Opinion
No. CV 01-038 26 49 S
June 28, 2004
MEMORANDUM OF DECISION
This matter is before the court on an appeal from a decision of the Town of Westport Zoning Board of Appeals. In November 2000, the plaintiffs made an application to the Board requesting a modification of Variance #4718 Condition of Approval (a) to allow their property at 7 Tranquility Lane, Westport, to be subdivided and to remove the prior variance (#4718) Condition (a) of Approval prohibiting the subdivision of the property. 7 Tranquility Lane is zoned Residence A under the Zoning and Subdivision Regulations of the Town of Westport.
In 1993 a series of variances were granted to the prior owner of 7 Tranquility Lane by the Zoning Board. The purpose of the variances was enable him to create a second lot; however, the Board also imposed a condition prohibiting further subdivision of either lot. This restriction was recorded in the land records; the plaintiffs had knowledge of the condition when they purchased the property in 1993.
The property at issue is on the north side of Tranquility Lane. When the plaintiffs purchased this property in 1993, they also purchased property south of Tranquility Lane. In 1998, the plaintiffs sought and were granted subdivision approval for the property south of the road. When the approval was granted the Tranquility Lane roadway was widened to the standards of the Town of Westport. Of note, there were no restrictions on the subdivision of the south side in effect when the approval was granted.
Public hearings were held concerning the plaintiffs' application to remove the variance on the subdivision of the north side of Tranquility Lane on January 23 and March 27, 2001. On March 27, 2001, in accordance with § 46 of the Zoning Regulations and Subdivision Regulations of the Town of Westport, the Zoning Board of Appeals voted to deny the plaintiffs' application. This appeal followed; oral arguments were heard by this court on June 2, 2004.
Standard of Review
"In reviewing an appeal from an administrative agency, the trial court must determine whether the agency has acted unreasonably, arbitrarily, illegally or in an abuse of its discretion . . . The burden of proof is on the plaintiff to demonstrate that the commission acted improperly . . . The reviewing court ought only . . . determine 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 . . ." (Internal quotation marks omitted. Citations omitted.) People's Bank v. City of Shelton, Superior Court, Judicial District of Ansonia/Milford at Derby, Docket No. 95-0050148 (February 7, 1996, Sylvester, J.) ( 16 Conn. L. Rptr. 155). "The trial court may not substitute its judgment for the wide and liberal discretion vested in the local authority when acting within its prescribed legislative powers. The court must invest such broad discretion in these authorities when determining the public need and the manner of meeting it, because they are closest to the circumstances and conditions which create the problem and shape the solution. Thus, the court may grant relief on appeal only where the local authority has acted illegally or arbitrarily or has abused its discretion." (Citations omitted; internal quotation marks omitted.) Frito-Lay, Inc. v. Planning Zoning Commission, 206 Conn. 554, 572-73, 538 A.2d 1039 (1988)."The burden of showing the authority has acted improperly rests upon the one who asserts it." Aaron v. Conservation Commission, 183 Conn. 532, 537, 441 A.2d 30 (1981).
Jurisdiction Aggrievement
The plaintiffs have established statutory aggrievement by proving that they are the property owners of 7 Tranquility Lane, Westport, the property at issue in this appeal. (Exhibit 1, June 2, 2004.) "Any person aggrieved by any decision of a Board may take an appeal to the Superior Court." General Statutes Section 8-8(b). 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." General Statutes Section 8-8(a)(1).
Discussion
It is the plaintiff's position that there has been a material change in circumstances which necessitated the imposition of the subdivision prohibition in 1993. Because Tranquility Lane was widened the safety concerns underlying the restriction no longer apply. Moreover, the plaintiffs claim hardship from the inability to subdivide their 2.37-acre property. While the 2.37 acres houses their large home and swimming pool, the plaintiffs assert the restriction on subdividing a portion of this property amounts to a "practical confiscation" of their land The plaintiffs offer no legal authority in support of this proposition.
As noted above the condition prohibiting further subdivision of the two lots was imposed pursuant to variances which allowed the lots to be divided in 1993. "A variance is authority extended to the owner to use his property in a manner forbidden by the zoning enactment. In granting a variance, the board is presumed to have acted fairly and upon valid reasons unless the contrary is shown; and the board has wide discretion to grant variances. Burlington v. Jancik, 168 Conn. 506, 508-09, 362 A.2d 1338 (1975)" (internal citations omitted). A zoning board of appeals may attach reasonable conditions to the grant of a variance. "Were it not for the conditions imposed by a board of appeals, variances might not be supportable as being in harmony with the general purpose and intent of the zoning ordinance. Thus, the variance and the attached conditions are inextricably linked, the viability of the variance being contingent upon the satisfaction of the conditions." Id. at 509-10 (internal citations omitted).
The record of the 1993 hearing demonstrates that the condition permanently restricting further subdivision of the two lots was imposed for a number of reasons. First, was the unusual nature of the road; second, was the preservation of trees; and third was the preservation of the neighborhood. (Exhibit 33, 56, p. 23.) While the nature of the road has improved the other two factors continue to be of concern as evidenced in letters sent to the Zoning Board in response to the plaintiff's application, as well as testimony at the public hearings. (Exhibits 38 and 56.) The 1993 variance was dependent upon the attached, permanent condition. Neighbors agreed to the 1993 variance in reliance on the permanent condition restricting further subdivision. (Exhibits 38 and 56.) Moreover, significant reasons for the 1993 restriction continue to this day.
Also, significantly, the plaintiffs have failed to meet their burden to prove hardship. In Fleet National Bank v. Zoning Board of Appeals, 54 Conn. App. 135, 734 A.2d 592 (1999), the Appellate court articulated the standard applicable to an application to modify a variance by removing attached conditions. "We conclude that the viability of the 1993 variance that the board granted to Fleet Bank was dependent on the conditions imposed and that any application to remove the conditions so affected the variance as to require a showing of hardship [as articulated in Bloom v. Zoning Board of Appeals]. The hardship criterion enunciated in Bloom v. Zoning Board of Appeals, 233 Conn. 198, 207, 658 A.2d 559 (1995), was "[P]roof of exceptional difficulty or unusual hardship . . ."
The plaintiffs claim that enforcement of these conditions creates a "practical confiscation" of their land, which satisfies the hardship requirement. "A practical confiscation occurs when an ordinance so limits the use of land that it cannot be utilized for any permitted purpose without a variance." Archambault v. Wadlow, 25 Conn. App. 375, 382 (1991), citing Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 152, 365 A.2d 387 (1976). Such is not the case in this matter, where the plaintiffs enjoy the use of their property as a residence, the purpose for which the property was intended and legally zoned. Additionally, the plaintiffs were fully cognizant of this permanent condition when they purchased this property in 1993.
After reviewing the record, the law and considering the briefs and arguments of counsel, this court finds that the plaintiffs have failed to meet their burden to prove that the Town of Westport Zoning Board of Appeals acted illegally or arbitrarily or has abused its discretion. Accordingly, this appeal is dismissed.
BY THE COURT,
Wolven, J.