Opinion
MMXCV156014141S
01-24-2017
Ona Nejdl v. Town of Clinton Zoning Board of Appeals et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Barbara M. Quinn, J.T.R.
In this appeal brought by the plaintiff, Ona Nejdl, resident at 42 Sol's Point Road, in Clinton, Connecticut, she challenges the grant of two variances by the defendant Town of Clinton Zoning Board of Appeals, hereafter " ZBA", to the defendant, Robert M. Lee, the owner of waterfront property located at 44 Sol's Point Road in Clinton, Connecticut. The application proposed the demolition of a preexisting nonconforming cottage built in 1903, a garage and porch and the rebuilding of a more modern residence in accordance with plans filed with the ZBA. She argues that the unanimous approval of the defendant's application by the ZBA permits the extension of a preexisting nonconforming structure, in contravention to the law. Defendants maintain that the application reduces the existing non-conformities, and except for the two variance requests, is compliant with the Town of Clinton Zoning Regulations. After a careful examination of the record and for the detailed reasons set forth below, the court finds for the defendants and dismisses this appeal.
FACTS AND DISCUSSION
The court has carefully considered the arguments of counsel, the detailed record of the proceedings before the ZBA and the briefs filed in this case. The court finds the following facts.
A. 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). It is without contest the plaintiff appeared in court and testified she owns property separated from the land owned by the defendant, Richard Lee, by a ten-foot right-of-way owned by others for access to the beach. The court finds that the plaintiff therefore owns land within 100 feet of that of the applicant and that she is statutorily aggrieved by the action of the ZBA. See Connecticut General Statutes § 8-8(a)(1). The court also finds from the record that the decision was duly noticed and published, and the appeal timely taken and served in accordance with the law. Thus, the court has jurisdiction to hear this appeal.
B. Facts concerning the Property, the Public Hearing and Board Decision
(1) The Property
The central facts in this case are not in dispute, but subject to varying interpretations by the parties. The property subject to the appeal is an almost 7, 000-square-foot parcel located on 44 Sol's Point Road, bounded on the south by Long Island Sound, on the north by Sol's Point Road, on the west by a similar property and on the east by a ten-foot right-of-way, permitting other landowners in the area access to the beach. The property is the R-10 district as defined in the Town of Clinton Zoning Regulations, a district in which a buildable lot, according to the existing regulations, must have ten thousand (10, 000) square feet. The applicant's lot is a preexisting nonconforming lot.
Return of Record, hereafter " ROR, " p. 34.
On July 22, 2015, the applicant filed an application to tear down and remove the 1903 cottage, a garage and a wooden deck and to construct a new dwelling. The application was revised and the final plan was submitted on August 19, 2015. It included the site development plan, floor plans and architectural elevations as well as a coastal site plan review. It sought two variances; one from the side yard setback requirements on the east and the other for the aggregate ground coverage of the proposed new building. The application and the variance requests reduced the nonconformities which had previously existed with the cottage and garage located on the site. The site plan for the new dwelling also shifts the dwelling on the lot, so that the existing nonconformity for the western set back requirements is eliminated. Because the existing garage was to be demolished, two more nonconformities would be eliminated. Another reduction in non-conformities is that the eaves of the existing cottage actually encroached on the ten-foot right-of-way to the east, and with the new dwelling, there would be no encroachment.
ROR, 13a.-13r.
ROR, 34.
The change is from 9.6 to the required 10 feet. See ROR 13.d, 34.
ROR, 13a.-13r.
