Opinion
KNLCV166028131
03-06-2018
Anne FEDUS v. OLD LYME ZONING BOARD OF APPEALS et al.
UNPUBLISHED OPINION
OPINION
Cosgrove, J.
This appeal arises out of the conflict between the application of zoning regulations to a coastal community that was developed before zoning was enacted and the recognition that these communities are subject to significant flooding hazards that threaten life and property. These coastal communities contain residences that have turned from seasonal to year round residences. This appeal, which involves raising the building height of the subject residence so that its first floor is at the 500-year flood level, requires the granting of a variance to a nonconforming structure on a nonconforming lot. The applicants seek to raise the first floor of their residence to the 500-year flood level so they can qualify for a federal grant to subsidize the expense of the elevation.
Anne Fedus (hereinafter the plaintiff) appeals from a decision of the defendant Old Lyme Zoning Board of Appeals (hereinafter the ZBA) of granting a variance to her neighbors, Richard Frascarelli Sr., Richard Frascarelli, Jr. and Michelle Frascarelli (hereinafter the homeowners). The homeowners’ lot and the structure thereon, are nonconforming in multiple ways, as are many other parcels in Point of Woods section of Old Lyme. The homeowners’ variance application as granted authorized them to elevate their residence to a height of 33.09 feet and to reconstruct the deck and stairs to reach the newly elevated residence. The plaintiff, as an abutting property owner, claims to be aggrieved by the decision of the ZBA. She asserts that the decision of the ZBA was arbitrary, capricious and unreasonable in that the homeowners’ claim of hardship entitling them to a variance from the zoning regulations and the ZBA’s granting of the variances on those matters are not legally sufficient. Further the plaintiff claims that the granting of the variance adversely effects the comprehensive plan and that the elimination of nonconformities does not provide an independent ground for the variances granted. Finally the plaintiff asserts that the post-hearing notice was defective.
David Aldieri, a neighbor of the homeowners testified at the ZBA hearing that there were over 400 homes in the Point of Woods development which are zoned R-10, like the applicants’ and, among them, at least 45 are situated in the VE14 zone and an additional 37 in the AE11 zone. ROR 6.H.
The defendant and the ZBA assert that the grant of the variance was sound and supported by the record and that the procedures followed in giving notice of the decision were compliant with the statutory requirements.
Proceedings before the Zoning Board of Appeals.
On June 2, 2016 the homeowners filed an application to vary section 8.8.6 of the Old Lyme Zoning Regulations. (ROR 1.) This section of the Zoning Regulations establishes that the maximum height of a building in this zone to be 24 feet. The application sought permission to raise the height of the residence from 22.7 feet to 34.66 feet. Hardships warranting the variance were articulated related to the current elevation of the structure as being subject to damage during floods. There was also mention that " DEEP requirements tied to the grant funds require the house to be elevated more than usual when located in the floodplain." (ROR 1, p. 11.) Public hearings on the application were held on July 19, 2016 and September 20, 2016.
The application identifies the plaintiff as residing within 100 feet of the subject application. The application identifies ten instances where the lot or the preexisting structures do not comply with existing Zoning Regulations. (Ex. 1, p. 37.) The subject property was damaged but not destroyed in a 2012 coastal storm. The homeowners have been accepted into a grant program to elevate their house to increase its safety in flood situations. The proposal would elevate the living areas of their home more than 10 feet. This would require a variance of the building height restrictions contained in the local regulations. The homeowners identify as hardships the facts that the elevation of the living areas would necessarily require new stairs and a deck for access; that merely elevating to the 100-year flood level would still require variances and not comply with grant programs and finally if no changes are made for the property, it would remain subject to damage from flooding because of its existing elevation. The project is located within the coastal hazard zone. Ex. 1, p. 30. The Office of Long Island Sound Programs generally supported the application as it was consistent with their goals of minimizing threats to life or property from flooding. Ex. 3.
