Opinion
No. CV 02-0468346 S
July 23, 2003
MEMORANDUM OF DECISION
These consolidated appeals concern applications for variances regarding three contiguous properties in downtown New Haven.
The three properties are 205 Church Street 215 Church Street, and 250-76 Orange Street.
The Defendant, Independence Realty — New Haven, Limited Partnership (Independence Realty) proposes to construct a 771 space public parking facility utilizing the three parcels.
Independence Realty owns 205 Church Street, while 215 Church Street is owned by 215 Church Street, LLC, and 250-76 Orange Street is owned by a separate entity, 59 Elm, LLC.
Three applications for variances were filed (ROR D, ROR E and ROR F), with the Defendant Board of Zoning Appeals of the City of New Haven, reflecting the separate ownership of the parcels.
The Defendant, Independence Realty, the proposed developer, obtained written authorization to pursue the variance requests on behalf of 215 Church Street, LLC (ROR G), and 59 Elm, LLC (ROR H).
The proposed 10 level garage would be constructed in an area currently used for surface parking, and would have access to both Orange Street and Elm Street.
The three parcels which are located in a developed area of New Haven are in a Central Business (BD) Zoning District.
A parking garage is a permitted use in the Central Business District.
In order to obtain approval for the parking garage, multiple variances CT Page 8453-fa are required from the Defendant Board of Zoning Appeals.
All three parcels require side yard variances of the requirements imposed by § 43.F.2 of the New Haven Zoning Ordinances, and rear yard variances regarding § 43.F.3 of the zoning regulations. A side yard of zero feet is mandated, if the building is constructed along the property boundary. Because the proposed 10 story structure is 117 feet tall, a side yard of 30 feet is required by the ordinance, since the structure did not adhere to the property line.
Section 43.F.2 — "Side yards: There shall be no side yard required in any Business or Industrial District, except that in any case where a side yard is actually provided, such side yard shall be required to be not less than five feet for a building wall having an average height of 20 feet or less, and not less than 1 for every 4 feet of average height for a building wall having an average height of more than 20 feet."
Section 43.F.3 — "Rear yards: There shall be a rear yard in all Business and industrial Districts of not less than 10 feet for a building wall having an average height of 30 feet or less and not less than 1 foot for every 3 feet of average height for a building wall having an average height of more than 30 feet."
Based upon the proposal, as submitted, a rear yard setback of 39 feet is required.
In 1963, a variance required for the construction of a parking garage was granted, covering 205 Church Street, by the Board of Zoning Appeals (ROR T, p. 6-7; Supplemental ROR).
A separate variance, applicable only to 205 Church Street is required, based upon the Minimum Floor Area Ratio (FAR) applicable to that property, pursuant to § 43.B.1 of the zoning ordinances.
Minimum Floor Area Ratio (FAR) — "The ratio of the gross floor area to the principal building or principal buildings on a lot to the total lot area."
The FAR for 205 Church Street is 11.0 where 6.0 is required in a BD zone.
Many of the side yard and rear yard variances requested are interparcel variances which are required only because the parcels retain separate owners, and variances must be obtained for each individual parcel.
The Floor Area Ratio (FAR) variance would not be necessary, if' the parcels were combined.
The FAR when computed for the entire area of the proposed parking garage is 5.19, well below the maximum (ROR M, p. 4).
A public hearing concerning all of the requested variances was conducted by the Board of Zoning Appeals on July 9, 2002. (ROR T).
At the hearing, Independence Realty argued that the properties were subject to a hardship resulting from the size, shape and irregularity of the parcels, and because the footprint of the garage could not run along the property lines. (ROR T, p. 7-8).
The need for an adequate turning ratio was also explained, given the need to integrate the garage into the densely developed downtown area. CT Page 8453-fb
Reports were received from the City Plan Commission (ROR M) and the Traffic and Parking Department of the City of New Haven (ROR L).
The board also was presented with a traffic study (ROR N).
The City Plan Department Advisory Report recommended approval of the requested variances, describing them as "technical" and further found that the proposal was in harmony with the general purposes of the zoning ordinances (ROR M, p. 4).
