Opinion
No. DBD-CV-08-4009837-S
December 7, 2009
MEMORANDUM OF DECISION
The plaintiff, Ann D. Ross, appeals pursuant to General Statutes § 8-8 from the decision of the defendant, the zoning board of appeals of the town of New Fairfield (board), which rejected the plaintiff's application for a variance of the zoning regulations of the town of New Fairfield (regulations) to permit the construction of a two-car detached garage with a second story on an existing foundation of a carport. As owner and unsuccessful applicant, the plaintiff is aggrieved by the board's decision and has standing to bring this appeal. See Gladysz v. Planning Zoning Commission, 256 Conn. 249, 257-58, 773 A.2d 300 (2001).
The following facts are found based on the admitted allegations of the plaintiff's revised complaint dated May 5, 2009 and on an examination of the record in the instant matter. The plaintiffs' property is located at 108 Lake Drive South, Candlewood Isle in New Fairfield. The property is located in an R-44 residential zone, which provides, pursuant to the regulations, for the following: minimum lot area of one acre (regulations § 3.2.3a), minimum side yard setback of 20 feet (regulations § 3.2.4b) and minimum rear yard setback of 50 feet (regulations § 3.2.4c). (ROR 251.) Section 2.2 of the regulations further defines "setback" as the shortest distance between a part of the building or structure and the nearest property line and provides that the 440-foot contour line along Candlewood Lake, the so-called "four-forty" line, be considered the property line between lakeshore property owners and the land below the 440-foot contour line currently controlled by First Light Power Resources. (ROR 183.) The premises are currently improved with a single family residence.
The plaintiff had previously sought and had been granted variances of both the side yard and the rear yard setbacks, at different times, to permit the construction of a garage. In July 1975, the plaintiff sought and was granted a variance of the side yard setback from twenty feet to six feet to construct a single car garage on the existing stone foundation of a carport. The hardship arose from safety concerns of the homeowner being able to back a car out of the driveway with a clear line of sight. (ROR 7-8.) Under the mistaken belief that because she did not build the garage within two years of the date of issuance of the variance, that the variance had expired, the plaintiff reapplied for another variance in 1982. On December 7, 1982, the board once again granted a variance of the side yard setback from twenty feet to six feet to construct a garage. (ROR 9-10.) However, on that occasion, an aggrieved neighbor brought an appeal to the Superior Court. The court sustained the appeal. Two years later, in 1984, the plaintiff applied for a third variance. This application differed in that the garage had now become a two-car, twenty-four-foot by twenty-six-foot garage and had been moved closer to the rear of the lot. The plaintiff then sought a variance of the side yard setback from twenty feet to eight feet and a variance of the rear yard setback from fifty feet to twenty feet. The board granted the requested variances on July 2, 1984. The hardship arose from the difficulty of locating the garage anywhere else on the lot because of the existence of rock ledge. (ROR 11-12.) To the time of this appeal no construction has ever been started on the proposed garage.
On July 31, 2008, the plaintiff, acting through her architect, Tasos Kokoris, commenced the application process to obtain the appropriate zoning permits or variances necessary to construct the two-car garage on the existing stone foundation, now with a proposed second story. (ROR 6, 13.) In furtherance of the application process, the zoning enforcement officer issued a written verification of noncompliance dated August 18, 2008, which recited that the proposal failed to meet the following zoning requirement: "Sections: 2.4.3a b — Nonconforming Use of Building or Structure; Nonconforming buildings or Structures. 3.2.3a — Minimum Lot Area — One Acre Required. 3.2.4b — Side Yard Setback — 20' Required." (ROR 1.) The verification of noncompliance bore the following disclaimer and admonition in bold face, capital letters:
THE INFORMATION ON THIS REPORT IS TO GUIDE THE APPLICANT/PETITIONER AND THE ZONING BOARD OF APPEALS TO APPLY FOR VARIANCES, AND IS BASED ON REPRESENTATIONS MADE BY THE PROPERTY OWNER/APPLICANT . . .
IN COMPLEX MATTERS, THE OWNER/APPLICANT MAY WISH TO SECURE THE SERVICES OF AN ATTORNEY.
