Opinion
No. CV08 402 44 79
January 29, 2010
MEMORANDUM OF DECISION
On February 12, 2008, the plaintiff, Stephanie Oswiany, Executrix of the Estate of Mary Ostrofsky, filed an application with the Fairfield Zoning Board of Appeals (board) seeking variances from the minimum building lot size restriction and the minimum square restriction on the estate's property located at 779 High Street. Appropriate notice of the public hearing was published. Following a public hearing on March 6, 2008, the board denied the application. Notice of the board's decision was published in the Fairfield Citizen-News on March 12, 2008. The plaintiff commenced this appeal on March 26, 2008, by valid service of process upon the board. The appeal is timely.
The plaintiff estate, as owner of the subject property, claims to be aggrieved because denial of the use of the property as a building lot is confiscatory. It alleges that the denial of the variance was illegal, arbitrary and an abuse of the board's discretion in that: the board failed to state on the record the reason for its decision and the regulation it refused to allow to be varied; the record does not support or justify the decision even though the plaintiff applicant presented "ample and convincing evidence of unusual hardship or exceptional difficulty" at the public hearing; and the board failed to give sufficient weight to similar circumstances on adjoining or nearby property. The parties were heard before this court on December 7, 2009.
Aggrievement is a jurisdictional question and is a prerequisite to maintaining an appeal. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1991). An owner of property that is the subject of an application is aggrieved. Id., 308. The estate is aggrieved as the record owner of the property that is the subject of the application for variances denied by the board.
"The standard of review on appeal from a zoning board's decision to grant or deny a variance is well established." (Internal quotation marks omitted.) Moon v. Zoning Board of Appeals, 291 Conn. 16, 23, 966 A.2d 722 (2009). The court must find 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 . . . The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Internal quotation marks omitted.) Id., 24. "In order to determine whether the board properly granted the subject variance, [the court] must first consider whether the board gave reasons for its action . . . 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." (Internal quotation marks omitted.) Id., 25.
In the present case, the individual members of the board discussed reasons for denying the plaintiff's variance, but the board did not state a collective, official reason for its action. Accordingly, the resolution of the plaintiff's claim requires a detailed examination of the record in search of a basis for the board's conclusion.
The estate owns an undeveloped lot located at 779 High Street (the property) that is 55 feet in width and 140 feet in depth. The lot appears on the Forest Heights map and was adopted as a building lot in 1940, prior to the 1948 adoption of subdivision regulations by the Fairfield planning and zoning commission. Under that town's regulations, if a lot was approved by the planning and zoning commission prior to the adoption of formal subdivision regulations in the 1950s, as this one was, the lot could not be "grandfathered" as a building lot.
"A vacant lot which existed prior to the enactment of the zoning regulations or which becomes nonconforming due to a change in the zoning regulations, is not protected as a nonconforming lot from the existing zoning regulations unless it is a subdivision lot exempted from the change under § 8-26a of the General Statutes or by a provision in the zoning regulations (usually under nonconforming uses) of the municipality protecting such lots from changes in the regulations. R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 53:3, p. 240." (Internal quotation marks omitted.) Cimino v. Zoning Board of Appeals, 117 Conn.App. 569, 578, 979 A.2d 1048, cert. denied, 294 Conn. 914, 983 A.2d 849 (2009).
No such applicable zoning regulation pertaining to nonconforming lots has been brought to the court's attention.
The property is located in A Zone, in which the only permissible use is single detached dwellings for one family. Pursuant to section 5.1.1 of the zoning regulations, a valid building lot must be at least 9,397 square feet and must contain a square of 75 feet on each side. The plaintiff applied for a variance to validate the property as a building lot for a single family dwelling. The lot is 7,700 square feet and had a square of 55 feet on one side. To validate the lot would thus require that the board grant two variances from section 5.1.1 of the zoning regulations. The estate also owns the adjacent parcel located at 797 High Street, also in A Zone, on which is a single-family home. The adjacent parcel is 85 feet in width and shares a 140-foot common boundary with the subject property.
The defendant argues that in its application to the board, the plaintiff failed to carry its burden to establish hardship or to prove that the zoning regulations virtually destroyed the value of the property. The defendant argues further that because the board could have found that the plaintiff's two lots had merged, its decision to deny the variance must stand. Finally, it maintains that granting the requested variances would impair the comprehensive plan.
