Opinion
No. CV054004695S
February 28, 2007
MEMORANDUM OF DECISION
This appeal comes to this court from the application of Two Reynolds Street, LLC (hereafter "Reynolds"), #05-0407-02 and Signature Pools, Inc. (hereafter "Signature"), application #05-0407-03. Record Exhibit 8, Page 2. The applicants, although separate companies are related since Signature is the tenant of both properties. There are two applications in the record but only one hearing was held on the matter. Early in the hearing, counsel for the plaintiff stipulated that the matters could be heard together. Record Exhibit 8, Page 1.
On September 4, 2002, Reynolds was served a cease and desist for operating their business without proper approvals. The cease and desist order became the subject of an enforcement action entitled " City of Norwalk v. Two Reynolds St., LLC" docket #CV-02-0188620, Record 1. On January 27, 2003, Reynolds entered into a stipulated agreement to commence to bring itself into compliance with the zoning regulations of Norwalk within 30 days of February 20, 2003. Record These applications were filed on December 27, 2004, seeking a variance of the contractor's yard definition under Norwalk Code Section 118-100. This regulation requires a minimum lot area of 12,500 square feet. Record 1 and 3.
In an attempt to satisfy the square footage requirement of the zoning regulations, the plaintiff purchased 43 Fort Point Street. (Record 3.) The lots are located across the street from each other. Record 3, map showing two lots divided by Reynolds Street. The plaintiff claims that it was unaware of the 12,500 sq. foot requirement for the contractor's yard at the time it purchased Two Reynolds Street. Record 1. The plaintiff's attorney at the time of hearing stated that the purchase of Two Reynolds Street without sufficient square footage was a "serious mistake" in response to an inquiry by Board Member Carbone asking how this could happen. Record 8 Page 19. Commissioner Carbone further observes that simply by asking, the plaintiff could have found out before the purchase that there was not enough square footage for a contractor's yard at two Reynolds Street. Record 8 Page 20.
A memo from James Bradley, zoning officer for Norwalk, states that the properties are noncontiguous and 32% undersized, referring to 43 Fort Point Street. Record 3. Mr. Bradley further observed that the purpose of 43 Fort Point Street is to be used in conjunction with Two Reynolds Street to satisfy the lot area requirement for contractor's yard. Record 3 containing a memo of April 7, 2005.
Presentation of the application for variance by both applicants was made by Attorney Michael Sweeney. Attorney Sweeney stated that the plaintiff was correct that a contractor's yard is permitted in the zone but admitted that the Two Reynolds Street lot was not of sufficient size. Record 8 Page 6. That fact came to the plaintiff's attention by the issuance of a cease and desist order by the zoning enforcement officer. Record 8 Page 6. The plaintiff purchased 43 Fort Point Street in an attempt to own enough square footage to satisfy the zoning regulations. Record 8 Page 6-7. The square footage is as follows: Two Reynolds Street 7,997 and 43 Fort Point Street 8,400. Record 8 Page 7. The claim is that together they comprise 16,000 which is sufficient. Record 8 Page 7.
The subject of the hearing before the zoning board of appeals was to explain the "serious error" of the plaintiffs in purchasing the Two Reynolds Street property without ascertaining the correct square footage necessary for a contractor's yard when said information was available. Record 7 Page 5. Further, in the hearing itself, Michael Green, director of Planning and Zoning for Norwalk, asks where is the hardship. Record 8 Page 14. It is also apparent from the record that the plaintiffs were unfamiliar with the history of the lot since it was rezoned in 2000 to Industrial 1 on application of the previous owner. Record 1, minutes of the zoning commission dated July 11, 2000 Page 2. It was further observed at the hearing by Commissioner Santo that the area was zoned based upon a contiguous piece of property not one separated by a street. Record 8 Page 23. While the Norwalk Code Section 118-1220F allows parking on a different property than the subject, it does not allow a use to be split between two properties. Record 8 Page 5.
Based upon these facts, the commission voted to deny the variance, citing as a reason that the hardship was self-created. Record 8 Page 41. This appeal followed.
"As a preliminary matter, we state the appropriate standard of review and relevant legal principals that guide our resolution of the Plaintiff's appeal. Our standard of review when considering an appeal from . . . the decision of a zoning board to grant or deny a variance is well established. We must determine whether the trial court correctly concluded that the board's act is not arbitrary, illegal or an abuse of discretion . . . courts are not to substitute their judgment for that of the board . . . and decisions of the local board will not be disturbed as 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 acted fairly, with proper motives or with valid reasons . . . The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." Vine v. North Branford ZBA, 93 Conn.App 1 page 5 (2006). Horace v. ZBA, 85 Conn.App 162, 165 (2004); See also Bloom v. ZBA, 233 Conn. 198 205-06 (1995). The court continues with its discussion of standard of review and states as follows:
We now set forth our well-settled law pertaining to variances. General Statutes 8-6(a)(3) provides that a zoning board may determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent with due consideration for conserving public health, safety, convenience, welfare and property values solely with respect to the parcel of land where owing to conditions especially affecting such parcel but not generally affecting the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations will result in exceptional difficulty or unusual hardship . . . a variance is authority granted to the owner to use his property in a manner forbidden by the zoning regulations . . . The power of the board to grant a variance should be used only where a situation falls fully within the specified requirements . . . An applicant for variance must show that because of some peculiar characteristic of his property, the strict application of the zoning regulations produces an unusual hardship as opposed to the general impact which the regulation has on other properties in the zone. Vine v. ZBA, supra, page 6-7. Reid v. ZBA, 235 Conn. 850 at 856 (1966). See also Campion v. Board of Aldermen, 85 Conn.App. 820 at 840-42 (2004) Cert. 272 Conn. 920 (2005); R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1993) § 9.3 pp. 150-55 (fn 13).
