Opinion
CV156056545S
05-25-2017
Lisa Kwesell v. East Haven Zoning Board of Appeals
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Salvatore C. Agati, J.
FACTS
This action is brought by Lisa Kwesell (" Plaintiff") in which she has appealed from the June 18, 2015 decision of the East Haven Zoning Board of Appeals granting the Variance application of Jennifer Delvecchio (" Applicant").
The applicant, Delvecchio, filed for variances for the property she owns at 188 Beach Avenue, East Haven, Connecticut. The application was filed on April 18, 2013. The application (See Record #28) indicated that work to be done was: " Removal of existing single story house, porch and deck, and construction of new FEMA compliant two-story house with porch, deck and stairs. New house would be located within same footprint as existing house. (Variance granted by ZBA on 5/15/97 regarding the construction of new 2nd story on the existing house.)" The unusual circumstance or undue hardship was: " The existing non-conforming house, which was constructed in 1950, is not compliant with current FEMA standards and was damaged by the significant storm events that occurred in the last two years. The subject property is on undersized existing non-conforming lot that predates the implementation of zoning." The variances requested are the following:
(1) Section 25, Schedule B, Line 7
For minimum setback from a street line
a. 7 ft. proposed (front porch and balcony)
(2) Section 25, Schedule B, Line 8
For minimum setback from a rear property line
a. 6 ft. proposed (rear deck with new steps and landing)
(3) Section 25, 25.4.3--Height
a. Street line from 36 ft. (25 ft. required plus 11 ft. additional) to 7 ft.
b. Rear from 41 ft. (30 ft. required plus 11 ft. additional) to 24 ft.
c. Side from 31 ft. (20 ft. required plus 11 ft. additional) to 2 ft.Note
*Variance granted by the Town of East Haven Zoning Board of Appeals on May 15, 1997 regarding the construction of a 2nd floor addition to the existing house. (Vol. 2301, pg. 94.)
The applicant's property is located on the shoreline in East Haven, Connecticut. This shoreline has suffered extensive damage as a result of hurricane/tropical storms, most recently Hurricanes Irene and Sandy. As a result of these storms, East Haven codified the FEMA flood zone regulations in Chapter 9 of the East Haven Code of Ordinances. The court will elaborate on these regulations later in the decision.
Prior to the hearing on this application, the applicant was required to file for a Costal Site Plan Review with the Connecticut Department of Energy and Environmental Protection (DEEP) for this property through the East Haven Zoning Board of Appeals. In a letter dated March 12, 2015 (See, Record #7) the DEEP had concerns with the applicant's initial proposal for the replacement home. The DEEP recommendation made to the coastal site plan application for this property was " . . . the home only be allowed to be rebuilt in its current location to FEMA standards at the same size or smaller."
The applicant filed a revised proposal consistent with the DEEP recommendations in the March 12, 2015 letter. By letter dated June 18, 2015 (See, Record #3), DEEP responded as follows:
The revised application now provides adequate details on minimizing site disturbance and grading, including dune protection and A zone flood construction detail as requested by OLISP on May 20th. OLISP continues to believe the home would be better protected by building to V flood zone construction standards on pilings, but we recognize this is voluntary and not required. OLISP finds the proposal generally consistent with the goals and policies of the CCMA.
This response was provided on the same day that the applicant for the variances appeared for a public hearing on the variances before the East Haven Zoning Board of Appeals.
The minutes of the meeting indicate that there was testimony provided by the applicant and her attorney. Also testifying in support was the applicant's engineer, Mr. Fedus, who testified that the home's footprint would now be 16.5 percent of lot coverage versus the now existing home which has 20 percent coverage--this representing at 3.5 percent reduction in lot coverage i.e. making the new home less nonconforming or more conforming. The plaintiff's home designer, Mr. Thompson, also testified in support of the application.
In opposition to the application was the plaintiff, Kwesell, through her representatives, Mr. Patrick Rowland and Mr. Peter House. The opposition was that the proposed new home would have a third floor, which exceeded height requirements of the zoning regulations. The present home is a two-story home.
In the record are letters of support for the application from neighboring residents to the Delvecchio property, namely Mr. Fasano and Ms. Apicella.
