West Haven City Zoning Code
APPEAL AUTHORITY
HEARING OFFICER
§ 157.035 APPOINTMENT, TERM, REMOVAL.
(A) The Appeal Authority (“Hearing Officer”) shall be a single individual, appointed by the Mayor, with the advice and consent of the City Council, for a term of three years, and may be appointed for succeeding three-year terms.
(B) The Hearing Officer shall, as a minimum, have such training and experience as will qualify thim or her to conduct administrative or quasi-judicial hearings regarding land use, land development, and regulatory codes dealing with issues related to land use, and have knowledge and familiarity with constitutional due process rights.
(C) The Mayor may remove the Hearing Officer for cause upon receipt of written charges filed against the Hearing Officer, after a public hearing if requested, and upon the advice and consent, of the City Council.
(D) Upon the death, resignation, removal, or disqualification, the position of Hearing Officer shall be promptly filled by a replacement appointed by the Mayor with the advice and consent of the City Council for the unexpired term of the previous Hearing Officer.
(E) The Hearing Officer shall be an independent contractor.
(F) The Mayor may, from time to time, appoint a Hearing Officer pro tempore temporarily when necessitated by the absence, unavailability, incapacity, or disqualification of the regularly-appointed Hearing Officer, upon the advice and consent of the City Council. Each Hearing Officer pro tempore shall, as a minimum, have qualifications similar to those specified in division (B) above.
(Prior Code, § 06.01) (Ord. 2-92, passed - -1992; Ord. 02-2015, passed 1-7-2015)
§ 157.036 ORGANIZATION AND MEETINGS.
(A) Powers and rights. The Hearing Officer shall adopt rules under state law, this chapter, and any other applicable ordinance. Meetings of the Hearing Officer shall be held at such times as the Hearing Officer may determine. The Hearing Officer may administer oaths and compel the attendance of witnesses. Meetings of the Appeal Authority may be open to the public or conducted by any means, including electronic communication only, sufficient to provide the parties due process and equal protection.
(B) Minutes; records. The Hearing Officer shall keep minutes of his or her proceedings, and shall keep records of his or her examinations and other official actions, all of which shall be immediately filed in the office of the City Recorder and shall be a public record.
(C) Routine, uncontested matters. The Mayor, with the advice and consent of the City Council, may appoint a Zoning Administrator to decide routine and uncontested matters of the Appeal Authority, with concurrence with the City Attorney, as designated by the Appeal Authority, and under its established guidelines. Any person aggrieved by a decision of the Zoning Administrator may appeal the decision to the Hearing Officer, as provided in this chapter.
(Prior Code, § 06.02) (Ord. 2-92, passed - -1992; Ord. 02-2015, passed 1-7-2015)
§ 157.037 APPEALS.
Any person aggrieved by his or her inability to obtain a building permit, or by the decision of any administrative officer or agency based upon, or made in the administration or enforcement of, the ordinances of the city related to a decision of a land use application, land development, or city regulatory requirements, or a variance, may take an appeal to the Hearing Officer. Appeals to the Appeal Authority may be taken by any officer, department, board, or bureau of the city affected by the grant of, or refusal to grant, a building permit, or by any other decision of an administrative officer or agency based on, or made in, the administration or enforcement of city ordinances related to a decision of a land use application, land development, or city regulatory code or a variance.
(A) Time to appeal. Any appeal under this section must be filed in writing with the City Recorder within 14 calendar days of issuing any written decision related to the topics, areas, or conditions set out in the paragraph above.
(B) Time for hearing appeal. The Hearing Officer will hear the appeal within 15 days after the date the appeal was filed. For good cause shown, the Hearing Officer may extend this time as necessary.
(C) Written statement setting forth theories of relief required. Not less than five business days prior to the scheduled hearing on the matter, the appellant shall deliver to the Hearing Officer, and all other participants, a written statement setting forth every theory of reliefs he or she intends to raise at the hearing, with a brief statement of facts in support.
(D) Condition precedent to judicial review. No theory of relief may be raised in the District Court unless it was timely and specifically presented to the Hearing Officer.
(E) Standard of review and burden of proof on appeal. The Hearing Officer shall, on appeal, presume that the decision applying the land use ordinance is valid and determine only whether or not the decision is arbitrary, capricious, or illegal. The burden of proof on appeal is on the appellant.
(F) Due process rights. The Hearing Officer shall respect the due process rights of each participant.
