Opinion
No. MMX CV09-4010638-S
December 16, 2010
MEMORANDUM OF DECISION
I Procedural History
The plaintiff, Jane Mather, appeals from the decision of the defendant, the Deep River zoning board of appeals, which granted the defendant, Janet Gessner's, application for a three-foot variance of the six-foot-clear-area requirement of the Deep River zoning regulations for the construction of a driveway.
In May 2009, Gessner submitted an application to the zoning board of appeals seeking a three-foot variance from the six-foot-clear-area requirement of § 11.3.9 of the Deep River zoning regulations. The application sought permission for Gessner to build a fourteen-foot-wide driveway from Main Street, around the north side of the existing structure on her property, to the parking lot at the rear of her parcel. On June 10, 2009, the board held a public hearing on the application. On that date, the board unanimously voted to grant Gessner's application, creating a variance of three feet on the house side of the proposed driveway.
The plaintiff appeals the board's decision, alleging that she is the owner of an abutting parcel of land and that the board's grant of a variance was illegal, arbitrary and an abuse of discretion. On October 26, 2009, the board filed an answer. On November 18, 2009, the plaintiff filed a motion for default for failure to plead against Gessner. The court granted that motion on the same date. On November 23, 2009, Gessner filed a motion to set aside the default. The court held a trial on the appeal on October 1, 2010.
II
Jurisdiction
General Statutes § 8-8 regulates an appeal from a zoning board of appeals to the Superior Court. The parties must comply strictly with any provision governing a statutory right of appeal. Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
A Aggrievement
"It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved . . . Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399-400, 920 A.2d 1000 (2007). A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Pond View, LLC v. Planning Zoning Commission, 288 Conn. 143, 156, 953 A.2d 1 (2008). The standard for statutory aggrievement in zoning appeals is set forth in General Statutes § 8-8(a)(1), which provides in relevant part: "In the case of a decision by a . . . zoning board of appeals, . . . `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."
In her complaint, the plaintiff alleges that, "[a]s an abutting owner to the property which is the subject of the above referenced [a]ppeal, the [p]laintiff . . . is aggrieved by the decision of the [z]oning [b]oard of [a]ppeals." The court finds the plaintiff is statutorily aggrieved because she owns land that abuts the land involved in the decision of the board, in conformity with General Statutes § 8-8.
B Timeliness and Service of Process
Pursuant to General Statutes § 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 . . ."
General Statutes § 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) For 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 § 52-57(b) provides: "Process in civil actions against the following-described classes of defendants shall be served as follows . . . (5) against aboard, commission, department or agency of a town, city or borough, notwithstanding any provision 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 . . ."
A notice of the decision of the board was published in the Hartford Courant on June 16, 2009. (Return of Record [ROR] No. 7.) The plaintiff commenced this action by service of process on the town clerk for the town of Deep River on June 22, 2009. Accordingly, the court finds that the appeal was timely and that service of process was proper.
III Scope of Review
"[A zoning] board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994). "In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning 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." (Citations omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004).
"The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . Where a zoning agency has stated its reasons for its actions, 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 [board] was required to apply under the zoning regulations . . . 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." (Citations omitted internal quotation marks omitted.) R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).
In this case, the record contains a formal, collective statement of the reasons for the board's decision in the minutes of the board's June 10, 2009, meeting. There, the board stated that the reasons for granting the variance were, "(1) Hardship shown by [the] applicant in that there is no reasonable access to the commercial property. (2) Is not a contradiction of the Planning and Zoning regulations. (3) The variance only affects the property of the owner." (ROR No. 5.) Accordingly, the court is limited to determining whether the reasons are supported by substantial evidence in the record and may not search the record for other reasons supporting the board's decision.
IV Discussion
"[T]he granting of a variance must be reserved for unusual or exceptional circumstances . . . An applicant for a variance must show that, because of some peculiar characteristic of his 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 . . . Accordingly, [the Supreme Court has] interpreted General Statutes . . . § 8-6 to authorize a zoning board of appeals to grant a variance only when 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 . . . Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance . . . A mere economic hardship or a hardship that was self-created, however, is insufficient to justify a variance . . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance." (Citations omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206-08, 658 A.2d 559 (1995).
