Opinion
No. CV04 0084851S
August 4, 2005
MEMORANDUM OF DECISION
The plaintiff, Pietro Covello (hereinafter "Covello"), appealed from the decision of the Zoning Board of Appeals of the City of Milford (hereinafter "ZBA"), granting the application of the defendant, New England Dough, LLC (hereinafter "NED"), for a variance to permit it to erect a storage shed on its property closer than 25 feet from the boundary lines of the subject property.
BACKGROUND
The plaintiff, Covello, is the owner in fee simple of real estate which abuts the subject property. The defendant, Regina Lycoudes, Executrix of the Estate of Robert G. Lycoudes, was at all relevant times, the owner in fee simple of real property known as 1440 Boston Post Road, Milford, Connecticut (hereinafter "subject premises"). On January 22, 2004, the defendant, D. Joseph Fulford, II, filed an application with the ZBA requesting a variance of Section 3.20.4.2(2) of the City of Milford Zoning Regulations to allow an accessory structure three feet from the rear boundary line and seven feet from the side boundary line in lieu of the required 25-foot setback. Said application names D. Joseph Fulford as the appellant and New England Dough, LLC as the "property owner." A legal notice for the public hearing to be held on February 10, 2004 was published in the New Haven Register on January 30, 2004 and February 4, 2004 (Return of Record [ROR], Exh. D). A hearing was held on February 10, 2004 and the variance was granted. Legal notice of said ZBA action was published in the New Haven Register on February 13, 2004 (ROR, Exh. G). The subject premises had been leased to NED pursuant to a lease dated June 17, 2002 recorded on the Milford Land Records at Volume 2612, Page 117 wherein the owner had granted to NED a leasehold for a period of ten years commencing July 1, 2002 and expiring on June 30, 2012 stating that the tenant may "apply for all permits and other governmental approvals which may be necessary or appropriate from time to time for all lawful CT Page 11769-dr uses of the premises, including initial construction and all subsequent alterations, construction, removal and utilization." (ROR, Exh. A; affidavit of NED).
On March 5, 2004, Covello commenced this appeal (Marshal's Return). As grounds for the appeal, Covello alleges that
a. The Defendant, D. Joseph Fulford, II, requested and received from the Defendant Z.B.A. a variance which resulted from a hardship which was self-created;
b. The Defendant, D. Joseph Fulford, II, failed to establish the exceptional difficulty or unusual hardship required by the Zoning Regulations of the Town of Milford and the Connecticut General Statues;
c. The Defendant, Z.B.A., did not properly consider the standard of due consideration for conserving the public health, safety, convenience, welfare and property values as is required;
d. The Defendant, D. Joseph Fulford, II, did not demonstrate that the variance applied for was the minimum necessary to afford relief;
e. The application was defective in that the name of the property owner was incorrect and not in accordance with the records on file in the Milford Town Clerk's office;
f. The application was defective in that the owner of the subject premises did not execute the application thereby consenting to the filing of the appeal
(Appeal, ¶ 16).
The plaintiff filed its brief on August 6, 2004. The defendants, NED, D. Joseph Fulford, II, and Regina Lycoudes, Executrix, filed their brief on October 12, 2004. The defendant, Zoning Board of Appeals of the City of Milford filed its brief on October 22, 2004. The court heard the appeal on July 27, 2005.
JURISDICTION
Connecticut General Statutes § 8-8 governs appeals taken from the CT Page 11769-ds decision of a zoning board of appeals.
AGGRIEVEMENT
"Pleading and proof that the plaintiffs are aggrieved within the meaning of the statute is a prerequisite to the trial court's jurisdiction over the subject matter of the appeal." Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50 (1992). Under General Statutes § 8-8(a)(1), a statutorily aggrieved person includes "any person owning land that abuts or is within a radius of 100 feet of any portion of the land involved in the decision of the board." At oral argument, the plaintiff presented a warranty deed identifying the plaintiff as the grantee, a document recorded in the Milford Land Records at Volume 1333, Page 264. (Plaintiff's Exhibit 1). Said deed describes property which abuts the subject property. Thus, the plaintiff has sustained its burden of establishing aggrievement as the plaintiff is statutorily aggrieved pursuant to Connecticut General Statutes § 8-8(a)(1).
TIMELINESS AND SERVICE OF PROCESS
Under § 8-8(b), an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within 15 days from the date that notice of the decision was published as required by the General Statutes." Notice was published on February 13, 2004 (ROR, Exh. G) and service of the appeal was commenced on February 27, 2004. (Marshal's Return). Service of process was effectuated upon the Zoning Board of Appeals of the City of Milford, Fred Katen, Chairman of the Zoning Board of Appeals of the City of Milford, Alan Jepson, Town Clerk for the City of Milford, New England Dough, LLC, D. Joseph Fulford, II, and Regina Lycoudes, Executrix. Accordingly, the appeal was commenced in a timely manner upon the proper parties.
