STEMBER v. NORWALK ZBA, No. CV01 0185506 S (Jan. 3, 2005)

BLACK, JUDGE.

The Defendant Norwalk Inn and Conference Center filed a Motion to Reargue dated March 30, 2004 in response to the Court's Memorandum of Decision dated March 11, 2004. Pursuant to Connecticut Practice Book § 1-12(a) and (c) the Inn identified specific grounds for reargument. The defendant's Motion For Reargument pp. 4-7.

The court granted the Inn's request for reargument and held a hearing on August 26, 2004. The plaintiff and defendant filed briefs in reference to the Plaintiff's Objection to Reargument and the Defendants' Brief in Support of Reconsideration on September 15, 2004.

"The purpose of reargument is . . . to demonstrate to the court that there is some decision or some principle of law which could have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts." (Internal quotation marks omitted.) Jaser v. Jaser, 37 Conn.App. 194, 202, 655 A.2d 790 (1995).

"A motion to reargue however, is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument." (Internal quotation marks omitted and citations omitted.) Opoku v. Grant, 63 Conn.App. 686, 692-93 (2001).

The Defendant Inn has advanced arguments A through E in its supplemental brief. The plaintiff asserts that the Inn has improperly raised for the first time at the hearing and in its brief arguments and case law not submitted in its initial brief or argument before this court. The plaintiff further contends; CT Page 87 "[R]elying strictly on procedural grounds, the court should decline to consider these new cases and the new arguments presented by the Norwalk Inn." (Plaintiff's Brief, p. 2.) The court agrees.

The court, in the interest of justice, agreed to hear reargument on the grounds specified in the motion. The court has reviewed the transcript of the August 26, 2004 hearing. It has also carefully reviewed the briefs of the parties. It has also reread its decision to determine if there was some principle of law which would have had a controlling effect which was overlooked or if there was some misapprehension of fact. The court concludes that no controlling principle of law was overlooked. In reference to the court's statement in reference to the Inn's failure to request a special permit (Memorandum of Decision, p. 8), the court acknowledges that this was a misapprehension of fact but one not dispositive of the main issue. Indeed, the court acknowledged "that in all likelihood the Inn could have obtained the necessary special permit under the regulations." (Memorandum of Decision, p. 9.)

The court will briefly address the arguments masterfully advanced by the defendant to avoid any further confusion. Argument A is unsupported by any case law to substantiate the claim that two separate properties "seeking to merge" should be considered as one property for the purpose of analyzing hardship. Argument B claims that the court can separate the two properties and find that the ZBA properly granted the variance for 93 East Avenue because the variance made the property more conforming. This however, is not the application that was presented to the ZBA. This court cannot hear the evidence de novo, substitute its judgment for that of the ZBA or reinvent the evidence before the board. Kalimian v. Zoning Board of Appeals, 65 Conn.App. 628, 630-31. Argument C addresses the issue that the hardship is not self-created; the purchaser with knowledge rule does not apply. The defendant asserts that the court based its finding that the hardship was self-created because the Inn did not request a special permit. The court acknowledges that this finding was incorrect. What the defendant ignores are other specific findings made by the court as to claimed hardship; specifically competitive advantage, disappointment in use, financial loss/advantage or design preference. As to the vested right argument, the court concurs with the plaintiff that this argument is improperly before this court and represents an attempt for a "second bite of the apple." Argument D is similarly improper. CT Page 88 Argument E fails for the reasons detailed in the discussion of Argument A.

The court has reconsidered and carefully reviewed its decision in this matter and concludes as it did in its previous Memorandum of Decision. The plaintiff's appeal is sustained.

The court

Marylouise Black Superior Court Judge

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