Opinion
No. CV03 040 08 61 S
March 12, 2004
MEMORANDUM OF DECISION
Defendant Gregory Jon Volpe ("Volpe") has contracted to purchase from defendants and record owners Anne L. Kruitbosh and Harold R. Kruitbosch, Jr. property known as Lot 9, Forest Road, Stratford, Connecticut ("the subject lot"). He has contracted to purchase subject lot in order to construct a single-family dwelling for his family. The lot is located in an RS-1 Zoning District (single-family residential). On December 3, 2003, Volpe filed an application with the Board of Zoning Appeals of the Town of Stratford (the "Board") for a variance of the forty (40) foot front setback requirement as required by Section 4.2 of the Town of Stratford Zoning Regulations ("Zoning Regulations") to 30.7 feet and the fifty (50) foot setback to wetlands as required by Section 3.14 of the Zoning regulations to 43.3 feet.
On January 7, 2003, the Board held a public hearing on the matter. On February 4, 2003, the Board approved the application and granted the variances. The issue in this case is whether Volpe establishes a legal hardship as a basis for variance approval.
Plaintiff Susan S. Connolly appeals the decision of the Board. Section 8-8(b) of the Connecticut General Statutes provides that any aggrieved person may appeal a decision by the Zoning Board. There are two types of aggrievement, classical aggrievement and statutory aggrievement. Zoning Board of Appeals v. Planning and Zoning Commission, 27 Conn. App. 297, 390 (1992). In this case the Court finds the plaintiff is statutorily aggrieved because her property is located directly across the street and is within a radius of 100 feet of the subject lot.
When deciding appeals, "[c]ourts are not to substitute their judgment for that of the board; and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing." Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980), citing Koproski v. Zoning Board of Appeals, 162 Conn. 635, 636, 295 A.2d 564 (1972).
In order for the Zoning Board to grant a variance, two conditions must be met: "(1) the variance must be shown not to substantially affect 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." Smith v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542 (1978). Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance. "An 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. Dolan v. Zoning Board of Appeals, 156 Conn. 426, 429, 242 A.2d 713 (1968). Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship. Krejpico v. Zoning Board of Appeals, 152 Conn. 657, 662 (1965).
On his application Volpe states that his hardship is a "wetland setback" and that the subject lot was created prior to the enactment of the zoning regulations. (R.O.R. 1) However, he failed to establish that these events constitute a hardship. There is no evidence in the record that any particular characteristic of the subject lot constitutes an unusual hardship.
Volpe claims that he has suffered a classic case of hardship because the subsequent enactment of zoning regulations prevents the use of the subject lot without obtaining the variances. The subdivision that contains the subject lot was approved by the Stratford Planning and Zoning Commission in 1955. The current version of Section 4.2 of the Zoning Regulations, which addresses building setbacks, was adopted by the Stratford Planning Commission in 1984. Section 3.14, which relates to setbacks from inland/wetland, was enacted in 1999 by the Planning Commission. However, because the subject lot existed prior to the adoption of one of the sections of the Zoning Regulations sought to be varied does not create a hardship. The subject lot is in an RS-1 zone requiring a minimum of 40,000 square feet of lot area. The subject lot contains 59,241.60 square feet. Certainly such a large lot can be constructed upon without the setback variances sought by Volpe. No structure has ever been constructed on the site, and a new structure would have to conform to all setback requirements. The mere fact that a lot existed prior to the enactment of the zoning regulation does not require that such a regulation does not have to be adhered to.
"A practical confiscation occurs when an ordinance so limits the use of land that it cannot be utilized for any permitted purpose without a variance." Archambault v. Wadlow, 25 Conn. App. 375, 382 (1991), citing Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 152, 365 A.2d 387 (1976). There is nothing in the record that the variances were granted to avoid a confiscation or illegal taking of Volpe's land. The Board did not find that denial of the variances would constitute a practical confiscation. The failure to grant variances does not limit the use of the land for any purposes. Rather, a somewhat smaller house can be built on the subject lot, which would conform with the setback requirements. Moreover, there is nothing in the record that indicates that building on the lot without variances would create a safety hazard or adversely impact the character of the neighborhood.
