Opinion
No. CV06 401 01 15 S
August 18, 2008
MEMORANDUM OF DECISION
FACTS
The plaintiff, Elizabeth Claire Ingram, is the owner of property known as 249 Lyons Plain Road, Weston, where she resides with her husband, Stephan B. Grozinger.
The property consists of approximately 29,995 square feet, or 0.69 acres (ROR 18). The parcel is non-conforming as to lot area, because existing zoning regulations require a minimum of two acres in an R-2A residential zone. (ROR I, Article II, § 200.)
A single-family dwelling constructed in the 1940s is situated on the property. The plaintiff and her husband are seeking to expand the existing structure, with a proposed addition to the rear of the home, coupled with a "wrap-around" porch, which would link the home's two entrances. (ROR 18; ROR 19, p. 3.)
A four-foot by six-foot concrete porch extends into the 50-foot front setback from Lyons Plain Road. The wrap-around porch would extend approximately eight feet into the setback area (ROR 19).
Elizabeth Claire Ingram applied to the Weston Zoning Board of Appeals, seeking a variance of § 321.5 of the Weston Zoning Regulations (Ex. 14), in order to accommodate the wrap-around porch and an air conditioning compressor (ROR 10).
321.5 Minimum Set Back Requirements: All buildings and structures shall be required to be set back a minimum distance of 50 feet from the front lot line and 30 feet from any side or rear lot line. In the case of a flag lot, all setbacks will be 30 feet.
In her application, the plaintiff claims that the size of the lot constitutes the basis for the claim of hardship (ROR 10).
A public hearing concerning the requested variances was held on August 22, 2006. The plans for a renovated home, and the need for the setback variances, were described for the board (ROR 19, p. 2-5). The plaintiff also explained the family's personal needs, in connection with the expansion of the existing 1,400 square foot home (ROR 19, p. 5).
Also explained was the desire to construct a home which would be consistent with the historic homes in Weston, and the Saugatuck River Valley (ROR 19, p. 2; ROR 13).
The board, after the public hearing was adjourned, discussed the request for the variances. A board member mentioned that the Weston Planning and Zoning Commission, on which the plaintiff's husband, Stephan Grozinger, serves, was responsible for writing municipal zoning regulations, and that the adopted regulations should not be rewritten through the use of variances (ROR 19, p. 13).
The board voted, 4-1, to deny the requested variances for the wrap-around porch, and the air conditioning pad. The reason given was that the plaintiff had failed to demonstrate a hardship which would justify the granting of the variances (ROR 19, p. 17-18; ROR 9).
Notice of the decision was published in the Weston Forum (ROR 5), and this appeal followed.
AGGRIEVEMENT
The plaintiff, Elizabeth Claire Ingram, was the owner of 249 Lyons Plain Road, when the application for the variances was submitted, and at the time of the decision in August of 2006, which generated this appeal. The property was maintained as a family homestead at that time, and continues to serve as the family's principal residence.
In October of 2006, the plaintiff conveyed her interest in the property to her husband, Stephan Grozinger (Ex. 1). He reconveyed the property in April of 2007 (Ex.2). The reconveyance was validated through the execution of a confirmatory warranty deed (Ex. 3) recorded at Vol. 475, pages 564-65 of the Weston Land Records on August 1, 2008.
A party claiming aggrievement must satisfy a well-established two-fold test:
1) the party must demonstrate a specific personal and legal interest in the decision appealed from, as distinct from a general interest such as an interest of the community as a whole, and 2) the party must show that the specific personal and legal interest has been specifically and injuriously affected by the action of the land use agency. Primerica v. Planning Zoning Commission, 211 Conn. 85, 93 (1989); Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47 (1984).
Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an appeal. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 307 (1991). The party claiming to be aggrieved must sustain the interest in the property throughout the course of the appeal. Craig v. Maher, 174 Conn. 8, 9 (1977).
Had Elizabeth Claire Ingram been the record owner of 249 Lyons Plain Road throughout this appeal, the court would have no difficulty in finding that aggrievement had been both pled and proven. Winchester Woods Associates v. Planning Zoning Commission, supra, 308; Bossert Corporation v. Norwalk, 157 Conn. 279, 285 (1968).
However, the evidence reveals that for approximately six months between October 25, 2006 and April 19, 2007, the plaintiff had no record ownership interest in the property. The home was owned during that period by her husband, Stephan B. Grozinger.
At trial, it was explained that the conveyance was required as part of a refinancing transaction.
