Opinion
No. CV99-0360999S
June 26, 2003
MEMORANDUM OF DECISION
The plaintiff appeals the decision of the Stratford ZBA claiming that the Board's denial of his petitions for waivers of height and maximum building coverage requirements was arbitrary, an abuse of its discretion, and a violation of his federal and state equal protection rights. The facts are as follows: The plaintiff purchased the subject property on February 17, 1998. At that time, a deck measuring 16 feet by 18 feet existed on the property. In April 1998, the plaintiff requested and received permission to replace an existing garage with a larger one. That permission, however, was conditioned upon his removal of 290 square feet of the deck in order to stay in compliance with the maximum building coverage requited by the Stratford Zoning Regulations. The plaintiff removed the deck, but later reconstructed it at the second-story level without the benefit of a building permit or a variance from the Board and in violation of the Stratford Zoning Regulations. The plaintiff also built the garage. His request for a height variance for the garage addition upon his property from 21 feet to 17 feet was denied by the defendant board on July 7, 1998. On or about October 29, 1998, the Stratford zoning enforcement officer, issued a written order to the plaintiff to remove the deck on his property as it was in violation of Section 4.1 of the Regulations.
On December 31, 1998, the plaintiff petitioned the Board for a variance from the 20% maximum lot coverage to 26.4% in order to allow the deck to remain on his property, and for a variance from the maximum twelve (12) foot height requirement to sixteen (16) feet for the new addition to the garage. On his application, the plaintiff claimed that he did not realize that the whole deck would have to be removed in order to build the garage addition.
A hearing on the plaintiff's petitions took place on February 2, 1999. The plaintiff's attorney pointed out that the petition with respect to the garage was different from the one which had been denied in July 1998: "That application was to raise the height of the garage, the whole CT Page 7547-bq garage, to 17 ft. Whereas here we're only asking to raise a portion of the garage to 16 ft. So that is the difference between the two petitions." (Transcript of Board of Zoning Appeals Public Hearing, February 2, 1999.)
The Board discussed the plaintiff's petition in administrative session after the public hearing. One Board member commented that the garage height is not in keeping with the character and integrity of the neighborhood, and he discussed his views regarding the deck violations. Another member stated that he had problems with the deck because of the applicant's disregard of the zoning regulations. The Board decided to have separate votes for the deck and the garage. A motion to grant the request to waive the 12 ft. height as required by Section 3.11 of the Zoning Regulations to 16 ft. in order to construct a garage was defeated on a 3-2 vote. A motion to deny the request to waive maximum building coverage of 20% to 24.6% in order to allow the deck to remain was carried on a 3-2 vote. (February 2, 1999 Minutes of Stratford Board of Zoning Appeals.)
The parties stipulated to the Board's treatment of requests for variances by other property owners in the same zone or other residential zones in Stratford as follows: The Board granted a waiver of maximum building coverage to allow an existing deck to remain on another property in a RS-4 district in May 1997. In September 1997, the Board granted variances to three property owners in RS-districts permitting building coverage to expand from 20% to 30% in one case, from 20% to 25% in another case, and from 20% to 26.4% in the third case in order to either allow an existing deck to remain in the case of one of the properties or for the owners to construct new decks on their properties. In November 1997, the Board granted variances to expand maximum coverage on three properties in RS-4 districts to allow the construction of a breezeway addition, a storage shed, and a screened porch. The parties stipulated also that, between February 1998 and May 1999, the Board granted variances from maximum building coverage requirements in RS-4 districts fourteen times, in many cases to allow the construction of a deck. On one occasion, May 2, 1999, the Board unanimously approved a waiver to allow the existing deck at the same property to remain.
The parties stipulated to the Board's grant of variances from height requirements on four occasions between June 1997 and February 1998. Most of the requests were for the purpose of constructing a garage.
