Opinion
No. CV07 401 95 70
October 17, 2008
MEMORANDUM OF DECISION
The plaintiff, Matthew E. Romano ("Romano") appeals from a decision of the Zoning Board of Appeals of the Town of Trumbull (the "ZBA") denying his variance application. He claims his appeal should be sustained for two reasons: (1) the ZBA's listed reasons for denying the application are invalid and not supported by the record and (2) strictly applying the zoning regulations to the triangular shape of the Property causes an unusual hardship by reducing the buildable area from 33.3 % to 5.7 %, thereby precluding any reasonable development of the parcel.
Plaintiff, Romano, is the owner of property located at 6 Cutlers Farm Road, Trumbull, Connecticut, The ZBA is the agency of the Town of Trumbull authorized to decide applications for variances based on the Town of Trumbull Zoning regulations. The Property is a triangular-shaped lot located at the intersection of Cutlers Farm and Spring Hill Road, totaling 2.22 acres in size. The Property is largely surrounded by industrial and institutional uses and is shielded from the view of adjacent residential properties as a result of its elevation and foliage. The area surrounding the Property in Trumbull is predominantly industrial and institutional, and also zoned for light industry in the Industry Zone I-L2 zone. Near the Property a Jehovah's Witness hall and several industrial buildings line Spring Hill Road, as well as scattered houses farther north on Cutlers Farm Road. On the northern side of the property across the Monroe town line two houses border the property.
On August 17, 2005, Romano submitted an initial variance application for the property which at the time was zoned for residential use. The 2005 application sought a use variance to construct a "flex use building" for multiple tenants to operate, "assembly, storage and similar endeavors." The ZBA denied the 2005 application on October 12, 2005 and after the denial, Romano applied to the Town of Trumbull Planning and Zoning Commission (the "PZC") to rezone the property from Residence Zone AA to Industry Zone I-L2. On September 26, 2006, the PZC approved the zone change to reflect the predominately industrial character of the area surrounding the property. After the zone change, Romano's current plans to build a storage facility on the property are now allowed with special permit approval. Zoning Regulations art. II, § 3(A).
On December 12, 2006, Romano submitted the current variance application for the property ("current application"). Unlike the 2005 application, the current application sought relief from planting, setback and parking requirements, but did not seek a use variance because self-storage facilities are allowed in the I-L2 with special permit approval. In order to accommodate the triangular shape of the property while enabling construction of a self-storage facility, this application seeks variances from three provisions of the Zoning Regulations. This application uses only 60% of the normally allowed buildable area (one-third of the property area) in the I-L2 zone.
First, the application seeks relief from the requirement to plant grass "supplemented with flowers and ornamental shrubbery" in yards abutting streets or residential zone boundaries. Fulfilling the purpose of this requirement, this application plans a double row of evergreen trees and a berm along the northern property line with part of the northern yard covered with a building, and the remaining property boundaries in compliance with the requirement.
Second the application seeks relief from the I-L2 building setback requirements, which require buildings to be 100 feet from both streets and residential zoning district boundaries. The building will be located over 39 feet from the residential zone boundary on the northern property line 81 feet from Cutlers Farm Road and 47 feet from Spring Hill Road.
Third, this application seeks a variance from the requirement that non-visitor parking may not be located in front yards or in side yards abutting a residential zone. Because of the property's triangular shape, the only side yard of the property abuts a residential zone and all other areas of the property are in front yards.
The ZBA held a public hearing on this application on January 3, 2007. At the hearing plaintiff's engineering consultant presented testimony that this application minimizes the impact of the facility on surrounding properties by shielding the building and parking from adjacent parcels. He testified a double row of evergreen trees and a berm will create a visual separation between the residences and the building. Further reducing any impact on the nearby residential area, the wall of the building facing the residences will be "devoid of activity."
At its business meeting shortly after the public hearing, ZBA denied the application. By letter dated January 11, 2007, the ZBA stated that it denied this application for two reasons: 1. It is the same as what was presented previously; 2. A better design can be done than an unattractive building next to residential property in Monroe. (Letter of Transmittal from ABA to Romano, January 11, 2007.) Romano filed this timely appeal.
The plaintiff, Matthew E. Romano, acquired the subject property on December 22, 2004 and to the present is the fee title holder. The Town of Trumbull concedes aggrievement and the Court finds Romano is both classically and statutorily aggrieved.
