Opinion
No. CV03 034 79 34 S
December 4, 2003
MEMORANDUM OF DECISION
The appellants, Donald and Claudette Perley, instituted this appeal from a decision of the town of Brookfield Zoning Board of Appeals (hereafter "Board"). On December 9, 2002, the Board denied the Perleys' appeal from the zoning enforcement officer's (hereafter "ZEO") October 22, 2002 decision. The ZEO denied the Perleys' applications for zoning permits to allow new construction on properties located at 54 (Parcel A) and 56 (Parcel B) Candlewood Lake Road in Brookfield. They also appeal from the Board's December 9, 2002 denial of their variance requests for those parcels.
The appellants are the trustees of the Perley Family Trust, which owns the parcels. Under the terms of the Trust, the Perleys retain a life estate in the parcels and have possession and control of them. The parcels are located in the R-40 district in Brookfield, a residential district which requires each property to have a minimum area of 40,000 square feet and a minimum width of 150 square feet.
On March 19, 2002, the Perleys' attorney wrote a letter to the ZEO seeking confirmation of the validity of a zoning permit issued to the Perleys in 1993 by the previous ZEO. In that letter, counsel contended that they were entitled to build on Parcels A and B, notwithstanding the minimum lot requirements set forth in § 242-402A. They maintained that § 242-201E of the zoning regulations acts as a "grandfather" provision, allowing for construction of previously permitted buildings on lots, such as Parcels A and B, which contain less than the minimum area and width requirements. In response, the acting ZEO wrote that he would not approve their application for zoning permits for these parcels because in order to qualify as preexisting nonconforming parcels under § 242-201E, there must be evidence offered in the form of a deed and not merely by evidence such as a map filed on the land records. The ZEO's decision was based upon the advisory opinion of the town counsel who stated that "these lots do not fall within Section 242-201E of the Brookfield Zoning Regulations, as there is no deed evidencing the lots prior to the enactment of the Zoning Regulations."
This permit authorized the Perleys to build a driveway on Parcel A and was valid for six months after the issuance of the certificate of occupancy. (ROR, Item 28c.)
Section 242-201E provides: "The applicable requirements of this chapter pertaining to minimum lot area and minimum lot width shall not prevent the construction of a permitted building or the establishment of a permitted use on a lot which, at the time of adoption hereof, June 15, 1960, or of any pertinent amendment hereto, was evidenced by deed recorded in the Land Records of the Town of Brookfield, provided that such lot contains an area not less than twenty thousand (20,000) square feet; said use and said construction otherwise meets with the approval of the Health Director of the Town of Brookfield and complies with the Public Health Code of the State of Connecticut; and a variance is obtained for any lot which does not comply with the required side yard, front yard or rear yard requirements of this chapter. The provisions of this subsection shall not apply to any parcel of land that requires subdivision approval."
Thereafter, the Perleys sought variances from the Board for Parcels A and B. And in their application for Parcel A, they requested a variance from the requirements of § 242-402A for the 20,591 square foot difference between the required minimum lot area of 40,000 square feet and their proposed dimension of 19,409 square feet. They also requested approval for a proposed lot width of 135 feet, some fifteen feet less than the 150 foot minimum requirement. For Parcel B, the Perleys requested a variance of 13,039 square feet from the minimum lot area requirement.
The Board held a public hearing on December 9, 2002 to consider the variance applications, as well as their appeal of the ZEO's decision denying them zoning permits for construction. During that hearing, the Board heard argument from the Perleys, testimony by an adjoining landowner, and read letters into the record opposing the requests for variances. At the end of the hearing, the Board adjourned to consider the issues.
The Board voted 4-1 to deny the appeal from the ZEO's decision and the Board based its denial upon the written opinion of the ZEO and the previously mentioned legal opinion of the town attorney. The same fate befell the appeal from the ZEO's decision regarding a zoning permit for Parcel B. In addition, the Board voted unanimously 5-0 to deny the variance applications for Parcels A and B. It denied their variance request for Parcel A, asserting that it was a substantial request to make the particular property conform. It also denied their request for Parcel B on the ground that the variance would be excessive, constituting only about half the required lot area.
