Opinion
No. CV 05-4007003
July 23, 2007
MEMORANDUM OF DECISION
The plaintiffs, East Shore Preservation Association and four of its members, Annette Morman, Phyllis Conte, and Jean and Scott Bialczak, appeal from the December 21, 2004 decision of the defendant, the Board of Zoning Appeals of the City of New Haven (hereinafter "BZA"), granting a lot area variance to permit 10,249 square feet of lot area where 37,500 square feet is required, and a use variance to permit conversion of the existing mixed use structure into five dwelling units. Also named as defendants are the city of New Haven, Giuliana Maravalle, the applicant and proposed purchaser of the subject property, and David Vaiuso, owner of the subject property. For the reasons stated below, the Court dismisses the appeal.
Vaiuso owns the subject property with Ralph Nazario. (Return of Record [ROR], Exhibit 18, p. 1.)
II BACKGROUND
This appeal concerns an approximately 5,000 square foot mixed use structure on a 10,249 square foot lot located on 175 Lighthouse Road in New Haven, Connecticut (Return of Record [ROR], Exhibit 3, p. 1). The lot is in a coastal management district. An application for Coastal Site Plan Review was filed and referred to the City Plan Commission for its written findings and recommendations in the form of a report as required in Section 55 of the New Haven Zoning Ordinance." (ROR, Exh. 15, p. 1.) (ROR, Exh. 15, p. 1); in an RS-2 residential district. (ROR, Exh. 3, p. 1.)
Section 55 of the New Haven zoning ordinance provides in relevant part: "A coastal site plan review shall be conducted in accordance with this section for all buildings, structures, uses or activities to be located within the coastal management district." (Emphasis in original.) (ROR, Exh. 20, p. 55-1.)
Pursuant to § 55.B.2., "the application for a variance or special exception submitted pursuant to subsections 63.C and D of this zoning ordinance . . . shall be accompanied by an application for coastal site plan review upon the forms provided by the zoning enforcement officer." (ROR, Exh. 20, p. 55-1.)
The RS-2 residence district is a general single-family district. (ROR, Exh. 20, p. 12-1.) "[T]he use of land and buildings within such areas is limited to single-family detached dwellings, and to such non-residential uses as generally support and harmonize with a low-density residential area." (ROR, Exh. 20, p. 12-1.)
The structure, built in 1900, has an extensive zoning history. (ROR, Exh. 8, pp. 1-2; ROR, Exh. 10, p. 1.) It has been a storage shed, a restaurant, a restaurant with a pool table and a video game, and a general marine store. (ROR, Exh. 8, p. 1.) Currently, it is a boarding house and a general marine store with repair and limited storage of boats, including limited outdoor boat storage. (ROR, Exh. 8, p. 1.)
At the December 14 hearing, Ralph Nazario, co-owner of the property, disputed that the structure currently is used as a boarding house. (ROR, Exh. 1, pp. 12-13.)
On November 18, 2004, Maravalle filed an application with the BZA for two variances: (1) a lot area variance to permit 10,249 square feet of lot area where 37,500 square feet is required; and (2) a use variance to permit conversion of the existing mixed use structure into five dwelling units. (ROR, Exh. 3; Appeal, ¶ 7.) In applying for the variances, Maravalle sought to bring the use of the structure more in line with residential zoning. (ROR, Exh. 3, p. 2.) On December 14, 2004, the BZA heard the application at a public hearing. (ROR, Exh. 1.) On December 15, 2004, pursuant to § 55 of the New Haven zoning ordinance, the New Haven city plan commission issued an advisory report. (ROR, Exh. 10.)
The advisory report found, inter alia: (1) "[t]o conform to the RS-2 zone the applicant would need a lot size of 37,500 [square feet] in order to subdivide it into five lots of the 7500 square feet minimum size; this lot is 10,248 [square feet]. The applicant is proposing 2,049 square feet of lot area per unit, closer to the RM-2 standard."; (2) "[t]he bedroom count for the project is 7; requiring 7 off-street parking spaces, 5 are shown . . . requiring additional zoning relief. The diagram of the off-street parking arrangement is not sufficiently detailed and dimensioned, so it is difficult to determine if there is sufficient room to back vehicles out of the parking spaces. No screened dumpster or trash storage is shown."; (3) "[a]t the BZA hearing of December 14, 2004, the applicant presented the conversion plan as outlined in the site plan. In addition, both the presenter and owner, Ralph Nazario, acknowledged that either five roomers or renters live in the building; either case would require a Use Variance." (Emphasis added.) (ROR, Exh. 10, pp. 1-2.)
On December 21, 2004, the BZA unanimously granted the application at a special meeting with the condition that Maravalle provide a site plan, demonstrating seven on-site parking spaces, to the New Haven city plan department for review and approval. (ROR, Exh. 15, p. 1.) In doing so, the BZA adopted the December 15 city plan commission advisory report and incorporated the report's findings as a condition of approval. (ROR, Exh. 15, p. 1.)
