Opinion
No. CV05 400 89 88
June 13, 2007
MEMORANDUM OF DECISION
The plaintiff, NW Bridgeport, appeals from the decision of the defendant, the Bridgeport zoning board of appeals, granting a variance for the defendant, Connecticut Transfer Company, LLC. The variance permitted Connecticut Transfer to operate a construction debris transfer station on its property.
This action was consolidated for the purpose of trial with two other appeals from the board's decision, Middlemass v. Zoning Board of Appeals, Docket No. CV 05 4009123, and European Investment Co., LLC v. Zoning Board of Appeals, Docket No. CV 05 4009216. There was a single return of record filed in the present appeal on July 20, 2005, and two supplemental returns of record filed in the Middlemass case on August 7, 2006 and January 3, 2007. Any references to "Return of Record" in this decision refer to that filed in the present action; while "Sup. 1" will refer to that filed in the Middlemass action on August 7, 2006, and "Sup. 2" will refer to that filed in the Middlemass action on January 3, 2007.
Connecticut Transfer is the contract purchaser of unit #1 at 560 North Washington Avenue, Bridgeport, a commercial condominium complex located in a light industrial (I-LI) zone. (Appeal, ¶¶ 1, 3.) On February 14, 2005, Connecticut Transfer applied to the zoning board for a variance to allow it to operate a transfer station for construction debris within an existing building on the property. (Return of Record [ROR], Petition 2/14/05.) The transfer station, which would receive, sort and export debris from construction sites, would require approximately 186 truck trips per day, well in excess of the ten per day threshold constituting a high impact use within an I-LI zone; see § 7-1-3 of the Bridgeport zoning regulations. (ROR, Traffic Study 2/07/05, p. 6.) A high impact use, however, is prohibited in an I-LI zone by §§ 7-1-2 and 7-3-2 of the Bridgeport zoning regulations, which precipitated Connecticut Transfer's petition for a variance. (ROR, Hearing Transcript [Tr.] 5/11/05, p. 2.) The property was formerly zoned heavy industrial and the improvements thereon were constructed for heavy industrial use; specifically, the building comprising much of the property is 89,000 square feet in area and is entirely open aside from support columns. (ROR, Tr. pp. 1-4.) The petition was scheduled to be heard on March 8, 2005, but was rescheduled for April 12, 2005. (ROR, Letter of 3/14/05; Notice of Hearing 3/30/05.)
A previous application was filed on September 21, 2004, and was scheduled for a hearing before the board on November 9, 2004, continued until December 14, 2004, and continued again until January 11, 2005. The application was then withdrawn and resubmitted on February 14, 2005, which is the application currently at issue. (Return of Record, Petition 2/14/05; Sup. 1, Hearing Agendas 12/14/04 and 1/11/05; (Appeal, ¶¶ 4, 6-9.)
Section 7-1-3(a)(2) of the Bridgeport zoning regulations provides in relevant part: "In the Light Industrial Zone only, High Impact Uses include those uses which exceed one or more of the following performance thresholds or match the following performance descriptions:
"(a) Truck Traffic Generation: Uses with more than 10 Average Daily Weekday Trips (ADWT) of Heavy Trucks. ADWT is the average daily one-way trips in both directions for a weekday (Monday — Friday)."
Section 7-1-2 provides in relevant part: "(d) Prohibited Uses: Uses listed with an "N" in the Use Tables, are prohibited."
Section 7-3-2 provides in relevant part: "The uses permissible in the I-LI zone are set forth in Table 7-3-2 below . . ." Table 7-3-2 lists an "N" next to high impact uses within " Waste Processing and Transfer" operations.
Notice for the April 12, 2005 meeting was properly published in a local newspaper pursuant to General Statutes § 8-7d. (ROR, Notice of Hearing 3/30/05.) In an attempt to comply with § 14-7-3(b) of the Bridgeport zoning regulations, Connecticut Transfer sent notice of the meeting to all abutting property owners; however, it did not send notice to each unit owner of the condominium complex but only to the "Hi-Ho Industrial Condominium Association." Moreover, this correspondence was returned to sender and marked "ukn 431," and no further notice was sent to the condominium association or unit owners. (ROR, Certified Mail Receipts.) Connecticut Transfer's petition for a variance was marked on the agenda for the March 8, 2005 meeting and every meeting scheduled on the prior petition, but was marked off prior to the meeting each time for various reasons. (Sup. 1, Hearing Agendas 12/14/04 and 1/11/05.) It was also marked on the agenda for the April 12 meeting, but was not heard on that date because of time constraints and was recessed until May 11, 2005. (Sup. 2, p. 20.) No additional notice was published with respect to this meeting, and the variance petition was not included on the agenda for the May 11 meeting. (Appeal, Exh. 2.)