(Prior Code, § 06.03) (Ord. 2-92, passed - -1992; Ord. 02-2015, passed 1-7-2015)
§ 157.038 STAY OF PROCEEDINGS PENDING APPEAL.
(A) An appeal stays all proceedings in furtherance of the action for which the appeal has been filed unless the officer from whom the appeal is taken certifies to the Hearing Officer, after the notice of appeal shall have been filed with him or her, that, by facts stated in the certificate, the stay would, in his or her opinion, cause imminent peril to life or property.
(B) In such case, proceedings shall not be stayed otherwise than by a restraining order, which may be granted by the Hearing Officer or by the district court on application and notice, and on good cause shown.
(Prior Code, § 06.04) (Ord. 2-92, passed - -1992; Ord. 02-2015, passed 1-7-2015)
§ 157.039 NOTICE OF MEETING ON APPEAL; RIGHTS OF APPEARANCE.
The Hearing Officer shall fix a reasonable time for hearing the appeal, give public notice and due notice to the parties in interest, and shall decide the same within a reasonable time. At the hearing, any party may appear in person or by agent or by attorney.
(Prior Code, § 06.05) (Ord. 2-92, passed - -1992; Ord. 02-2015, passed 1-7-2015)
§ 157.040 POWERS OF HEARING OFFICER ON APPEAL.
The Hearing Officer shall have the following powers:
(A) Appeals. To hear and decide appeals where it is alleged by the appellant there is error in any order, requirement, decision, or refusal made by an administrative official or agency based on, or made in, the enforcement of this chapter;
(B) Special exceptions. To hear and decide, under this chapter, requests for special exceptions, or for interpretation of the map, or for decisions on other special questions on which such authority is authorized by this chapter to pass;
(C) Variances. To authorize, on an appeal, a variance from strict application of the regulations, where, by exceptional narrowness, shallowness, or shape of a piece of property at the time of the enactment of the regulation, or by exceptional topographic conditions or other extraordinary and exceptional situations or conditions of such piece of property, the strict application of any regulations enacted would cause peculiar and exceptional practical difficulties to, or exceptional and undue hardships upon, the owner of such property. The variance from such strict application can be granted to relieve such difficulties or hardships; provided such relief may be granted without substantial detriment to the public good and without substantial impairment to the intent and purpose of the master plan and this chapter. Before any variance may be authorized, however, it shall be shown that:
(1) The variance will not substantially affect the comprehensive plan of zoning in the city and that adherence to the strict letter of this chapter will cause difficulties and hardships, the imposition of which, upon the petitioner, is unnecessary to carry out the general purpose of the plan;
(2) Special circumstances are attached to the property covered by the application which do not generally apply to other properties in the same zone;
(3) Because of the special circumstances, property covered by the application is deprived of privileges possessed by other properties in the same zone, and that granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same zone; and
(4) In determining whether enforcement of the land use ordinance would cause unreasonable hardship, the Appeal Authority may not find an unreasonable hardship if the hardship is self-imposed or economic.
(D) Nonconforming uses. To permit the enlargement of, addition to, or relocation of a building or structure, nonconforming as to use regulations, the following shall apply:
(1) For a nonconforming use in a residential zone, the enlargement, addition, or relocation shall either:
(a) Comply with all the height, yard, and area requirements for a single-family dwelling in the zone in which the nonconforming building is located; or
(b) The proposed enlargement, addition, or relocation will either:
1. Improve the area by increasing the off-street parking; or
2. Improve the general appearance, convenience, or safety of the area.
(2) For a nonconforming use in any zone other than a residential zone, the enlargement, addition, or relocation shall comply with all height, yard, and area requirements for a main building, other than dwellings, in the zone in which it is located; and
(3) Before granting a permit for any enlargement, addition, or relocation, the Hearing Officer shall find in his or her public meeting that the proposed changes will not hinder or obstruct the attainment of the objectives of this chapter more than does the existing nonconforming use.
(E) Nonconforming yard, height, or area regulations. To allow those enlargements of, additions to, or relocations of buildings and structures nonconforming as to yard, height, or area regulations, where an undue hardship will result to the owner of the land involved unless granted and the attainment of the objectives of this chapter will not be hindered or obstructed; and provided the proposed enlargement, addition to, or relocation of will either:
(1) Improve the area by increasing needed off-street parking; or
(2) Improve the general appearance, convenience, or safety of the area.
