Opinion
FBTCV166057526S
03-02-2017
Christopher Clanton v. Westport Zoning Board of Appeals et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
This appeal raises the question of what may be considered a " an exceptional difficulty or unusual hardship" for a zoning variance under C.G.S. § 8-6(a)(3) after the Supreme Court's decision in E & F Associates, LLC v. ZBA Fairfield, 320 Conn. 9, 21, 127 A.3d 986 (2015), and the Appellate Court's decision in Verrillo v. ZBA Branford, 155 Conn.App. 657, 692-93, 111 A.3d 473 (2015). For the reasons stated below, the appeal is sustained.
Standard of Review
In Anatra v. Zoning Board of Appeals of Madison, 307 Conn. 728, 737-38, 59 A.3d 772 (2013), the Supreme Court addressed the standard of review applicable to judicial review of a Zoning Board of Appeal's decision. " Generally, it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court ha[s] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal . . . Moreover, the plaintiffs bear the burden of establishing that the board acted improperly." 307 Conn. at 737-38 (ellipsis in original) quoting Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 408-09, 920 A.2d 1000 (2007).
A reviewing court is not permitted to substitute its judgment on the evidence for that of the Board. " 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 there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning commission'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." Woodbury Donuts, LLC. v. Zoning Board of Appeals of Woodbury, 139 Conn.App. 748, 759-60, 57 A.3d 810 (2012) (citations omitted).
A zoning board's actions must be approved if even one of the board's stated reasons is sufficient to sustain the action. See Blakeman v. Planning & Zoning Com'n of Shelton, 82 Conn.App. 632, 647, 846 A.2d 950 (2004).
The Anatra Court also distinguished between issues based on the interpretation of statutes, which presents a question of law subject to plenary review, and the question of whether the board properly ruled on an application, which is " subject to review only to determine whether the board 'acted unreasonably, arbitrarily, illegally or in abuse of its discretion.'" Anatra, 307 Conn. at 738 quoting Alvord, 282 Conn. at 409.
Plaintiffs bear the burden of proving the ZBA acted improperly in granting the variances. Wood v. ZBA Somers, 258 Conn. 691, 698, 784 A.2d 354 (2008).
Plaintiffs Are Aggrieved by the ZBA Decision
Plaintiffs Christopher Clanton and Ester Clanton own real property that abuts the property that is the subject of the variances; they are therefore aggrieved persons under C.G.S. § 8-8(a)(1).
The Evidence in the Record
The applicants Patrick Donnerstag and Alexis Donnerstag (the " Applicants") own property located at 18 Keyser Road in Westport (the " Property"). There is an existing house on the Property. The Applicants desire to add one and one-half stories to the existing house as defined by the Westport zoning regulations (the " Regulations"). The Applicants plan to build on the existing foundation by adding a second floor and a half story above that to increase the living area in the home. The lower level and garage would remain as they are presently.
The Property is located in the Residential A Zoning District, which has a minimal lot size of .5 acres, and is nonconforming at .253 acres. Under the Regulations, total coverage permitted is based on total lot size less areas with slopes and easements, which for the Property would be 9, 991 square feet. Applicants requested variances with respect to setbacks, building coverage and lot coverage. The present structure was built in 1940 and is non-conforming. The proposed development would result in intensification of its permitted use as a residence. The net effect of adding and subtracting space will be a .16% increase of encroachment in the setback area. The existing lot coverage is 25.4%, which exceeds the 25% permitted by Regulations. The new lot coverage would be 26%, that is .6% more than existing and 1% more than permitted lot coverage. The existing building coverage is .16% greater than allowed; the proposal would increase building coverage by .55%.
The Applicants asserted the following hardships: the Property is a nonconforming lot in size with two front setbacks because it fronts on two streets. There are 50 square feet of easement space and a steep slope of 960 feet, which reduces the base lot area to 9, 991 square feet; without deducting the easement and steep slope, lot coverage will be 23.06% in compliance with the Regulations. The Property is considerably smaller than the other lots in the surrounding neighborhood.
