Towse v. Zoning Board of Appeals

Full title: ROBERT TOWSE, ET AL v. ZONING BOARD OF APPEALS OF THE CITY OF STAMFORD, ET…

Court: Connecticut Superior Court Judicial District of Stamford/Norwalk

Date published: Jan 9, 2006

2006 Ct. Sup. 725 (Conn. Super. Ct. 2006)

Opinion

No. FST CV 04 4001707S

January 9, 2006

MEMORANDUM OF DECISION

CHASE T. ROGERS, JUDGE.

Introduction

Defendants, Scott and Mona Baird ("Defendants"), applied for variances to remove an existing house and to construct a new residence. The ZBA granted Defendants' application on August 25, 2004. The Notice of Decision was published on September 9, 2004, and Plaintiffs filed a timely appeal. Plaintiff's appeal alleges, that the ZBA acted illegally and arbitrarily in granting the application because Defendants did not establish an adequate legal hardship.

Facts

The Defendants purchased 204 Davenport Drive, Stamford, Connecticut (the "Premises") approximately five years ago. The Premises abut the Long Island Sound and therefore the Federal Emergency Management Agency (FEMA) requires that flood zone regulations must be met if the existing home is torn down and a new home is reconstructed thereon.

Defendants made application to the Stamford Zoning Board of Appeals for variances for the reconstruction of a new home on essentially the same "footprint," with the same lot coverage and similar set-backs as their present residence. Defendants requested a variance to permit the rear set-back line to be thirty-three (33) feet in lieu of the required fifty (50) foot restriction; a variance of the northerly side yard to permit a ten foot nine inch (10' 9") set-back where a twenty (20) foot side yard set-back is required, and a building area coverage of 16.4% where the limit is 15%.

The existing house was originally built in 1956. At that time the Premises was zoned R-10. At some point after 1956 the then owners of the Premises revised the sea wall from a straight wall along the mean high water line to an approximate C shape to form a small private beach on the property. The revision of the sea wall and creation of the beach at that time were entirely permissible and still in conformity with the zoning regulations existing at that time. Subsequent to 1963, the beach was washed away and the mean high water mark presently runs along the existing sea wall. As a result, approximately 1816 square feet of Defendants' property was lost by erosion prior to their purchase of the Premises.

In 1985, the Stamford Zoning Regulations were changed and became more restrictive. The Premises were re-zoned R-20, and thereupon became non-conforming in terms of side yard and rear yard set-backs, and lot coverage.

On August 25, 2004, the ZBA made a finding of hardship based upon the irregular shape of the lot and erosion of the beach. The ZBA granted Defendants' application for variances, with conditions, by a vote of four to one.

Standard of Review

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 Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269 (1971). The courts cannot 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 upon the party seeking to overturn the board's decision. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988).

Aggrievement

The plaintiffs own property within one hundred feet of the Premises involved in the decision of the Board and therefore are statutorily aggrieved by the decision of the Board.

Law CT Page 727

Variances of the zoning regulations are authorized by Chapter 56 of the Stamford Charter, which provides that the ZBA shall have the same authority found in General Statutes § 8-6. A variance is permitted if a literal enforcement of the zoning law would cause "unusual hardship" because of some specific condition affecting a parcel of land.

Defendants have two claims of hardship; the unusual configuration of the Premises, and the erosion of the Premises' beach.

The Premises is an irregularly shaped lot. It has been variously described as "trapazoidal" and "a skewed rectangle, like a parallelogram." The northerly neighbor had no objection to the existing side yard remaining 10.9 feet and supported Defendants' application. Prior to the erosion of the Premises' beach, the rear set-back was 51.4 feet, and lot coverage was 14.8%. Having lost the beach, the rear setback of the existing house to the sea wall, is presently 32 feet, and lot coverage 16.4%. Defendants' application for the variance seeks a rear set-back of 33 feet, and the identical lot coverage of 16.4%.

Difficult or unusual shapes or configurations of lots may form the basis of hardship which supports the granting of a variance. Where by reason of exceptional shape, size or topography of lot, or other exceptional situation or condition of the building or land, practical difficulty or unnecessary hardship would result to the owners of said property from a strict enforcement of the regulations, a variance may be granted. The Mabank Corp. v. Board of Zoning Appeals of the City of Stamford, 143 Conn. 132, 134 (1956).

In addition to the unusual shape of the lot the ZBA also gave consideration to the erosion.