The Zoning Board of Appeals at the conclusion of the testimony called for a vote on the application. There was one member who had been recused prior to voting. The vote of the Zoning Board of Appeals was 4-0 to approve the Delvecchio application with an oral amendment made to the application; that the third floor cannot be finished space, could not be sheetrocked and therefore not used for living space. (See, Record #6.) Delvecchio agreed to the amendment on the record.
The plaintiff, Kwesell, appeals from the granting of the variance application, claiming the Zoning Board of Appeals acted illegally, arbitrarily and capriciously in violation of the East Haven Zoning Regulations, state statutes and Connecticut case law.
The plaintiff, Kwesell, owns the property at 2 Minor Road, East Haven, CT, said property abuts the Delvecchio property in the rear.
Jurisdiction and Aggrievement
In order to maintain the appeal, the plaintiff must first demonstrate that she is aggrieved by the decision of the defendant ZBA. Aggrievement is jurisdictional, and a prerequisite for maintaining an appeal. Winchester Woods Association v. Planning & Zoning Commission, 219 Conn. 303, 307, 592 A.2d 953 (1989); Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 507, 242 A.2d 705 (1968).
The parties at oral argument stipulated that the plaintiff is an abutting landowner to the applicant's property and therefore owns property within 100 feet of the applicant. The plaintiff is statutorily aggrieved by the action of the Zoning Board of Appeals (ZBA). See Connecticut General Statutes § 8-8(a)(1).
Standard of Review
" 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 . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given . . . Because the plaintiff[s'] appeal to the trial court is based solely on the record, the scope of the trial court's review of the [board's] decision and the scope of [an appellate court's] review of that decision are the same . . .
" Zoning boards of appeal have authority pursuant to General Statutes § 8-6 to grant variances from local zoning regulations. One who seeks a variance must show that, because of some unusual characteristic of his property, a literal enforcement of the zoning regulations would result in unusual hardship to him . . . 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 . . .
" In cases in which an extreme hardship has not been established, the reduction of a nonconforming use to a less offensive prohibited use may constitute an independent ground for granting a variance . . . [T]hat a variance will eliminate a nonconforming use constitutes independent grounds for sustaining the granting of a variance . . . [N]onconforming 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 . . . 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." (Citations omitted; internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-63, 916 A.2d 5 (2007).
" 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, we have interpreted [General Statutes § 8-6(a)(3)] 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 . . ." In order to determine whether the board properly granted the subject variance, we must first consider whether the board gave reasons for its action . . . Where a zoning board of appeals does not formally state the reasons for its decision . . . the trial court must search the record for a basis for the board's decision." (Citations omitted; internal quotation marks omitted.) Moon v. Zoning Board of Appeals, 291 Conn. 16, 24-25, 966 A.2d 722, 727-28 (2009).
Applicable East Haven Ordinances and Zoning Regulations Codified FEMA Regulations
Chapter 9 of the East Haven Code of Ordinances codified the FEMA flood-zone regulations. Under § 9-41 of the East Haven Code of Ordinances, " New construction means structures for which the 'start of construction' commenced on or after the date of initial adoption, the effective date of the flood plain management regulations, and includes any subsequent improvements to such structures." " Structure means a walled and roofed building which is principally above ground, including a manufactured home, a gas or liquid storage tank, or other manmade facilities or infrastructures." " Substantial damage means damage of any origin sustained by a structure, whereby the cost of restoring the structure to its pre-damaged condition would equal or exceed fifty (50) percent of the market value of the structure before the damage occurred." " Substantial improvement means any combination of repairs, reconstruction, rehabilitation, alterations, additions or other improvements to a structure, taking place during a ten-year period, in which the cumulative cost equals or exceeds fifty (50) percent of the market value of the structure. This term includes structures that have incurred 'substantial damage, ' regardless of the actual repair work performed. For purposes of this definition, 'substantial improvement' is considered to occur when the first alteration of any wall, ceiling, floor, or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure. The term does not, however, include either: (1) Any project for improvement of a structure to correct existing violations of state or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary to assure safe living conditions; or (2) Any alteration of a 'historic' structure, provided that the alteration will not preclude the structure's continued designation as a 'historic structure.'"