Section 8-7d provides in relevant part: "(a) In all matters wherein a formal petition [or] application . . . must be submitted to a . . . zoning board of appeals under this chapter . . . and a hearing is required or otherwise held on such petition [or] application . . . [n]otice of the hearing shall be published in a newspaper having a general circulation in such municipality where the land that is the subject of the hearing is located at least twice, at intervals of not less than two days, the first not more than fifteen days or less than ten days and the last not less than two days before the date set for the hearing. In addition to such notice, such commission, board or agency may, by regulation, provide for additional notice. Such regulations shall include provisions that the notice be mailed to persons who own land that is adjacent to the land that is the subject of the hearing or be provided by posting a sign on the land that is the subject of the hearing, or both. For purposes of such additional notice, (1) proof of mailing shall be evidenced by a certificate of mailing, and (2) the person who owns land shall be the owner indicated on the property tax map or on the last-completed grand list as of the date such notice is mailed.
Section 14-7-3 provides in relevant part: "Review of an application for variance shall be conducted by the Zoning Board of Appeals and shall be in accordance with the following: . . . "(b) Public hearing required: Prior to disposition of an application for a variance by the Zoning Board of Appeals, a public hearing noticed in accordance with the requirements for appeals under Section 8-7 of the General Statutes shall be held. At the public hearing, all interested persons shall be given the opportunity to be heard on the proposed variance. Notice of the public hearing on an application for a variance shall be sent by the Applicant by certified mail return receipt requested to all abutting property owners at least ten days prior to the public hearing thereon."
Connecticut Transfer's variance petition was, however, heard at the May 11 meeting. Connecticut Transfer's counsel presented evidence in favor of the petition and there was no opposition. (ROR, Tr.) The zoning board, without specifying its reasons for doing so, conditionally granted the variance on May 15, 2005, from which decision NW Bridgeport appeals to this court. (ROR, Notice of Decision 5/15/05.) NW Bridgeport alleges that it owns the unit adjacent to the subject property (#2) in the complex at 560 North Washington Avenue. (Appeal, ¶ 1.)
"[I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). Appeal from the decision of a zoning board is governed by General Statutes § 8-8. Subsection (b) provides in relevant part: "[A]ny person aggrieved by of a [zoning] board . . . may take an appeal to the [S]uperior [C]ourt for the judicial district in which the municipality is located." General Statutes § 8-8(b). "Aggrieved person" is defined as "a person aggrieved by a decision of a board . . . includ[ing] 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 § 8-8(a). NW Bridgeport, as the owner of property adjoining the subject of the variance petition, is statutorily aggrieved pursuant to § 8-8(a), which the defendants do not contest.
Section 8-8(b) provides, in relevant part, that 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." Subsection (f) provides in relevant part that "process shall be served in accordance with subdivision (5) of subsection (b) of [General Statutes § ]52-57." Section 52-57(b)(5) provides that process "against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, [shall be served] 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 . . ." Subsection (g) of § 8-8(b) provides in relevant part that "[s]ervice of process shall also be made on each person who petitioned the board in the proceeding."
The board's decision was published in the Connecticut Post on May 15, 2007. (ROR, Notice of Decision 5/15/05.) NW Bridgeport commenced this appeal on May 26, 2007, by serving the "Bridgeport zoning board of appeals . . . by leaving a true and attested copy of the same with my doings thereon endorsed with and in the hands of Candace Palmer, assistant city clerk of the city of Bridgeport . . . at City Hall, 45 Lyon Terrace, Bridgeport, Connecticut . . . [and also served] Connecticut Transfer Company, LLC at its commercial establishment at 369 North Avenue, Bridgeport, Connecticut 06606." (Marshal's Return 5/26/05.) Therefore, this action was commenced in a timely fashion upon the proper parties.
"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 [the board] 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 [board] . . . 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 . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." 559-60. Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-60, 916 A.2d 5 (2007).
"Courts are not to substitute their judgment for that of the [zoning] 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." (Internal quotation marks omitted.) Santos v. Zoning Board of Appeals, 100 Conn.App. 644, 647, 918 A.2d 303 (2007). "`Where a zoning board of appeals does not formally state the reasons for its decision . . . the trial court must search the record for a basis for the board's decision . . . [and] determine whether the evidence supports the board's decision to grant the variance." (Citation omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, CT Page 10312 658 A.2d 559 (1995). "The standard of review on appeal from a zoning board's decision to grant or deny a variance is . . . whether . . . the board's act was not arbitrary, illegal or an abuse of discretion." Id., 205-06.
