Opinion
FSTCV176034022S
07-03-2018
Elinor HERSHAFT, Individually and As Trustee, Andrew E. Hazen, Trustee et al. v. PLANNING AND ZONING BOARD OF APPEALS OF the TOWN OF GREENWICH et al.
UNPUBLISHED OPINION
OPINION
A. WILLIAM MOTTOLESE, JUDGE TRIAL REFEREE
The plaintiff appeals from the decision of the Greenwich Planning and Zoning Board of Appeals ("the board") which granted with conditions the application of 131 Old Mill, LLC ("Old Mill") for two variances and a special exception in order to permit construction of a "barn/stable (sic "bar"), riding arena and a shed/muck building to accommodate fourteen horses on 14.186 acres of land in the RA-4 zone. Old Mill also applied for a variance of the setback requirement for the shed/muck building but the board denied that request and Old Mill has not appealed from that denial. The parties stipulated to the fact that the plaintiffs have been the owners of the property which abuts the applicant’s property at all times pertinent to this appeal. Accordingly, the plaintiffs are found to be statutorily aggrieved. G.S. § 8-1(1), Goldfeld v. Planning and Zoning Commission, 3 Conn.App. 172 (1985).
A muck building is designed to hold manure produced by the horses. For a definition of "muck" see Webster’s New World Dictionary, 2nd Coll. Ed. at 933.
The RA-4 zone permits the erection and use of single-family dwellings on four-acre lots as of right. It also permits numerous special exceptions as authorized by the Planning Zoning Board of Appeals and special permits as authorized by the Planning and Zoning Commission. Greenwich Building Zone Regulations, Section 6-94.
The plaintiffs’ appeal alleges that the board acted illegally in granting (a) the variances where there was no cognizable hardship and (b) the special exception for an accessory use which is not permitted under the Greenwich Building Zone Regulations ("the regulations").
The Variances
For the purpose of this analysis the court will assume without deciding that the riding arena is an accessory use permitted by special exception. The first variance granted by the board permits the construction of the riding arena to a height of 36 feet when § 6-144(a) of the regulations limits the height of accessory buildings in all residence zones to 25 feet. The second variance involves § 6-144(a) and § 6-146(a) of the regulations which permit multiple accessory buildings designed for residential use by domestic employees in the RA-4 provided that each accessory building has "zoning lot area for each such family house." Here, the board permitted by variance, consolidation of two accessory residential units into a single building when the regulation requires them to be separated from one another. The board found that there was "practical difficulty of being required to construct a separate structure to house a second domestic employee." Based on that finding the board permitted the creation of "two domestic employee residences" in the same building, namely the building housing the riding arena.
Section 6-146(b) also requires that any accessory building used for residential purposes shall observe the same yards required for the principal use and shall not be located any closer to a principal building than twice the minimum side yard required for the zone in which it is located.
Section 6-19(a)3 provides that "[B]efore any variance is granted the board must make a written finding in its minutes as part of the record in the case:
A) That special circumstances, described in detail, attach to the property which do not generally apply to other property in the neighborhood and constitute the hardship;
B) That relief can be granted without detriment to the public welfare or impairment to the integrity of these regulations.
The board’s effort to satisfy these requirements is found in the official secretarial certificate received for record on November 3, 2017 by the Greenwich Town Clerk. That certificate contains the following findings, verbatim.
"After due consideration, the Board finds there is hardship due to the required clear span of the riding arena to permit the variance of required height and practical difficulty of being required to construct a separate structure to house a second domestic employee. Therefore, the requested variances of accessory structure height and allowable number of accessory residences in one building to permit two domestic employee residences in the rear of the riding arena is granted from sections 6-144(a) and 6-146(a)."
At the outset, the court sets forth the standard of review applicable to variances. "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. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] ... The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached ... If a trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot substitute its judgment for that of the board ... If there is conflicting evidence in support of the zoning commission’s stated rationale, the reviewing court ... cannot substitute its judgment as to the weight of the evidence for that of the commission. Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294 (2008). Evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can reasonably be inferred. Pellicone v. Planning and Zoning Commission, 64 Conn.App. 320, 326 (2001). "Substantial evidence" means enough evidence to justify, if the trial were to a jury, a refusal to direct a verdict." Huck v. IW & WCA, 230 Conn. 525, 541 (1987). Moreover, a zoning agency’s decision must be upheld if any one of the reasons given by the agency is reasonably supported by the record. Rural Water Co. v. Zoning Board of Appeals, supra.