The BZA granted the application based upon four findings. (ROR, Exh. 19, p. 2.) First, it "found that the structure is functionally obsolete, and the site has had major zoning relief in the past in the form of variances to substantially expand nonconformities, and in general to permit uses that were out of harmony with the neighborhood and the structure, further reinforcing the obsolescence of the structure." (ROR, Exh. 19, p. 2.) Second, it "found that the lot was large enough to accommodate the type of development proposed, and . . . Lighthouse Public Park abuts the property, providing open space for the use of residents at 175 [Lighthouse Road]." (ROR, Exh. 19, p. 2.) Third, it "found that no other use for the building exists, based upon the [applicant's] testimony, and the Board's familiarity with the site over the years, and that it is the minimum relief necessary to put this unusual structure, as built, to a reasonable use." (ROR, Exh. 19, p. 2.) Finally, the BZA found that granting the use variance would not "impair the character of the neighborhood, and will be far less intense [than] the approved uses there now. The Board noted that there are many multi-family dwellings in the area.
On January 7 and January 8, 2005, the plaintiff association and the plaintiff property owners commenced this appeal by service of process on the various defendants. (Marshal's return.) On August 8, 2005, the plaintiffs filed a brief (Docket Item #111.) The BZA filed a brief on November 1, 2005; (Docket Item #116); which Maravalle joined. (Docket Item #117.) Oral argument on the appeal was held on March 26, 2007. The Court found that the plaintiffs Scott and Jean Bialczak had standing to proceed.
On May 11, 2006, the BZA filed a motion to supplement the record, requesting that the court add ten documents into the record. (Docket Item #119.) On June 30, 2006, the court, Corradino, J., denied the motion to supplement. (Docket Item #119.)
III JURISDICTION
General Statutes § 8-8 governs an appeal from a decision of a zoning board of appeals.
"Appeals to the courts from administrative [agencies] exist only under statutory authority . . . Appellate jurisdiction is derived from the . . . statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed." (Internal quotation marks omitted.) Nine State Street, LLC v. Planning Zoning Commission, 270 Conn. 42, 46, 850 A.2d 1032 (2004).
A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003). A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning and Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
The plaintiff property owners allege statutory aggrievement as the owners of property which is within a one hundred-foot radius of the 175 Lighthouse Road property. (Appeal, 113.) Pursuant to § 8-8(a)(1), an "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." (Internal quotation marks omitted.) Evidence of ownership of property that is the subject matter of an application may constitute aggrievement. Winchester Woods Associates v. Planning Zoning Commission, supra, 219 Conn. 308. At trial, the plaintiffs introduced a copy of a warranty deed, seeking to demonstrate that Mr. and Mrs. Bialczak were the rightful owners of property at 18 Marin Road, East Haven, Connecticut. Plaintiffs further demonstrated that the 18 Marin Road property was within a 100-foot radius of 175 Lighthouse Road, New Haven, Connecticut. Plaintiffs also offered a certified copy of a map of the City of New Haven, to which there was no objection from the defendants. The defendants did not object to the introduction of Exhibits 1 and 2. Based upon the aforementioned deed and map, and based on the fact that the defendants did not object to the introduction of these exhibits at trial for the sole purpose of establishing aggrievement, the court finds the plaintiffs Scott and Jean Bialczak aggrieved for the purpose of bringing this appeal.
B. Timeliness and Service of Process
Section 8-8(b) provides in pertinent part: "[an] 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."
Section 8-8(f)(2) provides in relevant part: "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." Pursuant to § 52-57(b)(5), process in civil actions shall be served "against a board . . . notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board . . ."
Notice of the BZA decision was published on December 27, 2004, in the New Haven Register. (ROR, Exh. 12.) On January 7, 2005, the appeal was commenced by service of process upon the city of New Haven and the BZA by delivering two copies to Ronald Smith, the New Haven town clerk. (Marshal's return.) Accordingly, service of process properly comports with the statutory requirements.
Maravalle and Vaiuso were served on January 8, 2005. (Marshal's return.)
IV SCOPE OF REVIEW
"An adverse decision by the board may be appealed to the Superior Court under General Statutes § 8-8(b). The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . 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.) R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 469-70, 778 A.2d 61 (2001). "When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, 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 authority was required to apply under the zoning regulations." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). "The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004).
Here, the BZA provided four reasons for its decision. (ROR, Exh. 19, p. 2.) Accordingly, the court will focus on whether substantial evidence in the record supports any one of the reasons given.
V. FINDINGS OF FACT
Initially, the plaintiffs oppose the BZA decision by refuting each of the reasons proffered by the BZA in support of its decision. (Plaintiffs' brief, p. 11.) The defendants contend that the record supports the BZA's findings and decision.
