Opinion
No. FBT CV 07-4021529 S
July 10, 2009
Memorandum of Decision
The plaintiff filed an administrative appeal, pursuant to General Statutes § 8-8, from the decision of the Zoning Board of Appeals (the "Board") of the Town of Fairfield which rejected by a vote of two in favor, three against, the plaintiff's application for a variance of the Zoning Regulations of the Town of Fairfield to permit construction of a single-family dwelling in the B Zone. As an owner and the unsuccessful applicant, the plaintiff was aggrieved by the Board decision and has standing to bring this appeal. Gladysz v. Planning and Zoning Commission, 256 Conn. 249, 258 (2001).
The owners of an abutting property, John and Megan Bochanis, successfully intervened in this appeal as defendants. These neighbors did not file a memorandum of law in support of their contention that the plaintiff's appeal should be dismissed, but instead relied on the briefs and arguments advanced by counsel for the defendant Board.
The record establishes the following facts: The plaintiff is the co-owner of undeveloped property located between 985 and 1001 South Pine Creek Road in Fairfield. The property is approximately 10,000 square feet in area and is located in the B Zone which provides for a minimum lot size of 6,000 square feet. (ROR, Ex. 11.) The lot was established in 1930 as "Lot #6" on Map #3085 on file in the Fairfield land records. The lot has an irregular shape, consisting of two portions, each of which are roughly rectangular. The first portion has approximately 34 feet of frontage on South Pine Creek Road and extends in a direction perpendicular to that road approximately 100 feet. The second portion is 60 to 70 feet in width and 130 to 140 feet in length. The length of the second portion is parallel to South Pine Creek Road making the lot "flag shaped." (ROR, Ex. 9.)
The plaintiff owns a half interest in the property. His brother Kevin Sweeney is the owner of the other half interest.
For many years the Fairfield Zoning Regulations have required that building lots be shaped so as to be able to accommodate a square. The different sized squares are required in different zones. The requirement for the B zone is a square 60 feet by 60 feet. The shape of the plaintiff's lot can easily accommodate a 60' by 60' square. However, in the 1990s the Regulations were amended to prohibit the use of rear lots "for anything other than a farm building not used for human occupancy." (ROR, Ex. 11, § 2.7.) Under the Regulations a "rear lot" is defined as: "A lot which does not have frontage on a public street or which, if it does have such frontage, is not of such shape that some portion of the required square on the lot is located within the area required for the setback from such street." (ROR, Ex. 11, § 31.2.28.) The required setback for the B zone is twenty feet. (ROR, Ex. 11, § 5.2.4.)
Because of the shape of the plaintiff's lot, it is not possible to locate any portion of a 60' by 60' square within twenty feet of the lot's frontage on South Pine Creek Road. Under these circumstances the plaintiff applied to the Board seeking a variance of the regulations to permit him to build a single-family residence on his lot.
The plaintiff's application was heard by the Board on July 5, 2007. After the hearing the Board voted on a motion to approve plaintiff's application. The motion was defeated by a vote of two in favor and three against. (ROR, Ex. 6.) Following publication of the Board's decision the plaintiff brought this appeal claiming that the Board acted illegally, arbitrarily and in abuse of its discretion.
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. RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470 (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 plaintiffs bear the burden of establishing that the board acted improperly." Wood v. Zoning Board of Appeals, 258 Conn. 691, 698 (2001).
In Osborne v. Zoning Board of Appeals, 41 Conn.App. 351, 354 (1996) the court stated: "Ordinarily, the decision of local boards will not be disturbed as long as . . . [the] judgment [of the Board) 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."
"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); 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 (1994).
COMPLIANCE WITH GENERAL STATUTES § 8-7
"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 requires that "Whenever a zoning board of appeals grants or denies a special exception or variance in the zoning regulations applicable to any property or sustains or reverses wholly or in part 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. In oral argument counsel for the Board informed the court that he had advised the Board to refrain from following the statutory mandate to state the reasons for its decisions on the record. This advice was given in the apparent belief that the Board's actions were more likely to be upheld on appeal, if no reason appeared on the record. Upon hearing counsel's statement the court expressed its disapproval of counsel's action in providing such advice to the members of the Board.
In order to serve as member of a land use agency a person must be duly elected or appointed and take an oath of office. If no oath is taken, the member is, at best, a de facto member. Furtney v. Zoning Commission, 159 Conn. 585, 596 (1970). General Statutes § 1-25 sets forth the oath required of members of municipal land use agencies: "You solemnly swear or solemnly and sincerely affirm, as the case may be that you will faithfully discharge, accordingly to law, your duties . . . to the best of your abilities; so help you God or upon penalty or perjury." The disposition of this appeal does not require the court to determine whether it is appropriate for a town attorney to advise the members of a municipal board or commission to disregard the undertakings of their oaths and ignore a express requirement imposed by our legislature in General Statutes § 8-7.
"Where a zoning board of appeals does not formally state the reasons for its decision . . . the trial court must search the record for a basis for the board's decision." (Citations omitted; internal quotation marks omitted.) Moon v. Zoning Board of Appeals, 291 Conn. 16, 25 (2009). The Supreme Court has not approved of any sanctions, evidentiary or otherwise even when a trial court is confronted with wilful failure of a Zoning Board of Appeals to comply with the requirements of General Statutes § 8-7. Accordingly, the court conducted a thorough search of the record to determine whether substantial evidence would support the Board's decision.
VARIANCES
Section 2.13 of the Fairfield zoning regulations bestows upon the Board "all of the powers and duties prescribed by the General Statutes of the State of Connecticut . . ., however, it shall not have the power to grant variances relating to use of land and buildings or other structures, in districts in which such uses are not otherwise allowed."