The Board sent the Perleys four letters of denial on December 19, 2002: two letters addressing each of the variance requests, and the other two applying to the appeal from the ZEO's denials of the Perleys' zoning permits. Those letters restated the grounds specified by the Board in the minutes from the deliberations held on December 9, 2002, following the conclusion of the hearing. The Perleys now appeal from the Board's four decisions regarding Parcels A and B.
Before addressing the merits of the appeal, certain rubrics must be satisfied. "[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." Harris v. Zoning Commission, 259 Conn. 402, 409 (2002). Two broad yet distinct categories of aggrievement exist, classical and statutory, and appellants such as the Perleys, must "[establish] standing on the basis of either classical or statutory aggrievement." Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430-36 (2003).
The Board argues that the Perleys lack both statutory and classical aggrievement and that the appeal should be dismissed because the Perleys are not the owners of the parcels. The Board further contends that they did not own the parcels at the time the permit and variance applications were filed, at the time this appeal was taken, or at the time of the Board's opposition to their appeal. The crux of the argument is that the parcels are owned by the Perley Family Trust and not by the Perleys as individuals, and that they are mere beneficiaries of their family trust. The Board also distinguishes the Perleys' interest as beneficiaries from that of trustees, who may act on behalf of the trust, citing § 52-106 of the General Statutes. According to the Board, the appellants will ultimately fail to establish classical or statutory aggrievement because the pleadings and the record do not establish that they are trustees or that they seek to appeal in that capacity.
On July 8, 2003, the Perleys amended their appeal, claiming that they are aggrieved by the Board's decision because they have a specific, personal and legal interest in the parcels, which has been specially and injuriously affected by the Board's decision. They further plead that "[o]n July 24, 2001, the Plaintiffs conveyed Parcel A and Parcel B to themselves as Trustees of the Perley Family Trust, executed on May 25, 2001. Under the terms of the Trust, the appellants retain a life estate in the Parcels, and have possession and control of them." In addition, they maintain in their supplemental brief, filed on July 8, 2003, that they are modifying their initial brief to reflect that although they are no longer aggrieved as the owners of record, they are still aggrieved because they have met the requirements of the classical aggrievement test.
"The fundamental test for determining [classical] aggrievement encompasses a [time-honored] twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, supra, 410. Aggrievement presents a question of fact for the trial court.
The Perleys maintain that they have a specific personal and legal interest in the two parcels in that: they are the beneficiaries of the Perley Family Trust; they have control over the parcels; they have a present and a future right to possession; and they are tenants with life estate interests in the parcels. In addition, they claim that their current interests, as trustees for the trust which owns the parcels, are reflected by the quitclaim deed which conveyed the parcels to the family trust on May 25, 2001.
At the outset of the appeal before this court, the Perleys submitted a deed demonstrating that they had title to the parcels as of April 21, 1986; (ROR, Item 1(b)); but that this deed is not contained in the record. The plaintiffs have attached it as Exhibit A to their Supplemental Brief.
The court notes that this deed, which the Board has also attached in support of its memorandum as Exhibit A, indeed identifies the Perleys as the sole trustees of the Perley Family Trust, which owns the two parcels. Thus, the Board's claim that the appellants are not aggrieved because they are beneficiaries rather than trustees, lacks merit as it directly conflicts with the terms of the quitclaim deed recorded on July 24, 2001. On its face, the deed states that the Perleys conveyed the parcels to themselves as Trustee Donald Anthony Perley and Trustee Claudette Rhea Marie Perley Trustees of the Perley Family Trust. Accordingly, the Perleys have demonstrated their specific personal and legal interest in the parcels in their capacities as sole trustees, beneficiaries, and life tenants, establishing their right to bring this appeal.
The court concludes that the Perleys are aggrieved because as tenants with life estate interests in the parcels, they qualify as "aggrieved persons," and therefore have the standing to bring this appeal. See Smith v. Planning Zoning Board, 203 Conn. 317, 323 (1987). In Smith v. Planning Zoning Board, the issue was whether the plaintiff, as a life tenant of the property abutting or within 100 feet of a parcel involved in a decision of the board, was aggrieved pursuant to § 8-8. That court affirmed the holding of the Appellate Court, stating that "[t]he incidents of the plaintiff's ownership of the land as a tenant during her life lead us to conclude that she has a sufficient ownership of the locus to entitle her to recognition as a `person owning land' with the right to appeal under 8-8." The court explained that the plaintiff's reserved life interest remained subject to her direction and control as long as she was alive. In every beneficial sense, she was the owner of the premises. The court finds from the marshal's return that the appeal was timely and that service conformed to the statute.
