Opinion
No. 06-4008531
December 12, 2008
MEMORANDUM OF DECISION
I. Statement of the Appeal
This is an appeal by the plaintiff, Donna Belle Jacobson, from the decision of the defendant Zoning Board of Appeals in denying her application for a variance from the strict application of Section 7.6 of the zoning regulations of the Town of Montville.
II. Factual Background
The plaintiff is the owner of real property at 437 Kitemaug Road in the Uncasville section of the Town of Montville. The property is 9.72 acres in area and is in the R-80 zone. On January 11, 2006, the plaintiff filed an application with the defendant Board for a variance from "ZR. 76. (R-80-minimum lot frontage)." It is not disputed that the minimum lot frontage in the zone is 180 feet. By the application, the plaintiff sought to allow a reduction in the lot frontage for a proposed three-lot subdivision at 437 Kitemaug Road. It was requested that the frontage for the proposed Lot 3 be reduced from the required 180 feet to 40.29 feet, and for the proposed Lot 2, such frontage would be reduced to 25.75 feet.
Under the zoning regulations returned to court as a part of the record, Section 7.6 contains the minimum setback requirements for the R-80 zone. It is Section 7.5 which establishes the minimum lot frontage of 180 feet.
A public hearing on the plaintiff's application was scheduled for April 5, 2006, and public notice was published in the New London Day on March 24 and March 31, 2006. The public notice did not indicate that a variance from the applicable zoning regulations would be considered at the hearing, but it adequately described the subject of the application and what would be considered at the public hearing.
The published notice indicated that a Coastal Site plan review had also been requested and would be heard by the Board on the same date. No issues have been raised in this case in connection with this review.
In accordance with the notice, the public hearing on the plaintiff's application was held on April 5, 2006 at the Montville Town Hall. At the hearing, the plaintiff was represented by Liz Rasmussen of Dieter Gardner, Inc., land surveyors, who presented the plaintiff's case for the granting of the variance. Members of the public were also heard.
When no further input was forthcoming, it was voted to close the public hearing. After the consideration of other unrelated business, the Board discussed the plaintiff's application. After such discussion, it was voted by the Board to deny the plaintiff's application for a variance. The reasons for denial of the variance were stated.
This appeal followed.
III. Jurisdiction
General Statutes Section 8-8(b) governs appeals from decisions of zoning boards of appeals to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82 (1989).
A. Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399 (2007).
"Two broad yet distinct categories of aggrievement exist, classical and statutory. Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the [decision], as opposed to a general interest that all members of the community share . . . Second, the party must also show that the [agency's decision] has specially and injuriously affected that specific personal or legal interest." (Internal quotation marks omitted.) Pond View, LLC v. Planning and Zoning Commission, 288 Conn. 143, 156 (2008). "Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest . . ." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 665 (2006). Section 8-8(a)(1) provides that an "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.
In her complaint, the plaintiff alleges that she is aggrieved by the decision of the Zoning Board of Appeals in that "the plaintiff is the owner of the property subject to the denied application." This allegation has been proven and it is found that the plaintiff is, in fact, the owner of the property subject to the denied application and has standing to prosecute this appeal. Rogers v. Zoning Board of Appeals, 154 Conn. 484, 488 (1967).
B. Timeliness and Service of Process
Pursuant to General Statutes Section 8-8(b), 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 . . ." Publication of the notice of the decision of the Board, which is the subject of this appeal, was made on April 10, 2006. This action was commenced by service of process on April 13, 2006. Accordingly, it is found that service of process was commenced within the period allowed by statute.
General Statutes Section 8-8(f) provides in relevant part: "Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows, . . . (2) [f]or 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 . . ." General Statutes Section 52-57(b) provides in relevant part: "Process in civil actions against the following described classes of defendants shall be served as follows . . . (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provisions 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, commission, department or agency . . ."
In this case, the citation directed the marshal to summon the Zoning Board of Appeals of the Town of Montville to appear before the Superior Court to answer the plaintiff's complaint "by leaving with the Zoning Board of Appeals of the Town of Montville c/o John R. MacNeil, its chairman, of Oakdale, Connecticut, with or at the usual place of abode of John R. MacNeil, chairman of the Zoning Board of Appeals of the Town of Montville, 424 Cherry Lane, Oakdale, Connecticut, and by leaving with the town clerk of the Town of Montville, Lisa Terry, Montville Town Hall . . ."
