Opinion
No. CV 02-098533S
May 30, 2003
MEMORANDUM OF DECISION
The plaintiff's appeal from the decision of the Zoning Board of Appeals of the Town of East Haddam which granted a variance to the defendant homeowners, David and Catherine Johnston, for their property located on Main Street in East Haddam.
Factual Background
The defendants, David and Catherine Johnston, own two adjacent parcels of land in the Town of East Haddam known as 63 and 65 Main Street, which they acquired by separate deeds.
The lot at 63 Main Street is 35 feet wide at its frontage on Main Street and is improved with a single family dwelling built in 1940. The lot at 65 Main Street is improved with an historic antique single family dwelling. This parcel is bounded on the east by Main Street and on the north by Cantrell Road, both public roads. The antique house abuts upon both roadway lines. Neither lot conforms with the requirements of the current zoning regulations.
The parcels have been separate, developed lots since well before East Haddam first passed zoning regulations in 1960 and are both located in the East Haddam Historic District. Both properties have access to the town sewer system.
The application calls for reconfiguration of the lot lines to create two parcels with the same pre-existing, non-conforming areas but which conform more closely with other aspects of the zoning regulations. The application shows that the existing historic structure at 65 Main Street will remain in its original location and will continue to fail to comply with setback requirements. The resulting lot occupied by the historic house is now much wider, having more frontage on Main Street, has a conforming setback on the south and west and is more similar to the frontage and layout of other lots in the area. The coverage percentage for which the variance was granted will be 16% rather than the required 10% (1298 sq. foot house on 8065 sq. foot lot).
The other resulting lot has the same area as the larger of the pre-existing lots and conforms to the East Haddam zoning regulations in most other respects. It did require a coverage variance of 1.7%. The coverage percentage will be 11.7% rather than the required 10% (1850 sq. foot house on 15,852 sq. foot lot). The proposed house will no longer be five feet from its neighbor's side yard and will conform to all the setback requirements.
The construction of a house of a reasonable size on the pre-existing smaller lot, 65 Main Street, would require substantial fill and regrading for access of the steep grade to Main Street, removal of mature vegetation and trees, removal of historic stone walls and numerous variances. The Johnston's proposal leaves the existing historic house and site surroundings along Main Street completely intact, requires only slight coverage variances and will result in two parcels which conform much more closely to the existing zoning requirements and the existing neighborhood.
Discussion of the Law and Ruling Aggrievement
An appellant from a decision of a zoning board of appeals must first establish aggrievement pursuant to Connecticut General Statutes § 8-8 (a). The pleading and proving of aggrievement by the plaintiff are a prerequisite to the jurisdiction of the Superior Court over zoning appeals. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). Section 8-8 (a) provides that an aggrieved person in an appeal from a zoning board of appeals decision includes anyone owning land within a one hundred foot radius of the property involved in the case. Plaintiffs Carl and Jane Viggiani and Joan Ziemba have introduced evidence that they own property within a one hundred foot radius of the property at issue in this case. Therefore, the court finds that those plaintiffs are aggrieved. The remaining plaintiffs have not proved aggrievement and the case is dismissed as to them for lack of subject matter jurisdiction.
Standard of Review
The standard to be applied by the court in reviewing the consideration of a variance by a zoning board is whether the board's action was arbitrary, illegal or an abuse of discretion. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). The burden of proof that a zoning board of appeals acted improperly is on the party seeking to overturn the board's decision. Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).
"It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make actual determinations on its own." Farmington v. Zoning Board of Appeals, 177 Conn. 186, 190, 413 A.2d 817 (1979). "In discharging this responsibility, a board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary, or illegal." Molic v. Zoning Board of Appeals, 18 Conn.App . . . 159, 165, 556 A.2d 1049 (1989). On appeal, a reviewing court reviews the record of the administrative proceedings to determine whether the board "has acted fairly or with proper motives or upon valid reasons." Schwartz v. Planning Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). The court reviews the record to determine whether there is factual support for the Board's decision. Pleasant View Farms v. Zoning Board of Appeals, 218 Conn. 265, 270, 588 A.2d 1372 (1991). "Decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairy made after a full hearing . . . as the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency . . . The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings." Conetta v. Zoning Board of Appeals, 42 Conn. App. 133, 137-38, 677 A.2d 987 (1996).