The Westport Zoning Director, Steve Palmer, informed the Zoning Board of Appeals (" ZBA") that 1.) the Property is legally nonconforming as to lot area, building coverage and setbacks; 2.) There are two front yards so there are two front yard setbacks; 3.) the total coverage increase for building and lot coverage would equal 59 square feet; 4.) the easement and slope deductions reduce the gross lot area to a smaller net lot area; 5.) there would be no footprint change, except for a front porch, because the proposal is to build above the existing foundation; and 6.) there will be no increase in nonconforming use because the proposal is to build a single-family home, which is a permitted use in the zoning district.
The ZBA unanimously approved the variances finding as unusual hardships the small lot size, the steep slopes and the easement that are part of the topography of the Property.
Plaintiffs appealed the granting of the variances and have argued that the ZBA's decision was arbitrary, illegal and an abuse of the board's discretion because there is no legally cognizable hardship based on the facts in the record and the proposal would expand nonconformities in the Property in violation of the Regulations and therefore be in contravention of Westport's comprehensive plan of development.
Whether the Record Shows a Hardship to Support the Granting of the Variances.
A variance constitutes permission for a party to use their property in a manner otherwise prohibited by the zoning regulations. Bloom v. ZBA, 233 Conn. 198, 206, 658 A.2d 559 (1995). The authority for granting variances is set forth in C.G.S. § 8-6(a)(3) which allows the board to vary the application of the zoning ordinance or regulations, consistent " with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured." See generally R. Fuller, Land Use Law & Practice § 9:1 (4th ed. 2016) (" Fuller").
To sustain the granting of a variance there must be evidence that: 1.) because of circumstances unique to the property adherence to the strict letter of the zoning regulations would cause exceptional difficulty and unusual hardship and 2.) the variance is not substantially inconsistent with and effect the town's comprehensive plan of development. See Grillo v. ZBA West Haven, 206 Conn. 362, 537 A.2d 1030, (1988); Bloom v. ZBA Norwalk, 233 Conn. 198, 206, 658 A.2d 559 (1995). See generally Fuller § 33.7.
There is an alternative to hardship as a ground for issuance of a variance: " [a] variance which will eliminate a nonconforming use is an independent ground for approving the variance. The reduction of existing nonconforming uses or the change of one nonconforming use to another one which has less impact on the neighborhood may also constitute a ground for granting a variance in some situations." Fuller § 9:3 (footnotes omitted). See Hescock v. ZBA of Stonington, 112 Conn.App. 239, 258-59, 962 A.2d 177 (2009), quoting Vine v. ZBA of North Branford, 281 Conn. 553, 571, 916 A.2d 5 (2007). The parties agree this alternative ground does not apply here.
Review of the ZBA's granting of the variance starts with analysis of the reasons for the board's action. " Whenever a zoning board of appeals grants a variance, it is required to state the reasons for its action . . . Where the board states the reasons for its decision, the court only determines if those reasons are reasonably supported by the record and are pertinent to the considerations that the board was required to apply. Where the board fails to state its reasons for granting or denying a variance, the court must search the record to attempt to find some basis for the action taken. If a zoning board of appeals gives no reasons for granting variance the trial court searches the record to determine whether the board should have granted it." Fuller § 33.7 (footnotes omitted).
Here, the ZBA found the following unusual hardship from the application of the Regulations to the Property: small lot, slopes and easement. There is substantial evidence in the record to support all three reasons given by the ZBA, which are pertinent to the considerations the board was required to apply. Section 13-3 of the Regulations provides with respect to A District:" [e]ach lot shall have a minimum area of one-half (1/2) acre (21, 780 square feet) and shall be of such shape that a rectangle one hundred (100) feet by one hundred fifty (150) feet will fit on the lot. The Property consists of 11, 000 square feet or .253 acre, approximately one-half the size of the minimum size in A District. The improvement location survey shows 1, 200 square feet of steep slopes. The same survey shows that the Property fronts on two public streets and reports fifty square feet of street and road easements.
The question remain, however, whether the facts in the record disclose an " exceptional difficulty and unusual hardship" within the meaning of C.G.S. § 8-6(a)(3). In E. & F. Associates, 320 Conn. at 21-22, the Supreme Court held that peculiar characteristics of property that made it difficult to construct a second story on building that would comply with zoning setback requirements did not justify granting a variance, overruling Stillman v. Zoning Board of Appeals, 25 Conn.App. 631, 596 A.2d 1 (1991), and its progeny, Jersey v. Zoning Board of Appeals, 101 Conn.App. 350, 360, 921 A.2d 683 (2007) and Giarrantano v. Zoning Board of Appeals, 60 Conn.App. 446, 453, 760 A.2d 132, (2000), all of which had upheld variances based on unusual characteristics of the subject property without further hardship.