The marshal's return indicates that he made abode service by leaving with John R. MacNeil, chairman of the Zoning Board of Appeals of the Town of Montville, a copy of the original writ, summons, and complaint. The officer's return further indicates that on the same date, April 13, 2006, he "left a true and attested copy of this, the original writ, summons and complaint" with Lisa Terry, town clerk of the Town of Montville. In addition to the citation above noted, a summons (JD-CV-1) was issued directing the officer to make due and legal service. This form lists "Jacobson, Donna Belle as the plaintiff." The defendants are listed as "MacNeil, John R., chairman of the Zoning Board of Appeals of the Town of Montville" and "Terry, Lisa, town clerk of the Town of Montville . . ." The Zoning Board of Appeals is not listed as a defendant on this form. Because of this, the Superior Court clerk's office has identified the defendant in this action as John R. MacNeil and not the Zoning Board of Appeals.
The defendant Board has interposed a special defense which alleges that the court does not have subject matter jurisdiction over either or both counts of this action because it was not commenced in the manner required by statute. Specifically, the defendant Board contends that the plaintiff did not serve two copies of the process upon the town clerk as General Statutes Section 52-57(b)(5) requires, but instead, erroneously, following the instructions for service of legal process for appeals taken prior to October 1, 2004, as articulated in General Statutes Section 8-8(f)(1). General Statutes Section 8-8(f)(1) provides in relevant part: "For any appeal taken before October 1, 2004, process shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality . . ."
The complaint in this action sets forth the plaintiff's claims in two counts. By agreement, the substantive issues of the second count will not be considered at this time. The question as to whether or not plaintiff could recover a monetary award in this administrative appeal is not now before the court. See Cummings v. Tripp, 204 Conn. 67, 80 (1987).
"Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause . . ." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93 (1996). "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Internal quotation marks omitted.) Peters v. United Electrical, Radio and Machine Workers of America, Connecticut Independent Police Union, Local 14, CT Page 19548 285 Conn. 278, 286 (2008).
This is not a case in which there is a complete failure to serve a necessary party or any person, town official or entity required to be served. Gadbois v. Planning Commission, 257 Conn. 604 (2001). Here, the only defect was that only one copy of the process was served on the town clerk, when two were required. "Numerous Superior Court decisions addressing this issue have found that serving one copy instead of two does not deprive the court of subject matter jurisdiction." Flannigan v. Planning and Zoning Commission, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 06 4006317 (December 8, 2006, Robinson, J.). See Pleasanton v. Inland Wetlands Watercourses Commission, Superior Court, judicial district of Fairfield, Docket No. CV 04 4009267 (February 22, 2006, Radcliffe, J.); Coleman v. Inland Wetlands Watercourses Agency, Superior Court, judicial district of Middlesex, Docket No. CV 04 4000452 (January 30, 2006, Vitale, J.); Hay v. Zoning, Superior Court, judicial district of Litchfield, Docket No. CV 05 4001537 (January 11, 2006, Bozzuto, J.); and Mucci Construction, LLC v. Conservation Commission, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 4002344 (May 5, 2005, Shluger, J.) (39 Conn. L. Rptr 296).
"[T]o dismiss [an] appeal because the [plaintiff] has served one copy on the town clerk would serve an injustice when the purpose of the statute is simply to ensure that the clerk has sufficient copies to forward one to the commission chair." Flannigan v. Planning and Zoning Commission, supra, Superior Court, Docket No. CV 06 4006317. See also Sinoway Family Partnership v. Zoning Board of Appeals, 50 Conn.Sup. 513, 520-21 (2007) (Only purpose of the two-copy requirement is so the clerk can forward one copy to the zoning board; the clerk is not even a necessary party). "Failure to serve a designated official under [Section] 8-8(f)(2) read together with [Section] 52-57(b)(5) is prejudice per se, but any defect short of that is only formal and circumstantial and should not lead to dismissal unless there is prejudice." Sinoway Family Partnership v. Zoning Board of Appeals, supra, 50 Conn.Sup. 522. Here no prejudice has been shown. Since service was otherwise timely and in conformance with General Statutes Sections 8-8(f)(2) and 52-57(b)(5), the court's jurisdiction over the subject matter of this appeal is not implicated by the failure of the plaintiff to serve two copies of process upon the town clerk. Accordingly, the court will not dismiss the appeal for want of subject matter jurisdiction.