Mr. Sedlak: It's a skewed rectangle, like a parallelogram . . . So, in order to have the front of the house parallel with the street, or parallel with the water . . . you're getting into corner variances, especially one quarter and both side yards.

Ms. White: Yes, yes.

Mr. Sedlak: But then the rear side yard — I mean rear setback — is caused by that piece of seawall, the erosion.

Ms. White: Yes, yes.

Mr. Sedlak: The erosion is due to the seawall, so that there might have to be a rear yard variance under any event.

Ms. White: Under any circumstances.

Erosion maybe a sufficient hardship upon which to grant a variance. In the case of Overshore Association, Ins, et al. v. Zoning Board of Appeals of the Town of Madison et al., 02-CBAR-2526 (2002), the proximity of the premises to Long Island Sound rendered it subject to FEMA regulations. The record contained evidence of erosion of the defendant's property. Because the hardship arose from the effects of the forces of nature on the defendant's property, it resulted from an unusual characteristic of the property, not an act of the property owner. In Overshore, a finding of hardship was upheld, based upon the size of the lot, part of which was lost by erosion, coupled with the configuration of improvements on the property.

Plaintiffs argue that the erosion of the beach was a self-created hardship. The self-created hardship rule provides that "[w]here the applicant or his predecessor creates a nonconformity, the board lacks power to grant a variance." Kulak v. Zoning Board of Appeals, 184 Conn. 479, 482 (1981). When the wall was put up, however, there was land behind it (the beach) so the owner did not reduce the rear yard or the lot size. In addition, the defendants' predecessor, who revised the sea wall so as to create a beach, did so lawfully and in full compliance with the then existing zoning regulations. In other words, there was no nonconformity with the then existing zoning regulations by creating the beach. "Because the installation of the improvements predates the zoning regulations, it cannot be considered self created hardship." Stillman v. Zoning Board of Appeals of the Town of Redding, 25 Conn.App. 631, 637 (1991). The Board actually addressed this issue.

Mr. Sedlak: . . . The seawall was built when it was R-10 . . . it was conforming with zoning.

Ms. White: Yes, yes.

Mr. Sedlak: — Even though there was erosion, it would still conform to R-10.

Ms. White: Exactly.

Mr. Sedlak: So, the hardship goes with the land, so no matter which owner did that —

Ms. White: Yes.

Plaintiffs next claim that Defendants' hardship was self-created by the purchase of the Premises in an R-20 zone which they knew or should have known was non-conforming. This claim is unavailing. Here, the Premises was re-zoned to R-20 after the revision of the seawall by Defendants' predecessor and the erosion of the beach. The Defendants did not create the nonconformity, but, rather, the nonconformity arose with the enactment of the zoning regulations. The defendants are not barred by the self-created hardship rule from obtaining a variance." Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 300-01; Kulak v. Zoning Bd. of Appeals of the City of Stamford, 184 Conn. 479 (1981). "The hardship cited in the current application results from the minimum lot size and setback distance specified in the (1985) zoning regulations, not by the applicant's own action or inaction." Eagan v. Zoning Bd. of Appeals of Old Lyme, 20 Conn.App. 561, 565 (1990). Where a nonconformity exists, it is a vested right which adheres to the land itself . . . The right to seek a variance is not extinguished by the arrival of a new owner." Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483, (1979).

Plaintiffs' final claim on appeal is that the variance fails because "it must be shown not to affect substantially the comprehensive zoning plan." Grub v. Zoning Board of Appeals, 206 Conn. 362, 369 (1988). The trial court reviews the record to determine whether there is a factual basis for the decision of the zoning board of appeals. Francini v. Zoning Board of Appeals of the Town of Old Lyme, 228 Conn. 785 (1994). The Planning Board of the City of Stamford reviewed Defendants' application and found that the proposed construction would have no adverse impact on the neighborhood, and was consistent with the City of Stamford's Master Plan. The Engineering Bureau of the City of Stamford reviewed Defendants' application and found that the proposed new residence does not have a significant increase in square footage, and does not have any adverse impact on street drainage nor upon the adjoining properties. Here, the ZBA had substantial evidence upon which to find the Defendants' variance would not substantially effect the comprehensive zoning plan.

Conclusion

The ZBA's decision granting defendants' application for variances was not arbitrarily, illegally or unreasonably made. Plaintiffs' appeal is therefore dismissed.