Opinion
NNHCV126026360S.
11-14-2012
SUNSET MANOR ASSOCIATION et al. v. TOWN OF BRANFORD et al.
UNPUBLISHED OPINION
ROBERT E. YOUNG, Judge.
PROCEDURAL HISTORY AND FACTS
This is an appeal from a decision of the defendant Branford Zoning Board of Appeals [" board" ] taken by plaintiffs Sunset Manor Association, Larissa Montagano and Carl Montagano. Intervening defendants are the applicants Steven Young and Brenda Young [" Youngs" ]., The appeal was heard on November 1, 2012. Upon testimony, the court finds that the plaintiffs, as neighbors abutting or within 100 feet, are classically aggrieved and have standing pursuant to General Statutes § 8-8(a)(1) and Brouillard v. Connecticut Siting Commission, 133 Conn.App. 851, 38 A.3d 174 (2012). The court has subject matter jurisdiction over the appeal. The court makes further findings of fact based upon the return of record as follows.
At the commencement of the court hearing on this appeal, the plaintiffs orally withdrew their action as to defendant Town of Branford.
The defendants are unrelated to the court.
" [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." (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007).
The Youngs own property located at 29 Sunset Beach Road in Branford. The plaintiffs are adjacent and neighboring property owners. The Youngs seek to raze the existing structure on their property and build a larger structure. On November 22, 2011, the board received an application from the Youngs, seeking variances for their proposed structure.
The Youngs' application seeks five variances. The first seeks to reduce the nonconformity of the side setback from 10' to 6.4'. The current structure's side setback is 1.0'. The variance seeks to reduce the existing nonconformance. The abutting landowner on that side of the Youngs' property is in favor of this variance, which is not surprising as it moves the Young's proposed structure 5 .4' further from his own property line. At its closest, the proposed structure is set back 33' away from the beach owned by plaintiff Sunset Manor Association which abuts the Youngs' property to the northwest.
The second variance in contention is a waiver of the 10' " narrow streets" setback. In their application, the Youngs seek to reduce the nonconformity from the current 1.0' to 6.4'.
The third variance sought is a reduction of the setback to critical coastal resources from 25' to 9.5'. The property is located in the coastal area management zone, thereby requiring certain further setbacks from critical coastal resources. The critical coastal resources setback referred to is to a point on the Youngs' property, again 33' from the Sunset Manor Association property.
The fourth and fifth variances seek a waiver to enlarge a nonconformity and a waiver to allow nonconformity to other requirements of the regulations.
A hearing was conducted by the defendant board of zoning appeals on December 20, 2011. The Youngs' plan was presented by their attorney and a surveyor. There were many attendees both in support and in opposition to the application for variances. Immediately following the hearing, the board voted four to one in favor of the application and granted the Youngs the requested variances. This appeal followed.
Most of the speakers in opposition to the application objected to the size of the proposed structure. The size of the structure falls within the zoning regulations. Therefore, no variance was required as to size and size would not have been a proper basis for denial of the application.
Because the board did not articulate its reasoning in approving the application, the court has reviewed the entire record to find a basis for the granting of the application. " [T]he failure of the zoning agency to give such reasons requires the court to search the entire record to find a basis for the commission's decision." (Citations omitted; internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 544, 600 A.2d 757 (1991).
STANDARD OF REVIEW
A zoning board of appeals " is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal." (Internal quotation marks omitted.) Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). " The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal ... 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 [board] was required to apply under the zoning regulations." (Citations omitted; internal quotation marks omitted.) R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).
" When a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision." (Internal quotation marks omitted; internal citations omitted.) Fernandes v. Zoning Board of Appeals, 24 Conn.App. 49, 53, 585 A.2d 703, rev'd on other grounds, 218 Conn. 909, 591 A.2d 811 (1991). " [A] commission's failure to state on the record the reasons for its actions ... renders appellate review more cumbersome, in that the trial court must search the entire record to find a basis for the commission's decision." Graff v. Zoning Board of Appeals, 277 Conn. 645, 670, 894 A.2d 285 (2006). The court then determines whether the record contains substantial evidence to support the commission's decision. Id. " 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." R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 470.
