Opinion
No. CV 08-4032259 S
July 9, 2009
MEMORANDUM OF DECISION
This is an appeal from the defendant Zoning Board of Appeals of the Town of Wallingford's (board) denial of the plaintiffs' Dean Hall and Jean Hall, trustees of the trust for the benefit of Dean Hall under agreement of the Francis E. Hall Revocable Trust (trustees) application for a variance to permit the construction of a single-family house on property they own known as 110 Northford Road (property). This property does not have direct access to a public street as currently required under the Wallingford Zoning Regulations (regulations) in order to build a home. Upon application for a variance, the board turned down the trustee by a vote of three in favor of granting the variance and two against. For a variance to be granted, a vote of at least four in favor is required under the regulations.
The subject property consisting of 34+ acres has been owned by the Hall family for over 300 years and is presently used as farm land. It would continue to be used as such except for the building of a home for the Hall family. It originally abutted a public road known as Strawberry Hill Lane until the Town discontinued that road in 1875. With respect to the concerns expressed regarding fire, water and electric service, these were addressed to the satisfaction of the respective agencies or would be subject to their approval before the home could be constructed.
One of the most important functions of the board is "to provide relief in cases where literal application of the Zoning Regulations acts peculiarly on a particular piece of property to produce an undue hardship on that property under special circumstances . . ." regulations § 9.1. This is such a case.
The property is located in RV-120 zone which is a residential zone. Access to the subject property has continued over the discontinued highway which now is a right of way leading to a public road. Variances had been granted to other existing homes with access solely through Strawberry Hill Road. In deed, just recently an identical variance was granted by the board to another parcel of land for the building of a home whose only access was through Strawberry Hill Road.
Several of the neighbors, who also use Strawberry Hill Road for access to their property through their attorney spoke against allowing the variance. Their major objection was based on the additional costs to maintaining Strawberry Hill Road. The Halls indicated they would pay their proportionate share of these costs.
Our Supreme Court held in Willard v. Zoning Board of Appeals, 152 Conn. 247, 248 (1964), the following: `It is true that the plaintiff has the burden of proving that the defendant acted illegally, arbitrarily and in abuse of its discretion and that the court will not substitute its judgment for that of the board. 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. Zieky v. Town Plan Zoning Commission, 151 Conn. 265, 267, 196 A.2d 758; Abramson v. Zoning Board of Appeals, 143 Conn. 211, 214, 120 A.2d 827; Tarasovic v. Zoning Commission, 147 Conn. 65, 71, 157 A.2d 103."
This court finds that the board in this case did not act fairly and with valid reasons.
The appeal is sustained and it is ordered that the board grant the variance in order to allow the Halls to build a family residence.