On that same date Kokoris filed an application to the board. (ROR 3.) On the application form, Kokoris checked only the box indicating the application was for a variance, not an appeal, and specifically, further down on the application, that a dimensional variance was requested for a six-foot side yard setback. The space provided on the application to describe the hardship was left blank.
At the initial hearing held on October 16, 2008, counsel for the plaintiff, who had only then appeared in the matter for the first time since the application had been filed, asserted that the plaintiff was really seeking an appeal of the zoning enforcement officer's verification of noncompliance. (ROR 96.) What followed was a lengthy discussion between various board members and plaintiff's counsel. A consensus seemed to develop among the board members that the 1975 and 1984 variances of the side yard and rear yard setbacks to permit a garage were still valid. There was some question as to whether either the 1975 or the 1984 variances contemplated a second story over the proposed garage. No vote was taken and the hearing was ultimately continued for purposes of allowing further investigation as to whether either of the two prior variances contemplated the second story or whether, in the alternative, the plaintiff would be able to revise the building plans to either eliminate the second story or to make it more palatable to the board and to an abutting neighbor. (ROR 96-130.)
On November 17, 2008, the zoning enforcement officer issued a revised certificate of noncompliance to include, among the already stated zoning regulations with which the proposal failed to comply, the following additional ground: "3.2.4c — Rear Yard Setback — 50' Required." (ROR 2.) There were no other changes in the revised certificate.
At the continued hearing on the application held on November 20, 2008, counsel for the plaintiff advised the board that he was not able to provide any additional information to the board that would show whether the 1975 variance or the 1984 variance contemplated a second story above the garage. In addition, counsel advised the board that together he, the plaintiff and the plaintiff's architect were not able to produce any redesign of the proposed plans that would make the proposal more palatable to either the board or to the abutting neighbor. (ROR 141-44.) Counsel indicated that it was his position and his client's position that the 1975 side yard and the 1984 side yard variances were valid and contemplated the construction of a garage, that neither prior variance was conditioned on a height restriction prohibiting a second story and that the proposed plans were within any height restrictions imposed by other provisions of the regulations. Counsel stated definitively, "Interestingly enough, this is a bizarre case because we're really asking you not to grant us any new variances. We're asking you to certify to your own enforcement officer, who is here this evening, that the old variances are in place and that this structure as proposed is in conformity with the two variances that exist. That's what we're really asking." (ROR 145.)
In response, the board chairman stated his view as to the task before the board: "I think my view procedurally is that I don't understand um, any party to be arguing that the prior variances adopted any specific set of building plans as a term and condition of the variance. Um, so what we are doing tonight is granting a variance with two components to it. One will in effect affirm the previously approved setbacks although I have to state for the record I agree with counsel's summary of both his and the town land use attorney's analysis and that is that the dimensional setbacks previously adopted by any of the prior variances not overturned by the court remain in effect. But the other part of the variance of course, is to approve the specific plans because it's this board's view in this and every other case that any construction outside of the building envelope can be conditioned on specific plans and that I think is what we spent probably the majority of our last meeting reviewing from a variety of perspectives." (ROR 146-47.)
At the close of the public hearing, the board went into executive session. The consensus among the board members appeared to be that the prior variances established the footprint on the ground. In the words of the commission chairman: "The footprint on the ground we can't mess with." (ROR 162.) However, the board members were all of the opinion that they had the ability to approve or disapprove what was built within the footprint over and above the garage. (ROR 162-68.) Finally, the board chairman framed the vote for the board: "I'll make a motion to grant the variance subject to the plans as submitted noting for those purposes, although I'm not sure it's legally necessary, that the board in effect is reaffirming the prior dimensional setbacks approved by the prior decisions with exception of the one overturned by the [S]uperior [C]ourt, and is affirming the appropriateness of the construction of a two-car garage, and for the purposes of this particular vote, is considering the application as submitted to the board and explained by the applicants in this matter. The hardship being, and I'm going to incorporate by reference the hardship referenced in the prior board decisions just to save time tonight." (ROR 168.) The motion was defeated by a unanimous vote. (ROR 169.) The board stated no reason for its denial.