" [I]t is not the function of the court to retry the case. Conclusions reached by the commission 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 agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached." (Citations omitted.) Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 543-44.
ANALYSIS
The plaintiffs have raised four distinct grounds of appeal. The first is that the board improperly considered expert opinion without an initial determination of its scientific validity. The second is that they were deprived of due process in that the Youngs raised new bases for their application in their attorney's rebuttal to the board. The third ground is that the board acted illegally, arbitrarily and in abuse of its discretion. The fourth is a claim that, in granting this variance, the board has negated its comprehensive zoning plan, opening the floodgates for all applications for variance. The court will address these grounds seriatim.
I. Expert Opinion
As part of the Youngs' application, they submitted a letter of opinion from an " architectural historian." The plaintiffs raised no objection or comment about the purported expert's opinion at the hearing. It is now the plaintiffs' contention that these opinions were improperly considered by the board without vetting under a " gatekeeping" analysis. The plaintiffs assert that the board has a gatekeeping role as to relevance and reliability.
First, the plaintiffs claim that the board is subject to General Statutes § 4-178(1), which states that, in contested cases, " [A]ny oral or documentary evidence may be received, but the agency shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence." The defendant board is not an agency subject to this statute as it is not a state board, commission, department or officer. See General Statutes § 4-166. Even if the board was subject to § 4-178(1), the plaintiffs have offered nothing to support their conclusory statements that the purported historian's opinion evidence " fails the test of reliability and relevance" under this statute and/or that the statute requires a gatekeeping inquiry.
Second, the plaintiffs cite as authority for a board gatekeeping duty, the cases of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595-97, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Company, Ltd v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). These cases do not support the plaintiffs' position that a municipal zoning board of appeals is required to conduct a gatekeeping evidentiary analysis prior to relying on opinions offered in support of or against an application for variance.
The Connecticut touchstone as to expert testimony, not cited by the plaintiffs, is State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998).
Moreover, even if the board had a gatekeeping duty, there is no indication in the record that the board considered or relied on the historian's opinions in granting the Youngs' application for variances, nor is an inference of same warranted. Indeed, no questions were asked of the historian by the members of the board. The plaintiffs have offered the court no basis upon which to reverse the decision of the board.
II. Due Process
The plaintiffs assert that, at the hearing, they were denied their rights of due process. They contend that the Youngs' attorney in her rebuttal argument to the board raised for the first time a claim to which the plaintiffs were not permitted to respond, specifically, that authority for granting the variances falls within a rule for non-statutory variances articulated in Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 535 A.2d 799 (1988). In Adolphson, our Supreme Court held that a zoning board of appeals can consider, as a basis for granting a variance, that it will result in the reduction of an existing nonconformity.
The transcript of the hearing contained in the return of record does not support the plaintiff's contention. The Youngs' attorney did not mention Adolphson at any time during the hearing or in her letter to the board, but made a passing reference to a subsequent Appellate Court decision, Morikawa v. Zoning Board of Appeals, 126 Conn.App. 400, 11 A.3d 735 (2011), in her rebuttal. Nevertheless, the attorney stated in her initial remarks to the board that the application was based partly on the elimination or reduction of nonconformities. This was also shown in the exhibits presented on behalf of the Youngs as well as a memorandum of law contained in their preliminary materials presented to the board, all of which the plaintiffs had ample prior opportunity to review. Neither Adolphson nor Morikawa were addressed by the plaintiffs or their attorney at the hearing.
Further, while the transcript of the hearing indicates that the board immediately began its consideration of the application after the rebuttal of the Youngs' attorney, there is no evidence that the plaintiffs sought, or attempted to seek, further argument to rebut what they claim was a newly asserted basis for the variance, nor is there any evidence that the board refused to allow such rebuttal. In any event, as discussed infra, the board had sufficient evidence before it to make a determination of hardship, negating the necessity to engage in an Adolphson analysis. As there is no evidence supporting the plaintiffs' claim that they were denied their rights of due process, this assertion of the plaintiffs offers the court no basis upon which to disturb the decision of the board.
