Opinion
No. 561889
May 15, 2003
MEMORANDUM OF DECISION STATEMENT OF APPEAL
The plaintiff, ALSA Associates (applicant), appeals from the decision of the defendant, the Stonington zoning board of appeals (board), denying the applicant's variance application. The applicant sought a variance from the Stonington zoning regulations so that it could renovate the existing gas station located at the intersection of the easterly line of Greenmanville Avenue and the southerly line of Coogan Boulevard in Stonington, Connecticut (property).
Also named as defendants are: Cynthia Ladwig, Stonington town clerk, and Edward Sullivan, chairman of the board.
BACKGROUND
The property is a lot that preexisted the enactment of the Stonington zoning regulations. The property is located in an area zoned TC-80, a tourist commercial district. (Return of Record [ROR], Exhibit C.) Upon the enactment of the regulations, the property became nonconforming because of its size and remained nonconforming even after a subsequent addition of land. ( Id.) The existing gas station and property were later subject to a partial taking by eminent domain of approximately thirteen feet from the front of the property for a highway purpose. ( Id.)
The Stonington zoning regulations were enacted on July 20, 1961. (ROR, Exhibit 15.)
On February 14, 2002, the applicant sought a variance from the front yard setback, and the buffer and screening requirements found in the zoning regulations to enable the applicant to rebuild the antiquated gas station. (ROR, Exhibit 1.) In seeking the variances, the applicant described its hardship as the following: "[t]here is insufficient lot depth to comply with the setback requirements of the TC-80 Zone and still accommodate facilities required by a contemporary gasoline/convenience facility. The depth of the subject parcel was involuntarily diminished by a taking by the State of Connecticut for the widening of Route 27 (Greenmanville Avenue) as evidenced by a Certificate of Condemnation dated October 9, 1981 and recorded at Volume 232, Page 793 of Stonington Land Records." (ROR, Exhibit 1.)
The applicable Stonington zoning regulations are: Table 5.2.1 (ROR, Exhibit 15, p. 69); § 4.5.4.1 ( id., p. 60); § 7.16.2 ( id., p. 158).
On March 12, 2002, the board held a hearing to determine whether to grant the applicant's variance application. (ROR, Exhibit C.) At a special meeting held on March 20, 2002, two members voted to approve the application, one member abstained and the remaining two members voted to deny the application. ( Id.) "The application was denied because the dissenting members felt that the hardship was self imposed." ( Id., p. 2.) The applicant now appeals the board's decision.
JURISDICTION
Appeals to the Superior Court from a zoning board of appeals decision are governed by General Statutes § 8-8. "There is no absolute right of appeal to the courts from a decision of an administrative agency . . . Appeals to the courts from administrative [agencies] exist only under statutory authority . . . Appellate jurisdiction is derived from the . . . statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed." (Citations omitted; internal quotation marks omitted.) Brookridge District Assn. v. Planning Zoning Commission, 259 Conn. 607, 611-12, 793 A.2d 215 (2002).
Aggrievement
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). An owner of property that is the subject of an application to the zoning commission is aggrieved. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991). The applicant alleges that it is aggrieved because it is the owner of the real property involved in this appeal. (Appeal, ¶ 11.) In the present appeal, David Savin, owner of the applicant, testified at the hearing on January 27, 2003, that he was the owner of the property that is the subject of this appeal. Accordingly, the applicant is aggrieved.
Timeliness and Service of Process
An "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes." General Statutes § 8-8 (b). Subsection (f) further provides that "[s]ervice of legal process for an appeal under this section shall be directed to a proper officer and shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality." General Statutes § 8-8 (f).
The record contains an affidavit of publication, attesting that notice of the board's decision was published on March 25, 2002, in the Westerly Sun and the New London Day newspapers. (ROR, Exhibit 12.) On April 2, 2002, this appeal was commenced by service of process upon the chairman of the board, and the clerk of the town. Accordingly, the court finds that this appeal was commenced timely by service of process upon the proper parties.
SCOPE OF REVIEW
When "a zoning board of appeals has articulated its reasons for the action it has taken, the trial court's review of those reasons is limited to determining whether they are supported by the record and, if so, whether, under the applicable zoning regulations, the reasons given provide a legally sufficient basis for the zoning board's action." Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 62, 808 A.2d 1107 (2002). "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, 778 A.2d 61 (2001). "The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).
In the present case, the board's stated reason for denying the variance application was that "the dissenting members [of the board] felt that the hardship was self imposed." (ROR, Exhibits 10, 11.)
