Opinion
No. CV 02 019 2283
March 10, 2004
STATEMENT OF APPEAL
The plaintiffs, Travis and Anne Engen, appeal from the decision of the defendant, the New Canaan zoning board of appeals. The board granted a coverage variance application submitted by the defendants, Julie and C. Hoff Stauffer, which permitted the Stauffers to construct a three-car garage on their property.
BACKGROUND
The Stauffers are the owners of property, purchased in 1987, located at 255 Brushy Ridge Road, New Canaan, Connecticut. (Return of Record [ROR], Exhibit 19(g).) By application dated March 1, 2002, the Stauffers filed their initial application for a coverage variance pursuant to New Canaan zoning ordinance § 60-14C. (ROR, Exhibit 20(b).) The initial application requested permission to build a detached garage. The board denied the application on May 6, 2002. (ROR, Exhibit 1.) The Stauffers submitted a second application for a coverage variance on September 6, 2002. (ROR, Exhibit 2.) The second application proposed the construction of an attached garage that would result in total building coverage of 6,840 square feet rather than 5,185 square feet permissible under § 60-14.2C of the New Canaan zoning regulations. (ROR, Exhibit 2.) A public hearing was held on October 7, 2002 (ROR, Exhibit 14); where the board considered the Stauffers' request for a coverage variance and entertained the Engens' objections. (ROR, Exhibit 22.) Following the public hearing, the board granted the Stauffers' application for a coverage variance with modifications. (ROR, Exhibit 2.) The Engens appealed from the board's decision to the Superior Court, and the appeal was tried to the court, Ryan, J., on November 18, 2003.
The Engens' original brief refers to the relevant coverage ordinance of the New Canaan zoning ordinances as both § 60-14.2C and § 14.2C. (Plaintiffs' brief, pp. 2-4.) The Engens' initial brief erroneously cites the relevant coverage ordinance as § 16.2.C. (Plaintiffs' brief, p. 3.)
The Stauffers' home without the attached garage is 5,580 square feet, a measurement already exceeding the permissible footage under the current New Canaan zoning ordinances. (ROR, Exhibit 20(c).)
The public hearing transcript erroneously refers to Mr. Engen as "Endon." (ROR, Exhibit 22, p. 23.)
JURISDICTION CT Page 4071
General Statutes § 8-8 governs appeals taken from a decision of a zoning board of appeals. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). "Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by the legislation." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 487, 815 A.2d 1188 (2003). General Statutes § 8-8(a)(1) defines an "aggrieved person" to include "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 [zoning board of appeals]."
The Engens allege that they "are the owners of real property known as 265 Brushy Ridge Road, New Canaan, Connecticut." (Complaint, ¶ 1.) They further allege that they are owners of land that abuts the property. (Complaint, ¶ 12(a).) At trial, the Engens produced a certified copy of the deed establishing their ownership of the property known as 265 Brushy Ridge Road, New Canaan, Connecticut, which abuts the property. (Trial Exhibit No. 1.) Further, at trial, the Engens introduced a document from the New Canaan tax assessor, listing the Engens as property owners within 100 feet of the subject property. (ROR, Exhibit 10.) Accordingly, it is found that the Engens are statutorily aggrieved.
Timeliness and Service of Process
General Statutes § 8-8(b) provides, in part, that 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." Subsection (f) further provides that service "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."
The board's decision was published in the New Canaan Advertiser on October 17, 2002. (ROR., Exhibit 17.) This appeal was commenced by serving the "Town of New Canaan, Juliet B. Stauffer, C. Hoff Stauffer Jr., a/k/a C. Hoff Stauffer, Zoning Board of Appeals of the Town of New Canaan, by leaving a true and attested copy of the Original Writ, Summons and Citation, Complaint and appeal with my doings thereon endorsed, in the hands of Claudia Weber, Town Clerk of the Town of New Canaan . . . and afterwards on 10/28/02, I made further service by leaving a true and attested copy of the Original Writ, Summons and Citation, Complaint and Appeal with my doings thereon endorsed, at the usual place of abode of Juliet B. Stauffer . . . and afterwards on 10/28/02, I made further service by leaving a true and attested copy of the Original Writ, Summons, and Citation, Complaint and Appeal with my doings thereon endorsed, at the usual place of abode of C. Hoff Stauffer Jr., a/k/a C. Hoff Stauffer . . . and afterwards on 10/28/02, I made further service by leaving a true and attested copy of the Original Writ Summons and Citation, Complaint and appeal with my doings thereon endorsed, J. Hart Evans, Chairman of the Zoning Board of Appeals of the Town of New Canaan . . ." (Amended Marshal's Return.).