The evidence upon which the board relies to support its decision in any question must be substantial. Quality Sand and Gravel, Inc. v. Planning and Zoning Commission, 5 Conn.App. 533 539-40 (1999). Sydoriak v. Prospect ZBA, 90 Conn.App 649 (2005).
The task for the zoning board is to find hardship before it may issue a variance. The first place to look for hardship would be in the applications the plaintiff submitted to the ZBA. These are contained in Record 1 and Record 3. In Record 1, the hardship as described by the plaintiff is as follows:
It will be a hardship to impose the square footage requirements of the subject property for the utilization of the applicant's business which requires interior storage that is consistent with the current structure on the property but does not require the significant exterior storage which is the contemplated in the regulations governing a traditional contractor's yard, especially when the applicant has acquired a second parcel of property to provide ancillary support for its purposes.
In Record 3, the applicant states as follows:
The applicant requests relief from the minimum square footage requirement for the operation of this business because it would be a hardship on the owner to impose a square footage of the subject property for the utilization of the applicant's business which requires interior storage that is consistent with the current structures on the property, but does not require significant exterior storage which is contemplated in the regulations governing a traditional contractor's yard.
The hardship described in the plaintiff's application arises from circumstances or conditions which are not beyond the plaintiff's control. Mandanici v. ZBA, 50 Conn.App. 308 (1998). The plaintiff must show that there is some peculiar characteristic of the property which, after the strict application of zoning regulations, produces an unusual hardship as opposed to the general impact which the regulation has on other properties in the same zone. The plaintiff describes the unique characteristics of its business not of the lot. Reid v. ZBA, supra.
The plaintiff through its attorney, describes the purchase of the first property, Two Reynolds Street, as a "serious mistake." Record 8 Page 34. It purchased the property without ascertaining the correct square footage necessary for a contractor's yard when said information was available. Record 7 Page 5. It is axiomatic that ". . . everyone is presumed to know the law. Ignorance of it excuses no one. This rule is founded upon public policy and based on the principal that the acts of a person must be considered as having been done with knowledge of the law, for otherwise the law could be evaded with facility." Hebb v. West Haven ZBA, 150 Conn. 539 Page 542 (1963). Atlas Realty Corp. v. House, 123 Conn. 94 Page 101 (1937). There is no good faith exception for a hardship which is self-created such as this one. Osborne, et al. v. Guilford ZBA, 41 Conn.App. 351 (1996) page 353.
No variance will be granted when a hardship is voluntarily assumed by the applicant, which is termed a self-inflicted or self-created. Abel v. Norwalk ZBA, 172 Conn. 286 (1977). Kalimian v. ZBA, 65 Conn.App 628 (2001). Spencer v. ZBA, 15 Conn.App 387 389-90 (1988). Here, the applicant candidly admitted that he did not know the square footage requirement of a contractor's yard, but as previously cited, he is presumed to know them.
The applicant argues that the doctrine of mistake should apply to zoning cases. The doctrine of mistake is not applicable to this case. Zoning regulation is based upon the police power. 9 Fuller, Land Use Law and Practice, 2nd edition, § 1.2 page 4. The police power is regulatory not contractual.
Even if this Court were to accept any of the arguments which the plaintiff has made to overturn the board's decision, it still did not ask for variances required in order to establish a lot which is divided by a street. Under Norwalk's zoning regulations § 118-100, the definition of a "lot" is described as follows:
a parcel of land not divided by streets, occupied or to be occupied by a building or buildings and accessory buildings for uses customarily incidental to it, together with such open spaces as are required under the provisions of these regulations.
The applicant never asked for a variance for this section of the regulation. No building permit could issue since the Norwalk Regulations do not permit a lot to exist where it is divided by a street.
The subject came up at the hearing, the discussion appears at Record 1 Page 23 and continues to Page 24 where Mr. Green says "go to the next step, what if three properties had 4,200 square feet?" It is true that the discussion had to do with buffers, but the discussion started at Record 8 Page 23 where Mr. Santo observes that the zone change to Industrial 1 was based upon a contiguous piece of property. Record 8 page 23. To allow multiple lots to make up for square footage requirements when they are separated by a street only could lead to situations where lots may not be across the street and may not be in the same zone.
Based upon the authorities cited, not only is there not a hardship described by the plaintiff in its application and presentation to the zoning board, but any hardship there might be was self-created. The plaintiff bought a lot which was too small, for a contractor's yard.
For the foregoing reasons, the appeal is dismissed.
SO ORDERED.