Opinion
FBTCV166054797S
10-17-2016
Mark Bastarache v. Town of Stratford Zoning Board of Appeals
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
This is an appeal from the decision of the Stratford Board of Zoning Appeals (" ZBA") approving the application of Donald Gorlo (" Gorlo") for a variance to relocate and reconstruct a beach-front cottage that had been destroyed in a storm. Plaintiffs are neighbors of the subject premises in the waterfront community owned by West Lordship Beach Corporation (the " Association").
For the reasons stated below the appeal is denied and the ZBA's decision to grant the variance is approved.
Standard of Review
In Anatra v. Zoning Board of Appeals of Madison, 307 Conn. 728, 737-38, 59 A.3d 772 (2013), the Supreme Court addressed the standard of review applicable to judicial review of a Zoning Board of Appeal's decision. " Generally, it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court ha[s] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal . . . Moreover, the plaintiffs bear the burden of establishing that the board acted improperly." 307 Conn. at 737-38 (ellipsis in original) quoting Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 408-09, 920 A.2d 1000 (2007).
A reviewing court is not permitted to substitute its judgment on the evidence for that of the Board. " 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 the trial court finds 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 . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." Woodbury Donuts, LLC v. Zoning Board of Appeals of Woodbury, 139 Conn.App. 748, 759-60, 57 A.3d 810 (2012) (citations omitted).
A zoning board's actions must be approved if even one of the board's stated reasons is sufficient to sustain the action. See Blakeman v. Planning & Zoning Com'n of Shelton, 82 Conn.App. 632, 647, 846 A.2d 950 (2004).
The Anatra Court also distinguished between issues based on the interpretation of statutes, which presents a question of law subject to plenary review, and the question of whether the board properly denied an application, which is " subject to review only to determine whether the board 'acted unreasonably, arbitrarily, illegally or in abuse of its discretion.'" Anatra, 307 Conn. at 738 quoting Alvord, 282 Conn. at 409.
Plaintiffs Are Aggrieved by the ZBA Decision
Plaintiffs live within one hundred feet of the subject premises and are aggrieved by the ZBA's decision under C.G.S. § 8-8(a)(1).
Standards for Granting a Variance
A variance constitutes permission for a party to use their property in a manner otherwise prohibited by the zoning regulations. Bloom v. ZBA, 233 Conn. 198, 206, 658 A.2d 559 (1995). The authority for granting variances is set forth in C.G.S. § 8-6(a)(3) which allows the board to vary the application of the zoning ordinance or regulations, consistent " with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured." See generally R. Fuller, Land Use Law & Practice § 9:1 (2015) (" Fuller").
Plaintiffs argue that a variance may only be granted upon a showing of exceptional difficulty or unusual hardship citing Verrillo v. ZBA of Branford, 155 Conn.App. 657, 678-79, 111 A.3d 473 (2015). Plaintiffs contend that the recent Supreme Court decision in E& F Associates, LLC v. ZBA of Fairfield, 320 Conn. 9, 17-18, 127 A.3d 986 (2015), has raised the bar on proving hardship by overruling Stillman v. ZBA of Redding, 25 Conn.App. 631, 596 A.2d 1 (1991) and its progeny, holding that it no longer is sufficient to show the subject property has a " peculiar characteristic"; an applicant for a variance must now show " that the property could not reasonably be developed for some other use permitted in the zoning district or that the effect of limiting the parcel to the permitted uses only would be confiscatory or arbitrary."
There is a line of appellate authority which recognizes an alternative to hardship and an independent ground for issuing a variance outlined by the Appellate Court in Hescock v. ZBA of Stonington, 112 Conn.App. 239, 258-59, 962 A.2d 177 (2009), quoting Vine v. ZBA of North Branford, 281 Conn. 553, 571, 916 A.2d 5 (2007):
" In cases in which an extreme hardship has not been established, [however], the reduction of a nonconforming use to a less offensive prohibited use may constitute an independent ground for granting a variance." Id., at 562, 916 A.2d 5. Consequently, our Supreme Court in Vine held that this court improperly reversed the trial court's judgment upholding the granting of a variance from the town's zoning regulation that required a minimum square footage on all lots. Id., at 556, 572, 916 A.2d 5. The court concluded that granting the variance would result in a development that more nearly conformed to the technical requirements of the town's zoning regulations and would not result in a more offensive use of the property. Id., at 570-71, 916 A.2d 5. The court stated that " it would elevate form over substance to insist on [the showing of exceptional hardship] when there is no claim or evidence that granting the variance could result in even minimal harm to the neighborhood or undermine in any way the overarching zoning scheme, especially when there is substantial evidence to support a conclusion that it would result in a more conforming use." Id., at 571, 916 A.2d 5.
The court in Vine relied on two other cases. In Adolphson v. Zoning Board of Appeals, [205 Conn. 703, 705, 535 A.2d 799 (1988)] . . . our Supreme Court affirmed the judgment of the trial court upholding the granting of a variance from a regulation prohibiting the operation of an automobile repair shop. Id., at 705-07 . . . The defendants wanted to operate the repair shop instead of a nonconforming aluminum casting foundry. Id., at 705 . . . The court recognized that " nonconforming uses should be abolished or reduced to conformity as quickly as the fair interest of the parties will permit . . . [W]hile 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." . . . Id., at 710 . . . The Supreme Court also emphasized the finding of the trial court that the proposed use would be far less offensive to the neighborhood and surrounding residents than a foundry. Id. In Stancuna v. Zoning Board of Appeals, [66 Conn.App. 565, 566, 785 A.2d 601 (2001)] . . . this court affirmed the judgment of the trial court upholding the granting of a variance from regulations requiring certain side yard setback. Id., at 566, 785 A.2d 601. The court concluded that the variance would eliminate a nonconforming residential use of the property and allow a commercial use in a commercial zone. Id., at 572, 785 A.2d 601. The court also noted that the variance was in keeping with the town's comprehensive plan and that the changes appurtenant to the variance would conserve the public health, safety and welfare of the neighborhood. Id.
