Opinion
No. CV 08-4038679-S
May 11, 2009
1. FACTS PROCEDURE:
The plaintiff, Blue Sky Builders, LLC (hereinafter also "Blue Sky") at all time relevant hereto has been and is the owner of a 37.42 area parcel of land located in Suffield's "Residents 90" zone. The plaintiff's objective is to subdivide the aforementioned parcel of land into seven residential building lots. In order to do so Blue Sky applied to the defendant Zoning Board of Appeals of the Town of Suffield (hereinafter also "ZBA") for a variance from a provision of the Suffield's zoning regulations requiring that lots in a subdivision have frontage on a public road. The plaintiff claims that a private road is necessary due to a transmission easement in favor of the Hartford Electric Light Company now known as Connecticut Light Power Company (hereinafter also "CL P") which bisects the aforementioned premises leaving most of the premises to the east of the CL P easement The plaintiff claims that substantially all of the premises are accessible only by crossing the CL P easement to reach the easterly side of Newgate Road on which the premises front. The plaintiff further claims that the Suffield Board of Selectmen (hereinafter also "Selectmen") will not permit a public road to cross the CL P easement under any circumstances. Accordingly, in March of 2008 Blue Sky applied to the ZBA for a variance from the requirement that lots in a subdivision have frontage on a public road. On July 1, 2008 the ZBA heard Blue Sky's variance application and denied it. The reason given for the denial was "lack of hardship." Notice of such decision was duly published in the Journal Inquirer on July 5, 2008. This appeal was then taken within 15 days of publication of the notice of decision.
CT Page 7978
2. STANDARD OF REVIEW:
A trial court may grant relief in an Appeal from a decision of an administrative authority only where the authority has acted unreasonably, illegally, arbitrarily or has abused its discretion. Smith v. Zoning Board of Appeals, 227 Conn. 71, 80, 629 A.2d 1089 (1993). The Court, however, "may not substitute its judgment for the wide and liberal discretion vested in the local authority when acting within its prescribed powers . . ." (Internal quotation marks omitted.) Frito Lay, Inc. v. Planning and Zoning Commission, 206 Conn, 554, 572-73, 538 A.2d 1039 (1988). The Court simply determines whether the record reasonably supports the conclusion reached by the agency. DeBeradinis v. Zoning Commission, 228 Conn. 187, 198, 635, A.2d 12-20 (1994)."The burden of proof is on the plaintiff to demonstrate that the Board acted improperly," Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991).
Where a zoning authority states the reason for its actions, the reviewing Court is bound by those findings and may examine only those assigned grounds to determine whether they are reasonably supported by the administrative record and pertinent to considerations which must be applied under applicable zoning regulations. DeMaria v. Enfield Planning and Zoning Comm'n, 59 Conn. 534, 540 271 A.2d 105 (1970). The Court must not disturb the decision as long as honest judgment has been reasonably and fairly exercised by the Zoning board of Appeals. Whittaker v. The Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980).
An agency is required to state its reasons for granting or denying an application. The Court is then to determine whether there is substantial evidence in the record to support these reasons. (Emphasis added.)
In reviewing the decision of a Zoning Board of Appeals, "[t]he trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons. Stancuna v. Zoning Bd. of Appeals, 66 Conn.App. 565, 568 (2001). (Emphasis added.) Where the requirements for a variance are met and the reasons given by a board for denial of a variance are unsupported in the record, the Court should conclude that denial of the variance was arbitrary, illegal, and in abuse of the board's discretion. Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 153 (1976).
Connecticut General Statutes § 8-6(a)(3) confers upon a Zoning Board of Appeals the power and the duty to vary the application of the zoning . . . regulations . . . where, owing to conditions especially affecting [a] parcel but not affecting generally the district in which it is situated, a literal enforcement of . . . [the] regulations would result in exceptional difficulty or unusual hardship . . ." (Emphasis added.)
3. AGGRIEVEMENT:
The plaintiff claims to be statutorily aggrieved by the decision of the ZBA. The defendant has not denied the aggrievement and does not oppose a finding of aggrievement.
Connecticut General Statutes § 8-8(a)(1) states in pertinent part as follows: "`aggrieved person' means a person aggrieved by a decision of a board" . . . aggrieved person includes any person owning land that abuts or is within a radius of 100 feet of any portion of the land involved in the decision of the Board.
At the hearing on this appeal the Court heard testimony from Kirk McNaughton who testified that he at all times pertinent hereto was and is the manager of Blue Sky and a member thereof. He further testified that at all times herein Blue Sky has owned and does own the property that is aforementioned and the subject of this appeal and that it has owned that property at all times since the application for a variance that is the subject of this case. Based upon his testimony, and the lack of any opposition by the defendant, the Court finds aggrievement.
