Opinion
No. CV 04 4001956 S
March 29, 2006
MEMORANDUM OF DECISION
The plaintiffs (the Codys) appeal from a decision of the defendant, the town of New Canaan zoning board of appeals (ZBA), in which it granted two variances for the property of the defendant, Hazel Hobbs.
On July 2, 2004, the defendant, Hazel Hobbs (Hobbs), applied to the ZBA for two variances to renovate and expand a carriage house located on her property at 255 Main Street, New Canaan. (Return of Record [ROR], Exhibits 1-4.) Hobbs and her family have been record owners of the subject real property for over sixty years. (ROR, Exh. 37, p. 4.) The premises consist of approximately one acre of land located in the "B" residential zone. (ROR, Exh. 37, p. 4.) Hobbs requested a variance from Article XIV, § 60-14.2 of the New Canaan zoning regulations to allow an addition approximately nine feet from the side property line. (ROR, Exh. 3.) The New Canaan zoning regulations require a fifteen-foot sideyard setback for a two-family residence in the "B" residential zone. New Canaan Zoning Regs., c. 60, § 14.2. Hobbs also requested a variance from Article XXI § 60-21.1E of the New Canaan zoning regulations to allow an increase in cubic content greater than the twenty-five percent limit set by § 60-21.1 A of the New Canaan zoning regulations. (ROR, Exh. 2); New Canaan Zoning Regs., c. 60 § 21.1A. The application was approved on October 4, 2004, after a public hearing and several continuations thereof held on August 30, 2004, September 13, 2004 and October 4, 2004. (ROR, Exh. 64, p. 12.)
Article XIV, § 60-14.2, Schedule of Residential Zoning Requirements provides that the sideyard setback for a two-family home in a B residence zone is fifteen feet.
Article XXI, § 60-21.1 provides in relevant part: "Any nonconforming use of land or of one (1) or more buildings thereon existing under the Zoning Regulations heretofore in effect and any use made nonconforming by these new regulations may be continued as a nonconforming use, and any such building may be reconstructed and structurally altered and the same nonconforming use continued therein subject to the following regulations: (A) The cubic content of one (1) or more of any such buildings and the ground area occupied thereby shall not be increased exceeding twenty-five percent (25%) of its cubic content or ground area . . .
(E) The twenty-five percent limitation under Subsection A above shall not be applicable to a nonconforming single-family dwelling in any Residence zone . . . provided that any increase in cubic content or ground coverage shall conform to all applicable yard requirements, height restrictions and maximum building area restrictions for the zone involved."
The Codys oppose the ZBA's decision on the grounds that the reasons for granting the requested variances are not supported by substantial evidence in the record. (Plaintiffs' pretrial brief, p. 18.) They argue that the record fails to reflect any evidence of any historical or topographical hardship and the changes in the regulations were not "particularly germane to the issue of whether there was a hardship sufficient to support the grant of a variance." (Plaintiffs' pretrial brief, p. 18.) The Codys argue further that the record contains evidence that the hardship claimed by Hobbs was self-created and legally irrelevant. (Plaintiffs' pretrial brief, p. 23.)
General Statutes § 8-8 governs an appeal taken from a decision of a zoning board of appeals. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
"[P]leading and proof of aggrievement are prerequisites to [the Superior Court's] jurisdiction over the subject matter of [a plaintiff's appeal] . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarkets, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Harris v. Zoning Commission, 259 Conn. 402, 410, 788 A.2d 1239 (2002). Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Lewis v. Planning Zoning Commission, 275 Conn. 383, 391, 880 A.2d 865 (2005).
General Statutes § 8-8(a)(1) provides in relevant part: "In the case of a decision by a zoning board of appeals, `aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
The Codys allege they are the owners of property located at 241 Main Street, New Canaan. (Complaint, ¶ 1.) The Codys allege aggrievement as the owners of property within 100 feet of the applicant's land and a portion of one of their lots abuts the applicant's property. (Complaint, ¶ 19.) At the time of trial, the parties stipulated to facts from which the court found that the Codys were aggrieved as abutting landowners. Additionally, at the trial, the Codys provided the court with a deed of the property, indicating ownership.
General Statutes § 8-8(b) provides in relevant part: "[A]ny person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes."
