Opinion
No. LLI CV-09-5006876S
September 15, 2010
MEMORANDUM OF DECISION
The plaintiff, Barbara Malley, appealed from a decision of one of the defendants, the zoning board of appeals of the town of Litchfield (the board), which awarded variances to two other defendants, Daniel J. Mennillo and Melinda Mennillo (the Mennillos), so that they could build a two-car garage within a side yard requirement and an above-ground swimming pool within a rear yard setback. There were no exceptional difficulties or unusual hardships that justified the variances given to the Mennillos. Furthermore, the proposed two-car garage cannot be found to be a "less nonconforming structure" than a barn that once existed on the Mennillos' property.
For the following reasons, the court concludes that the board lacked the authority to grant the variances and that it acted arbitrarily and abused its discretion in doing so. The plaintiff's appeal from the board's decision is sustained.
FACTS 1. Action Taken by the Board
The board focused on the fact that the Mennillos own a corner lot, a situation that the board deemed to be unique. The latter consideration influenced the board's ultimate decision to grant the two variances, permitting a side yard variance for the construction of a garage and a rear yard setback variance for the construction of a swimming pool and deck. The board appears to have concluded that the Mennillos did not establish a hardship with regard to their request to build either a two-car garage or a swimming pool. Return of Record (ROR) 23 at 41, 47-48.
"[A]lways a corner property is unique in some ways because, which was the front, which was the side, can it [sic] change." Return of Record (ROR) 23 at 31. "The corner lot in itself . . . is somewhat in itself an exceptional situation . . ." ROR 23 at 36.
The board considered one additional factor in support of its decision to grant the side yard variance. The board heard evidence that, at one time, there had been a barn on the property now owned by the Mennillos, a structure that was located near the property line where the Mennillos wish to construct their garage. ROR 23 at 29-32. The barn no longer exists, however. The board was unable to determine precisely when it was removed, what its exact dimensions may have been, or exactly where it was originally located. ROR 23 at 37, 39, 47. Nonetheless, the board concluded that the proposed garage would be less nonconforming than the barn that had been removed. ROR 23 at 37.
The plaintiff advised the board that she has lived next door to the Mennillos for over fifty years, and the barn was not in place when she first occupied the property. ROR 23 at 17.
With regard to the variance requested for the two-car garage, the board voted favorably on a motion to "accept the side yard variance, request for a side yard variance for case 09-06-01 of 8' from Article IV section 2 and Article VI, section 6 and 7 for garage property at 4 Camphill Road based on the uniqueness of the lot and . . . location of the original . . . and the fact that the applicants provided information showing an existing structure which could have been used as a two car garage or a barn . . . [W]e should note on there too that the proposed location is less nonconforming than the original structure that was there . . . as far as we can tell, yeah . . . as far as we can tell from the photos." ROR 23 at 49-50.
With regard to the variance requested for the swimming pool and deck, the board voted favorably on a motion "that we grant a variance as stipulated in the application for a rear yard setback for an above ground swimming pool based on the fact that . . . there's an unusual circumstance being a corner lot and some discussion about what was the front and what was not, had the front faced main street it would not have required a variance and therefore it becomes a unique situation and we'll grant, move, make the motion that we grant a variance to put the pool as in the indicated location." ROR 23 at 51.
2. Description of the Property
The Mennillos own a single family residence located on a .43-acre corner lot in Northfield, an unincorporated village within the town of Litchfield. The Mennillo property is located in an R-20 (20,000 square foot minimum lot size) zone district at 4 Camp Hill Road. ROR 25. The lot is 19,013 square feet, and so it is a non-conforming lot, but that non-conformity existed when the Mennillos purchased the property. See ROR 7, 8. The residence was built in 1881. ROR 22 at 3. The Mennillo property is abutted by a residence owned by the plaintiff. ROR 22 at 9; ROR 7.
3. Procedural History
On May 13, 2009, the Mennillos submitted an application to the board seeking variances that would permit them to construct a two-car garage that would be twenty-four feet by twenty-eight feet, and an above-ground swimming pool with a deck that would be thirty-two feet by fifty feet. ROR 22 at 5. The board held public hearings on June 2, 2009, and August 25, 2009. The variances were granted on August 25, 2009, and notice of the board's decisions was published on August 28, 2009. ROR 11. The plaintiff served her appeal on all defendants on September 10, 2009. The court finds that this appeal was timely filed. General Statutes §§ 8-8(b), (f)(2), and (g). This matter came before this court and was heard on June 3, 2010. The plaintiff requested, and the court allowed, supplemental briefing. The plaintiff filed her supplemental brief on June 11, 2010.