A board may hear and decide appeals from decisions made by a ZEO. "[I]t is clear from both the entire statutory scheme and our zoning case law that the zoning board hears and decides such an appeal de novo, and that the action of the zoning enforcement officer that is the subject of the appeal is entitled to no special deference by the court." Caserta v. Zoning Board of Appeals, 226 Conn. 80, 88-89 (1993).
A board may also "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 . . ." Section 8-6(a)(3) of the General Statutes. A board is authorized "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." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 207 (1995).
"The [court's] scope of review is limited to determining only whether the Board's actions were unreasonable, arbitrary or illegal . . . 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 factual determinations on its own." (Citations omitted; internal quotation marks omitted.) RR Pool Patio v. Zoning Board of Appeals, 257 Conn. 456, 469-70 (2001).
In reviewing the Board's decisions regarding the Perleys' appeal from the ZEO's decisions, as well as their appeal from the Board's denial of their variance requests, the court first considers whether the Board has stated reasons for its actions. See Bloom v. Zoning Board of Appeals, supra, 208. Here, after holding public hearings, the Board issued formal opinions that contain express reasons for its decisions. "Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra. "[T]he appealing aggrieved party [must] marshal the evidence in the record, and . . . establish that the decision was not reasonably supported by the record." (Emphasis in original; internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 716 (2001). "The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." Irwin v. Planning Zoning Commission, 244 Conn. 619, 629 (1998).
The Perleys now appeal from the Board's denial of their variance requests for Parcels A and B, as well as from the Board's determination to uphold the ZEO's decision denying their applications for zoning permits to allow new construction on the parcels. In their amended appeal, dated July 8, 2003, the Perleys allege that the Board acted illegally, arbitrarily, and abused its discretion by upholding the ZEO's decision regarding zoning permits for Parcel A and Parcel B on the following grounds: (1) by applying current zoning regulations to the parcels even though they are comprised of lots which were created on a recorded subdivision map prior to the adoption of the current regulations; (2) by improperly determining that the lots on the original subdivision map had to be conveyed by deed to preserve their nonconforming status; (3) by disregarding the prior approval of the parcels and the actions which the Perleys took in reasonable reliance on the approval, under the doctrine of municipal estoppel. The Perleys also maintain that the Board acted illegally, arbitrarily, and abused its discretion by denying the Perleys' variance applications for Parcel A and Parcel B. Furthermore, when the Board considered their variance requests, it improperly disregarded the evidence of hardship and caused a taking of the parcels from them without just compensation.
The appellants maintain that the parcels are legal, pre-existing, nonconforming lots, which were evidenced by Eriksen and Boyce's deed, and specifically, by a map recorded in 1948. They also claim that the Board did not state a specific reason for its denial but rather based its denial solely on the town attorney's opinion letter dated October 16, 2002, in which the town attorney determined that the lots did not fall within § 242-201E of the zoning regulations because there was no deed evidencing the lots, prior to the enactment of the zoning regulations. Moreover, the appellants assert that the town attorney erroneously interpreted § 242-201E to require a conveyance prior to the enactment of the zoning regulations, whereas the Perleys believe that the regulation only requires that a lot be "evidenced" by a deed. Thus, the Board's denial of the Perleys' appeal was illegal, arbitrary, and an abuse of discretion.
According to the factual history provided by the Perleys at pages three and four in their brief, "The lots in question were formerly part of a larger tract of land owned by Kenneth Erikson and Milton Boyce, with frontage on Candlewood Lake Road f/k/a White Turkey Road. The rear of the tract had frontage on Old Sherman Turnpike. Erikson subdivided that tract into thirteen lots by map recorded with the Brookfield Town Clerk in Map Book number 2 at page 101 on December 23, 1948. On April 21, 1986, Alfred Breton Builder, Inc., conveyed the same property to Donald and Claudette Perley, in survivorship." The Board provided a similar factual history in its brief at pages two through four.
