Opinion
No. CV-07 4026756
September 11, 2009
MEMORANDUM OF DECISION: APPEAL FROM DECISION OF THE NORTH BRANFORD ZONING BOARD OF APPEALS
The Plaintiffs, Ashley Joiner, et al., appeal from the decision of the North Branford Zoning Board of Appeals ("Board") for granting four variances to the defendants, Michael and Jacqueline Farber. The plaintiffs assert the Board acted illegally, arbitrarily, and in abuse of its discretion. The defendants assert the decision of the Zoning Board of Appeals was legal, reasonable, and supported by the facts in the record.
FACTS
Michael Farber and Jacqueline Farber are the owners of property known as 531 Forest Road in the Northford section of the Town of North Branford. The twenty-acre parcel is located in an R-40, residential zoning district. It is a "flag lot" with two hundred feet of frontage on Forest Road. The bulk of the acreage (15 acres) is located on the "Flag" portion of the lot that is more than one thousand feet from the road frontage. The Farbers currently have a residence and a deli located on the "pole" portion of the property. The deli is the closest to Forest Road and the Farber's residence is set roughly 180 feet behind the deli. The residence is in conformity with all zoning regulations while the deli is a pre-existing, non-conforming use.
On July 31, 2006, the Farbers filed an application to the North Branford Zoning Board of Appeals seeking four variances. The variances would allow the Farbers to create two additional lots on the approximately 15 acres found in the rear, "flag" portion of their property.
The first variance requested is identified as Variance A in the record. It is a requested variance of Regulation § 24.2.2.d. The regulation states,
Interior Lots, R-40: Interior lots may be permitted in the Residence R-40 District, subject to approval of the Planning and Zoning Commission. All interior lots shall comply with the provisions of Section 24 and other applicable municipal ordinances and regulations. Interior lots shall be subject to the following additional requirements: . . . PAGE 2]
d. There shall be no more than two (2) strips of land, easements of access or private right-of-way, existing side by side at any one location and shall not exceed a length of 700 feet.
The requested variance, Variance A, seeks to increase the allowable length of the access easement serving the proposed interior lots from 700 feet to 2,022 feet.
The second and third variances requested are identified as Variances B and C in the record. Each are setback variances. Both are requested variances of Regulation § 24.4.8, Schedule B, Line 7.1, which states that "No building or other structure shall extend nearer to any street line than the building line as defined in Section 6 and specified in Schedule B." Schedule B, Line 7.1 states that the minimum setback from the street line in an R-40 Zone is 50 feet. Variance B seeks to reduce the building line setback from 50 feet to 33.14 feet from the existing non-conforming commercial structure. Variance C seeks to reduce the building line setback from 50 feet to 24 feet from the existing dwelling.
The fourth requested variance is identified as Variance D in the record. It is a requested variance of Regulation § 24.2.2.c. The regulations reads,
Interior Lots, R-40: Interior lots may be permitted in the Residence R-40 District, subject to approval of the Planning and Zoning Commission. All interior lots shall comply with the provisions of Section 24 and other applicable municipal ordinances and regulations. Interior lots shall be subject to the following additional requirements: . . .
c. The strip of land, easement, of access, or private right-of-way shall consist of an improved gravel base travel path which is everywhere not less than 18 feet in width.
Variance D seeks to reduce the width of the easement of access from 18 feet to 15 feet.
On June 18, 2007, the Board held a public hearing on the application for the variances sought. Attorney Bernard Pelligrino, attorney for the Farbers, and Victor Bennie, a civil engineer with Godfrey-Hoffman Associates spoke on behalf of the Farbers. ZBA Board Member Boughton read a letter addressed to the ZBA and sent from Ashley Joiner. In addition to the letter being read several other residents raised concerns about the proposed variances. At the conclusion of the hearing the Board voted 3 to 1 in favor of granting the variances with all voting members citing § 61.3 of the North Branford zoning regulations.
The plaintiffs in this appeal own properties abutting the Farber parcel. They argue that the granting of these variances would allow the applicants to expand the nonconforming commercial use currently allowed on their property, that there is no evidence in the record to support a finding of hardship to support the granting of the variances, that the Board did not follow its own regulations for the granting of the variances, and that the hardship claimed by the applicants was self-created.
The defendants argue that under decisional law the court must show substantial deference for the decision of the local board and the court's review is limited to determining whether the decision of the Board is reasonably supported by the record. The defendants argue the variances granted were in conformity with the comprehensive plan evinced by the North Branford Zoning Regulations, that the shape of this parcel, the existence of inland wetlands on the parcel, the location of existing buildings on the parcel demonstrate that the literal application of the Zoning Regulations to this parcel would amount to exceptional difficulty or an unusual hardship.
DISCUSSION I.