(1) "The Board found that the structure is functionally obsolete, and the site has had major zoning relief in the past in the form of variances to substantially expand nonconformities, and in general to permit uses that were out of harmony with the neighborhood and the structure, further reinforcing the obsolescence of the structure."
The plaintiffs dispute that the structure is functionally obsolete. They maintain that there is no evidence in the record to support "the conclusion that a five-unit apartment building is either the only reasonable use or reflective of the minimum variance necessary in order to allow a reasonable use of the property as required by § 63.C.2.b. of the New Haven zoning ordinance." (Internal quotation marks omitted.) (Plaintiffs' brief, p. 12.) They also maintain that neither the applicant, Maravalle, nor the application, has characterized the structure as functionally obsolete. (Plaintiffs' brief, p. 13.)
The plaintiffs also emphasize that the term "functional obsolescence" is an appraisal term. (Internal quotation marks omitted.) (Plaintiffs' brief, p. 13.) The term means "caused by internal property characteristics such as a poor floor plan, inadequate mechanical equipment, or functional inadequacy or superadequacy due to size or other characteristics." (Internal quotation marks omitted.) (Plaintiffs' brief, p. 13.) The plaintiffs contend that the record, however, is devoid of evidence that any of these factors were brought before the BZA. (Plaintiffs' brief, p. 13.)
In addition, the plaintiffs argue that Maravalle failed to comply with the "specific mandatory standards governing when and how residential conversion to a greater number of units may be sought, considered and approved in the RS-2 zoning district" contained in § 12(a)(3) of the New Haven zoning ordinance. (Plaintiffs' brief, p. 14.) They maintain that she should have established and presented facts that support her request for a departure from the existing standard of single-family dwellings in the area. (Plaintiffs' brief, p. 14.) Instead, plaintiffs assert that Maravalle merely stated a preference that the number of units be five. (Plaintiffs' brief, p. 14.)
In response, the defendants maintain that the BZA never intended to use the technical definition of "functional obsolescence." (Defendants' brief, p. 10.) They maintain that the BZA used the lay definition, to wit "permitted uses, and prior zoning relief for the structure no longer worked in the neighborhood, and that the structure was not suited for such uses." (Defendants' brief, p. 10.) According to the defendants, the "BZA understood the long zoning history and expansion of nonconforming uses at this site." (Defendants' brief, p. 10.) Since 1997, Vaiuso and Nazario have unsuccessfully attempted to sell the structure, and Maravalle's offer was the only viable offer during this time. (Defendants' brief, p. 10.) Further, defendants further contend the structure's only viable use "is a five unit, 1200 square foot rooming/boarding pre-existing nonconforming use . . ." (Defendants' brief, p. 10.) According to the defendants, the law recognizes four types of nonconformities, and the 175 Lighthouse Road property fits within the definition of all four types. (Defendants' brief, p. 11.) The defendants also contend that converting the structure to five dwelling units accomplishes two improvements: removal of nonconforming uses that have been expanded over time; and a less intense use that is more in concert with an RS-2 zone. (Defendants' brief, p. 12.)
The Court finds that the Board's findings in regards to ground #1 are reasonably supported by the record and are pertinent to the considerations which the Board was required to make under the zoning regulations. The Board was required to determine whether the structure at 175 Lighthouse Road was functionally obsolete. The record contains evidence of the efforts made by Vaiuso and Nazario over the years to sell the property in its current configuration, and the long zoning history and expansion of non-conforming uses on the site (ROR, Exh. 8, pp. 1-2; ROR, Exh. 10, p. 1).
(2) "The Board found that the lot was large enough to accommodate the type of development proposed, and noted that Lighthouse Public Park abuts the property, providing open space for the use of residents at 175 [Lighthouse Road]."
The plaintiffs contend that this finding is without merit. They argue the record is devoid of evidence that supports a finding concerning the adequacy of the lot size, and, specifically, the application is "incomplete and inclusive on the issues of scale and site plan operation." (Plaintiffs' brief, p. 15.) The plaintiffs also maintain that the reference to Lighthouse Park is misguided; it describes the desirability of the property for single-family use, not five-family use. (Plaintiffs' brief, p. 15.)
The plaintiffs also argue that the December 15 city plan commission advisory report contradicts the finding that the lot is large enough. (Plaintiffs' brief, p. 15.) Maravalle did not demonstrate the lot could accommodate the required number of cars and therefore the report suggested that additional zoning relief might be required. (Plaintiffs' brief, p. 15.) According to the plaintiffs, the failure of the BZA to require Maravalle to "explicitly demonstrate the actual availability of on-site parking in adequate numbers flies in the face of [s]ection 12(a)(3) requirements of the New Haven zoning ordinance . . ." (Plaintiffs' brief, p. 16.)