STANDARD OF REVIEW
On appeal from a decision by the defendant ZBA, the standard of review employed by this court is well established. The appellate court, in the case of New London v. Zoning Board of Appeals, 29 Conn.App. 402, 405, cert. denied, 224 Conn. 922, 618 A.2d 528 (1992), stated the standard of review as follows:
When deciding an appeal from a decision of the board, the trial court must determine whether the board has correctly interpreted its regulations and applied them with reasonable discretion to the facts . . . The burden is on the plaintiff to demonstrate that CT Page 11769-dt the board has acted improperly in making its decision . . . A decision of the board will be reversed only when the plaintiff has proven that the decision was unreasonable, arbitrary or illegal." (Citations omitted.)
Thus, it is the trial court's function to determine whether the defendant ZBA has correctly interpreted its regulations and applied them with reasonable discretion to the facts. The trial court should sustain the plaintiff's appeal if it determines that the decision of the ZBA was unreasonable, arbitrary or illegal. Samperi v. Planning Zoning Commission, 40 Conn.App. 840, 845 (1996). This court's function is to determine on the basis of the record whether substantial evidence has been presented to the ZBA to support its findings. "[E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred." Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 548 (1996).
Additionally, in reviewing the ZBA's decision, the trial court must determine
whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations. (Internal quotation marks omitted.)
Archambault v. Wadlow, 25 Conn.App. 375, 380 (1991). The trial court may reverse the ZBA's decision only if the court finds that the board's action was illegal, arbitrary or an abuse of discretion. Id.
"Ordinarily, the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . as the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." (Internal quotation marks omitted.) Osborne v. Zoning Board of Appeals, 41 Conn.App. 351, 354 (1996).
Where a zoning board of appeals has stated reasons for its action, this court need only determine if one of the stated reasons is supported by the record. Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn.App. 53, 56 (1988). "Where it appears from the record that the action of the zoning authority rested upon more than one ground, the authority's action must be sustained so long as the record supports at least one of the grounds." Hoagland v. Zoning Board of Appeals, CT Page 11769-du 1 Conn.App. 285, 290 (1984). Finally, as stated by the Supreme Court in the case of Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654 (1980):
"[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 . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . . The burden of proof to demonstrate that the board acted improperly is on the plaintiffs." (Citations omitted.)
DISCUSSION
The plaintiff's appeal essentially rests on three arguments:
A. That the defendants, New England Dough, LLC, and D. Joseph Fulford, II, failed to establish the existence of a hardship. The defendants counter that the ZBA record contains substantial and uncontradicted evidence of a hardship.
B. That the defendants, New England Dough, LLC, and D. Joseph Fulford, II, failed to demonstrate the existence of special circumstances to warrant a variance. The defendants counter that the recent change in the zoning regulations and the existing conditions of the subject premises constitutes special circumstances; and
C. That the Zoning Board of Appeals lacks jurisdiction to properly consider the application. The defendants counter that argument asserting that the issue is one of standing and not of jurisdiction.
A.
The plaintiff argues that the defendants failed to establish the existence of "exceptional difficulty or unusual hardship" pursuant to General Statutes § 8-6(a)(3). In support of this proposition, the plaintiff cites Kelly v. Zoning Board of Appeals, 21 Conn. 594, 597-8 CT Page 11769-dv (1990); Smith v. Zoning Board of Appeals, 174 Conn. 323, 326 (1978); Grillo v. Zoning Board of Appeals, 206 Conn. 363, 368 (1988); Kaeser v. Zoning Board of Appeals, 218 Conn. 438, 445 (1991). The plaintiff argues that "the record before the ZBA is barren of any evidence of exceptional difficulty or undue hardship upon the defendants." (Plaintiff's Brief, p. 4).
"A variance may be granted if the literal enforcement of the regulations causes exceptional difficulty or hardship because of some unusual characteristic of the property." See also, Stillman v. Zoning Board of Appeals, 25 Conn.App. 631, 636 cert. denied, 220 Conn. 923, 598 A.2d 365 (1991); General Statutes § 8-6(a)(3). In fact, the minutes of the Zoning Board of Appeals meeting of February 10, 2004 (ROR, Exh. K) indicates that the ZBA specifically found a hardship: "The business is presently there and there is no other place to put this shed without creating the need for more variances, so this would be the most practical place to put it and one of the other hardships is that, the new zoning regulations have just [taken] effect which creates hardship." (Emphasis added.) Thus, it is clear that the ZBA found that the newly adopted zoning regulations in fact created a hardship. At said hearing, Linda Stock, Board Member, stated: "Mr. Chairman, I just wanted to make one comment. The only reason they are here is because the zoning regulations have changed. There was no requirement before, they could have just put that thing right on the property line and there would have been no questions asked. Unfortunately, now that the regs have changed and they're in a different zone, and they need a very large setback for an accessory structure. So, if they'd come last month, well, if they came in December, we could have just issued them a permit but now they need to go before this board." (ROR, Exh. K). Thus, it is clear that the earlier regulations did not contain any setback requirement for accessory structures but that the newly adopted regulations required a 25-foot setback and, thus, it was a change in the law which compelled the need for a variance.
