Opinion
No. FST CV 06 4008859 S
April 11, 2008
MEMORANDUM OF DECISION
The plaintiffs, William Powell and Linda Powell, have filed an administrative appeal pursuant to General Statutes § 8-8 challenging a decision by the defendant Zoning Board of Appeals of the Town of New Canaan (ZBA). In that decision the ZBA granted certain variances to Cristina Ross ("Ross") with respect to her property located at 523 Oenoke Ridge Road. As the successful applicant, Ross is also a defendant in this appeal.
The variances granted by the ZBA would allow Ross to have a residential structure known as the "Alice Ball House" remain in its present location and be used as a pool house, allow Ross to construct a pool adjacent to the Alice Ball House and allow her to construct a new principal residence in the rear of her property.
Under the New Canaan Zoning Regulations (ROR #21) (the "Regulations") the Ross property is placed in the Two-Acre Residence Zone. Ross sought a variance from the application of Section 3.4.B.4.b of the Regulations (which provides that swimming pools may be not located within a front yard) and Section 3.4.B.5.b of the Regulations (which provides that a pool house or a similar structure may not be located with a front yard). Section 2.2 of the Regulations defines "Yard, Front" as "A yard extending across the full width of the lot and situated between the principal building and the street line of the lot."
The Alice Ball House, presently the principal residence on the Ross property, was erected in several phases. The first phase was a 1953 residence, designed by the noted architect Philip Johnson, constructed of concrete and block and approximately 1,400 square feet in floor area. In subsequent phases, additions designed by other architects were added to the original structure. Ross proposes to remove the additions, restoring the Alice Ball House to its original appearance and to use that structure as a pool house. (ROR #3, #18.) A new principal residence would be erected on the rear of the Ross property. The placement of the new residence on the rear of the property would result in the pool house (the Alice Ball House) and the proposed swimming pool being located between the principal building and Oenoke Road in the area designated as the "Front Yard" under the New Canaan zoning regulations. (ROR #14.) A variance of Section 3.4.B.4.b of the Regulations is needed to permit the pool to be constructed in the proposed location and a variance of Section 3.4.B.5.b of the Regulations is needed to permit the Alice Ball House to be retained in its present location and used as a pool house. Because of its materials used in the construction of the Alice Ball House that structure cannot be relocated to another portion of the Ross property.
The plaintiffs own a rear lot with an address of 537 Oenoke Ridge Road. Their residence is located behind the Ross property and their lot abuts the Ross property on its north and east sides. The plaintiffs were found to be statutorily aggrieved pursuant to General Statutes § 8-8(a)(2)(b) at a hearing held in this court on March 27, 2008. That statute provides, in relevant part, "any person aggrieved by a decision of a board may take an appeal . . ." The plaintiffs fit the definition of an "aggrieved person" in § 8-8(a)(1) since they own "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."
Variances of the New Canaan zoning regulations are authorized by Section 8.3.C.1 of the Regulations which provides:
In accordance with CGS 8-6, the Board shall have the power and the duty to determine and vary the application of the Regulations 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 these Regulations would result in exceptional difficulty or unusual hardship.
This section of the New Canaan regulations closely tracks General Statutes § 8-6 permitting a variance is to be granted if a literal enforcement of the zoning law would cause "exceptional difficulty or unusual hardship" because of some specific condition affecting a parcel of land.
Under the New Canaan Zoning Regulations, the Alice Ball House is a "Modern House." Section 2.2 of the Regulations define that term as "A structure built in the style of the Modern Movement, generally between 1947 and 1968, which is identified on a list of Modern houses maintained by the New Canaan Historical Society." Section 3.6.A.1. of the Regulations provides: "In order to encourage the preservation and architectural integrity of Modern houses, the Commission may, by Special Permit, allow a minimum area or dimensional requirement (such as minimum yard setback) to be reduced or a maximum area or dimensional requirement (such as maximum building coverage) to be exceeded . . ." However, Section 3.6.A.2. requires: "Any Special Permit granted by the Commission shall only remain effective so long as the Modern house is preserved and maintained as the principal structure on the property."
