Opinion
No. CV 05-4008667S
August 16, 2006
MEMORANDUM OF DECISION
The plaintiff, Durkin Village Plainville, LLC, has appealed the decision of the Zoning Board of Appeals of the town of Plainville (hereinafter ZBA) granting the application of the defendant Jennifer Bartiss-Earley (hereinafter Bartiss-Earley) for rear yard and side yard variances to permit reconstruction of an existing pool and deck.
BACKGROUND
Bartiss-Earley is the owner of property located at 74 South Washington Street, in Plainville, Connecticut. The property is in a R-11 zone which is a residence zone requiring a minimum lot size of 11,000 square feet, a ten-foot side yard, and a thirty-foot rear yard. (Town of Plainville Zoning Regulations, Section 400.) She applied for variances "to allow the reconstruction of an attached pool nineteen feet from the rear yard and five feet from the side yard, and a deck twenty six feet from the rear yard in lieu of the ten foot from side yard and thirty foot from rear yard required in an R-11 Zone." (Legal Notice.)
The plaintiff owns abutting property upon which will be built residential condominiums. After a public hearing held on November 4, 2005, the ZBA voted 5-0 to approve the requested variances.
AGGRIEVEMENT
At the hearing on this matter, the plaintiff presented a certified copy of a quitclaim deed recorded in volume 415, page 106, of the Plainville land records. From this deed and the record, the court finds that the plaintiff is an abutting property owner. The plaintiff is statutorily aggrieved pursuant to General Statutes § 8-8(1).
SCOPE OF REVIEW
"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.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).
"Ordinarily, the decisions of local boards will not be disturbed as long as honest judgment 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." (Internal quotation marks omitted.) Children's School, Inc., v. Zoning Board of Appeals, 66 Conn.App. 615, 627, 785 A.2d 607, cert. denied 259 Conn. 903, 789 A.2d 990 (2001).
In this appeal, the ZBA failed to state on the record its reasons for granting the variances. "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." (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 454, 853 A.2d 54 (2004).
"A local zoning board has the power to grant a variance under General Statutes § 8-6[a](3) where two basic conditions are satisfied: (1) the variance must be shown not to affect substantially the comprehensive 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." (Internal quotation marks omitted.) Pollard v. Zoning Board of Appeals, 186 Conn. 32, 38-39, 438 A.2d 1186 (1982).
DISCUSSION
The record contains verbatim minutes of the public hearing and decision session conducted by the ZBA on November 14, 2005. The minutes do not contain line numbers, so only page numbers will be referenced. The court must first determine if there was substantial evidence before the ZBA from which it could find that the variances would not substantially affect the comprehensive zoning plan. "The comprehensive plan is found in the zoning regulations themselves." Pike v. Zoning Board of Appeals, 31 Conn.App. 270, 277, 624 A.2d 909 (1993). Bartiss-Earley stated at the hearing she purchased her home at 74 South Washington Street approximately three and one-half years ago, with the existing deck and pool. (Minutes, p. 2.) As stated earlier, the subject property is located in a residential zone and the variances did not seek a change of use for the property. The court concludes that the ZBA had substantial evidence before it that the variance would not substantially affect the comprehensive zoning plan.
The plaintiff focuses on the `unusual hardship' requirement of § 8-6 and alleges that the ZBA found a hardship where none existed. The plaintiff also claims that any hardship found was self-imposed by Bartiss-Earley or was personal to her.
At the hearing, Mr. Volovski, the building official, presented a copy of the survey that was used in 1994 when the current deck and pool were constructed. That survey, which was dated 1986, showed that the house was only twenty-five feet back from the front property line. He stated a more modern survey, which he felt was more accurate, showed the house was thirty-seven feet from the front property line. Mr. Volovski also stated, "[s]o based on the information that we had in 1994 we believe that the pool and the deck did conform to the regulations so you know, we felt we had a valid building permit back in 1994 when we were granted it." (Minutes, p. 5.) There was no evidence presented at the hearing to indicate that the surveyor who prepared the 1986 survey was retained by the prior owner. See Osborne v. Zoning Board of Appeals, 41 Conn.App. 351, 675 A.2d 917 (1996).