The plaintiff maintains that because there has been a confiscation of its property rights, it was not required to make a showing that the regulation virtually destroyed the value of the lot. The plaintiff's claim of "classic" hardship is that this lot was once approved as a building lot, but subsequent zoning and subdivision regulations prevent the use of this property for the construction of a single-family home unless the board grants a variance. The lot has been assessed as a separate building lot, and the family has paid taxes to the town based on that assessment for generations. It is the only lot on the block that has not been developed, and six of the twelve lots that have been developed on the west side of High Street since 1947 were done so with similar variances that were approved by the board or its predecessors.
Regarding the defendant's merger argument, the plaintiff responds that the board made no finding of merger and that doctrine of merger only applies when both lots are nonconforming. Here, it maintains, the adjacent parcel exceeds the requirements for a residential lot in the zone and has been developed as a single family lot for over 67 years, and there has been no showing of an intent to merge the lots.
"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(a)(3)] 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." (Internal quotation marks omitted.) Moon v. Zoning Board of Appeals, supra, 291 Conn. 24-25.
Section 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 . . ."
"Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship . . . It is well established that the power to grant a variance should be sparingly exercised . . . Furthermore, we emphasize that [v]ariances cannot be personal in nature, and may be based only upon property conditions . . . [T]he basic zoning principle that zoning regulations must directly affect land, not the owners of land . . . limits the ability of zoning boards to act for personal rather than principled reasons, particularly in the context of variances." (Citations omitted; internal quotation marks omitted.) Garlasco v. Zoning Board of Appeals, 101 Conn.App. 451, 462, 922 A.2d 227, cert. denied, 283 Conn. 908, 927 A.2d 917 (2007).
"Disadvantage in property value or income, or both, to a single owner of property, resulting from application of zoning restrictions, does not, ordinarily, warrant relaxation in his favor on the ground of . . . unnecessary hardship . . . Financial considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations 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 regulations, as applied, bear so little relationship to the purposes of zoning that, as to particular premises, the regulations have a confiscatory or arbitrary effect . . . Zoning regulations have such an effect in the extreme situation where the application of the regulations renders the property in question practically worthless." (Citation omitted; internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 561-62, 916 A.2d 5 (2007).
In the present case, the plaintiff maintains that because only single family residences are permitted in the residential A zone, the board's denial of the variance application amounts to a practical confiscation of its property. The plaintiff relies primarily on Archambault v. Wadlow, 25 Conn.App. 375, 594 A.2d 1015 (1991), for the proposition that these facts relieve it of the burden of having to demonstrate that the application of zoning regulations to its property greatly reduces or practically destroys the value of the property. In Archambault, the trial court held that the board's refusal to grant a variance constituted a practical confiscation of the plaintiffs' land. Id., 377. The Appellate Court, in upholding the trial court's decision, noted: "The R-20 residential zone at issue permits the construction of single-family homes only. As the trial court pointed out, the record does not indicate any reasonable use for the land other than for the construction of a single-family home. Thus, without a variance from the setback requirements enabling the plaintiffs to build the dwelling, the value of the plaintiffs' land is significantly diminished. Because there are no alternative uses for the plaintiffs' property, the board's action amounts to a practical confiscation." Id., 383. In Archambault, the lot was protected as a preexisting nonconforming lot under the applicable city zoning regulations. Id., 380. The case is thus distinguishable from the present matter. See note one of this opinion.
The weight of appellate authority suggests that a showing that the only use permitted in a zone is the construction of a single-family residence, without more, is insufficient to demonstrate that there are no alternative uses for the property or that a hardship exists. See, e.g., Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994) (plaintiff failed to establish hardship when only evidence of unusual or unique nature of alleged hardship was his statement that property was only undeveloped lot in area); Garlasco v. Zoning Board of Appeals, supra, 101 Conn.App. 457 (plaintiff failed to establish hardship because he had not shown that construction of single-family home was only reasonable use of property nor submitted any evidence that value of his property had been decreased greatly or destroyed); Grillo v. Zoning Board of Appeals, 4 Conn.App. 205, 206, 493 A.2d 275 (1985) (owner failed to establish hardship when record devoid of any evidence to establish that subject property has little or no value and when hardship alleged was that all other lots on street are undersized lots).