Since the question of aggrievement is one of fact; Hughes v. Planning Zoning Commission, 156 Conn. 505, 508 (1968); it is necessary to determine whether the plaintiff maintained her status as an aggrieved party, during the period in which her husband was the sole owner of the property in question.
A plaintiff is not required to demonstrate that he or she holds a fee interest in property, in order to satisfy the test for aggrievement. One may demonstrate aggrievement by showing that he enjoys the status of a contract purchaser, is the holder of a written option to purchase, or holds a security interest in the property which may be impaired. Shapero v. Zoning Board, 192 Conn. 367, 376 (1984); Lanna v. Green, 175 Conn. 453, 461 (1978); Goodridge v. Zoning Board of Appeals, 58 Conn.App. 760, 767 (2000); Goldfield v. Planning Zoning Commission, 3 Conn.App. 172, 176 (1985).
Aggrievement has been found, in circumstances in which the party claiming to be aggrieved had no legally enforceable interest in the subject property. In those instances, a court should focus upon the party's ultimate goal, and desired use of the property, when determining whether the test for aggrievement had been satisfied. DiBonaventura v. Zoning Board of Appeals, 24 Conn.App. 369, 376 (1991); Charles F. Nejame Company, Inc. v. Zoning Board of Appeals, 30 Conn. L. Rptr. 685 (2001).
Aggrievement is not synonymous with the concept of "standing," but they are closely related. The criteria utilized in determining "standing" to make an application to prosecute an appeal from an adverse decision, are helpful and instructive, since both standing and aggrievement are fact-specific. In determining whether a party has established standing, a four-fold criteria has been formulated as a guide. Courts look to: 1) the control of the property in question, 2) whether the party claiming aggrievement is in possession of the property, or has a right of possession, 3) whether the use of the property is consistent with the party's interest in the property, and 4) the extent of the interest of other persons in the property. Richards v. Planning Zoning Commission, 170 Conn. 318, 323-24 (1976); R R Pool Home, Inc. v. Zoning Board of Appeals, 43 Conn.App. 563, 572 (1996).
In Sinclair v. Planning Zoning Commission, 27 Conn. L. Rptr. 350 (2000), a husband shared control and occupancy of property with his wife, who was the record owner. The husband claimed aggrieved status based upon his wife's ownership of the property.
The court pointed out that in the event of a divorce action, the courts would protect the interests of both parties in the property, and that the rights of a non-owner spouse were also recognized in the intestacy statutes. Therefore, the husband was an aggrieved party.
Section 45a-436 45a-437, Connecticut General Statutes.
Here, 249 Lyons Plain Road, Weston, was occupied as a family home, and was the principal residence of both the plaintiff and her husband. While this appeal has been pending, the plaintiff enjoyed right of possession, control and use of the property during the entire period of time during which she was not the record title holder.
It is found that the plaintiff, Elizabeth Claire Ingram, had a specific personal and legal interest in 249 Lyons Plain Road, and that her interest was maintained throughout the pendency of this appeal. It is also found that her specific personal and legal interest in the property has been specifically and injuriously affected by the action of the Weston Zoning Board of Appeals from which this action arises.
It is therefore found that Elizabeth Claire Ingram is aggrieved by the decision of the defendant Weston Zoning Board of Appeals, from which this appeal is prosecuted.
STANDARD OF REVIEW
The powers of a municipal zoning board of appeals are derived from § 8-6(3) of the General Statutes. The statute gives a zoning board of appeals the authority:
(3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent, with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel, but not affecting generally the district in which it is situated, a literal enforcement of such bylaws ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done, and the public safety and welfare preserved.
A zoning board of appeals is endowed with liberal discretion, and its decisions are subject to review by a court only to determine whether the board acted arbitrarily, illegally or unreasonably. Pleasant Farm Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269 (1991); Torsiello v. Zoning Board of Appeals, 3 Conn.App. 47, 50 (1984). The burden of demonstrating that the board has acted improperly, is on the party seeking to overturn the board's decision. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988); Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654 (1980).
A court should not usurp the function and prerogatives of a zoning board of appeals by substituting its judgment for that of the board, where an honest judgment has been reasonably and fairly exercised after full hearing. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995).
The question is not whether another decision maker, such as the trial court, would have reached the same conclusion, but whether the record before the agency supports the decision reached. Calandro v. Zoning Commission, 176 Conn. 439, 440 (1979).
A decision must be upheld, if it is supported by substantial evidence. Substantial evidence is enough evidence to justify if the trial were to a jury, a refusal to direct a verdict, if the conclusion sought to be drawn, is one of fact. Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993). The possibility of drawing two inconsistent conclusions from the evidence does not prevent a decision from being supported by substantial evidence. Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 697-98 (1993).