More specifically, the following principles of law guide the court’s analysis. "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, 233 Conn. 198, 206 (1995). The authority of a Zoning Board of Appeals to grant a variance under Gen. Stat. § 8-6(3) requires the fulfilment of two conditions: "(1) the variance must be shown not to affect substantially the comprehensive zoning plan, (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.) Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368 (1988); ..."the hardship complained of must arise directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved ... Where the condition which results in the hardship is due to one’s own voluntary act, the Zoning Board is without the power to grant a variance ... Where ... the hardship arises as the 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." (Citation omitted; internal quotation marks omitted.) Vine v. Zoning Board of Appeals, supra, 281 Conn. 561. While hardship will vary from case to case, we repeatedly have held that considerations of financial disadvantage- or, rather, the denial of a financial advantage- do not constitute hardship, unless the zoning restriction "greatly decreases or practically destroys [the property’s] value for any of the uses to which it could reasonably be put ..." (Internal quotation marks omitted.) Id. ; see also Grillo v. Zoning Board of Appeals, supra 369; Carlson v. Zoning Board of Appeals, 158 Conn. 86, 89-90 (1969). Rural Water Company, Inc. v. Zoning Board of Appeals of the Town of Ridgefield, 287 Conn. 282, 295-96 (2008).
The Height Variance
The board described the hardship which justified the height variance as "due to the required clear span of the riding area." Old Mill describes the hardship as follows: "[t]he variances only provide relief from certain practical difficulties that allow them to be built with less difficulty and less disturbance to the site. They are merely to correct conflicts within the regulations themselves where the sheer size of the parcel allows structures of greater size than originally intended on the typical 4-acre parcel in the RA-4 zone." The court is unable to comprehend how raising the height of a building would cause "less disturbance to the site" and there is nothing in the record to support this statement. The plaintiff in turn argues that the desire to have a roof with a height of 36 feet rather than 25 feet is intended to satisfy Old Mill’s preference for a more aesthetically pleasing structure because a 25-foot roof would require the riding arena to be configured as a box-like structure which is deemed less desirable in appearance than a pitched roof with sloping sides. It is significant that the board did not assign aesthetic appearance as a reason for granting the variance and so the court need not discuss whether aesthetics constitutes a proper ground for a finding of hardship. Suffice it to say that "vague and undefined aesthetic considerations alone are insufficient to support the invocation of the police power which is the source of zoning authority." DeMaria v. Planning and Zoning Commission, 159 Conn. 534, 541 (1970). Indeed, "improving the appearance of a building even if beneficial does not constitute a cognizable hardship." 347 Humphrey Street, LLC v. Board of Zoning Appeals, 160 Conn.App. 214, 225 (2015).
In order to obtain the requested variance the applicant had to submit evidence in support of its contention that it could not construct any serviceable riding arena without complying with the 25-foot height limitation. Moon v. Zoning Board of Appeals, 291 Conn. 16, 26 (2009). It is clear and undisputed from the record that the height of the arena can be limited to 25 feet without impacting its serviceability or adaptability for the purpose for which it is designed.
Both Old Mill in its presentation and the board itself employed the term "clear span" to indicate the need for a jumping area free of obstructions. Old Mill’s unequivocal statement that a serviceable arena could be built without the height variance belies the claim that such clearance could not be obtained without the variance.
The applicant offered no evidence of hardship other than the claim made through its attorney, Thomas G. Heagney, that "the real hardship is to have the kind of a structure and have it covered, you need to be able to clear span it. And with this structure using a very shallow pitch roof we are exceeding the height just in the center portion of it," Ex. 94, p. 84. In fact, at page 112 of Exhibit 94 Mr. Heagney admitted that "the hardship is not related to the property itself. It is related to the use of the structure ... It’s the type of structure it is." The court agrees with the plaintiff that the record does not contain substantial evidence which satisfies Old Mill’s burden to demonstrate before the board unusual hardship or practical difficulty as those principles are defined in our law. Bloom v. Zoning Board of Appeals, 233 Conn. at 207.
It is well settled that it is improper for a zoning board to grant a variance to satisfy a personal value preference. Francini v. Zoning Board of Appeals, 228 Conn. 785, 793 (1994).