In response, the defendants contend that the lot size is a pre-existing non-conforming use. (Defendants' brief, p. 13.) They also maintain that the BZA is familiar with the area and the proximity of the beaches and parks and could therefore conclude that a park that surrounds the 175 Lighthouse Road property could serve as open and recreational space. (Defendants' brief, p. 14.)
The defendants dispute the plaintiffs' contention that there is not adequate space for on-site parking. (Defendants' brief, p. 13.) They argue that the property complies with the ordinance. Conversion to a greater number of units under § 12(a)(3)(d) of the zoning ordinance only requires five parking spaces, which are shown on scaled site plans. (Defendants' brief, p. 13.) Further, at the December 14 hearing, Nazario testified that there is adequate space to park thirteen or fourteen cars, and nobody at the hearing complained of a parking issue or parking shortage because none exists. (Defendants' brief, p. 13.)
In regards to Board ground #2, the Court finds that there is adequate support on the record to support the Board's conclusion, and the Board was reasonably required to make such a finding pursuant to local zoning regulations. The Board found that the site has had major zoning relief in the past in the form of variances to substantially expand non-conformities, and in general to permit uses that were out of harmony with the neighborhood and the structure (ROR, Exh. 19). The Board also found that Lighthouse Park abuts the property at 175 Lighthouse Road and therefore could serve as open and recreational space for the use of residents of 175 Lighthouse Road (ROR, Exh. 19); see also Holt-Lock Inc. v. Zoning and Planning Commission of Town of Granby, 161 Conn. 191 (1971) (a board can take into account its own knowledge of local conditions, and the burden of proof is on the applicant to show the board acted improperly). Thus, there is evidence in the record to support ground #2.
(3) "The Board found that no other use for the building exists, based upon the [applicant's] testimony, and the Board's familiarity with the site over the years, and that this is the minimum relief necessary to put this unusual structure, as built, to a reasonable use."
The plaintiffs dispute the finding that no other use for the building exists. Specifically, they contest the two grounds that the BZA has provided for its finding — hearing testimony and the BZA's familiarity with the site. According to the plaintiffs, just because Nazario closed his business and moved to Florida or because Maravalle "wishes to convert the building to a small apartment building in a single-family neighborhood" does not lead to the conclusion that the building has no other use. (Plaintiffs' brief, p. 16.)
The plaintiffs also dispute the BZA's position that it was familiar with the site, arguing there is no evidence in the record to support such familiarity. According to the plaintiffs, only one member of the BZA, chairman Ed Perez, "participated" during the hearing. (Plaintiffs' brief, p. 17.) Had Perez, or another member, had a basis for arriving at such a conclusion, then they should have verbalized it during the hearing in order to provide others with an opportunity to respond.
In addition, the plaintiffs contest the finding that a conversion to five units is the minimum relief necessary to put the structure to a reasonable use. Specifically, they argue that the record does not support the finding. (Plaintiffs' brief, p. 18.) According to the plaintiffs, the December 14 hearing testimony indicates that conversion to five units was not the minimum relief necessary. Neighbors testified that larger structures have been converted to single-family use and that the BZA recently denied a variance request to reconstruct a two-family house destroyed by fire, which is now the site of a single-family house. (Plaintiffs' brief, p. 18.) According to the plaintiffs, Maravalle's choice of five units was an arbitrary determination, made for "no substantive reason." (Plaintiffs' brief, p. 18.)
In response, the defendants argue that no other use for the building exists. (Defendants' brief, pp. 14-15.) They contend that the "property is stuck in a nonusable form and needs zoning relief in order to transition." (Defendants' brief, pp. 16-17.) In support, they cite to the December 14 hearing testimony that Vaiuso and Nazario have tried to sell the property for nearly seven years and nobody wanted it. (Defendants' brief, p. 14-15.) The defendants also discredit the testimony of Anthony Esposito, a neighbor who lives across the street from the 175 Lighthouse Road property, who testified that demolition and construction of a new single family would be simple. (Defendants' brief, p. 16.)
The Court finds support in the record for ground #3. Mr. Nazario testified before the Board that he and his partner, Mr. Vaiuso, have attempted to sell the property for seven years without success (ROR, Exh. 1, pp. 12-17). The trial court is not permitted to come to an alternative conclusion, so long as the Board's conclusion is supported by the record. There was in fact testimony that the owners of the property made efforts over the years to either sell the property or find alternative uses for it, but to no avail (ROR, Exh. 1, pp. 12-14).
(4) "The granting of the use variance is found not to impair the character of the neighborhood, and will be far less intense [than] the approved uses there now. The Board notes that there are many multi-family dwellings in the area. The Board gave much weight to the applicant's testimony, and little weight to the opposition."