The plaintiff points to these facts as evidence that the defendant Board treated the plaintiff selectively, compared with others similarly situated, and thereby violated his state and federal equal protection rights. He seeks a reversal of the Board's decision and direction to the CT Page 7547-br Board to grant the plaintiff's petitions for variances as well as money damages, including punitive damages, reasonable attorneys fees and costs of litigation.
Aggrievement
The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: First, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision." Blumenthal v. Barnes, 261 Conn. 434, 441-42, 804 A.2d 152 (2002). As the owner of the subject property, the plaintiff has established aggrievement.
Standard of Review
The standard of review in zoning matters is well settled. "In reviewing the actions of a zoning board of appeals, we note that the board is endowed with liberal discretion and that its actions are subject to review by the courts only to determine whether they are unreasonable, arbitrary or illegal . . . The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision." (Citation omitted; internal quotation marks omitted.) Wing v. Zoning Board of Appeals, 61 Conn. App. 639, 643, 767 A.2d 131, cert. denied, 256 Conn. 908, 772 A.2d 602 (2001).
"The court's review is based on the record, which includes the knowledge of the board members gained through personal observation of the site . . . or through their personal knowledge of the area involved." (Internal quotation marks omitted.) Children's School, Inc. v. Zoning Board of Appeals, 66 Conn. App. 615, 627, 785 A.2d 607, cert. denied, 259 Conn. 903, 789 A.2d 990 (2001). On appeal, a reviewing court reviews the record of the administrative proceedings to determine whether the commission or the board "has acted fairly or with proper motives or upon valid reasons." Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988); Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980); Schwartz v. Planning Zoning Commission, 208 Conn. 146, 152, 543 A.26. 1339 (1988).
The trial court's function is "to determine on the basis of the record whether substantial evidence has been presented to the board to support CT Page 7547-bs [the board's] findings . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . Where the board states its reasons on the record we look no further." (Citations omitted; internal quotation marks omitted.) Id., 547-48. Where, however, the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board's decision. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988); Parks v. Planning Zoning Commission, 178 Conn. 657, 662, 425 A.2d 100 (1979). "More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons . . ." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995); Stancuna v. Zoning Board of Appeals, 66 Conn. App. 565, 568, 785 A.2d 601 (2001).
In searching the record, the trial court may rely on any reason culled from the record which demonstrates a real or reasonable relationship with the general welfare of the community in concluding that the board's decision should be upheld. Stankiewicz v. Zoning Board of Appeals, 15 Conn. App. 729, 733, 546 A.2d 919 (1988).
DISCUSSION
The plaintiff is appealing two separate decisions of the Board made pursuant to two separate requests. The decisions are considered separately herein.
DECK
The defendant board argues that the plaintiff's hardship is self-created. The self-created hardship rule provides that "[w]here the applicant . . . creates a nonconformity, the board lacks power to grant a variance." Kulak v. Zoning Board of Appeals, 184 Conn. 479, 482, 440 A.2d 183 (1981); Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39, 438 A.2d 1186 (1982); Osborne v. Zoning Board of Appeals, 41 Conn. App. 351, 354, 675 A.2d 917 (1996); Spencer v. Board of Appeals, 15 Conn. App. 387, 389 544 A.2d 676 (1998). A "[s]elf-inflicted or self-created hardship . . . Is never considered proper grounds for a variance." 2 Yokley, Zoning Law Practice (3d Ed.) 15-8, p. 159, quoted in Pollard v. Zoning Board of Anneals, supra, 40.
"The board is under no duty to extricate an applicant from a self-created hardship. Pollard v. Zoning Board of Anneals, supra, 44. `The hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance . . . and CT Page 7547-bt arises directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved.'" (Internal citations omitted) Archambault v. Wadlow, 25 Conn. App. 375, 381, 594 A.2d 1015 (1991). "Where the hardship results from the voluntary act of the property owner, however, the zoning authority lacks the authority to grant a variance." Able v. Zoning Board of Appeals, 172 Conn. 286, 289, 374 A.2d 227 (1977); Spencer v. Zoning Board of Appeals, 15 Conn. App. 387, 389-90, 544 A.2d 676 (1988).
