Opinion
No. CV06-4021822S
August 10, 2007
MEMORANDUM OF DECISION
The plaintiffs, James Esposito and Diane Libero, appeal from a decision of the defendant, the zoning board of appeals of the town of East Haven (ZBA), in which the ZBA denied Esposito's application for variances to construct a single-family residence on Libero's legal nonconforming lot.
I. BACKGROUND
On June 13, 2006, Esposito applied for five variances in order to construct a single-family residence on premises located at 27 Pequot Street, East Haven. (Return of Record [ROR], Item 18.) Libero is the owner of record of the subject property, which is located in the residential R-3 zoning district and has an area of 4000 square feet. (Plaintiffs' exhibit 1; ROR, Item 18.) Esposito requested variances with respect to lot area, frontage, setbacks from the rear and side property lines and lot coverage, as set forth in Schedule "B" of the East Haven zoning regulations. (ROR, Item 18.) Esposito indicated on the application that "[b]ecause of the size and shape of the nonconforming lot, strict application of the [r]egulations pertaining to setback, frontage, and area requirements will produce an unusual hardship, as opposed to the general impact which those regulations have on other properties in East Haven." (ROR, Item 18.)
Section 23.4 of the East Haven zoning regulations provides in relevant part: "These Districts are designed to consist of single family houses on lots of sufficient size to support private sewage disposal systems pending the extension of a sewer system. They are also designed to encourage a somewhat higher quality of suburban development with ample lots."
Section 25.1 of the East Haven zoning regulations provides in relevant part: " Schedule `B' . . . is hereby declared to be a part of these Regulations, and is referred to herein as ` Schedule B'. The area, shape and frontage of lots, and the location and bulk standards of buildings and other structures, applicable in each district are as herein after specified and as set forth in Schedule B." (Emphasis in original.)
Esposito's application indicates that he requested the following variances from the requirements of schedule B: (1) a reduction of the minimum lot area from 20,000 square feet to 4000 square feet; (2) a reduction of the minimum lot frontage from 100 feet to 10 feet; (3) a reduction of the minimum setback from the rear property line from 30 feet to 24 feet; (4) a reduction of the minimum setback from the side property lines from 20 feet to 4 feet and 8 feet; and (5) an increase in the maximum lot coverage from 20 percent of the lot area to 27.6 percent of the lot area. (ROR, Item 18.)
At trial, the court found that Esposito's application contained a typographical error. (Transcript, p. 42-43.) Whereas the application reflects that Esposito sought a reduction of the minimum lot frontage from 100 feet to 10 feet, Esposito actually was requesting a reduction of the minimum lot frontage from 100 feet to 40 feet. (Transcript, p. 42-43.)
On July 20, 2006, the ZBA held a duly noticed public hearing on Esposito's application for variances, after which the ZBA denied the application without formally stating its reasons on the record. (ROR, Item 21, pp. 56-57.) The plaintiffs appealed from the ZBA's decision to the Superior Court and the appeal was tried to the court, Meadow, J.T.R., on June 5, 2007.
Although the cover letter to the transcript indicates that the public hearing was held on July 18, 2006; (ROR, Item 21, p. 1); the plaintiffs allege that it was held on July 20, 2006; (Appeal, ¶ 4); and the ZBA admits this in its answer. (Answer, ¶ 4.)
II. JURISDICTION
General Statutes § 8-8 governs appeals from decisions of zoning boards of appeals to the Superior Court. "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.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
A. Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; emphasis added; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003). A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665.
In zoning appeals, there is not "a precise standard that defines the required interest a nonowner must possess in order to become an aggrieved party . . . Rather, [the courts] have held that the extent to which a party with an interest in the property other than that of an owner is aggrieved depends upon the circumstances of each case, because the concept of standing is a practical and functional one designed to ensure that only those parties with a substantial and legitimate interest can appeal an order." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 666.
