Opinion
No. FST CV 10 6005607 S
September 22, 2011
MEMORANDUM OF DECISION
This appeal is taken by a property owner who has already been adjudicated aggrieved by the court (Tobin, J.) after an evidentiary hearing held pursuant to a motion to dismiss the appeal filed under G.S. § 8-8(j). Standard Tallow Corp. v. Jowdy, 190 Conn. 48 (1983). The plaintiff Thomas B. Schulhof and Anne K. Schulhof established the continuity of the ownership of their property to and including the day of trial. Therefore, the court's aggrievement finding continues to date. Goldfeld v. Planning and Zoning Commission, 3 Conn.App. 172 (1985).
The appeal attacks setback variances granted in 2010 by the defendant board (hereinafter "the board") which will permit the construction of a boathouse on Cedar Hammocks Island which is located in Long Island Sound within the approach to Norwalk Harbor. The island is 23 acres in size, is a irregular in shape (crescent shaped) and in 1974 was rezoned as "Island Conservation Zone" (hereinafter "ICZ"). The principal uses permitted in the zone which are relevant to this appeal are: (i.) one-family dwellings, (ii) boathouses, landings and docks when not conducted as a business (sec. 118-300 of the Norwalk Building Zone Regulations) (hereinafter "the zoning regulations"). The island is served by a dock or boat landing and since 1973 has contained an 8 x 12 foot wooden structure variously described as a "storage shed, cabin, accessory building and camp."
Section 118-300C.(4) prescribes setbacks of 25 feet from any lot line and 50 feet from the mean high water line (hereinafter "MHW"). The present structure is setback nonconforming except for the southerly setback, which exceeds the minimum by 2.49 feet. The plans submitted to the board call for the removal of the existing building and the erection of a larger structure in a different location. The new building proposes setbacks as follows: North — 23.55 feet; South — 27.78 feet; East — 25.81 feet; and West — 20.67 feet. None of these will satisfy the regulations.
While the plaintiff contended at oral argument that the 25' setback is applicable and must be measured from the mean high water line he failed to brief the issue with any analysis and therefore is deemed to have abandoned it. Connecticut Light and Power Company v. Department of Public Utility Control, 266 Conn. 108, 120 (2003). The owner responds that the 25' setback is inapplicable in any case because by its terms it applies only to yards and yards are defined in Sec. 118-100 of the regulations in terms of street and lot lines. Because this is an island there are no street or lot lines. The court need not resolve this dispute because even if applicable the 25' yard setback is subsumed by the 50' setback from mean high water.
In 2009 the owner applied for and was denied setback variances for a boathouse that was proposed for the same location as the existing structure. That application requested setback variances for three distances and also sought a variance from the 25-foot height limitation contained in section 118-300C.(3). The manner and extent to which the present application differs from the application in the prior case is a threshold issue in this case.
The vote for approval was three in favor and two against thus the resolution failed to receive the four votes mandated by section G.S. sec. 8-7 as adopted in section 116-8 of the Norwalk Code.
The plaintiff alleges, briefs and argues that the board acted improperly in that it (1) was without jurisdiction to hear the 2010 application; (2) 2010 application violated the prior application rule; (3) the variance violates the nonconformity provisions of the zoning regulations; (4) there was no proof of hardship; (5) the variance granted is not in harmony with the comprehensive plan of zoning.
At the outset, the court sets forth the standard of review applicable to variances. "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] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached . . . 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 . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission. Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294 (2008). Evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can reasonably be inferred. Pellicione v. Planning and Zoning Commission, 64 Conn.App. 320, 326 (2001). "Substantial evidence" means enough evidence to justify, if the trial were to a jury, a refusal to direct a verdict." Huck v. IWWCA, 203 Conn. 525, 541 (1987).
