Opinion
No. CV-05-4002899S
October 6, 2006
MEMORANDUM OF DECISION
The plaintiffs, The Dohnna, LLC, and John Caltabiano, appeal from a decision of the defendant, Zoning Board of Appeals of the Town of Westbrook ("Board") which granted variances to the defendant, LL Real Estate Holdings II, LLC ("LL") with respect to property located at 1211-1223 Boston Post Road in Westbrook, Connecticut
Factual and Procedural Background
The defendant, Cumberland Farms, Inc. ("Cumberland Farms"), is the owner of commercial property located at 1211-1223 Boston Post Road, Westbrook, Connecticut (the "Property"). The Property is located within the Commercial Town Center district. On December 15, 2004 LL applied to the Board for variances of the zoning regulations to allow it to demolish two existing structures on the Property and replace them with two retail buildings and related signage.
The defendants' application requested variances of zoning regulations §§ 4.56.04, minimum setback requirements, and 10.27.03, maximum signage area, which provide:
4.56.04. Minimum Yard Requirements: a) Front Yard: Minimum: Five (5) feet. Maximum: Twenty (20) feet. b) Side Yard: One side, six (6) feet. Second side, twenty (20) feet. c) Rear Yard: Thirty-five (35) feet.
10.27.03. Single Business: Only one sign per business, freestanding or attached to, but not painted on the building, the principal sign area not to exceed the following: Commercial Town Center (CTC), 9 square feet . . . In addition to the above, a supplemental sign not to exceed two (2) square feet.
The defendant, LL, stated its hardship as follows: "Not possible to develop this enviromnentally compromised property which constitutes an eyesore in downtown Westbrook without the requested variances to bring in a quality developer/occupant; property configuration and parking provide further hardship." Record, Ex. 15.
Public hearings were held on the application on January 26, 2005 and March 23, 2005. After the close of the public hearing on March 23, 2005, the Board made the following decision: "To GRANT variances to allow demolition of the existing structures and erect a new pharmacy and single sign as proposed, with the STIPULATION that the drainage and piped water flow will be installed as proposed (2-30" pipes)." The Board found that "adequate hardship has been demonstrated with the unique shape and size of the lot to warrant the variance . . ." Thereafter the plaintiffs filed this appeal.
Aggrievement
"It is well settled that [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." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, aggrieved person includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." (Internal quotation marks omitted.) General Statues § 8-8(a)(1).
The burden of proving aggrievement rests with the plaintiff. See Quarry Knoll II Corp. v. Planning and Zoning Commission, 256 Conn. 674, 702, 780 A.2d 1 (2001). In the present appeal, the plaintiff, The Dohnna, LLC, is aggrieved because it owns property that abuts the Property involved in the decision. The court finds that the plaintiff, The Dohnna, LLC, is statutorily aggrieved pursuant to General Statutes § 8-8(a)(1).
Where an appellant is not automatically aggrieved under § 8-8(a)(1), then he must "demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole." Walls v. Planning Zoning Commission, 176 Conn. 475, 477, 408 A.2d 252 (1979). He must also "establish that this specific personal and legal interest has been specifically and injuriously affected by the decision." Id. In their Brief in support of this appeal, the plaintiffs have addressed only the automatic aggrievement of The Dohnna, LLC, which exists by virtue of its ownership of property which abuts the Property in question. The plaintiffs have not addressed, nor was any evidence presented at the hearing to establish the aggrievement of the plaintiff, John Caltabiano. Therefore, the court finds that he is not aggrieved.
Standard of Review
The standard to be applied by the court in reviewing the consideration of a variance by a zoning board is whether the board's action was arbitrary, illegal or an abuse of discretion. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). The burden of proof that a zoning board of appeals acted improperly is on the party seeking to overturn the board's decision. Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).
"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 actual determinations on its own." Farmington v. Zoning Board of Appeals, 177 Conn. 186, 190, 413 A.2d 817 (1979). "In discharging this responsibility, a board 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." Molic v. Zoning Board of Appeals, 18 Conn.App. 159, 165, 556 A.2d 1049 (1989). On appeal, a reviewing court reviews the record of the administrative proceedings to determine whether the board "has acted fairly or with proper motives or upon valid reasons." Schwartz v. Planning Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). The court reviews the record to determine whether there is factual support for the board's decision. Pleasant View Farms v. Zoning Board of Appeals, 218 Conn. 265, CT Page 18282 270, 588 A.2d 1372 (1991). "Decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairy 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 . . . The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings." Conetta v. Zoning Board of Appeals, 42 Conn.App. 133, 137-38, 677 A.2d 987 (1996).