At the public hearing, the plaintiff's attorney submitted a copy of the decision in the case of Just Bee, LLC v. Black Point Beach Club Zoning Board of Appeals, Superior Court, judicial district of New London, No. 564026 (July 1, 2003, Hurley, J.T.R). In that case, the Black Point Beach Club zoning board of appeals denied the applicant's request for two variances to allow a deck, recently constructed by the applicant, to remain in place. The applicant had previously been served with a cease and desist order. The court dismissed the appeal and in its decision quoted the following language from the case of Achaubault v. Ludlow, 25 Conn.App. 375, 381, 594 A.2d 1015 (1991). "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.) Id.
It is apparent that the defendant's attorney brought this case to the attention of the ZBA to buttress his claim that the applicant's claimed hardship was self-created hardship and was not a sufficient reason to grant the variances. (Transcript, p. 10.) One of the board members, Ms. Pugliese, pointed out that unlike the facts of the Just Bee case, where the applicant built a deck without a permit, here the applicant's predecessor in title obtained a building permit. She disagreed with the plaintiff's attorney, who indicated that the case being considered represented a self-imposed hardship. Ms. Pugliese stated, "[s]he didn't create that hardship, the previous owner did for her unfortunately." (Minutes, p. 15.)
The plaintiff has also cited the Just Bee case in its brief. The court, like Ms. Pugliese, finds it distinguishable from the instant case. In that case, the applicant built a deck without a permit in May 2002, received a cease and desist order in June, and filed a variance application in September. The Just Bee court found the applicant could have built the deck in conformity with the regulations. Here, the deck and pool were constructed eleven years ago, with a permit, by a previous owner.
The verbatim transcript also includes that portion of the hearing where the members discussed and voted upon the subject application. During that session, Ms. Pugliese stated, "[y]es, I do feel that she has a hardship. She bought this property under I don't know what you would call it, false information, regarding the pool, thinking, and the fact that thinking it was conforming, that there was a permit taken out regardless of whether it was several years ago or not, this is a hardship that she unfortunately bought into . . . I don't see any problem. I feel she should be granted her request." (Minutes, pp. 18-19.) All four other members of the board agreed with her comments. (Minutes, p. 19.)
In the case of Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 427 A.2d 1346 (1980), the Supreme Court stated, "[t]he meaning of exceptional difficulty or unusual hardship as used in General Statute § 8-6 has been extensively litigated. In Smith v. Zoning Board of Appeals, [ 174 Conn. 323, 327, 387 A.2d 542 (1978) the Supreme Court stated], [i]t is well-settled that the hardship must be different in kind from that generally affecting properties in the same zoning district, and must arise from circumstances or conditions beyond the control of the property owner . . . where the hardship involved, arises as a 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." Whittaker v. Zoning Board of Appeals, supra, 179 Conn. 657-58.
In the case of Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994) the Supreme Court noted "[i]n reviewing the actions of a zoning board of appeals . . . such a 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 The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision . . . In an appeal from the decision of a zoning board, we therefore review the record to determine whether there is factual support for the board's decision, not for the contentions of the applicant." (Internal quotation marks omitted.)
In the present case, there is substantial evidence in the record to support the ZBA's decision to grant the variances on the grounds that the circumstances creating the hardship regarding the existing pool and deck arose from conditions beyond the control of the defendant applicant. The board obviously rejected the plaintiff's claim that the hardship was self-created. The board also was not persuaded that the applicant could have replaced the pool and reconstructed the deck to be in conformity with the regulations. As stated earlier, "the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." (Internal quotation marks omitted.) Osborne v. Zoning Board of Appeals, supra, 41 Conn.App. 354.
The court concludes there is substantial evidence to support the decision. The ZBA did not act unreasonably, arbitrarily, or illegally. The appeal is dismissed.