The plaintiff claims that the application also required a variance from that portion of the zoning regulations which regulates the number of stories in a R-10 zone. See Sec. 3.2(185) of the Zoning Regulations which defines story as " That part of a Building other than a Basement or Cellar included between the surface of any floor and the floor above it ..." This argument was not persuasive to the ZBA, in part, perhaps, because the lattice structure which constitutes the sides of the area under the elevated house are breakaway panels meant to allow flood water to pass under the structure without causing substantial damage.
Some neighbors supported the application and some opposed it. The first meeting on this application was held at a Regular Meeting of the Old Lyme ZBA on July 19, 2016. The applicant made its presentation and comments were presented. The matter was continued for further hearing.
At the September 20, 2016 hearing the applicants came forward with several modifications of their application in response to the concerns expressed by the public and the ZBA at the July hearing. These modifications included lowering the requested height variance from 10.66 feet to 9.09 feet, removal of an existing garage and shed on the lot, relocation of a stairway, and reduction of the size and configuration of the deck. There was additional discussion of whether the variance requested was the minimal request needed to comply with flood regulations as opposed to grant requirements, alternatives to the location of the mechanicals for the home, the possibility of putting a flat room as opposed to a peaked roof on the structure and whether the zoning regulations should be amended. The ZBA actively questioned the applicants’ representatives.
The Zoning Board of Appeals granted the application to elevate the applicant’s residence to the 500-year flood level and reasoned that the applicants, by making changes to their plan and eliminating an accessory building, had reduced the number of nonconformities on the parcel while increasing safety. The variance as granted creates a nonconformity as to the height of the structure, eliminates four existing nonconformities, and decreases the degree of nonconformity with another regulation.
At the time of the application, the height of the home was 2.07 feet below the Maximum Building Height set by the zoning regulations.
The elimination of the garage/shed structure eliminated two setback nonconformities. Post variance, the maximums for floor area and lot coverage were brought from a condition of nonconformity to a condition of conformity.
The maximum ground coverage was decreased from an existing 41.7% to 35%.
The application was approved on September 20, 2016. The decision of the ZBA was expressed as follows:
Grant with a condition the requested variances to elevate the existing structure to meet FEMA Flood Regulations and Town Flood Regulations [height 33.09,’ a variance of 9.09’ and to reconstruct deck and stairs to access the elevated structure, as per the plans submitted: Sheet CSP-1 ... The condition is that a maximum latitude of 6″ from the plans referenced for the placement and elevation of the building is allowed. (ROR 16.)
Reasons stated for the granting of the variance were:
1. Lot coverage was reduced to make it conforming. 2. Visible exterior stairways were reduced from plans previously submitted. 3. Height was reduced from plans previously submitted. 4. Garage/Shed will be eliminated. 5. Floor coverage is reduced to a conforming 22.2%. (ROR 13.)
Notice of the decision was originally published in The New London Day on September 26, 2016. The notice, however, incorrectly stated the decision was made at the Regular Meeting held on July 19, 2016, rather than on September 20, 2016. A corrected Legal Notice of Decision was published in The New London Day on October 3, 2016. The notice stated: " Case 16-13C- Richard [Jr. And Sr.] & Michele Frascarelli, 32 Massachusetts Road, request variances to elevate the existing structure to meet FEMA Flood Regulations and Town Flood Regulations [height 34.66′ ] and to reconstruct deck and stairs to access the elevated structure- Granted w/ conditions CAM approved . The Legal Notice further stated that the decisions " have been filed in the office of the Town Clerk, Old Lyme Town Hall."
DISCUSSION
Aggrievement
The court heard testimony from the plaintiff at the hearing on this appeal. She owns property known as 35 Massachusetts Road, Old Lyme, Ct. She resides directly across Massachusetts Ave. from and within 100 feet of the applicants’ residence. The applicants list her on her application as residing within 100 feet of the applicants’ residence. The court finds that the plaintiff is aggrieved for the purposes of pursuing this appeal from the action of the defendant ZBA.