According to the Board, when considered as a single lot, the property contains 46,370 square feet and is conforming to the regulations, which require 40,000 square feet per lot. For this reason, the Board notes that the proposed lot configuration desired by the Perleys falls short of the regulations' requirements because the Perleys seek to build on the two parcels separately, and regulation § 242-201(A) prohibits the use of land absent compliance with the regulations. The Board also maintains that the parcels do not qualify for the exception to the regulations provided by § 242-201E for nonconforming lots because the appellants have not presented any evidence that the original lot configuration was confirmed by a deed showing a conveyance of the lots in their original configuration as distinct parcels of land prior to June 15, 1960, nor any other conveyance that refers to the Perleys' desired lot configuration. In addition, the original lots shown on the Eriksen and Boyce map are not entitled to any special protections under the regulations because Parcel A does not meet the 20,000 square foot minimum lot area requirement of § 242-201E. Moreover, the Board argues that even if the recording of the Eriksen and Boyce map were sufficient to establish the existence of the lots, they have been merged into a single parcel of land because the warranty deed conveyed from Eriksen and Boyce to Wolf clearly eliminated the existence of separate lots by creating a single parcel of land
"We first consider what is embraced in the term `nonconforming use.' The term `nonconforming uses' is often used without consideration as to what aspect of the use of property is nonconforming, and in determining whether an activity is an expansion or change of a nonconforming use, the nature of the nonconformity is important. There are basically four types of nonconformity: (1) nonconforming use — the use of the land or structure on it is nonconforming (e.g., commercial use in a residential zone); (2) a nonconforming lot — the lot is undersized, irregularly shaped, has inadequate width or depth or inadequate frontage; (3) nonconforming building or structure — the structure does not meet the minimum or maximum size requirements, floor area ratio, height or bulk requirements of the existing zoning regulations; (4) nonconformity as to location of structure, i.e., it does not conform with one or more of the setback requirements." (Internal quotation marks omitted.) Munroe v. Zoning Board of Appeals, 75 Conn. App. 796, 806 (2003). Pursuant to § 8-2 of the General Statutes, the zoning commission has the authority to regulate minimum lot size. Lewis v. Planning Zoning Commission, 76 Conn. App. 280, 285 (2003). Generally, undeveloped lots must conform to the shape and size requirements of the applicable zoning regulations because they have not yet been utilized for any particular legal, nonconforming, pre-existing use. See, e.g., Miller v. Zoning Board of Appeals, 36 Conn. App. 98, 104-05 (1994), citing, Sherman-Colonial Realty Corporation v. Goldsmith, 155 Conn. 175 (1967).
The Brookfield zoning regulations define a "nonconforming lot" as follows: "[a]ny lot, parcel of land, or assemblage existing as of the effective date of the adoption of these regulations or any pertinent amendment thereto which does not conform to the total acreage, lot width, road frontage, or access provisions of this Chapter is hereby declared to be a `nonconforming lot' and subject to the following provisions: (1) Regulations considering reduction of lot area or dimensions, required frontage and access, building on existing lots are found in Section 242-201 of the Brookfield zoning regulations. (2) Regulations concerning total acreage and lot width are found in the appropriate section of these regulations for the Zoning District in which the lot is located. (3) Nothing in this section [see 242-201] shall prevent the construction of a conforming addition to a conforming building or structure on a nonconforming lot."
Here, the appellants' parcels are located in the R-40 zoning district, a residential zoning district that requires each lot to have a minimum lot area of 40,000 square feet and a minimum lot width of 150 feet. Section 242-402A of the Brookfield zoning regulations. Parcel A is 135 feet wide, which is 15 feet less than the 150 feet required for lot width by § 242-402A. In addition, Parcel A contains only 19,409 square feet of lot area, which is 20,591 square feet short of the minimum 40,000 square feet of lot area required. Parcel B has 26,961 square feet in lot area, which is 13,039 square feet less than the 40,000 square foot lot area required.
Section 242-201A provides that "[n]o lot shall have an area, width, front, side or rear yard less than that as set forth in the applicable section hereof, except as otherwise specifically provided in this chapter." The parcels, in the configuration proposed by the Perleys, are not large enough to satisfy the minimum lot area and width requirements imposed by § 242-402A. Nevertheless, the Perleys argue that § 242-201E exempts the parcels from complying with the zoning regulations because the parcels constitute pre-existing, nonconforming lots.