Even if denying the variances does constitute a taking, the contract purchaser who is aware of the setback requirements when he contracts to purchase the land does not have standing to challenge the failure to grant variances. He is on notice of the setback requirements when he purchases the land. Section 9.4 of Land Use Law and Practice (Fuller) states, "[i]f the purchaser of property who acquired it with knowledge of the zoning regulations attempts to devote it to a use which is not allowed by the regulations (which is not a nonconforming use), he is barred from obtaining a variance under the purchase with knowledge rule." In Edmond L. Abel et al. v. Zoning Board of Appeals of the City of Norwalk et al., 172 Conn. 286, 274, A.2d 227 (1977) the Connecticut Supreme Court reviewed the granting of a variance by the Zoning Board of Norwalk to a landowner who purchased a lot that did not satisfy the zoning requirements. The defendant landowner was aware, when purchasing the property, of the zoning regulations. The Connecticut Supreme Court held "the hardship which the board found was voluntarily assumed by the applicant and could not, therefore, constitute grounds for the grant of a variance." Id. at 288-89. Moreover, the Connecticut Supreme Court held that when landowners bought property, aware of the zoning regulations, and later filed a petition for variances, the hardship is of their own making. Baccante v. Zoning Board of Appeals, 153 Conn. 44, 212, A.2d 411 (1965). The Supreme Court in Baccante also noted, "they [landowners] have made no effort to use the property in conformity with the zoning regulations." Id. at 48. "Where the hardship results from the voluntary act of the property owner however, the zoning authority lacks the authority to grant a variance." Spencer v. Zoning Board of Appeals, 15 Conn. App. 387, 389-90, 544 A.2d 676 (1988), citing Able v. Zoning Board of Appeals, 172 Conn. 286, 289, 374 A.2d 227 (1977).
There was no evidence presented that the subject lot could not be developed without obtaining variances. Disappointment or dissatisfaction does not rise to the level of hardship and does not constitute reasonable justification for the Board granting the variances. The subject lot is in an RS-1 district. It is certainly possible to construct a house smaller than the one proposed by Volpe on the property without the necessity of obtaining setback variances. There is also no evidence in the record showing that a hardship existed prior to the defendant Volpe becoming an interested party. The plot plan submitted by Volpe showing that he is proposing to build a house that is approximately 55 by 29 feet (a 1650 square foot footprint) containing three bedrooms. (R.O.R. 2.) By choosing to build such a large structure on the subject lot Volpe is creating his own hardship. Additionally, there is no evidence that the variances granted were necessary to avoid a hardship.
Section 21.2 of the Town of Stratford Zoning Regulations states that before granting a variance, the board must make a written finding in the minutes of each case giving in detail (a) the special circumstances which create the hardship for the particular parcel of land and which do not apply to other parcels in the district, (b) that the hardship did not exist when the applicant became an interested party and was not created by any act of the applicant and (c) that the variance allowed was the minimum necessary to relieve the hardship. The Board did not make the required written findings. In fact, in its brief the Board admits that it did not formally state the reasons for its decision to grant the variance. A review of the record indicates that the Board failed to state upon the record valid reasons for its decision to grant Volpe's application and to describe the exceptional difficulty or unusual hardship on which its decision was based. (R.O.R. 14, p. 7.) Moreover, the Board failed to state any special circumstances which create the hardship for the subject lot which do not apply to other lots in the district. The Board made no specific finding that exceptional difficulty or unnecessary hardship would result to Volpe from a strict enforcement of the Zoning Regulations. The Board did not state that the hardship did not exist when Volpe became an interested party and was not created by any act of Volpe.
When zoning regulations require a zoning agency to state upon the record the reason for its decision in granting or denying variances, the trial court should search the record "to attempt to find some basis for the action taken" when the board gave no reason for its action. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 527 A.2d 1030 (1988), citing Ward v. Zoning Board of Appeals, 153 Conn. 141, 144, 215 A.2d 104 (1965). The record in this case does not support a finding that Volpe demonstrated a legally sufficient hardship to grant the variances. The record established that there is nothing unique or peculiar about the subject lot. Any hardship is nothing more than self-created which does not constitute a legal hardship.
The decision by the Board of Appeals of the Town of Stratford granting defendant Volpe a variance is reversed.
OWENS, J.