This court . . . has criticized the Appellate Court's decision in Stillman. In Bloom v. Zoning Board of Appeals, supra, 233 Conn. at 210-11 n.13, 658 A.2d 559 this court stated that, contrary to the holding in Stillman, " the fact that an owner is prohibited from adding new structures to the property does not constitute a legally cognizable hardship. If it is a hardship to not be able to use one's property as one wishes, then most setback variance applications would have to be granted . . . Although we distinguish Stillman from this case, we do not necessarily endorse its holding." . . .
Moreover, Stillman is inconsistent with our cases holding that, when a property would have economic value even if the zoning regulations were strictly enforced, the fact that a peculiar characteristic of the property would make compliance with the zoning regulations exceptionally difficult if the property were put to a more valuable or desirable use does not constitute either an " exceptional difficulty" or an unusual hardship for purposes of § 8-6(a). Krejpcio v. Zoning Board of Appeals, supra, 152 Conn. at 662, 211 A.2d 687 (" [d]isappointment in the use of property does not constitute exceptional difficulty or unusual hardship"); see also Rural Water Co. v. Zoning Board of Appeals, supra, 287 Conn. at 295, 947 A.2d 944 (denial of financial advantage generally does not constitute hardship); Grillo v. Zoning Board of Appeals, supra, 206 Conn. at 370, 537 A.2d 1030 (regulation preventing land from use for greatest economic potential does not create exceptional financial hardship); Miclon v. Zoning Board of Appeals, supra, 173 Conn. at 423, 378 A.2d 531 (no hardship when landowner made no showing that property could not reasonably be developed for some other use permitted in zone); Dolan v. Zoning Board of Appeals, supra, 156 Conn. at 430-31, 242 A.2d 713 (application of zoning regulations not varied merely because they hinder landowners from putting property to more profitable use). We continue to find the reasoning of these cases persuasive. " This court has many times held that the power to grant variances must be exercised sparingly . . ." Krejpcio v. Zoning Board of Appeals, supra, 152 Conn. at 661, 211 A.2d 687. If the fact that a peculiar characteristic of a property prevented a landowner from putting the property to a particular use that is allowed in the zoning district justified the granting of a variance in and of itself, even when the property would have economic value if the variance were denied, " the whole fabric of town- and city-wide zoning [would] be worn through in spots and raveled at the edges until its purpose in protecting the property values and securing the orderly development of the community [would be] completely thwarted." (Internal quotation marks omitted.) Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 270-71, 588 A.2d 1372 (1991). Accordingly, we conclude that Stillman and its progeny must be overruled. Because Stillman provided the sole basis for the trial court's ruling in the present case and denial of the variances will cause no unusual hardship, we conclude that the board improperly granted the applicant's application for variances and the trial court improperly dismissed the plaintiff's appeal. 320 Conn. at 20-22.
In E & F Associates, 320 Conn. at 15, the Supreme Court took a very strict line on economic hardship citing Bloom, 233 Conn. at 210: " '[f]inancial considerations are relevant [to the question of whether a variance is justified] only if the application of the regulation or ordinance practically destroys the value of the property for any use to which it may be put and the regulation or ordinance as applied to the subject property bears little relationship to the purposes of the zoning plan.'" The Supreme Court held that the fact that the other lots in the commercial zone had second floors and this was a corner lot with two front setbacks did not constitute a hardship: " the fact that the peculiar characteristics of the applicant's property made it difficult to construct a second story on the building that would comply with setback requirements did not justify the granting of the variance when the evidence established that the property would have economic value if the variance were denied." 320 Conn. at 18.
The Applicants did not make a financial hardship argument.