It is therefore found that this appeal was commenced in a timely fashion upon the proper parties.
STANDARD OF REVIEW
The Superior Court's standard of review for administrative appeals brought pursuant to General Statutes § 8-8 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). "[T]he [plaintiff bears] the burden of establishing that the board acted improperly." Wood v. Zoning Board of Appeals, 258 Conn. 691, 698, 784 A.2d 354 (2001). "In an appeal from the decision of a zoning board, [the Superior Court] . . . review[s] 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.) Francini v. Zoning Board of Appeals, CT Page 4073 228 Conn. 785, 791, 639 A.2d 519 (1994). "Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so 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 has acted fairly or with proper motives or upon valid reasons . . ." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995).
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations . . . The principle that a court should confine its review to the reasons given by a zoning agency . . . applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action . . . It does not apply to mere utterances of individual members of the agency." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 420.
DISCUSSION
On October 17, 2002, the board published legal notice of its decision, which stated, "RESOLVED, application of C. Hoff Stauffer, Jr. and Juliet B. Stauffer, 255 Brushy Ridge Road for variance of Section 60-14.2.C to allow construction of an attached garage, which will result in total building coverage of 6,840 square feet rather than allowable building coverage of 5,185 square feet (5,580 square feet existing) in the Two Acre Zone (Map 38 Block 93 Lot 750) is hereby approved with modifications." (ROR, Exhibit 17.) The modifications, as stated in the board's decision include: "The excess coverage allowed by this variance shall only apply to the improvements as proposed and shown on drawings by Studio Dumitro Architect, date stamped September 6, 2002, filed with the variance application. All building permit plans shall be consistent with such drawings on file. The applicant shall file a restrictive covenant on the Land Records binding themselves and successors to such plans; and as per RKW survey dated Revised September 3, 2002." (ROR, Exhibit 2.) Further, the board's minutes from the October 7, 2002 public hearing reveal that the board discussed hardship with respect to the property, including architectural and historic hardship, thereby providing the board's rationale for granting the variance. (ROR, Exhibit 15.)
The Engens allege that the board acted illegally, arbitrarily and in abuse of its discretion in that the Stauffers did not suffer cognizable hardship to warrant a variance; if a hardship existed, the Stauffers knew of the hardship when they purchased the property or the hardship was self-created; the Stauffers can make reasonable use of their property without a variance; and the board cannot grant the second application when it denied the previous application absent change of conditions.
In their memorandum of support, the Engens argue that neither the preservation of the architectural or historical nature of the Stauffers' home nor the fact that the proposed garage would be consistent with the character of the neighborhood constitutes a legal hardship to support the granting of a variance. The Engens further argue that the Stauffers have admitted that they could construct a garage that would not require a variance but refuse to do so because the garage would impair the architectural features of the house. Alternatively, the Engens contend that if any hardship exists, it was self-created because at the time of purchase, the Engens knew, or should have known, that the property did not have a garage and that the construction of a new garage would require a variance. Finally, the Engens argue that the board erred in granting the second application for a variance after it had denied the first, because there was no change in condition or facts to support a reversal in the board's position.
Conversely, the Stauffers argue that the property is exempt from compliance with local zoning ordinances pursuant to General Statutes § 8-26a(b) and the Appellate Court's interpretation of the statute in Poirier v. Zoning Board of Appeals, 75 Conn. App. 289, 815 A.2d 716 (2003), cert. denied, 263 Conn. 912, 821 A.2d 766. As such, the Stauffers conclude that the appeal is moot and request that it be dismissed. (Defendant's Brief, pp. 8-11.)
The Stauffers argue, in the alternative, that the board's determination that an unusual hardship existed and the board's decision to grant the variance was supported by the record. The Stauffers also argue that due to the peculiar characteristics of the property, a strict application of the zoning ordinance would produce an unusual hardship.