The plaintiff, however, argues that the nonconformities are increased with the new proposed dwelling. She begins with her claim that the new dwelling would be much larger. It does have more total square footage than the 1903 cottage, when compared dwelling to dwelling. But when the garage and wooden deck are added to the calculations, there is actually a reduction in the square footage. All changes on the property are required to be considered, not just the one that might otherwise benefit the plaintiff's claims and her narrow focus is not warranted. In addition, the regulations at present permit a home with 40% floor area coverage; this home would have 37%, so it does conform in that respect, despite her claims. The second consideration concerning size is the maximum ground coverage. In this application, that measurement is being reduced from 33.2% to 23.5%, not therefore an increase. Plaintiff's apparent difficulty with this application is that the height of the dwelling is to be increased by almost ten feet; from its present height of 25 feet to 34.3 feet. Allowable in the zone is 35 feet, so the new structure would conform to the existing regulations. The increased height does, however, result in a thirty-four-foot wall facing the property owned by the plaintiff, even though the right-of-way lies between her house and that of the applicant. In addition, she argues that the board could not permissibly consider the ten-foot right-of-way owned by others on the easterly side of the property as providing a de-facto setback for this property. Nonetheless, these are the facts the court finds from the record and their importance and legal meaning will be discussed below.
See table of preexisting nonconformities, ROR 33.
(2) The Public Hearing
A public hearing was held on August 19, 2015. During the public hearing, the physical facts of the preexisting nonconforming aspects of the property and the buildings located on it were examined. The reduction of those nonconforming features with the new dwelling was noted with approval. The board members also commented on the ten foot right-of-way for access to the beach by others as serving a buffer like a setback. There was discussion about the size of the house and whether or not it is too big for the neighborhood. The ZBA had before it as part of the record the Town of Clinton Plan of Conservation and Development, which provides that the board should " encourage replacement houses in dense neighborhoods that are compatible with the neighborhood and surrounding structures." The court notes that the record establishes that this beach front area is densely settled with small lots and has homes, including the plaintiffs, which are similar in size to the applicant's proposed dwelling. The hearing included discussion concerning fire access, which the town believed would be improved, rather than hindered. The plaintiff also presented her claims and documentary evidence in support of her opposition to the grant of the variances.
ROR, Transcript of public hearing, see discussion pages 44-47.
ROR, Transcript of Public Hearing, p. 12, see also 31c.
C. Scope of Review and the Board's Deliberations
In appeals from administrative zoning decisions, a zoning agency's conclusions will be invalidated only if they are not supported by substantial evidence in the record. See Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 215, 779 A.2d 750 (2001). Loring v. Planning & Zoning Commission, 287 Conn. 746, 756, 950 A.2d 494 (2008) states:
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. (Internal quotation marks omitted.) Loring, supra at page 756.
Further, if a board:
states its reasons on the record [the court] look[s] no further . . . Where, however, the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board's decision. (Internal quotation marks omitted.) Garlasco v. Zoning Board of Appeals, 101 Conn.App. 451, 455 n.8, 922 A.2d 227, cert. denied, 283 Conn. 908, 927 A.2d 917 (2007). [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. (Internal quotation marks omitted.) Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 114, 977 A.2d 127 (2009).
In this case, in the deliberation portion of the hearing, the Zoning Board of Appeals members made comments about the reasons for the actions taken, but did not clearly state them. The court must therefore search the record to determine whether there is substantial evidence to support the ZBA's conclusions. The members made reference to the numerous ways in which the preexisting nonconformities were being reduced by the new plan and the improvements to be made. There is substantial evidence in the record to support their observations and conclusions. Specifically, they cited reduction of area coverage from 33% to 23.5%, moving the eastern setback from .5 feet to 1.1 feet, as well as eliminating the property line encroachment. They also made reference to the right-of way as land that could not be built upon and that functioned as the equivalent of a setback. Others made mention of existing three story houses in the area that were similar to the proposed development, by implication finding that it was in accordance with the comprehensive plan for the Town. In the motion for approval to grant the variances requested, the improvements over existing setbacks and ground coverage were cited. Also noted was that the home would be compliant with coastal development, the nonconforming garage would be removed and that there were fire prevention improvements. The ZBA approved the coastal site plan application. The ZBA unanimously approved the variances.