The plaintiff brought this appeal claiming that the board acted illegally, arbitrarily and in abuse of its discretion in that the second story addition above the garage was not an expansion of a nonconforming structure, that the proposed vertical expansion of the garage does not violate the regulations and that the board's denial of the variance is not supported by the record. The defendant, in addition to rebutting the argument of the plaintiff, claims that the issue of the legal conformity of the proposed second story may not be raised on appeal because the plaintiff has failed to exhaust her administrative remedies and the court lacks subject matter jurisdiction to consider the issue.
DISCUSSION
An appeal from a decision by a zoning board of appeals is statutory in nature and the standard of review by the Superior Court is well established. "The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal." R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "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." (Internal quotation marks omitted.) Id. "Moreover, the plaintiff's bear the burden of establishing that the board acted improperly." Woody. Zoning Board of Appeals, 258 Conn. 691, 698, 784 A.2d 354 (2001).
In Osborne v. Zoning Board of Appeals, 41 Conn.App. 351, 675 A.2d 917 (1996), the court stated: "Ordinarily, the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly 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." (Internal quotation marks omitted.) Id., 354.
"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning [board's] stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the [board] . . . The [board's] decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Citations omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004); see also Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547-48, 684 A.2d 735 (1996). "[A zoning] board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal." (Internal quotation marked omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).
I ANALYSIS OF PLAINTIFF'S RIGHTS UNDER PRIOR VARIANCES AND THE REGULATIONS A. Validity of Prior Variances
General Statutes § 8-8 was modified by Public Act 93-385 to add subsection (b) which provides that "any variance granted by a zoning board of appeals shall run with the land and shall not be personal in nature to the person who applied for and received the variance. A variance shall not be extinguished solely because of the transfer of title to the property or the invalidity of any condition attached to the variance that would affect the transfer of the property from the person who initially applied for and received the variance." The first sentence of the new provision merely clarified and codified existing case law and has retroactive effect. Reid v. Zoning Board of Appeals, 235 Conn. 850, 860, 670 A.2d 1271 (1996). The plaintiff's 1975 grant of variance of the side yard setback from twenty feet to six feet to permit the construction of a garage on an existing stone carport foundation and the 1984 grant of variance of the rear yard setback from fifty feet to twenty feet to permit the construction of a two-car garage are both valid and enforceable variances of the existing regulations. The defendant provides no good authority for its assertion that the "[p]laintiff is not entitled to piggy back the 1975 and the 1984 variances . . . Plaintiff may construct a one car garage with a 6 foot Side Yard setback (and no Rear Yard setback) as permitted by the 1975 variance, or a two-car garage with an 8 foot Side Yard setback and a 20 foot rear yard setback as permitted by the 1984 variance . . ." (Defendant's brief dated June 1, 2009, footnote 8.) The court can find no authority for the proposition that only one but not both of the variances can be valid.
B. Alteration of Prior Variances
Other than the conditions as stated in the grants of the original variances, i.e. the 1975 variance of the side yard setback to 6 feet to permit the construction of a garage on an existing stone carport foundation and the 1984 grant of variance of the rear yard setback to twenty feet to permit the construction of a two-car garage, the record discloses no other conditions attached to either grant of variance. Although it may be routine to condition the grant of a variance on a specific set of plans now, such a practice apparently was not routine at the time that the 1975 and 1984 variances were granted. (ROR 98.) Implicit in a zoning board's power to grant variances is the power to attach reasonable conditions to the variances granted. Burlington v. Jencik, 168 Conn. 506, 509, 362 A.2d 1338 (1975). "The right to attach reasonable conditions to the grant of a variance is not dependent upon express authorization from the lawmaking body." (Internal quotation marks omitted.) Burlington v. Jencik, supra, 509; accord Wright v. Zoning Board of Appeals, 174 Conn. 488, 492, 391 A.2d 146 (1978). Once granted however, a zoning board of appeals cannot retroactively add conditions to a variance. "A zoning board of appeals is generally precluded from reversing a prior decision unless there has been a material change of conditions, or other considerations have intervened affecting the merits, and no vested rights have arisen." Wright v. Zoning Board of Appeals, supra 492, accord Grasso v. Zoning Board of Appeals, 69 Conn.App. 230, 244, 794 A.2d 1016 (2002). The board cannot now alter the existing 1975 and 1984 variances or impose additional conditions.