Under § 9-101(a) of the East Haven Code of Ordinances, " [t]he East Haven Zoning Board of Appeals, as established by the Town of East Haven shall hear and decide appeals and requests for variances from the requirements of [the codified FEMA regulations in Chapter 9]. Under § 9-78(a)(1) of the ordinances, " in special flood hazard areas (SFHA), zones A and AE, " " [a]ll new construction, substantial improvements, and repair to structures that have sustained substantial damage which are residential structures shall have the bottom of the lowest floor, including basement, elevated to or above the base flood elevation (BFE). Electrical, plumbing, machinery or other utility equipment that service the structure must be elevated to or above the BFE."
Zoning Regulations
The East Haven Zoning Regulations require additional setbacks for houses that are higher than thirty feet. In particular § 25.3 of the zoning regulations provides, in relevant part: " No building or other structure shall exceed the number of stories and/or the maximum height, whichever is less as specified in Schedule B." According to Schedule B, while the maximum height of a structure in an R-3 zone may be forty feet, " a height in excess of 30 feet requires additional setback distances" under § 25.4.3. Section 25.4.3 of the zoning regulations provides, in relevant part, " In residence and shoreline development districts, any portion of a building or other structure exceeding 30 feet in height shall be set back from any property or street line by two [2] additional feet for each foot, or fraction thereof, by which such portion exceeds 30 feet in height . . ." Although the height of the house proposed in the present case does not exceed forty feet, it does not have the proper setback to meet the requirements for the requested 36.8 feet. Notably, the record reflects that the owners had attempted to move the house closer to the water, creating more of a setback, but could not receive DEEP Coastal Site Plan Review approval, which recommended a home of the same size or smaller in the current location built to FEMA standards. Additionally, side setbacks of 20 feet from the property line are required in an R-3 zone according to Schedule B.
Case Law Regarding Flood-Regulation Related Variances
Every Connecticut decision reviewing flood-zone-related variances that the court's research has revealed has upheld the board's decisions, whether they have granted or denied the variance. Additionally, and perhaps most important, in the case of Hescock v. Zoning Board of Appeals, 112 Conn.App. 239, 256-57, 962 A.2d 177 (2009), our Appellate Court determined that compliance with flood zone regulations as well as reducing existing non-conformities and the hazard in case of a flood were sufficient reasons to grant a variance even in the absence of an unusual hardship. In that case, " the [trial] court [had] concluded that the board did not abuse its discretion in granting the requested variance without having determined that the defendants had demonstrated unusual hardship. The [trial] court [had] concluded that the elimination of non-conformities served as an independent basis for granting a variance . . . and that compliance with flood zone regulations and increased compliance with the 100 foot setback requirement justified the granting of the variance in the absence of unusual hardship. The defendants submitted that the new house would comply with all flood zone regulations except the setback requirement. They presented evidence that the existing house did not comply with applicable building and habitability codes. The defendants also presented evidence that the new construction would be farther away from the water than any other house on that street. During the board's deliberations, a board member stated that the 'FEMA Improvements are far more important than anything, and I also believe that given time the entire neighborhood is going to be conforming to [regulations], so [they are] just on the cutting edge of what's [going to] happen in the years to come.' The [trial] court emphasized the board's findings that the new structure, unlike the existing one, would be in conformance with flood district standards specified in § 7.7.8.2 and more compliant with the 100 foot setback requirement in § 7.7.8.3.1 than the existing one.'" (Citations omitted; footnote omitted.) Id.
The Hescock court wrote regarding the relevant case law, " 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 . . . Consequently, our Supreme Court in Vine [ v. Zoning Board of Appeals, supra, 281 Conn. at 572, ] 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 . . . 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 . . . 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.' Vine, at 571.
" The court in Vine relied on two other cases. In Adolphson v. Zoning Board of Appeals, [205 Conn. 703, 703, 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 . . . The defendants wanted to operate the repair shop instead of a nonconforming aluminum casting foundry . . . 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.' (Citations omitted; internal quotation marks omitted.) Id., at 710, 535 A.2d 799. 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 . . . In Stancuna v. Zoning Board of Appeals, [66 Conn.App. 565, 565, 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 . . . The court concluded that the variance would eliminate a nonconforming residential use of the property and allow a commercial use in a commercial zone . . . 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." (Citations omitted.) Id., 258-59.
