 908, 273

A.3d 694 (2022).

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Sargent v. Zoning Board of Appeals

purely ministerial function. . . . If the application con-

forms to the requirements of the regulations, he has no

discretion but to issue a permit. . . .

‘‘[F]ollowing an appeal from the action of a zoning

enforcement officer to a zoning board of appeals, a

court reviewing the decision of the zoning board of

appeals must focus, not on the decision of the zoning

enforcement officer, but on the decision of the board

and the record before the board. . . . [T]he zoning

board of appeals makes a de novo determination of the

issue before it, without deference to the actions of the

zoning enforcement officer. . . .

‘‘[T]he board is endowed with liberal discretion and

. . . its actions are subject to review by the courts only

to determine whether they are unreasonable, arbitrary

or illegal. . . . The burden of proof to demonstrate that

the board acted improperly is upon the party seeking

to overturn the board’s decision. . . . It is the board’s

responsibility, pursuant to the statutorily required hear-

ing, to find the facts and to apply the pertinent zoning

regulations to those facts. . . . Upon an appeal from

the board, the court must focus on the decision of the

board and the record before it. . . .

‘‘In reviewing a decision of a zoning board, a

reviewing court is bound by the substantial evidence

rule, according to which, [c]onclusions reached by [the

board] must be upheld by the trial court if they are

reasonably supported by the record. The credibility of

the witnesses and the determination of issues of fact

are matters solely within the province of the [board].

. . . The question is not whether the trial court would

have reached the same conclusion, but whether the

record before the [board] supports the decision

reached. . . . If the trial court finds that there is sub-

stantial evidence to support a zoning board’s findings,

it cannot substitute its judgment for that of the board.

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Sargent v. Zoning Board of Appeals

. . . If there is conflicting evidence in support of the

zoning [board’s] stated rationale, the reviewing court

. . . cannot substitute its judgment as to the weight of

the evidence for that of the commission. . . . The

agency’s decision must be sustained if an examination

of the record discloses evidence that supports any one

of the reasons given. . . . Where, as here, the board

does not state formally the reasons for its decision, the

trial court must search the record for a basis for the

board’s decision.’’ (Citations omitted; internal quotation

marks omitted.) Watson v. Zoning Board of Appeals,

189 Conn. App. 367, 381–82, 207 A.3d 1067 (2019).

‘‘At the same time, when a question of law is pre-

sented, such as the proper interpretation of a zoning

regulation, our review is plenary.’’ Parker v. Zoning

Commission, 209 Conn. App. 631, 653, 269 A.3d 157,

cert. denied, 343 Conn. 908, 273 A.3d 694 (2022). When

our review is plenary, ‘‘we must decide whether [the

court’s] conclusions are legally and logically correct

and find support in the facts that appear in the record.’’

(Internal quotation marks omitted.) Villages, LLC v.

Enfield Planning & Zoning Commission, 149 Conn.

App. 448, 456, 89 A.3d 405 (2014), appeals dismissed,

320 Conn. 89, 127 A.3d 998 (2015).

I

The plaintiff first claims that the court improperly

determined that no conditions were attached to the

2011 variance. Specifically, he contends that a review

of the entire record demonstrates that the flat roof

design and the ‘‘small area of height exceedance’’ were

implied conditions attached to the 2011 variance. He

further argues that, because the modified design sub-

mitted by the intervening defendants did not satisfy

those conditions, the 1.33 feet from the 2011 variance

should not have been considered by the zoning enforce-

ment officer in issuing the certificate of zoning compli-

ance. In response, the intervening defendants contend

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Sargent v. Zoning Board of Appeals

that the trial court correctly concluded that no condi-

tions were attached to the 2011 variance because, inter

alia, the certificate of variance issued by the board and

filed in the land records did not list any conditions.12

We agree with the intervening defendants.

The following additional legal principles are relevant

to our review of this claim. ‘‘[A] zoning board of appeals

may . . . attach reasonable conditions to the grant[ing]

of a variance. . . . Since variances allow uses forbid-

den by the regulations, the attachment of conditions to

the granting of a variance alleviates the harm which

might otherwise result. . . . Were it not for the condi-

tions imposed by a board . . . variances might not be

supportable as being in harmony with the general pur-

pose and intent of the zoning ordinance. . . . Thus the

variance and the attached conditions are inextricably

linked, the viability of the variance being contingent

upon the satisfaction of the conditions.’’ (Internal quota-

tion marks omitted.) Anatra v. Zoning Board of

Appeals, 307 Conn. 728, 740–41, 59 A.3d 772 (2013).