In her complaint, the plaintiff alleges that in approving the variance application, the board acted illegally, arbitrarily and in abuse of its discretion in several ways. "The [a]pplcation acted on by the [z]oning [b]board of [a]ppeals was not published or noticed as required by the Connecticut General Statutes and by the [r]egulations and rules of the [z]oning [b]oard of [a]ppeals of the [t]own of Deep River." "There was no legitimate hardship or exceptional difficulty [affecting] the property to justify the granting of the [v]ariance requested by [Gessner]." "Any hardship that may have existed was self-created by the [d]efendant, Gessner, and the [z]oning [b]oard of [a]ppeals had no legal justification for granting the [v]ariances requested." "The decision of the [z]oning [b]oard of [a]ppeals of the [t]own of Deep River is based on illegal considerations, namely financial and convenience considerations of the individual [a]pplicant and owner, the [d]efendant, Gessner."
The plaintiff did not brief the allegation that the application was not properly published or noticed. "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 n. 3, 682 A.2d 1070, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996). Accordingly, the court will not address the issue of whether the application was properly noticed by the board prior to June 10, 2009, hearing.
A Substantial Effect
The plaintiff does not allege in her complaint, nor argue in her trial brief, that this ordinance would substantially affect the comprehensive zoning plan. Nevertheless, the court finds that the board's finding that the variance "[i]s not a contradiction of the Planning and Zoning regulations" is reasonably supported by the record for the following reasons and constitutes a finding that the granting of this application would not substantially alter the comprehensive zoning plan. The parcel in question is located at the corner of Lafayette Avenue to the south and Main Street to the east in Deep River, Connecticut. (ROR No. 4(a).) The parcel is approximately 18,708 square feet. (ROR No. 4(a).) Currently on the lot is a two and one-half story wood-frame building. (ROR No. 4(a).) The parcel is zoned part of the Downtown District. (ROR No. 4(a).) Currently, the parcel has driveway access from Lafayette Avenue, but not from Main Street. (ROR No. 4(a).) Main Street is a major commercial thoroughfare in the town of Deep River, including various other commercial enterprises. (ROR No. 4, p. 17.) On-street parking on Main Street is not ideal. (ROR No. 4, p. 12.) The applicant wished to install a fourteen-foot-wide driveway from Main Street on the north side of the existing structure, curving around that structure to an eight-spot parking lot on the east side of the structure. (ROR No. 4(a).) That parking lot would also connect to the existing driveway to Lafayette Avenue to the south. (ROR No. 4(a).)
The zoning regulations of Deep River require that "[n]o parking area or portion thereof for non-residential uses, including . . . driveways . . . shall be located within 10 feet of any side . . . property line . . ." Deep River Zoning Regs. § 11.3.2. Furthermore, the zoning regulations require that "[n]o parking area or portion thereof, including . . . driveways . . . shall be located within six feet of any portion of a building . . . Such six-foot clear area shall be used for walk ways and planting or other landscaping." Id., § 11.3.9. At its closest point, the existing structure on the parcel sits twenty-seven feet, seven inches from the northernmost boundary. (ROR No. 4(a).) That distance is two feet, six inches shorter than the distance required by the zoning regulations, when the width of the driveway, side yard setback, and structure setback are included. (ROR No. 4(a);) Deep River Zoning Regs. §§ 11.3.2, 11.3.9.
Gessner did not seek a variance from the side yard setback requirement of ten feet. Rather, she sought to build the driveway in question closer to the existing structure than the required six feet. The applicant therefore requested a variance of three feet from § 11.3.9.
"[The Deep River] parking regulations are adopted for the purpose of providing sufficient parking facilities to meet actual demand off the street and on the same lot as the building they serve for all existing and proposed uses . . ." Deep River Zoning Regs. § 11.1. The parking regulations of § 11 apply to all zones, but the purpose of the Downtown District, the district in which the subject-parcel sits, is also articulated in the regulations: "It is the intent of these regulations to promote and support access by walking throughout the community. To this end, all parking lots must be designed to provide safe and convenient pedestrian access as a part of any parking lot design including safe and convenient pedestrian movement to and from public walkways and streets." Deep River Zoning Regs. § 7A.5.5. Additionally, other businesses in the area have access off of Main Street. (ROR No. 4, pp. 12-13.)
This variance, therefore, meets the first element of the test for the court to uphold the decision of the board. The variance does not affect substantially the comprehensive zoning plan. To the contrary, the variance allows the commercially zoned property at the corner of Main Street and Lafayette Avenue to have an on-site parking facility with access to Main Street. It therefore fulfills the goals of the ordinances to have adequate, safe, onsite parking for the businesses along Main Street. The result also conforms to the surrounding area, where other businesses along Main Street have access parking access from Main Street.