C. Existing Height Regulations
Section 3.2.6 of the regulations, concerning maximum building height, provides: "No building within an R-44 residential district shall exceed thirty-five (35) feet in height." Plaintiff's proposal for a garage with a second story complies with the regulation. (ROR 72-73.)
D. Vertical Expansion of Nonconformities
With regard to nonconforming uses, buildings and structures, the regulations provide, in pertinent part, the following:
2.4.1 General. It is the intent of these Regulations that nonconformities are not to be expanded, that they should be changed to conformity as quickly as the fair interests of the parties permit and that the existence of any existing nonconformity shall not in itself be considered grounds for the issuance of a variance for any other property . . .
2.4.2 Non-conforming Use of Land. Any nonconforming use of land which lawfully existed on the effective date of these regulations or any amendment thereto may be continue[d] provided that:
(a) No nonconforming use of land shall be enlarged or increased, nor shall it be extended to occupy a greater area of land than that occupied by such a use at the time of the adoption of the regulations to which it fails to comply unless specifically allowed by the provisions of this regulation . . .
2.4.3 Nonconforming Use of Building or Structure; Nonconforming Buildings or Structures. Any nonconforming building or structure or nonconforming use of building or structure which existed as of September 6, 1937, or was created in compliance with the 1937 zoning regulations, or in compliance with any amendment thereto, may be continued provided that:
(a) Such nonconforming use, building or structure shall not be enlarged or extended unless the use, building or structure is changed to a conforming use, building or structure, or more conforming building or structure;
(b) Such nonconforming use, building, or structure shall not be structurally altered, reconstructed, expanded or enlarged unless such alterations, reconstruction, enlargements or expansions conform to all applicable requirements of these regulations . . .
(ROR 188-89.)
Both the plaintiff and the defendant agree that ultimately the question of whether the plaintiff can construct the proposed two-story garage will rest on the distinct language of the regulations. Both parties discuss extensively two cases which have considered the vertical expansion of a nonconformity and each relies heavily on one of the two, the plaintiff on Doyen v. Zoning Board of Appeals, 67 Conn.App. 597, 789 A.2d 478, cert. denied, 260 Conn. 901, 793 A.2d 1088 (2002), and the defendant on Moon v. Zoning Board of Appeals, 291 Conn. 16, 966 A.2d 722 (2009).
In Doyen, the zoning board of appeals upheld the zoning enforcement officer's granting of a permit to the property owners to allow them to build an addition above part of an existing, legally nonconforming deck on their property. The deck, which had been built prior to the adoption of zoning regulations, extended into the twenty-five foot setback subsequently required by the regulations. The trial court sustained the plaintiff neighbor's appeal and the Appellate Court reversed the trial court, remanding with instructions to render judgment affirming the decision of the board. In rendering its decision, the Appellate Court conducted the following examination of the town of Essex zoning regulations:
The preamble to the Essex Zoning regulations provides in relevant part that "[i]t is a fundamental principle of zoning law that nonconformities are not to be expanded and that they should be abolished or reduced to conformity as quickly as the fair interests of the parties will permit. This principle is declared to be the intent of these regulations." Essex Zoning Regs., § 10B. While § 10B sets forth the general policy that nonconformities are not favored in zoning law, this section must be read in the light of § 50D, which specifically provides a window of tolerance for the expansion of nonconforming improvements like the Sapias' deck. Section 50D provides in relevant part that "no improvement having a nonconforming characteristic, shall be enlarged, extended, or expanded except in conformity with these Regulations . . ." (Emphasis added.) This portion of § 50D stands in sharp contrast to the remainder of the section which provides in relevant part that "[n]o nonconforming . . . characteristic of any . . . improvement shall be enlarged, extended, or expanded . . ." A fair interpretation of § 50D thus expressly anticipates the permissive expansion of an improvement having a nonconforming characteristic as long as the nonconforming characteristic is not expanded and the expansion is otherwise in conformity with the regulations. Any other reading would defeat the common sense approach that must be used in construing regulations. The relevant question, therefore, becomes whether the Sapias' proposed addition constitutes an expansion of a nonconforming characteristic of an improvement under the regulations.