The Court finds that the plaintiffs are statutorily aggrieved for the purpose of making this appeal pursuant to Connecticut General Statutes § 8-8(1).
II.
"In reviewing a decision of a zoning board, a reviewing court is hound by the substantial evidence rule, according to which, conclusions reached by the board must be upheld by the trial court if they are reasonably supported by the record." Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-60 (2007). However, if a board has not articulated the reasons for its decision, the court must search the record to find the basis for the board's decision. Gruillo v. Zoning Board of Appeals, 206 Conn. 362 (1998). If, upon review of the record, the Court finds that the board acted unreasonably, arbitrarily, or illegally, the court should overturn the board's decision. Irwin v. Planning and Zoning Commission, 244 Conn. 619 (1998).
Under Connecticut General Statutes § 8-6(a)(3) a zoning board of appeals is authorized "to determine and vary the application of the zoning . . . 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 . . . regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured . . ." Stated another way, the board may grant a variance of the zoning regulations when two conditions are met: 1.) the variance does not substantially affect the comprehensive zoning plan, and, 2.) applying the requirements of the local zoning regulations would cause unusual hardship unnecessary to carrying out the general purpose of the zoning plan. Point O'Woods Association v. Zoning Board of Appeals, 178 Conn. 364 (1979).
The zoning regulations of the Town, consistent with this statutory and decisional guidance explicitly lay out the protocol for the granting of variances by the Board. According to the Zoning Regulations of the Town of North Branford (Return of Record, Item 22, § 61.3):
61.3 Findings: It shall be the policy of the Zoning Board of Appeals, when exercising the power to determine and vary the application of these Regulations as described in Par. 61.2.3, to make all of the following findings:
61.3.1 That there exist conditions, fully described in the findings, especially affecting the parcel of land for which a variance is sought, as a result of which conditions a literal enforcement of these Regulations would result in exceptional difficulty or unusual hardship;
6 1.3.2 That such conditions do not affect generally the district in which the parcel is situated;
61.3.3 That, for reasons fully set forth in the findings, the variance is necessary to relieve the exceptional difficulty or unusual hardship and is the minimum necessary to accomplish such purpose; and
61.3.4 That the variance will be in harmony with the purpose and intent of these Regulations and will conserve the public health, safety, convenience, welfare and property values.
In this appeal there is no dispute that the proposed uses that would be enabled by the granting of the variances are consistent with the comprehensive zoning plan of the regulations. The dispositive issue in this case is whether there is evidence in the record that supports the Board's finding of hardship that are a necessary predicate for the granting of the variances.
III.
In reviewing the decision of a zoning board of appeals, the court must first determine if the board articulated its reasons on the record to support its decision. Grillo, supra at 369. In determining if the board has articulated its reasons, the reviewing court should consider the entire record, which was before the local authority, and determine whether or not the local zoning authority in question acted upon valid reasoning, in a fair manner, and with proper motive. Krejpico v. Zoning Board of Appeals, 152 Conn. 257 (1965).
In this case the defendant Board has not complied with its own regulations that require it to describe the hardship it relies upon to grant the variance. There is a general discussion of the application and the claims of hardship put forward by the applicant but there is nothing in the text of motion that granted the variances that reveals the factual foundation that the members relied upon as a Board. There is a ritualistic citation by several Board members voting to "approve citing 61.3." The dissenter to the granting of the variances also cited section 61.3 of the regulations in voting to deny the application for the variances. One member stated in a conclusory fashion: "I do see a hardship in this piece of property . . ."
This record does not disclose the actual factual findings made by the Board to support the granting of the variances. When a Court does not find an articulation of reasons to support a decision by the board on the record, the Court must search the record itself to determine if there was a basis for the board's decision. Grillo, supra at 269. If the Court may imply from the record, the reasons by which the board came to its conclusion, the Court may uphold the decision. Gross, supra at 327-28. However, if, upon review of the record, the Court finds that the board acted unreasonably, arbitrarily, or illegally, the court should overturn the board's decision. Irwin, 244 Conn. at 628.
V.
The record reflects a discussion of the application, the property, its layout, and the justification for the variances needed. Attorney Pelligrino and Victor Bennie presented documents that described the parcel, showed the location of wetlands on the parcel, the location of existing buildings and uses on the parcel, the location of the proposed accessway and proposed lot lines. The applicants asserted that the shape of the lot and existence of wetlands required a variance of the length requirements for the accessway. The applicants asserted that the location of the existing buildings justified a finding of hardship with regard to set-back requirements and finally that the variance of the width of the accessway would reduce impacts on inland wetlands.