The Appellate Court in Verrillo, 155 Conn.App. at 683, 695, 717, affirmed the sustaining of an appeal overturning variances needed to expand living space in an existing nonconforming residence that were not supported by any legally cognizable hardship. The Verrillo Court rejected a desire to expand and modernize an existing, nonconforming residence as a hardship to support a variance:
The case law is replete with instances in which an applicant predicated its claim of hardship on a desire to expand an existing nonconforming structure for what our appellate courts have characterized as personal considerations, such as the desire to obtain more space or to modernize an antiquated building. It long has been held that " disappointment in the use of property can hardly constitute practical difficulty or unnecessary hardship within the meaning of a zoning law or regulation." . . . [O]ur Supreme Court [has] held that " a variance is properly granted only where there is a showing before the zoning board of appeals that the hardship caused by the application of zoning regulations relates to the property for which the variance is sought and not to the personal hardship of the owners thereof." The court further explained that " a variance is not a personal exemption from the enforcement of zoning regulations. It is a legal status granted to a certain parcel of realty without regard to ownership. It is for this reason that the rule is well established that the financial loss or the potential of financial advantage to the applicant is not the proper basis for a variance . . . Similarly, it is also well established that self-inflicted hardship which arises because of individual actions by the applicant will not provide a zoning board of appeals with sufficient reason to grant a variance . . . Hardships in such instances as these do not arise from the application of zoning regulations, per se, but from zoning requirements coupled with an individual's personal needs, preferences and circumstances. Personal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance." . . . For that reason, " [t]he situation of any particular owner is irrelevant" to the determination of whether a hardship exists.
Accordingly, " [t]he basic zoning principle that zoning regulations must directly affect land, not the owners of land . . . limits the ability of zoning boards to act for personal rather than principled reasons, particularly in the context of variances." . . . As this court has recognized, an applicant's " disappointment in the use of the subject property, namely, the inability to build a larger structure, " is personal in nature and not a proper basis for a finding of hardship . . . Our Supreme Court similarly has recognized that " the fact that an owner is prohibited from adding new structures to the property does not constitute a legally cognizable hardship." . . . Nor does an applicant's desire " to modernize" an existing nonconformity " constitute a cognizable legal hardship that would warrant a variance." . . . Improving the utility or the appearance of a building, " even if beneficial, [does not] constitute a cognizable legal hardship" . . . As our Supreme Court observed in rejecting a claim of " unusual hardship from the fact that the internal layout of the [existing nonconforming structure] was poorly designed to meet the needs of modern living, " that " inconvenience . . . does not rise to the level of hardship necessary for the approval of a variance." 155 Conn.App. at 691-94 (citations omitted).
In Verrillo the Court held: " neither the applicants' personal desire to expand their existing nonconforming structure to obtain additional, more comfortable space nor their desire to modernize that structure constitute legal hardship under our law." 155 Conn. at 695.
The Verrillo Court also rejected the argument that the variances for the proposed project were de minimis: " the fact that a particular variance request appears de minimis in scope is not a valid basis for granting a variance. Neither the applicants nor the board argue otherwise in this appeal. This court expressly has declined 'to recognize a 'de minimis' deviation exception that would obviate the need for [applicants] to prove hardship.' . . .'Connecticut does not recognize an exception to the hardship rule allowing de minimus variances')." 155 Conn. at 695 (citations omitted). See generally Fuller § 9.3.
In Russo v. Town of Westport, 2015 WL 5894218 *2-3 (Conn.Super. 2015) [61 Conn.L.Rptr. 7, ], Judge Radcliffe decided a similar zoning appeal concerning an undersized, nonconforming lot in Westport for which a coverage variance had been granted based on " topography and a small lot" that would have permitted the owner to demolish an existing nonconforming structure and replace it with a larger, modern house. Judge Radcliffe sustained the appeal following Verrillo : " the record does not reflect the inability of the applicant to construct a residence on the property, even though the residence is not of the size or character desired by the owner. The desire for additional living space, or a desire to add new structures to an undersized lot, cannot provide the justification for a variance . . . Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship . . . The inability to build a larger house is a personal hardship, which cannot justify a variance." (Citations omitted.) Judge Radcliffe concluded: " The record compiled before the Westport Zoning Board of Appeals is insufficient to justify the granting of a variance, which would permit the property owner to accomplish through new construction that which he cannot accomplish by expanding and renovating the existing structure." Id.