IV. Scope of Review CT Page 19549
"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." (Internal quotation marks omitted.) R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470 (2001). "In appeals from administrative zoning decisions, the board's conclusions will be invalidated only if they are not supported by substantial evidence in the record." (Internal quotation marks omitted.) Heithaus v. Planning Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (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 (2002).
"If a trial court finds that there is substantial evidence to support the board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the 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.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 560 (2007).
The plaintiff has the burden of proving that defendant board acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988).
The plaintiff has appealed the action of the board in denying her application for a variance. A variance constitutes permission for a party to use their property in a manner otherwise prohibited by the zoning regulations. For this reason, the granting of a variance is generally reserved for unusual or exceptional circumstances. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995).
The Board derives its authority to vary the application of the zoning regulations from the provisions of General Statutes Sections 8-6(a)(3) and 22.2 of the Montville Zoning Regulations.
Variances are, in a sense, the "antitheses of zoning." Zoning is regulation by the municipality of the use of land within the community, and the buildings and structures which may be located thereon, in accordance with a general plan. The General Statutes authorize such regulation of land and the use of buildings. Such regulations, however, must be applied uniformly throughout each district. A variance disrupts the conformity and constitutes permission to act in a manner that is otherwise prohibited by the zoning regulations. Simko v. Ervin, 234 Conn. 498, 505-06 (1995).
The two basic conditions which must be met for the granting of a variance are (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. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368 (1988).
An applicant for a variance must show that, because of some peculiar characteristic of its property, the strict application of the zoning regulation produces an unusual hardship as opposed to the general import which the regulations has on other properties in the zone. Dolan v. Zoning Board of Appeals, 156 Conn. 426, 430 (1968).
When a disadvantageous situation arises from a voluntary act on the part of the applicant, it cannot be considered a hardship and the board does not have authority to grant a variance. Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39 (1982). The board is under no duty to extricate an applicant from a self-created hardship. Pollard v. Zoning Board of Appeals, supra, 44. Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship. Krejpico v. Zoning Board of Appeals, 152 Conn. 657, 662 (1965).
V. Discussion
In denying plaintiff's application for a variance, the Board stated the reasons for its doing so as follows:
"The variance would not be in harmony with the general intent and purpose of the Zoning Regulations. The literal enforcement of the provisions of the Regulations would not result in an unusual hardship or exceptional difficulty and would deprive the applicant of the reasonable use of the land. The unique conditions and circumstances associated with the request are the result of actions taken on the property subsequent to the adoption of the Zoning Regulations."
The underlined phrase in the statement of the Board is at variance with the decision of the Board, as well as the other reasons cited for the decision. It must be concluded that the phase is a typographical error and that the Board meant to state that a literal enactment of the zoning regulations "would (not) deprive the applicant of the reasonable use of the land." The plaintiff does not contest this interpretation. "It must be borne in mind, however, that we are dealing with a group of laymen who may not always express themselves with the nicety of a Philadelphia lawyer. Courts must be scrupulous not to hamper the legitimate activities of civic administrative boards by indulging in a microscopic search for technical infirmities in their actions." Couch v. Zoning Commission, 141 Conn. 349, 358 (1954).
In her brief, the plaintiff sets forth three grounds for this appeal. Basically, plaintiff claims that there is no substantial evidence to support the reasons stated by the Board. Specifically, the plaintiff claims that there is no substantial evidence to support the Board's conclusion: (A) that the variance would not be in harmony with the general intent and purpose of the zoning regulations; (B) that a literal enforcement of the zoning regulations would not result in an unusual hardship or exceptional difficulty and would deprive the plaintiff of the reasonable use of her property; (C) the unique conditions and circumstances associated with the request are the result of actions taken on the property subsequent to the adoption of the zoning regulations.
"Issues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided." Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 109 (1996).
Each of the issues raised by the plaintiff must be considered by the court.
A.
The first question which the court must consider is plaintiff's claim that there is no substantial evidence in the record to support the determination by the Board that the variance sought by plaintiff would not be in harmony with the general intent and purpose of the zoning regulations.