Where a zoning board of appeals, as required by 8-7 of the General Statutes, has stated reasons for its action, a reviewing court need only determine if any one of the reasons given is sufficient, because it is supported by substantial evidence in the record.
". . . Whenever a zoning Board of appeals grants or denies any . . . variance in the zoning regulations applicable to any property . . . it shall state upon the record its reason for its decision."
THE RECORD SUPPORTS THE BOARD'S CONCLUSION THAT NO HARDSHIP WAS DEMONSTRATED
In order to grant a variance, a zoning board of appeals must find that two conditions have been satisfied: 1) the variance must be shown not to affect substantially the municipal comprehensive 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 powers of the zoning plan. Francini v. Zoning Board of Appeals, 228 Conn. 785, 790 (1994); Smith v. Zoning Board of Appeals, 174 Conn. 323, 326 (1978).
A variance runs with the land, Reid v. Zoning Board of Appeals, 235 Conn. 850, 858 (1996), § 8-6(b), C.G.S., and must be based only on property conditions, Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239 (1972). The identity of the applicant is irrelevant. Divan v. Board of Zoning Appeals, 220 Conn. 61, 66-67 (1991).
The granting of a variance, because it permits a property owner to use his property even though a violation of the zoning ordinances will result, is reserved for unusual or exceptional cases. Bloom v. Zoning Board of Appeals, supra, 206-07; Ward v. Zoning Board of Appeals, 153 Conn. 141, 145 (1965).
To support a variance, a hardship must arise from a condition different in kind from that generally affecting properties in the same zoning district, and must be imposed by conditions outside of the property owner's control. Norwood v. Zoning Board of Appeals, 62 Conn.App. 528, 533 (2001). If a hardship is self-inflicted — arising from the voluntary act of the applicant, the board does not have the authority to grant a variance. Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39 (1982); Archambault v. Wadlow, 25 Conn.App. 375, 381 (1991).
Hardships which are personal to the applicant, however compelling from a human standpoint, do not provide a sufficient basis for the granting of a variance. Garibaldi v. Zoning Board of Appeals, supra, 239-40; Gangemi v. Zoning Board of Appeals, 54 Conn.App, 559, 564 (1999).
A variance cannot be granted where it impairs the integrity of the comprehensive plan. The comprehensive plan consists of the zoning regulations, and the zoning map. Burnham v. Planning Zoning Commission, 189 Conn. 261, 267 (1983).
The plaintiff seeks to expand a single-family dwelling which complies with all existing setback requirements. The expansion includes a proposed wrap-around porch which encroaches into the setback area, and space for an air conditioning unit in the setback area.
The property is situated in an area in which single-family residences are a permitted use. Thus it is consistent with other uses in the area. This supports a finding that the granting of the variances as requested will not substantially affect the comprehensive plan.
Hardship, however, is another matter.
The Weston Zoning Board of Appeals found that the variances requested should not be granted, because no hardship had been proven. The record amply supports the board's conclusion.
The plaintiff does not argue that the topography of the property is unique in some fashion, thus requiring construction only within the setback area. No unusual soil conditions, or the presence of wetlands or watercourses preclude construction in any portion of the property, and the parcel does not contain any permanent, immovable structures or utilities which prevent use of the existing single-family home as a residence, without the requested variances.
With the exception of the wrap-around porch and the air conditioning pad, the entire addition contemplated by the plaintiff and her husband can be accommodated, under the existing regulations, without the necessity of a variance (ROR 18).
During the course of the public hearing, the plaintiff explained that a wrap-around porch would give the structure a "farm house" appearance, and would be in keeping with the character of the area (ROR 19, p. 5). This conclusion does not assist the plaintiff in her claim of hardship.
Vague and undefined aesthetic considerations are insufficient, standing alone, to support the invocation of police powers, which is the source of all zoning authority. DeMaria v. Planning Zoning Commission, 159 Conn. 534, 541 (1970); JLO Paddock, LLC v. Town of Wallingford Zoning Board of Appeals, 9 Conn. Ops. 933, 2003 WL21716593 (2003). Permitting aesthetic considerations to control zoning decisions would give unlimited discretion to land use agencies, and allow those agencies to arbitrarily decide issues based upon personal preference or favoritism. Robert A. Fuller, Land Use Law and Practice, (3d ed.) § 4.48, p. 174 (2006).
The plaintiff claims, in her application, that the size of her lot, 0.69 acres in a two-acre zone, constitutes a hardship, and that expansion within the setback area should be permitted, because the applicable regulations are designed for lots of two acres or more. This claim is not well taken.