Doyen v. Zoning Board of Appeals, supra, 67 Conn.App. 605-06. The Appellate Court concluded that the zoning board's finding that the vertical expansion over the nonconformity did not constitute an expansion of a nonconforming characteristic was correct. The court concluded that § 50D of the regulations "expressly anticipates the permissive expansion of an improvement having a nonconforming characteristic as long as the nonconforming characteristic is not expanded and the expansion is otherwise in conformity with the regulations." Doyen v. Zoning Board of Appeals, supra, 608.
The Moon case involved significantly different regulatory language. The plaintiff property owners appealed from the denial of their application for a variance and from the board's decision upholding the zoning enforcement officer's denial of a building permit for a second story addition to their residence which did not conform to the front yard setback requirement. The trial court dismissed the plaintiff's appeal and, on the granting of certification, the Supreme Court affirmed. Section 12.6 of the Madison zoning regulations provided in pertinent part:
No building which does not conform to the requirements of [the town zoning] regulations regarding . . . required yards . . . shall be enlarged unless such enlarged portion conforms to the regulations applying to the district in which it is located.
(Emphasis added.) Moon v. Zoning Board of Appeals, supra, 291 Conn. 21. The Moon court concluded as follows:
The use of the term "portion" in § 12.6 is significant for two reasons. First, the word "portion" is commonly understood to mean "an often limited part set off or abstracted from a whole . . ." Merriam-Webster's Collegiate Dictionary (11th Ed. 2003). Second, the use of that term in the latter part of § 12.6 is strong evidence that the local legislative body intended a different meaning from the term "building" in the first part of the regulation. See Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 662, 931 A.2d 142 (2007) (Katz, J., concurring) (we assume legislature has different intent when it uses different terms in same statutory scheme). We conclude, therefore, that the plain language of § 12.6 of the town zoning regulations clearly and unambiguously conveys a legislative intent to restrict the enlargement of nonconforming buildings, unless the proposed enlarged subsection of the building, standing alone and without respect to the characteristics of the existing building, conforms to the zoning regulations.
Moon v. Zoning Board of Appeals, supra, 291 Conn. 22.
As between the two, the underlying regulations of the town of Essex at issue in Doyen are much closer to those of New Fairfield in the present case. In fact, in a side by side comparison of the pertinent provisions, the Essex regulations and the New Fairfield regulations have very similar parallel provisions. Both the New Fairfield regulations § 2.4.3(b) and the Essex regulations § 50D permit the enlargement or expansion of a "non-conforming use building or structure" (in the case of New Fairfield) and an "improvement having a non-conforming characteristic" (in the case of Essex) if done "to conform to all applicable requirements of these regulations" (in the case of New Fairfield) and "in conformity with these regulations" (in the case of Essex). Based on the reasoning of the Doyen court as well as the almost identically drafted relevant zoning provisions the court concludes that the regulations here do not prohibit the vertical expansion over the footprint established by the 1975 and the 1984 variances.
In addition to Moon, the defendant also relies upon Munroe v. Zoning Board of Appeals, 75 Conn.App. 796, 818 A.2d 72 (2003), in which the court determined under the zoning regulations that a vertical expansion was not permitted under the Branford regulations. Id., 811. Munroe is clearly distinguishable because the Branford regulations contained no provision similar to either § 2.4.3(b) of the New Fairfield regulations or § 50D of the Essex regulations.
The foregoing analysis of the plaintiff's rights under the 1975 and 1984 variances and the application of the regulations, specifically as to building heights and nonconforming uses, buildings and structures, is not dispositive of this appeal, however, for the reasons set forth and discussed in the following section of this decision and because Moon, Doyen and Munroe did not address vertical expansion in the context of variances, wherein certain restrictions are deliberately varied for a particular property due to an extraordinary hardship, but addressed such expansion in the context of nonconformities, which, as the Appellate Court noted in Munroe, "should be reduced to conformities with all the speed justice will tolerate . . ." Munroe v. Zoning Board of Appeals, supra, 75 Conn.App. 811.