Section 242-201E provides: "The applicable requirements of this chapter pertaining to minimum lot area and minimum lot width shall not prevent the construction of a permitted building or the establishment of a permitted use on a lot which, at the time of adoption hereof, June 15, 1960, or of any pertinent amendment hereto, was evidenced by deed recorded in the Land Records of the Town of Brookfield, provided that such lot contains an area of not less than twenty thousand (20,000) square feet; said use and said construction otherwise meets with the approval of the Health Director of the Town of Brookfield and complies with the Public Health Code of the State of Connecticut; and a variance is obtained for any lot which does not comply with the required side yard, front yard or rear yard requirements of this chapter. The provisions of this subsection shall not apply to any parcel of land that requires subdivision approval." (Emphasis added.) Thus, to qualify for the § 242-201E exemption from the minimum lot area and width requirements, the Perleys must establish that the parcels in their current configuration were evidenced by a deed recorded in the land records of Brookfield prior to June 15, 1960, and that each lot contains an area of at least 20,000 square feet.
In their brief, the Perleys contend that the parcels satisfy the requirements of the section here in issue because they were evidenced by Eriksen and Boyce's deed and a map recorded in 1948. However, they do not address the other requirement of § 242-201E, specifically "that such lot contains an area of not less than twenty thousand (20,000) square feet . . ." While Parcel B satisfies this requirement because it has 26,961 square feet of lot area, Parcel A does not meet this requirement because it only has 19,409 square feet of lot area. (ROR, Items 1, 4, 8, 11.) Thus, with respect to Parcel A, the court need not consider whether there is a deed prior to June 15, 1960, evidencing the Perleys' proposed configuration of Parcel A because the parcel lacks sufficient lot area to satisfy the requirements for exemption from the minimum lot area requirements of § 242-402A.
Although Parcel B does satisfy the 20,000 square foot minimum lot area requirement of § 242-201E, the court has determined after thorough review of the record that the Perleys did not satisfy the other requirement of § 242-201E, specifically that the lot was evidenced by a deed recorded prior to the adoption of the current regulations in 1960. The transcript in the record of the public hearing on December 9, 2002, clearly indicates that the Perleys did not submit to the Board for its consideration any deed evidencing that the lots existed in their current configuration prior to the enactment of the zoning regulations in 1960. Moreover, the record and the transcript illustrate that the Board did not have before it the items in the Proposed Supplemental Return of Record at the public hearing or its deliberations on December 9, 2002. These items, which include a series of deeds documenting the chain of title for the parcels and a property survey prepared for the Perleys in 1993, were submitted to the court for its consideration by the Board's attorneys on June 17, 2003.
The court is aware of § 8-8(k) of the General Statutes which, under certain limited circumstances, allows the introduction of evidence in addition to the record. Section 8-8(k) provides in pertinent part: "The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it, pursuant to section 8-7a, or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal." "[T]he offer of additional evidence in the trial court [calls] for a determination, in the exercise of the court's legal discretion, as to whether that evidence [is] necessary for the equitable disposition of the appeal . . . Under § 8-8, the evidence [is] not admissible unless it [is] essential for the equitable disposition of the appeal." (Citations omitted; internal quotation marks omitted.) Troiano v. Zoning Commission, 155 Conn, 265, 268-69 (1967).
The court is also cognizant of the applicable scope of review for appeals from decisions of zoning boards of appeal, which is to avoid conducting a trial de novo. "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." Bloom v. Zoning Board of Appeals, supra, 206. Moreover, "the appealing aggrieved party [must] marshal the evidence in the record, and . . . I establish that the decision was not reasonably supported by the record." (Emphasis in original; internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, supra. The Perleys, and not the defendant Board, had the burden and the option of supplementing the record because they are the appealing aggrieved parties. Accordingly, the court will not consider these documents because they are outside the scope of the record considered by the Board. See Troiano v. Zoning Commission, supra.
The Board's attorneys state in their motion to supplement the record the following grounds for submitting these documents to the court: "In resolving this matter on appeal, the Court should not be hamstrung by the incomplete information that the Perleys presented to the ZBA. This court should have in front of it the full picture, rather than the slice of information that the Perleys chose to present. This is particularly true where documents are referenced, summarized, and glossed over, but not actually submitted." (Emphasis added.) (Motion to Supplement the Record, pp. 4-5.)