At the invitation of both parties, the court visited the site on June 8, 2010.
4. Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). General Statutes § 8-8(a)(1) defines an "aggrieved person" in relevant part as "any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
The plaintiff alleges in paragraph 3 of her appeal that she "is and has been the owner of a single family residence located at 6 Camp Hill Road in Northfield . . . for over 50 years and is the northerly abutter of the Mennillo premises." Evidence consistent with that allegation was presented to the board. ROR 23 at 13, 17; ROR 7. Accordingly, the court finds that the plaintiff is statutorily aggrieved.
ROR 7 is a zoning location survey prepared, according to the document itself, for the Mennillos. It shows the Mennillo property, the proposed locations of the garage and swimming pool, and identifies the northerly, abutting property as being owned by "Barbara Mallery." The parties appear to agree that the individual who prepared the survey misspelled the name of the plaintiff. There does not appear to be any dispute about the fact that the plaintiff's property abuts the Mennillos' property.
5. Issues Presented a. The Plaintiff's Position
The plaintiff argues that there is nothing unique about the fact that the Mennillos own a corner lot. She notes that there are five R-20 zone districts scattered throughout the town of Litchfield. ROR 25. These R-20 zone districts include numerous intersections with town or state roads, thus creating multiple corner lots throughout the town. The town of Litchfield zoning regulations specifically address characteristics relative to corner lots, and those regulations make certain limited and precise accommodations for corner lots. Those accommodations do not extend to the relief that the Mennillos sought from the board. ROR 24 at 25. Citing Smith v. Zoning Board of Appeals, 174 Conn. 323, 327, 387 A.2d 542 (1978), the plaintiff contends that the alleged hardship must be different from that affecting properties in the same zoning district, and must arise from circumstances or conditions beyond the control of the property owner.
The plaintiff also disagrees with the board's conclusion that allowing the Mennillos to build the garage serves to replace a nonconforming structure with a structure that is less nonconforming than its predecessor. Relying on Cummings v. Tripp, 204 Conn. 67, 91-92, 527 A.2d 230 (1987), she argues that a structure, to be considered nonconforming, must be in existence at the time of the enactment of the zoning regulation that makes the structure "nonconforming." In this case, the town of Litchfield zoning regulations first became effective on July 22, 1970. ROR 24 at cover page. The only clear evidence before the board with regard to when the barn was last on the Mennillo property was offered by the plaintiff in 2009, who stated that the barn was not there when she first occupied her property fifty-two years ago. ROR 23 at 13, 17.
The plaintiff also argues that the Mennillos did not establish a cognizable hardship. The plaintiff contends that any hardship is self imposed, because the Mennillos could have erected the garage and pool in locations, or with dimensions, that would not require variances. The plaintiff notes that the board did not conclude that the Mennillos had demonstrated a hardship sufficient to justify the requested variances. Similarly, the Mennillos' desire to increase their property value with the new structures does not, the plaintiff argues, justify the variances. Finally, the plaintiff contends that the board did not make the written findings that are required by the town of Litchfield's zoning regulations. ROR 24 at 129.
b. The Board's Position
The board questions, at the outset, whether the plaintiff has established either classical or statutory aggrievement, one of which must be established as a necessary prerequisite to this court's jurisdiction over the subject matter of this appeal. The board recognizes that the granting of a variance must be reserved for occasions in which the individual seeking the variance has proven that there is an unusual hardship or an exceptional difficulty caused by some unusual characteristic of the property.
In this case, the Mennillos live in an R-20 residential zone, and article V, section 2 of the zoning regulations for the town of Litchfield requires properties in R-20 zones to maintain fifty-foot front and rear yard setbacks. The regulations specifically provide an exception for corner lots, allowing one of the side yard setbacks to be reduced to 65% of the required amount. ROR 24 at 21, 25. Even with the exception provided by the regulations, there remains a fifty-foot setback requirement for the front yards of a corner lot. ROR 24 at 25. Thus, the board argues, the Mennillos' property is affected by the reductions in building area "differently than other lots within the village neighborhood."