II NATURE OF THE PROCEEDINGS BEFORE THE BOARD AND SCOPE OF THE COURT'S REVIEW
The powers of the board to hear appeals from actions of the zoning enforcement officer as well as the powers to determine and vary the application of the zoning regulations are set forth in General Statutes § 8-6(a) and § 8-7, and is also set forth in § 5-1 of the regulations which provides in pertinent part:
General Statutes § 8-6 (a) provides: "The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter; (2) to hear and decide all matters including special exceptions and special exemptions under section 8-2g upon which it is required to pass by the specific terms of the zoning bylaw, ordinance or regulation; and (3) 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, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. No such board shall be required to hear any application for the same variance or substantially the same variance for a period of six months after a decision by the board or by a court on an earlier such application."
General Statutes § 8-7 provides in relevant part: "The concurring vote of four members of the zoning board of appeals shall be necessary to reverse any order, requirement or decision of the official charged with the enforcement of the zoning regulations or to decide in favor of the applicant any matter upon which it is required to pass under any bylaw, ordinance, role or regulation or to vary the application of the zoning bylaw, ordinance, rule or regulation. An appeal may be taken to the zoning board of appeals by any person aggrieved or by any officer, department, board or bureau of any municipality aggrieved and shall be taken within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days, by filing with the zoning commission or the officer from whom the appeal has been taken and with said board a notice of appeal specifying the grounds thereof . . . The board shall hold a public hearing on such appeal in accordance with the provisions of section 8-7d. Such board may reverse or affirm wholly or partly or may modify any order, requirement or decision appealed from and shall make such order, requirement or decision as in its opinion should be made in the premises and shall have all the powers of the officer from whom the appeal has been taken but only in accordance with the provisions of this section. Whenever a zoning board of appeals grants or denies any special exception or variance in the zoning regulations applicable to any property or sustains or reverses wholly or partly any order, requirement or decision appealed from, it shall state upon its records the reason for its decision and the zoning bylaw, ordinance or regulation which is varied in its application or to which an exception is granted and, when a variance is granted, describe specifically the exceptional difficulty or unusual hardship on which its decision is based. Notice of the decision of the board shall be published in a newspaper having a substantial circulation in the municipality and addressed by certified mail to any person who appeals to the board, by its secretary or clerk, under his signature in any written, printed, typewritten or stamped form, within fifteen days after such decision has been rendered . . ."
Pursuant to authority granted by Section 8-6 of the Connecticut General Statutes, the Zoning Board of Appeals shall have the following powers and duties:
(1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of these zoning regulations adopted under the provisions of Chapter 124 of the Connecticut General Statutes . . .
(3) to determine and vary the application of these zoning 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 specifically affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such zoning regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed.
(ROR 284.) The statutory framework clearly accommodates both appeals and applications for variances, differentiates as between the two and sets forth the procedure when an appeal is joined with an application for a variance. General Statute § 8-6a provides as follows:
Whenever an application to a zoning board of appeals for a grant of variance is joined with an appeal from any order, requirement or decision made by the official charged with the enforcement of this chapter, or any bylaw, ordinance or regulation adopted under the provisions of this chapter, the board shall first decide the issues presented by such appeal.
In the instant matter the plaintiff filed an application for a variance. All legal notices filed pursuant to General Statute § 8-7 reference only an application for a variance. (ROR 24, 26, 28-33, 56.) The call of the hearing read at the opening of each of the two public hearings referenced only an application for a variance. (ROR 84-87, 139-40.) The initial written verification of noncompliance was issued on August 18, 2008. (ROR 1.) Pursuant to General Statute § 8-7, the board has adopted a thirty day period in which to take an appeal from the action of the zoning enforcement officer under regulations § 5.3.B. (ROR 285.) No formal appeal was taken. The issue of the propriety of the zoning enforcement officer's action was not introduced until the first public hearing at which time counsel appeared for the plaintiff for the first time in these proceeding to argue the merits of that issue.