The plaintiffs allege that Esposito has a contract to purchase the subject property; (Appeal, ¶ 1); which is owned by Libero. (Appeal, ¶ 2.) The plaintiffs further allege that they are aggrieved by the ZBA's decision because "the property is a legal pre-existing residential nonconforming lot entitled to be developed, and the [ZBA's] decision precludes any development on the property." (Appeal, ¶ 5.) The plaintiffs introduced at trial a certified copy of the deed, which shows that Libero is the owner of the property that was the subject matter of the ZBA's decision. (Plaintiffs' Exhibit 1 dated January 16, 1991.) Esposito testified that he has contracted with Libero to purchase the property. Esposito further testified that the agreement has not yet been reduced to writing and is contingent upon the granting of variances that would allow him to build a home on the vacant lot. When asked whether he filed an application with the ZBA regarding the property, Esposito testified "[y]es, we did," presumably referring to himself and Libero. The application, however, reflects that Esposito was the sole applicant. (ROR, Item 18.)
The court finds that both plaintiffs are classically aggrieved by the ZBA's denial of the variance application. In Moutinho, the Supreme Court addressed the similar issue of "whether a party who has an oral agreement to lease property after the fulfillment of a contingency may be aggrieved by a land use decision affecting the property." Moutinho v. Planning Zoning Commission, supra, 278 Conn. 668. The court held that "an agreement between a landowner and a nonowner . . . need not be in writing to establish the [nonowner's] aggrievement in a zoning appeal. When the evidence establishes the existence of an oral agreement and the intent of the parties to abide by that agreement, a substantial and legitimate interest in the property exists." (Internal quotation marks omitted.) Id., 669-70. In the present case, the evidence establishes the existence of such an agreement and the plaintiffs have therefore pleaded and proven classical aggrievement.
B. Timeliness and Service of Process
Notice of the ZBA's decision was published in the East Haven Courier, a newspaper of general circulation in the East Haven area, on July 27, 2006. (ROR, Item 13.) The plaintiffs commenced this appeal on August 2, 2006 by service of process upon the ZBA, by leaving two copies of the writ, summons, citation, appeal and exhibit with the town clerk of the town of East Haven. The court finds that this appeal is timely and that service of process was proper.
III. SCOPE OF REVIEW
"The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . 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." (Citations omitted; internal quotation marks omitted.) R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61(2001). "[D]ecisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing . . . [T]he trial court [must review] the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . . The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Internal quotation marks omitted.) Garlasco v. Zoning Board of Appeals, 101 Conn.App. 451, 456, 922 A.2d 227 (2007).
"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record." (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-60, 916 A.2d 5 (2007). "If the zoning board has not given the reasons for its decision, the trial court must search the entire record to find a basis for its decision . . . Where it appears from the record that the action of a zoning authority rested on more than one ground, the authority's action must be sustained so long as the record supports at least one of the grounds." (Citation omitted; internal quotation marks omitted.) Laurel Beach Ass'n. v. Zoning Board of Appeals, 66 Conn.App. 640, 645, 785 A.2d 1169 (2001).
A review of the record reveals that although individual members of the ZBA discussed reasons for denying the variances, the ZBA did not "state a collective, official reason for its action. Accordingly, [the court] must search the record as a whole to determine whether the evidence supports the [ZBA'sl decision" to deny the variances. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 209, 658 A.2d 559 (1995).
IV. DISCUSSION
The plaintiffs appeal from the ZBA's decision to deny their variance application on the grounds that the ZBA acted arbitrarily, illegally and contrary to the evidence in the following ways: (a) "The lot was created and existed as a legal building lot before the [t]own of East Haven enacted its zoning regulations"; (b) the plaintiffs "have a recognized hardship because the passage of the East Haven [z]oning [r]egulations rendered the lot impossible to build"; (c) pursuant to §§ 44.2 and 44.11 through 44.11.4 of the East Haven zoning regulations, the lot qualifies as a "legal nonconforming lot"; (d) it is well settled that "`a valid nonconforming undersized lot has been found to create a legal hardship so as to validate the granting of variances'"; (e) the evidence in the record "supports a finding of hardship, and the granting of the variances and the decision to deny the variances is contrary to the evidence in the record"; and (f) the ZBA "violated Connecticut General Statutes by failing to state a reason for its denial or provide such reason anywhere in the Return of Record." (Appeal, ¶ 6.) The plaintiffs have adequately briefed their claims for the court's consideration.