The burden is on the plaintiff to demonstrate hardship, which can include a showing that there are no alternate uses for the property even in its undeveloped state. See, e.g., Grillo v. Zoning Board of Appeals, 206 Conn. 362, 370-71, 537 A.2d 1030 (1988) (fact that unimproved lot would be more valuable as buildable lot does not mean it is valueless because lot could be used as side yard to enhance value of adjoining property); Norwood v. Zoning Board of Appeals, 62 Conn.App. 528, 535, 772 A.2d 624, 629 (2001) (holding that denial of variance did not amount to practical confiscation of lot when lot could have value as addition to abutting lot); Hoffer v. Zoning Board of Appeals, 64 Conn. App. 39, 44, 779 A.2d 214 (2001) (holding that plaintiff failed to establish hardship when property possessed value as recreational property). But see Pike v. Hampton, 31 Conn.App. 270, 275-76, 624 A.2d 909 (1993) (distinguishing Grillo when no indication that lot has value as side yard to adjoining property owners but rather was bounded on three sides by roads and record otherwise disclosed unusual hardship).
Although evidence that houses in the area received similar variances is helpful to show that the variance, if granted, will not affect substantially the comprehensive zoning plan as required by the first prong; see, e.g., Eagan v. Zoning Board of Appeals, 20 Conn. App 561, 564, 568 A.2d 811 (1990) (upholding board decision to grant variance when there was evidence that many houses in immediate area of applicant's property were built on lots of same size or smaller than applicant's and built with setbacks of same distance as that proposed by applicant); the existence of similar lots makes it difficult or impossible to prove unusual or unique hardship. See R. Fuller, 9 Connecticut Practice Series: Land Use and Practice (3d Ed. 2007) § 9:2 p. 240. "[T]he hardship must be different in kind from that generally affecting properties in the same zoning district . . ." Curran v. Zoning Board of Appeals, 117 Conn.App. 458, 464, 979 A.2d 599 (2009) (holding that record did not contain substantial evidence to support trial court's finding of hardship when board never discussed hardship and record contradicted that finding). See also, e.g., Hoffer v. Zoning Board of Appeals, supra, 64 Conn.App. 43 (prior granting of variances to others has no bearing on whether there was hardship for particular variance requested); Haines v. Zoning Board of Appeals, 26 Conn. App. 187, 191, 599 A.2d 299 (1991) (prior granting of variance to lot owner on same street in virtually identical situation is not valid basis for granting particular variance).
That the plaintiff has paid taxes on the lot as an undersized building lot does not constitute a hardship. In Spencer v. Zoning Board of Appeals, 15 Conn.App. 387, 544 A.2d 676 (1988), the plaintiff owned two adjacent residential lots totaling 12,500 square feet on which was a single residential building situated partly on each lot. Id., 388. The board denied the plaintiff's petition for two variances from the zoning district's 7,500-square-foot area requirement for building lots. Id., 389. The plaintiff argued that the board's refusal to grant a variance works an unusual hardship because the plaintiff must pay tax on both lots without having the right to build a second dwelling on the parcel. Id., 391. The Appellate Court disagreed, noting: "The plaintiff's argument, though characterized as a hardship emanating from the taxation of the double lot, is little more than an argument that the zoning regulations prevent maximum economic utilization of the parcel." Id., 391. See also Norwood v. Zoning Board of Appeals, supra, 62 Conn. App. 536 (holding that trial court properly concluded that plaintiff's claimed hardship was insufficient when plaintiff argued that it is burdened with town's separate taxation of lots without benefit of having separate buildable lots).
In sum, the fact that the plaintiff's property lies in a residential zoning district and cannot meet certain zoning requirements in order to construct a single family home is insufficient to support its argument that the board's denial of the variance application deprives it of the reasonable use of its property and amounts to a practical confiscation. The other evidence, including that the parcel was taxed as an undersized building lot and that similarly situated properties had received the same variances, is similarly insufficient to demonstrate a hardship. The record contains substantial evidence that the plaintiff failed to meet its burden of establishing a hardship. This is a sufficient basis for the board's denial of the variance application and a sufficient ground for this court to deny the plaintiff's appeal.