The plaintiffs argue that the record does not support this finding. They contend that the evidence indicates the variance will create a more intense use. According to the plaintiffs, both alderwoman DePino and neighbors testified at the December 14th hearing about the over intensity of the variance request. (Plaintiffs' brief, p. 19.) The plaintiffs also contend that the record is devoid of evidence that Maravalle has demonstrated that the use variance would provide sufficient off-street parking. (Plaintiffs' brief, p. 19.) According to the plaintiffs, the "BZA simply ignored the commentary and objective information placed at its disposal by the city plan department and the city plan commission in their advisory reports." (Plaintiffs' brief, p. 19.)
The plaintiffs contest the BZA finding that there are many multi-family homes in the area. They contend that the BZA did not note this at the December 14 hearing, Maravalle has not claimed this, and the city plan commission advisory report states the opposite. (Plaintiffs' brief, p. 19.) Finally, the plaintiffs maintain that the request to create a five-unit dwelling "violates the letter and spirit of the New Haven zoning ordinance." (Plaintiffs' brief, p. 20.) The structure is a nonconforming use and pursuant to § 67.A.3. of the New Haven zoning ordinance, nonconforming uses "should be abolished or reduced to conformity as quickly as the fair interest of' the parties will permit." (Plaintiffs' brief, p. 20.)
The defendants dispute that the variance will create an inharmonious and more intense use. They claim that the proposed renovation will be far less intense than the current uses. (Defendants' brief, p. 18.) They further claim that the proposed use is hardly inharmonious or overly intense when compared to the current as of right uses in the zone — a dormitory, hospital, covenant, public library and church. (Defendants' brief, p. 18.) According to the defendants, Maravalle "proposes a sympathetic renovation in harmony with the neighborhood as it exists today, and respectful to the historic shell of the structure." (Defendants' brief, p. 18.)
In addition, the defendants contend that the neighborhood at the end of Lighthouse Road has many multi-family homes. (Defendants' brief, p. 18.) They maintain that the BZA was correct whereas the city plan reports were incorrect. (Defendants' brief, p. 17.) (Defendants' brief, pp. 17-18.) The defendants, in general, discredit both the city plan department report and the city plan commission report. They maintain the reports do not provide meaningful analysis and inaccurately identify the facts, issues and history of the property. (Defendants' brief, p. 17.) The Board is empowered by statute to assess the credibility of the witnesses that appear before it. The Court is not to substitute its judgment for that of the Board regarding the credibility of witnesses. The fact that the record may contain evidence that could have led the Board to a different conclusion does not invalidate the decision reached by the Board. There is support in the record for Board finding #4. Mr. Nazario testified regarding the history of the property, the various non-conforming uses permitted to exist on the property, and the fact that the property was of sufficient size for the proposed parking spaces (ROR, Exh. 1, pp. 12-17). This evidence is sufficient to support finding #4.
In addition to attacking the four reasons for the BZA decision, the plaintiffs argue that Connecticut law does not support the decision. (Plaintiffs' brief, p. 20.) The plaintiffs emphasize that the Connecticut Supreme Court has interpreted General Statutes § 8-6 to authorize a variance when an applicant demonstrates that the variance does not substantially affect the comprehensive zoning plan, and "adherence to the strict letter of the zoning ordinance causes unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan." (Plaintiffs' brief, pp. 20-21.)
The plaintiffs contend that Maravalle has not made either of these requisite showings. Her request for a five-unit apartment conflicts with the comprehensive zoning plan of the RS-2 zoning district, "a single-family zone with regulations that protect that character." (Plaintiffs' brief, p. 21.) Her request is also "a self-created hardship" and an insufficient basis to depart from the zoning regulations. (Plaintiffs' brief, p. 21.) The plaintiffs also maintain that the property has "continuing rights as a nonconformity." (Plaintiffs' brief, p. 21.) In addition, the plaintiffs argue that while financial considerations are pertinent when the zoning board finds that applying the regulations decreases or destroys the property's value, the record is devoid of such evidence here. (Plaintiffs' brief, p. 22.)
The defendants counter that Maravalle has not created a self-imposed hardship. (Defendants' brief, p. 18.) According to the defendants, Maravalle has done nothing, "other than purchase a 105 year old building that is a preexisting nonconforming structure, with protected nonconforming uses, on a nonconforming lot that was marketed for seven years." (Defendants' brief, p. 18.)
VI. CONCLUSIONS OF LAW A. RS-2 and RM-2 Residence Districts
The 175 Lighthouse Road property is located in a RS-2 zoning district. (ROR, Exh. 3, p. 1.) An RS-2 zoning district is a general single-family district. (ROR, Exh. 20, p. 12-1.) Its minimum lot area is 7,500 square feet, "except for nonconforming lots under subsection 67.E." (ROR, Exh. 20, p. 13-1.) Section 12 of the New Haven zoning ordinance provides the description and the purpose of RS-2 districts. (ROR, Exh. 20, p. 12-1.) Section 12 provides in relevant part: "These districts exist for the protection of areas, most of them large in size, that have been and are being developed predominantly for single family dwellings. Accordingly, the use of land and buildings within such areas is limited to single-family detached dwellings, and to such non-residential uses as generally support and harmonize with a low-density residential area. The non-residential uses permitted in RS-2 Districts, subject to adequate conditions and safeguards, are hereby found and declared, to be the only appropriate such uses for such areas. It is hereby found and declared, further, that these regulations are necessary to the protection of these areas and that their protection is essential to the maintenance of a balanced community of sound residential areas of diverse types." (ROR, Exh. 20, p. 12-1.)