Ultimately the court in Hescock concluded it did " not see any basis on which to distinguish th[at] case from Vine, Adolphson or Stancuna . The board found that the grant of a fifty-three-foot variance is justified by a decrease in noncompliance with the 100-foot setback requirement set forth in § 7.7.8.3.1 and the elimination of noncompliance with all the remaining flood zone regulations . . . [T]here was substantial evidence that the new construction would reduce and eliminate existing non-conformities and present less of a hazard in case of a flood, and there was no evidence that replacing the existing house would result in even minimal harm to the neighborhood. It is important to also note that the board concluded that with time, all of the houses in the neighborhood would conform to the flood zone requirements and that the defendants were on the cutting edge of new development. Adolphson v. Zoning Board of Appeals, supra, at 710, 205 Conn. 703, 535 A.2d 799 ('[t]he 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 a nonconformity')." Id., 260-61.
At least one trial court decision has followed the reasoning in Hescock to grant a height variance for flood zone regulation compliance. In Mayer-Wittman v. Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-16-6027735-S (December 29, 2016, Karazin, J.) [63 Conn.L.Rptr. 599, ], the court wrote of the variance sought in that case, " [T]he increased nonconformity does not have the singular purpose of enhancing the defendant's personal use of the sea cottage, but instead has the purpose of bringing the sea cottage into compliance with the current FEMA and city of Stamford flood regulations. The only way for the defendant to comply with both of these regulations is to increase the height of the structure by elevating the lowest horizontal point of the home an additional eight feet . . . The record shows that the usable space of the sea cottage is not increasing, but the existing structure is simply moving upward and three feet north to meet flood requirements . . . In addition, the livable space within the sea cottage is not changed as a result of the variance . . . The ZBA not only discussed that the livable space within the sea cottage would remain the same, but also made this fact a condition in its final order granting the variance . . . During its discussions, a member of the ZBA clearly states that the request looked favorable because it focused simply on eliminating the hardship of bringing the sea cottage into compliance with the applicable flood regulations.
" The plaintiff argues that the defendant did not show that the variance was the minimal relief necessary to accomplish his goals with the sea cottage. [V]ariances should be granted sparingly and narrowly tailored to alleviate the hardship complained of . . . Because a variance affords relief from the literal enforcement of a zoning ordinance, it will be strictly construed to limit relief to the minimum variance which is sufficient to relieve the hardship . . . In the present case, the ZBA granted the specific relief that the defendant requested, and also placed conditions to ensure that the variance did not exceed the specific scope of allowing for greater compliance with the new flood control regulations . . .
" The defendant argues that independent of any hardship, the ZBA could have granted a variance based upon the reduction of a nonconforming use. 'In cases in which an extreme hardship has not been established, the reduction of a nonconforming use to a less offensive prohibited use may constitute an independent ground for a variance.' Vine v. Zoning Board of Appeals, 281 Conn. 553, 562, 916 A.2d 5 (2007). In furtherance of this argument, the defendant presents Hescock v. Zoning Board of Appeals, 112 Conn.App. 239, 962 A.2d 177 (2009), which has a similar fact pattern to the case at issue. In Hescock, the defendant wanted to construct an entirely new home three feet further away from the high tide line on his property to better meet flood regulations. Hescock v. Zoning Board of Appeals, supra, 112 Conn.App. 242-43. The defendant explained the hardship as '[replacing] an existing home below the base flood elevation with new construction that will meet all flood regulations . . .' Id. The zoning board granted the variance, and after an appeal, the appellate court found that 'the board's conclusion that the new construction will address and improve flood zone issues is not arbitrary, illegal or an abuse of discretion.' Id., 254. 'The board's failure to specifically state, orally or in writing, that it had made these findings does not amount to an exercise of discretion that is arbitrary, illegal or an abuse of discretion.' Id., 255. In the present case, the ZBA did not specifically include in its decision the fact that flood control regulations were a factor in its decision . . . The members of the ZBA did however discuss this issue when deliberating the merits of granting the defendant's variance . . .