(F) Extension of use. To permit, where a zone boundary line divides a lot in single ownership at the time of establishment of the boundary, a use authorized on either portion of such lot to extend to the entire lot; provided, such permission shall not authorize the use to extend over 35 feet beyond the zone boundary line or extend to an area greater than 5,000 square feet beyond the said boundary line;
(G) Changes in nonconforming uses. To permit a nonconforming use to be changed to another use allowed in the same or a more restrictive zone than the one in which the nonconforming use would be allowed; provided, that the Hearing Officer finds in its public meeting such change will not hinder or obstruct the attainment of the objectives of this chapter more than does the existing nonconforming use;
(H) Use permitted without street frontage. To permit the construction and use of a dwelling upon a lot which does not have frontage on a street, but has frontage on a dedicated right-of-way;
(I) Lot splitting. To permit the splitting of a lot wherein such lot split creates a lot which does not have the required width of the zone in which the lot is located; provided the created nonconforming lot meets the area requirements of the zone and the structure placed on the lot meets all required site standards of the zone; and that before building permits are issued for the nonconforming split, the lot split shall be reviewed and approved by the City Engineer.
(J) Burden of proof. The applicant shall bear the burden to prove that all of the conditions justifying a variance have been met;
(K) Variances run with land. Once granted, variances run with the land; and
(L) Additional requirements. In granting a variance, the Hearing Officer may impose additional requirements on the applicant that will:
(1) Mitigate any harmful effects of the variance; or
(2) Serve the purpose of the standard or requirement waived or modified.
(Prior Code, § 06.06) (Ord. 2-92, passed - -1992; Ord. 02-2015, passed 1-7-2015)
§ 157.041 DECISION OF APPEAL.
In exercising the above-mentioned powers, such Hearing Officer may, in conformity with this chapter, reverse or affirm wholly or partly, or may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination as should be made, and shall have all the powers of the officer from whom the appeal is taken.
(Prior Code, § 06.07) (Ord. 2-92, passed - -1992; Ord. 02-2015, passed 1-7-2015)
§ 157.042 ACTS NECESSARY FOR REVERSAL.
The favorable finding of the Hearing Officer shall be necessary to reverse any order, requirement, or determination of any administrative official, or to decide in favor of the appellant on any matter upon which the Hearing Officer is required or entitled to decide under this chapter, or to effect any variation in such ordinance.
(Prior Code, § 06.08) (Ord. 2-92, passed - -1992; Ord. 02-2015, passed 1-7-2015)
§ 157.043 JUDICIAL REVIEW OF APPEAL AUTHORITY’S DECISION.
The city or any person aggrieved by a decision of the Hearing Officer may have, and maintain, a plenary action for relief therefrom in any court of competent jurisdiction; provided petition for such relief is presented to the court within 30 days after the Hearing Officer files his or her decision in the office of the City Recorder.
(Prior Code, § 06.09) (Ord. 2-92, passed - -1992; Ord. 02-2015, passed 1-7-2015)
§ 157.044 TIME LIMITATION OF VARIANCE.
(A) If the Hearing Officer grants a variance under this chapter, alterations under the variance, if required, must be activated within six months after the date the variance is granted or the variance becomes null and void. The time limit of the variance may be extended an additional six months by the appeal authority, and then only if the petitioner shows adequate cause to the Hearing Officer that circumstances necessitate a time extension.
(B) If it is the case that the variance granted permits the continuation of a previously-nonconforming use, that use shall continue and shall run with the land.
(Prior Code, § 06.10) (Ord. 2-92, passed - -1992; Ord. 02-2015, passed 1-7-2015)
§ 157.045 FILING FEE.
(A) Upon filing of any appeal or application to the appeal authority, the appellant or applicant shall pay to the city a fee prescribed by the City Council. This fee shall be in accordance with the West Haven City Consolidated Fee Schedule. The West Haven City Consolidated Fee Schedule is hereby adopted by reference.
(B) The said fee shall be collected by the officer in whose office said appeal is filed and shall be deposited with the City Treasurer and credited to the General Fund.
(C) No appeal or application shall be considered by the Hearing Officer unless such fee has been paid.
(Prior Code, § 06.11) (Ord. 2-92, passed - -1992; Ord. 02-2015, passed 1-7-2015; Ord. 26-2023, passed 1-3-2024)
§ 157.046 COMPENSATION OF APPEAL AUTHORITY.