General Statutes § 8-8(f)(2) provides: "For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57. Such service shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the clerk of the municipality or the chairman or clerk of the board a necessary party to the appeal." General Statutes § 52-57(b)(5) provides, in relevant part, that process against a board shall be made by serving two copies of the process "upon the clerk and the clerk shall retain one copy and forward the second copy to the board . . ."
Notice of the ZBA's decision was published in the New Canaan Advertiser on October 14, 2004. (ROR, Exh. 66.) The appeal was commenced by service of process on the New Canaan town clerk, Claudia Webber, and upon Hazel Hobbs on October 27, 2004. Accordingly, the proper parties were served in a timely fashion.
In reviewing a decision of a zoning agency, "[t]he Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations . . . It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Citations omitted; internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).
The Codys allege that the ZBA acted illegally, arbitrarily and in abuse of its discretion when it granted Hobbs' variance application. (Complaint, ¶ 19.) Specifically, the Codys allege that their appeal should be sustained because the ZBA's decision to grant the variance from Article XIV § 60-14.2 was not supported by sufficient evidence in the record and was contrary to the express provisions of that section of the zoning regulations. (Complaint, ¶ 19(e).) The Codys also allege that the ZBA's decision to grant the variance from Article XXI § 60-21.1E was not supported by sufficient evidence in the record and was contrary to the express provisions of that section of the zoning regulations. (Complaint, ¶ 19(f).)
The record reflects that the ZBA granted a variance to Hobbs based on a finding of hardship that was "historical, topographical and partly a change in the regulations." (ROR, Exh. 64, p. 12.) The ZBA contends that granting the variance would not substantially affect the comprehensive zoning plan. (ZBA's pretrial brief, pp. 10, 11.)
At the public hearing held on October 4, 2004, a ZBA member stated that the balance of equities was in favor of granting the variances for the defendant. (ROR, Exh. 64, p. 12.) The ZBA also noted that the "impact on the neighboring properties was minimal"; (ROR, Exh. 64, p. 9); and "granting the variances was a minor feature and otherwise entirely justified by topographical and other reasons." (ROR, Exh. 64, p. 9.)
At the Public hearing October 4, 2004, an unnamed member of the ZBA stated "That leaves us with number three as to whether there is a balancing of equities, at least in my mind, as to whether that which would have been acceptable if two houses were there and 8 or 9 foot, or 15 feet. The balance, as I see it, is not as great an intrusion on the Codys as it would be on the denial to the Hobbs . . . The balance of equities I think falls not unclosely to the Hobbs."
A comprehensive zoning plan is "[a] general plan to control and direct the use and development of property in a municipality or large part of it by dividing it into districts according to the present and potential use of the properties." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d. Ed. 1999) § 2.2, p. 21. "[Z]oning boards of appeals remain responsible for determining whether a proposed variance is in harmony with the general purpose of the zoning regulations." Smith v. Zoning Board of Appeals, 174 Conn. 323, 328, 387 A.2d 542 (1978). "[A] variance cannot be granted by the zoning board of appeals if it adversely affects the comprehensive plan." 9 R. Fuller, supra, pp. 21-22.
In New Canaan, a "B" residential zone requires an eight-foot sideyard setback for a one-family lot and a fifteen-foot sideyard setback for a two-family lot. (ROR, Exh. 68); New Cannan Regs., c. 60, § 14.2. The carriage house is currently located 8.9 feet from the side property line. (ROR, Exh. 3.) It therefore conforms to the sideyard setback requirements for a one-family lot. (ROR, Exh. 2.) The proposed addition to the carriage house would be located nine feet from the property line. (ROR, Exh. 2.) The sideyard of the proposed addition would not, therefore, be any closer to the property line than it is currently. (ROR, Exh. 37, p. 7.)
The ZBA argues that although Hobbs' property would not technically conform to the zoning requirements for a two-family lot in a "B" residence zone, granting the variances does not substantially affect the comprehensive zoning plan. (ZBA's pretrial brief. p. 10.) The ZBA argues that Hobbs could tear down the existing structures, subdivide the lot, and build two new homes, both with eight-foot sideyard setbacks. (ZBA's pretrial brief, pp. 10, 11.) Because Hobbs can legally maintain an eight-foot sideyard setback if she were to divide her property, the general zoning scheme would not be greatly impacted by the ZBA's grant of the variances.