I. Jurisdictional Issue
The plaintiffs ask the court to take judicial notice of Section 116-7 of the Norwalk Code which provides as follows with respect to variance applications. "No application or petition shall be considered if litigation concerning the matter is pending." The plaintiffs argue that this ordinance is jurisdictional and deprived the board of jurisdiction to entertain the 2010 application. The plaintiffs point out that the predecessor to the ordinance was originally adopted by the Norwalk Zoning Commission in 1929 and in 1981 was made a part of the Norwalk Code by the Norwalk Common Council, the municipal legislative body. While the court is free to take judicial notice of this code provision pursuant to G.S. § 52-163(3), the court believes that this issue is controlled by the Zoning Board of Appeals v. Planning and Zoning Commission, 27 Conn.App. 297 (1992), and G.S. § 8-6(a)(3). In the case cited the court held invalid and unenforceable a zoning regulation which purported to eliminate the right of a zoning board of appeals to grant a use variance except where failure to do so would result in an unconstitutional taking. In holding that a zoning commission's power to curtail a zoning board of appeals' statutory power to grant variances is limited to that portion of § 8-6(a) which allows such a commission to "specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed," the court stated: "General Statutes § 8-6(3) confers on the board the power and duty to "determine and vary the application of the zoning bylaws" and confers on the commission the right to "specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed." General Statutes § 8-6 "grants broad powers to the zoning board of appeals and limits those powers only when the zoning commission passes a regulation explicitly limiting the issuance of variances." (Emphasis added.) Stillman v. Zoning Board of Appeals, 25 Conn.App. 631, 634-35, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991). The commission has not been vested with either the authority wholly to eliminate the board or the authority to change the standard on which the board may grant use variances." Id. at 303. Accord, Jersey v. Zoning Board of Appeals, 101 Conn.App. 350, 359 (2007). Thus, the code provision is unenforceable in this case.
In the present case the authority of the board to control the frequency of applications "for the same or substantially the same variance" is conferred by the last sentence of Sec. 8-6(a) which permits the board to decline to hear such an application "for a period of six months after a decision by the board or by a court on an earlier application." It is therefore apparent that the legislature has seen fit to vest in the discretion of a zoning board of appeals the right to determine whether it will hear such an application within a limited time frame. Beyond that six-month period the board is obligated to hear such an application whether it wants to or not. Neither the zoning commission nor the common council have the legislative power to further limit this authority.
There is an additional basis for rejecting the plaintiffs' jurisdictional argument. Through its trial brief the board has stated that its policy has "always" been to interpret this provision to mean "the same application or petition." "We have accorded deference to such a time-tested agency interpretation of a statute, but only when the agency has consistently followed its construction over a long period of time, the statutory language is ambiguous, and the agency's interpretation is reasonable." State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 719 (1988).
It therefore appears that the board's practice in limiting the scope of the term "matter" to an application that seeks the same variance or variances and does not call for a different building plan or site location, has existed consistently over a long period of time, perhaps since inception of the code. The court finds further that the language of the provision is ambiguous in that neither the code nor the zoning regulations define the word. "When construing a term (where not defined in the statute) we look to its commonly approved usage, an inquiry that is enhanced by the examination of dictionary definitions." Kelo v. City of New London, 268 Conn. 1, 17 (2004). Even the dictionary definitions add ambiguity. Black's Law Dictionary, 7th Ed. at 992 defines "matter" as "a subject under consideration, especially involving a dispute in litigation." Webster's New World Dictionary, 2d. Coll. Ed. At 876 as one of thirteen nuances states, "something that is the subject of discussion." The board was therefore free to resolve the ambiguity by taking the position that the subject under consideration and discussion in both applications must involve all of the very same issues. It is clear from the ensuing discussion that such was not the case. The board's interpretation was entirely reasonable.
II. The Prior Application Rule
"When a party files successive applications for the same property, a trial court's inquiries may vary depending on whether the application before the zoning agency is an application for a variance or an application for a permit. "In considering a subsequent variance application where it has already denied a similar prior one, [a] zoning board of appeals is generally precluded from reversing a prior decision unless there has been a material change of conditions, or other considerations have intervened affecting the merits, and no vested rights have arisen . . . The board is disallowed from revisiting its prior determination that the requirements for a variance are not present because, if a reversal of that determination was allowed, there would be no finality to the proceeding [and] the result would be subject to change at the whim of members or due to the effect of influence exerted upon them, or other undesirable elements tending to uncertainty and impermanence . . ." Richardson v. Zoning Commission, 107 Conn.App. 36, 43 (2008).
"When a party files successive applications for the same property, a court makes up to two inquiries. The first is to determine whether the two applications seek the same relief. The zoning board determines that question in the first instance, and its decision may be overturned only if it has abused its discretion. Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 279, 129 A.2d (1957). If the applications are essentially the same, the second inquiry is whether "there has been a change of conditions or other considerations have intervened which materially affect the merits of the matter decided. Malmstrom v. Zoning Board of Appeals, 152 Conn. 385, 390-91 (1965); Bradley v. Inland Wetlands Agency, 28 Conn.App. 48, 50-51 (1992).