The report of the Traffic and Parking Department, while questioning aspects of the garage design, found the concept of the variances acceptable, and offered no objection (ROR L).
The proposal was supported by a member of the New Haven Board of Aldermen, and business interest in the downtown area, who spoke of the need for additional parking facilities (ROR T, p. 38-42).
A representative of the Quinnipiack Club opposed the proposal, citing the alleged lack of a legal hardship, and the appearance of the design wall which would face the Quinnipiack Club property at 221 Church Street (ROR O).
On August 1, 2002, the Defendant Board of Zoning Appeals unanimously voted 5-0 to approve all of the requested variances, citing the City Plan Department Report, and the difficulty of constructing a building on the three properties (ROR W).
Hardship was found, consistent with the City Plan Department Report, which cited the "physical constraints imposed by the size, shape and irregularities of the site."
The hardship, as found by the board, was determined to affect the three parcels, as distinct from the surrounding parcels. (ROR W, p. 2).
From that decision, the Plaintiff, Quinnipiack Club, brings three appeals, one relating to each of the parcels which were the subject for the variance applications. CT Page 8453-fc
Because the cases involve common issues of law and fact, they were consolidated for purposes of these proceedings.
AGGRIEVEMENT
The Plaintiff The Quinnipiack Club, Inc., a/k/a Quinnipiack Club, is the owner of property located at 221 Church Street, which abuts the property which is the subject of these appeals.
The Plaintiff has owned the property at all times during the course of this appeal.
Section 8-8 (a) (1) of the General Statutes defines an "aggrieved person" to mean one "owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an appeal. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996); Winchester Woods Association v. Planning Zoning Commission, 219 Conn. 303, 307 (1991).
The question of aggrievement is one of fact. Hughes v. Town Planning Zoning Commission, 156 Conn. 505, 508 (1968).
Richard Michaud, a member of the Quinnipiack Club, Inc., testified concerning ownership of property abutting the subject parcels.
It is therefore found that the Plaintiff, The Quinnipiack Club, Inc., is aggrieved by the decision of the Defendant Board of Zoning Appeals of the City of New Haven, from which this appeal is prosecuted.
STANDARD OF REVIEW
In discharging its responsibilities, a zoning board of appeals is endowed with liberal discretion, and its decisions are subject to review by a court only to determine whether the board acted arbitrarily, illegally or unreasonably. Pleasant Farm Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269 (1991); Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 50 (1984).
A court should not usurp the function and prerogatives of a zoning board of appeals, by substituting its judgment for that of the board, where an honest judgment has been reasonably and fairly exercised, after a full hearing. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995).
The burden of demonstrating that the board has acted improperly is on the party seeking to overturn the board's decision. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988); Whittaker v. Zoning Board of CT Page 8453-fd Appeals, 179 Conn. 650, 654 (1980).
The credibility of witnesses and the determination of issues of fact are matters committed solely to the province of the administrative agency. The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached. Calandro v. Zoning Commission, 176 Conn. 439, 440 (1979).
An agency decision must be upheld, if it is supported by substantial evidence. The substantial evidence rule has been defined as similar to and analogous to the standard to be applied in judicial review of jury verdicts. There must be enough evidence to justify, if the trial were to a jury, a refusal to direct a verdict where the conclusion sought to be drawn is one of fact. Sampeiri v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993).
The possibility of drawing two inconsistent conclusions from the evidence does not prevent a decision from being supported by substantial evidence. Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 697 (1993).
Where a zoning board of appeals, as required by § 8-7 of the General Statutes, has stated reasons for its action, a reviewing court need only determine if any reason given is supported by the record. Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn. App. 53, 56 (1988).
". . . Whenever a zoning board of appeals grants or denies any . . . variance in the zoning regulations applicable to any property . . . it shall state upon the record its reason for the decision . . . and where a variance is granted, describe specifically the exceptional difficulty or CT Page 8453-fj unusual hardship on which its decision is based . . ."
However, even where a zoning board of appeals fails to state the reasons for its decision, that fact is not fatal to upholding the board's action. In that event, a court is required to search the record in an attempt to determine some basis for the action taken. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369 (1988); Ward v. Zoning Board of Appeals, 153 Conn. 141, 144 (1965).