(A) The Hearing Officer shall be an independent contractor, and will enter into a three-year contract for services at the beginning of each appointed term.
(B) Terms for compensation and reimbursement will be determined and agreed upon, and approved by, the City Council prior to any individual entering into service as the Appeal Authority.
(Prior Code, § 06.12) (Ord. 2-92, passed - -1992; Ord. 02-2015, passed 1-7-2015)
§ 157.047 DEFINITIONS.
For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates, or requires, a different meaning.
APPEAL AUTHORITY. The person, appointed by the Mayor, subject to advice and consent, to decide an appeal of a decision of a land use application, land development, or city regulatory code or a variance.
HEARING OFFICER.
(1) The individual duly appointed as the Appeal Authority.
(2) The terms HEARING OFFICER and APPEAL AUTHORITY are synonymous as the text may require as used throughout this chapter.
LAND USE APPLICATION. An application required by a municipality’s land use chapter.
LAND USE AUTHORITY. A person, appeal authority, commission, agency, or other body designated by the legislative body to act upon a land use application. (May be the HEARING OFFICER or APPEAL AUTHORITY as the text may require as used throughout this chapter. The city may also establish more than one LAND USE AUTHORITY.)
LAND USE ORDINANCE. A planning, zoning, development, or subdivision ordinance of the municipality, but does not include the general plan.
THIS CHAPTER. The actual language constituting this chapter and any other part of any other city ordinance related to a decision of a land use application, land development, or city regulatory ordinance, code, or a variance, also, but not limited to, the following areas:
(1) Business and license regulations, and public health and safety;
(2) Public ways and property building regulations, and zoning regulations; and
(3) Planned residential unit development.
(Prior Code, § 06.13) (Ord. 2-92, passed - -1992; Ord. 02-2015, passed 1-7-2015)
§ 157.048 ADDITIONAL CHANGES.
(A) Appeals. All prior references to “appeals” in prior ordinances are amended to read: If an applicant is dissatisfied with the decision of the Planning Commission, an appeal may be submitted to the Appeal Authority under this chapter.
(B) Variance procedures. All prior references to “variance procedures,” or similar appeal matters for variances as established in prior ordinances, are amended to read:
(1) The Appeal Authority, as established by this chapter, shall hear and render judgment on requests for variances from the requirements of this chapter;
(2) The Appeal Authority shall hear and render judgment on an appeal only when it is alleged there is an error in any requirement, decision, or determination made by the officer, agent, or office of the city in the enforcement or administration of the ordinances of the city;
(3) Any person or persons aggrieved by the decision of the Appeal Authority may appeal such decision in the state courts of competent jurisdiction. Jurisdiction and venue shall lie with the Second District Court of the county;
(4) When floodplain decisions are at issue, the Floodplain Administrator shall maintain a record of all actions involving an appeal, and shall report variances to the Federal Emergency Management Agency upon request;
(5) Variances may be issued for the reconstruction, rehabilitation, or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places, in conformance with state or federal requirements related thereto, without regard to contrary or conflicting procedures in this chapter;
(6) Such variances may be issued for the repair or rehabilitation of historic structures upon a determination that the proposed repair or rehabilitation will not preclude the structure’s continued designation as a historic structure, and the variance is the minimum necessary to preserve the historic character and design of the structure;
(7) Upon consideration of the factors noted above and consistent with the intent of this chapter, the Appeal Authority may attach such conditions when granting variances as it deems necessary to further the purpose and objectives of this chapter, the city’s zoning, and subdivision ordinances, and other ordinances;
(8) Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result;
(9) Prerequisites for granting variances:
(a) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief;
(b) Variances shall only be issued upon:
1. Showing a good and sufficient cause;
2. A determination that failure to grant the variance would cause exceptional hardship to the applicant; and
3. A determination that granting a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on, or victimization of, the public, or conflict with existing local laws or ordinances.
(c) Any applicant to whom a variance is granted shall be given written notice that the structure may be built with the lowest floor elevation below the base flood elevation, and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation.
(10) Variances may be issued for new construction and substantial improvements, and for other development necessary for the conduct of a functionally-dependent use; provided that:
(a) The criteria outlined in divisions (B)(2) through (B)(8) above are met; and
(b) The structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety.
(Prior Code, § 06.14) (Ord. 2-92, passed - -1992; Ord. 02-2015, passed 1-7-2015)