Applicable Legal Standards
Connecticut General Statutes § 8-6(a)(3) provides for the zoning board of appeals to grant a variance of zoning regulations:
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 . . .
The accepted formulation for allowance of a variance is: (1) the variance does not substantially affect the comprehensive plan of zoning, and (2) adherence to the strict letter of the zoning regulation is shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan. See e.g. Smith v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542 (1978); Francini v. Zoning Board of Appeals, supra; Bloom v. Zoning Board of Appeals, supra.
A review of the record reveals that there was a sufficient basis for the Board to grant the requested variances. Under the Westbrook zoning regulations, a front yard setback in the Commercial Town Center must be at least five feet but not more than twenty feet. The Property has frontage on three public roads, Boston Post Road on the north, Golf Links Road on the east, and Trolley Road on the south. Compliance with the regulations would require that any structures constructed on the site must be no more than twenty feet from each of these three roads. During the January 26, 2005 public hearing, Thomas A. Cloutier, attorney for the defendants, stated "the way the regulations read, in fact, there is three front yards because there are three streets and front yards are defined as the distance between the structure and the street so it's virtually impossible to meet the requirements because no matter where you put either one of those buildings, you can't put both of them within 20 feet of every single front yard." Record, Ex. 14, pp. 20-21. Bob Landino, the project engineer, also testified that "the site has a classic hardship, two classic hardships, the first is that it has three front yard setbacks . . . But it also has the classic hardship of being a very long and narrow site with very little frontage. So in the development of any new construction without the frontage it's extremely difficult and physically impossible to move the building forward to the street line and have the driveway at Route 1 and create a reasonable amount of parking on the side of the building." Id. at p. 4.
Without a variance of the front yard setback requirement, a building located on the Property would have to be over 400 feet long. In order to meet both the setback and the maximum floor area requirements of § 4.56.03 of the Commercial Town Center district regulations, which imposes a maximum floor area ratio of .25, a building on the Property would have to be over 400 feet long and less than 75 feet wide and situated on the far easterly side of the Property, within 20 feet of Golf Links Road. Such a building would undoubtedly run afoul of Section 4.51.00 of the regulations, which provide that "buildings in this district shall be designed or redesigned to harmonize and be compatible within the District and shall be of such a scale and mass that they relate well to each other and the street."
In Giarrantano v. Zoning Board of Appeals, 60 Conn.App. 446, 453-54, 760 A.2d 132 (2000), the Court held that a sufficient hardship exists when the zoning regulations serve to deprive the property owner of a reasonable and permissible use of his or her property. In Giarrantano, the defendant sought setback variances to build a hotel on a long and narrow lot. After the board granted the variances, the trial court reversed on the grounds that the record did not support the finding of a hardship because the property could be used for other residential and commercial purposes without the variances. The Appellate Court reversed the trial court and affirmed the board's determination that a sufficient hardship existed because the regulations served to "deprive [the defendant] of reasonable commercial use of his property" if strictly applied. Id. at 453 (emphasis added). The Court concluded that a hardship existed even though the defendant could have built a residential or commercial building that was much smaller in scale which conformed with the setback regulations. Id. at 454.
The evidence submitted at the hearings supported the defendants' claim that the configuration of the Property created a hardship and that reasonable development of the Property was virtually impossible under the existing regulations. The defendants presented evidence to the Board that the Property as currently constituted contained a strip mall with a Cumberland Farms store and several other retail uses. The Property also contained a former gas station, a non-conforming use in the Commercial Town Center under § 4.52.00 et seq. of the zoning regulations. The defendants proposed to convert the Property to retail uses, which are permitted under § 4.52.02. The portion of the Property which held the former gas station is environmentally compromised. The project engineer testified that "there is an ongoing program to remediate the site and the contract buyers are working with the seller to ensure that the site meets all of the requirements of the DEP to accommodate the uses proposed. As soon as we excavate and disturb the parking lot and excavate the soil, all of that soil needs to be removed so that it meets those requirements . . . [T]he area where they have the ongoing remediation program will ultimately clean the site, but it's not completed. We are going to be a part of completing that process but in addition to that, to the extent that when we excavate we find contaminated material, and we expect that we will, that material will also have to be removed off the site so that a combination of things that we are doing once that buyer assumes ownership that would not be done by the current owner." Record, Ex. 14, pp. 12-13.