Section 67.E.2 provides: "If a lot which is of record at the time of the application of the provisions of this ordinance to such lot is insufficient as to lot area or average lot width, a single-family dwelling may be constructed on such lot regardless of the requirements of this ordinance with regard to lot area and average lot width, but conforming to all other regulations of the district in which such lot is located. Any other provision of this ordinance to the contrary notwithstanding, in any case where a variance is sought for construction on such a lot other than as allowed in this § 67.E.2, no variance shall be granted for a structure of a size or shape not allowed on the lot under the zoning regulations pertaining to the lot at the time the lot was reduced to its present dimensions." (Emphasis in original.) (ROR, Exh. 20, p. 67-4.)
In its December 15, 2004 report, the New Haven City Plan Commission stated: "The applicant is proposing 2,049 [square feet] of lot area per unit, closer to the RM-2 standard." (ROR, Exh. 10, p. 1.) The commission also found that there was no coastal impact as a result of the application (ROR, Exh. 10, p. 2). An RM-2 district is a high-middle density district. (ROR, Exh. 20, p. 14-1.) Its minimum lot area is 5,400 square feet, "except for nonconforming lots under subsection 67.E." (ROR, Exh. 20, p. 14-1.) Section 14 of the New Haven zoning ordinance provides the description and purpose of RM-2 districts. (ROR, Exh. 20, p. 14-1.) Section 14 provides in pertinent part: "These districts exist for the protection of areas that have been and are being developed predominantly for high-middle density dwellings of various types. Accordingly, the use of land and buildings within these areas is limited in general to dwellings at a density of about 22 dwelling units per acre, and to such non-residential uses as generally support and harmonize with a middle density area." (ROR, Exh. 20, p. 14-1.)
B. Nonconforming Uses
The first basis for the BZA's approval of the application was: "The Board found that the structure is functionally obsolete, and the site has had major zoning relief in the past in the form of variances to substantially expand nonconformities, and in general to permit uses that were out of harmony with the neighborhood and the structure, further reinforcing the obsolescence of the structure." (Emphasis added.) (ROR, Exh. 19, p. 2.)
"A nonconformity has been defined as a use or structure [that is] prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations [were] adopted . . . For a use to be considered nonconforming . . . that use must possess two characteristics. First, it must be lawful and second, it must be in existence at the time that the zoning regulation making the use nonconforming was enacted." (Emphasis in original; internal quotation marks omitted.) Horace v. Zoning Board of Appeals, 85 Conn.App. 162, 165 n. 5, 855 A.2d 1044 (2004). "For there to be an existing use, [the] premises must be so utilized as to be known in the neighborhood as employed for a given purpose." Wallingford v. Roberts, 145 Conn. 682, 684, 146 A.2d 588 (1958).
Section 67 of the New Haven zoning ordinance addresses nonconforming uses, structures and lots. (ROR, Exh. 20, p. 67-1.) Section 67.A.3 provides: "It is a fundamental principal of zoning law that noncomformities are not to be expanded, and that they should be abolished or reduced to conformity as quickly as the fair interests of the parties will permit. This principle is declared to be the intent of this ordinance." (ROR, Exh. 20, p. 67-1.) Pursuant to § 67.C., "[n]o nonconforming use of land shall be enlarged, extended or altered, and no structure or part thereof devoted to a nonconforming use shall be enlarged, extended, constructed, reconstructed, or structurally altered, except in changing the use to one which is permitted in the district in which such use is located." (Emphasis in original.) (ROR, Exh. 20, p. 67-1.)
There are four types of non-conforming uses with regulations: 1. the use is nonconforming; 2. the building is non-conforming; 3. the location of the building on the lot is non-conforming; or 4. the size or shape of the lot is non-conforming. See generally Connecticut Practice, Vol. 9B, § 52:1 (West 2007). In the Court's view, 175 Lighthouse Road possesses all four types of non-conformities. A non-conforming use is a vested right which is entitled to constitutional protection. O G Industries, Inc. v. Planning Zoning Comm'n, 232 Conn. 419, 430 (1995). Even the transfer of a non-conforming property does not terminate the non-conforming use, because zoning concerns use of property, not ownership. See Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483-84 (1979). The buyer has the same right to use the property as the seller, even when purchased with knowledge of the non-conformity. Petruzzi, Id. at 483-84.