A. Whether the Record Supports the ZBA's Decision to Deny the Variance Application
The plaintiffs argue that their appeal should be sustained because the ZBA's decision precludes any development on Libero's legal preexisting residential nonconforming lot, which is entitled to be developed under § 44.11 of the East Haven zoning regulations. The plaintiffs maintain that they have a recognized hardship because the passage of the regulations has rendered the lot impossible to build upon. The plaintiffs contend that the unique size of the lot prevents strict compliance with the setback, area and frontage requirements and will produce an undue hardship as opposed to the general impact that the regulations have on other properties within the zoning district.
The ZBA counters that the permissive language of § 44.11 of the East Haven zoning regulations does not guarantee the ability to build on nonconforming lots. The ZBA argues that the plaintiffs have failed to demonstrate that the requested variances do not affect substantially the comprehensive plan. In addition, the ZBA asserts that "because the plaintiffs have failed to demonstrate that the lot is essentially rendered worthless by the application of the zoning regulations and because other, less intense, options may exist, combined with the character of the other lots in the neighborhood, the plaintiffs have not sustained their burden of proving a unique and unusual hardship necessary for the granting of a variance."
"A variance is an authorization obtained from the zoning board of appeals to use property in a manner otherwise forbidden by the zoning regulations . . . For a variance to be granted under General Statutes § 8-6(3), two conditions must be fulfilled: (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." (Internal quotation marks omitted.) CT Page 14125 Garlasco v. Zoning Board of Appeals, supra, 101 Conn.App. 456.
Although the ZBA did not formally state any reason for denying the variance application, its trial brief indicates that the predominant basis for the denial was the plaintiffs' failure to establish a hardship. A "hardship must be different in kind from that generally affecting properties in the same zoning district . . . It is well settled that the granting of a variance must be reserved for unusual or exceptional circumstances. Proof of hardship is a condition precedent to granting a variance." (Internal quotation marks omitted.) Garlasco v. Zoning Board of Appeals, supra, 101 Conn.App. 456. Moreover, a "mere economic hardship . . . is insufficient to justify a variance . . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance." (Internal quotation marks omitted.) Santos v. Zoning Board of Appeals, 100 Conn.App. 644, 648, 918 A.2d 303, cert. denied, 282 Conn. 930 (2007). "The hardship must arise from circumstances or conditions beyond the control of the property owner." (Internal quotation marks omitted.) Garlasco v. Zoning Board of Appeals, supra, 456.
As the Appellate Court has recently explained, "[d]isappointment in the use of property does not constitute exceptional difficulty or unusual hardship . . . It is well established that the power to grant a variance should be sparingly exercised . . . [V]ariances cannot be personal in nature, and may be based only upon property conditions . . . Thus, the identity of a particular user of the land is irrelevant to zoning . . . Additionally . . . [p]ersonal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance . . . [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." (Citation omitted; emphasis in original; internal quotation marks omitted.) Garlasco v. Zoning Board of Appeals, supra, 101 Conn.App. 462.
Section 44.2 of the East Haven zoning regulations defines a nonconforming lot as "one which existed lawfully . . . on the date these Regulations . . . became effective, and which fails to conform to one or more of the provisions of these Regulations or such any amendment hereto." Section 44.1 indicates that a nonconformity is not to be expanded and "should be changed to conformity as quickly as the fair interest of the parties [permits] . . . and . . . shall not in itself be considered ground for the issuance of a variance for any other property." With respect to constructing a building on a nonconforming lot, § 44.11 provides in relevant part: "A parcel of land which fails to meet the area, shape or frontage, or any other applicable requirements of these Regulations pertaining to lots, may be used as a lot and a building or other structure may be constructed . . . thereon, provided that all of the following requirements are met: 44.11.1 The use, building or other structure shall conform to all other requirements of these Regulations.