‘‘Just as when we employ a plenary standard of review

over the Superior Court’s interpretation of local land

use regulations . . . we conclude that when a lower

court interprets the terms of a variance or its conditions,

our review likewise is plenary over that question of

law.’’ (Citation omitted.) R & R Pool & Patio, Inc. v.

Zoning Board of Appeals, 129 Conn. App. 275, 287, 19

A.3d 715 (2011); see also Anatra v. Zoning Board of

Appeals, supra, 307 Conn. 738 (applying plenary review

to claim involving interpretation of variance).

In the present case, the court determined that no

conditions were attached to the 2011 variance. The

court explained that the certificate of variance ‘‘con-

tains a line labeled ‘conditions’ that was left blank.’’ In

addition, the 2011 plans were ‘‘conceptual’’ and labeled

12

The board agrees with the intervening defendants and has adopted their

brief in the present appeal.

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Sargent v. Zoning Board of Appeals

‘‘not for construction.’’ Finally, the minutes from the

board’s July 7, 2011 meeting, at which it considered the

intervening defendants’ variance application, reflected

that it granted another zoning application and specifi-

cally noted that that application was ‘‘granted with con-

ditions,’’ and separately set forth the conditions in the

minutes. The board did not do the same with respect

to the intervening defendants’ variance.

The court also noted that our Supreme Court’s deci-

sion in Anatra v. Zoning Board of Appeals, supra, 307

Conn. 728, on which the plaintiff relied in support of

his argument, did not inform its decision on this issue

because our Supreme Court in that case did not address

whether the record should be consulted in order to

determine whether restrictions or conditions have been

attached to the granting of a variance ‘‘when there is

no indication in the variance that approval was granted

with conditions.’’ Id., 730 n.1.

On appeal, the plaintiff continues to rely on Anatra

v. Zoning Board of Appeals, supra, 307 Conn. 728.13 The

13

The plaintiff also argues, apart from his reliance on Anatra, that a ‘‘duty

to adhere to implied conditions is codified and extended by the Fairfield

Zoning Regulations,’’ specifically § 2.37 of the regulations, which provides

in relevant part that ‘‘[c]ompliance with any maps, documents, statements

and stipulations submitted to and approved by the Commission or the Board

of Appeals in connection with a . . . Variance . . . and any condition of

such approval attached by the Commission or Board, shall be conditions

for the issuance of a Certificate of Zoning Compliance by the Zoning Enforce-

ment Officer.’’ He contends that the zoning enforcement officer was required

to ‘‘actively [search] for conditions’’ in the record pursuant to this provision.

We decline to consider this issue, which was not distinctly raised before

the trial court. See, e.g., United Concrete Products, Inc. v. NJR Construction,

LLC, 207 Conn. App. 551, 579, 263 A.3d 823 (2021) (‘‘Our appellate courts,

as a general practice, will not review claims made for the first time on

appeal. . . . [A]n appellate court is under no obligation to consider a claim

that is not distinctly raised at the trial level. . . . [B]ecause our review is

limited to matters in the record, we [also] will not address issues not decided

by the trial court. . . . The requirement that [a] claim be raised distinctly

means that it must be so stated as to bring to the attention of the court the

precise matter on which its decision is being asked.’’ (Internal quotation

marks omitted.)).

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Sargent v. Zoning Board of Appeals

plaintiff contends that, pursuant to Anatra, the court

was required to consider ‘‘the entirety of the public

record,’’ including the intervening defendants’ applica-

tion for the 2011 variance, the accompanying plans, and

the minutes from the board’s July 7, 2011 meeting at

which it considered the application, to determine

whether any conditions were attached to the variance.

He argues that these materials demonstrate that the flat

roof design of the proposed residence and the limited

size of the area that would exceed the maximum build-

ing height were conditions attached to the 2011 vari-

ance, and those conditions had not been satisfied by

the modified plans submitted to the zoning enforcement

officer. We are not persuaded.

In Anatra, our Supreme Court concluded that condi-

tions attached to a variance ‘‘should be construed not

only by examining the language contained in the certifi-

cate of variance, but by considering the entire public

record, including the variance application, the accom-

panying plans and exhibits, the minutes or hearing tran-

script, and the record of decision.’’ Anatra v. Zoning

Board of Appeals, supra, 307 Conn. 747. In that case,

however, unlike in the present case, the certificate of

variance indicated that the variance was granted with

conditions. Our Supreme Court explained: ‘‘Although

the certificate of variance did not contain an express

restriction on the addition of a conforming deck, the

certificate provided that the building coverage and front

and side yard variances had been granted ‘to permit

[the] existing structure to be replaced in the same loca-

tion within 50 [feet] of the critical coastal resources as

presented at the hearing and as shown on the plans

and the survey submitted.’ . . . Accordingly, the vari-

ance was subject to a condition that, by its very terms,

could not be construed on the basis of the language

in the certificate alone but required a review of the

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Sargent v. Zoning Board of Appeals

administrative record to determine whether the pro-

posed deck complied with the plans and survey submit-

ted with the variance application in 2001.’’ (Emphasis

altered; footnote omitted.) Id., 753.