There is nothing in the Supreme Court's decision in E& F Associates, LLC that would foreclose using reduction of nonconformity as an independent alternative ground for issuing a variance.
Defendant Gorlo proceeded on the independent ground of reducing zoning nonconformity in seeking a variance and therefore did not have to prove hardship. See generally Fuller § 9:3. After closing the hearing on January 5, 2016, the ZBA unanimously approved the request for variance and application for CAM approval. The certificate of decision states the reason for granting the variance was " reducing non-conformity." Thus, the ZBA clearly based its decision on the independent ground of reduction of nonconformity rather than hardship and the question before the court is whether this decision is based on substantial evidence.
The Granting of the Variance is Supported by Substantial Evidence in the Record
1. The Variance Will Reduce Zoning Nonconformity of the Subject Parcel
The record discloses that in December 1992, a nor'easter destroyed a cottage, designated as a unit within the common interest ownership community of twenty-six homes on the Stratford shoreline owned by the Association. Defendant Gorlo owns that unit and has a vested property right to reconstruct the cottage at its former location, which predates zoning and is a non-conforming use that contravenes present zoning because it is too close to the shore. The variance requested would allow Gorlo to move the unit to a location further from the beach where he could construct a new cottage that is less nonconforming than the former cottage. The new location is beyond the fifty-foot setback from the mean high waterline, which would eliminate this non-conformity of the former cottage. The new location would substantially reduce the nonconformity of the unit's encroaching on the coastal beach area from one hundred and eighty-eight feet to ninety and one-half feet, reducing by more than half this non-conformity.
See Petruzzi v. ZBA, 176 Conn. 479, 483, 408 A.2d 243 (1979) (" [w]here a nonconformity exists, it is a vested right which adheres to the land itself").
Section 3.14 of the Stratford Zoning Regulations provides, in pertinent part, that any structure be located a minimum of fifty (50) feet landward of the mean high water line and a minimum seventy-five (75) feet from a coastal resource such as a beach.
This case is similar to Hescock, 112 Conn.App. at 260-61, where the ZBA granted a variance to move an existing house which reduced nonconformity to a setback from the mean high tide line by only three feet.
2. The ZBA Considered Public Health, Safety and Welfare in Granting the Variance
Plaintiff argues the ZBA disregarded its duty under C.G.S. § 8-6(a)(3) to consider conserving public health, safety and welfare by failing to take into account concerns expressed by Brian Lampert, Stratford's Deputy Fire Chief and Fire Marshall, about the fire hazards from construction of a new structure in close proximity to existing structures in the beach community. Plaintiff cites A& F Construction Co., Inc. v. ZBA of West Haven, 60 Conn.App. 273, 277, 759 A.2d 101 (2000), in support of the argument that the ZBA was bound to heed the Fire Marshall's warnings about the threat to public health, safety and welfare from construction of a new structure in the location permitted by the variance.
In A& F Construction Co., Inc., 60 Conn.App. at 277, the Appellate Court held " . . . § 8-6 does not allow for the granting of a variance where it is inconsistent with the intent of the ordinance or adversely affects the public health, safety or welfare."
However, Mr. Lampert's opinion was not the only expert opinion presented to the ZBA. Mr. Joseph Versteeg, an expert in fire safety, submitted a report that detailed how the proposed structure would comply with the State Building Code, which incorporates fire safety measures. Residents also testified that the new home location would not create a fire hazard. The ZBA also had benefit of maps that showed the location of the planned and existing structures and streets and parking lots adjacent thereto. Presumably, the ZBA also had benefit of local knowledge of the beach community and the surrounding area, including the location of the nearest fire station.
There is substantial evidence in the record that the ZBA considered public health, safety and welfare in granting the variance and the Court is not free to substitute its judgment for that of the ZBA in this matter.
3. The Unit in Question is a " Parcel" Within the Meaning of C.G.S. § 8-6(a)(3) and the Variance Affected Only the Subject Unit
Plaintiffs attack the variance as applying to the entire 7.3-acre parcel owned by the Association, and dispute whether the unit in question could be considered a " parcel" within the meaning of C.G.S. § 8-6(a)(3), which restricts the power to grant variances " . . . solely with respect to a parcel of land, where owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated" strict enforcement of the zoning regulations would result in " exceptional difficulty or unusual hardship . . ." Plaintiffs' circular argument that the only recorded parcel belongs to the Association and therefore the parcel granted the variance was the entire parcel, fails to recognize that a unit of a common interest community, even one designated by an address rather than unit number, is an identifiable property interest that may be a parcel for which a variance may be granted. C.G.S. § § 47-202(35), (36).
The record is replete with evidence that it was the particular unit owned by Mr. Gorlo and not the entire parcel owned by the Association that was the subject of the variance application and that Mr. Gorlo was enforcing his property interest as unit owner in the variance application. There is no evidence the ZBA granted " a blanket variance affecting the entire 7.3-acre parcel of land, " as plaintiffs assert. That other unit locations were available that would not need a variance or that other units might qualify for similar variance is irrelevant to this appeal from the variance granted here based on facts presented relating solely to the subject unit.
CONCLUSION
Based on review of the record, it cannot be said that the ZBA's granting of the variance was arbitrary, illegal or an abuse of discretion. The ZBA's decision was supported by substantial evidence in the record. Therefore, the ZBA's grant of the variance is affirmed and the appeal is denied.