The Engens filed a reply brief in which they assert that their appeal is not moot because the board did not base its decision to grant the variance on General Statutes § 8-26a(b), or upon the Appellate Court's decision in Poireir, and practical relief can be awarded to the Engens. Also, the Engens argue that the Stauffers cite no legal authority indicating that the architectural character and historic nature of a home is a legal basis for granting a variance. Further, the Engens assert that the court's scope of review is limited to the board's formal decision and the court may not search the record for evidence to support the board's decision. Finally, the Engens argue that the Stauffers knew when they purchased the property that they only had 138 square feet of coverage remaining, an amount insufficient to construct a garage.
The Engens also noted that the Stauffers purchased the property in 1987 and subsequently, in 1994, the New Canaan planning and zoning commission changed the zoning regulations.
I.
General Statutes § 8-26a(b) provides: "Notwithstanding the provisions of any general or special act or local ordinance, when a change is adopted in the zoning regulations or boundaries of zoning districts of any town, city or borough, no lot or lots shown on a subdivision plan for residential property which has been approved, prior to the effective date of such change, by the planning commission of such town, city or borough, or other body exercising the powers of such commission, and filed or recorded with the town clerk, shall be required to conform to such change." The Appellate Court has concluded that "[the statute] forever prohibits the application of new subdivision or zoning regulations to all subdivisions once they are approved . . . By enacting the statute, [t]he legislature has clearly made a policy decision that once the division of the land and proposed lot layout has been reviewed by the municipality through its planning commission, the subdivision does not have to be reviewed again, and that the subdivision lots are not affected by subsequently enacted zoning regulations." (Citation omitted; emphasis in original; internal quotation marks omitted.) Poirier v. Zoning Board of Appeals, supra, 75 Conn. App. 298.
In the present appeal, the Stauffers' attorney represented at the public hearing that a subdivision plan for the property was approved in 1986. (ROR, Exhibit 22, p. 34.) Further, a ZBA Staff Report Memorandum, dated September 20, 2002, states that "[t]he house was made nonconforming when the coverage regulation was amended in 1994 . . . Currently, it has no garage, since the property was subdivided in the 1980s." (ROR, Exhibit 8.) The record further reflects that maps of the subdivision were filed with the town clerk. (Trial Exhibits Nos. 3 and 4.) As previously stated, the current coverage requirements contained in New Canaan zoning ordinances, § 60-14.2C prohibit the Stauffers from constructing the garage, and as such, they sought a variance. Section 60-14.2C took effect on July 13, 1994, a date subsequent to the subdivision of the property. (ROR, Exhibit 23, p. 6109.) In fact, at the time of the subdivision, zoning regulation § 60-14.2 did not contain any coverage requirements or prohibitions. (ROR, Exhibit 19(a), p. 3.) Therefore, the coverage requirements currently contained in § 60-14.2C, arguably, do not apply to the property.
Although Poirier was not decided until February 2003, the board was made aware that an issue of statutory interpretation with respect to § 8-26a(b) was pending before the Appellate Court. At the public hearing, Mr. Mellick, counsel for the Stauffers, informed the board that a case, interpreting General Statutes § 8-26a(b) would be argued before the Appellate Court shortly after the public hearing. (ROR, Exhibit 22, pp. 36-39.) Further, Mellick stated, "[o]ne leading commentator has stated that [General Statutes § 8-26a(b)] forever prohibits the application of new subdivisions or zoning regulations to all subdivisions once they are approved by the planning commission and filed or recorded with the town clerk. And another has stated any subdivision lots which have been approved by the planning commission prior to the excessive date of the change and subdivision regulations, zoning regulations or zoning boundaries and recorded with the town clerk, are not required to conform to any subsequent regulation." (Internal quotation marks omitted.) (ROR, Exhibit 22, pp. 37-38.) Therefore, the commission was aware of the pending case before the Appellate Court.
Even if this court finds that § 8-26a(b) does not apply to the instant appeal, the record reveals that the Stauffers demonstrated sufficient hardship.
II.