This court's initial inquiry therefore must be: do the applications seek the same relief? It is solely for the board, not the court, to determine whether the second application was substantially the same as the prior application, that determination being reviewable by the court for abuse of discretion. Laurel Beach Association v. Zoning Board of Appeals, 66 Conn.App. 640, 647 (2001). Here, the record is silent on the question. Nevertheless, necessarily implicit in the board's decision to hear the second application is the determination that they were not substantially the same or that other considerations had intervened affecting the merits, or both. The board did not articulate its reasons for approving the variance. The court must therefore search the record to determine the reason(s) which underlie the board's decision. Norwood v. Zoning Board of Appeals, 62 Conn.App. 528, 532 (2001).
The defendants argue that substantial changes were made to the 2010 application affecting the merits. Furthermore, they deny that each application sought the same relief. Laurel Beach Assn. v. Zoning Board of Appeals, supra. St. Patrick's Church Corp. v. Daniels, 113 Conn. 132, 139 (1931) sheds further light on the process. "When the facts and circumstances which actuated an order or decision are alleged and shown to have so changed as to vitiate or materially affect the reasons which produced and supported it, and no vested rights have intervened, it is reasonable and appropriate to the functions of the board that the subject-matter be reexamined in light of the altered circumstances."
The defendants list the following eight ways in which the second application differed from the first.
(1) The setback from Mean High Water was increased from 12.7 to 20.62 ft.
(2) The proposed location was optimized to a central and FEMA-compliant area.
(3) Tree damage was minimized, the structure anchored, a breakaway design incorporated, rock excavation minimized and CAM compliance addressed.
(4) Flood elevation increased to address storm survival and FEMA issues.
(5) Cabin size was reduced by 142 sf. to the satisfaction of commission.
(6) An erosion and sediment control analysis was submitted.
(7) Cedar Hammocks ensured minimal impact on vegetation.
(8) Cedar Hammocks adopted a design that did not need a height variance."
The plaintiffs contend that the only consideration in comparing the two applications ought to be: what zoning regulation did the applicant seek to vary? They argue that both applications sought to vary the same setback requirements. The court notes that this statement is not entirely correct as the second application did not seek to vary the 25-foot height limitation which was requested in the prior application. In addition, the second application requested a reduced setback variance on the west side from 12.7 to 20.67 feet. Additionally, variances were requested for three setbacks in the prior application but all four setbacks were included in the second application. Other differences will be discussed, infra.
The question that remains is: are these changes material or can these changes be deemed to constitute "other considerations" which have intervened to "affect the merits." It is obvious that one of the most important provisions in the ICZ is to protect the uses from tidal flooding. Hence, adding 8 feet of distance to the closest setback from MHW is considered by the court to be a material change because it affords greater flood protection, notwithstanding that the northerly setback will be reduced to 27.78 feet. This is so because the new location enables the building to be placed on piers at the highest point on the island with breakaway walls designed to permit the free flow of wave action during a surge tide. Thus, the first floor elevation will be 2 feet higher than the minimum required for the flood hazard zone which is governed by section 118-111 of the regulations. The prior application did not provide for such an elevation.
The plaintiffs assert in their brief that FEMA provisions, whether in the form of a statute or a regulation, are not subject to enforcement by a zoning board of appeals. While this may be so in some municipalities it is not true in Norwalk. Section 118-111 entitled "flood hazard zone" constitutes a comprehensive set of regulations designed to protect not only against land based flooding but also coastal or tidal flooding. It is an incontrovertible fact that these regulations mimic many of the FEMA standards in order to enable homes to qualify for flood insurance and it is equally incontrovertible that these FEMA based regulations which carry a federal mandate, must be enforced by the Norwalk zoning authorities. As such, they are no less a part of the zoning fabric of the City than the ICZ regulations themselves. Thus, the second application brought the development into compliance with the flood hazard regulations whereas the prior application did not. Related to the improvement in flood protection over the prior application is the fact that the second proposal specifies construction of a building 142 sq. ft. smaller than the prior application. Other differences in the two applications which by themselves may not constitute "a material change" but when considered with the other changes achieve that level are: (1) 14.6% reduction in living area, (2) 17% reduction in ground floor area, (3) 13% reduction in loft space, (4) 24.7% reduction in deck area.
Federal Emergency Management Agency.