The board contends that a corner lot is an "exceptional situation." ROR 23 at 36. The board further contends that having a corner lot is "unique" because only one other lot in the R-20 residence zone of Northfield Village is a corner lot. There are a total of thirty-three lots in Northfield.
The board also argues that, due to the presence of sewer lines, a slope on the Mennillo property and the location of above-ground power lines, the two-car garage addition proposed by the Mennillos can only be constructed on the north side of their house. The board cites Stillman v. Zoning Board of Appeals, 25 Conn.App. 631, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991), in support of this proposition. In addition, the board claims that placing the proposed garage on the north side of the house and placing the pool in the back yard would minimize the impact of the additions on the architecture of the house, which was built in approximately 1881. ROR 22 at 3.
The board argues that the additions would not affect the town's comprehensive plan, in part because the proposed garage would be placed in a location similar to a barn that previously stood on the subject property. The barn that previously existed was apparently further within the side yard setback, and so, the board claims, the proposed two-car garage would reduce "a nonconforming feature of the property" and "bring the property further into conformity with the comprehensive plan." In support of this position, the board cites Stacuna v. Zoning Board of Appeals, 66 Conn.App. 565, 572, 785 A.2d 601 (2001) (if a variance eliminates a nonconformity, that constitutes an independent ground for sustaining the grant of the variance).
The board also addressed the issue of whether the hardships were personal or self-inflicted. The board argues that the fact that the property at issue is a corner lot, and the location of both the sewer and power lines on the property, are all factors that predate the zoning regulations. Consequently, the board argues that they are not self-inflicted hardships. Instead, they are factors that apply to the property no matter who owns it.
DISCUSSION
When presented with an appeal from a decision by a zoning board, a trial court must determine whether the board's act was "arbitrary, illegal or an abuse of discretion . . . 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 . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons." (Internal quotation marks omitted.) Durkin Village Plainville, LLC v. Zoning Board of Appeals, 107 Conn.App. 861, 867, 946 A.2d 916 (2008); Hoffer v. Zoning Board of Appeals, 64 Conn.App. 39, 41, 779 A.2d 214 (2001).
In the first instance, the plaintiff, who carries the burden of proof in an administrative appeal; Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994); must establish either classical or statutory aggrievement for this court to have subject matter jurisdiction over this appeal. See Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 188-92, 676 A.2d 831 (1996). The plaintiff did establish that her property is the northerly abutter to the Mennillos' premises. ROR 7. As previously stated, the plaintiff is statutorily aggrieved with regard to both of the variances that were allowed. General Statutes § 8-8(a)(1). The plaintiff also introduced sufficient evidence that the side-yard variance, if allowed, would lead to the construction of a structure sufficiently close to the property line that could damage or destroy numerous trees on her property. ROR 23 at 23, 24; ROR 18. Thus, with regard to the side-yard variance, the plaintiff is also classically aggrieved. See CT Page 18081 Hayes Family Ltd. Partnership v. Planning Zoning Commission, 98 Conn.App. 213, 219-23, 907 A.2d 1235 (2006), cert. denied, 281 Conn. 904, 916 A.2d 44 (2007); see also Pomazi v. Conservation Commission, 220 Conn. 476, 482-83, 600 A.2d 320 (1991) (a party is classically aggrieved if he establishes a specific personal and legal interest in the subject matter of the decision and there is a possibility that the specific legally protected interest has been specially and injuriously affected by the decision).
General Statutes § 8-6(a)(3) provides in relevant part that the zoning board of appeals shall have the power "to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony 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 by-laws, 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 . . ."
Section 8-6(a)(3) makes clear that a variance cannot be allowed if it will affect "generally the district in which it is situated . . ." Second, a variance may be granted if the zoning board of appeals concludes that literal enforcement of the regulation at issue "would result in exceptional difficulty or unusual hardship" to the party seeking the variance. (Emphasis added.)
It is well-settled that "[p]roof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance . . . Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship . . . Additionally . . . [p]ersonal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance . . . [T]he basic zoning principle that zoning regulations must directly affect land, not the owners of land . . . limits the ability of zoning boards to act for personal rather than principled reasons, particularly in the context of variances . . . [T]he hardship must be different in kind from that generally affecting properties in the same zoning district, and must arise from circumstances or conditions beyond the control of the property owner." (Citations omitted; internal quotation marks omitted.) Durkin Village Plainville, LLC v. Zoning Board of Appeals, supra, 107 Conn.App. 869-70.
