Opinion
ANNCV166020164S
06-27-2017
Leden Consulting Corp. v. Zoning Board of Appeals City of Milford
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Theodore R. Tyma, J.
The plaintiff, Leden Consulting Corporation, a foreign corporation, brings this appeal against the defendant, Zoning Board of Appeals of the City of Milford, challenging the board's denial of Leden's application to vary certain requirements of the Zoning Regulations of the City of Milford pertaining to property owned by Leden and located at 108 Beach Avenue, Milford, Connecticut. This appeal arises from Leden's desire to place multiple no trespassing signs on a portion of its property located in a flood zone in an attempt to stop a chronic problem of members of the public using their property as if it were public property. Leden challenges the board's denial of variances to place more than one sign on the property, and to place the signs in a flood hazard zone.
The property located at 108 Beach Avenue consists of two lots that are not commonly owned. One parcel is owned by Carlo and Steven Micceri, as Trustees of the Patricia Micceri Trust, and has been improved by a single-family residence. The second lot is owned by Leden, and consists of .523 acres of unimproved land. The second parcel is located directly across Beach Avenue from the residential parcel, and is bordered on its southeast side by Long Island Sound. The evidence in the record, including maps and pictures, depict the parcel to be an irregularly shaped area consisting of grass and rocks ending at the water.
As will be discussed later in this decision, there is no dispute that Leden is the owner of the second parcel at issue in this appeal. As a result, in accordance with General Statutes § 8-8(a)(1), and based on the evidence in the record, the court finds that Leden is an " aggrieved person" for purposes of legal standing to maintain the present appeal.
Also, the second parcel is adjacent to a public beach in a section of Milford known as Woodmont. There are sixteen other properties located in this area of Beach Avenue that are similarly situated; that is, they consist of residential lots located on the northwest side of the street, with a related lot across the southerly side of Beach Avenue abutting the water.
The two applications filed by Leden at issue in the present appeal were received by the board on November 12, 2015. Both applications only concern the unimproved parcel owned by Leden, and not the residential parcel owned by the trustees. In one application, Leden appealed the decision of the zoning enforcement officer, Stephen Harris (ZEO), wherein he " determined that a variance is required to install a fence per section 4.1.7.3 and multiple signs per section 5.3.4.1 of the regulations." In the other application, Leden sought a variance to install a decorative fence and six signs, and request a variance from the same two sections of the regulations. Prior to a public hearing on the applications, the ZEO sent a letter to Leden, dated January 8, 2016, in which he stated that he withdrew his decision requiring Leden to obtain a variance to install a fence, and noted that his " decision that a variance is required for multiple signs is still in effect." As a result, Leden has installed a fence on the property, along with a single no trespassing sign as permitted by the regulations.
Concerning the ability to post a sign on the property, the regulations provide as follows: " One non-illuminated or indirectly illuminated identification sign for each separate street line not to exceed 9 square feet in area nor 8 feet in height; and further limited as follows: said sign shall be located not less than 10 feet from the front property line; the height of such sign shall not be greater than the distance it is located from any lot line. Noncommercial speech may be placed on any sign permitted by this portion of the Regulations." Milford Zoning Regs., art. V, § 5.3.4.1. The property contains one no trespassing sign as permitted by the regulation. The present appeal concerns Leden's request to place five additional signs on the property.
On January 12, 2016, a public hearing was held on Leden's application to place additional signs on the property. The hearing was a continuation of the public hearing on December 8, 2016, which was continued at the request of the ZEO to further research the record owner of the second parcel. The day after the January hearing, the board issued to counsel for Leden a letter dated January 13, 2016, noting that " the only voting matter was item 2: Sec. 5.3.4.1-vary no. & location if signs; Sec. 5.8-vary flood hazard area." The letter further stated that at the meeting the board voted to deny Leden's appeal from the decision of the ZEO that a variance was needed for the additional five signs requested by Leden. The board voted 3 to 2 to deny the variance.
At the start of the hearing on January 12, 2016, the ZEO stated to the board that " the ownership has been satisfied to my satisfaction . . . I reviewed that and it is indeed, in my opinion, a parcel that has been conveyed since 1900." Therefore, Leden's record ownership was established, and accepted by the board, without further discussion.
The letter also listed " Sec. 4.1.7.3-vary installation of fence, " but that was no longer an issue at the time of the meeting, and was not considered by the Board.