The plaintiff now asserts in her brief that "without the advice of counsel, the Plaintiff followed the ZEO's advice in good faith, and applied for the Third Variance." (Plaintiff's reply brief dated July 6, 2009, p. 21.) The plaintiff continues further: "The plaintiff believed that the Third Variance was superfluous, and wished to challenge the Verification of Noncompliance. However, the plaintiff heeded the ZEO's advice and appealed the denial of her permit by applying for the Third Variance. Essentially, the ZEO left the Plaintiff, who was unrepresented at the time, with no other alternative." (Plaintiff's reply brief dated July 6, 2009, p. 22.) This court once again notes at this point the disclaimers concerning the advisory nature of the information contained in the verification of noncompliance that was issued to the plaintiff and the admonition concerning seeking the advice of counsel therein. (ROR 1.) Nothing of which the plaintiff now asserts was sufficient to confer jurisdiction upon the board to hear the matter as an appeal from the determination of the zoning enforcement officer. It would have taken a denial of an application or adverse action of the zoning enforcement official and an appeal therefrom to confer jurisdiction on the board to adjudicate that issue. Cimino v. Zoning Board of Appeals, 117 Conn.App. 569, 578-79, 979 A.2d 1048 (2009).
"It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter." (Internal quotation marks omitted.) O G Industries, Inc. v. Planning Zoning Commission, 232 Conn. 419, 425, 655 A.2d 1121 (1995); accord Cummings v. Tripp, 204 Conn. 67, 75, 527 A.2d 230 (1987). When an administrative remedy is pursued, and full relief is possible at the agency level, a reviewing court has the benefit of the local board's judgment. Greenwich v. Kristoff, 180 Conn. 575, 578, 430 A.2d 1294 (1980). The exhaustion doctrine implicates the subject matter jurisdiction of the court. Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556, 529 A.2d 666 (1987).
When hearing an appeal, a municipal zoning board of appeals sits in a quasi-judicial capacity. It has the ability to interpret its regulations and to determine whether they apply in a given situation. Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560, 236 A.2d 96 (1967). The board conducts a broad, de novo review of the decision of the zoning enforcement officer. Caserta v. Zoning Board of Appeals, 226 Conn. 80, 90, 626 A.2d 744 (1993).
Although this court, as noted in the previous discussion in this decision, believes that there is merit to the plaintiff's position that the proposed two-story garage within the footprint established by the 1975 and 1984 variances conforms to the zoning regulations and there is a reasonable probability of success on the merits of an appeal from the actions of the zoning enforcement office, this court has no jurisdiction to make such determination. This appeal must turn solely on its merits as an appeal from the denial of a Variance.
III VARIANCE APPLICATION
As noted above, General Statutes § 8-6 and § 5.1(b) of the regulations grants the board the authority to determine and vary the application of the zoning regulations where a literal enforcement of the zoning regulations would cause "exceptional difficulty or unusual hardship" because of some specific condition affecting a parcel of land. "It is well established, however, that the granting of a variance must be reserved for unusual or exceptional circumstances . . . An applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone." (Internal quotation marks omitted.) Moon v. Zoning Board of Appeals, supra, 291 Conn. 24.
"A variance is an authorization obtained from the zoning board of appeals to use property in a manner otherwise forbidden by the zoning regulations . . . For a variance to be granted under General Statutes § 8-6(3), two conditions must be fulfilled: (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 of the purpose of the zoning plan . . . The zoning board's action must be reasonably supported by evidence in the record . . . The hardship must be different in kind from that generally affecting properties in the same zoning district." (Internal quotation marks omitted.) Dupont v. Zoning Board of Appeals, 80 Conn.App. 327, 330, 834 A.2d 801 (2003); accord Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368, 537 A.2d 1030 (1988).