As the facts clearly demonstrate, the plaintiff caused his nonconformity by rebuilding his deck after initially removing it so that he could build the garage. This is clearly a case of "self-created hardship." Since he created his own hardship, he cannot now avail himself of the argument that the Board's action in denying his application with respect to the deck was arbitrary, illegal, or an abuse of discretion. Having resolved the issue on this basis, the court need not consider the plaintiff's constitutional claims.
GARAGE
The Board' s action with respect to the garage requires more scrutiny. As noted in the facts, the plaintiff received permission to build the new garage. The photograph which the Board had before it shows a garage which appears to be either partially completed or to have a flat roof. The Board had letters from the plaintiff's neighbors supporting the plaintiff's requests for a variance. No one at the public hearing voiced any opposition. The Board argues in its brief that the variance sought by the plaintiff with respect to the garage could not be granted because a similar variance sought by the plaintiff was previously denied. The Board correctly points out that a zoning board of appeals cannot grant a variance when a prior similar variance was denied. In considering a subsequent variance application where it has already denied a similar prior one, "[a] zoning board of appeals is generally precluded from reversing a prior decision unless there has been a material change of conditions, or other considerations have intervened affecting the merits, and no vested rights have arisen." Wright v. Zoning Board of Appeals, 174 Conn. 488, 492, 391 A.2d 146 (1978). "The board is disallowed from revisiting [a] prior determination . . . because, if a reversal of that determination was allowed, "there would be no finality to the proceeding [and] the result would be subject to change at the whim of members or due to the effect of influence exerted upon them, or other undesirable elements tending to uncertainty and impermanence." (Internal quotation marks omitted); (Internal citations omitted.) Grasso v. Zoning Board of Appeals, 69 Conn. App. 230, 245, 794 A.2d 1016 (2002). CT Page 7547-bu
"The principle applies, however, only when the subsequent application seeks substantially the same relief as that sought in the former." Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 279, 129 A.2d 619 (1957); Grillo v. Zoning Board of Appeals, supra 367. Moreover, the administrative agency has some discretion to determine whether the relief requested in the two applications is substantially the same. Fiorilla v. Zoning Board of Appeals, supra; Grasso v. Zoning Board of Appeals, 69 Conn. App. 230, 249, fn6 (2002).
"[T]he test to be applied is whether new or additional facts appear showing a change in conditions or other considerations materially affecting the merits, intervening since the former decision." St. Patrick's Church Corporation v. Daniels, 113 Conn. 132, 138, 154 A. 343 (1931); Laurel Beach Assn. v. Zoning Board of Appeals, 66 Conn. App. 640, 645, 785 A.2d 1169 (2001).
"When a party files successive applications for the same property, a court makes up to two inquiries. The first is to determine whether the two applications seek the same relief. The zoning board determines that question in the first instance, and its decision may be overturned only if it has abused its discretion. Fiorilla v. Zoning Board of Appeals, supra. If the applications are essentially the sane, the second inquiry is whether there has been a change of conditions or other considerations have intervened which materially affect the merits of the matter decided." (Internal quotation marks omitted.) Laurel Beach Assn. v. Zoning Board of Appeals, supra 645-46; Malmstrom v. Zoning Board of Appeals, 152 Conn. 385, 390-91, 207 A.2d 375 (1965); Bradley v. Inland Wetlands Agency, 28 Conn. App. 48, 50-51, 609 A.2d 1043 (1992).
