Opinion
No. CV99 0360754
September 22, 2004
MEMORANDUM OF DECISION RE PLAINTIFF'S APPEAL FROM THE DECISION OF THE TRUMBULL ZONING BOARD OF APPEALS
The plaintiff, Brian Holinko, appeals from the decision of the defendant Town of Trumbull Zoning Board of Appeals (hereinafter the board), in which the board granted an application for the variance that would reduce lot frontage mandated by Article III, Section 1 of the town's zoning regulations. That reduction would allow the defendant Judith Bokina (Bokina) to subdivide property located at 65 McGuire Road, Trumbull. The plaintiff owns 75 McGuire Road, the property adjacent to the land at issue.
I. Procedural History and Facts of the Case
On February 24, 1999, the plaintiff appealed pursuant to General Statutes § 8-8 from a decision of the defendant board that granted Ms. Bokina's application for a variance to create two interior lots on her property.
The record reflects the following facts. On July 5, 1973, Ms. Bokina purchased the property known as 65 McGuire Road. The property consists of:
All that certain piece or parcel of land . . . being known and designated as lot No. 3, on a certain map being known and designated as "Final Subdivision map prepared" . . . said premises being bounded and described as follows: Northwesterly; by land nor or formerly of Fred Weinberg . . . Northeasterly: by land now or formerly of Ralph J. Lockwood . . . Southeasterly: by land now or formerly of Gerald and Alice Gevry . . . Northwesterly again: by land now or formerly of Gerald and Alice Gevry . . . Southeasterly again: by McGuire Road, as shown on said map, 152.07 feet; Southwesterly: By lot No. 2 . . . Subject to: CT Page 14196
1. Building and zoning lines and regulations and any and all provisions of any ordinance, municipal, private and public law as may have been established by the Town of Trumbull . . .
Subject property is located in an AA residential zone. The zoning regulations in effect at the time Ms. Bokina purchased subject property required building lots to contain at least one acre and to have minimum road frontage of 150 feet. The frontage on the Bokina property is 152 feet.
Ms. Bokina wishes to subdivide her property. The rear of the property does not have access to a public highway. There is no highway frontage. Ms. Bokina proposes that the rear lot front on McGuire Road. That would reduce the lot frontage of the existing lot to 127.06 feet. The lot frontage for the proposed lot would be 25.01 feet. The plaintiff's property, with frontage on McGuire Road, directly abuts the Bokina property.
In her application for a variance Ms. Bokina stated that she had "excess lot acreage with minimum lot frontage."
The board conducted a public hearing on February 3, 1999. When asked the nature of the hardship, Ms Bokina's representative replied, "We don't have adequate road frontage to access the property and it's excess acreage that can't be accessed any other way." Ms. Bokina, through her representatives, admitted that there was "no hardship really on the one piece of property the way that it was originally set up . . ." but commented that through the years other options were not viable.
On February 11, 1999 the board granted the Bokina application. The record does not reflect any determination concerning hardship other than excess acreage on limited frontage. The plaintiff filed the present appeal.
II. Legal Analysis A. Jurisdiction
Connecticut General Statutes § 8-8 governs an appeal from the decision of a zoning board of appeals. "It is fundamental that appellate jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute." Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992). The initial requirement is standing.
Connecticut General Statutes § 8-8 provides in relevant part:
(a) As used in this section:
(1) "Aggrieved person" means a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement or decision of the board. In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, "aggrieved person" includes 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 board.
(b) [A]ny person aggrieved by any decision of a board, including a decision to approve or deny a site plan . . . may take an appeal to the superior court for the judicial district in which the municipality is located.
"Pleading and proof that the plaintiffs are aggrieved within the meaning of the statute is a prerequisite to the trial court's jurisdiction over the subject matter of the appeal." Munhall v. Inland Wetlands Commission, 221 Conn. at 50. "Aggrievement is an issue of fact . . . and credibility is for the trier of facts." (Citation omitted; internal quotation marks omitted.) Red Hill Coalition v. Conservation Commission, 212 Conn. 710, 716, 563 A.2d 1339 (1989).
In the present appeal, the plaintiff alleges that he is aggrieved because his real property abuts the Bokina property. Both the exhibits presented to this court as well as the plaintiff's testimony established this fact. The court finds that the plaintiff is statutorily aggrieved pursuant to General Statutes § 8-8(a)(1).
Connecticut General Statutes 8-8(b) provides, in part, that an "appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published . . ." The board published its decision on February 11, 1999. The plaintiff filed his appeal thirteen days after that publication. The court finds that the plaintiff filed a timely appeal upon the proper parties.
B. Standard of Review
"When the court reviews decisions of land use agencies under section 8-8, it cannot substitute its discretion for the evidentiary findings of the agency if they are reasonably supported by the record." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1993) § 33.9, p. 584. "It is not the function of the court to adjudicate the facts. The court can do no more, on the factual questions presented, than to examine the record to determine whether the ultimate findings were supported, as the statute requires, by substantial evidence." Persico v. Maher, 191 Conn. 384, 408-09, 465 A.2d 308 (1983). "Substantial and competent evidence is that which carries conviction. It is such evidence as a reasonable mind might accept as adequate to support a conclusion. It means something more than a mere scintilla and must do more than create a suspicion of the existence of the fact to be established." (Internal quotation marks omitted.) Board of Education v. Commission on Human Rights, 176 Conn. 533, 538, 409 A.2d 1013 (1979). "This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . ." Samperi v. Inland Wetlands Agency, 226 Conn. 579, 587-88, 628 A.2d 1286 (1993).