Our Supreme Court made clear that it was reviewing

the administrative record to determine the full scope

and details of the conditions imposed, rather than to

determine whether a condition was attached to the

variance in the first instance. See id., 747 (‘‘it makes

more sense to treat a certificate of variance, which

refers to conditions having been attached, as a notice

to all those searching the land records that further inves-

tigation should be undertaken by reviewing the adminis-

trative file’’ (emphasis added)); id., 749 (‘‘[t]his conclu-

sion is in accord with the principle that, when the land

records indicate that conditions have been attached to

a variance, due diligence requires a potential buyer of

the property or other interested persons to investigate

the public record in order to obtain a full understanding

of the scope of the variance’’ (emphasis added)); see

also id., 744 (looking to courts in other jurisdictions

that have considered public record in ‘‘construing con-

ditions’’ attached to variance). Our Supreme Court

explicitly noted: ‘‘We do not address the issue of

whether the record should be consulted in order to

determine whether restrictions or conditions have been

attached to the granting of a variance when there is no

indication in the variance that approval was granted

with conditions.’’ Id., 730 n.1. Accordingly, Anatra does

not control the issue raised in the present case, and its

holding does not directly support the plaintiff’s con-

tention that the record must be consulted to determine

whether the variance in the present case was granted

with conditions.

In considering whether to consult the entire record

to determine whether restrictions or conditions have

been attached to the granting of the variance in the

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Sargent v. Zoning Board of Appeals

present case, we are guided by the legal principles set

forth in R & R Pool & Patio, Inc. v. Zoning Board of

Appeals, supra, 129 Conn. App. 275.14 In that case, this

court held that the interpretation of a variance and its

conditions should be interpreted in a manner consistent

with statutory construction. Id., 286–87. ‘‘In matters of

statutory interpretation, we are guided by General Stat-

utes § 1-2z, which directs us first to consider the text

of the statute itself and its relationship to other statutes.

If, after examining such text and considering such rela-

tionship, the meaning of such text is plain and unambig-

uous and does not yield absurd or unworkable results,

extratextual evidence of the meaning of the statute shall

not be considered. A statute is ambiguous if it is suscep-

tible to more than one plausible interpretation.’’ (Inter-

nal quotation marks omitted.) Stamford v. Commission

on Human Rights & Opportunities, Office of Public

Hearings, 351 Conn. 298, 306, 330 A.3d 102 (2025).

In R & R Pool & Patio, Inc., the trial court sought

to define the phrase ‘‘fine furniture,’’ as that term was

set forth in a variance pertaining to the plaintiffs’ prop-

erty but was not defined in the town’s zoning regulations

or in the certificate of variance. R & R Pool & Patio,

Inc. v. Zoning Board of Appeals, supra, 129 Conn. App.

276, 288. This court concluded that, ‘‘[i]f the undefined

14

In Anatra, our Supreme Court noted that this court’s holding in R & R

Pool & Patio, Inc., was ‘‘more limited’’ than this court’s approach in previous

decisions. Anatra v. Zoning Board of Appeals, supra, 307 Conn. 744. Specifi-

cally, in L & G Associates, Inc. v. Zoning Board of Appeals, 40 Conn. App.

784, 787–88, 673 A.2d 1146 (1996), and Fleet National Bank v. Zoning Board

of Appeals, 54 Conn. App. 135, 137, 140–41, 734 A.2d 592, cert. denied, 250

Conn. 930, 738 A.2d 656 (1999), this court examined the entire public record,

including the variance applications and board meeting minutes, to determine

the scope of the variances. It is unclear from the facts and reasoning of

those decisions, however, whether the certificates of variance in those cases

referred to any conditions. See L & G Associates, Inc. v. Zoning Board of

Appeals, supra, 787–88; Fleet National Bank v. Zoning Board of Appeals,

supra, 137, 140–41; see also Anatra v. Zoning Board of Appeals, supra, 742–

43.