"[T]he power to grant variances from the strict application of zoning ordinances should be carefully and sparingly exercised . . . [U]nless great caution is used and variances 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 the property values and securing the orderly development of the community is completely thwarted . . . The power to authorize a variance is only granted for relief in specific and exceptional instances." (Citation omitted; internal quotation marks omitted.) Id., 868-69.
A particular reason for restricting the grant of variances lies in the fact that, once granted, a variance runs with the land and is not personal to the person who applied for and received the variance. Variances are not extinguished, for example, solely because of the transfer of title to the property. General Statutes § 8-6(b).
The board concluded that a corner lot is an exceptional situation. ROR 23 at 36, 51 ("a corner lot is somewhat in itself an exceptional situation. [T]here's an unusual circumstance being a corner lot . . .") The board's conclusion is incorrect as a matter of law. The town of Litchfield's zoning regulations contemplate the existence of corner lots within the town and make special provisions for such lots. See ROR 24 at 19, 25, ¶¶ 3, 6, and 8. Those regulations make certain exceptions for corner lots; id. at 25, ¶ 3; but those exceptions are specific and limited.
The court is satisfied that the board provided the "written decision" required by article X, § 8 of the town of Litchfield's zoning regulations. ROR 24 at 129. The board's meetings were recorded and a written record was made from that recording. ROR 22, 23. This record is sufficient. Couch v. Zoning Commission, 141 Conn. 349, 358, 106 A.2d 173 (1954).
The board would have the court focus only on the village of Northfield to conclude that there are only two corner lots in that village. It may be correct that there are only two corner lots in Northfield, but the board's focus is too narrow. The Litchfield zoning regulations create a comprehensive plan for the entire town of Litchfield, not merely a single village within that town. The Mennillos live in Northfield's R-20 residence zone, but there are a total of five R-20 residence zones throughout the town of Litchfield. ROR 25. Based on a review of ROR 25, it is readily apparent that when all five R-20 residence zones are taken into consideration, there are many corner lots throughout Litchfield.
The court takes judicial notice of the fact that Northfield is an unincorporated village within the town of Litchfield. See The State v. Powers, 25 Conn. 48, 50 (1856) (courts may take judicial notice of the geographical division of counties and the towns within them).
Owning a corner lot in the town of Litchfield is not a unique or exceptional circumstance. See Michler v. Planning Zoning Board of Appeals, 123 Conn.App. 182 (2010). In Michler, the property owner sought a variance from a zoning regulation that limited the size of any structure that could be built on his property because he owned a rear lot, i.e., a lot that did not "front" on a street. Id., 183-85. The Appellate Court found that the zoning regulation at issue reduced "the building area for CT Page 18083 all rear lots," and noted that there was "nothing in the record to indicate that the reduction in the building area available on the subject property is a unique effect of this regulation." (Emphasis in original.) Id., 187; see also Cosell v. Zoning Board of Appeals, Superior Court, judicial district of Stamford, Docket No. CV 99 0174967 (September 10, 2002, Lewis, J.T.R.) (the fact that the property is a corner lot does not constitute an unusual hardship; "there are many corner lots in Stamford.").
The board correctly concluded that the Mennillos' wish for a two-car garage and a swimming pool does not constitute a hardship. ROR 23 at 41 ("there's no hardship for a pool to start with . . . there's no hardship in either case you can leave a car outside"); 47 ("do you want a pool? Yes. Is it a hardship? No."); 48 (wanting a pool is "obviously not a hardship."). Bloom v. Zoning Board of Appeals, 233 Conn. 198, 210 n. 13, 658 A.2d 559 (1995) (when a setback requirement prohibits an owner from adding new structures to the property, the requirement is not a legally cognizable hardship); Michler v. Planning Zoning Board of Appeals, supra, 123 Conn.App. 187 (difficulty in marketing property and disappointment in the use of the subject property are personal hardships). It is clear that the board rejected the Mennillos' claim that the wish for a two-car garage and a swimming pool constituted a hardship. The board granted the variances on the basis that it considered the corner lot to be an "unusual" and "unique" circumstance. ROR 23 at 51.