General Statutes § 8-6 provides that a variance is permitted if a literal enforcement of the zoning law 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. at 24.
General Statutes § 8-6(3) provides in pertinent part that a board of appeals may "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 . . ."
"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 out of the general 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." (Citations omitted; internal quotation marks omitted.) Dupont v. Zoning Board of Appeals of Manchester, 80 Conn.App. 327, 330 (2003); see also: Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368 (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 (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 . . ." (Citations omitted; internal quotation marks omitted.) Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 295-96 (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." (Citations omitted; internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 561-62 (2007).
EVIDENCE OF HARDSHIP
In his brief the plaintiff claims that he is seeking variances of Section 5.1.1 (reducing the required minimum square from 60 feet by 60 feet to 36 feet by 36 feet) and Section 2.7 to allow a rear lot, as defined by Section 31.2.28 to be used for residential purposes. Since the plaintiff's lot is sufficiently large to contain a 60 feet by 60 feet square, the court views the variance actually required as implicating only Section 31.2.28 which requires that some portion of the required square be situated within the required street set back line. This view is consistent with the history of the zoning of the lot; prior to the enactment of the present definition of "rear lot" the plaintiff's lot was fully conforming to the regulations.
The record in this case establishes that literal application of the zoning regulations to the plaintiff's lot prevented its use for any viable purpose. The lot exceed the minimum area requirements of the zone by nearly 60%. The lot had sufficient frontage, met all front, back and side yard requirements and complied with the lot shape requirement of being able to contain a 60 foot by 60 foot square. However, because of the recently enacted definition of "rear lot" and the geometric impossibility of situating a portion of the 60 foot by 60 foot square within twenty feet of the street, the regulations prevented the use of the lot for any purpose "other than a farm building not used for human occupancy."
Included in the return of record as Exhibit 13 is a copy of the Town Plan of Conservation and Development, adopted by the Town Plan and Zoning Commission on October 10, 2000 (the "Plan"). The Plan contains a complete analysis of the Town of Fairfield, its population, local economy, community facilities and services, schools, parks and recreation, land use, etc. The Plan does not refer to any farming activity within the municipality. The Plan also sets forth detailed analysis for each of the eleven planning areas within the Town of Fairfield. The plaintiff's property lies within the "Shore Area" planning area. (ROR, Ex. 13, Map 1-6.) Section 11.3.9 of the Plan describes the characteristics and policies for the "Shore Area" planning area. The area is described as "a densely developed residential area of one-quarter acre or smaller lots, with many two family dwellings, as well as several neighborhood commercial uses." There is no mention in the Plan of any present or potential farming activities in the area.
The transcript of the public hearing includes comments from the owners of properties in the same neighborhood as the plaintiff's lot. Although the neighbors deny the existence of a hardship, no evidence or reasoned argument was presented to support that position. The gravamen of the neighbors' comments was their perception that the granting of the variance would allow the plaintiff to "squeeze" a house onto the property. (ROR, Ex. 5, pp. 12-16.) Since the variance did not involve either the area of the lot, the house location or required front, back or side yards, the neighbors' comments did not appear to address the issues which the Board was required to decide.
The court finds that the evidence in the record demonstrates that the regulations impose a hardship on the plaintiff's property sufficient to justify the granting of a variance of the requirement that the 60 foot by 60 foot square be located within twenty feet of the street. The court further finds that there is no evidence that the plaintiff created or assumed the hardship. The plaintiff's lot was laid out nearly eighty years ago in its current configuration. The lot fully complied with all requirements of the regulations until the recent adoption of a new definition of "rear lot."
The apparent purpose of enacting the ban on residential use of "rear lots" was to prevent the future creation of such lots. In this case the lot had existed, apparently in separate ownership, since 1930. The record contains no evidence that the plaintiff owned or could acquire adjoining land which would allow the property to avoid classification as a rear lot. The record would not support a finding that the hardship suffered by the plaintiff was not unique. There was no evidence in the record of any other properties similarly effected by the recently enacted "rear lot" provisions. The court finds that, absent the granting of the variance, there is no reasonable use to which the plaintiff's lot could be put under the provisions of the regulations. The zoning provision at issue, when applied to the plaintiff's lot "greatly decreases or practically destroys [the property's] value for any of the uses to which it could reasonably be put." Under these circumstances, the court finds that the record contains no substantial evidence which would justify the Board in denying the variance on the basis that the plaintiff had failed to prove the existence of a hardship.
Because the plaintiff's lot was created by the filing of a map on the town land records prior to the enactment of subdivision regulations in the Town of Fairfield, the plaintiff is not, and does not claim to be, entitled to the protections of General Statutes § 8-26a(b). That statute provides, in relevant part that "[n]otwithstanding the provisions of any general or special act or local ordinance, when a change is adopted in the zoning regulations . . . of any town . . . no lot or lots shown on a subdivision plan for residential property which has been approved, prior to the effective date of such change, by the planning commission of such town . . . and filed or recorded with the town clerk, shall be required to conform to such change."
COMPREHENSIVE PLAN
The court also searched the record for evidence that granting of the requested variance to the plaintiff would substantially affect the comprehensive zoning plan of the Town of Fairfield, the other factor noted in Dupont v. Zoning Board of Appeals, supra. The court could find no evidence in the record which would support such a finding.
The court concludes that the plaintiff has sustained his burden of demonstrating that the denial of his application for a variance as arbitrary, illegal and in abuse of the discretion vested in the Board. The plaintiff's appeal is sustained.