According to the transcript, during the hearing there was an exchange during the hearing between the Board and the Perleys' attorney, in which the Perleys' attorney concedes that the Perleys had not supplied the Board with evidence in the form of a recorded deed to show that the parcels were conforming lots prior to amendment of the zoning regulations in 1960 and thus, qualified for "grandfathered status" pursuant to § 242-201E. At the hearing, the Perleys' attorney merely provided the Board with a map filed in the land records by Eriksen and Boyce in 1948. The Perleys did not supply the Board with the deed for the parcels when they were allegedly owned by Eriksen and Boyce. (Proposed Supplemental ROR, Item 38.)
In this exchange, the chairman of the Board correctly observed that "you get grandfathered status if you can show evidence by deed recorded . . ." The Perleys' attorney then immediately answered that the chairman was "[r]ight" in his observation regarding § 242-201E. The chairman then inquired of the Perleys' attorney, "[c]orrect me if I'm wrong, but, a, Attorney McCreery, the Town Attorney is saying that, uh, because there's no evidence, uh, by the current owners of a deed recorded prior to 1960, that they are not getting that grandfathered status?" In response to this question, the Perleys' attorney answered, "Right. Let me, uh, let me just touch on that point. There's a regulation that the Chairman referred to that basically says that in order to have grandfathered status, you need to, the lot needs to be, uh, I need the right, exactly the right words, uh. On a lot which, at the time of adoption hereof, June 15, 1960, or any pertinent amendment hereto, was evidenced by a deed recorded in the land records of the Town of Brookfield. It doesn't say conveyed, it says evidenced." He continued to explain to the Board, "[b]ut the regulation is interesting in its wording. It doesn't say conveyed. It says, uh, evidenced by deed. Somebody owned it in 1948. Somebody owned before 1960. It was evidenced by a deed . . . This [map] was on the land records for twelve years before the zoning regs came along. And, uh, I think as a practical matter, uh, deserves grandfathering." The appellants' attorney did not support this argument by providing the Board with proper evidence in the form of a deed for the parcels recorded prior to 1960, to demonstrate that the parcels qualified as nonconforming lots pursuant to § 242-201E.
The Board stated in the minutes of the hearing that its denial was based upon the written advisory opinion of the ZEO and the town attorney. In his letter, the town attorney advised the Board that "these lots do not fall within Section 242-201E of the Brookfield Zoning Regulations, as there is no deed evidencing the lots prior to the enactment of the Zoning Regulations." The town attorney further explained that "Brookfield's Zoning Regulations, in essence, by Section 242-201E, defined a pre-existing lot as one that is evidenced by a deed of record. Such deed must exist before the adoption of the Regulations, not afterwards. There is a logical reason for imposing that type of definition, and that is to prevent someone from claiming a lot from any hand drawn subdivision map that might have been prepared and/or recorded between 1600 and 1960."
When rendering this decision, the Board also considered a letter written by the ZEO to the appellants' attorney dated October 22, 2002. In the ZEO's letter, he stated that "It appears that the `pre-existing' status [of the lots] is determined by Section 242-201E, which indicates that the circumstance must be evidenced by a `deed' rather than merely evidenced by a map filed on the land records." He concludes his letter by informing the attorney that "[t]own Counsel has stated that the strict interpretation requires a `deed' and none is in evidence. Accordingly, should an application for construction on these lots be submitted, I would be constrained from approving the application."
The court finds that the Board did not err in considering the advisory legal opinions from the town attorney and ZEO because they were pertinent to the Board's deliberations regarding the applicability of the zoning regulations to the parcels in question. Furthermore, the Board did not abuse its discretion or act arbitrarily in denying the appeal from the ZEO's decision because the grounds assigned by the Board are reasonably supported by the record.
The Perleys maintain that they have presented sufficient evidence to the Board to satisfy both requirements for obtaining their two requested variances pursuant to General Statutes § 8-6(a)(3). First, they contend that they have demonstrated that their requests would not substantially affect the comprehensive zoning plan because houses in the area exist on similar lots and were also conveyed by the Ericksen and Boyce map. Second, they claim that the Board disregarded evidence of hardship in denying their variance request because if the zoning regulations are applied to the parcels, it would produce a practical confiscation of the parcels, since they would be unable to make any reasonable use of them.