At the public hearing held on September 13, 2004, Hobbs' attorney argued that several neighboring structures, including accessory buildings, located in the "B" residential zone are also located within eight feet of their respective property lines. (ROR, Exh. 51, p. 7.) He also noted that the proposed addition would not be any closer to the property line than it is now, and therefore would meet the sideyard setback requirements for a one-family lot in the "B" residential zone. (ROR, Exh. 51, p. 8.)
Article I, § 60-1.2C of the New Canaan zoning regulations provides in relevant part that one objective of the regulations is to "[p]rotect the character and the historic, social and economic stability of all parts of the Town . . ." (ROR., Exh. 68.) Protecting these historic structures thus falls within the purview of the ZBA and is part of the general scheme of the zoning regulations of New Canaan. (ROR, Exh. 68); New Canaan Zoning Regs., c. 60, § 1.2C.
The record reflects that the ZBA's decision to grant the variances does not substantially affect the general zoning scheme of New Canaan for several reasons. First, the proposed addition would not result in the carriage house being located any closer to the property line than it is already. (ROR, Exh. 3.) Second, many buildings and accessory buildings in this residential area are currently located within eight feet of their respective property lines. (ROR, Exh. 37, p. 20.) Third, Hobbs could achieve the same outcome as the variances would provide by subdividing her property and constructing new buildings. (ROR, Exh. 37, p. 9.) Finally, because an object of the zoning regulations is to protect historic structures, it is actually in the interest of the community to grant the variances and to prevent the destruction of these structures. (ROR, Exh. 68); New Canaan Zoning Regs., c. 60, § 1.2C.
At the public hearing held on October 4, 2004, the ZBA stated that "the hardship is historical, topographical and partly a change in the regulations." (ROR, Exh. 64, p. 12.) "[C]ourts cannot substitute their judgment for the wide and liberal discretion vested in local zoning authorities when they have acted within their prescribed legislative powers." (Internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 425. "[The Connecticut Supreme Court has] interpreted General Statutes . . . § 8-6 to authorize a zoning board of appeals to grant a variance only when two basic requirements are satisfied: (1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan . . . Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance." (Citations omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 207, 207-08, 658 A.2d 559 (1995).
General Statutes § 8-6 provides in relevant part: "(a) The zoning board of appeals shall have the . . . [power] . . . to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony 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, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed."
The Codys argue that in order to find hardship based on the topography of the property, there must be a topographical condition that makes the property unsuitable for a permitted use and renders the property practically worthless. (Plaintiffs' pretrial brief, p. 18.) They argue that Hobbs did not present any evidence of a topographical condition or lot shape that could be considered by the ZBA as a basis for granting the variance. (Plaintiffs' pretrial brief, p. 18.)
The ZBA argues that there is a topographical basis for hardship that is supported by substantial evidence in the record. (ZBA's pretrial brief, p. 13.) Specifically, the septic location map shows that the location of an existing septic tank is such that the carriage house can only be expanded in an easterly direction. (ZBA's pretrial brief, p. 12.) The ZBA argues that this topographical condition is a sufficient basis for allowing a variance. (ZBA's pretrial brief, p. 13.) At the public hearing held on August 30, 2004, Hobbs' attorney noted that the septic system that services the pool house on the property determines the location of the proposed addition. (ROR, Exh. 37, p. 12.)
"Proof of the existence of practical difficulty or unusual hardship is a condition precedent to the granting of a variance." 9 R. Fuller, supra, p. 182. In Reid v. Zoning Board of Appeals, 235 Conn. 850, 670 A.2d 1271 (1996), our Supreme Court emphasized that "[a]n applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone." Id., 857. (Internal quotation marks omitted.) See also Stillman v. Zoning Board of Appeals, 25 Conn.App. 631, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991). Thus, the property does not have to be rendered practically worthless by a topographical condition in order for the zoning board to grant a variance, as long as the applicant can show that there is a peculiar characteristic on the property that produces an unusual hardship. "In some cases the board within its discretion can find that the configuration of the lot and the location of the well and septic system is a hardship unique to the property." 9 R. Fuller, supra, p. 188.