Notice
The court first turns to the plaintiff’s argument that the post-hearing notice provided by the ZBA was defective. The plaintiff argues that the post-hearing notice was defective for at least two reasons: (1) the Old Lyme Zoning Board (board) granted a variance with the incorrect approved height; and (2) the board varied the regulations to allow a three-story structure where only one and one-half stories were permitted; and (3) the notice failed to state that the ZBA’s action would increase the nonconformity of a preexisting nonconforming structure. Therefore, the plaintiff argues that the notice was defective because none of the actions or reasons, stated previously, was described or disclosed in the post-hearing notice.
The ZBA and the homeowners counter that the standard to review post-hearing notices is one of adequacy, rather than whether it fully, or even accurately, describes the actions of the board. More specifically, the defendants maintain that the purpose of the requirement that a notice of a decision of the zoning board of appeals be published is to commence the fifteen-day appeal period, and none of the defendants dispute the timeliness of the plaintiff’s appeal.
The notice in question leaves much to be desired. It does not specify the regulation varied nor does it accurately reflect the actual decision of the ZBA to vary the regulations to a degree less than the application requested. It does, however, give members of the public that the application was to elevate the structure and was granted with conditions. It also gave members of the public notice that further details on the decision were on file at the Town Hall.
These notices were published within the statutorily prescribed time frame of C.G.S. 8-7 and thus do not create a jurisdictional defect per se. " It is not essential that a notice of decision expressly state every consideration that might be relevant to any party who might want to appeal the board’s decision. It is only necessary to provide notice adequate to ensure a reasonable opportunity within the applicable time constraints to obtain the information required to form an opinion whether or not to appeal." Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 282, 487 A.2d 559 (1985).
The court finds that the notice published of this decision was adequate to ensure a reasonable opportunity for a person to obtain information that would be required to form an opinion of whether or not to appeal. The notice alerted that public that a variance was approved, with conditions, to elevate the structure located at 32 Massachusetts Road and to reconstruct the deck and stairs to access the elevated structure. The height measurement contained in the notice was greater than that actually approved by the ZBA. The notice directed the public that further information on the action of the ZBA could be obtained at the Town Hall.
Scope of Review
" [T]here is a strong presumption of regularity in the proceedings of a public body such as a municipal planning and zoning commission ..." (Internal quotation marks omitted.) Clifford v. Planning & Zoning Commission, 280 Conn. 434, 441, 908 A.2d 1049 (2006). " [A zoning] board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994). " The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Internal quotation marks omitted.) E & F Associates, LLC v. Zoning Board of Appeals, 320 Conn. 9, 15, 127 A.3d 986 (2015). " In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] ... The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached ... If a trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot substitute its judgment for that of the board ... If there is conflicting evidence in support of the zoning commission’s stated rationale, the reviewing court ... cannot substitute its judgment as to the weight of the evidence for that of the commission ... The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294, 947 A.2d 944 (2008).
Grounds for Granting a Variance
" The zoning board of appeals shall have the following powers and duties: ... (3) 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 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." C.G.S. 8-6(a)(3). " A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town." Caruso v. Zoning Board of Appeals, 320 Conn. 315, 321, 130 A.3d 241 (2016). " [V]ariances are granted only under [unusual or exceptional] circumstances, and are only as extensive as necessary to prevent unusual hardship on the property owner." Tine v. Zoning Board of Appeals, 308 Conn. 300, 310, 63 A.3d 910 (2013).
" [T]he authority of a zoning board of appeals to grant a variance under ... § 8-6(3) requires the fulfillment of two conditions: (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." (Internal quotation marks omitted.) Caruso v. Zoning Board of Appeals, 150 Conn.App. 831, 836 n.4, 93 A.3d 617 (2014), aff’d, 320 Conn. 315, 130 A.3d 241 (2016). Normally self-created hardship or financial hardship are not sufficient to support the granting of a variance by a zoning board of appeals.