NW Bridgeport appeals on the grounds that Connecticut Transfer failed to establish before the board that enforcement of the zoning regulations would result in its exceptional difficulty or unusual hardship, and that the board did not expressly make this finding or a finding that the relief requested could be granted without detriment to the public welfare or impairment of the zoning regulations. NW Bridgeport argues that the record is sparse and provides no justification for the board's granting of the variance, contending that there is no evidence of anything beyond a potential economic hardship, which is insufficient to meet the requirements for a variance. Furthermore, NW Bridgeport asserts that any hardship suffered by Connecticut Transfer is not unique but equally affects similarly situated properties, and that the size or shape of a building is not the sort of hardship contemplated by General Statutes § 8-6 and § 14-7-4 of the Bridgeport zoning regulations.
General Statutes § 8-6(a) provides in relevant part: "The zoning board of appeals shall have the following powers and duties: . . . (3) to determine and vary the application of the zoning bylaws, ordinances or 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 bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed."
Section 14-7-4 of the Bridgeport zoning regulations provides: "Pursuant to Section 8-6 of the General Statutes, a variance shall be granted only if the following standards are met:
(a) the literal enforcement of the provisions of these Regulations would result in exceptional difficulty or unusual hardship;
(b) the exceptional difficulty or unusual hardship claimed results from conditions especially affecting the subject parcel but not affecting other properties in the zone in which it is situated;
(c) the exceptional difficulty or unusual hardship sought to be avoided is not the result of any prior action by the applicant;
(d) the variance asked for is the minimal deviation from the provisions of the Regulations sufficient to remove the exceptional difficulty or unusual hardship to the applicant; and
(e) relief can be granted without detriment to the public welfare or impairment to the integrity of these Regulations."
NWBridgeport also contends that, as an abutting landowner, it was entitled to personal notice of the April 12, 2005 meeting pursuant to § 14-7-3(b) of the Bridgeport zoning regulations, and that Connecticut Transfer failed to do so by mailing notice only to the condominium association, which was returned undelivered. (ROR, Certified Mail Receipts.) NW Bridgeport also contends that its right to fundamental fairness was violated by this and other notice violations, including noncompliance with certain requirements of the Freedom of Information Act, General Statutes § 1-200 et seq. The court need not address these arguments, however, since it finds that there is not substantial evidence in the record to support the granting of a variance.
The defendants counter that the shape and configuration of the building situated on the property, being extraordinarily large and open, render it unfit for any use but a debris transfer station, which is a unique hardship not shared by other properties within the zone. Furthermore, the defendants claim, the granting of the variance will not disrupt the comprehensive zoning plan for the area because the only reason a variance was required is that a debris transfer station will exceed the ten truck per day limitation of § 7-1-3(a)(2)(a) of the Bridgeport zoning regulations; however, the variance, with restrictive conditions, will avoid the traffic problems this ordinance was meant to prevent. Additionally, they point out that a number of the properties in the area currently enjoy nonconforming, high impact uses, and that the truck traffic to the area is already heavy and not likely to be greatly affected by the proposed use.
"Variances should not be used to accomplish what is, in effect, a substantial change in the uses permitted in a specific zone. The power to accomplish such a result is in the [z]oning [c]ommission." (Internal quotation marks omitted.) Bradley v. Zoning Board of Appeals, 165 Conn. 389, 395, 334 A.2d 914 (1973). "The power to vary the application of zoning regulations should be sparingly exercised." Dolan v. Zoning Board of Appeals, 156 Conn. 426, 429, 242 A.2d 713 (1968). "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." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 207. "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; emphasis added.) Id., 207-08. "Financial considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulation to the property greatly decreases or practically destroys its value for any of the uses to which it could reasonably be put and where the regulation, as applied, bears so little relationship to the purposes of zoning that, as to particular premises, the regulation has a confiscatory or arbitrary effect." Dolan v. Zoning Board of Appeals, supra, 156 Conn. 431.
The Supreme Court "[has] held that the authority of a zoning board of appeals to grant a variance under General Statutes § 8-6[(a)](3) requires the fulfillment of the two conditions:
(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." (Internal quotation marks omitted.) Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368, 537 A.2d 1030 (1988). "In order to justify a variance, the hardship must differ from the conditions that generally affect the property owners in the same area and it must arise from circumstances beyond the control of the property owner seeking the variance . . . The hardship must originate in the regulation or ordinance and arise from the application of the regulation or ordinance to the subject property." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 209-10. "[L]imitations imposed by the shape of the lot do not in themselves create a hardship." Id., 210.