B Hardship
Once the court has found that there is sufficient evidence in the record to support the board's finding that the variance does not affect substantially the comprehensive zoning plan, the court must examine the record to determine if there is sufficient evidence to uphold the board's finding that adherence to the strict letter of the zoning ordinance would cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.
The zoning board found that the six-foot open space requirement of § 11.3.9 created a hardship because "there is no reasonable access to commercial property." (ROR No. 5.) The plaintiff alleges in her complaint and argues in her memorandum that the hardship identified by the board is merely financial and personal to the landowner, and therefore not a legally recognizable hardship sufficient to grant a variance. The board argues that the hardship it identified is legally sufficient and supported by evidence in the record.
In Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, 571, 785 A.2d 601 (2001), the Appellate Court upheld the grant of a variance to a landowner where the literal interpretation of the setback requirements of the town's zoning regulations would have limited construction on the commercial property in question to a ten-foot-wide building. In that case, the applicant owned a fifty-foot-wide, commercially zoned parcel of land, on which sat a nonconforming single-family house. The parcel was subject to twenty-foot setback requirements. An abutter challenged the zoning board's grant of a variance from the twenty-foot setback requirements on the ground that the hardship in question was merely financial. The Appellate Court upheld the grant of the variance, however, ruling that "the twenty foot setback requirement on the defendant's fifty foot lot would limit him to constructing a ten foot wide building in a commercial zone [and] would effectively perpetuate the property's present nonconforming use, a single family residence in a commercial zone." Id.
In this case, the lack of reasonable access off of Main Street to a commercially zoned property is a unique hardship. Just as the Appellate Court in Stancuna implicitly reasoned that a ten-foot building in a commercial zone would be impractical, the board in this case reasoned that a parcel with frontage on Main Street but without access to Main Street would be impractical. That impractically is a legally sufficiently hardship on which the board granted the variance.
Furthermore, just as was the case in Stancuna, there is a single-family home currently on the commercially zoned subject parcel in this case. Just as a rigid application of the setback requirements in Stancuna would have perpetuated the nonconformity, the interaction of the ten-, fourteen-, and six-foot requirements of the Deep River zoning regulations would tend to perpetuate the use of the subject parcel as a single-family residence because the board found that the current access to the property unreasonable for commercial use. The court finds that the lack of commercially reasonable access to a commercially zoned property is a legally sufficient hardship on which the board could have granted the variance.
The court must determine whether there is sufficient evidence in the record to support the board's finding that there is no commercially reasonable access to the subject parcel. The court finds that there is. In this case, the subject parcel is zoned to allow commercial use. (ROR No. 4(a).) The parcel sits at the corners of Lafayette Avenue and Main Street. (ROR No. 4(a).) Lafayette Avenue is a one-way street. (ROR No. 4, p. 4.) Main Street is a major commercial thoroughfare in the town of Deep River. (ROR No. 4, p. 17.) There is no legal access to Lafayette Avenue off of Main Street. (ROR No. 4, p. 19.) Parking on this section of Main Street would be dangerous to customers of any commercial establishment sited at this location. (ROR No. 4, p. 32-33.)
Couch, a professional engineer, testified that a commercial parcel must have reasonable access to Main Street. (ROR No. 4, p. 36.) He further testified that the traditional access for commercial properties is off of Main Street. (ROR No. 4, p. 36.) "We need a driveway to be a viable commercial within the zone that it sits and to function not to create a dangerous condition in the environment in the Main Street because of the cars being parked." (ROR No. 4, p. 37.) He further testified that the hardship is created by the zoning ordinances: "there is a [fourteen] foot driveway requirement and . . . the [ten] foot setback to the property line and the six foot to the building. Something had to give . . . We can't make that [ten] foot and the town mandated [fourteen] feet and have the six feet here." (ROR No. 4, p. 37.) He also clarified that: "Without this access in here you don't have a viable commercial entity." (ROR No. 4, p. 38.)
The court finds that there is sufficient evidence in the record to support the board's finding that adherence to the strict letter of the zoning ordinance would cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.
V Conclusion
For the foregoing reasons, the court affirms the decision of the Deep River Zoning Board of Appeals and the appeal is dismissed.