The court in Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565 (2001), presents a similar factual scenario. In Stancuna, the court agreed that the CT Page 11769-dw imposition of a 20-foot side yard setback would create an unusual hardship on a property which existed prior to the adoption of that new requirement. Id., 571. In the instant case, the City of Milford adopted new regulations imposing a 25-foot setback for accessory structures, likewise creating a hardship for the premises which had been sited and developed in accordance with the earlier regulations.
The plaintiff also argues that this hardship, if it exists at all, was self-created. While it is true that self-created hardships may not be the basis for the granting of a variance; Kaeser v. Zoning Board of Appeals, 218 Conn. 438, 445 (1991), there is nothing in the record to demonstrate that the defendants created the need for the variance. Clearly, the need for the variance arose from a growth in the defendant's business, a change in the zoning regulations and from the particular characteristics of the premises in that said premises has a drive-thru window, is a corner lot with frontage on two streets, and has its parking area and structure already situated.
B.
The plaintiff argues that the defendant failed to demonstrate the existence of special circumstances or special necessity. The plaintiff argues that the "inability to use the property at its maximum potential or for higher or better use does not meet the burden of proving a special circumstance." (Plaintiff's Brief, p. 8). See Shell Oil Corp. v. Zoning Board of Appeals, 156 Conn. 66 (1968).
The standard which measures the ZBA's authority to grant a variance, however, is that `[a] variance may be granted if the literal enforcement of a regulation causes exceptional difficulty or hardship because of some unusual characteristic of the property." (Internal quotation marks omitted.) Giarrantano v. Zoning Board of Appeals, 60 Conn.App. 446, 453 (2000). The ZBA found a hardship arising out of the conditions and circumstances of the existing site and the ZBA found that the defendant would suffer unusual hardship if the regulations were strictly applied. "In reviewing the CT Page 11769-dx actions of a zoning board of appeals, we note that such a board is endowed with liberal discretion and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal . . . The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision . . . In an appeal from the decision of the zoning board, we therefore review the record to determine whether there is a factual support or the board's action, not for the contentions of the applicant." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791 (1994).
It is well held that the scope of judicial review of a decision of a local zoning commission regarding zoning regulations is narrow. "In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of the issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached." Protect Hamden/North Haven From Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 542-43 (1991). "This legislative discretion is wide and liberal and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally." (Internal quotation marks omitted.) Id., 543. "Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion." Malafronte v. Planning and Zoning Board, 155 Conn. 205, 210 (1967). In the instant case, the ZBA found that the defendant would suffer unusual hardship that would deprive it of the reasonable commercial use of its premises if the regulations were strictly applied (ROR, Exh. K). Clearly, the plaintiff has failed to meet its burden of demonstrating that the ZBA acted arbitrarily, illegally or in abuse of its discretion and, thus, the court must defer to the ZBA's conclusions of fact. CT Page 11769-dy
C.
The plaintiff argues that the Zoning Board of Appeals lacked jurisdiction to properly consider the application. Citing no authority for this proposition, the plaintiff argues that "the application to the Zoning Board of Appeals specifically requires that the name and address of the property owner be provided. Furthermore, the application requires that if the appellant is not the owner of the property in question, the owner execute the application as a demonstration of his consent to filing." (Plaintiff's Brief, p. 9). The plaintiff argues that since the record owner of the subject premises was Regina Lycoudes, Executrix, that the ZBA lacked jurisdiction to consider the application. In support of this proposition, the plaintiff cites D.S. Associates v. Planning Zoning Commission, 27 Conn.App. 508 (1992). A careful reading of that case reveals that this reliance is misapplied. In that case, D.S. Associates, which had made the application, had no interest or standing because it had previously transferred its ownership interest to Twin Pines Development Corporation. Id., 510-12. The court found that Twin Pines Development Corporation was aggrieved but that it was not the applicant. Id., 511-12. In the instant case, however, NED applied for the variance because it was, at all relevant times, in possession and control of the premises and had the contractual right, pursuant to the ground lease, to occupy, possess and control the premises and, specifically, to file applications with the local land use agencies in conjunction with its use and occupancy of the premises. (Defendant's Exhibit A, Short Form Lease.) Any party that has a sufficient interest in the property has standing before zoning bodies. Gladysz v. Planning Zoning Commission, 256 Conn. 249, 257 (2001). The court in Richards v. Planning and Zoning Commission, 170 Conn. 318, 323-24 (1976) established this standard: "From an examination of [Connecticut] cases and those of other jurisdictions, it is not possible to extract a precise comprehensive principle which adequately defines the necessary interest which a nonowner must possess in order to have standing to apply for a special permit or a variance. The decisions have not been based primarily on whether a particular CT Page 11769-ez applicant could properly be characterized as an optionee or a leasee, but, rather, on whether the applicant was in fact a real party in interest with respect to the subject property. Whether the applicant is in control of the property, whether he is in possession or has a present or, future right of possession, whether the use applied for is consistent with the applicant's interest in the property, and the extent of the interest of other persons in the same property, are all relevant considerations in making that determination." Id. As the leasee and possessor of said premises, NED clearly has standing and is a real party in interest.
CONCLUSION
For the foregoing reasons, the appeal is dismissed and the decision of the ZBA is sustained.
The Court
By Shluger, J. CT Page 11769-ea