"Proof of hardship is . . . a condition precedent to the granting of a variance, and such hardship must arise from the circumstances or conditions beyond the applicant's control." Eagan v. Zoning Board of Appeals, 20 Conn.App. 561, 563, 568 A.2d 811 (1990). "The hardship complained of must arise directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved . . . Where the condition which results in the hardship is due to one's own voluntary act, the zoning board is without the power to grant a variance . . . Where . . . the hardship arises as the result of a voluntary act by one other than the one whom the variance will benefit, the board may, in the sound exercise of its liberal discretion, grant the variance . . . While hardship will vary from case to case, we repeatedly have held that considerations of financial disadvantage — or, rather, the denial of a financial advantage — do not constitute hardship, unless the zoning restriction greatly decreases or practically destroys [the property's] value for any of the uses to which it could reasonably be put . . ." (Citation omitted; internal quotation marks omitted.) Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 295-96, 947 A.2d 944 (2008). "Disadvantage in property value or income, or both, to a single owner of property, resulting from application of zoning restrictions, does not, ordinarily, warrant relaxation in his favor on the ground of . . . unnecessary hardship . . . Financial considerations are relevant only in those exceptional situations where a 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 . . . Zoning regulations have such an effect in the extreme situation where the application of the regulations renders the property in question practically worthless." (Citation omitted; internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 561-62, 916 A.2d 5 (2007).
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, 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." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).
General Statutes § 8-7 provides in relevant part: "Whenever a zoning board of appeals grants or denies any special exception or variance in the zoning regulations applicable to any property or sustains or reverses wholly or partly any order, requirement or decision appealed from, it shall state upon its records the reason for its decision . . ." In this case, the board stated no reason on the record for its denial of the plaintiff's application. "[W]hen a commission gives no reason for its decision, the trial court must search the entire record to find a basis for the commission's decision . . ." (Internal quotation marks omitted.) Gibbons v. Historic District Commission, 285 Conn. 755, 770, 941 A.2d 917 (2008).
A. Evidence of hardship
When counsel for the plaintiff appeared at the hearing on November 20, 2008, stating that he wanted a determination that the proposed garage with second story was in compliance with the prior variances and the regulations, he told the board, "we're really asking you not to grant us any new variances." (ROR 145.) With regard to hardship, all that was offered by the plaintiff was the assertion that "Mr. Ross said the hardship is the rock ledge extending from the house to the lake on the other side of the property which is very unique to the property." (ROR 142.) When the board took up the matter in executive session and the chairman put the question of the variance to a vote, he incorporated by reference the hardship found in the prior board decisions, i.e., with regard to the 1975 variance, the safety concerns for the homeowner's line of site for exiting the driveway, and, with regard to the 1984 variance, the existence of the rock ledge on the other side of the house. (ROR 7-8, 11-12, 168.) Incorporation of the prior findings of hardship does not mean that the board was bound to find hardship for this new application for a variance. It was entirely within the scope of the board's authority and discretion to have found sufficient hardship for a single car garage encroaching upon the side yard setback or a two-car garage encroaching upon both the side and rear yard setbacks, but not for a garage with a second story encroaching upon both the side and rear yard setbacks. The record does not demonstrate that the prior hardship findings are relevant to the necessity of a second story over the garage or that a second story above the garage was necessary for the plaintiff's reasonable use and enjoyment of her property. This court has searched the record of the proceedings before the board and finds no substantial evidence of a legal hardship.
B. Comprehensive Plan
An examination the record discloses the following. A two-story structure placed within such close proximity to the neighboring property in a lakefront community would block abutting owners' views and would not be "fair to the surrounding neighbors." (ROR 112.) The size of the two-car garage with a full second story as it is located on this lot is out of character for the community. (ROR 114-15.) The proposal is "too crowded" and would adversely affect property values. (ROR 153-54.) Two-story garages in general are out of character on Candlewood Isle. (ROR 167.) Accordingly, the court finds that there is a basis in the record for the board to have found that a variance for a two-car garage with a second story over the existing foundation of the carport would affect substantially the comprehensive zoning plan.
CONCLUSION
For the foregoing reasons, the court finds that the plaintiff has not sustained her burden of demonstrating that the denial the application for a variance of the town's zoning regulations was illegal, arbitrary or in abuse of the discretion vested in the board. The appeal is therefore dismissed.