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Sargent v. Zoning Board of Appeals

words or terms are clear and unambiguous on their face,

the interpretation of their meaning poses a question of

law, which requires nothing more than looking to the

certificate itself . . . .’’ Id., 287. In contrast, when ‘‘the

undefined words or phrases [in a certificate of variance]

are ambiguous or reasonably susceptible to multiple

interpretations, a search for the intent of the board at

the time it approved the variance is necessary to resolve

that question . . . .’’ Id., 287–88. After noting that the

phrase ‘‘fine furniture’’ contained ambiguity; id., 290;

this court reviewed the record in that case, including

the original application for a variance, the testimony at

the hearing and the zoning board’s deliberations, to

define the meaning of that term. Id., 291–93, 296.

Applying those principles to the present case, we first

turn our attention to the certificate of variance itself.

In the section of the certificate entitled ‘‘Nature of Appli-

cation,’’ the certificate states in relevant part: ‘‘Section

11.7 to increase the dwelling height from 30 feet, propos-

ing 31.33 feet, and Section 11.1.1 to permit to construct

two dwellings on one parcel. Permission to remove two

existing dwellings and construct two new dwellings.’’

(Emphasis omitted.) On a line labeled ‘‘Plans Entitled,’’

the certificate states: ‘‘Prepared by The Huntington

Company, LLC, dated 2-2-10.’’ The next line, labeled

‘‘Conditions,’’ was left blank.

We conclude that, because the line designated for

conditions was left blank and there is no other indica-

tion in the certificate of variance that approval was

granted with conditions, the trial court properly con-

cluded that no conditions were attached to the 2011

variance. We discern no ambiguities in the certificate

of variance because it contains no language that reason-

ably could be construed as imposing a condition. The

question of whether conditions were attached to the

variance, therefore, ‘‘requires nothing more than look-

ing to the certificate itself’’; R & R Pool & Patio, Inc.

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Sargent v. Zoning Board of Appeals

v. Zoning Board of Appeals, supra, 129 Conn. App. 287;

and a review of the other materials in the administrative

record, such as the variance application and the plans

submitted in support thereof, is unnecessary. See, e.g.,

Stamford v. Commission on Human Rights & Oppor-

tunities, Office of Public Hearings, supra, 351 Conn.

306 (in applying principles of statutory construction,

if text of statute is clear and unambiguous, resort to

extratextual evidence shall not be considered). Accord-

ingly, the board properly considered the 2011 variance,

even though the modified designs submitted by the

intervening defendants did not have a flat roof design

or a limited 128 square foot area that would exceed

the maximum building height, because those were not

conditions attached to the variance.

II

The plaintiff also claims that the 1.33 feet from the

2011 variance should not have been considered in calcu-

lating the maximum building height because the 2011

variance was rendered moot by the 2013 amendment

to § 11.7 of the regulations. Specifically, the plaintiff

contends that the 2011 variance ‘‘no longer had any

legal effect, as the height permitted under the 2011

variance was now allowed as of right.’’ We are not

persuaded.

At the outset, we briefly note that this claim presents

a question of law, over which our review is plenary. See

Parker v. Zoning Commission, supra, 209 Conn. App.

653; see also International Investors v. Town Plan &

Zoning Commission, 344 Conn. 46, 59, 277 A.3d 750

(2022) (whether special permit was rendered void was

question of law subject to plenary review); Santarsiero

v. Planning & Zoning Commission, 165 Conn. App.

761, 772, 140 A.3d 336 (2016) (‘‘[b]ecause the court . . .

made conclusions of law in its memorandum of decision

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Sargent v. Zoning Board of Appeals

[in this case], our review is plenary’’ (internal quotation

marks omitted)).

In the present case, the trial court rejected the plain-

tiff’s argument that the amendment to § 11.7 of the

regulations rendered the 2011 variance moot, explaining

that the plaintiff’s argument ‘‘is not only contradicted

by the plain language of General Statutes § 8-6 (b), but

is also not supported by any statutory or regulatory

authority that requires a renewal or the extinguishment

of a variance based on amendments to regulations. The

court cannot read language into the regulations or . . .

§ 8-6 (b). . . . Indeed, it would yield an unworkable

result for property owners and municipalities if a land-

owner with a variance had to reapply to ‘renew’ vari-

ances each time a municipality’s regulations were

amended or each time a property owner reconstructed

or remodeled the structure for which a variance

applied.’’ (Citations omitted; footnote omitted.)