"A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town." Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206. "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, as opposed to the general impact which the regulation has on other properties in the zone . . . Accordingly, we have interpreted General Statutes . . . § 8-6 to authorize a zoning board of appeals to grant a variance only when two basic requirements are satisfied: (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 . . . Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance." (Citations omitted; internal quotation marks omitted.) Id., 207-08. "In addition, for a hardship to justify the granting of a variance, it must be different in kind from that affecting generally properties in the same zoning district . . ." (Internal quotation marks omitted.) Wnuk v. Zoning Board of Appeals, 225 Conn. 691, 699 n. 11, 626 A.2d 698 (1993).
A.
The Engens argue that the board's decision to grant the Stauffers a coverage variance was illegal, arbitrary and an abuse of discretion because the stated hardship was legally insufficient. The minutes of the board's business meeting provide that "[t]he hardship is the historic nature of the house and the architectural nature of [the] property." (ROR, Exhibit 15, p. 4.) In Stillman v. Zoning Board of Appeals, 25 Conn. App. 631, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991), the property owner sought to expand the nonconformity of their home by constructing an addition, which would decrease the side-yard setback. Id., 633. Due to the placement of a septic tank on the property, the property owner had limited discretion as to the location of the addition. Id. The Appellate Court emphasized that "[the] unique conditions make the setback regulation exceptionally burdensome and support the board's granting of the variance." Id., 636-37. The Appellate Court further determined that "[t]he hardship claimed by the defendants arises from the configuration of [the owner's] lot and the location of the well and the septic system. These conditions are not personal to [the owner] and would exist no matter who owned the lot." Id., 637.
In Bloom v. Zoning Board of Appeals, supra, 233 Conn. 210 n. 13, the Supreme Court, although not expressly overruling Stillman, cited Stillman with some disapproval, but recognizing that Stillman was distinguishable from Bloom on its facts.
Similarly, the Stauffers' hardship arises from the unique, historic nature of their home and the configuration and location of integral, architectural features of the home. If the board strictly applied the coverage regulation contained in § 60-14.2C to the Stauffers' property, the Stauffers would have been required either to construct a garage not suited to the home or to remove the deck, which is an important architectural feature of the home. Like Stillman, these unique conditions arise from the size and configuration of the Stauffers' historic home. Further, the hardship is not personal to the Stauffers and such unique conditions would affect any owner of the property.
The Superior Court has previously held that historic considerations alone do not create unnecessary hardship. See Smith v. Bristol Zoning Board of Appeals, Superior Court, judicial district of Hartford/New Britain at New Britain, Docket No. CV 89 0437569 (July 23, 1991, Hammer, J.) ( 4 Conn. L. Rptr. 722, 6 C.S.C.R. 780). In the present appeal, however, the historic character coupled with the architectural nature of the Stauffers' home constitute peculiar factors specific to the property.
Moreover, the Superior Court has upheld the board's grant of a variance for unusual hardship in circumstances where an applicant demonstrates that the structure constitutes an architectural hardship. See Bozzi v. East Hampton, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 98 0085712 (July 7, 1999, Robaina, J.), and Pirone v. New Canaan Zoning Board of Appeals, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 97 0159631 (May 26, 1998, Karazin, J.). In Bozzi v. East Hampton, supra, Superior Court, Docket No. CV 98 0085712, the applicants sought a variance to construct a deck, which would allow the applicant's son and mother access to the home. The court concluded that the record supports the board's conclusion "that strict application of the zoning regulations, in light of the unique characteristics of the property — i.e., size of the nonconforming lot coupled with the placement and shape of the existing structures along with the unique architectural features of the house, i.e., narrow doorways and existing fireplace juts — would deprive the [owners] of the reasonable use of their property and, therefore, cause an unusual or unnecessary hardship." Id.
Also, in Pirone, the applicants wanted to expand their business. To do so, the fire marshal required the applicants to build a fire escape, which required a variance. The board granted the variance and it was contested on the ground that the applicants had other options available as to the placement of the fire escape. The court, reiterating that its review is limited to determining whether the board had factual support for its decision, upheld the board's grant of a variance based on the board's finding that "the applicant had demonstrated a valid architectural hardship . . ." Pirone v. New Canaan Zoning Board of Appeals, supra, Superior Court, Docket No. CV 970159631.