The record also contains substantial evidence that the hardship created by the existence of the roads surrounding the property on the north, east and south presents a hardship different from that suffered by other properties in the area. None of the properties which abut the Property have roads on three sides. The court finds that the record supports the Board's finding of hardship because the application of the zoning regulations to the unique size and configuration of the property, creates an unreasonable hardship for the defendants.
Section 10.27.03 of the Westbrook Zoning Regulations provides that in the Commercial Town Center district, signage may not exceed nine square feet for a principal sign per business and two square feet for supplemental signs. The Board determined that these square footage limitation presented a hardship to the defendants. There is sufficient evidence in the record to support that determination.
The defendants sought variances to permit them to continue to use the same total square footage of signage that already existed on the Property. At the public hearing the project engineer testified that:
This is a 2 and 3/4 acre site that would be more of a retail site and there is just no way that any redevelopment of the site would ever occur with the total sign package of 30 or 32 square feet and just by virtue of having more than one tenant and by virtue of being some type of multi tenant pedestal sign to identify your business, the location and what kind are in your location require more than one space . . . If it was more rectangular perhaps visibility would take over and we could put the buildings right on the street line, but because we can't and because of the long, narrow nature of the site, the sign becomes even more important.
Record, Ex. 14, p. 17.
The Zoning Enforcement Officer measured the total sign area of all the signs, the building signs and the pylon sign and gave us a number of 162 square feet so all we are asking for is that combination of signage approve by this commission so that we can then develop a sign package for the shopping center . . . But because we are rearranging the building and visibility is so critical to the site, along with the long and narrow nature of it requires reasonably visible signs.
Id. at p. 6.
[B]ecause it's long and narrow, all we are asking is that the sign area of the Cumberland Farms Center remain roughly what it is today. Keep the total area the same going forward because the rear building simply won't be tenantable because of the long narrow nature of the site. The signage is necessary for identification of those tenants.
Id. at p. 29.
The Board granted a variance to permit a total of 161.83 square feet of signage, which included a pedestal sign of approximately 32 square feet as well as ten other signs placed in various positions on the two buildings. There was sufficient evidence in the record to permit the Board to conclude that the unique size and shape of the Property and its relationship to the surrounding area constituted a hardship sufficient to warrant the variance granted as to the signage.
The plaintiffs argue that the Board should not have granted the variances because the Cumberland Farms purchased the Property with knowledge of the existing zoning regulations. There is no evidence in the record as to when Cumberland Farms purchased the Property. However, even if there were such evidence, its purchase of the Property with knowledge of the existing regulations did not preclude the granting of the variances.
In Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 535 A.2d 799 (1988), the defendants purchased a property in 1985 which had been used as an aluminum casting foundry, a nonconforming use, from 1953 until it had become economically unfeasible. The defendants applied for variances and a special exception so that they could use the property as an automobile repair shop. In granting the application, the zoning board of appeals found that when the defendants purchased the property they did so with the knowledge that the operation of an automobile repair shop is prohibited by the zoning regulations. On appeal, the trial court concluded that "the proposed use for the subject property operating under current regulations as to air pollution and the like would be far less offensive to the surrounding residents than a foundry."
The plaintiff in Adolphson argued that the defendants' hardship was self-inflicted. He relied on the cases of Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 238, 303 A.2d 743 (1972), Highland Park, Inc. v. Zoning Board of Appeals, CT Page 18287 155 Conn. 40, 229 A.2d 356 (1967), and Devaney v. Board of Zoning Appeals, 132 Conn. 537, 45 A.2d 828 (1946), to support his argument that "self-inflicted hardship which arises because of individual actions by the applicant will not provide a zoning board of appeals with sufficient reason to grant a variance."
The Court distinguished those cases, and concluded that the so-called purchaser with knowledge rule did not preclude the applicant from obtaining a variance because the applicant established that the hardship originated in the application of the zoning regulations and because the applicant was reducing the non-conforming nature of the use. In this case the Board concluded that a hardship resulted from the application of the zoning regulations to the irregular nature of the lot and its surroundings. There was also evidence that the defendants' proposed development will eradicate a non-conforming use in the Commercial Town Center in that the defendants proposed replacing an environmentally compromised gas station with a conforming retail use. This case is analogous to Adolphson. Even if the defendants had knowledge of the hardships when they purchased the Property, such knowledge would not constitute sufficient grounds to permit the court to set aside the action of the Board in granting the variances.
The Board's grant of variances to the defendants was neither illegal, arbitrary nor an abuse of its discretion. The record supports the Board's finding of hardship because the application of the zoning regulations to the Property creates an unreasonable hardship for the defendants. Accordingly, the plaintiffs' appeal is dismissed.