Connecticut General Statutes Section 8-6(a)(3) empowers zoning boards of appeal to vary the application of the zoning laws "in harmony with their general purpose and intent." Section 22.2 of the Montville Zoning Regulations authorizes the Zoning Board of Appeals to vary the regulations in accordance with the statute. Case law requires that a variance must not substantially affect the comprehensive zoning plan. Grillo v. Zoning Board of Appeals, supra, 206 Conn. 308. "The comprehensive plan is to be found in the zoning regulations themselves and the zoning map." Dutco v. Planning Zoning Board of Milford, 110 Conn.App. 228, 241 (2008).
Attachment 2 filed as a part of the appeal to the Zoning Board of Appeals indicates that the variance was requested to facilitate a proposed three-lot subdivision. The revised plan of the subdivision shows the layout of the three lots. Lot 1, as shown on the plan, fronts on Kitemaug Road and has substantial frontage with an existing house. This lot has more than the required 180-foot frontage. Lots 2 and 3 are shown on the plan as interior lots with no substantial frontage on the highway. These lots are accessible only by narrow lanes as shown on the map. The application states that the lane leading to Lot 3 has 40.29 feet frontage on the highway and the lane to Lot 2 has a frontage of 25.75 feet. The plan also shows an additional laneway to Lot 3. Except for these laneways, Lots 2 and 3 are separated from the street by what appears to be four house lots now or formerly of Enos, Bennett, Bronson and Ouellette. The minimum lot area in the zone is 80,000 square feet. All three lots are in excess of this requirement. In support of her claim that the proposed variance would be in harmony with the general intent and purpose of the zoning regulations and that there is no substantial evidence in the record to support the Board's finding to the contrary, the plaintiff points out the applicable provisions of the zoning regulations. Section 7.1 provides that the intent of the R-80 district is for "the density of development in these areas be low enough to permit dependence on individual wells and septic systems far into the future." The record is clear that the lots in question would all be in compliance with the lot area requirements for the zone but not the frontage requirement.
The subdivision which the plaintiff contemplates contains lots with almost no frontage and no access to the public highway except over the laneways indicated on the plan. To allow this, plaintiff is seeking a variance with the frontage of the laneways being considered the lot frontage. This requires a substantial deviation from the required 180 feet to 40.29 and 25.75 feet.
Lot frontage is defined by the regulations as "the distance measured along the full length of the front lot line." In the proposed subdivision, there would be no actual front line for Lots 2 and 3 except where the access lane meets the highway.
The record indicates that the regulations formerly provided for interior lots, but this provision was deleted on August 10, 2005, and such lots were not allowed in January of 2006. The zoning enforcement officer indicated that the interior lot provisions were deleted because of problems caused by the regulations. He counseled against granting the variance.
It cannot be found that the plaintiff has proven that substantial evidence does not exist in the record to support the findings of the Board that the variance was not in harmony with the general intent and purpose of the zoning regulations. Although the lots would be in compliance with the area requirements of the regulations. The variance requested would entail a substantial deviation from the frontage requirements of the regulations. It is doubtful that the laneway frontages for which the variances were requested could be considered "lot frontage" under the regulations. The type of subdivision for which the variance would facilitate was not allowed under the regulations and, therefore, could not be in harmony with the general intent and purpose of the regulations. There was substantial evidence in the record to support the findings of the Board on this issue and the Board's decision in this regard was not illegal, arbitrary or in abuse of its discretion.
Related to this issue is plaintiff's claim that in deciding as it did, the Board improperly delegated its discretionary functions either to staff or another agency. It is claimed that the zoning enforcement officer urged the Board not to approve the variance because the Planning and Zoning Commission had deleted the rear lot provisions and were in the process of revising them.
Thomas Sanders, the zoning enforcement officer, attended the public hearing and stated to the Board that if the variance was granted, it would cause problems for the Planning and Zoning Commission and would cause the same difficulties which occurred under the prior regulation. Mr. Sanders further stated that it was his recommendation and that of the planning department that the variance be denied. The staff report dated April 4, 2006, returned as a part of the record, recommended against the granting of the variance and that the variance would cause the same problems encountered by the deleted regulations. The report also stated that the variance would not be in harmony with the general intent and purpose of the zoning regulations.
The record is clear that the staff strongly opposed the granting of the variance and recommended against granting it. It is plaintiff's claim that in following the recommendations of staff, the Board improperly delegated its discretionary functions to the staff.
Three of the adjoining property owners, Enos, Lakowsky and a representative of the West Farms Land Trust, expressed concerns about the effect which the access lanes would have on the enjoyment of their property.