Decreasing the Nonconformities May Constitute an Independent Basis for Granting a Variance
The jurisprudence governing the granting or denial of a variance took an evolutionary step in 1988 with regard to nonconforming properties. Preexisting nonconforming uses/structures are protected by statute; their existence is preserved but they may not increase or expand in their nonconformity. " Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations ..." C.G.S. 8-2(a). A divided Supreme Court decided the case of Adolphson v. Zoning Board of Appeals, 205 Conn. 703 (1988). In Adolphson, economic obsolesence caused the closure of an aluminum casting foundry, a pre-existing nonconforming use under the Bridgeport zoning regulations. The new property owner sought variances to allow use of the property as a car repair facility, a use that was not permitted in the zone (italics added ). The variances were granted and a neighbor, Adolphson appealed. The Supreme Court affirmed the trial court’s findings that the proposed nonconforming use was less offensive than the existing nonconforming use and that the allowance of the new nonconforming use would not adversely effect property values and was in harmony with permitted uses in the zone. Adolphson at 714. The court found the new owner had not created the hardship when they purchased the property and that the failure to grant the variance would render the property useless. It is unclear from the decision whether this was the minimal variance necessary to alleviate the unusual or exceptional hardship. In 2007 the Supreme Court confirmed the validity of the Adophson analysis. In Vine v. Zoning Board of Appeals, 281 Conn. 553 (2007). " In cases in which 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." Vine at 562.
In Hescock v. Zoning Board of Appeals, 112 Conn.App. 239 (2013), the court was confronted with a situation with some similarity to the present case. The applicant’s property was subject to Zoning Regulations, Coastal Zone and Flood Zone Regulations. The coastal zone section of the applicable regulations implement the Coastal Management Act C.G.S. 22a-90 et seq. FEMA regulations which apply to structures in flood zones also applied. The applicant sought to tear down an old home and construct a new home on his lot. Variances were required. The existing house was 44 feet from the mean high tide mark, the proposed house would be 47 feet from the mean high tide mark. The regulations required that the new structure to be 100 feet from the mean high tide mark. The granted variances were appealed by a neighbor. The court, affirming the granting of the variances, quoted a zoning board member: " FEMA improvements are far more important than anything, and I also believe that given time the entire neighborhood is going to conforming to [regulations] so they are just on the cutting edge of [what’s going to] happen in the years to come." Hescock at 256-57.
The Present Appeal
The current appeal falls within the vortex created by the application of zoning regulations to structures and lots that predate the adoption of zoning, the power to vary the regulations as applied to such lots and structures and the more recent regulation of uses and development in areas exposed to the risk of flooding or coastal site concerns. New regulatory programs have been created to provide for safe development of areas that are known to face a particular risk- flooding. This risk concerns not only property but also persons. The requirements to build in a manner to minimize these risks frequently run into conflict with older unmodified zoning regulations. In order to encourage the lessening of the risks of property damage or loss of life the Federal Government and the State Government have apparently created grant programs to incentivize compliance with the new safety regulations.
This court has reviewed the record of the proceedings before the ZBA and there is no substantial evidence in the record to support the granting of this variance on traditional hardship grounds. " One who seeks a variance must show that, because of some unusual characteristic of his property, a literal enforcement of the zoning regulations would result in unusual hardship to him ... The hardship complained of must arise directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved ... Where the condition which results in the hardship is due to one’s own voluntary act, the zoning board is without power to grant a variance ... Where ... the hardship arises as the result of a voluntary act by one other than the one whom the variance will benefit, the board may, in the sound exercise of its liberal discretion, grant the variance ... Disadvantage in property value or income or both, to a single owner of property, resulting from the application of zoning restrictions, does not, ordinarily, warrant relaxation in his favor on the ground of ... unnecessary hardship ... 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 ..." (Citations omitted; internal quotation marks omitted.) Vine v. Zoning Board of Appeals, supra, 281 Conn. 561-62.