In its memorandum of law filed in the present appeal, Leden claims that the board's denial of the requested variances was arbitrary, illegal and an abuse of discretion because the board exceeded its authority in regulating the no trespassing signs, and there is substantial evidence of hardship which supports the requested variances. The board responds that the signs at issue are properly regulated as structures to be placed in a flood hazard zone.
I
STANDARD OF REVIEW OF BOARD'S DECISION
The standard of review applicable to appeals from a decision of a zoning board is well settled. " In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule . . . We must determine whether the trial court correctly concluded that the board's act was not arbitrary, illegal or an abuse of discretion . . . Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . .
" When a zoning board states the reasons for its action, the question for the court to pass on is simply whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the [board] is required to apply under the zoning regulations . . . The court should not go behind the official statement of the board . . . In the absence of a statement of purpose by the zoning [board] for its actions, it [is] the obligation of the trial court, and of [the Appellate Court] upon review of the trial court's decision, to search the entire record to find a basis for the [board's] decision." (Citations omitted; internal quotation marks omitted.) Amendola v. Zoning Board of Appeals, 161 Conn.App. 726, 735-36, 129 A.3d 743 (2015).
In this case, although board members discussed at the hearing Leden's request for variances to place multiple no trespassing signs on the property, the record does not contain a collective statement of the board's reasons for denying the variances. See Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208-09, 658 A.2d 559 (1995) (" although individual members of the board discussed reasons for granting the owners a variance, the board did not state a collective, official reason for its action" [footnote omitted]). The record containing the minutes of the board's meeting on January 12, 2016, shows members of the board very briefly expressed their views prior to voting on Leden's application. The board immediately thereafter voted to deny the variances without further comments. As a result, the court must review the entire record to ascertain whether the evidence reveals any proper basis for the board's decision.
II
A
The Proposed Signs Are Subject to Regulations
The determinative issue on appeal is whether the board's denial of Leden's application to vary § § 5.3.4.1 and 5.8 of the regulations in order to place more than one no trespassing sign in a flood zone area of the property was arbitrary, illegal, or an abuse of their discretion. In making this decision, the court is required to search the record to ascertain whether there is substantial evidence supporting the board's denial.
Leden contends, based on Connecticut decisional law, that it did not need a variance for the signs because no trespassing signs are nonadvertising signs, and, as such, are not subject to regulation by the board under either of the two regulations at issue. Leden argues that the board's enforcement of those regulations exceeds their legal authority. In other words, Leden claims the board's actions are " ultra vires." Leden alternatively contends that even if variances were required, it proved legal hardship supporting the granting of the variances.
The city's ability to regulate a sign is found in General Statutes § 8-2, commonly referred to as the municipal enabling statute. The statute provides in pertinent part that " [t]he zoning commission of each city . . . is authorized to regulate . . . the height, size and location of advertising signs . . ." General Statutes § 8-2.
The board responds in its memorandum that its authority to regulate the signs in the present action is found in § 5.8.4.8.2 and § 5.8.4.8.1(4)(a) of the regulations governing flood zones, and Article XII of the regulations containing a definition of a " structure." The board argues that assuming " the regulations could not regulate nonadvertising signs . . . § 8-2(a) authorizes the zoning commission to regulate 'structures.'"
That section provides in pertinent part as follows: " The zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes, including water-dependent uses, as defined in section 22a-93, and the height, size and location of advertising signs and billboards." (Emphasis added.) General Statutes § 8-2(a).
The court need not decide the claim of Leden, based on § 8-2(a) as it pertains to the regulation of advertising signs and the decisions of the courts in Schwartz and Harris, that the proposed no trespassing signs are nonadvertising signs that are not subject to regulation by the board. The court agrees with the board that the signs are properly subject to the regulations governing structures on Leden's property located within a flood hazard zone.
Section 5.8 of the regulations is titled " Flood Hazard and Flood Damage Prevention Regulations." Those regulations " shall apply to all lands, buildings, structures, structural alterations and uses in any Zoning District where lands, buildings, structures, structural alterations and uses are, or are proposed to be located, below the regulatory flood protection elevations as defined herein." Milford Zoning Regs., art. V, § 5.8.2. The regulations define a structure as " [a]nything constructed or erected which requires location on the ground . . . Except as otherwise indicated, 'structure' as used in these regulations shall be deemed to include buildings, swimming pools, open entries, signs, and fences or walls more than three feet in height other than retaining walls." (Emphasis added.) Milford Zoning Regs., art. XI, § 11.2. In view of the foregoing, the board claims that they have authority to regulate a sign as a structure under the flood zone regulations.