Applicable Legal Standards
Connecticut General Statutes § 8-6 (a) (3) provides for the zoning board of appeals to grant a variance of zoning regulations:
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 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 . . .
The accepted formulation for allowance of a variance is: (1) the variance does not substantially affect the comprehensive plan of zoning, and (2) adherence to the strict letter of the zoning regulation is shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan. See e.g. Smithy v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542 (1978); Francini v. Zoning Board of Appeals, supra; Bloom v. Zoning Board of Appeals, supra.
The plaintiffs do not argue that the variance in this case will substantially affect the comprehensive plan of zoning. Rather, they argue that the Johnstons had no hardship because they could have built a 750 square foot house in the existing footprint of on one of the lots. They rely on the case of Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 684 A.2d 735 (1996), to support the proposition that "where a house could be built on a lot while conforming to zoning requirements, even if it was not the type of structure the applicant desired, there was no hardship." See Plaintiffs Pre-Trial Memorandum of Law, p. 5. The plaintiffs have misconstrued the holding of Jaser, and have ignored more applicable and more recent authority from the same Court, Giarrantano v. Zoning Board of Appeals of Norwich, 60 Conn. App. 446, 760 A.2d 132 (2002).
In Jaser the "controlling issue on appeal [was] whether the trial court impermissibly substituted its factual findings for those of the board." Jaser, supra, at 547. In Jaser the plaintiffs applied for a variance to vary the required thirty-foot front yard setback to twenty feet so that they could construct a single-family residence on the property which had remained vacant for 22 years after fire destroyed the residence that had been located thereon. Prior to the submission of the variance application, the plaintiffs submitted an application to the board to have the lot declared a nonconforming building lot. The plaintiffs at that time submitted a survey that showed that a house could be constructed on the property within the applicable setback requirements. In their application for a variance, the plaintiffs claimed a hardship in that the "front yard setback requirement makes lot unbuildable because of the unusual shape of the building area restricted by tidal wetlands." Jaser, supra, at 546.
The zoning board of appeals denied the variance application because there was no evidence presented to establish a hardship and the plaintiffs had already represented that they could build a house within the required setbacks when they applied for and were granted permission to build on a nonconforming lot. The trial court sustained the plaintiffs' appeal. The decision of the trial court was reversed on the ground that the trial court had impermissibly substituted its judgment for that of the board.
In Giarrantano v. Zoning Board of Appeals of Norwich, 60 Conn. App. 446, 760 A.2d 132 (2002), as in this case, the zoning board of appeals had granted the applicant's variances that permitted him to build a thirty-six unit hotel on his commercially zoned property. The trial court determined that the record did not support the board's conclusion that a hardship existed because 1) the applicant was able to make some use of the property, 2) a house was located on the property, supporting the conclusion that the property could be used for residential purposes as well as other commercial purposes besides the hotel without the variances, and 3) the application of the zoning regulations did not completely destroy the value of the property for any of the uses to which it could reasonably be put.
The Appellate Court reversed the judgment of the trial court. The Court noted that the trial court based its decision on the standard for establishing hardship set forth in Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988):
[t]he financial impact must be such that the 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.
Giarrantano, supra, at 452.
The Court stated that the foregoing standard was applicable in the "extreme situation where the application of a regulation renders property practically worthless, and that loss of value alone amounts to a hardship . . . Although satisfying this test is a valid means of establishing a hardship, it is not exclusive." Id. at 453, citing Stillman v. Zoning Board of Appeals, 25 Conn. App. 631, 636, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991). Holding that the trial court had applied an incorrect standard for determining hardship, the Court in Giarrantano stated:
"A variance may be granted if the literal enforcement of a regulation causes exceptional difficulty or hardship because of some unusual characteristic of the property." Id. [Applicant] testified that the application of the two ordinances sought to be varied would leave thirty-nine feet on which to build. The context of his testimony, together with the statements of his attorney, indicates that he attributed the deprivation of reasonable use to the peculiar narrowness and topography of the property. From [Applicant's] evidence, the board was justified in finding that [Applicant] would suffer unusual hardship that would deprive him of the reasonable commercial use of his property if the code were applied strictly. The board's findings regarding hardship are, therefore, not unreasonable, arbitrary or illegal.