An agency, such as the defendant Board, may obtain technical assistance as that does not amount to an illegal delegation of its authority as long as it independently reviewed the recommendation and makes the decision itself. R. Fuller, 9 Conn. Practice Series: Land Use Law and Practice (3rd Ed.) 22.4, p. 658-59.
The statements of Board member Fawcett are pointed out by the plaintiff as indicating that the Board's discretion was improperly delegated to staff.
At the public hearing, there was some discussion concerning drainage and the layout of the laneways which would have to be considered under the subdivision regulations. At one point, Mr. Fawcett stated: "Okay, then really it isn't up to us to make the decision, that's really what you're saying." This comment, however, was made by Mr. Fawcett in response to a statement by zoning enforcement officer Sanders that the Planning Commission would decide the subdivision requirements if the variance was granted. Fawcett's comment merely reflects his understanding of this fact.
After the close of the public hearing and the start of the deliberation on the application, chairman MacNeil made a motion to go along with the recommendations of staff and deny the application for a variance. The motion was seconded and discussion was invited. Mr. Fawcett then indicated his lack of support for some of the concerns expressed by the adjoining property owner and then stated: "I don't really feel that I'm in any position to run counter the recommendation of our advisor, because he knows a lot more about these things than I do."
Mr. Fawcett's remark comes perilously close to an abdication of discretion in favor of the staff. His position, however, differs little from a situation where it was recommended that the opinion of legal counsel be followed. In Spera v. Zoning Board of Appeals, 217 Conn. 435, 445 (1991), this was found not to be an illegal delegation of the decision making authority of the Board. It has also been held that mere utterances of an individual member did not constitute a formal official collective statement of the entire Board. Harris v. Zoning Commission, 259 Conn. 402, 420 (2002).
There was little discussion on the issue after Mr. Fawcett's remarks and Mr. Fawcett made no attempt to argue his position to the other members of the Board.
Although the minutes of the meeting indicate that the motion to deny the application was approved by the unanimous vote of the Board, the transcript of the meeting does not reflect this. The transcript indicates that the clerk canvassed members Lakowsky, McFadden, MacNeil and Mitchell individually and recorded their votes to approve the motion to deny. There was no such canvass of member Fawcett and there is no record in the transcript of his vote.
Even if it could be found that Fawcett should be disqualified, it has not been proven that his participation tainted the proceedings. Here, the positive vote of the other members of the Board constituted a majority in favor of denying the plaintiff's application. Murach v. Planning and Zoning Commission, 196 Conn. 192, 203 (1985). No member indicated support for granting the variance or voted for it.
It has not been proven that the Board improperly delegated its discretionary functions to staff or another agency.
B.
The plaintiff claims that there is not sufficient substantial evidence in the record to support the finding by the Board that the literal enforcement of the provisions of the regulations would not result in an unusual hardship or exceptional difficulty and would (not) deprive the applicant of the reasonable use of the land.
In support of this claim, plaintiff points out the testimony of Liz Rasmussen, plaintiff's representative at the public hearing. Ms. Rasmussen stated that the "unique physical character of the property makes it exceptionally difficult to develop with the current frontage regulation requirements . . ." She stated that the variance requested was the minimum required to obtain a reasonable development of the site and that the subdivision was designed in accordance with prior regulations.
The plaintiff claims that in finding as it did, the Board overlooked Ms. Rasmussen's testimony that the rear of the property is accessible only through the laneways for which the variance was requested. But this is true only because the development has been laid out as a rear lot subdivision which is not allowed under the regulations. Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship. Krejpico v. Zoning Board of Appeals, supra, 152 Conn. 662.
The mere fact that the property has an irregular shape, as stated by Ms. Rasmussen, in itself does not create a hardship. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 210 (1995). There was no evidence of the existence of ledge, wetlands or other defects on the property which might possibly support a variance.
Plaintiff seeks a variance from the minimum frontage requirements of the regulations which prevent her from subdividing the property as she proposed. "A zoning regulation that prevents land from being used for its greatest economic potential, however, does not create the exceptional kind of financial hardship that we deem to have a `confiscatory or arbitrary' effect." Grillo v. Zoning Board of Appeals, supra, 206 Conn. 362.