A. ISSUES AND FINDINGS: Was The Hardship Self-Created?
Exhibits are part of the Return Of The Record By the ZBA and will be identified as follows: "ROR tab 15 at page 20"; of course, the tab and the page will change hereafter, but a map of the subject premises showing the transmission line and Newgate Road etc., is ROR tab 15 at page 20.
The short answer is no.
There are two reasons that the hardship was not self-created:
1. The easement was granted by Blue Sky's predecessor-in-title in 1970 which conveyance cut off from Newgate Road most of the predecessor-in-titles land lying to the east of the easement. Therefore, the parcel east of the easement became in effect "landlocked."
2. The easement was conveyed under the threat of condemnation which right of condemnation Helco had under the law. See ROR tab 19 at pages 32-33. Although the easement was voluntarily granted to the plaintiff's predecessor-in-title, the voluntariness was only as to the price. If the price could not be agreed upon, Helco had the option to take the easement by eminent domain. A hardship derived from such involuntary transfer has been held as a hardship warranting the granting of a variance. In Smith v. Zoning Board of Appeals, 174 Conn. 323, 328 (1978), the Court stated: "Surely there 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 . . . We conclude that exceptional difficulty or unusual hardship was implicit in the proposed taking . . ."
3. As to the argument that the plaintiff was well aware of the hardship when it purchased the property, the Courts have held that this does not preclude the granting of a variance: "Where . . . the owner of the parcel could have sought a variance, a subsequent purchaser has the same right to seek a variance and, if his request is supported in law, to obtain the variance." See Kulak v. Zoning Bd of Appeals, 184 Conn. 479, 482 (1981). Sydoriak v. Zoning Bd of Appeals, Conn.App. 649 660 (2005). Here, Blue Sky's predessor-in-title would have also sought a variance for the same reasons Blue Sky has now sought one.
The Suffield Board of Selectmen refused to enter into any agreement with CLP for the broad, general reason that it is not in the best interest of the town. This failure by the Board of Selectmen to enter into an agreement with CLP was a major obstacle to the granting of the variance, and also a reason for the hardship.
4. "[Z]oning considers the use of the land not the owner, [therefore] the purchaser of the land is not barred by the concept of self-created hardship from obtaining a variance if the predecessor-in-title who owned the land when the zoning restriction occurred could have established hardship, and a subsequent owner is not barred by the purchaser with knowledge concept." See 9 Fuller, Connecticut Land Use Law and Practice § 9.4 at 256-58.
B. Under the Circumstances Is Blue Sky Entitled to a Hardship as a Basis For Granting the Variance?
The short answer is yes.
1. Again, it should be noted the Connecticut General Statutes 8-6(a)(3) gives a Zoning Board of Appeals the power and the duty "to vary the application of the zoning . . . regulations . . . where owing to conditions especially affecting [a parcel] but not affecting generally the district in which it is situated, a literal enforcement of . . . [the] regulations would result in exceptional difficulty or unusual hardship . . ." (Emphasis added.) "The hallmark of a true hardship, accordingly, is not that the regulations impose a hardship but that it is unusual, in that, because of some unusual characteristic of a particular piece of property, the regulations impose a hardship that is . . . "different in kind from that generally affecting properties in the same zoning district . . ." Durkin Village Plainville, LLC v. Zoning Bd. of Appeals, 107 Conn.App. 861, 870 (2008). (Emphasis added.)
The word in the statute is " unusual" and not "unique." The claim by the ZBA that the hardship must be unique has, therefore, no merit. The location of the easement and the refusal of the Board of Selectmen to approve the agreement with CLP between CLP and the plaintiff are two very unusual circumstances which create the hardship.
It should be noted that although the subdivision cannot be served by a town road, the subdivision can be served by a private road which will conform to all of the requirements of a town road.
"[T]he basic zoning principle that zoning regulations must directly affect land, not the owners of land . . . limits the ability of zoning boards to act for personal rather than principled reasons, particularly in the context of variances." Id., 870.
2. In Rural Water Company, Inc. v. Zoning Bd of Appeals, 287 Conn. 282, 295 (2008), the Court held that the authority of a Zoning Board of Appeals to grant a variance under General Statutes § 8-6(a)(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. The Court has already concluded that the plaintiff has justified that the circumstances do cause an usual hardship. Looking as to whether the variance affects 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 caring out of the general purpose of the zoning plan. This Court has already concluded that the ordinance does cause to the plaintiff unusual hardship. So, the Court will now address the issue of whether the variance has been shown not to affect substantially the comprehensive zoning plan. The question, therefore, is whether a private road which a variance would allow would violate any general purpose of the zoning plan, and to determine that the Court should look at whether the use is or is not permitted in the zoning district. In the case at bar the plaintiff is seeking a variance in order to use its land for a use that is generally permitted in the district. The property is in the Residential 90 zone. The seven-lot residential subdivision proposed by Blue Sky is permitted as of right. Further, there is nothing in the zoning regulations against private roads in the statement of general purpose. Before the ZBA, Blue Sky provided approval letters and satellite photos of five residential developments in Suffield approved within the last ten years, and they all utilize private roads. See ROR tab 21 pages 41-55.