In Stillman, the location of a septic system and well that forced the defendant to build an addition to her house in a particular direction, was deemed a "unique [condition that made] the setback regulation exceptionally burdensome and [supported] the board's granting of the variance." Stillman v. Zoning Board of Appeals, supra, 25 Conn.App. 636-37. The court noted that the hardship arose from the location of the well and septic system. Id., 637. Additionally, the court concluded, "[t]hese conditions [were] not personal to [the defendant] and would exist no matter who owned the lot." Id. See, Ross v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. CV 04 4000655 (May 20, 2005, Bellis, J.) (holding that the location of a well and septic system negated the possibility that the defendants were expanding their home in a particular direction because of aesthetic preferences); Kelley v. Zoning Board of Appeals, Superior Court, judicial district of Tolland at Rockville, Docket No. 073161 (May 18, 2001, Klaczak, J.) ( 29 Conn. L. Rptr. 550) (concluding that the ZBA correctly found hardship due to the location of a deck, pool, well and septic system which justified granting the variance to build an addition). Thus, a variance may be granted in circumstances where an unusual characteristic of the property, such as the location of a septic system, creates a hardship.
In Stillman, the Appellate Court concluded that "[t]he hardship claimed by the defendants [arose] from the configuration of [the defendant's] lot and the location of the well and the septic system." Stillman v. Zoning Board of Appeals, supra, 25 Conn.App. 637. In the present case, as in Stillman, there is a septic system on Hobbs' property that limits the direction in which the addition may be built. (ROR, Exh. 33.) The septic location map; (ROR, Exh. 33); shows that the addition may only be built on the eastern side of the property, the side that shares a property line with the Codys. (ROR, Exh. 33.) The septic tank and the driveway prevent building the addition in a southerly direction. (ROR, Exh. 33.) Moreover, the carriage house is located in the northwest corner of the property, and in its brief the ZBA argues that Hobbs cannot expand in that direction without violating the side or rear yard setback distances even further. (ZBA's pretrial brief, p. 12.) Thus, the configuration of Hobbs' property, and more importantly the location of the well and the septic system, are hardships that support granting the variance from Article XIV, § 60-14.2 of the New Canaan zoning regulations.
At the public hearing held on September 13, 2004, the Codys' attorney argued that the location of the septic system was a self-created hardship. (ROR, Exh. 51, p. 25.) In their reply brief, the Codys argue further that the septic system was installed to service a pool and is unrelated to the carriage house. (Plaintiffs' reply brief, p. 8.) They argue that Stillman is, therefore, inapplicable to the present case. (Plaintiffs' reply brief, pp. 8-9.)
"The hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance . . . and arises directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved." (Citations omitted.) Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 658, 427 A.2d 1346 (1980). "Where the claimed hardship arises from the applicant's voluntary act, however, a zoning board lacks the power to grant a variance [S]elf-inflicted or self-created hardship . . . is never considered proper grounds for a variance." (Citations omitted; internal quotation marks omitted.) Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39-40, 438 A.2d 1186 (1982). See also 9 R. Fuller, supra, p. 185.
The ZBA argues that under the Public Health Code, § 19-13-B51d(a)(2) of Regulations of Connecticut State Agencies, a seventy-five foot separation between the septic tank and the water well is required. (ZBA's pretrial brief, p. 12.) Therefore, the ZBA argues, the septic system was put in its current location because it was required by the town. (ZBA's pretrial brief, p. 12.) At the public hearing held on September 13, 2004, a member of the ZBA questioned Hobbs' attorney about the location of the septic system, asking whether its current location was required by the town. (ROR, Exh. 51, p. 40.) Hobbs' attorney noted that the septic system was in its current location because of a town requirement. (ROR, Exh. 51, p. 40.) Thus, there is sufficient evidence in the record to show that the location of the septic system was not a voluntary choice and therefore was not a self-created hardship.
§ 19-13-B51d(a)(2) of Regulations of Connecticut State Agencies states in relevant part: "(a) Wells with a required withdrawal rate of under ten gallons per minute . . . (2) No such well shall be located within seventy-five feet of a system for disposal of sewage or other source of pollution."
During the Public Hearing on September 12, 2004, the following colloquy ensued:
Unnamed board member: Answering one other point . . . the septic system wasn't located where it is through any frivolity? That was required by the town, was it not?
Attorney Mellick: It was required by the town in connection with the poolhouse and the point of showing that was just to show that it's there and it was put in whenever it was put in.