" Because the .11-acre parcel is legally nonconforming as to area, Section 6-3 is also implicated, and a variance is necessary. That section reads: 'A new building . . . on a nonconforming lot shall comply with all applicable requirements of the zoning district in which it is located, except for setbacks.'" Russo, , 2015 WL 5894218 *2.
The Applicants here face the same dilemma: their desire to expand a nonconforming structure to increase the living space and modernize the house does not constitute a legally cognizable hardship under C.G.S. § 8-6(a)(3). The small size of the lot and structure, compared to others in the zone, and the increased setbacks from being a corner lot do not alone constitute hardships any more than comparable peculiarities in lot size and/or structure that were held not to be hardships in E & F Associates, Verrillo and Russo . The steep slopes that compress the base lot calculation do not preclude use of the existing nonconforming residence or its repair or remodeling. The easements are minimal and appear to relate to the fact the Property is a corner lot facing two public streets with two front setbacks, which did not suffice to prove hardship in E & F Associates, 320 Conn. at 18. Even if all the above factors are viewed together, as the Applicants urge, the small size of the lot, the steep slopes and the easement, do not constitute the sort of hardship that would support the variances issued but rather personal disappointment in the use of the property and the existing structure under the Regulations. Compare, Amendola v. ZBA West Haven, 161 Conn.App. 726, 739-40, 129 A.3d 743 (2015).
Accord, Simko v. ZBA Milford, 2015 WL 9911476 *4 (2015).
Under the Stillman line of cases, overruled by E & F Associates, the unique situation presented by the Property's topography may well have constituted a hardship in support of the variances, but this Court is bound by the recent controlling appellate decisions cited herein.
After review of the record there is insufficient evidence of an " exceptional difficulty and unusual hardship" within the meaning of C.G.S. § 8-6(a)(3) to support the variances granted.
Whether the Variances Impermissibly Expand Nonconformities in the Property
Defendants contend the variances are substantially inconsistent with and affect the town's comprehensive plan of development because they extend zoning nonconformities on the Property in violation of the Regulations.
In Verrillo, 155 Conn.App. at 731-32, the Appellate Court held that the zoning board of appeals had overstepped its authority by using variances to expand a nonconforming structure, which contravened zoning regulations and the comprehensive plan of development. " [A]pplicants seeking a variance also must demonstrate that the requested relief will not 'affect substantially the comprehensive zoning plan . . .' . . . Put differently, 'a variance should not be granted unless it is in harmony with the general purpose and intent of the zoning ordinance.'" Id. at 728. " The comprehensive plan is found in the zoning regulations themselves." Id. at 729. In Verrillo the Appellate Court held that the proposed expansion of a nonconforming structure through variances violated specific regulations that prohibited such expansion. Id. at 730-31.
The variances granted violate the strictures against expansion of a nonconforming structure codified in Sections 6-2 and 6-3 of the Regulations. Section 6-3 of the Regulations provides: " A new building, structure or use, or an addition to an existing structure of a nonconforming lot shall comply with all applicable requirements of the zoning district in which it is located, except for setbacks." The variances for coverage, but not the setback variances, would violate Section 6-3. Section 6-2.1 provides: " a nonconforming building or structure may not be expanded, extended, relocated or altered if such expansion, extension, relocation or alteration would increase the degree of any nonconformity." Here, the nonconformities of the existing structure are increased by the proposed expansion permitted by variance. Section 6-2.2 provides: " If an existing building or structure does not conform to the building coverage requirements in a residential zone A . . . it shall not be expanded or extended." There is an existing nonconformity in the building coverage that would be expanded under the proposed project.
The ZBA decision to issue variances that would permit the Applicants to increase the size of the nonconforming structure also contravenes the goal of the law to eliminate or reduce nonconformities. See Amendola, 161 Conn.App. at 740 (the general rule [is] that " a nonconforming structure cannot be increased in size in violation of zoning ordinances . . .") citing Bauer v. Waste Management of Connecticut, Inc ., 234 Conn. 221, 243, 662 A.2d 1179 (1995).
The variances would affect the comprehensive plan of development as reflected in the Regulations prohibiting expansion of a nonconforming structure.
Conclusion
Plaintiffs have met their burden of proving the ZBA's decision to issue the variances was arbitrary, illegal and in abuse of the board's discretion because it is not supported by substantial evidence in the record. The appeal is sustained.