INDEPENDENCE REALTY HAD STANDING TO APPLY FOR THE VARIANCES AFFECTING ALL THREE PROPERTIES
The Plaintiff first claims that the Defendant, Independence Realty, lacked standing to apply for the variances concerning 215 Church Street and 250-76 Orange Street, because it is not the owner of those properties.
This claim, which was not made at the public hearing, and is raised for the first time on appeal, is not persuasive. CT Page 8453-fe
Letters were obtained (ROR GH) from attorneys representing the owners of both properties, authorizing Independence Realty to apply for the necessary variances, in anticipation of the construction of a parking garage.
Although the concepts of aggrievement and standing are related, and are sometimes used interchangeably, the standard for determining whether a party has standing to apply in a zoning matter is less stringent than the test for aggrievement. Gladysz v. Planning Zoning Commission, 256 Conn. 249, 257 (2001).
Factors to consider when determining whether an applicant has standing to apply include whether the party is in control of the property, whether it has a present or future right to possession, whether the use applied for is consistent with the applicant's interest, and the extent of the interest of other persons in the property. Richards v. Planning Zoning Commission, 170 Conn. 318, 323 (1976).
In Richards, it was determined that the Board of Education of the Town of Wilton, though it did not hold title to the property in question, had standing to apply for a special permit for the storage of school buses and equipment on the property, which was owned by the municipality. Richards v. Planning Zoning Commission, supra, 326-27.
Here, the owners of the properties not owned by Independence Realty expressly consented to the submission of the applications by Independence Realty.
Independence Realty, identified as the developer of the contemplated garage, had a future interest in all thee properties, which would culminate in the construction of a downtown parking garage.
Even if the more restrictive aggrievement standard were applicable, a non-owner of property, without a legally enforceable interest in the subject property, who had the consent of the owner to use the property, has established aggrievement. DiBonaventura v. Zoning Board of Appeals, 24 Conn. App. 369, 376 (1991).
The record contains no evidence even suggesting that the application filed by Independence Realty was contrary to the wishes, interests or desires of the property owners, or that the effort was undertaken without their knowledge and approval.
No provision of the New Haven Zoning Ordinances requires an owner of CT Page 8453-ff property to be the applicant, or prohibits the owner from acting through an agent.
A partnership, applying to subdivide property, need not own the property, in order to have standing to submit a subdivision application. Gladysz v. Planning Zoning Commission, supra, 259.
Independence Realty possessed a sufficient interest in 215 Church Street and 250-76 Orange Street, to have standing to submit the variance applications concerning those properties.
DECISION TO GRANT VARIANCES IS SUPPORTED BY THE RECORD
New Haven's zoning powers are exercised pursuant to a Special Act of the Connecticut General Assembly, first adopted in 1921, and later amended in 1925.
Section 63.C.1 of the New Haven Zoning Ordinances provides:
1. Basis. Where there is difficulty or unreasonable hardship in the way of carrying out the strict letter of the zoning ordinance, the Board of Zoning Appeals shall have the power, in a specific case, to vary the application of any provision of the ordinance, if such variance will be in harmony with the general purpose and intent of the ordinance and if the public health, safety and general welfare will be served, and substantial justice done.
Although the language of § 63.C.1 differs somewhat from that of § 8-6 (3) of the General Statutes, the variations do not affect the test to be applied when determining whether a variance should be granted.
Section 8-6 (3), C.G.S. permits a variance in the event of `exceptional difficulty or unusual hardship,' while § 63.C.1 speaks of `difficulty or unreasonable hardship'. . .
The language of both the General Statutes and the New Haven ordinance require an applicant for a variance to satisfy a two-pronged test in order to justify the granting of a variance: 1) the variance must not substantially affect the comprehensive plan, and 2) the strict adherence to the letter of the zoning ordinance will cause unusual hardship unnecessary to the carrying out of the general purposes of the zoning plan. Smith v. Zoning Board of Appeals, 174 Conn. 323, 326 (1978); Pike v. Zoning Board of Appeals, 31 Conn. App. 270, 273 (1993).