The Board asserts that it properly denied the Perleys' requests for variances because the variance they sought were excessive. The Board further contends that the appellants did not demonstrate that the minimum lot area and width requirements posed an unusual hardship unnecessary to the carrying out of the general zoning plan. For this reason, the Board argues that it is under no duty to extricate an applicant from a self-created hardship.
Pursuant to § 8-6 of the General Statutes, a zoning board of appeals is authorized to grant a variance to an applicant only if the following two requirements are met: "(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." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra. A board's authority is limited to granting variance petitions only if these two requirements are fulfilled because "[a] variance is authority granted to the owner to use his property in a manner forbidden by the zoning regulations." The court has stressed the limited authority of a board to grant variances: "The power of the board to grant a variance should be used only where a situation falls fully within the specified requirements." In addition, "the power to grant a variance should be sparingly exercised." Reid v. Zoning Board of Appeals, 235 Conn. 850, 857 (1996); see also Bloom v. Zoning Board of Appeals, supra.
The Perleys assert that they have met the first requirement for obtaining a variance pursuant to § 8-6(a)(3) because the houses in the area near the parcels exist on similar lots and were also conveyed in accordance with the Ericksen and Boyce map. Hence, the Perleys believe that their variance requests would not substantially affect the comprehensive zoning plan. The Board does not address this issue in their brief. Therefore, the court declines to address this issue because the parties have only fully briefed the issue of whether the appellants presented sufficient evidence to the Board to demonstrate adequate hardship for obtaining variances. See Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45 (1997) (court not required to review inadequately briefed issues).
In addition, the Perleys argue that they have satisfied the second requirement of § 8-6(a)(3) for obtaining a variance, namely, that without a variance, the strict application of the zoning regulations would produce an undue hardship. They further contend that their hardship is not self-created, and that they have vested rights in the lots which prevent the town from requiring them to combine the two lots to remove the hardship.
The Board claims that their arguments lack merit because the Perleys can show no unique hardship because all of the owners of properties in an R-40 district must comply with the minimum lot area and width requirements of the regulations. The Board further asserts that the appellants' undersized lots constitute a self-created and voluntarily assumed hardship; therefore, the Board is under no duty to extricate the Perleys from this hardship because the claimed hardship must originate in the zoning regulations and arise directly out of the application of the regulations to the parcels.
"[T]he 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." (Citations omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra. "The hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance . . . and arises directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved." (Citations omitted; internal quotation marks omitted.) Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39 (1982).
"Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance . . . A mere economic hardship or a hardship that was self-created, however, is insufficient to justify a variance . . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance." (Citations omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra. Similarly, mere "[d]isappointment in the use of property does not constitute exceptional difficulty or unusual hardship . . ." Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 548 (1996), citing Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662 (1995). In addition, if "the claimed hardship arises from the applicant's voluntary act . . . a zoning board lacks the power to grant a variance." Pollard v. Zoning Board of Appeals, supra. "[S]elf-inflicted or self-created hardship . . . is never considered proper grounds for a variance." (Internal quotation marks omitted.) Pollard v. Zoning Board of Appeals, supra, 40.
During the public hearing on December 9, 2002, the Board and the Perleys' attorney addressed the issue of whether the Perleys have demonstrated adequate hardship to obtain variances for the parcels. The appellants' counsel argued that the imposition of the minimum lot area and width requirements would cause unusual hardship to the Perleys if applied to the parcels here because "the hardship is as plain as any I've seen, in that the lots are absolutely unbuildable without a variance or a granting of the appeal. And . . . there's just nothing at all that can be built on them, and they would be rendered . . . useless." "This is one hardship that the landowner can't cure . . . The one thing you can't do is make a lot bigger. And, everybody else on the street has built on lots of comparable size . . . And, I don't know of any . . . section of the regulations or any provision of law, which would . . . require these lots, because they happen to be side by side, to be merged . . . they're unbuildable without the variance or the appeal being granted."
In response, the Board's chairman emphasized that both parcels were purchased with one deed and inquired whether the appellants would be able to satisfy the minimum lot requirements if all the lots that make up Parcels A and B were combined into one single lot. The Perleys' attorney then conceded that if the lots were combined, a variance would then be unnecessary. The Board further noted that "the Perleys are in a situation where . . . they can remedy the problem by incorporating all their lots and at least making one building lot that conforms. I mean, they, they have a situation where their hardship remains a hardship because of their own choice." Therefore, according to the Board, even though the appellants may have had an expectation that they brought two lots, "neither of those two lots standing alone conform so, they're in fact, disappointed, but they're not without remedy. They can simply use the land they bought and develop it as one lot." Ultimately, the Board concluded that "it's a single parcel of land" One board member also suggested that the Perleys combine the lots into a single conforming lot with one house.