What has been deemed "a material change of conditions" or "other considerations affecting the merits" (the two prongs of the prior application rule) has not been altogether clear in our case law. The plaintiffs seem to argue that with regard to variances, the "material change of condition" must come from some source external to the project. Some support for this proposition is found in St. Patrick's Church Corp. v. Daniels, supra, at 140-41, where the change was a "constantly increasing need for parking space outside the highway limits." The court notes that in Daniels the court did not require that the change originate from external sources. On the other hand, in Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 278-79 (1957), the court affirmed a variance in which the second application sought approval for a building addition which was "substantially less extensive" in size than the building involved in the prior application. The court held that the change in size of the addition warranted the board entertaining and ultimately granting the application. Contrary to the plaintiffs' view of the case, the Fiorilla case expressly overruled Sipperly v. Board of Appeals on Zoning, 140 Conn. 164 (1953), insofar as that case holds that requesting a variance which would apply to less land area than a prior application does not satisfy the "material change" component of the prior application rule. In Malmstrom v. Zoning Board of Appeals, 152 Conn. at 391, supra, with reference to a second application where the board had denied a prior application seeking substantially the same variance, the court stated: "the change in the location of the building and the parking area, the reduced size of the parking area, the elimination of contiguity of parking facilities and the approval of the new layout by the city plan commission were factors which the board could properly consider in determining the matter." In Malmstrom the court deemed to be materially changed conditions such internal factors as the change in location of the building and parking areas and the reduced size of the parking area as well as external factors which were also proper for the board to consider. In Hotchkiss Grove, Inc. v. Water Resources Commission, 161 Conn. 50, 58 (1971), the court acknowledged that structural differences such as dimensions of a pier could warrant a finding of "substantial (material) change of condition" by the administrative agency.
The court further observes that what appears in the Richardson opinion as an apparent limitation of the "altered plan exception" to the prior application rule with regard to special permits is not in fact such a limitation. This is so because in the case of a special permit, the "altered plan" (second application) is designed to bring the original plan into closer compliance with the regulations whereas a variance seeks something prohibited by the regulations. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995). Accordingly, a subsequent application in the case of a variance will not bring the project into closer compliance unless the variance will bring the property into closer conformity with the regulations. But no court has yet limited successive applications for a variance to where the second application reduces a nonconformity.
The most recent appellate court decision on the issue is Vine v. Zoning Board of Appeals, 102 Conn.App. 863, 869-73 (2007). In that case the court affirmed the finding of the trial court that the moving of a lot line to accommodate a driveway, thereby lessening the impact on wetlands together with the zoning board of appeals learning for the first time that (1) the property had been assessed as three building lots, and (2) a utility easement prevented compliance with a 150' square requirement contained in the regulations constituted an "other consideration" which "had intervened that materially affect the merits of the matter decided." Thus, the court based its rationale on the basis of the "other consideration" exception to the prior application rule.
The court concludes that the plaintiffs' argument on this point is in conflict with the case law and therefore holds that the second application qualified as an exception to the prior application rule on both grounds, i.e., "material change of condition," and "considerations affecting the merits."
III. Violation of Non Conformity Regulations
The plaintiffs argue that in 1974 when Cedar Hammocks Island was reclassified from B-Residence to ICZ the southerly setback at 52.49 feet was the only one of the four setbacks which conformed to the MHW requirement of 50 feet. The plaintiffs claim that the new boathouse would violate section 118-800D which provides as follows:
(1) A nonconforming structure shall not be enlarged or altered if the result would be an increase in the extent to which the structure does not conform to these regulations. A nonconforming structure may be enlarged or altered, provided that the enlargement or alteration conforms to these regulations. A change of use from a single-family residence to a two-family residence shall be permitted provided that any alteration conforms to these regulations. A change of use from a single-family residence to a two-family residence shall be permitted provided that any alteration conforms to these regulations, including off-street parking requirements. [Amended effective 1-28-2005.]
(2) A nonconforming structure shall not be moved unless, as a result of the move, the structure is made to conform to these regulations.
(3) Where a change of use would create new setbacks, any structure which lawfully existed before such change shall be rendered legally nonconforming, provided that the existing structure is effectively screened from adjacent properties, subject to the satisfaction of the Zoning Inspector.
The plaintiffs reason that the variance is unlawful because this section "prohibits a nonconforming structure from expansion, movement, or enlargement where the result is an increase in the conformity." This thesis is predicated two points: (a) characterization of what was proposed as a "relocation of the prior structure," and (b) section 118-800D is a limitation imposed by the zoning regulation which is not permitted to be varied pursuant to authority granted under the first sentence of G.S. § 8-6a(3).