Here, the board examined the record and considered the age of the home, as well as the physical attributes of the home. During the public hearing, Mellick informed the board that the house was built in 1903. (ROR, Exhibit 22, pp. 26.) Mellick further discussed the architectural style of the home, specifically, the use of eaves and overhangs, which characteristics caused the Stauffers' home to exceed the coverage ordinance. (ROR, Exhibit 22, pp. 30-35.) Julie Stauffer emphasized that complying with current regulations would require the Stauffers to tear down the back porch, which is an "exquisite aspect of the building." (ROR, Exhibit 22, pp. 25-26.) A staff member recommended to the board that, "[t]he house is historic and may be deserving of the variance to ensure the preservation of its unique and distinctive architectural style and features." (ROR, Exhibit 8, p. 2.) The board then determined that permitting the construction of a garage would maintain the historic and architectural character of the home and that these circumstances constituted unusual hardship. (ROR, Exhibit 16.)
In their initial brief, the Engens also argue that the Stauffers' admission that the deck could have been constructed without a variance is fatal to their claim of hardship. A reviewing court need not address every proposed location for a structure discussed before the board, however. See Pirone v. New Canaan Zoning Board of Appeals, supra, Superior Court, Docket No. CV 97 0159631. "It is sufficient that the board considered the alternative options presented to it, and rejected them all." Id. During the public hearing, Mellick informed the board that the Stauffers did consider constructing the garage on the other side of the house. (ROR, Exhibit 22, pp. 73-75.) That was not a viable alternative, however, because doing so would require cutting down trees and would also result in the placement of the garage on the opposite side of the house from the driveway. (ROR, Exhibit 22, pp. 73-75.) Mellick also observed that purchasing the abutting property would not have changed the proposed location of the garage. (ROR, Exhibit 22, pp. 74-76.) Following the discussion regarding available alternatives, the board failed to expressly determine that any of the alternatives were viable. Based on the above-stated reasons, the record contains sufficient evidence for the board to conclude that the Stauffers demonstrated an unusual hardship.
The Engens did not argue that the Stauffers' proposed garage would affect the comprehensive plan of the neighborhood. In fact, the record reflects that the garage was specifically designed to conform to the character and plan of the neighborhood, as evidenced by letters and testimony of neighbors. (ROR, Exhibit 22, pp. 42-43; ROR, Exhibit 13; ROR, Exhibit 10(j).)
B.
The Engens further argue that any unusual hardship that exists is self-created because the Stauffers purchased the property with knowledge that the construction of any garage would require a variance under the New Canaan zoning ordinances. "Where the claimed hardship arises from the applicant's voluntary act . . . a zoning board lacks the power to grant a variance . . . 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 . . . [S]elf-inflicted or self-created hardship . . . is never considered proper grounds for a variance . . . "Where the applicant or his predecessor creates a nonconformity, the board lacks power to grant a variance." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39-40, 438 A.2d 1186 (1982). "Where a nonconformity exists, it is a vested right which adheres to the land itself." (Internal quotation marks omitted.) Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 712-13, 535 A.2d 799 (1988).
In Archambault v. Wadlow, 25 Conn. App. 375, 594 A.2d 1015 (1991), the subject lot was created in 1929, but became a legally nonconforming lot when new zoning ordinances were enacted in 1954. The plaintiffs purchased the lot in 1968 and later subdivided the lot, which made the lot a corner lot, thereby subjecting it to more stringent setback requirements. The plaintiffs then sought a variance to build a single-family home with a six-foot setback, as opposed to the fifty-foot setback required by the zoning ordinance. The Appellate Court found that the plaintiffs had a vested right in the existing nonconformity. The Appellate Court concluded that the hardship was not self-created, "rather, the nonconformity arose with the enactment of the zoning regulations." Id., 382.
Similarly, in the present appeal, in 1986, the New Canaan planning and zoning commission amended the zoning regulations. (ROR, Exhibit 22, pp. 34-35.) In 1987, the Stauffers purchased the property and, in 1994, the ordinances were again amended. (ROR, Exhibit 22, pp. 34-35.) Under the 1994 ordinances, the property became a legally nonconforming lot. The application of the 1994 coverage ordinance made it impossible for the Stauffers to construct a much needed garage that maintains the architectural and historical character of the home. Therefore, the nonconformity and resulting hardship were not created by a voluntary act, but, rather, arose from the imposition of the 1994 ordinance. As such, it is further found that the hardship was not self-created and the board properly granted the variance.