44.11.2 The uses, shall not be a use for which a Special Exception is required in Schedule "A"
44.11.3 If used for a dwelling, the lot shall contain a minimum area of 4,000 square feet and . . .
44.11.4 The owner of the parcel shall not be the owner of contiguous land which, in combination with such parcel that fails to conform would make a parcel that conforms to the requirements of these Regulations.
(Emphasis in original.)
Even if the court assumes, arguendo, that the requirements of § 44.11 of the East Haven zoning regulations have been met, the plaintiffs are not entitled to build on their nonconforming lot by the mere fact that it is permissible for such parcels to be used as lots upon which structures may be constructed. "[Z]oning regulations are local legislative enactments . . . and . . . their interpretation is governed by the same principles that apply to the construction of statutes . . . [R]egulations must be interpreted in accordance with the principle that a reasonable and rational result was intended . . . The process of statutory interpretation involves the determination of the meaning of the statutory language [or in this case, the relevant zoning regulation] as applied to the facts of the case . . ." (Internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393,416, 920 A.2d 1000 (2007). An examination of the language of § 44.11 reveals that a building "may" be constructed on a nonconforming lot, provided that the aforementioned requirements are met. The word "may" ordinarily "does not connote a command. Rather, the word generally imports permissive conduct and the conferral of discretion." (Internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 20, 848 A.2d 418 (2004). The court thus interprets § 44.11 to mean that the ZBA is afforded discretion when it considers an application for variances to build on a nonconforming lot.
As for the plaintiffs' burden of establishing an unusual hardship under General Statutes § 8-6(3), the record reveals the following. In his variance application. Esposito explained that "[b]ecause of the size and shape of the nonconforming lot, strict application of the [r]egulations pertaining to setback, frontage, and area requirements will produce an unusual hardship, as opposed to the general impact which those regulations have on other properties in East Haven." (ROR, Item 18.) In addition, Esposito submitted several examples of variances that had been granted to construct single-family residences on similarly situated and sized lots. (ROR, Item 18.) The granting of other variances, however, "has no bearing on whether the variances in this particular case should have been granted." Hoffer v. Zoning Board of Appeals, 64 Conn.App. 39, 43, 779 A.2d 214 (2001).
At the public hearing on July 20, 2006, counsel for the plaintiffs informed the ZBA that the "property is deed restricted to use solely as a single family home"; (ROR, Item 21, pp. 10-11); and that the East Haven engineering department had declined to abandon a portion of undeveloped road to increase the size of Libero's lot. (ROR, Item 21, pp. 8-9.) In a memorandum to the ZBA, counsel for the plaintiffs stated that Esposito had "a recognized hardship because the passage of the East Haven [z]oning [r]egulations rendered the lot impossible to build." (ROR, Item 10, p. 1.) He further stated that "the applicant in this case would be prevented from building a practical residential structure on the subject lot at 27 Pequot Street. Actually, if the [r]egulations were enforced, the applicant would be prevented from constructing any structure on the lot." (ROR, Item 10, p. 3.)
A conveyance of the subject property in 1950 imposed the following restrictions, by deed: "that only a one family dwelling house to cost not less than $2,500. may be erected on said lot, but nothing herein is to be construed so as to prevent the erection of a private garage on said lot to accommodate two automobiles . . ." (ROR, Item 18.)