In Stillman v. Zoning Board of Appeals, 25 Conn.App. 631 (1991), the Appellate Court supported a finding of the municipal zoning board of appeals, concerning the existence of a hardship, thus reversing a determination that no hardship was present, as found by the trial judge.
The Appellate Court determined that the size of the lot and the location of the home, coupled with the presence of a well and septic system on the property, which prevented the expansion of the house anywhere except within the setback area, provided sufficient justification for the granting of a variance by the municipal zoning board of appeals. Stillman v. Zoning Board of Appeals, supra, 636-37.
Although the holding in Stillman has not been overruled, a subsequent decision by the Connecticut Supreme Court has cast doubt upon its continued validity. In recognizing that the inability of an owner of property to add new structures does not constitute a hardship, the court said: "Although we distinguish Stillman, in this case, we do not necessarily endorse its holding." Bloom v. Zoning Board of Appeals, supra, 210-11, n. 13.
Here, no artificial structures prevent expansion of the existing footprint, except within the designated setback areas. The entire addition proposed by the plaintiff and her husband, can be accommodated without encroaching into the setback area. Only the wrap-around porch, and an air conditioning pad which can be located outside the setback area, are impacted by the zoning regulations. Mere disappointment in the use of property does not constitute an unusual hardship, thus entitling an applicant to relief. Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662 (1965); Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 548 (1996).
The three Superior Court cases cited by the plaintiff in support of her claim of hardship, can be readily distinguished on the facts.
O'Neill v. Madison Zoning Board of Appeals, 24 Conn. L. Rptr No. 5, 176 (1999), involved a long, narrow, irregularly shaped lot, on which no dwelling could be constructed without a setback variance. The court held that demolishing a dwelling, based on the mistaken belief that a home could be built without a variance, is not a self-created hardship.
Kelly v. Willington Zoning Board of Appeals, 29 Conn. L. Rptr. 551 (2001), involved an appeal from the granting of a setback variance in order to construct a two-story addition. The court determined that a pool, a deck, and a septic system behind the house, prevented expansion in that area, citing Stillman.
Carberry v. Zoning Board of Appeals, 30 Conn. L. Rptr. 537 (2001), involved a claim that three features of the particular lot combined to create a hardship: 1) the shape of the lot, 2) the curved property boundary, and 3) a drainage easement which barred any filling within 25 feet of a river on the edge of the parcel. The variance was granted by the zoning board of appeals.
In none of the cases did the court negate a finding of no hardship, after a zoning board of appeals had come to the conclusion that the facts did not warrant a finding of hardship.
Nor is the plaintiff assisted by the claim that other similarly situated properties received setback variances from the Weston Zoning Board of Appeals. The record concerning the granting of these variances is sparse, and no attempt was made to supplement the record complied before the defendant zoning board of appeals. A variance cannot be justified, by claiming that another parcel, under the same or similar circumstances, was granted a variance in the past. Ward v. Zoning Board of Appeals, supra, 146.
Even in a situation where the variance sought was identical to one previously granted to the owner of property on the same right of way, a variance could not be justified on that basis. Haines v. Zoning Board of Appeals, 26 Conn.App. 187, (1991).
The determination by the Weston Zoning Board of Appeals that the plaintiff failed to demonstrate a hardship, is fully supported by the record, and will not be disturbed.
THE RECORD FAILS TO SUPPORT A FINDING OF BIAS
The plaintiff contends that the Weston Zoning Board of Appeals failed to grant her the requested variances because her husband, Stephan Grozinger, is a member of the Weston Planning and Zoning Commission, and a certain tension exists between the two land use authorities.
She points to a portion of the record in which a member of the zoning board of appeals expressed displeasure with the zoning commission's reaction to a zoning board of appeals decision. The potential of legal action against the zoning board of appeals was raised (ROR 19, p. 13), but no elaboration was forthcoming.
This claim is woefully deficient.
There is a presumption that members of an administrative agency are not biased. Jutkowitz v. Department of Health Services, 220 Conn. 86, 100 (1991); Rado v. Board of Education, 216 Conn. 541, 556 (1990).
To overcome this presumption, a party must do more than raise a possibility of bias, based upon an isolated statement made in the course of a public meeting. Actual bias, not merely potential bias, must be shown. O G Industries, Inc. v. Planning Zoning Commission, 232 Conn. 419, 429 (1995).
No claim of bias or predisposition has been shown. However, even if bias or predisposition was shown, it would not alter the inability of the plaintiff to prove a legally cognizable hardship.
The appeal of the plaintiff, Elizabeth Claire Ingram, is DISMISSED.