III. Illegality, Arbitrariness and Abuse
The plaintiffs set forth several claims that the board acted illegally, arbitrarily and in abuse of its discretion in granting the application for variances on December 20, 2011. Each is addressed below.
A.
The plaintiffs argue that the board acted illegally, arbitrarily and in abuse of its discretion in that it had previously rejected the proposed structure on February 15, 2011 and yet, on December 20, 2011, granted variances for what the plaintiffs claim is materially the same structure. The plaintiffs' claim is not supported by the record. As the record reflects the new proposal was less nonconforming and took into consideration the comments made by neighbors at the hearing on the first application, the board had a reasonable basis for consideration of the new application. Vine v.. Zoning Board of Appeals, 102 Conn.App. 863, 873, 927 A.2d 958 (2007). The plaintiffs have failed to provide any evidence that the same structure was proposed.
Further, the plaintiffs have offered no authority for their claim that the subsequent approval of a variance previously denied is evidence that a board acted illegally, arbitrarily or in abuse of its discretion. If so, there would be no purpose to that portion of General Statutes § 8-6(a) which states, " 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." Having failed to carry their burden of proof, this claim is rejected by the court.
B.
The plaintiffs assert that the Youngs failed to show hardship as required by General Statutes § 8-6(a). However, this statute provides that a zoning board of appeals should consider whether enforcement would result in " exceptional difficulty or unusual hardship." Therefore, the board was not restricted to proof of unusual hardship as asserted by the plaintiffs. Rather, the board could consider whether the failure to grant variances would result in " exceptional difficulty."
General Statutes § 8-6(a) states, in relevant part:
" A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town ..." (Internal quotation marks omitted.) Moon v. Zoning Board of Appeals, 291 Conn. 16, 24, 966 A.2d 722 (2009). " Where the applicant or his predecessor creates a nonconformity, the board lacks power to grant a variance. But if the hardship is created by the enactment of a zoning ordinance and the owner of the parcel could have sought a variance, then the purchaser has the same right to seek a variance and, if his request is supported in law, to obtain the variance. Otherwise the zoning ordinance could be unjust and confiscatory." (Internal citations omitted.) Adolphson, 205 Conn. 712-13. " The authority of a zoning board of appeals to grant a variance is controlled by statute, and § 8-6(a)(3) does not allow a variance unless the applicant proves that there is an exceptional difficulty or unusual hardship." (Citations omitted. Internal quotation marks omitted.) Morikawa, 126 Conn.App. 413.
The record provides a factual basis for the board to find exceptional circumstances as to the Young's property, which is shaped differently from most others in the district. It is bordered by beach on two sides, rather than one, increasing the setback requirements. It is trapezoidal and, unlike the other properties in the neighborhood, is parallel to the beach, rather than perpendicular. The proposed structure reduces noncompliance with several sections of the zoning regulations, eliminates others and only in one respect creates noncompliance, that of a reduction of setback to 9.5'. However, even with the reduction of setback, the setback from the plaintiffs' adjacent property is 33'. In achieving the reduction or elimination of nonconformance, the footprint of the new structure necessarily requires that the setback to critical coastal resources be reduced.
The board chairman made a finding of hardship, specifically noting that its shape is different from other lots similarly situated. The board had facts before it from which it reasonably could have determined the existence of unusual circumstances not of the Youngs' making and that hardship existed. It is the burden of the plaintiffs to establish the contrary, Vine, 102 Conn.App. 869, and this burden has not been carried.
C.
The plaintiffs assert that the Youngs failed to show that the variances are consistent with the general purpose and intent of the Branford zoning regulations, that they reflect due consideration for conserving the public health, safety, convenience, welfare and property values or that the variances are consistent with the character of the relevant neighborhood. Reduction of a nonconformance as a basis for granting a variance has found support with the court. Adolphson, 205 Conn. 710.
To the extent that the plaintiffs may be claiming that the new variance in reducing the critical coastal resources setback from 25' to 9.5' is contrary to public health, safety, convenience, welfare and property values or that the variances are inconsistent with the character of the relevant neighborhood, there is no basis of support in the record. To the contrary, the board had before it a report from an ecologist which concluded that the proposed new structure is " considered in balance with the existing cottage layout, and no impacts to coastal resources should result ... The proposed projected is not anticipated to create adverse impacts on the adjacent coastal resources." Record, exhibit D. The board was entitled to rely upon the report. A board member noted that the proposed structure was compliant with the Federal Emergency Management Agency requirements and the construction was more (presumably code) compliant. All of these are indicative of a reasonable basis for the granting of the application for variances.