It is not clear that Sections 3.4.B.4.b. and 3.4.B.5.b., prohibiting, respectively, the placement of a swimming pool and a pool house in a "front yard," would be considered to be "dimensional requirement[s]" which could waived by the Commission under a Special Permit issued pursuant to Section 3.6.A.1. However, Ross' proposal envisions the construction of a new principal residence. Under these circumstances, it is clear that the status of the Alice Ball House as a Modern House did not provide Ross with an avenue for obtaining relief from the application of Sections 3.4.B.4.b. and 3.4.B.5.b. and therefore required that she obtain variances in order to implement her plan.
The record includes the New Canaan 2003 Plan of Conservation Development adopted by the New Canaan Planning and Zoning Commission. (ROR #22.) The "Overview" section of Chapter 6, entitled Historical Resources, states: "Preservation of historic or significant buildings and sites is an important way for New Canaan to provide a sense of identity and stability, preserve community character, and enhance the Town's historical heritage. New Canaan is a unique community in terms of historic preservation because:
it established the second local historic district in Connecticut (after Litchfield), and
it is home to over 80 "Modern" houses built by world-famous architects between 1948 and 1968.
The chapter includes a map showing the location of the "Modern" homes in New Canaan including the Alice Ball House. Among the goals set forth in Chapter 6 is " Protect the `Modern Houses.'" That portion of the Plan of Conservation Development states:
New Canaan contains a significant concentration of "Modern Houses" — acclaimed and award-winning houses built between 1947 and 1968 — designed by a group of world famous architects. According to knowledgeable sources, New Canaan has arguably one of the most important concentrations of Modern Movement residential architecture in the country. An inventory by the New Canaan Historical Society found that almost 100 "Modern" houses has been built in New Canaan but that only about 85 remain. People come to New Canaan to see the "Modern" houses and reflect on their role in architecture and design. While these houses do not represent the mainstream of what many people in New Canaan consider to be a historical resource, their national (and international) importance is expected to increase over time. The fact that there is such a significant concentration in New Canaan calls for promulgation of strategies to help preserve these resources.
Ross' application for variances was approved by the ZBA on March 6, 2006 with conditions. The resolution approving the application the ZBA did not identify the hardship which the ZBA found justified the granting of the variances. (ROR #7, #9.) However, the return of record from the ZBA includes a preprinted form entitled "Chairman's Checklist" which sets forth the votes of the members and the other relevant information. (ROR #16.) In answer to item #5. ("What is the nature of the claimed hardship?") the chairman filled in "Wetlands." In answer to item #8 ("Hardship?") the chairman filled in "Wetlands preservation Modern House in accordance with POCD Zoning Regs." In addition the minutes of the ZBA for March 6, 2006 approving the variances (ROR #2) includes the statement: "The hardship is wetlands."
Plan of Conservation and Development.
The plaintiffs' complaint alleges that the ZBA did not have the authority to grant the variances because Ross failed to show the exceptional difficulty or unusual hardship. Thus, both the municipal regulations and the state statute mandate a finding that the property in question is in some way sufficiently unique as to warrant an exception to the literal enforcement of the zoning ordinance. The case law on the subject of variances confirms that "[a] local zoning board can only grant a variance if adherence to the strict letter of the zoning ordinance [is] shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan." (Emphasis deleted; internal quotation marks omitted.) Wnuk v. Zoning Board of Appeals, 225 Conn. 691, 697 (1993). "Proof of hardship is . . . a condition precedent to granting of a variance, and such hardship must arise from the circumstances or conditions beyond the applicant's control." Eagan v. Zoning Board of Appeals, 20 Conn.App. 561, 563 (1990). If, on the other hand, "the claimed hardship arises from the applicant's voluntary act, a zoning board lacks power to grant a variance." Abel v. Zoning Board of Appeals, 172 Conn. 286, 289 (1977). "Personal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of the variance." Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239-40 (1972). "In reviewing the actions of a zoning board of appeals we note that such a 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 (1994). "Courts must not substitute their judgment for that of the zoning board and must not disturb decisions of local boards as long as honest judgment has been reasonably and fairly exercised after a full hearing." (Internal quotation marks omitted.) Fernandes v. Zoning Board of Appeals, 24 Conn.App. 49, 53, cert. granted on other grounds, 218 Conn. 906 and 218 Conn. 909 (1991).