Leden does not dispute that the subject property is located within a flood zone.
The municipal enabling act expressly provides that the zoning commission of a municipality " is authorized to regulate . . . the height, number of stories and size of buildings and other structures . . ." § 8-2(a). The local regulations define a structure as something built " on the ground" or " attachment to something having location on the ground, " and expressly includes a sign. Milford Zoning Regs., art. XI, § 11.2. The city's flood zone regulations apply to all structures, which by definition includes signs. Milford Zoning Regs., art. V, § 5.8.2. Because Leden wants to place more than one permitted sign on their property, and place the sign in a flood zone, Leden was required to apply for, and obtain, a variance of the regulations.
Leden recognized the need to apply for variances to place additional sign in applying for the variances.
B
Search of Record to Find Basis for Board's Decision
The remaining issue is whether there is substantial evidence in the record to support the board's decision denying Leden's variance request for multiple signs. Leden claims that it established the existence of a legal hardship affecting the property, and its appeal should be sustained. Leden contends that the hardship arises from the uniqueness of the property in its irregular shape, topography, acid location next to the public beach area. Due to the hardship relating to the property, Leden argues that " a single no trespassing sign is insufficient to put the general public on notice that the property is privately owned and not for use by the general public, " and, correspondingly, " a significant number of signs are necessary to alert the public that the property is not in public ownership."
The board counters that Leden failed to demonstrate legal hardship, a condition precedent to granting a variance of the regulations. More particularly, the board asserts that Leden " provided no authority for the proposition that a lot's shape or topography constitutes legal hardship justifying a sign variance." (Emphasis added.)
Leden also claims that it " satisfied the standard of proof necessary to support" a variance to permit signs in a flood zone. The board does not address this argument in its memorandum. Specifically, Leden contends that it has shown good cause for the issuance of a sign variance, and that such a variance would not cause harm in the flood zone, public, or conflict with any laws.
Before considering the specific claim advanced in this appeal, the court will first review the standard for granting a variance. " General Statutes § 8-6 provides a municipal zoning board of appeals with the power to grant a variance from compliance with local zoning regulations to a specific piece of property. Although a zoning board of appeals has such power, the variance power should be used sparingly for [t]he granting of a variance is no insignificant matter, as it runs with the land in perpetuity . . . and constitutes permission to act in a manner that is otherwise prohibited under the zoning law of [a] town . . . As a result, a zoning board may not exercise this authority unless 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 . . . Moreover, a zoning board may grant a variance only where a situation falls fully within the specified requirements . . . [U]nless great caution is used and variances are granted only in proper cases, the whole fabric of town- and city-wide zoning will be worn through in spots and raveled at the edges until its purpose in protecting the property values and securing the orderly development of the community is completely thwarted . . . Therefore, without such a showing of hardship, one does not simply get a zoning variance.
" The first part of the test, that the use requested by the variance application is in accord with the comprehensive zoning plan, is usually met when the use to be allowed by the variance is consistent with other uses in the area . . .
" The second part of the test, that the zoning regulation cause unusual hardship to the land unnecessary to carrying out the zoning plan, is generally more difficult to satisfy, but remains an absolute necessary as a condition precedent to the granting of a zoning variance . . . The applicant has the burden of proving hardship and must establish both the existence of a sufficient hardship and that the claimed hardship is . . . unique . . . The claimed hardship must originate in the zoning ordinance . . . meaning that because of some peculiar characteristic of [the] 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 . . . In other words, a legal hardship must [relate] to the property for which the variance is sought and not to the personal hardship of the owners thereof . . . Thus, a property owner's [d]isappointment in the use of property does not constitute exceptional difficulty or unusual hardship . . . and principles of equity, fairness to the applicant, and lack of adverse consequences to surrounding properties do not meet the test for a legally recognized hardship . . . Finally, the hardship must be different in kind from that generally affecting property in the same zoning district . . . As a result, [t]he existence of similar lots . . . make[s] it difficult or impossible to prove unusual or unique hardship." (Citations omitted; footnote omitted; internal quotation marks omitted.) Amendola v. Zoning Board of Appeals, supra, 161 Conn.App. 737-39.
There is no dispute that Leden's request for a variance to post multiple signs on the property is consistent with other such uses in the surrounding beach area, and in accord with the comprehensive zoning plan of the city. The court must next consider whether there is substantial evidence in the record that application of the zoning regulations cause unusual hardship to the land unnecessary to carrying out the municipal zoning plan.