Whenever an appeal is taken from the denial of a variance, "[i]t [is] necessary for the court to determine whether the actions of the board were reasonably supported by the record and were a relevant basis upon which to deny the application." Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn. App. 53, 68, 549 A.2d 1076 (1988); Green v. Zoning Board of Appeals, 4 Conn. App. 500, 502, 495 A.2d 290 (1985); Werner v. Zoning Board of Appeals, 24 Conn. App. 393, 397, 588 A.2d 664 (1991). "The board's reasons for denying the variance are examined to determine whether they are reasonably supported by the record and are a relevant basis on which to act on the application." Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 152-53, 365 A.2d 387 (1976). "If one of the reasons provided by the board [are] sufficient to support the denial of the variance, the board's decision must be upheld." Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 49, 484 A.2d 483 (1984); Green v. Zoning Board of Appeals, supra. "[T]he authority's action must be sustained so long as the record supports at least one of the grounds." CT Page 7547-bv Hoagland v. Zoning Board of Appeals, 1 Conn. App. 285, 290, 471 A.2d 655 (1984). The burden of proof is on the plaintiffs to demonstrate that the zoning board acted improperly. Adolophson v. Zoning Board of Appeals, supra; Laurel Beach Assn. v. Zoning Board of Appeals, supra.
The record in this case does not disclose sufficient information from which the court can glean the reason or reasons for the denial of the plaintiff's request to vary the height requirement for his garage. It does not indicate that the application was considered to be substantially the same as the one previously filed and, as the facts demonstrate, a difference in the two applications was pointed out at the public hearing. One of the members stated that the garage height is not in keeping with the character and integrity of the neighborhood. However, the stipulated facts establish that other applicants received variances from height requirements for garages during the relevant time period. No discussion concerning hardship is recorded. Instead, the commentary focused on the deck violations. Having searched the entire record, the court is persuaded that the denial of the plaintiff's request for the variance with respect to the garage may have been motivated by a desire to punish him for his disregard of zoning regulations in connection with the deck. If that is the case, the Board's action was arbitrary and unreasonable.
The Connecticut Supreme Court has "recognized successful equal protection claims brought by a class of one, where the plaintiff alleges that [he] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. See Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, [ 43 S.Ct. 190, 67 L.Ed.2d 340] (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster [County], 488 U.S. 336 [ 109 S.Ct. 633, 102 L.Ed.2d 688] (1989). In so doing, [the court has] explained that [t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents. Sioux City Bridge Co. [ v. Dakota County, supra, 445] (quoting Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 352, [ 38 S.Ct. 495, 62 L.Ed. 1154 (1918)])." (Internal quotation marks omitted.) Willowbrook v. Olech, 528 U.S. [562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060]; see also id., 564 n.* ("the number of individuals in a class is immaterial for equal protection analysis"). City Recycling, Inc. v. State, 257 Conn. 429, 447, 778 A.2d 77 (2001).
As previously stated, however, it is impossible for the court to make a determination as to whether the Board acted arbitrarily or violated the CT Page 7547-bw plaintiff's equal protection rights under the State and Federal constitutions because the record fails to disclose sufficient information from which the court can ascertain the reason or reasons for the denial. "The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity." Parker v. County of Los Angeles, 338 U.S. 327, 333, 70 S.Ct. 161, 94 L.Ed. 144 (1949); Adolphson v. Zoning Board Of Appeals, supra. The wisdom of the highest courts of our state and nation dictate that the court refrain from addressing any constitutional claims until the Board has an opportunity to reconsider its decision and the reasons therefor.
CONCLUSION
The plaintiff's appeal from the Board's denial of his petition for a variance from the lot coverage requirements of Section 4.1 of the Stratford Zoning Regulations is dismissed for reasons stated above.
Because the reason for the Board's action cannot be ascertained on the basis of the record before the court, the court sustains the appeal from the Board's denial of the height requirement variance and, pursuant to Connecticut General Statutes § 8-8 (1), remands the matter to the Stratford Zoning Board of Appeals to reconsider the plaintiff's application for a variance from the height requirement set out in Section 3.11 of the Zoning Regulations.
GALLAGHER, J. CT Page 7547-bx