It is also axiomatic that a plaintiff has the burden of proving that a zoning board of appeals has acted illegally, arbitrarily or in abuse of its discretion. Id., 55. Moreover, if any one of the reasons advanced by an agency is sufficient to support its granting of a variance, then its decision must be upheld. Sakson Nurser, Inc. v. Planning and Zoning Board of Appeals, 30 Conn.App. 627, 629-30, cert. denied, 226 Conn. 908 (1993). "When an administrative agency specifically states its reasons, the court should go no further because it could reasonably be inferred that this was the extent of its findings. To go beyond those stated reasons invades the factfinding mission of the agency by allowing the court to cull out reasons that the agency may not have found to be credible or proven." Gibbons v. Historic District Commission, 285 Conn. 755, 771 (2008).
The court's only role is to search the record to determine whether the ZBA's conclusion was reasonably supported by the record, but not attempt to weigh the evidence or determine issues of fact. Farrington v. Zoning Board of Appeals, 177 Conn. 186, 190 (1979). Moreover, "[t]he hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance . . . and arises directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved. [S]elf-inflicted or self-created hardship . . . is never considered proper grounds for a variance." (Citations omitted; emphasis deleted; internal quotation marks omitted.) Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39-40 (1982). It is also well recognized, however, that "[i]n light of the existence of a statutory right of appeal from the decisions of local zoning authorities . . . a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty." Quality Sand Gravel, Inc. v. Planning Zoning Commission, 55 Conn.App. 533, 537 (1999).
A review of the record reveals that there is substantial evidence to support the ZBA's action. Substantial portions of the Ross property are located within mapped wetlands or within required setbacks from the wetland boundaries. (ROR #10, #11, #18, #20.) The areas of the property where a structure could be erected consist of the small area in which the Alice Ball House is located and a larger area in the rear of the property. It was logical for the ZBA to conclude that these conditions constituted a hardship or practical difficulty justifying the placement of a swimming pool and pool house in the smaller area and the principal residence in the larger rear area. The variances granted by the ZBA will not permit a more intensive development of the Ross property.
The plaintiffs claim that the hardships facing Ross are self-created. They claim that the conditions upon which she relies (i.e. the wetlands and the existence of the culturally significant Alice Ball House) existed when Ross brought her property. They claim that the ZBA is precluded from granting Ross relief from those conditions under the authority of Abel v. Zoning Board of Appeals, 172 Conn. 286, 289-91 (1977), and Devaney v. Board of Zoning Appeals, 132 Conn. 537, 544(1946). In Abel the court reversed the trial court and sustained an appeal from the decision of the board granting a variance of lot size requirements when the applicant knew that the lot was undersized and designated as a park when she purchased the property. The court held, "It is well settled that self-inflicted or self-created hardship . . . is never considered proper grounds for a variance." 172 Conn. at 289 (internal quotation marks omitted.) In Devaney the court upheld the trial court which had sustained an appeal from the decision of the board to grant a variance permitting a restaurant in a residential zone. The court found that the applicant had purchased his property with full knowledge that the use was not a permitted one in the zone and that accordingly the board could not grant the requested variance.