During the hearing, the Board also considered testimony and letters from members of the public regarding the Perleys' variance requests. The Board read into the record letters in opposition to the variances from neighbors who were concerned about the potential increase in traffic, impact on the wildlife in the Old Sherman Turnpike area, and adverse effects on the value of their property if the Board granted the Perleys' requests. None of the neighbors present at the hearing spoke in favor of the Perleys' requests. One of the appellants' neighbors testified at the hearing in opposition to their request. She was concerned regarding the potential property tax implications, i.e., that the taxes would be insufficient to support the cost of two children in school and the cost of the services the town provides to its residents, if the Perleys were allowed to build on such a small lot.
At the conclusion of the public hearing, the Board held a deliberative session. After considering the evidence in the record, the testimony and letters of the residents, as well as the Perleys' requests, the Board voted to deny their variance requests for both Parcel A and Parcel B. The Board stated in the minutes from its deliberations that the Perleys' variance request for Parcel A was denied because "[i]t was a substantial variance request to make the particular property in conformance." Similarly, the Board denied the Perleys' variance request for Parcel B because "[t]he variance is excessive, as it is about half of the lot area that is actually required for a building lot."
The Board properly denied the Perleys' requests for variances of the lot area requirements because the appellants did not meet their burden of demonstrating that the minimum lot area and width requirements caused unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan. There is nothing unique about the Perleys' position: all lot owners of property in the R-40 district are required to meet the minimum lot area and width requirements of the regulations. In addition, "[f]inancial considerations are relevant only if the application of the regulation or ordinance practically destroys the value of the property for any use to which it may be put and the regulation or ordinance as applied to the subject property bears little relationship to the purposes of the zoning plan." Bloom v. Zoning Board of Appeals, supra, 210.
Accordingly, the Board is under no duty to extricate the Perleys from their own self-created hardship because, as their attorney conceded during the public hearing, the Perleys own both parcels and could combine them into a single parcel, which would then comply with the minimum lot area and width requirements of the zoning regulations. The mere possibility that the Perleys will be unable to reap the financial gains which would likely be derived from building two homes on the parcels instead of the single home allowed by the regulations does not constitute an unusual hardship, which is required to justify variances for the parcels. Thus, the Board did not act arbitrarily or illegally, or abuse its discretion in denying the Perleys' requests for variances because there is substantial evidence in the record to support its decision.
The appellants argue that § 242-402A of the zoning regulations has a confiscatory effect on their property because they will be unable to use it for any reasonable purpose if they are not granted variances and allowed to build a home on each parcel. Therefore, the Perleys believe that this provision goes beyond permissible regulation and constitutes an unconstitutional taking. In support of this argument, the Perleys cite Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 153 (1976).
In response, the Board asserts that the Perleys' arguments should be rejected because their claim of practical confiscation is based upon the faulty assumption that they have the right to build two houses on the property and that denial of this right confiscates all reasonable use of the property. According to the Board, since the Perleys can still construct a single house on the parcels in compliance with the regulations, they have not suffered from a taking because they still have substantial value remaining in the parcels.
In Chevron Oil Co. v. Zoning Board of Appeals, the Supreme Court determined that a practical taking of a property justifying a variance requires that a regulation must "permanently [restrict] the use of land for any reasonable purpose, however, goes beyond permissible regulation and amounts to practical confiscation." (Emphasis in original; internal quotation marks omitted.) According to the record, the Perleys have not demonstrated a practical taking because they retain the option to develop the parcels for residential purposes allowed in the R-40 zone. For example, as noted by the Board and conceded by the Perleys' attorney, the Perleys may combine Parcel A and Parcel B together into a single lot and build one residence, which would comply with the requirements of § 242-402A. Thus, as reflected in the record, a variance would then be unnecessary.
(ROR, Item 26, pp. 10, 14-15.)
Despite the apparent Draconian application and mandate of the language in the regulations — the law — must be honored. The appeal is, accordingly, dismissed.
MORAGHAN, JUDGE TRIAL REFEREE.