The co-defendant, by re-organizing the structure to redistribute five dwelling units, and by removing the other non-conforming uses that are out of harmony with the concept of the zone, will accomplish two important objectives: 1. remove long existing non-conforming uses that have been expanded over the years; and 2. reduce the intensity of the use of the site, bringing the use more in line with the concept for the RS-2 zone.
C. Variances
In its decision, the BZA granted a lot area variance and a use variance. "A variance is authority granted to the owner to use his property in a manner forbidden by the zoning regulations . . . The power of the board to grant a variance should be used only where a situation falls fully within the specified requirements . . . Thus, the power to grant a variance should be sparingly exercised." (Internal quotation marks omitted.) Reid v. Zoning Board of Appeals, 235 Conn. 850, 857, 670 A.2d 1271 (1996).
"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 . . . Accordingly, [the Supreme Court has] interpreted General Statutes . . . § 8-6 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."
Section 8-6 sets forth the powers and duties of the zoning board of appeals. Section 8-6(a)(3) provides that a 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."
(Citation omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 207-08, 658 A.2d 559 (1995).
"Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance . . . A mere economic hardship or a hardship that was self-created . . . is insufficient to justify a variance . . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance." (Citations omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 207-08. "Financial considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations to the property greatly decreases or practically destroys its value for any of the uses to which it could reasonably be put and where the regulations, as applied, bear so little relationship to the purposes of zoning that, as to particular premises, the regulations have a confiscatory or arbitrary effect." Carlson v. Zoning Board of Appeals, 158 Conn. 86, 89-90, 255 A.2d 841 (1969).
Section 63.C. of the New Haven zoning ordinance sets forth the basis in which the BZA may grant a variance. (ROR, Exh. 20, p. 63-1.) It provides: "Where there is difficulty or unreasonable hardship in the way of carrying out the strict letter of the zoning ordinance, the Board of Zoning Appeals shall have power in a specific case to vary the application of any provision of the ordinance, if such variance will be in harmony with the general purpose and intent of the ordinance and if the public health, safety and general welfare will be served and substantial justice done." (ROR, Exh. 20, p. 63-1.)
D. Use Variances
As stated during the December 21, 2004 hearing, the BZA approved the use variance on the following ground: "The granting of the use variance is found not to impair the character of the neighborhood, and will be far less intense than the approved uses there now. (ROR, Exh. 19, p. 2.)
Section 63.C.2. of the New Haven zoning ordinance sets forth the criteria the BZA must consider in deciding whether to grant a use variance. (ROR, Exh. 20, p. 63-1.) Pursuant to § 63.C.2., the BZA shall not grant any use variance unless: "a) the zoning regulations allow no reasonable use to be made of the property in question for reasons peculiar to the property and not applicable to the area as a whole; b) the use proposed is the minimum variance necessary in order to allow a reasonable use of the property, and, c) this use will not impair the essential character of the area or the objectives of the comprehensive plan of the City." (Emphasis in original.) (ROR, Exh. 20, p. 63-1.)
Section 12(a)(3) of the New Haven zoning ordinance delineates the standards governing the conversion of an existing building to a greater number of dwelling units. Section 12(a)(3) provides in pertinent part: "[N]o variance shall be granted from the use regulations of these districts for conversion of an existing building to a greater number of dwelling units except in accordance with the following standards: a. It must be clearly demonstrated that continued use of the building with its existing number of dwelling units would create such hardship as would practically destroy or greatly decrease its value . . . c. Any variance granted for conversion of a building to a greater number of dwelling units shall be for the minimum number of dwelling units necessary to mitigate the hardship . . . d. Off-street parking spaces shall be provided on the same lot as the building being converted equal to the number of dwelling units on the lot after conversion. e. Stairways leading to the second or any higher floor shall be located within the walls of the building wherever practicable . . ." (Emphasis in original.) (Plaintiffs' Exh. 1.) The defendants demonstrated that the building's use with its current number of dwelling units would greatly decrease its value. This is based upon the testimony of Ralph Nazario, who testified as to the efforts made over the years to sell or otherwise develop the property in its current configuration (ROR, Exh. 1, pp. 12-17). Mr. Nazario stated: "The building has always been as it is currently, as it has been, and it's just not viable. It never was. It's an oddball piece of property in that neighborhood and it just doesn't work viably for commercial, it just doesn't (ROR, Exh. 1, p. 13). In addition, Mr. Nazario testified at length regarding the number of parking spaces needed to adequately support the property. In his opinion, there was more than adequate off-street parking, and room for at least 10 parking spaces, including the rear and the sides (ROR, Exh. 1, pp. 15-17).
In Stancuna v. ZBA, 66 Conn.App. 565 (2001), the ZBA granted the defendant landowner's application for a variance from a twenty-foot side yard setback requirement so that he could construct a new commercial building on the property. The property was in a commercial zone, but was occupied by a single-family residence, which was a pre-existing non-conforming use. Id. at 572. The plaintiff, an abutting landowner, appealed to the trial court, which dismissed the appeal. The Appellate Court affirmed, concluding that the variance was properly granted as it eliminated a non-conforming use, was consistent with the town's comprehensive development plan and would not undermine the health, safety and welfare of the surrounding neighborhood." Id.