The Consolidation Variance
Evidentiary support for the second variance is not merely sparse but totally absent. The court is unable to find any proffered reason why compliance with § 6-146(a) will produce a legally cognizable hardship. As the court understands it, the thrust of Old Mill’s argument is that because it is unnecessary to require both residential units to be located in separate buildings, consolidation of the two units would result in less disturbance to the site by obviating a second building and therefore this supports the finding of practical difficulty. This regulation permits more than one accessory building on a lot in the RA-4 zone as long as "any" building has "(1) zoning lot area unit for each family of occupants who are domestic employees of the main building." Thus, since Old Mill wishes to have two unrelated sets of employees on the premises to serve the use, each in their own housing unit, such a goal can be accomplished without a variance by housing the first set of employees in the approved accessory structure and the second one in a detached accessory structure located elsewhere on the property. This is possible because with 14.186 acres the property is more than large enough to satisfy the requirement of one zoning lot area of 4 acres for each unit, i.e. eight acres. The rationale for this variance appears to be based simply on a value preference based on convenience expressed by the applicant and adopted by the board. While the benefit of avoiding the need for two separate accessory buildings by consolidating the two units into one seems to make practical sense, zoning hardship is not necessarily based on what makes better sense or what is convenient for a property owner. It is well established that [t]he claimed hardship must originate in the zoning ordinance; Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39 (1982); meaning that "because of some peculiar characteristic of [the] 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." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 207. In other words, a legal hardship must "[relate] to the property for which the variance is sought and not to the personal hardship of the owners thereof." (emphasis added) Garibaldi v. Zoning Board of Appeals, supra, 163 Conn. 238. Thus, a property owner’s "[d]isappointment in the use of property does not constitute exceptional difficulty or unusual hardship"; Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662 (1965); and principles of equity, fairness to the applicant, and lack of adverse consequences to surrounding properties do not meet the test for a legally recognized hardship. 9 R. Fuller, supra, § 9.1, pp. 237-38. Amendola v. Zoning Board of Appeals, 161 Conn.App. 726, 739 (2015).
The present case is not unlike Verrillo v. Zoning Board of Appeals, 155 Conn.App. 657, 691-92 (2015) where the court held that the desire of a property owner for more living and storage space and to modernize the existing structure in and of itself does not constitute the basis for finding zoning hardship. "Hardships in such instances as these do not arise from the application of zoning regulations, per se, but from zoning requirements coupled with an individual’s personal needs, preferences and circumstances. Personal 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." (Citations omitted.) Id., 239-40. For that reason, "[t]he situation of any particular owner is irrelevant" to the determination of whether a hardship exists. Hyatt v. Zoning Board of Appeals, supra, 163 Conn. 382.
In the present case, the consolidation of the two accessory housing units into one when two unconsolidated uses are readily available without a variance is not justified by the convenience of having all stable hands in one building rather than two. Accordingly, the board acted illegally and arbitrarily in granting the variances where there is no evidence of cognizable hardship. However, this does not end the court’s inquiry because it must next determine what effect, if any, the invalidation of these variances has on the special exception which the board granted.
The Special Exception
Since the parties did not address the issue in their briefs in chief, at trial the court asked the parties for supplemental briefing on the issue. In their brief, the plaintiffs argue that the variances are an integral part of and therefore inseparable from the special exception. They rightly point out that a flat roof rather than a pitched roof riding arena not only will produce a different exterior appearance but may require a redesign of the entire structure. Concomitant with that argument plaintiffs contend that because the arena will look substantially different with a flat and therefore lowered roof, they will be denied their due process rights of prior notice and hearing if the special exception is allowed to stand. In other words they claim that they have a right to evaluate the effect, if any, which the redesigned structure will have on their property rights and to express that position at a public hearing before the board.
Old Mill on the other hand argues that the special exception is legally separable from and not dependent on the variances because the riding arena can be built as of right without a variance to a height of 25 feet and one of two accessory housing units can either be eliminated by removing its kitchen or by relocating it as a separate structure, both in compliance with the regulations.
The parties have offered and the court has found no reported decision on this precise issue which may be stated as follows: where a special exception is granted with variances which are necessary for the uses authorized and where the uses can be built as of right without the variances in accordance with the regulations but in different configurations and locations, can the special exception survive without the variances? In 347 Humphrey Street, LLC v. Board of Zoning Appeals, 160 Conn.App. at 223, n.10 the court determined that a special exception which was dependent on the granting of variances which it found illegal obviated the court’s need to adjudicate the legality of the special exception. By contrast in the present case, Old Mill argues that the special exception is not dependent on the variances since the improvements can be built without the variances.