The court finds an adequate basis for the commission's decision because the plaintiffs failed to establish a hardship. In Garlasco v. Zoning Board of Appeals, supra, 101 Conn.App. 451, the plaintiff requested a variance in order to construct a single-family residence and stated in his application that a hardship stemmed "from the fact the parcel has never had frontage in a form which would meet the requirements of the Bridgewater Zoning Regulations and the parcel pre-exists the adoption of these regulations. Where the town adopts a regulation which makes a parcel non-conforming it creates a hardship for which a variance would be appropriate." (Internal quotation marks omitted.) Id., 454. Upon the denial of his application, the plaintiff appealed to the Superior Court and claimed "that the application of the regulations denied him the reasonable use of the property . . . [and] amounted to a confiscation." Id. After the trial court dismissed his appeal, the plaintiff appealed to the Appellate Court. The Appellate Court concluded that the plaintiff failed to establish a hardship because he had neither shown that "the construction of a single-family home was the only reasonable use of the property"; id., 457; nor submitted "any evidence that the value of his property [had] been decreased greatly or destroyed." Id., 460.
Like the applicant in Garlasco, the plaintiffs in the present case argued at trial that "the denial by the [ZBA] is a confiscation of [their] rights . . . to develop the property in any way." The plaintiffs similarly failed, however, to present evidence to the ZBA regarding the issues of reasonable use and the valuation of the property. Their failure to meet their burden resulted in the ZBA properly denying the variance application. Although the existence of a nonconformity "is a vested right which adheres to the land itself . . . [z]oning regulations that reasonably promote public health, safety and welfare are constitutional, even when they impinge on the rights of property owners." (Citations omitted; internal quotation marks omitted.) Archambault v. Wadlow, 25 Conn.App. 375, 382, 594 A.2d 1015 (1991). A regulation which permanently restricts the use of property for any reasonable purpose, however, "goes beyond permissible regulation and amounts to a taking." Id. In the extreme situation where a practical confiscation occurs because a regulation has so limited the use of land "that it cannot be utilized for any permitted purpose without a variance"; id.; the "loss of value alone amounts to a hardship." Stillman v. Zoning Board of Appeals, 25 Conn.App. 631, 636, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991).
The plaintiffs did not offer evidence as to the diminution in the value of the land to aid the ZBA in determining whether the property's value would be greatly decreased or practically destroyed. With regard to alternatives available to them, the plaintiffs failed to establish that the construction of the proposed twenty-four by forty-six foot single-family residence is the only reasonable use of the property or that a less offensive use does not exist. Although the property is deed restricted in the sense that only a single-family residence or two-car garage may be erected on it, the plaintiffs did not offer any evidence regarding their ability to sell the vacant lot to abutting land owners for use as a side yard for the adjoining property. Moreover, the plaintiffs did not explore any other dimensions for the proposed building that would require less extreme variances from the requirements of Schedule B. The bulk of the plaintiffs' evidence of hardship consisted of repeated recitations of the basic facts that the property lies in a residential R-3 zoning district and therefore cannot meet certain zoning requirements to construct a building or other structure. This alone is insufficient, however, to support their argument that the ZBA's denial of the variance application deprives them of the reasonable use of their property and amounts to a practical confiscation. As the record contains substantial evidence that the plaintiffs failed to meet their burden of establishing a hardship, the court determines that the ZBA's decision is supported by substantial evidence.
B. Whether the Plaintiffs' Appeal Must Be Sustained Because the ZBA Failed to Formally State Any Reason for Denying the Variance Application
The plaintiffs argue that the ZBA failed to state any reason for its denial of the variance application. The ZBA counters that its failure to state a reason for its decision is not a proper ground upon which to sustain the plaintiffs' appeal.
Although the ZBA failed to "state upon its records the reason for its decision" to deny the variance application as required by General Statutes § 8-7, this alone is not sufficient justification for the court to sustain the plaintiffs' appeal. See Caserta v. Zoning Board of Appeals, 28 Conn.App. 256, 258-60, 610 A.2d 713 (1992). Our Supreme Court has recognized "the long established rule requiring a search of the administrative record in appeals from planning and zoning authorities to determine if there is an adequate basis for the action taken . . ." Caserta v. Zoning Board of Appeals, supra, 260. The court, therefore, will not sustain the plaintiffs' appeal on the ground that the ZBA failed to state any reasons for its decision to deny the variance application.
Accordingly, the appeal is dismissed.