Zoning boards of appeals have the duty to issue variances in harmony with the general purpose and intent of the zoning regulations when conditions especially affecting the parcel make literal enforcement of the regulations cause "exceptional difficult or unusual hardship." Conn. Gen. Stat. § 8-6(a). The town of Trumbull conceded at oral argument that it was not pursuing the absence of unusual hardship claim. This court must determine only whether the assigned grounds are reasonably supported by the record and in compliance with the statute and zoning regulations. Santos v. Stratford Zoning Board of Appeals, 100 Conn.App. 644k at 648 n. 3. After assessing the board's reasons, the could should reverse any decision that is "illegal, arbitrary or an abuse of discretion." Archambault v. Wadlow, 25 Conn.App. 375, 380 (1991). Although the ZBA has the discretion to make reasonable decisions supported by the record the reviewing court "cannot take the view . . . [that decisions of] of a local zoning authority must not be disturbed, for if it did the right of appeal would be empty." Kalimian v. Zoning Bd. of Appeals of the City of Norwich, 65 Conn.App. 628, 631 (2001).
The Court finds the reasons given by the ZBA for denying Romano's application are not supported by the record. Whenever a board states reasons for its action, the court must solely determine whether those reasons are reasonably supported by the record and relevant to factors the board is authorized to consider under the statute and zoning regulations. Clifford v. Planning and Zoning Commission of the City of Ansonia, 280 Conn. 434 (2006). If the board's reasons are not supported by the record its decision should be reversed on appeal. See Clifford, 280 Conn. At 439-40. In this case, neither of the ZBA's reasons for denial is valid or supported by the record.
The ZBA's first reason for denial states that this application is "the same as was presented previously," i.e., the 2005 application. ZBA Decision Letter supra, ROR Ex. No. 6. When comparing the 2005 application with the current application, however there are significant differences. Most fundamentally, the two applications seek completely different relief. While the 2005 application sought a use variance to allow an industrial use in a residential zone, the current application instead seeks relief from planting, setback, and parking requirements. Application, supra ROR No. 1; 2005 Application, supra SROR Ex. No. 1. The use variance is now unnecessary because Romano successfully applied to rezone the property from Residence Zone AA to Industry Zone I-L2, which the PZC approved on September 26, 2006. PZC Decision Letter, supra, SROR Ex. No. 3; Transcript, supra, ROR Ex. No. 4, at 12. The proposed use of the property also changed between the two applications. The current application calls for a self-storage facility, whereas the 2005 application proposed a "flex use building" for tenants to operate "assembly, storage and similar endeavors." Although some storage would occur in both proposals, the 2005 called for additional, more intensive, uses than the current application.
Further confirming the differences between the two applications the size, position, and shape of the building differ markedly between the two applications. These differences are particularly significant in light of the ZBA's second reason for denying this application that the building is unattractive and close to residential properties in Monroe. In the 2005 application, the building was a rectangle located 21 feet from the northern property line whereas the current application proposes an "L"-shaped building nearly twice as far (39.6 feet) from the northern property line. Survey, ROR Ex. No. 1B; Improvement Location Survey prepared for Matthew E. Romano, August 16, 2005, SROR Ex. No. 1A. This increased distance is possible because, unlike the rectangular building in the 2005 application, the "L" shape of the building in this application maximizes the distance in the triangular lot between the building and surrounding street and property lines. This Court finds the current application is far from the "same" as the 2005 application. This application seeks different types of variances, proposes a different use for the property, and calls for a building with a different size, shape and position on the property. Accordingly, the ZBA's first reason for denial is not supported by the record, and its decision is illegal, arbitrary, and an abuse of discretion.
The ZBA's second reason for denying this application states that a "better design" can be proposed than an "unattractive building" next to residential property in Monroe. ZBA Decision Letter, supra, ROR Ex. No. 6. This assertion is invalid and not supported by the record. The ZBA's reason simply asserts a vague aesthetic preference which is an improper basis for making zoning decisions. Demaria v. Planning Zoning Comm'n of Enfield, 159 Conn. 534, 540-41 (1970). Using aesthetic preferences to make zoning decision is appropriate because zoning boards of appeal and other local land use agencies must state reasons supported by the record and authorized by statute for the board's consideration, in order to justify exercising the police power in derogation of individual property rights. See Demaria, 159 Conn. at 541; see also Gibbons v. Historic Dist. Comm'n of the Town of Fairfield, 285 Conn. 755, 778 (2008). Specifically, zoning boards of appeal may not use aesthetic preferences as a consideration for making decisions on variance applications. See, e.g., Lynch v. Zoning Bd. of Appeals of the City of Danbury, Judicial District of Danbury at Danbury, Docket No. CV03 0348699 S, 2004 Conn.Super.LEXIS 1022, at *15 (Apr. 8, 2004, Moraghan, J.T.R.) [36 Conn. L. Rptr. 862]; Packwood v. Zoning Bd. of Appeals of the City of Norwalk, Judicial District of Fairfield at Bridgeport, Docket No CV 93 303171 S, 1993 Conn.Super. LEXIS 3270, at *12 (Dec. 13, 1993, Fuller, J.).