However, our courts have fashioned certain guidelines to assist a trial court in assessing whether an invalid condition attached to a zoning permit is separable from the permit thereby permitting it to be upheld. ‘It is well established that "[w]here a condition, which was the chief factor in the granting of [a permit], is invalid, the [permit] must fall ..." (Internal quotation marks omitted.) Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 66 (1990). "[T]he dispositive consideration [for the court] is whether the condition was an ‘integral’ part of the zoning authority’s decision to grant the [permit] and, if so, the [permit], even if valid in all other respects, cannot be upheld." Id. ; see also Reid v. Zoning Board of Appeals, 235 Conn. 850, 858 (1996) ("[W]e have held that if a zoning board would have refused to grant a variance without a particular condition, the condition is an integral part of the variance. If an integral condition is invalid, then an otherwise valid variance is also invalid.") (alternate citations omitted). Heim v. ZBA, 288 Conn. 628, 641 (2008). The key word of this principle is "integral." The test for determining whether a condition is integral to the permit is whether the removal of the condition would in any way destroy the value or effectiveness of the permit. Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 66 (1990).
In the present case there are several factors which lead to the conclusion that the value and effectiveness of the special exception will be damaged significantly without the variances. The most prominent factor is the fact that without the height variance the structure will be eleven feet shorter, thereby necessitating a flat roof which the record indicates will produce a box-like structure. There is no indication in the record whether this change will necessitate other changes such as expanding the footprint and therefore the bulk of the structure to accommodate the reduced height, or require the use of different exterior materials each of which may impact aggrieved property owners differently. Relevant to this is § 6-95(a)(2)(A) which requires the board in reviewing an application for this type of accessory use to consider "all the standards of Sec. 6-20(c), and Standards of Sec. 6-17(d)(4), (5), (6), (9), [and] the Board of Appeals shall find in residential zones that the accessory structure by virtue of its scale, design, size or location on the site is compatible with its zone and individually or in combination with other accessory structures, maintains the appearance of being subordinate to the principal structure." Moreover, § 6-17(d)(4), (5), (6) and (9) of the regulations requires the board to "consider in each case whether the proposed use will:
(4) Not materially adversely affect adjacent areas located within the closest proximity to the use.
(5) Not materially obstruct significant views which are important elements in maintaining the character of the Town for the purpose of promoting the general welfare and conserving the value of buildings.
(6) Preserve or enhance important open space and other features of the natural environment and protect against deterioration of the quality of the environment, as related to the public health, safety and welfare.
(9) Be in scale with and compatible with surrounding uses, buildings, streets and open spaces."
It takes little imagination to visualize that an 8,004 square foot building which is eleven feet shorter in height and which has a flat roof rather than a pitched roof is significantly different in "scale, design, size" or that the newly designed structure may "adversely affect adjacent areas" in a manner which differs from the way in which the approved structure does. Certainly the board has not had an opportunity to consider whether such a reconfigured structure will be "compatible with surrounding uses, buildings, streets and open spaces" as required by § 6-17(d)(9). Analogizing to the prior application rule which of course is not involved here, our Supreme Court has recognized that in a zoning context a substantial change in the size of a building constitutes a material change of condition from a previously denied variance for a larger building. Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 278-79 (1957). To the same affect is Malmstrom v. Zoning Board of Appeals, 152 Conn. 385 (1965) where the change in location of a building, a reduction in its size along with other changed features in the development justified a zoning board in finding that the current application materially changed conditions from a prior application for a variance which had been denied.
The above analysis applies with equal force to the second variance which allows two residential units in the same building when § 6-146(a) requires that they be separated. Obviously, a residential unit housed in a second building, though buildable as of right under this section of the regulations, must be reviewed by the board because it is an integral part of the overall development and its new location may adversely affect adjacent properties when standing alone to serve not only the principal use but also to serve the riding arena which itself is an accessory use.
To summarize, if the project cannot be developed as approved without the two variances then clearly the project is dependent on the variances and the case is therefore analogous to 347 Humphrey, LLC v. Zoning Board of Appeals, 160 Conn.App. at 223, n.10. See also Mackenzie v. Planning and Zoning Commission, 146 Conn.App. 406 (2013) (the court invalidated a special exception based on illegal variance).
Significant expansion of the footprint and bulk of a building and relocation of a second free standing housing unit changes the dynamic of the project and therefore could change the result. See plaintiff’s exhibit 4 which supplements the record as an aid to the court. This exhibit shows the interrelated locations of the various structures and other features proposed, e.g., riding arena, several paddocks, a jumping field, parking area, driveway, retaining wall, bat houses. For example, the necessity for a separate residential accessory use might influence changes in the location and configuration of one or more of the other features.
Since the court has found that the special exception is invalid for this reason there is no need to reach the substantive issue of whether substantial evidence supported the board’s implicit finding that the use is customarily accessory.
For the foregoing reasons the appeal is sustained as to both the variances and the special exception.