We agree with the trial court. The plaintiff cites no

authority, and we have found none, to support the prop-

osition that a variance may be rendered moot by a

subsequent amendment to the regulations.15 Section 8-

6, which governs a zoning board’s authority to grant a

variance, does not describe any limitations or restric-

tions placed on a variance once it is granted and

recorded in the land records. Indeed, it provides in

relevant part that ‘‘[a]ny variance granted by a zoning

board of appeals shall run with the land and shall not

be personal in nature to the person who applied for

and received the variance. A variance shall not be extin-

guished solely because of the transfer of title to the

15

In addition to the lack of legal support for the plaintiff’s argument, we

also note that an amendment to the regulations does not necessarily alleviate

the hardship for which the variance was sought. For instance, in the present

case, although the maximum building height increased pursuant to the 2013

amendment to § 11.7 of the regulations, that increase simply accounted for

the new base flood elevation that also went into effect in 2013. See Fairfield

Zoning Regs., § 11.7.

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Sargent v. Zoning Board of Appeals

property or the invalidity of any condition attached to

the variance that would affect the transfer of the prop-

erty from the person who initially applied for and

received the variance.’’ General Statutes § 8-6 (b); see

also Amendola v. Zoning Board of Appeals, 161 Conn.

App. 726, 737, 129 A.3d 743 (2015) (‘‘[t]he granting of

a variance is no insignificant matter, as it runs with the

land in perpetuity’’ (internal quotation marks omitted)).

The plaintiff’s argument that the amendment to the

regulations effectively extinguished the 2011 variance

ignores the language in § 8-6, which provides that vari-

ances run with the land. As aptly noted by the trial

court in the present case, ‘‘it would yield an unworkable

result for property owners and municipalities if a land-

owner with a variance had to reapply to renew variances

each time a municipality’s regulations were amended

. . . .’’ (Internal quotation marks omitted.)

Thus, the plaintiff has not demonstrated that the 2011

variance was rendered moot, or no longer had any legal

effect, by virtue of the amendment to § 11.7 of the regu-

lations.16 Accordingly, the 2011 variance properly was

16

A similar issue has been addressed in the context of the justiciability

of an appeal. In Protect Hamden/North Haven from Excessive Traffic &

Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 600

A.2d 757 (1991), our Supreme Court concluded that subsequent regulatory

changes did not render a zoning appeal moot because, pursuant to General

Statutes § 8-2h (a), a zoning application must be considered under the zoning

regulations in effect on the date it was filed. Id., 540–41. Our Supreme

Court explained that § 8-2h (a) legislatively overruled this court’s decision

in Johnson v. Zoning Board of Appeals, 2 Conn. App. 24, 475 A.2d 339, cert.

denied, 194 Conn. 806, 482 A.2d 711 (1984), cert. denied, 471 U.S. 1066, 105

S. Ct. 2141, 85 L. Ed. 2d 498 (1985), which held that a zoning appeal had

become moot by virtue of subsequent regulatory amendments. Protect Ham-

den/North Haven from Excessive Traffic & Pollution, Inc. v. Planning &

Zoning Commission, supra, 540–41; see Johnson v. Zoning Board of

Appeals, supra, 2 Conn. App. 26–27 (An appeal to the trial court ‘‘was

properly dismissed as moot since the zoning variance has been superseded

by a subsequent amendment to the zoning regulations which permit the use

as of right. When present regulations permit the use, the plaintiff gains

nothing by his action to set aside the granting of a variance which the

landowner no longer needs. In a zoning appeal the court is to take the law

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Sargent v. Zoning Board of Appeals

considered in calculating the maximum building height

of the intervening defendants’ proposed residence. The

court, therefore, properly dismissed the plaintiff’s

appeal from the board’s decision denying the plaintiff’s

appeal from the issuance of the certificate of zoning

compliance by the town’s zoning enforcement officer.

The judgment is affirmed.

In this opinion the other judges concurred.

as it exists at the time of the review of the zoning decision complained of.

. . . There is no practical relief which could follow were the plaintiff’s

appeal of the zoning variance to be sustained.’’ (Citation omitted.)); see also

Michel v. Planning & Zoning Commission, 28 Conn. App. 314, 318, 612

A.2d 778 (explaining that § 8-2h (a) ‘‘legislatively overruled’’ Johnson, and ‘‘a

challenge to commission action no longer is rendered moot by a subsequent

change in the applicable zoning laws or regulations’’), cert. denied, 223

Conn. 923, 614 A.2d 824 (1992). Given that an appeal from the granting of

a variance is not rendered moot by virtue of subsequent regulatory amend-

ments, and a reviewing court may still afford practical relief related to that

variance, it follows that subsequent regulatory amendments do not render

a variance moot for purposes of its future use.