Rather than providing any explanation of how or why a "better design" could be proposed than this application, the ZBA relies simply on the vague and unstated implication that this application proposes an inadequate design. The ZBA failed to explain how the application harms adjacent properties, public safety, or any other factor that the ZBA is authorized to consider under Conn. Gen. Stat. § 8-6(a)(3). The sole explanation is one ZBA commissioner's unsupported statement that the building is "ugly" and that Romano can do "something else" with the property. Transcript, supra, ROR Ex. No. 4, at 12.
Even construing the ZBA's second reason for denial as asserting that the building should not be "next" to residential property in Monroe fails to yield a valid reason that is supported by the record. It will not impact residential property in Monroe in any meaningful way because the proposal takes all possible measures within the tight boundaries of this triangular parcel, to shield the building from the houses. The building will be located 39.6 feet from the northern border of the property. Survey supra, ROR Ex. No. 1B. In addition, the natural elevation of the property will obscure much of the building from the view of nearby houses at higher elevation. Transcript, supra, ROR Ex. No. 4 at 4. In conjunction with the natural elevation, a double row of pine trees will be planted and a berm will be built to ensure additional visual separation from the residences. Transcript, supra, ROR Ex. No. 4, at 4, 8. Further restricting any effect on the houses in Monroe, the wall of the building facing the houses will be "devoid of activity." Transcript, supra, ROR Ex. NO. 4, at 5. Thus shielded from view, the building will have no meaningful impact on the adjacent residential properties. Nearly 40 feet from the property line and without any noticeable effect on those properties there is no evidence in the record that the building is "next" to the nearby residences. Nor is there any evidence in the record that the building is "next" to the nearly residences. Nor is there any evidence in the record that the ZBA's vague assertion about unstated "better" designs for the property is sufficient to justify a denial of this application, especially because purely aesthetic concerns are an improper basis for the ZBA's decision. Thus lacking any support in the record the ZBA's second reason for denial improperly uses unsupported aesthetic preferences. The ZBA's second reason for denial is invalid and not supported by the record.
The ZBA has a duty to issue variances when (1) the variances would not interfere with the purpose of the zoning regulations and (2) strictly enforcing the zoning regulations causes an unusual hardship. Conn. Gen. Stat. § 8-6(a)(3); see also Archambault, 25 Conn.App. at 381. The hardship must result from a condition specifically affecting the property rather than one generally present throughout the zoning district. Conn. Gen. Stat. § 8-6(a)(3); see also Stillman v. Zoning Bd. of Appeals of the Town of Redding, 25 Conn.App. 631, 636 (1991). In this case, the triangular shape of the property creates a hardship because it reduces the normally allowed buildable area from 33.3% to 5.7% of the area of the property.
The Court finds that the requested variances are consistent with the purpose and intent of the Zoning Regulations. Before the ZBA may grant a variance the application must be in harmony with the general purpose and intent of the zoning regulations. Conn. Gen. Stat. § 8-6(a)(3). See also Santos, 100 Conn.App. At 648 (noting that the variance must not substantially affect the comprehensive zoning plan). The Connecticut Supreme Court has found that a setback variance was consistent with the purpose of the zoning regulations because the property maintained a buffer strip between the building and the nearest residence, thereby furthering the purpose of the setback requirements to ensure adequate separation from adjacent properties. Chevron Oil Co. v. Zoning Bd. of Appeals of the Town of Shelton, 170 Conn. 146, 150 (1976).
The requested variances are consistent with the purpose and intent of the Zoning Regulations because this application provides the appropriate layout and separation from adjacent properties that the Zoning Regulations are intended to provide. The requested variances are consistent with the purpose and intent of the Zoning Regulations. Not only are most of the surrounding properties industrial or institutional uses, but more importantly the PZC also specifically rezoned the property from Residence Zone AA to Industry Zone I-L2 to reflect this industrial character of the neighborhood. See transcript supra, ROR Ex. No. 4 at 3, 12. Additionally, by using only 60% of the normally allowed buildable area in the I-L2 zone, the application fulfills the purpose of the zoning regulations to maintain open space and minimize impacts on nearby properties. See transcript, ROR Ex. No. 4 at 5. Furthermore, as in Chevron, supra, by maximizing the space and separation between the building and parking on this triangular property from nearby properties, the requested variances are consistent with the purpose of the regulations to protect residences form industrial uses. See Chevron, 170 Conn. at 15 (shape of the property also causes an unusual hardship by reducing the buildable area of the property).