The Board members elicited information that the applicants had owned the property since 1997 and that the property was in the same configuration at the time of the purchase as at the present. The Board also received information that lots would be served by septic systems. Several Board members described the parcel as having a unique shape. A Board member noted that the existing structures, being located in the center of the narrow portion of the lot created a hardship supporting the setback variances. Another Board member stated "I can certainly see a hardship in this, we can say that the person bought it knowing it, but when you buy property, you don't necessarily think ten years down the road."
The applicants challenge whether any of the claims put forward before the Board provide a factual foundation to support the necessary finding that adherence to the zoning regulations will create an unusual hardship for the Farbers. Proof of exceptional difficulty or unusual hardship is necessary as a condition precedent to the granting of a zoning variance. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208 (1995), Point O'Woods Ass'n. v. Zoning Board of Appeals, supra, 368. A mere economic hardship or a hardship that was self-created, however, is insufficient to justify a variance. Bloom, Id., Krejpico v. Zoning Board of Appeals, supra, 662.
This case presents a legal and factual pattern similar to that described in Gross v. Planning Zoning Board of Appeals, 171 Conn 326 (1976). In Gross the Boards granting of a variance was overturned where the Board did not follow its regulations by describing in writing its findings with regard to "special circumstances."
In Bloom v. Zoning Board of Appeals, 233 Conn. 198 (1995), the Court found that, "[t]he owners have shown only that their building is located on an irregularly shaped lot and "limitations imposed by the shape of the lot do not in themselves create a hardship . . ." Bloom, supra at 210, citing, T. Tondro, Connecticut Land Use Regulation (2d Ed. 1993 Sup.) p. 29. The Court, there, continued, "Furthermore, there was no evidence that if the variance were denied the owners' property would become worthless. On the contrary the building housed a restaurant that was a viable business and a going concern." Id. ". . . [T]he fact that an owner is prohibited from adding new structures to the property does not constitute a legally cognizable hardship." Id. at 210, citing footnote 13. In this case there is a similar situation in that there is both a conforming residence and a non-conforming deli on the applicant's property. The fact that the Farbers have a significant portion of their property that is currently unused does not in and of itself constitute a hardship.
Finally, with regard to determining the existence of a unique hardship, the Board offers Hammond v. Zoning Board of Appeals, 2000 WL 177297 (Conn.Super.) as mirroring the case at bar. The Court disagrees. In Hammond, the applicant was owned with a parcel that was rectangular in shape, measuring 655 feet by 92 feet. The local zoning regulations required a minimum 100-foot square for building. Thus, without a variance, under these regulations the applicant's parcel could never be built upon. Clearly, as applied to the parcel the Hammond court properly determined that the literal application of the regulations would create a hardship.
Here, the applicants already have a conforming and a nonconforming use on their property. The shape of the Farber's parcel does allow several uses under the North Branford Zoning Regulations, just not all the uses the applicant would like to put on the property. Rather, the Farber's property, aside from the deli, conforms to all regulations in its current state. This situation is more in line with the facts of Aitken v. Zoning Board of Appeals, 18 Conn.App. 195 (1989).
In Aitken, the property owner sought a variance that would reduce the required minimum lot frontage from 130 feet to zero feet in order to allow him to subdivide his property. Similarly to the Farbers, the property owner in Aitken had a present conforming use that did not become nonconforming until he wished to subdivide his property. Thus, the Court, there, held that the hardship was self-created, and as such, did not constitute a hardship at all. "Stosse's stated reason for applying for this variance of the town's frontage requirements was that he wanted to subdivide his property into two lots. Absent the variance, he will not be able to subdivide his property. This situation is self-created, and, therefore, not a sufficient reason to depart from the zoning regulations." Id. at 206.
The applicants' stated reason for seeking the variances is to "create two interior lots to the rear of the property." (Rec. Ex. 18, p. 1.) The record thus discloses that while the property is a "flag" lot it had the same shape when the applicants acquired it. The property is currently being used by the applicants for a residential use consistent with the zoning regulations and a commercial use that is a pre-existing nonconforming use. The wetlands located on the property were on the when it was acquired by the applicant. This record, does not support a finding that the literal or strict application of the zoning regulations to this parcel would create an "exceptional difficulty or unusual hardship." The zoning regulations allow the current uses being made of the property. The desire to create additional building lots is in essence a claim of economic hardship. The reasons cited by the Board members amount to a recognition that the defendants could maximize their economic utilization of the parcel if they could create two additional building lots. In applying the rationale put forth by the Court in Aitken, this type of hardship can only be categorized as self-created, and as such, not a sufficient or legally cognizable hardship.
CONCLUSION
For the above reasons, the court finds that the Zoning Board of Appeals has exceeded its authority in the granting of the variances. The Board did not follow its own regulations. The record does not contain evidence that would support the granting of the variances. The decision of the Zoning Board of Appeals of the Town of North Branford is set aside and vacated. The appeal of the plaintiffs is sustained.