Decisions by zoning authorities are given considerable deference and they should be overturned by a court only when it is found that the agency has not acted fairly, with proper motives and upon valid reasons. McMahon v. Board of Zoning Appeals, 140 Conn. 433, 438, 101 A.2d 248 (1953). "Where it appears that an honest judgment has been reasonably and fairly exercised after a full hearing, courts should be cautious about disturbing the decision of the local authority." Id., quoting Kutcher v. Town Planning Commission, 138 Conn. 705, 710, 88 A.2d 538 (1952). The question before this court is whether the board decision is reasonably supported by the evidence in the record and not arbitrary or illegal. Bora v. Zoning Board of Appeals, 161 Conn. 297, 299-300, 288 A.2d 89 (1971). "The burden of proof is on the plaintiff to demonstrate that the board acted improperly." Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991).
C. Discussion
Connecticut General Statutes § 8-6 authorizes a zoning board of appeals to grant a variance from zoning regulations in situations where literal enforcement of the zoning regulations "would result in exceptional difficulty or unusual hardship." Proof of the existence of hardship is a condition precedent to the granting of a variance. Nash v. Zoning Board of Appeals, 165 Conn. 576, 577, 345 A.2d 35 (1973). "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 of the purpose of the zoning plan . . . The zoning board's action must be reasonably supported by evidence in the record . . . The hardship must be different in kind from that generally affecting properties in. the same zoning district." (Citations omitted; internal quotation marks omitted.) Dupont v. Zoning Board of Appeals of Manchester, 80 Conn.App. 327, 330, 834 A.2d 801 (2003), quoting Kelly v. Zoning Board of Appeals, 21 Conn.App. 594, 597-98, 575 A.2d 249 (1990). "To prevail on the basis of a hardship, an applicant for a variance must show that because of some peculiar characteristic of its property, the strict application of the zoning regulation produces an unusual hardship as opposed to the general import which the regulations has on other properties in the zone." Dolan v. Zoning Board of Appeals, 156 Conn. 426, 430, 242 A.2d 713 (1968). Thus the power to grant a variance should be sparingly exercised. Allen v. Zoning Board of Appeals, 155 Conn. 506, 510, 235 A.2d 654 (1967); Kaeser v. Zoning Board of CT Page 14199 Appeals, 218 Conn. 438, 445, 589 A.2d 1229 (1991). "It is well established that the granting of a variance must be reserved for unusual or exceptional circumstances." Dolan v. Zoning Board of Appeals, 156 Conn. 426, 429, 242 A.2d 713 (1968); Ward v. Zoning Board of Appeals, 153 Conn. 141, 145, 215 A.2d 104 (1965).
The burden is on the applicant to prove hardship. Carini v. Zoning Board of Appeals, 164 Conn. 169, 172, 319 A.2d 390 (1972). The hardship established by a party seeking a variance must be a legally cognizable hardship. Kelly v. Zoning Board of Appeals, 21 Conn.App. 594, 595, 575 A.2d 249 (1990). A hardship that is self-created will not warrant a variance. "Similarly, it is also well established that self-inflicted hardship which arises because of individual actions by the applicant will not provide a zoning board of appeals with sufficient reason to grant a variance." Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972).
The hardship may not be purely financial. Libby v. Board of Zoning Appeals, 143 Conn. 46, 51, 118 A.2d 894 (1955). "A mere economic hardship or a hardship that was self-created, however, is insufficient to justify a variance . . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance." (Citations omitted; internal quotation marks omitted.) Dupont, 80 Conn.App. at 330.
The Dupont decision is instructive. There the court noted, "The desire to subdivide property into [two] lots is a voluntary hardship created by the applicant requiring denial of a variance." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 9.3, p. 186. "Where the claimed hardship arises from the applicant's voluntary act . . . a zoning board lacks the power to grant a variance." (Internal quotation marks omitted.) Aitken v. Zoning Board of Appeals, 18 Conn.App. 195, 205, 557 A.2d 1265 (1989)." Dupont, 80 Conn.App. at 330.
In the present case there is no hardship such as would allow the variance requested. Here Ms. Bokina sought to subdivide a lot that since its inception had the bare mimmum required for lot frontage. Under the zoning regulations at the time of the purchase and again at the time of the application there was no preexisting nonconformity. Financial hardship is an insufficient basis to depart from the existing zoning regulations. As the court noted in Dupont
If we were to entertain the proposition that a property owner has a right to subdivide his property simply because he owns it, then we would be undermining the policy identified by our Supreme Court that variances are to be granted only in limited circumstances. "[U]nless great caution is used and variances are granted only in proper cases, the whole fabric of town and city-wide zoning will be worn through in spots and raveled at the edges until its purpose in protecting the property values and securing the orderly development of the community is completely thwarted." (Internal quotation marks omitted.) Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 270-71, 588 A.2d 1372 (1991). We conclude, as we did in Aitken v. Zoning Board of Appeals, supra, 18 Conn.App. 206, that when a property owner's situation is self-created, that is not a sufficient reason to depart from the zoning regulations.
The hardship the plaintiff claims is the inability to use the rear property as a separate lot. This hardship is nothing more than a claim of financial disadvantage. There is not confiscation of the property. The loss of the potential financial gain of creating an additional lot is not a proper basis for a variance.
Variances are, in every sense, the antitheses of zoning. As such, they are closely regulated. In the present cases, the board cited no basis for the grant of the variance.
The plaintiff's appeal is sustained.
Dewey, J.