The variance requested by the homeowners is only necessary because the homeowners seek to modify their residence. It is not the minimum required to comply with the Old Lyme zoning regulations, town flood regulations or FEMA. These regulations would require the elevation of the first floor of the structure to the 100-year flood level as opposed to the 500-year flood level. The homeowners argue that this is actually a de minimis increase of approximately six inches in reality because they obtained a waiver of 1-foot of the flood zone requirement from DEP and the mechanical systems for the home are presently located below the first floor and thus, they too, would have to be raised above the 100-year flood level. There is no regulatory requirement that the mechanicals be above the 500-year flood level. The hardship of exposure to flooding is not unique to this lot, but applies to all lots located within the FEMA flood zones. The financial hardship here is not created by the zoning regulations but the desire to obtain grant funds to pay for the costly elevation of the structure.
14 feet.
18.5 feet.
Reduction of Nonconformities as an Independent Basis for the Variance
The court is next presented with the claim of the reduction of nonconformities on this lot is an independent support for the grant of this variance and that the variance will be consistent with the comprehensive plan of development for this R-10 zone.
There were, in the ZBA’s view substantial changes in the application between the first hearing and the second hearing. As initially proposed there were no elimination of nonconformities and there was a creation of one new nonconformity. As previously described the plan as approved brings the lot and structure into conformity in four ways and brings it closer to conformity with another required condition. It did create one new nonconformity- the maximum height of the structure.
The discussion of the ZBA prior to reaching its unanimous decision to grant the requested variance reveals the thinking and reasoning of the ZBA. The ZBA considered the modification of the roof structure to reduce the necessary variance by two feet but did not feel that the change in roof line made any significant difference. The ZBA discussed favorably the analysis of the plaintiff that the difference between the 100 and 500-year flood level was only 4 or 6 inches. " That for me, with all the other amendments ... pushes it over the top." " They’re getting rid of the shed too." " They’re, they’re, the fact that they are reducing nonconformities, that again, makes it, you don’t really need that much of a hardship if you can show that and I think that the extent and number of considerations was, wow." " But I think we screen it as best we can, we add as many details as we can to minimize the impact of raising the thing. It is going to be terrible for a lot of people. There’s a lot of people that are going to be living next to a structure that, it just has to get lifted up, that’s the new world we live in, so ... Because it somebody’s living in a house and we didn’t let them lift it and it’s suddenly inundated with floods we did the wrong thing."
Kip Kotzan p. 4 of Open Voting Session of ZBA. ROR- Exhibit 20.
Unidentified Board Member, p. 4 of Open Voting Session of ZBA. ROR- Exhibit 20.
Unidentified Board Member, p. 5 of Open Voting Session of ZBA. ROR- Exhibit 20.
Kip Kotzan p. 6 of Open Voting Session of ZBA. ROR- Exhibit 20.
A review of the 13 pages of the Open Voting Session (ROR Exhibit 20) and the transcripts of the public hearing yields a substantial evidence that the ZBA grappled with all of the conflicts of policy- nonconforming uses, FEMA and Coastal Zone Management regulations, variances and the impact on the comprehensive expressed by the zoning regulations. The ZBA determined that the modifications of the original plan reduced the nonconformites on the lot and ameliorated the impact that the project would have on the surrounding neighborhood and zone.
This court may not substitute its judgment on the merits of this application for a variance when the record establishes that the ZBA considered this application from many perspectives and concluded that the reduction of the number of nonconformities on this lot provided an independent basis to support the granting of this variance.
The plaintiff has not met her burden of proving that the decision of the ZBA was arbitrary, capricious or in abuse of it discretion. The appeal is dismissed.