It is clear from the language of the above regulation that by its terms it applies only to an existing structure, not, as here, an entirely new structure in a different location on the site. The demolition of an existing structure and the construction of a new building cannot properly be construed to constitute an "enlargement, alteration" or "movement of a structure." Because the regulations do not define the terms or identify any resource material to assist in defining terms and because the record contains no evidence that these words have been interpreted officially by the board on any prior occasion, resort may be had to a dictionary. "Zoning regulations are legislative enactments . . . and therefore their interpretation is governed by the same principles that apply to the construction of statutes . . . Thus, in construing regulations [the court's] function is to determine the express legislative intent." Wood v. Zoning Board of Appeals, 258 Conn. 691, 699 (2001). Words in a statute shall be construed according to the commonly approved usage of the language. G.S. § 1-1, Martone v. Lensink, 207 Conn. 296, 302 (1988), including dictionary definitions. Wood v. Zoning Board of Appeals, supra at 702.
The board's brief states that this is not an enlargement, alteration or movement and the board's action in granting the variances was consistent with that interpretation.
Consulting Webster's New World Dictionary, 2d. Coll. Ed., the word "enlarge" is defined (p. 465) as "make larger; increase in size, volume, extent"; "alter" (p. 40) means "to make different in detail but not in substance; modify." Clearly, these words are only applicable to preexisting objects but not newly created objects. "Move" (p. 932) is defined as "to change the place or position of; push, carry or pull from one place or position to another." Such analysis leads inevitably to the conclusion that section 118-800(D) applies only to existing structures.
The second ground asserted that section 118-800(D) constitutes a section 8-6(a)(3) prohibition against variances for nonconforming structures is incorrect for two reasons. First the regulation applies only to existing structures that are enlarged, altered or moved and second, the authority conferred by Sec. 8-6(a)(3) to prohibit certain variances applies only to use variances not setback or location variances. The existing structure here is being demolished so there is nothing to enlarge, alter or move. For a comprehensive exposition of the scope of these terms see Raymond v. Zoning Board of Appeals, 76 Conn.App. 222 (2003); Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, 573 (2001).
IV. Hardship
The following principles of law relating to variances guide the court's inquiry. "A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995). "[T]he authority of a zoning board of appeals to grant a variance under General Statutes § 8-6(a)(3) requires the fulfillment of 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 (1988); see also R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2007) § 9:2, p. 239. "The hardship complained of must arise directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved . . . where the condition which results in the hardship is due to one's own voluntary act, the zoning board is without the power to grant a variance . . . Where . . . the hardship arises as the result of a voluntary act by one other than the one whom the variance will benefit, the board may, in the sound exercise of its liberal discretion, grant the variance." (Citation omitted; internal quotation marks omitted.) Vine v. Zoning Board of Appeals, supra, 281 Conn. 561. While hardship will vary from case to case, we repeatedly have held that considerations of financial disadvantage — or, rather, the denial of a financial advantage — do not constitute hardship, unless the zoning restriction "greatly decreases or practically destroys [the property's] value for any of the uses to which it could reasonably be put . . ." (Internal quotation marks omitted.) Id.; see also Grillo v. Zoning Board of Appeals, supra, 369; Carlson v. Zoning Board of Appeals, 158 Conn. 86, 89-90, (alternate citations omitted). Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294-96 (2008).
Section 118-410(A)(3) of the regulations reflects the basic principles embodied in G.S. § 8-6(a)(3). That section, however, goes on to provide that "to grant a variance, the ZBA shall adopt a resolution which shall stipulate the reason for granting the variance." While the board failed to adopt such a resolution neither party has made an issue of it. Therefore, the board's omission is not involved in this case.
As stated in part II above, the board gave no reason for its decision in resolution form or otherwise. Therefore, the court must search the record for a valid reason in support of the board's decision. Norwood v. Zoning Board of Appeals, supra.
The property owner argues that the ICZ gives him the right to have a boathouse on the land but there is nowhere on the island that such a building can be located without a variance because all 50-foot setbacks overlap. The plaintiffs counter that there is already in place on the island an existing structure that long has been used for residential purposes, albeit on a seasonal basis, and in rudimentary camp-like condition. He asserts that the owner seeks to build a larger building simply to satisfy a personal value preference. It is well settled that it is improper for a zoning board of appeals to grant a variance based on an applicant's use preference. Francini v. Zoning Board of Appeals, CT Page 20379 228 Conn. 785, 793 (1994). The plaintiff implies that the owners should be satisfied with what they have. The first problem with this argument is that a requirement that an applicant for a variance prove that he has no other reasonable use for the property sets too high a standard which excludes other well recognized grounds for hardship. Stillman v. Zoning Board of Appeals, 25 Conn.App. 631, 636-37 (1991). The second problem with this argument is that the existing structure is neither a one-family dwelling (sec. 118-300C(1)(a)) nor a boathouse (sec. 118-300C(1)(c)) and therefore is itself a nonconforming use. It is not a one-family dwelling because under section 118-100 the structure does not qualify as such. This section gives the following relevant definitions.