This is clearly a case involving personal hardship, as opposed to legal hardship. Leden's purpose for the placement of the signs is to thwart trespassers from roaming from the public beach onto Leden's private beach property. There is no evidence that strict application of the regulations at issue produces an unusual hardship to Leden that is unique to their property as opposed to other Beach Avenue properties. To the contrary, there is substantial evidence that there are many properties on Beach Avenue that share the same, or similar, characteristics, as Leden's property, and are also generally impacted by the subject regulations.
The record shows that it is common for people on the public beach in Woodmont to wander from public beach property onto private beach property. For example, the record contains a letter dated October 13, 2015, from Edward Bonessi, Jr., Warden of the Borough of Woodmont, wherein he notes the problems that occur " when public and private property are disrespected by littering, loitering, parking on private property and in no parking zones." Bonessi also stated that trespasses similar to those that were experience by Leden on its property " persisted only a short distance down the road under the historic Umbrella Tree in front of 100 Beach Avenue." Phil Vetro, an alderman representing the Woodmont district, testified at the public hearing that he " heard many concerns [about the Beach Avenue neighborhood], calling me regarding traffic on Beach Avenue, complaints about the trash and the debris and the unlawful activity such as camping as Attorney Willinger has spoken. A lot of late night noise and other dangerous activities taking place on [Leden's property]. These activities are harming the quality of life that should be enjoyed by the Beach Avenue neighborhood."
The evidence demonstrates that people regularly trespass from the public beach onto private beach properties, and commit various civil and criminal violations on the private properties. Simply put, Leden's claimed hardship is not different in kind from hardships arising from other beach properties in this zoning district, and does not arise from application of the zoning laws to the peculiar characteristics of the property claimed by Leden. Therefore, Leden has failed to establish hardship to support obtaining a variance.
Finally, Leden claims that it satisfied the " Conditions for Variance" applicable to the " Flood Hazard and Flood Damage Prevention Regulations" section of the regulations. The flood zone regulations provide that " [v]ariances shall only be issued upon . . . [a] showing of good and sufficient cause; [and] [a] determination that the granting of a variance would not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances." Milford Zoning Regs., art. V, § 5.8.4.8.2(4). In its memorandum, Leden asserts " [i]t is patently clear that the circumstances of the property, its location and configuration, provide a good and sufficient case for the granting of the variance." As discussed above, the court concluded that Leden failed to establish a legal hardship. Consequently, Leden has failed to satisfy an express condition for a variance of the flood zone regulations based upon good cause.
III
CONCLUSION
In view of the foregoing, there is substantial evidence in the record supporting the board's denial of variances, and Leden's appeal is denied.
Leden claims that the enabling statute provides a municipality with " authority to regulate advertising signs, " but no authority " to regulate noncommercial signage" like their proposed no trespassing signs. Leden cites to Schwartz v. Planning and Zoning Commission, 208 Conn. 146, 543 A.2d 1339 (1988), and Harris v. Arisian, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-11-6008312-S (January 19, 2016, Stevens, J.) (61 Conn.L.Rptr. 679, ), and claims that their proposed signs are not subject to zoning regulations. In Schwartz, our Supreme Court was presented with the occasion to define " advertising signs" as used in § 8-2: " The most relevant definitions of advertise in Webster's Ninth New Collegiate Dictionary are to announce publicly esp[ecially] by a printed notice or a broadcast; [and] to call public attention to esp[ecially] by emphasizing desirable qualities so as to arouse a desire to buy or patronize . . . In Schwartz, the court found that a proposed thirty-two-foot-sculpture at the entrance of a shopping plaza was not an advertising sign because the evidence did not support the conclusion that it would arouse the desire of passersby to patronize the merchants and services available there." (Citation omitted; footnote omitted; internal quotation marks omitted.) Harris v. Arisian, supra, 61 Conn.L.Rptr. 681, . In Harris, the defendant was dissatisfied with a contractor who performed work on her property in Milford, Connecticut, and posted signs on the outside of her home publically expressing her unhappiness. Id., 680, . Judge Stevens " rejected the [zoning enforcement officer's] argument that the city has the authority to regulate all signs as defined by the Milford Zoning Regulations because under § 8-2(a), the zoning commission has the authority only to regulate advertising signs. Because the defendant's signs are not advertising signs, they are not subject to the Milford Zoning Regulations pursuant to § 8-2(a)." (Footnote omitted; internal quotations omitted.) Id., 683, .