There is no evidence in the record reflecting the value of the subject property, nor is there evidence that application of the zoning regulations would render it nearly worthless. The variance petition states the hardship as "the property was formerly zoned heavy industrial and built for heavy industrial purposes. Strict interpretation of the regulations will deny applicant of most appropriate use of the site." (Emphasis added.) (ROR, Petition 2/14/05.) Testimony at the May 11, 2005 hearing added little to this formulation of the hardship; counsel for Connecticut Transfer simply stated that denying the petition would "be a hardship because of the unique shape of the building . . ." and that the property "was zoned, previously zoned heavy industrial . . . prior to the zone changes and really, everything that there . . . has been build and used as heavy industrial." (ROR, Tr. pp. 2, 8.) This is insufficient to demonstrate the degree and type of hardship courts have required for the granting of variances. For example, in Grillo v. Zoning Board of Appeals, supra, 206 Conn. 362, the applicant, desiring to sell her property, requested a variance to allow the construction of a two-family home on the property since the property acreage was not large enough under the zoning regulations. The court held that, even though the property was currently worth $5,000 but would be worth $26,000 with the variance, this reflected mere financial hardship only and was not grounds for a variance. In Dolan v. Zoning Board of Appeals, supra, 156 Conn. 426, the applicant requested a variance to allow a liquor permit to be issued to a restaurant on the property; the court held that even though the property would probably be unleaseable without the liquor permit, the applicant had failed to establish sufficient hardship to warrant the granting of variance.
Moreover, there is no evidence that the property is unsuitable for other types of uses. While the most efficient or beneficial use might well be the debris transfer station, nothing in the record suggests the property would be worthless for any other purpose. Most of the testimony and evidence at the May 11 hearing revolved around the proposed station's lack of detrimental impact; (ROR, Tr. pp. 4-9); however, this does not obviate the applicant's obligation to demonstrate an extreme and unique hardship necessitating a variance. Bloom v. Zoning Board of Appeals, supra, 233 Conn. 207-08 ("Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance"). In Santos v. Zoning Board of Appeals, supra, 100 Conn.App. 652, the court upheld the denial of a variance to the plaintiff, noting that "[t]he record in the present case . . . is silent as to whether there is any alternative use for the property or the extent of the financial impact to the plaintiff as a result of the denial of the requested variance." The same circumstances exist in the present case.
The defendants claim that the fact that the property was formerly zoned heavy industrial and that a number of surrounding properties enjoy nonconforming uses make the prohibition on truck traffic a hardship for them. Purchasing property with the knowledge that it is zoned a certain way, however, is a "self-inflicted hardship" that does not allow the granting of a variance: "[T]here [is] . . . a distinction between circumstances such as those . . . where the applicant or his predecessor in interest creates a hardship such as an undersized lot, and a situation where the hardship which would justify the grant of a variance originates in the zoning ordinance itself . . . Where the applicant or his predecessor creates a nonconformity, the board lacks power to grant a variance." (Citations omitted.) Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 712, 535 A.2d 799 (1988). Although the court in Adolphson upheld the zoning board's grant of a variance, it did so because the sought-after use was less offensive to the purpose of the zoning limitations than the nonconforming use to which the applicants who had purchased the property were already entitled. Id., 713-14; see also Santos v. Zoning Board of Appeals, supra, 100 Conn.App. 652-53 (fact that plaintiff purchased property with knowledge that residential construction was prohibited by regulations because of predecessor's improper division of lot is a "self-created" hardship for which a variance is impermissible).
Additionally, it is worth noting that the trial court in Adolphson had found that "a rigid application of the regulations to the [applicants'] property would very likely cause the property to be useless, and to deny their application would be confiscatory." Adolphson v. Zoning Board of Appeals, supra, 205 Conn. 715-16.
Finally, the defendants cite Libby v. Zoning Board of Appeals, 143 Conn. 46, 118 A.2d 894 (1955) and Stapleton v. Zoning Board of Appeals, 149 Conn. 706, 183 A.2d 750 (1962), in arguing that there is an exception to the rule that financial hardship alone is insufficient where "application of a zoning regulation bears so little relationship to the purposes of zoning that, as to the property in question, the regulation is, in effect, confiscatory or arbitrary." Id., 709. Irrespective of whether the application of the use requirements to Connecticut Transfer "bears [very] little relationship to the purpose of zoning," this argument ignores the requirement that application of the zoning regulations would make the property unserviceable for any feasible purpose. In Libby, for example, the board had expressly found that the subject property would be entirely unmarketable without the variance; the court, in upholding the grant, noted that "[s]ituations will arise . . . where the application of zoning to a particular piece of property practically destroys or greatly decreases its value for any permitted use to which it can reasonably be put . . ." Libby v. Zoning Board of Appeals, supra, 143 Conn. 51. The present case does not present such a situation; as mentioned previously, the record reveals no facts suggesting that the zoning restrictions prevent Connecticut Transfer from engaging in any profitable use of the property.
Because the record does not reveal evidence by which the zoning board could reasonably have found that application of the zoning regulations would create extreme difficulty and unusual hardship for Connecticut Transfer, NW Bridgeport's appeal is sustained.