"Where the claimed hardship arises from the applicant's voluntary act . . . a zoning board lacks the power to grant a variance is well established that a hardship that is self-created is never a proper [ground] for a variance." (Citations omitted; internal quotation marks omitted.) Aitken v. Zoning Board of Appeals, 18 Conn.App. 195, 205-06 (1989). "One specific type of voluntarily assumed hardship is embodied in what has been termed `the purchase with knowledge rule.' . . . Under that rule, if a purchaser acquires property with knowledge of the applicable zoning regulations and later attempts to use that property in a manner that is proscribed by the regulations, the purchaser is barred from obtaining a variance." Kalimian v. Zoning Board of Appeals, 65 Conn.App. 628, 632, cert. denied, 258 Conn. 936 (2001). In Kalimian, the court reversed the judgment of the trial court sustaining the grant of a variance permitting the applicant to conduct a manufacturing operating on property within a residential zone.
The court does not find the plaintiffs' argument persuasive. The claimed hardships in Abel, Devaney and Kalimian arose out of the applicant's wish to put their properties to uses not contemplated under the regulations. In this case the uses to which Ross wishes to make of her property are permitted under the regulations. The regulations contemplate that a principal residence as well as a pool and a pool house could be constructed on the property. It is only the proposed location of these improvements that gives rise to the conflict with the regulations which required Ross to seek variances.
Were the court to accept the plaintiffs' claim of self-created hardship it would be establishing a new principle of zoning law that only the person who owns the property at the time of the original enactment of the zoning provision has standing to claim a hardship on the basis of the application of that provision to his property. This is not the law. Hardship, particularly those arising out of topography or wetlands conditions are "not personal to [the owner] and would exist no matter who owned the lot." Stillman v. Zoning Board of Appeals, 25 Conn.App. 631, 636, cert. denied, 220 Conn. 923 (1991). A zoning board may not grant a variance when the claimed hardship arises from the applicant's voluntary act. Dupont v. Zoning Board of Appeals of Manchester, 80 Conn.App. 327, 330 (2003). In this case Ross did not perform any act which caused the hardship she now faces. The hardship is one that originated in the zoning ordinance, and arises directly out of the application of the ordinance to circumstances beyond the control of the applicant. Aitken v. Zoning Board of Appeals, 18 Conn.App. at 206. The court rejects the plaintiffs' claim that the hardship is self-created or self-imposed.
The record does not contain any evidence that the district or neighborhood in which the Ross property is situated is generally affected by wetlands conditions similar to those affecting the Ross property. A map included in the Plan of Conservation and Development indicates the presence of several "Modern Houses" in the immediate vicinity of the Ross property; however the record does not reflect that the location of these "Modern Homes" on their respective lots presents the same exceptional difficulties as those which the ZBA found to affect the Ross property. The court concludes that the record supports the decision of the ZBA to grant the requested variances.
The plaintiffs also argue that the ZBA's grant of variances to Ross was improper because she had not obtained approvals from the Environmental Commission. Such approvals would be required in order to permit Ross to place a driveway across wetlands areas to reach the site of the new residence she proposed to construct on the rear of her property. The plaintiffs reason that because the approval of the Environmental Commission was necessary before Ross could execute her plan, the ZBA "premised" its approval on the mistaken assumption that Environmental Commissions approvals would be forthcoming. The plaintiffs rely on cases such as Riverbend Assoc., Inc. v. Planning Commission of Simsbury, 271 Conn. 41, 64-65 (2004) (in which the Supreme Court found that it was not unreasonable for a planning commission to deny a subdivision application when it was not clear that sewer approvals could be obtained in the foreseeable future), and Wilson v. Planning and Zoning Commission of Manchester, 162 Conn. 19, 24-25 (1971) (in which the Supreme Court found that a planning commission could not approve of a change of zone premised on off-site highway improvements which were not imminent and over which the commission had no control). The plaintiff's reliance on these cases is misplaced. The record makes it clear that the ZBA did not assume that wetlands approvals from the Environmental Commission would be forthcoming. There is nothing in the record to suggest that the approval of the variances by the ZBA was conditioned upon the actions of the Environmental Commission.
The court finds that the ZBA did not act arbitrarily, illegally or unreasonably in granting variances to Ross. Accordingly, the court dismisses the plaintiff's appeal.