DISCUSSION
"The authority of a zoning board of appeals to grant a variance under General Statutes 8-6 (3) requires the fulfillment of two conditions: (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 . . . It is well settled that the hardship must be different in kind from that generally affecting properties in the same zoning district . . ." (Citations omitted; internal quotation marks omitted.) Francini v. Zoning Board of Appeals, supra, 228 Conn. 790. "If, however, the hardship arises from a voluntary act on the part of the applicant, the board does not have the authority to grant a variance . . . The board is under no duty to extricate an applicant from a self-created hardship . . . The hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance . . . and arises directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved." (Citations omitted; internal quotation marks omitted.) Archambault v. Wadlow, 25 Conn. App. 375, 381, 594 A.2d 1015 (1991).
In the present case, the board's stated reason for denying the variance application was that "the dissenting members [of the board] felt that the hardship was self imposed." (ROR, Exhibits 10, 11.) The applicant argues that the board acted unreasonably, arbitrarily and illegally in coming to its conclusion. Specifically, the applicant argues that the board misapplied the rule for granting a variance. The property suffers a hardship because not only is it a small lot of shallow depth, but it also was subject to a taking of the front thirteen feet of the property, making it even smaller. The applicant argues that the property has a "legally cognizable hardship" that was not self-created. Furthermore, the applicant argues that the existing gas station is functionally obsolete and requires a complete renovation to allow for the continued use of that property.
The board refutes the applicant's contentions and counters that the hardship the property faces is self-created. It argues that the applicant is trying to double the size of the building for financial purposes and to add a new use to the property. The board contends that these are impermissible needs and preferences that create the applicant's hardship, therefore, the application was properly denied.
In Archambault v. Wadlow, supra, 25 Conn. App. 381-83, the court affirmed the trial court's finding that when a parcel of land was rendered nonconforming by the enactment of the zoning regulations the resulting hardship was not self-created. This is particularly true when the owner's problem resulted from an act of public authorities, such as condemning of all or part of the property." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 9.3, p. 184; see also Nielsen v. Board of Appeal on Zoning, 129 Conn. 285, 27 A.2d 392 (1942) (the court upheld the zoning board's decision to grant a variance after a property was subject to a partial taking by eminent domain). "[T]here is a clear case of uncommon hardship beyond the control of a property owner when the state seeks to condemn a portion of his or her land and thereby renders it nonconforming to a minimum lot area restriction." Smith v. Zoning Board of Appeals, 174 Conn. 323, 328, 387 A.2d 542 (1978). In Smith, the zoning board found a hardship existed by the proposed taking by the state of the front .03 acres of a residential parcel of land by eminent domain. Id. This decision was appealed to the Supreme Court. Id. The court concluded that "exceptional difficulty or unusual hardship was implicit in the proposed taking which rendered the plaintiffs' property nonconforming . . ." Id., 328.
The record does not reasonably support the board's denial of the variance application because the applicant's hardship was not self-imposed. The record reveals that the hardship was created by the adoption of the 1961 zoning regulations. (ROR, Exhibits 15, C, p. 10.) The parcel of land that is the subject of this dispute is a preexisting nonconforming lot of a shallow depth. (ROR, Exhibit C.) The record further shows that this nonconformity was increased by the state's taking of the front thirteen feet of the property. ( Id.)
The property is located in a commercially zoned area and has been maintained as a gas and service station for numerous years. ( Id., pp. 8-10.) The property is a corner lot and its neighbor to the east is at a significantly higher elevation. (ROR, Exhibits A, C, p. 25.) The applicant requested a variance from the front yard set back zoning requirements and the buffer and screening requirements on the easterly side of the property to enable them to update the existing facility, replace the gas pumps and fulfill the remaining requirements imposed by the zoning regulations. (ROR, Exhibit 1.) As the regulations apply to this undersized lot presently, it leaves little room for development. The applicant's plan is a minor variance to the overall comprehensive plan. Further, the regulation would require the applicant to compete with a 1950s gas station in an area where others have been updated to state of the art establishments, this hardship being caused by no fault of the applicant. (ROR, Exhibits A, C.) Therefore, in this case strict application of the zoning regulations produces an unusual hardship on the applicant in the use of his property. See Reid v. Zoning Board of Appeals, 235 Conn. 850, 857, 670 A.2d 1271 (1996) ("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 . . ."); see also Archambault v. Wadlow, supra, 25 Conn. App. 375.
The court finds that there was insufficient evidence in the record to support the board's denial of the application. The applicant is seeking relief from the front yard setback requirements. Not only is the property a legally preexisting nonconforming parcel because of its shallow depth, but its nonconformity was exacerbated by the taking of the front thirteen feet of the property. The record does not support the board's contention that the hardship was self-imposed. Accordingly, the court finds that the board's denial was illegal, arbitrary and an abuse of its discretion, therefore, the court sustains the applicant's appeal.
McMahon, J.