In a recent decision by the Connecticut Supreme Court, Vine v. Zoning Board of Appeals for the Town of North Branford, 281 Conn. 553 (2007), the Court ruled that a zoning board's granting of a variance was proper because it reduced the pre-existing nonconforming use of the property to a less offensive use. M E Construction owned property consisting of three contiguous lots at 66, 72 and 76 Notch Hill Road in North Branford.
In 2001, M E prepared a site plan proposal in which it sought to convert the three lots into two lots: lot A and lot B. In 1981 Connecticut Light and Power Utility acquired a utility easement by condemnation for purposes of installing electrical transmission lines. The town's zoning regulations required a minimum 150-foot square of land on each building lot located in a an R-40 zone, and provide that land subject to an easement for above ground utility transmission lines cannot be included in determining compliance with minimum lot area and shape requirements. Vine v. Zoning Board of Appeals, supra at 556-57. M E applied for a variance regarding the 150-foot square requirement on lot A. At a hearing on the application, the plaintiff, the owner of property abutting M E's property, objected to the construction of a house on the lot located at 66 Notch Hill Road. One of the board members, in voting to grant the variance, stating "the variance is so nominal and the impact so minimal on the neighbors and the lot in general, that it is . . . form over substance to insist upon this [150-foot] square [requirement] of the regulations . . . [I]n terms of intensity of development, it appears that [before the taking of the utility easement] they envisioned three houses jammed in there." The plaintiff appealed the decision and the trial court dismissed the appeal. The trial court held that it took note of the plaintiff's argument that M E could still build one house on proposed lot B and that a hardship does not arise simply because the owner cannot use the land to its maximum financial potential. It concluded, however, that the easement "rendered the property nonconforming because the configuration of the easement across the property prevents a 150-foot square from being placed anywhere on proposed lot A and therefore had produced an unusual hardship for M E in the use of its property, thus justifying the granting of the variance. Id. at 557-58.
On appeal, the Appellate Court, in a divided opinion, reversed the trial court. The majority of the Appellate Court panel concluded that, because only extreme financial hardship can justify the granting of a variance, and M E had not presented any evidence that enforcement of the regulations would destroy the economic utility of the property, the trial court improperly dismissed the plaintiff's appeal. The Supreme Court reversed the Appellate Court. The Court held that in cases where an extreme hardship has not been established, the reduction of a nonconforming use to a less offensive prohibited use may constitute an independent ground for granting a variance. See Adolphson v. Zoning Board of Appeals, 205 Conn. 708-10 (1988). Id. at 558-59.
In reversing the Appellate Court, the Supreme Court upheld the board's decision to grant the variance on the grounds that it reduced the preexisting nonconforming use of the property to a less offensive use. The Court held ". . . granting the variance would increase the size and buildable area of the lots, resulting in a development that more nearly conforms to the technical requirements of the town's zoning regulations. Moreover, if M E currently can build three houses on the property, granting the variance to allow conversion of the property into two buildable lots would reduce the density of the development, which presumably would be less offensive to the surrounding residents . . . Even if M E currently is limited to building two houses on the property, granting the variance could not result in a more offensive use of the property." Id. at 570.
In support of its decision, the Board in the present case-at-bar found that the granting of the use variance would not impair the character of the neighborhood, and would be far less intense then the approved uses currently in existence (ROR, Ex. 19, p. 2). The neighborhood is comprised of several, single-family dwellings. Over the years, the property at 175 Lighthouse Road has been used as a storage shed, a restaurant, a restaurant with a pool table and a video game, to its current use as a general marine store with repair and limited storage of boats, including limited outdoor boat storage (ROR, Exh. 8, p. 1). The proposal is for a variance to construct five dwelling units. These dwelling units would be far more in keeping with the character of the neighborhood than the previous uses of the property, and far less intense. As was pointed out by the defendants in their brief, as of right uses in an RS-2 zone include churches; rectories; convents; art galleries; public libraries; museums; public/private schools; public/private colleges and trade schools, including dormitories; hospitals and outpatient clinics; family daycare homes; athletic clubs and community centers (ROR, Exh. 20, § 12(b)(1)). Clearly, five dwelling units in this residential neighborhood presents less of an intense use than the above-listed as of right uses. Thus, the trial court concludes that the board's granting of the use variance and lot area variance has the effect of reducing a preexisting nonconforming use to a less offensive use.
VII. CONCLUSION
Based upon all the evidence, the Court finds that the Defendant Board's decision was not arbitrary, clearly erroneous or an abuse of discretion. Accordingly, the appeal is dismissed.