In the present case, the location of the septic system was not a self-created hardship because it was mandated by the Public Health and Safety Code, § 19-13-B51d(2) of the Regulations of Connecticut State Agencies, and therefore was required by the town.
The Codys argue that the historic nature of the main house and the carriage house is irrelevant in finding hardship sufficient to grant a variance. (Plaintiffs' pretrial brief, p. 19.)
They argue further that historic structures, if they truly are so, would be protected by several Connecticut statutory provisions. (Plaintiffs' pretrial brief, p. 19.)
Hobbs argues that the historic nature of a structure, when coupled with other factors, may be considered in determining whether hardship exists to justify the granting of a variance. (Hobbs' pretrial brief, p. 25.)
In Weber v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. CV 03 0349892 (June 10, 2004, Nadeau, J.), the zoning board of appeals granted an application for variance based upon, among other reasons, the need to preserve the historical building. The court affirmed the decision of the zoning board, holding that the home's historic character, combined with its size and location, demonstrated sufficient hardship to justify the grant of a variance to allow the construction of a garage. Id. Similarly, in Engen v. Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0192283 (March 10, 2004, Ryan, J.T.R.), the Superior Court overturned the zoning board's decision to deny a variance partly because "[t]he hardship [was] the historic nature of the house . . ." The court noted that "the [defendants'] hardship arises from the unique, historic nature of their home and the configuration and location of integral, architectural features of the home . . . Like Stillman, these unique conditions arise from the size and configuration of the [defendants'] historic home. Further, the hardship is not personal to the [defendants] and such unique conditions would affect any owner of property."
Similar to Weber and Engen, the record shows that the Hobbs property is historic and is listed in the New Canaan Historical Society Annual. (ROR, Exh. 16.) By granting the variances on a historical basis, the ZBA is choosing to preserve the historic premises, which is within its purview and interest. (ROR, Exh. 68); New Canaan Regs., c. 60 § 1.2C. At the public hearing held on September 13, 2004, a zoning board member stated that the "preservation of historic homes in this town is very much in our forefront." (ROR, Exh. 51, p. 31). He also noted that a historic home had been torn down one block from the Hobbs' property, refuting the Codys' argument that all historic structures in Connecticut are statutorily protected. (ROR, Exh. 51, p. 32.) The New Canaan zoning regulations also state that an objective of the regulations is to protect historic structures. (ROR, Exh. 68, p. 19.) In addition, decisions have held that the historic nature of a structure, combined with other hardship factors, is a sufficient basis for granting a variance. See Weber v. Zoning Board of Appeals, supra, Superior Court, Docket No. 03 0349892; Engen v. Zoning Board of Appeals, supra, Superior Court, Docket No. 02 0192283. Thus, there is sufficient evidence in the record to show that the premises are historic and that this, along with the unique topography and change in regulations, is a valid basis for the hardship that justifies granting a variance.
The Codys argue that the variance requests were designed to expand a nonconforming structure for a nonconforming use. (Plaintiffs' pretrial brief, p. 22.) Hobbs has converted the carriage house, which was only intended to be an accessory use, into a separate single-family residence. (Plaintiffs' pretrial brief, p. 23.) The Codys argue that the carriage house has been expanded in the past and would therefore exceed the twenty-five percent cubic expansion limitation if the ZBA permitted the proposed expansion. (Plaintiffs' pretrial brief, p. 21.) They argue that under New Canaan's zoning regulations, Article XXI, § 60-21.1 the cubic content of a nonconforming building cannot be increased more than twenty-five percent. (Plaintiffs' pretrial brief, p. 21.) A legally nonconforming use or building may be altered only in conformance with Article XXI, § 60-21.1. (ROR, Exh. 51, p. 18.)
The ZBA contends that both the main house and the carriage house were built before New Canaan enacted its zoning regulations. (ZBA's pretrial brief, p. 5.) It also contends that the enactment of the New Canaan zoning regulations, along with subsequent changes in those regulations, have made both the main house and the carriage house legally nonconforming. (ZBA's pretrial brief, p. 6.) The ZBA argues that Connecticut law protects legally nonconforming structures. (ZBA's pretrial brief, p. 7.) Specifically, it argues that under General Statutes § 8-2(a), the zoning regulations cannot prohibit the continuance of such a structure. (ZBA's pretrial brief, p. 7.) The ZBA also argues that the twenty-five percent expansion limitation in article XXI, § 60-21.1 is inapplicable to Hobbs' property. (ZBA's pretrial brief, p. 8.)