The holding in Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 295 (2008) is instructive: "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 . . ." (Emphasis added.)
The Court concludes that without a variance the plaintiff does not have the same right of subdivision that is available to owners of other parcels having similar characteristics. The Court also concludes from the evidence that a private road would not violate any general purpose of the zoning plan, and that the variance would not substantially or negatively affect the comprehensive zoning plan.
This is a case of a classic hardship. It is a hardship which runs with the land, not the owner, that because of its configuration with the easement and the circumstances surrounding it is an unusual hardship. Furthermore, it is a set of circumstances peculiar to a particular property, the easement running with the land and not with the owner, not generally affecting all properties in the district and not substantially affecting negatively the comprehensive plan.
C. Would the Plaintiff Without the Variance have Reasonable Use of the Land?
The short answer is No.
The Board in part denied the variance because it seemed to feel that a single-family home could still be built on the subject parcel. In testimony before the ZBA the principal of the plaintiff stated: "[The Properties is] not really suitable for a single family home."
However, more importantly, the Court has reviewed the case of Jersey v. Zoning Board of Appeals of the City of Derby, 101 Conn.App. 350, 361, (2007) in which the Court found the following to be invalid: Section 25.25(1)(2) states in pertinent part by the ZBA that there must be a finding that all of the following conditions exist: "1) that if the owner complied with the provisions of these regulations, he would not be able to make any reasonable use of his property . . ." (Emphasis added.) In footnote six on page 359 the Court stated "the fatal flaw with § 25.25(1), (2), is that if the property has any other reasonable use the defendant is prohibited from granting the variance without consideration of other factors. It is more than an invitation to simply consider whether others reasonable uses are available; it serves as an inflexible constraint on the power of the defendant to grant a variance . . . We conclude that the additional requirement pertaining to variances that is found in § 25.25(1), (2) is void and has no legal effect. It therefore was improper for the defendant to deny the plaintiff's application for a "variance on that basis, and the judgment of the trial court must be reversed." Id., 361. Thus, under Jersey, supra, Blue Sky was not required to prove it was deprived of a reasonable use of its land. The plaintiff claims, however, that it did show that it was deprived of a reasonable use of its land.
It is well settled law in Connecticut that a variance should not be granted solely on the basis of financial hardship. However, when the financial hardship is so extreme as to almost warrant a confiscation of the property, then financial hardship can be considered as a basis for granting the variance. See Rural Water Company, supra, 287 Conn. at 295 and Fine v. Zoning Board of Appeals, 93 Conn.App. 1, 8 and 9 (2006). It is not necessary for the plaintiff to introduce evidence as to the diminution of the value of the property if it can only be used for a one residential house on 37 plus acres; nor is there any evidence by the defendant that there are other properties in town of a similar situation. It is enough based upon the totality of the evidence for this Court to conclude for the reasons stated above in Jersey, supra that there is no requirement that the applicant must demonstrate that it would not be able to make any reasonable use of its property, Jersey holding that such a requirement is void and has no legal effect. However, it is a reasonable interpretation by this Court that the plaintiff being left with property of 37.42 acres to be used only for a single residence is almost a confiscation of the property the likelihood of the property being used for one residence being highly unlikely. It almost reaches the point of confiscation.
D. Finally, the defendant has cited Ward v. ZBA, 153 Conn. 141 (1965) at the court hearing so subsequent briefs were filed on that case. The analysis by the plaintiff is correct. The factual situation is inapposite to the case at bar because the variance was needed in Ward, supra, because a doctors' office would be the "most appropriate use." The variance was turned down, as it should have been, because the most appropriate use is not a basis for granting a variance. It is inapposite to the case at bar because the standard for granting a variance is unusual hardship which is what the plaintiff has alleged with which the Court concurs.
CONCLUSION
For the above reasons this Court finds that the defendant ZBA based upon the totality of the evidence denied the variance application without substantial evidence to deny it, and, accordingly, the ZBA's denial was not based upon valid reasons or substantial evidence. The denial of the variance was arbitrary, illegal and in abuse of ZBA's discretion.
Accordingly, the appeal is sustained, and the defendant ZBA is ordered to grant the variance application forthwith.