D. Town Of Clinton Zoning Regulation § 27.2.1 and its Impact on this Application
Plaintiff argues strenuously that the Town Of Clinton Zoning Regulation § 27.2.1 applies to this application and must be enforced to deny it. That section states that no expansion or enlargement of a nonconforming structure may proceed, unless the expansion and enlargement is in conformity with the applicable regulations of the Town of Clinton. The ZBA concluded that this was not an expansion of an existing nonconforming structure. It found that the proposed structure reduced the existing nonconformities in a number of ways and that only two variances were required to permit the home to be built. Neither they nor the Town Attorney interpreted the facts in the manner that the plaintiff insists they should be viewed.
The court begins with the interpretation of the regulation by the ZBA. The ZBA clearly saw the application as reducing the existing nonconformities on the lot; that is bringing the proposed new structure more in line with current zoning requirements than the earlier 1903 structure had been. The inquiry into the appropriate interpretation of the zoning ordinance as applied to the construction on the plaintiff's property must begin with the law. The court is not bound by the interpretation of the ZBA, but may consider the matter anew. See Field Point Park Ass'n v. Planning & Zoning Comm'n, 103 Conn.App. 437, 440, 930 A.2d 45 (2007), and Graff v. Zoning Bd. of Appeals, 277 Conn. 645, 651, 894 A.2d 285 (2006). In addition, our courts have held that zoning regulations are to be interpreted so that they yield a reasonable and rational result. Egan v. Planning Bd. of Stamford, 136 Conn.App. 643, 649, 47 A.3d 402 (2012). And further, the court must adopt, if two constructions are possible, the one which makes the regulation workable and not the one which leads to difficult and bizarre results. See Wood v. Zoning Board of Appeal, 258 Conn. 691, 698-99, 784 A.2d 354 (2001).
But merely pointing out that, in certain circumstances, the court's review is plenary does not end of the court's legal inquiry. There are also set limitations on the scope of the court's review power. Before any court can engage in plenary review, it must first determine whether or not the ZBA's interpretation was unreasonable, arbitrary or illegal. So, for example, if the ZBA has interpreted its own regulations in a reasonable manner, then those conclusions must be upheld by the reviewing court. Vivian v. Zoning Bd. of Appeals, 77 Conn.App. 340, 353, 354, 823 A.2d 374 (2003). The burden of persuasion on these issues remains with the plaintiff. Adding support for the deference to be given a zoning agency if the interpretation is reasonable, our courts have found that local boards and commissions are in the best position to interpret their own regulations and to apply them. Balf Co. v. Planning and Zoning Commission of Manchester, 79 Conn.App. 626, 635, 830 A.2d 836 (2003).
The court concludes that the ZBA carefully considered the regulations in detail as they applied to the new structure and its changed location. The comparison nonconformities table provided by the applicant showing the reduction in various nonconformities was persuasive and provided substantial evidence on which the ZBA was reasonably relied. Factually, and in accordance with the weight of the substantial evidence before it, the ZBA reasonably determined that Zoning Regulation § 27.2.1 does not apply where there is no increase in the non-conforming aspects of the development. Its conclusion is not arbitrary, capricious or an abuse of the discretion vested in it under the circumstances. The plaintiff has not met her burden of proof on this claim.
E. The Impact of Verrillo and the Narrow Exception to its Holding
All of the parties to this case argue that Verrillo v. Zoning Bd. of Appeals of Branford, 155 Conn.App. 657, 111 A.3d 473 (2015) provides important guidance to the court in this administrative appeal. First, it should be noted that Verrillo involved review of the expansion of an existing nonconforming 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 Verriilo 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 nonconforming structure to be supported by the substantial evidence.
This application involves the diminution of nonconformities 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 the fact that the parcel of land is a nonconforming 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 (1977). 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 a 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 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. Notes:
Other Superior Court cases cited in Defendant Lee's brief of August 15, 2016 also support of the narrow exception noted.