At the public hearing held on September 13, 2004, Hobbs' attorney stated that "it is a permitted legal use to have two families on this property and has been ever since that building was occupied." (ROR, Exh. 51, p. 34.) The New Canaan zoning regulations allow two families per "B" residence zone, therefore the carriage house is legally conforming as a separate single-family dwelling. (ROR, Exh. 68; New Canaan Regs., c. 60 § 14.2.)
The first variance sought was from Article XIV, § 60-14.2 of the New Canaan zoning regulations. (ROR, Exh. 2.) Section 60-14.2, the schedule of residential zoning requirements, provides that a two-family home in a "B" residential zone requires a fifteen-foot side-yard setback. (ROR, Exh. 68); New Canaan Regs., c. 60 § 14.2. General Statutes § 8-2 empowers the zoning commission of each city to enact new zoning regulations. Similarly, Article XXI, § 60-21.1 of the New Canaan zoning regulations provides in part: "[a]ny non-conforming use of land or of one or more buildings thereon existing under the zoning regulations heretofore in effect and any use made nonconforming by these new regulations may be continued as a nonconforming use, and any such building may be reconstructed and structurally altered and the same nonconforming use continued therein subject to the following regulations . . ." (ROR, Exh. 68); New Canaan Regs., c. 60 § 21.1.
General Statutes § 8-2 provides in relevant part: "[s]uch regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations."
In Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, 572, 785 A.2d 601 (2001), the Appellate Court upheld the trial court's decision to uphold the ZBA's grant of a variance based on the fact that "the lot predated zoning, that granting the variance was consistent with the comprehensive zoning plan, and that granting the variance promoted the public health, safety, convenience and welfare of the area." Also, in Weber v. Zoning Board of Appeals, supra, Superior Court, Docket No. 03 0349892, the court held that a building that was constructed before zoning regulations were enacted in that town, along with other factors, constituted unusual hardship and practical difficulty sufficient to justify granting the variance.
The variance for the sideyard setback was properly granted because the carriage house predates New Canaan's zoning regulations. As the regulations have changed, the structure has become legally nonconforming. Under Article XXI, § 60-21.1 of the New Canaan zoning regulations and General Statutes § 8.2, the distance of the sideyard of the carriage house, although technically nonconforming, is legally permitted under these regulations. The variance from Article XIV, § 60-14.2 of New Canaan's zoning regulations is permissible.
Hobbs also sought a variance from Article XXI, § 60-21.1 of New Canaan's zoning regulations. Under subsection A, "[t]he cubic content of one (1) or more of any such buildings and the ground area occupied thereby shall not be increased exceeding twenty-five percent (25%) of its cubic content or ground area . . . by one (1) or more such alterations or improvements." (ROR, Exh. 68); New Canaan Zoning Regs., c. 60, § 60-21.1A. The regulation continues, under subsection E, that "[t]he twenty-five percent limitation under Subsection A above shall not be applicable to a nonconforming single-family dwelling in any Residence Zone or Waveny Zone, provided that any increase in cubic content or ground coverage shall conform to all applicable yard requirements, height restrictions and maximum building area restrictions for the zone involved." (Emphasis added.) (ROR, Exh. 68); New Canaan Zoning Regs., c. 60, § 60-21.1E.
At the public hearing held on September 13, 2004 Hobbs' attorney noted, "we're here asking for that variance [from § 60-21.1A]. Because we have a building that's already pre-dated zoning and has its own setback which is not legal because it was built at a time when that setback was allowed." (ROR, Exh. 51, p. 35.)
The second variance was also properly granted because Article XXI, § 60-21.1E applies. The proposed addition to the carriage house would conform to the height and maximum building area restrictions, as required by § 60-21.1E. (ROR, Exh. 32, 68.) The sideyard setback does not comply with New Canaan's zoning regulations. However, because the sideyard setback is legally nonconforming and because the variance must be granted for that nonconformity, the carriage house does legally conform to all applicable yard requirements. The twenty-five percent limitation of Article XXI, § 60-21.1A is thus inapplicable. The change in regulations thus provides another basis for granting both variances.
For the foregoing reasons, the Codys' appeal of the ZBA's decision to grant the Hobbs' variance application is dismissed.