Strictly enforcing the zoning regulations on the property causes an unusual hardship because its triangular shape reduces the allowed buildable area from 33.3 % of the property to 5.7%. In addition to the variances being consistent with the purpose of the zoning regulations, strictly enforcing the zoning regulations at the parcel must result in "exceptional difficulty or unusual hardship." Conn. Gen. Stat. § 8-6(a)(3). Hardship exists where conditions uniquely affecting the parcel but not common throughout the entire zoning district, such as unique topography or site layout, prevent normal development of the parcel in strict compliance with the zoning regulations. Conn. Gen. Stat. § 8-6(a)(3); see also Fiorilla v. Zoning Bd. of Appeals of the City of Norwalk, 144 Conn. 275, 280 (1957); Stillman, 25 Conn.App. at 636-37. In particular, when an unusually shaped parcel causes the setback requirements to reduce buildable area far below normally allowed levels, strictly applying the zoning regulations to the parcel causes an unusual hardship. See Chevron, 170 Conn. at 150; Lawrence Memorial Hospital, Inc. v. Zoning Bd. of Appeals of the City of New London, 22 Conn.App. 291, 300-01 (1990).
The triangular shape of a parcel causes an unusual hardship when strictly applying zoning regulations prevents reasonable development of the property. In Chevron, the hallmark case addressing this issue, the Connecticut Supreme Court found that strictly enforcing zoning regulations at a "triangular-shaped property," which reduced the building are from 35% to 15% of the property, caused an unusual hardship. Chevron, 170 Conn. At 150.
While the reduction from normally allowed buildable area must be substantial to be a hardship, it need not erase all of the buildable area. See Zocco v. Hartford Zoning Bd. of Appeals, Judicial District of Hartford-New Britain at Hartford, Docket No. CV 87 0325711 S, 1993 Conn.Super.LEXIS 3014, at *8-9 (Nov. 15, 1993, Scheinblum, J.). In Zocco, the court found a hardship where applying the setbacks to a "triangular shaped lot" reduced the normally allowed buildable area from 75% to the lot to 54%. See also Ten Marietta Street, LLC v. Zoning Bd. of Appeals of the Town of Hamden, Judicial District of New Haven at New Haven, Docket No. CV03 048359 S, 2005 Conn.Super.LEXIS 2675, at *9 (Oct. 5, 2005, Burns, J.T.R.) (Finding a hardship due to the lot's "unusual, triangular shape"); Crook v. Zoning Bd. of Appeals of the Town of Lyme, Judicial District of New London at New London, Docket No. 530791, 1995 Conn.Super.LEXIS 2225, at *7-5 (Aug. 1, 1995, Hendel, J.) finding a hardship where "the triangular shape" of the lot prevented the property from complying with the zoning regulations).
In addition to a parcel's unique shape causing a hardship, substantial diminution in the property's value also creates a hardship where strictly applying the zoning regulations greatly decreases or practically destroys the parcel's value for "any of the uses to which it could reasonably be put." Vine v. Zoning Bd. of Appeals of the Town of North Branford, 281 Conn. 553, 561 (2007). Notably, analyzing whether the property may be reasonably used without the variance, is not a prerequisite to determine whether a hardship exists. Jersey v. Zoning Bd. of Appeals of the City of Derby, 101 Conn.App. 350, 358 (2007). A hardship may be established even if the property may still be developed for another reasonable use, so long as strictly enforcing the zoning regulations substantially reduces normally allowed development. Jersey, 101 Conn.App. at 360. In Chevron, the court found a hardship where strictly applying the zoning regulations to the triangular parcel reduced the buildable area on the parcel from 35% to 15%. Chevron, 170 Conn. At 150. Similarly in Zocco, the court found a hardship where the triangular shape of the property caused its buildable area to be reduced from 75% of the parcel to 54%. Zocco, 1993 Conn.Super. LEXIS 3014, at *8-9.
In this case, strictly applying the planting, setback, and parking requirements at the property creates an unusual hardship because the parcel's triangular shape makes compliance with the planting and parking requirements impossible, and causes the setbacks to reduce the buildable area from 33.3% of the property to 5.7%.
