Opinion
No. LLI CV 08 4007339S
February 25, 2009
MEMORANDUM OF DECISION
The plaintiff, Robert Guendelsberger, has filed this appeal from the granting of variances to neighboring property owned by the defendant, GMLR, LLC ("GMLR") at 31 Park Lane Road in New Milford. These parties and the defendant, New Milford Zoning Board of Appeals ("Board"), filed briefs and engaged in oral argument.
I. Aggrievement
The plaintiff owns property within 100 feet of the property involved in the decision. The plaintiff is statutorily aggrieved. C.G.S. § 8-8(a)(1).
II. Facts
GMLR owns 1.31 acres of property in New Milford at the intersection of Park Lane Road (Route 202) and Taylor Terrace. The property is located in a B-1 Restricted Business Zone which permits various kinds of service businesses. Currently, and since about 1977, there has been a two-story building on the property which has been used as a hair salon and residence. The majority of the rear, center and south side yard contain wetlands. The property is bisected by a Town of New Milford under-ground storm drain which cuts off the wetland area from the usable front portion of the land.
According to the assessor's field card (Record #36), GMLR purchased the property in 2007 for $475,000. GMLR seeks to renovate and convert the existing building to a permitted retail business (a glass business) with two office uses upstairs. This will require the construction of a small addition, additional parking, drainage facilities and a septic reserve area. In order to permit these changes, GMLR applied to the Board for three separate variances: 1) reduction in the 40-foot front yard setback to 25 feet to permit the location of parking facilities within the front set-back area; 2) reduction in the 40-foot front yard setback to permit a access drive, drainage facilities and a septic reserve area to be located within the required front yard landscape area; 3) a 30% reduction in the number and type of plantings required in the front landscape area.
The Board held a public hearing at which GMLR presented its engineering plans and made the case that the extensive wetlands and underground drainage to the rear of the property constitute a hardship which support a variance. There was significant neighborhood opposition. The Board found that the wetlands and the drainage pipe unduly restricted the use of the existing building for permitted B-1 uses. The Board unanimously voted to grant the variances. The plaintiff has appealed from that decision.
III. Standard of Review
"The standard of review on appeal from a zoning board's decision to grant or deny a variance is well established." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205, 658 A.2d 559 (1995). Upon appeal, a trial court must review the zoning board's decision to determine if it was arbitrary, illegal, or an abuse of the board's discretion. Clifford v. Planning and Zoning Commission, 280 Conn. 434, 440, 980 A.2d 1049 (2006). "The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994). "Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 206. "In light of the existence of a statutory right of appeal from the decisions of local zoning authorities . . . [however,] a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty." (Internal quotation marks omitted.) Quality Sand Gravel, Inc. v. Planning and Zoning Commission, 55 Conn.App. 533, 537, 738 A.2d 1157 (1999).
"Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or proper motives or upon valid reasons." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206. "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 [a zoning] commission 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 [commission] . . . The question is not whether the trial court would have reached the same conclusion . . . but whether the record before the [commission] 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 . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) Cambodian Buddhist v. Planning Zoning Commission, 285 Conn. 381, 427, 941 A.2d 868 (2008). "Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 208.
IV. Discussion
In this case the Board gave an explicit reason for granting the variance: "The variance is granted due to the property for permitted B-1 uses is restricted by extensive wetlands and underground drainage to rear of the property by location of the existing structure on the site and by the elimination of access from Taylor Terrace to accommodate safety concerns for school children." The court must examine the Record to determine whether there is evidence to support this reason given by the Board.
"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, supra, 233 Conn. 206. "It is well established, however, that the granting of a variance must be reserved for unusual or exceptional circumstances . . . An applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone . . . Accordingly, [the Supreme court has] interpreted General Statutes § 8-6 to authorize a zoning board of appeals to grant a variance only when two basic requirements are satisfied: (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." (Citations omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206-07.
"The power to grant a variance in the application of established zoning regulations should be exercised charily . . . The obvious reason is that unless great caution is used and variations are granted only in proper cases, the whole fabric of [town and] city-wide zoning will be worn through in spots and raveled at the edges until its purpose in protecting property values and securing an orderly development of the community is completely thwarted." (Citation omitted.) Heady v. Zoning Board of Appeals, 139 Conn. 463, 467, 94 A.2d 789 (1953).
"Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance." Bloom v. Zoning Board of Appeals, supra, 233 Conn. 207-08. The Supreme Court has held that "[d]isappointment in the use of property does not constitute exceptional difficulty or unusual hardship." Krejpicio v. Zoning Board of Appeals, 152 Conn. 67, 662, 211 A.2d 687 (1965). Additionally, a hardship may not be purely financial. Libby v. Board of Zoning Appeals, 143 Conn. 46, 51, 118 A.2d 894 (1955). "A mere economic hardship or a hardship that was self-created . . . is insufficient to justify a variance . . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance." (Citation omitted.) Bloom v. Zoning Boar of Appeals, supra, 208.
"Financial considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations to the property greatly decreases or practically destroys its value for any of the uses to which it could reasonably be put and where the regulations, as applied, bear so little relationship to the purposes of zoning that, as to particular premises, the regulations have a confiscatory or arbitrary effect." Carlson v. Zoning Board of Appeals, 158 Conn. 86, 89-90, 255 A.2d 841 (1969).
The plaintiff's main argument is that GMLR will not experience a hardship if it does not receive these variances. The plaintiff points out that GMLR can continue to use the property as a hair salon and residence, a use to which the property has been put for many years. The plaintiff argues that the defendant [GMLR] has created its own hardship by buying the property with knowledge that it might not be feasible to use it for a glass business.
GMLR makes it clear that it is not relying on financial hardship which is based upon a virtual destruction of the value of the property for any use. Instead of financial considerations, GMLR relies on the limitations imposed by the unusual topographical features of the property. It is true that topographical or other physical conditions on a property may be the basis for a hardship, as long as the conditions are not present in surrounding properties. Stillman v. Zoning Board of Appeals, 25 Conn.App. 631 (1991). There is no question about the fact that the property has significant features which limit the area which can be put to constructive use. The rear of the property is all wetlands. The underground storm drain would prevent construction on top of the pipe. When set-back distances are added to the equation, the usable area for buildings and parking is further reduced. GMLR is undoubtedly correct that these topographic features limit the development potential of the property, and that these features are not shared with other properties in the area.
GMLR could hardly make such an argument based upon financial considerations, It bought the property in 2007 for $475,000 when it must have been aware that the only use which could be guaranteed was the current use as a hair salon and residence.
However, the appellate case law provides powerful guidance that the topographical features in this case are insufficient to create the hardship necessary for a variance. A recent case in point is Vine v. Zoning Board of Appeals, 93 Conn.App. 1 (2006). In that case the board of appeals granted a variance from recently-enacted dimensional regulations to permit the applicant to build two houses on three lots of an old subdivision. The lots were burdened with an above-ground utility easement to CL P, and an underground easement to the Algonquin Gas Transmission Company, both of which limited the applicant's ability to comply with the dimensional regulations. The Superior Court dismissed the appeal taken by a neighboring property owner based upon a finding of hardship caused by the utility easement. The Appellate Court reversed the trial court because it found that, although the utility easement prevented the applicant from building two houses on three lots, it did not prevent it from building a single large home on the three combined lots without the need for a variance. Id. at 13. "The fact that the zoning restrictions may burden the properties or cause them to fall short of [applicant's] expectations with respect to their economic value does not justify the board's decision to grant a variance." Id. Thus, although topographical features can, in the appropriate circumstances, provide the basis for a variance, the case law is clear that the applicant must demonstrate an unusual hardship. If topographical features which limit an applicant to one house on three lots do not represent an unusual hardship, it is hard to see why topographical features which limit GMLR to a hair salon and residence rather than a glass business and two offices should produce a different result.
The court in Vine clarified that a variance can not be granted based solely upon the "deprivation of a reasonable commercial use of the property." Id. at 9, footnote 14.
The Superior Court cases cited by GMLR in support of the proposition that the presence of wetlands can justify a variance, involve undeveloped lots which would be useless unless a variance is granted. See, for example, Carberry v. Zoning Board of Appeals, Superior Court, judicial district of Stamford, Docket No. 000176766 (October 16, 2001) [30 Conn. L. Rptr. 537]. The present case is like the Vine case rather than those cases involving undeveloped land which cannot be put to any use without a variance. Here, the property is already put to an approved use which has been in operation for many years. There is no evidence in the record that this use cannot be continued in the future.
For the reasons given, the appeal is sustained.