The "hardship" articulated by the Mennillos is personal in nature. There was significant and apparently undisputed evidence that the Mennillos can construct a one-car garage, or even a smaller two-car garage, on the north side of their house without obtaining a variance. ROR 7, 19, 23 at 48. Furthermore, they can construct a swimming pool where they wish, in the rear yard, without obtaining a variance, if it has a smaller deck than the one proposed. ROR 22 at 5, 24. They could also put the pool on the south side yard, without obtaining a variance, but that is something that they "would never do." ROR 23 at 25. The Mennillos want a large, two-car garage because they have "two large vehicles." ROR 23 at 26. They acknowledged that they would not require a variance for a smaller garage, and it was suggested that a smaller garage might be sufficient if the Mennillos had smaller vehicles, but they stated that "we would have to go out and buy new cars and that's, that [sic] would never happen." Id. Alternatives exist for the placement of both structures, without the need for variances; ROR 16, at 2; but the Mennillos do not wish to pursue those alternatives. Jaser v. Zoning Board of Appeals of Milford, 43 Conn.App. 545, 548, 684 A.2d 735 (1996) ("a hardship was not shown because the plaintiffs admitted that a house, even though not the type that they desired, could have been built on the lot while conforming to the setback requirements"). The hardships advanced by the Mennillos are personal and do not support the variances that were granted. See Pollard v. Zoning Board of Appeals, 186 Conn. 32, 44, 438 A.2d 1186 (1982).
Although the board did not appear to base its decision on a finding that the Mennillos' house was "historic"; see ROR 23 at 51; there was discussion during the proceedings about the character of the house, which was built in 1881. There is no evidence that the construction of a smaller garage or a smaller swimming pool, neither of which would require a variance, would adversely affect any historic significance that may exist with regard to the Mennillos' home. Indeed, it is unclear how the addition of an above-ground swimming pool, of any kind, would be consistent with the alleged historic significance of the home. The court finds that, to the extent the Mennillos' home is "historic" in nature, such a characteristic does not, in this case, constitute a hardship justifying the variances.
The issue of what constitutes "historic" significance presents an interesting, and perhaps philosophical, question. For example, with regard to the garage, there was evidence that the proposed two-car garage, if built, could cause root damage, resulting in the demise of the plaintiff's two hundred year old maple trees that border the abutting property. ROR 18 and 23 at 23, 24. One might reasonably conclude that such trees have historic significance, and that such significance is greater than that attendant to the Mennillos' house.
For the reasons stated in this opinion, however, the court need not resolve the question of whether the Mennillos' house is "historic."
The board argues that the variances will not substantially affect the comprehensive plan for the town of Litchfield because there was "substantial evidence . . . that the proposed additions to the historic property would bring it more into conformance with the neighborhood — thus not affecting the comprehensive plan." The board's theory is that, because there was once a barn on the subject property that was even closer to the northern property line than the proposed two-car garage would be, the proposed garage would be less non-conforming than the barn. Thus, the board reasons, the two-car garage would reduce a nonconformity.
The record is bare of clear evidence as to when the nonconforming structure, the barn, was built. The record is clear, however, that the barn no longer exists, and the board heard evidence that it was removed from the property at least fifty years ago; ROR 23 at 17; long before the town of Litchfield's zoning regulations were enacted. A variance cannot serve to reduce a nonconforming structure if the nonconforming structure no longer exists. See Cummings v. Tripp, 204 Conn. 67, 91-92, 527 A.2d 230 (1987). The variances would permit structures that, if built, would be inconsistent with the comprehensive plan.
CONCLUSION
In sum, the fact that the property in question is a corner lot is neither unique nor exceptional. The board's finding to the contrary is arbitrary and an abuse of discretion. There is no evidence that supports a finding that the desire to have a two-car garage and a swimming pool on the subject property constitutes an unusual hardship. At most, the evidence permits the conclusion that the property owners are disappointed in the use of their property without the addition of a two-car garage and a swimming pool. Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship. Durkin Village Plainville, LLC v. Zoning Board of Appeals, supra, 107 Conn.App. 861, 869-70. Furthermore, the board made it abundantly clear at the hearing that it did not consider the wish for either a two-car garage or a swimming pool to constitute a hardship of any kind, let alone an unusual one. Finally, the variances in this case do not serve to effect a reduction in a nonconformity on the property. The "nonconformity" to which the board refers has not existed for at least fifty years. The board's decision to grant the variances was arbitrary, illegal and an abuse of discretion. The appeal is sustained.
So ordered.