III
Finally, the Engens argue that the board erred in granting the second variance application when it denied an earlier variance application because the second application was substantially the same as the earlier application. "Ordinarily, an administrative agency cannot reverse a previous decision unless there has been a change in conditions or other circumstances have arisen which materially affect the merits of the matter decided." (Internal quotation marks omitted.) Grillo v. Zoning Board of Appeals, 206 Conn. 362, 367, 537 A.2d 1030 (1988). "The question whether the permit sought . . . is substantially the same as that previously denied is for the . . . commission to determine in the first instance." Hotchkiss Grove Assn., Inc. v. Water Resources Commission, 161 Conn. 50, 58, 282 A.2d 890 (1971). "The plaintiff bears the burden of proof to show that there was no change of conditions or circumstances since the prior application." Bradley v. Inland Wetlands Agency, 28 Conn. App. 48, 51, 609 A.2d 1043 (1992), citing Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368, 537 A.2d 1030 (1988). "[T]he established law of this state . . . prohibits a zoning board of appeals from reversing its previous decision unless the facts and circumstances which actuated the decision are shown to have so changed as to vitiate or materially affect the reason which produced and supported it and no vested rights have intervened." (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 215, 719 A.2d 465 (1998).
In the present appeal, the record contains ample evidence to support the board's finding that the second application was not substantially similar to the earlier application. The first application proposed a detached garage with total building coverage of 6,610 square feet (1,030 square foot garage). (ROR, Exhibit 20(b).) The second application proposes an attached garage that would result in total building coverage of 6,840 square feet (1,260 square foot garage). (ROR, Exhibit 2.) Testimony by Julie Stauffer at the October 7, 2002 hearing before the board reveals that the second proposal resulted from a redesign and a reconfiguration of the garage to address the concerns of neighbors that objected to the original design, specifically the Engens' objections. (ROR, Exhibit 22, pp. 21-27.) The objections to the original design were as follows: (1) the Engens wanted to be able to see through and over the property, to Brushy Ridge Road; (2) the Engens argued that the carriage house (now the Engens' home), as a distinct residence, should be offset from the main house (the Stauffers' home) to give it its own identity; (3) the Engens objected to the height of the garage proposed by the first application; (4) the Engens objected to the proximity of the garage to their property because the proposed location would impede the Engens' view; and (5) the Engens believed the proposed detached garage would diminish the value of their property. (ROR, Exhibit 22, pp. 22-23.) The board denied the first application. (ROR, Exhibit 20(b).)
The court recognizes the fact that the garage proposed in the second application is, in fact larger than that proposed in the first application. The court further recognizes, however, that specific changes were made to address the Engens' concerns regarding the garage, however.
As a result of these concerns and the board's denial, the Stauffers asked the Engens to meet with them and with their architect to discuss a compromise, which would be brought before the board. (ROR, Exhibit 22, p. 23.) Subsequently, the Stauffers hired George Dumitru to redesign the garage. (ROR, Exhibit 22, p. 23.) The second design was an attached garage, farther from the Engens' property that would not block the Engens' view of Brushy Ridge Road. Further, Julie Stauffer testified that it was her belief that the second proposed garage would increase the value of the Engens' home because the Engens would not have to view cars parked outside the property. (ROR, Exhibit 22, pp. 23-24.) The Engens continued to object to the construction of the garage proposed in the second application. Based on the foregoing facts, the record contains adequate grounds to support the board's conclusion that the first and second application were not substantially the same. As such, it is further found that the board did not err in considering and granting the Stauffers' second application for a variance.
The board has discretion to determine whether an application is substantially the same as an earlier application. At the October 7, 2002 hearing, the Stauffers presented the board with evidence that the two applications were not substantially the same. (ROR, Exhibit 22, pp. 18-25.)
CONCLUSION
For the foregoing reasons, the Engens' appeal is dismissed.
Ryan, J.T.R.