IV. Creation of Nonconformity
The board's approval of the Youngs' application for variances results in the creation of a nonconformity, that being the reduction of setback from critical coastal resources from 25' to 9.5'. Branford Zoning Regulations § 6.2.E(9). Our appellate courts have opined that a board has authority to approve a variance without a showing of hardship which creates a lesser nonconformity. Vine, 281 Conn. 563; Adolphson, 205 Conn. 708-10; Morikawa, 126 Conn.App. 413.
There is no appellate authority that a board has the authority to approve a variance without a showing of hardship which creates a new nonconformity. In defending the appeal, the board has encouraged this court to take this step as a case of first impression. Even if so inclined, the court need not do so. The record sufficiently reflects that the board had evidence before it upon which to establish hardship, a finding which was stated by the board's chairman at the time of the vote, presumably for reasons which include that the parcel is subject to coastal setbacks on two sides. Therefore, the board's authority to grant a variance was well within General Statutes § 8-6(a)(3).
V. Floodgates
In the case presented, the application results in elimination of two existing nonconformities and one reduced nonconformity but also in the creation of a nonconformity. The new nonconformity is as to the critical coastal resources setback, not the side setback to the adjoining property. The setback from the adjoining property would still be conforming at 33', well beyond the 10' side setback required.
The objection by the plaintiffs is that the reduction of setback would conflict with the board's obligation to give " due consideration for conserving the public health, safety, convenience, welfare and property values" of the district in which the parcel is located. General Statutes § 8-6(a)(3). As stated above, there was no evidence in the record that this creation of nonconformity would jeopardize the district. To the contrary, the board was presented with significant evidence that the requested variances, including this one, would not adversely impact the environment or the safety of the neighborhood. The board's approval of nonconformity does not violate General Statutes § 8-6(a)(3) in this regard. As the board made a finding of hardship, it is authorized to grant variances which lessen and eliminate nonconformities at the expense of creating a new nonconformity which does not personally affect the abutting property owner and does not adversely affect the district.
The plaintiffs assert that, in granting the variances, the defendant board has nullified the town's planning and zoning commission's regulations, specifically § 3.9. " If allowed to stand, the Youngs' variances will open the proverbial floodgates since most of the other parcels in the Sunset Beach neighborhood are, like the Youngs' lot, small parcels subject to one or all of the zoning restrictions from which the Youngs seek variances."
" Trial courts defer to zoning boards and should not disturb their decisions so long as honest judgment has been reasonably and fairly exercised after a full hearing ..." Beach Ass'n v. Zoning Board of Appeals, 66 Conn.App. 640, 645-46, 785 A.2d 1169 (2001). " The trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons." Moon, 291 Conn. 23-24.
The record does not support the plaintiffs' claim that, in granting the variances, the board acted unfairly, with improper motive or invalid reasoning. There is no support for the plaintiffs' overstatement that the granting of this variance will nullify the planning and zoning commission's regulations or lead to a flood of applications for variance. Taken as a whole, the board had substantial factual information in front of it to determine that the razing of the existing structure and substitution of a more conforming structure was consistent with the public health, safety, convenience, welfare and property values of the district. The board reasonably could have determined that, absent a variance, which has no direct impact on the adjacent properties, this could not be accomplished. The board reasonably could have determined that a hardship existed. All of these considerations were set forth by the chairman when the board members cast their votes.
VI. Burden of Proof
" The burden of proof is on the plaintiffs to demonstrate that the zoning board acted improperly." Vine, 102 Conn.App. 869. In the absence of evidence that the defendant board acted improperly, the plaintiff's have failed to meet their burden of proof and the court has no basis upon which to reverse its decision.
ORDER
The plaintiffs' appeal is dismissed.
The zoning board of appeals shall have the following powers and duties: ... (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.