Dwelling, Single-Family — a dwelling having only one (1) dwelling unit with 1 (one) kitchen, as herein defined, from ground to roof and having independent outside access.
Dwelling Unit — any room or group of room located with a residential building and forming a single habitable unit with facilities which are used or intended to be used for living, sleeping, cooking and eating by one (1) family provided that each such unit is limited to (one) kitchen as herein defined. (Emphasis added.)
Kitchen — an area of a dwelling unit, as herein defined, house or apartment used for the preparation, storage and/or service of food which contains any or all of the following fixtures and/or equipment in whole or part: storage cabinets (plastic, metal or wood), kitchen sinks, refrigerator, dishwasher, stove, hot plate, oven, table top broiler, including fans and hoods; all of which are installed or plugged into related plumbing and electrical fixtures or connections." (Emphasis added.)
The record is clear that the existing structure does not have a kitchen as defined above. The record is also clear that while it may have a sink supplied by rainwater, it has no electrical power or toilet connected to a septic system and therefore does not have any of the appliances which are specified in the definition as "plugged into related plumbing and electrical fixtures or connections." It is therefore not a one-family dwelling under Sec. 118-300C(1)(a).
The structure is also not a boathouse. While not defined in the regulations the term is defined in Webster's New World Dictionary, 2d. Coll. Ed. at 156 as "a building for storing a boat or boats, sometimes equipped with recreational facilities." The structure is clearly not designed for the storage of boats of any kind and the record is barren of any evidence that it was ever used to store a boat or boats. The plain fact is that while this structure has some basic housekeeping amenities such as a compositing toilet, a rain fed sink, a camp type kitchen, it has no plumbing, heating system or sewage disposal system. It therefore partakes more of a "camp" than either a dwelling or a boathouse. The court notes that neither a camp nor a campsite is a permitted use ICZ in the zone. The court also notes that the other uses which have been ascribed to the structure which appear in the record such as, "accessory building, storage shed" are likewise not permitted uses in the zone. The structure is therefore, a nonconforming use.
A composting toilet is a dry toilet that uses a process of aerobic decomposition to treat excrement with little or no water. Wikipedia, The Free Encyclopedia.
"Sewage system" is defined in Conn. As "any device, equipment, appurtenance, facility and method for collecting, transporting, receiving, treating disposing of or discharging sewage." G.S. § 7-245(12). "Subsurface sewage disposal system" is defined as "a septic tank followed by leaching pits, trenches, beds or galleries." G.S. § 20-241a(3).
While "camp" does not appear anywhere in the regulations as a permitted or accessory use, it is defined as "a tent, cabin or a group of these, used for temporary lodging, as by hunters, fishermen, etc." Webster's New World Dictionary, 2d Coll. Ed. at 204.
The factual situation in the present case is not unlike the situation in which the owner in Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146 (1976) found itself. In that case the owner applied for and received a variance of a setback requirement to enable him to build a gas station. With this setback, when applied in conjunction with the other zoning setbacks, the owner would be able to build too small a building to accommodate the gas station. Id. Application of the setbacks to the site would have resulted in a triangular shaped building site which in turn limited the location of the building envelope to 15% of the lot area. The court found that this constituted a sufficient hardship.
In Lawrence Memorial Hospital, Inc. v. Zoning Board of Appeals, 22 Conn.App. 291, 300-01 (1990), the Appellate Court, relying on Chevron Oil Company v. Zoning Board of Appeals, supra, and Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296 (1980), made the following statement: "In Johnny Cake, Inc. v. Zoning Board of Appeals, supra, 300-301, the court indicated that "if the hardship is created by the enactment of a zoning ordinance and the owner of the parcel, could have sought a variance, then the purchaser has the same right to seek a variance and, `if [its] request is supported in law, to obtain the variance . . . Otherwise the zoning ordinance could be unjust and confiscatory.'" (Citation omitted.)
In the present case, the hardship was created by the enactment of a zoning ordinance, namely, the 1974 amendment changing the classification from B residence to ICZ. Contrary to the plaintiffs' claim, the present owner, as purchaser had the same right to obtain a variance to use this island as the legal owner of the property did at the time of the zone change. "We do not agree with the defendants' assertion that the inability to use 3.3 acres of land does not amount to being confiscatory because the plaintiff was still able to use about "15 of the 18 acres" [sic] or "about 85 percent" [sic] of its property." As in Johnny Cake, Inc., the plaintiff has a right to obtain a variance to use these 3.3 acres for permitted uses in the institutional zoning district if its request is otherwise supported in law, because the automatic denial renders the zone change amendment unjust and confiscatory." Lawrence Memorial Hospital, Inc. v. Zoning Board of Appeals, supra at 301.