The comprehensive plan of a community consists of the zoning regulations themselves. Burnham v. Planning Zoning Commission, 189 Conn. 261, 267 (1983). CT Page 8453-fg
A variance runs with the land, Reid v. Zoning Board of Appeals, 235 Conn. 850, 858 (1996), and must be based on property conditions. The identity of the applicant is irrelevant. Dinan v. Zoning Board of Appeals, 220 Conn. 61, 66-67 (1991).
To support a variance, a hardship must arise from a condition different in kind from that generally affecting properties in the same zoning district and must be imposed by conditions outside the property owner's control. Norwood v. Zoning Board of Appeals, 62 Conn. App. 528, 533 (2001).
A parking garage is a permitted use in a BD Zone, and the property which is contemplated for the garage is presently used for the surface parking of motor vehicles.
It is located in a developed downtown area, with a demonstrated need for parking, as indicated during the public hearing.
The applicable zoning regulations, as they relate to side yards, permit a structure to be placed on the property line, without the necessity of a buffer zone.
The Board of Zoning Appeals had ample justification for its determination that the proposal was consistent with the comprehensive plan.
The record also reveals support for the finding, contained in the report of the City Plan Department (ROR M), that physical constraints imposed by the size, shape and irregularity of the site present a hardship unique to the property in question, which supports the granting of the relief sought.
The irregular shape of the parcel prevents locating a building on the property line, although the regulations permit a side yard with no buffer.
Many of the variances, including the floor area ratio (FAR) variance, are necessary, only because the parcels do not have a single owner.
The Plaintiff argues that the failure of Independence Realty to join the properties into one property with a single owner renders any hardship self-inflicted.
This argument is not well taken. CT Page 8453-fh
The New Haven Zoning Ordinances do not require a unity of the ownership of parcels, and expressly permit the location structures on more than one lot.
Section 1, Definition. " Building: A structure . . . affixed to a lot or lots . . ."
The characteristics of the subject property, and the use proposed, are not altered or affected by considerations such as the identities of the owners of record title.
Most of the variances were properly characterized by the City Plan Department as "technical," based upon the need to use all three parcels for the contemplated use.
Some of the side yard and rear yard variances, however, are necessary, even if the properties were merged, and subject to a single application.
A functional parking garage must provide an adequate turning ratio for vehicles, to avoid blind spots, and insure the safety of drivers and vehicle occupants. (ROR T, p. 9-10).
The Plaintiff maintains that certain of the variances are necessary only because the applicant desires to construct a parking garage, and not because the zoning regulations applicable to the property create a hardship.
In Wadell v. Zoning Board of Appeals, 136 Conn. 1 (1949), the court upheld the granting of a side yard variance, from 20 feet to nine feet, where permission to construct a school in residential zone was desired. Without the variance, the size of the classrooms would have been reduced, out of necessity.
In an opinion authored by Chief Justice Maltbie, the court held that the New Haven Board of Zoning Appeals could have concluded that diminishing the size of the rooms would not be conducive to the welfare of the students, and that a basis for the grant of a variance existed. Wadell v. Zoning Board of Appeals, supra, 7.
As in Wadell, the record in this case supports a finding that the size of the garage is necessary due to safety and emergency concerns, and that the granting of the variances will have little or no impact on the comprehensive plan.
In order to justify the grant of a variance, it is not necessary for an applicant to demonstrate that the imposition of setback regulations renders the property of little or no value. Such a standard is too restrictive. CT Page 8453-fi
The size and shape of a lot, coupled with the presence of artificial improvements, has been held sufficient to justify the approval of a variance, even though the property is not rendered valueless. Stillman v. Zoning Board of Appeals, 25 Conn. App. 631, 636 (1991).
The proper inquiry is whether an applicant, in the absence of a variance, can put the property to a reasonable use permitted by the zoning ordinances. Giarrantano v. Zoning Board of Appeals, 60 Conn. App. 446, 454 (2000).
The record contains substantial evidence from which the defendant Board of Zoning Appeals could find a hardship, permitting the granting of the side and rear yard variances, along with the FAR variance with respect to a single parcel.
CONCLUSION
The appeals of the Plaintiff, The Quinnipiack Club, Inc., a/k/a Quinnipiack Club, are DISMISSED.
RADCLIFFE, J.