The determination as to whether the regulation which prevents plaintiff from subdividing her property as planned has substantially reduced the value of her property "must be made on the facts of the case with consideration being given not only to the degree of diminution and the value of the land, but also the nature and degree of public harm to be prevented and the alternatives available to the owner." Hoffer v. Zoning Board of Appeals, 64 Conn.App. 39, 43-44 (2001).
There was no evidence before the Board as to the value of plaintiff's land or to what extent it would be diminished in value because of the frontage regulation. It could be concluded that the greatest economic potential for the land would be to subdivide it as plaintiff has planned, but that is not the test.
There was testimony by zoning enforcement officer Sanders as to problems which arose under the prior regulations allowing rear lot subdivisions. These problems were also reflected in the comments by members of the public who spoke at the hearing. The record indicates that the regulations were amended to avoid these problems and that granting the variance would revert to the same public harm, which existed under the prior regulations.
There was no evidence of alternative uses of the property available to plaintiff. It is obvious, however, that some of it could be sold to contiguous property owners. Certainly, the large interior tract increases the value of Lot 1 on the plan, which has a frontage of 235.83 feet.
The plaintiff has not met her burden of proof on this claim. There is substantial evidence in the record to support the finding of the Board that the literal enforcement of the provisions of the regulations would not result in an unusual hardship or exceptional difficulty and would not deprive the applicant of the reasonable use of her land.
C.
One of the reasons cited by the Board for the denial of the plaintiff's application was that "the unique conditions and circumstances associated with the request are the results of actions taken on the property subsequent to the adoption of the zoning regulations." The plaintiff claims that this finding by the Board is not supported by substantial evidence in the record.
The revised subdivision map, part of the record before the Board, depicts Lot 1 and what appears to be building lots of Enos Bennett, Bronson and Ouellette separating Lots 2 and 3 from Kitemaug Road. A lane way to Lot 2 appears to have been laid out though Lot 1. A lane way to Lot 3 is shown between Lot 1 and the Enos property. There also appears to be a small lane way from the highway to Lot 3 between the property of Bennett and Bronson.
In its brief, the Board states that "the lot's current configuration is the result of conscious decisions by plaintiff's predecessor in title (her father) to split off the nearby lots with frontage on Kitemaug Road by retaining land to the rear and approximately 300 feet of road frontage." (Lot 1.) The claim is that the present configuration is a self-created hardship and that the Board has no authority to relieve a property owner from a self-created hardship.
Where the applicant for a variance, or his predecessor in title, creates a nonconformity, the Board lacks power to grant a variance. Johnnycake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 300 (1980). Where a person acquires property with knowledge of the zoning regulations and attempts to devote it to a use which is not allowed by the regulations he, or she, is barred from obtaining a variance under the purchaser with knowledge rule. B. Fuller, 9 Conn. — Practice Series: Land Use Law and Practice (2nd Ed.) Sect. 9: 4 p. 265. There was evidence at the public hearing concerning prior conveyances which resulted in the configuration of the property as shown on the map submitted by plaintiff. Zoning enforcement officer Sanders stated that lots were split off subsequent to the adoption of zoning. From the testimony of plaintiff's representative, Liz Rasmussen, it could be concluded that the plaintiff's father was a prior owner of the property at which time it enjoyed more frontage on Kitemaug Road. It could also be determined that he conveyed from this property lots fronting on the road. At least two of these lots were illegal in that they did not conform to the applicable regulations indicating that the zoning regulations were in effect at that time.
There was no evidence as to how, when or from whom plaintiff acquired the property. It is clear, however, that she acquired her title subsequent to her father's ownership. It could also be concluded from Ms. Rasmussen's statement that plaintiff's father was contemplating a rear lot subdivision as formerly allowed under the regulations and that her firm was working on such plan.
The rear lot subdivision regulations are not part of the record and it cannot be determined if the property as presently configured would qualify for such a subdivision under the former regulations.
After a review of the proceedings before the Board and considering all of the facts in the record, it must be concluded that there was substantial evidence in the record to support the finding of the Board that "the unique conditions and circumstances associated with the request [that is the present configuration of the property] are the results of actions taken on the property subsequent to the adoption of the zoning regulations." That being the case, it was not an abuse of discretion for the Board to deny the application for the variance on such grounds.
VI. Conclusion
For reasons above stated, the decision of the Board to deny plaintiff's application for a variance is affirmed and this appeal is dismissed.