" The present case is more similar to Hescock . In the present case, the ZBA members discussed that the defendant was only asking for the minimum increase in height to meet the revised flood zone regulations of both the city of Stamford and FEMA . . . In addition, the livable space of the cottage did not increase as a condition of granting the variance . . . Thus, the ZBA did not abuse its discretion when granting the defendant a variance after hearing all evidence before it and determining that greater compliance with flood control regulations was a sufficient reason to allow this variance. In a further attempt to reduce non-conformities on the defendant's property, the ZBA ordered the defendant to bring the other noncompliant accessory structures on his property into compliance as a condition precedent to any construction on the sea cottage." (Citations omitted; footnotes omitted; internal quotation marks omitted.)
In another trial court decision, Nejdl v. Town of Clinton Zoning Board of Appeals, et al., Superior Court, judicial district of Middletown, Docket No. CV15-6014141S (January 24, 2017, Quinn, J.T.R.) [63 Conn.L.Rptr. 762, ], the court dismissed an appeal from the Zoning Board of Appeals and provided the following reasoning:
All of the parties to this case argue that Verrillo v. Zoning Board of Appeals of the Town of Branford, 155 Conn.App. 657, 11 A.3d 473 (2015), provides important guidance to the court in this administrative appeal. First, it should be noted that Verillo involved review of the expansion of an existing non-conforming structure. The Verrillo court concluded that trial court had properly sustained the appeal as there was no hardship demonstrated unique to the property in question. Plaintiff urges that the court find that Verrillo should control, making the same arguments about an expansion of the non-conforming use as those she urged on the court in arguing that § 27.2.1 of the Regulations must apply. As before, this court disagrees and finds the ZBA's conclusion that this application does not seek an expansion of a non-conforming structure to be supported by the substantial evidence. This application involves the diminution of non-conformities in a proposed structure which complies with the Town of Clinton regulations, except for two requirements, both of which are rendered more conforming than they were before. The structure itself conforms in all other respects. It remains that fact that the parcel of land is a non-conforming preexisting lot on which the owner is constitutionally entitled to replace an outdated structure. For these reasons, Verrillo is neither controlling nor helpful to the analysis in this case. An independent basis for approving the actions of the ZBA is found in the narrow exception carved out of the rule requiring a showing of hardship before a variance may properly be granted. See Verrillo, supra at pages 725, 726. This narrow exception is explicitly discussed and noted with approval in Verrillo, citing cases standing for the narrow exception outlined. Those cases are Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 705, 535 A.2d 799 (1988); Hescock v. Zoning Board of Appeals, 112 Conn.App. 239, 962 A.2d 177 (2009); and Vine v. Zoning Board of Appeals, 281 Conn. 553, 562, 916 A.2d 5 (2007). In Hescock, 112 Conn.App. at 258, the court noted that " in cases where an extreme hardship has not been established, the reduction of a non-conforming use to a less offensive prohibited use may constitute an independent ground for granting variance." In the case before this court, there is no extreme hardship that has been demonstrated. Rather, it is the case that the proposed construction is more in line with the zoning requirements than the older cottage. The ZBA explicitly noted that it was in accordance with the comprehensive plan that in view of other buildings in the neighborhood, including the plaintiff's own waterfront home. The court finds that the facts, as supported by the substantial evidence in the record, demonstrate this application fits the narrow exception to the requirement of a showing of hardship. The court finds the variances were properly granted by the ZBA. For all the foregoing reasons, the court sustains the actions of the Clinton Zoning Board of Appeals and dismisses this appeal.
Conclusion
In conclusion, the court after review of the facts finds that the substantial evidence in the record demonstrates that the application for the variances in this matter were properly granted by the East Haven Zoning Board of Appeals. Particularly, the ZBA had previously approved other applications requiring compliance with the FEMA regulations the town had adopted. In addition, the ZBA amended the approval with restrictions on use of the third floor. Also, the area the new home will take on the property is less than the present home. Finally, the new home would now have less living space than it does presently. This application fits the narrow exception to the requirement of a showing of need for hardship as found in the cases cited; Hescock, Mayer-Witman and Nejdl .
For all the foregoing reasons the court sustains the actions of the East Haven Zoning Board of Appeals and dismisses this appeal.