"Merger occurs in two situations. In the absence of a change in the zoning provisions, merger is determined by a party's intent to treat multiple lots as a single property . . . Additionally . . . merger may be found to exist by operation of law, where a town changes zoning ordinances to implicitly or explicitly merge nonconforming lots with contiguous land owned by the same owner . . . Once merged, the lots form one lot that meets or more closely approximates the zoning requirements and the separate lots lose their exception for nonconformance." (Citations omitted; internal quotation marks omitted.) Laurel Beach Ass'n. v. Zoning Board of Appeals, 66 Conn.App. 640, 653, 785 A.2d 1169 (2001). "An intent on the part of the owner to [merge contiguous parcels to form one tract] may be inferred from his conduct with respect to the land and the use which he makes of it . . . Intent is a question of fact." Molic v. Zoning Board of Appeals, 18 Conn.App. 159, 164, 556 A.2d 1049 (1989). In that case, the court found that the trial court had "erred by substituting its judgment for that of the board regarding whether a subdivision approval was required, and by deciding that a merger had occurred in the absence of an applicable zoning regulation regarding such merger. Id., 165-66.
In the present case, neither party has submitted evidence to demonstrate that Fairfield has an ordinance which provides that nonconforming lots merge with contiguous land owned by the same owner, nor has the existence of any such ordinance been argued. The defendant has argued instead that the plaintiff intended to treat multiple lots as a single property. As evidence of this intent, the defendant argues that the plaintiff failed to keep the lots in different names, which would have defeated merger. The defendant also maintains that for as long as the plaintiff owned the property, it had been used as a side yard. There was no testimony during the public hearing regarding use of the property as a side yard or any other use, and no evidence of such use can be found in the record. The plaintiff argues that the family has held the property as a separate parcel; the lot has been taxed and assessed as a separate parcel; and the plaintiff has not sought to have it combined with the adjacent parcel which would reduce its assessed value.
Compare Garlasco v. Zoning Board of Appeals, supra, 101 Conn.App. 454 n. 3 (quoting ordinance which provided that "when any two adjoining lots or parcels are owned by the same person(s), and either lot or parcel does not meet current lot frontage or lot area requirements under these Regulations, the adjoining lots or parcels shall be deemed to have merged and shall be considered a single lot or parcel for purposes of these Regulations").
During the executive session, there was a brief discussion of and confusion about whether the lots had merged and what the implications of merger would be, although the word merger was never used. (ROR, Item #5A.) It is unclear whether the commissioners were discussing `merger,' whereby the two lots would be treated as a single, larger lot, and that would be a sufficient remedy for any alleged hardship, or whether they contemplated that, by `combining' the properties, the plaintiff could create two conforming building lots and whether it owned sufficient property to accomplish that. On this record, it cannot be said that the board found that the lots merged or that it denied the plaintiff's application for that reason. Compare Santos v. Zoning Board of Appeals, 100 Conn.App. 644, 648 n. 3, 918 A.2d 303, cert. denied, 282 Conn. 930, 926 A.2d 669 (2007) (declining to consider merger issue and deciding only whether trial court properly upheld board's decision to deny variance when minutes of meeting at which variances were denied do not mention merger, only that rear lot was illegally created and that there was no hardship).
"Commissioner: `They have some remedy in that they do own a larger lot next door. It could be considered to be combined. It's the same estate. It's a nonrelated issue. I just don't feel . . . another small lot would benefit this neighborhood.'
Commissioner: `If they did that, and don't hold me to it though because I really didn't look at it that way, they might very well be creating two nonconforming lots.'
Commissioner: `I don't think they have enough on the other one. They have 11,000 feet.'
Commissioner: `No, the other one's[].'
Commissioner: `Is it? Okay. I'll put it to a vote.'" (ROR Item #5A.)
The plaintiff argues because the board failed to state any reason for its denial of the variance application, its appeal must be sustained. General Statutes § 8-7 requires that the board state upon its records the reason for its decision to deny the variance application. As our Supreme Court has noted consistently: "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." Moon v. Zoning Board of Appeals, supra, 291 Conn. 25. Accord Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995); Grillo v. Zoning Board of Appeals, supra, 206 Conn. 369. Accordingly, the board's failure to state upon its records the reason for its decision to deny the variance is not a sufficient justification for the court to sustain the plaintiff's appeal.
Section 8-7 provides, in relevant part: "Whenever a zoning board of appeals grants or denies any . . . variance in the zoning regulations applicable to any property . . . it shall state upon its records the reason for its decision . . . and, when a variance is granted, describe specifically the exceptional difficulty or unusual hardship on which its decision is based."
Because the plaintiff failed to demonstrate hardship, the plaintiff's appeal is denied.