Strictly applying the requirement that all front yards and all side yards abutting residential zone boundaries be planted with grass and ornamental shrubs and flowers causes an unusual hardship on this triangular property. Due to the property's triangular shape, strictly enforcing this provision would not only preclude any reasonable development of the property, it would also contradict the intent of the regulation to create a tasteful buffer between industrial development and adjacent residential properties. Because this provision applies both to front yards abutting streets and side yards abutting residential zones, this requirement applies to all three sides of the property, leaving no room to place either buildings or more effective visual buffers, such as the double row of pine trees and berm proposed here. See transcript, supra, ROR Ex. No. 4 at 3, 8. Strictly applying this requirement therefore causes an unusual hardship because it would both prohibit any reasonably sized building on the property and also prevent any genuine measures to shield nearby residences from the storage facility.
The triangular shape of the property causes the setback requirements to eliminate most of the buildable are normally allowed in the I-L2 zone. As required by Conn. Gen. Stat. § 8-6(a)(3), this triangular shape is unique in the property's I-L2 zoning district, as shown by the 500-foot radius map of the area surrounding the property. See 500 Foot Radius Map, August 16, 2005, ROR Ex. No. IA. At 2.22 acres, the property exceeds the two-acre minimum lot size for the I-L2 zone, which allows building coverage on up to 1/3 of the total parcel area. Zoning Regulations, art .ll, § 3(E)(2). At 19,000 square feet, the building in this application occupies only 60% of the normally allowed buildable area. Transcript, supra, ROR Ex. No. 4, at 5. The triangular shape of the property is the sole reason no reasonable development can meet the setback requirements, for without a variance, only 6% of the property can be developed. Transcript, supra, ROR Ex. No. 4, at 1, 3. This drastic reduction from 33% to 6% is a far greater confiscation of the use of property than occurred in Chevron (75% to 54%) or in Zocco (75% to 54%). Transcript supra, ROR Ex. No. 4, at 1, 3. Strictly applying the setback requirements to this triangular property therefore causes an unusual hardship.
As well, strictly applying the parking requirements to the property causes an unusual hardship because the triangular shape of the property and layout of abutting streets eliminates any area of the property that can provide non-visitor parking in compliance with the Zoning Regulations. The Zoning Regulations prohibit non-visitor parking in front yards or in side yards abutting residential zones. Zoning Regulations art. II, § 3(F). Due to its triangular shape, the only yards on the property are two front yards (one each facing Cutlers Farm Road and Spring Hill Road) and a side yard facing a residential zone (towards the Monroe town line). Thus, no part of the property exists to place non-visitor parking away from front yards or in side yards abutting a residential zone. This situation exists solely because of the unique layout and triangular shape of the property and is an unusual hardship.
This hardship results from applying the zoning regulations to the property and is not self-created. Although the ZBA may not grant a variance when the hardship arises from the applicant's voluntary act hardships resulting from the shape and layout of a parcel are not self-created. Lawrence Memorial Hospital, 22 Conn.App. at 299. The unusual shape of a property exists independently of its owner's actions and is not a self-created hardship. See Chevron, 170 Conn. At 150. Additionally, where an applicant successfully applied to rezone the property, the hardship resulting from the new zoning regulations now applicable to the property from the zone change is not self-created because the planning and zoning commission acts independently from the applicant. Lawrence Memorial Hosp., Inc., 22 Conn.App. at 299-300. Thus, when an applicant successfully obtains a zone change that imposes a hardship due to the parcel's unusual shape the hardship is not self-created. Lawrence Memorial Hosp., 22 Conn.App. at 300 (citing Chevron, 170 Conn. at 150; Johnny Cake, Inc. v. Zoning Board of Appeals of the Town of Burlington, 180 Conn. 296, 300-01 (1980)).
In this case the hardship was not self-created because it resulted from applying the zoning regulations to the triangular-shaped property not from any of plaintiff's actions. As in Lawrence Memorial Hospital, the hardship resulted from applying the planting, setback, and parking requirements of the I-L2 zone to the triangular parcel which was in turn caused by the PZC's decision to rezone the property from Residence Zone AA to Industry Zone I-L2. The hardship is therefore not self-created. See Lawrence Memorial Hospital, 22 Conn.App. at 300.
The variances sought by the plaintiff are consistent with the purpose of the zoning regulations and applying the planting, setback, and parking to this triangular parcel cause an unusual hardship. The ZBA's decision is reversed and the ZBA is ordered to grant the requested variances.