These cases stand for the principle that neither the present setbacks enacted in 1974 nor the existing use bind the owner to the present structure. Finally, in Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, supra, the court upheld a variance of a setback provision which if enforced, would have enabled the owner to build a 10-foot-wide building. Even more closely analogous to the present case is Egan v. Zoning Board of Appeals, 20 Conn.App. 561, 564 (1990), wherein the court upheld a variance of setback provisions which if enforced, would have prevented the location of a house of any size on the lot. This is precisely the case here. The four 50-foot setbacks from MHW all intersect at a point where no land remains for siting the building. See also, Sydoriak v. Zoning Board of Appeals, 90 Conn.App. 649, 651-52 (2005), where, because of the construction of a new town road the 50-feet setback required in the zone left only 140 square feet for a building site. The lot was created prior to zoning and neither the plaintiff nor his predecessor in interest was responsible for the nonconformity of the lot. In the present case, the island was obviously created prior to zoning and neither the present owner nor its predecessor had anything to do with the inability of the island to conform.
The building proposed for the site is an expressly permitted use as a boathouse, designed for the storage of three small boats, which will be equipped with a composting toilet, propane refrigerator and gas heater, all consistent with the declared recreational use as a boathouse. So the hardship is derived from the adoption of the 50-foot MHW setback requirement in 1974, which because of the size, shape and topography of the island prevent the use of the property for the erection of any structure other than a landing or a dock. Section 118-300C(1)(c).
It is unclear from the record whether prior to 1974 when the island was zoned B residence whether any size boathouse could have been built. But the court notes, for instance, that the side yard setbacks for the B residence zone are: front yard — 30 feet; rear yard — 15 feet; side yards — 6 feet. Since the B residence zone did not have separate setbacks from MHW it is assumed that each of these setbacks would in fact be measured from MHW if the property was still in the B residence zone.
A review of the record reveals another basis for a finding of hardship. That a variance will eliminate a nonconforming use constitutes independent grounds for sustaining the granting of a variance. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 710 (1988). While this variance does not totally eliminate a nonconformity it definitely reduces several significant nonconformities. First, as stated earlier, the proposed boathouse is an expressly permitted use in the zone whereas the present structure, whether called an accessory building, storage shed, cabin or campsite, is not a permitted use. Moreover, the building has been designed to store three small boats, a zodiac and two kayaks or canoes. Next, as discussed earlier under II above, the current plan will bring the principal use of the island into compliance with section 118-111 of the regulations governing a flood hazard zone whereas the existing structure is totally noncompliant. Section 118-111C is an overlay zone that applies to all lands shown on the Norwalk floodway map. Additionally, unlike the current structure which sits on cement blocks, the new structure will promote compliance with the 50-foot MHW setback by permitting "the free flow of . . . tidal waters" by incorporating a breakaway foundation wall set on piers designed to permit tidal flow in the event a storm tide. According to Professional Engineer Holt W. McCord, "the structure as designed will be adequate to withstand flood depths, pressures, velocities, impact and uplift forces and other factors associated with base floods." Additionally, as to the setbacks themselves, two of the distances will be longer than present and two will be shorter. The entire structure will be 7.92 feet further from MHW than the present structure.
"We recognized that "nonconforming uses should be abolished or reduced to conformity as quickly as the fair interest of the parties will permit — `[i]n no case should they be allowed to increase.' Salerni v. Scheuy, 140 Conn. 566, 570; Stern v. Zoning Board of Appeals, 140 Conn. 241, 244." Beerwort v. Zoning Board of Appeals, 144 Conn. 731, 734 (1958). "The accepted method of accomplishing the ultimate object is that while the alien use is permitted to continue until some change is made or contemplated, thereupon, so far as is expedient, advantage is taken of this fact to compel a lessening or suppression of the nonconformity." Darien v. Webb, 115 Conn. 581, 585 (1932); Lathrop v. Norwich, 111 Conn. 616, 623 (1930). We reiterate the unchallenged finding of the trial court that `the proposed use for the subject property operating under current regulations as to air pollution and the like would be far less offensive to the surrounding residents than a Foundry.'