Id.
The Court in Giarrantano held that the zoning board of appeals properly found hardship where strict enforcement of the zoning regulations would deprive the applicant of reasonable use of the property. 60 Conn. App. at 454.
In this case, as in Giarrantano, the fact that the applicants could construct a 750-square foot house on the existing footprint at 63 Main Street does not mean that there was no hardship. There was ample evidence in the record that without the variance the Johnstons would suffer a hardship different in degree and nature from conditions generally affecting the properties in the neighborhood. The hardship arose from the odd configurations of the two lots at issue, the grade of the lot at 65 Main Street, which would make construction of a new house on the lot difficult without adding substantial fill and regrading, and the 750-square foot footprint at 63 Main Street, which was only 5 feet from its neighbor's side yard. While the claimed hardship did not destroy the value of the property, the configuration of the lots prior to the variance did act to deprive the Johnstons of the reasonable residential use of their property.
Moreover, the Johnstons' variance proposal made two very nonconforming lots into two lots which conformed with most of the zoning regulations, and were much more consistent with other lots in the neighborhood. The Johnstons' request for a coverage variance for the lot at 63 Main Street of 1.7% so that coverage percentage would be 11.7% rather than the required 10% (1850-sq. foot house on 15,852-sq. foot lot) clearly constituted a reasonable use of their property. In addition, the proposed new lot configuration which would no longer place the house at 63 Main Street within 5 feet of its neighbor's side yard was also reasonable and created a lot that was much more conforming with the zoning regulations.
The elimination of non-conformities is a recognized goal of zoning law. Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483, 408 A.2d 243 (1979). It is also a principle recognized by the East Haddam Zoning Regulations, which provide, at Section 8, that:
It is the intent of these regulations to reduce all on-conforming uses, lots, buildings, and structure to conformity as quickly as possible and in no way to allow the extension or enlargement of the non-conformity unless specifically authorized in these regulations.
The plaintiffs also argue that the hardship found by the Board was one of the Johnston's own making. This argument is invalid. The lots resulting from the variance did not create the hardship, but rather, the pre-existing configuration of the lots and their topography created the hardship. The two lots were grossly nonconforming prior to the time when the Johnstons took title to them.
The plaintiffs' reliance on Abel v. Zoning Board of Appeals, 172 Conn. 286, 374 A.2d 227 (1977), is misplaced. The Johnstons and their predecessors took no act to create the hardships. Those hardships are the result of the after-enacted regulations:
There has always existed a distinction between circumstances such as those in Abel, where the applicant or his predecessor in interest creates a hardship such as an undersized lot, and a situation where the hardship which would justify the grant of a variance originates in the zoning ordinance itself. "Where a nonconformity exists, it is a vested right which adheres to the land itself. `And the right is not forfeited by a purchaser who takes with knowledge of the regulations which are inconsistent with the existing use.' 1 Anderson, American, Law of Zoning (2d Ed.) 6.37, p. 445." Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 483, 408 A.2d 243 (1979). Where the applicant or his predecessor creates a nonconformity, the board lacks power to grant a variance. Abel v. Zoning Board of Appeals, supra; Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972); Highland Park Inc. v. Zoning Board of Appeals, 155 Conn. 40, 43, 229 A.2d 356 (1967). But if the hardship is created by the enactment of a zoning ordinance and the owner of the parcel could have sought a variance, then the purchaser has the same right to seek a variance and, if his request is supported in law, to obtain the variance. Petruzzi v. Zoning Board of Appeals, supra. Otherwise the zoning ordinance could be unjust and confiscatory.
Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 300-01, 429 A.2d 883 (1980).
The East Haddam Zoning Board of Appeals has acted in accordance with statutory mandates and in compliance with the general zoning scheme of the town. Unlike many variances which take property farther from conformity, the variance granted in this case gives relief from legitimate hardships while bringing the property closer to conformity with the zoning laws. The variance allows the creation of lots much like others in the neighborhood, avoids creating traffic hazards and leaves an historic home and its surroundings intact. The plaintiffs have made no showing that the East Haddam Zoning Board of Appeals has acted illegally, arbitrarily or in abuse of its discretion.
For the foregoing reasons, the appeal is dismissed.
By the court,
Aurigemma, J.