"A property owner may legally engage in a prohibited use under either of two dispensations. He may obtain a variance, or his use may qualify as a nonconformity." T. Tondro, supra, § III-E(4), p. 70. A nonconformity is a use or structure prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations are adopted. Id. On the other hand, a variance is a prohibited use or structure that is permitted by the board, pursuant to its authority under the regulations. Id. The variance power exists to permit what is prohibited in a particular zone." (Emphasis added.) (Alternate citations omitted.) Adolphson v. Zoning Board of Appeals, 205 Conn. at 710, supra. The board did not act illegally in finding hardship.
V. Comprehensive Plan
The plaintiff alleges and argues that the variance substantially affects the comprehensive plan of zoning in Norwalk. As stated in part IV above, the second of the two conditions that must be fulfilled in order to support a variance is that the variance must not substantially affect the comprehensive plan. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368 (1988). This has come to mean that the variance must be in harmony with the purpose and intent of the zoning regulations in the area of the property. Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 656 (1980). The comprehensive plan of zoning is found in the scheme of the zoning regulations and the zoning map. Burnham v. Planning and Zoning Commission, 189 Conn. 261, 267 (1983).
The starting point in this assessment is an examination of the declared purpose of the ICZ. Sec. 118-300 begins with the following introductory statement:
"A. Declaration of necessity and purpose.
(1) It is declared that a need has developed for the protection of the fragile environment of the Norwalk Islands while permitting their development for limited residential uses.
(2) In order to permit such development and to protect the islands, the following provisions are declared to be necessary in the public interest."
It is significant that in addition to the prime purpose of the regulation, i.e., limited residential use, the regulation contains only three principal uses, viz: (i) single-family dwellings, (ii.) parks and playgrounds and (iii.) boathouses with landings and docks. As stated earlier, the owner presented the application to the board as a "boathouse." While the owners state in their brief that they intend "to stay on the island occasionally" this is interpreted to refer brief overnight stays done in connection with the recreational nature and use of the island. The court notes that no sleeping quarters are shown on any of the several floor plan drawings that are in the record, although the court notes reference in the owners' brief to the possibility that the loft might occasionally be used for that purpose. Notwithstanding, the proposed boathouse use in conjunction with the existing boat dock with a secondary but supportive residential use could not be more consistent with the several purposes of the zone. The record also demonstrates that there are roughly 25 islands in the ICZ. While most of them are larger in size many are improved with one-family dwellings which are served by landings and docks similar to Cedar Hammocks Island. The court notes further that the architectural design will be not incongruous with the houses along the shoreline. While the shoreline houses are larger and of diverse design it must be kept in mind that this island is located in a different zone from the shoreline homes which themselves are located in other residential zones which are not by the terms of their regulations, water oriented.
It is apparent from the documents in the record that the building will be proportionate to the size and shape of the island, will be the smallest house-like structure on any of the Norwalk islands and will further the long-term goals of the zone as a recreational facility.
Just as members of the Zoning Board of Appeals were entitled to take into consideration knowledge acquired by personal observation, Dubiel v. Zoning Board of Appeals, 147 Conn. 517, 522 (1960), so too the court may draw upon its lifelong familiarity with the Connecticut shoreline of Long Island Sound to contribute to its evaluation of the plaintiff's argument on this point. There are numerous small islands along our shoreline which are improved with structures similar to what is proposed for this island. The Connecticut shoreline has a rich history of this type of construction although some of the structures are no longer in existence. Particular islands which come to mind which are so developed are: Boles Island and Wee Captain's Island in Greenwich, Wheeler Island in Branford (part of Thimble Islands) and Middleground Light in Stratford Shoal which has now become a "weekend retreat." These structures occupy a high percentage if not all of the land on which they are located. Essential to the court's assessment of the effect of the project on the comprehensive plan is the fact that one of the Norwalk Islands is Manresa Island which is the home of an electric steam generating plant that serves the northeast power grid. The island is visible from all of the other Norwalk islands as well as from the plaintiffs' property. The facility consists of a multi-story generating plant which fires its turbines with oil and natural gas. The generating plant is served by a 364-foot smoke stack, three fuel storage tanks and other accessory buildings. See, Jennings v. Connecticut Light and Power Co., 140 Conn. 654 (1954). Cedar Hammocks Island is located roughly midway between Manresa Island and the plaintiffs' property, slightly to the south and east.
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NRG newsrelease, December 15, 1999.
Thus, the court finds that the use proposed for this island will not only be in harmony with the purposes of the island conservation zone but will promote its goals.
Since all issues have been resolved against the plaintiffs the court finds that the board did not act illegally, arbitrarily or in abuse of its discretion in entertaining the second application on granting the variances. Accordingly, the appeal is dismissed.