Opinion
No. CV 07-4105613
March 27, 2008
MEMORANDUM OF DECISION
This is an appeal by the plaintiff, Jewett City Savings Bank, from the decision of the defendant, the Franklin zoning board of appeals (zoning board), denying the plaintiff's application for variances of §§ 2.1, 4.4.2, 4.4.4 and 4.4.5 of the Franklin zoning regulations (regulations) to construct a residence on a rear lot of property owned by the plaintiff (the property). The plaintiff claims that the defendant acted illegally and in abuse of its discretion.
The sections of the zoning regulations provide in relevant part:
2.1 DEFINITIONS . . .
BUILDABLE AREA: A contiguous area any part of which could contain an onsite septic system, a water supply well, or a building in compliance with the provisions of these regulations. No more than 20% of such area may consist of slopes greater than 20% . . .
4.4 DIMENSIONAL REQUIREMENTS . . .
4.4.2. Minimum frontage in a street: 200 consecutive feet . . .
4.4.4. Side and rear yards: 25 feet.
4.4.5. Minimum lot width: 200 feet.
(Emphasis in original.)
The following facts and procedural history are relevant to the plaintiff's appeal. On January 17, 2001, the plaintiff acquired three irregular and vaguely described parcels of land. Subsequently, the plaintiff arranged to have the parcels surveyed. After the survey was completed, the plaintiff sold a portion of the parcels, leaving the plaintiff with the property consisting of approximately four acres of unimproved land, which it is now seeking to develop and which is the subject of this appeal.
On July 26, 2004, the plaintiff filed an application with the Franklin planning and zoning commission (commission) for a special exception pursuant to § 4.3.7 of the regulations seeking to use and develop the property. After conducting a public hearing on the plaintiff's application, on October 19, 2004, the commission denied the special exception application for the following reason: "The applicant does not meet the Town of Franklin Zoning Regulations, in reference to Chapter 2, Definition 2.1, defining Buildable Area." The plaintiff appealed the commission's decision to the Superior Court on November 5, 2004. Concurrently, the plaintiff appealed the commission's decision to the zoning board pursuant to § 3.5B of the regulations. In addition to the foregoing appeals, the plaintiff also filed for a declaratory judgment and a temporary injunction precluding the zoning board from proceeding with the appeal on the ground that it was not authorized by General Statutes § 8-6(a)(1). The trial court rendered judgment for the plaintiff, declaring § 3.5B of the regulations void and temporarily enjoining the zoning board from proceeding with the plaintiff's appeal. Jewett City Savings Bank v. Franklin, Superior Court, judicial district of New London at Norwich, Docket No. CV 04 4100904 (April 19, 2005, Leuba, J.T.R.). The Supreme Court reversed the trial court's decision, concluding that § 3.5B of the regulations is valid and denied the injunctive relief sought by the plaintiff. Jewett City Saving Bank v. Franklin, 280 Conn. 274 (2004). The zoning board conducted a public hearing on the plaintiff's appeal from the decision of the commission and denied the appeal, thus sustaining the action of the commission. The plaintiff is now appealing the zoning board's denial of its variances due to the lack of hardship.
Section 4.3 of the zoning regulations of the town of Franklin provides in relevant part:
SPECIAL EXCEPTIONS: The following uses are permitted provided they meet the conditions of Chapter 10 of these Regulations . . .
4.3.7. Rear lots.
Section 3.5 of the regulations provides in relevant part: "Any person who alleges that there is an error in any order, requirement, or decision made by the Commission or its agent in:
A. enforcement of these regulations, or
B. action on a special exception application, may appeal such action to the Zoning Board of Appeals . . ."
General Statutes § 8-6(a) provides in relevant part: "The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter; . . ."
The plaintiff has also commenced a separate appeal concerning the board's interpretation of buildable area as defined in § 2.1 of the regulations. See Jewett City Savings Bank v. Zoning Board of Appeals, Superior Court, judicial district of New London at Norwich, Docket No. CV 07 4105608.
The plaintiff is the owner of the property which is situated at 395 Pond Road, Franklin, Connecticut. As an owner of the property, the plaintiff is aggrieved by the action of the defendant.
One seeking a variance from a municipal zoning board of appeals must satisfy two basic requirements: "(1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinances must be shown to cause unusual hardship unnecessary to the carrying out of the general purposes of the zoning plan." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 207 (1995). "Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance . . . 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." (Internal quotation marks omitted.) Santos v. Zoning Board of Appeals, 100 Conn.App. 644, 648 (2003).
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 View Farms Development. Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269 (1991). The burden of demonstrating that the board acted improperly is upon the party seeking to overturn the board's decision. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988).
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 a full hearing. Bloom v. Zoning Board of Appeals, supra, 206. The question is not whether another decision maker, such as the trial court, would have reached the same decision, but whether the record compiled 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. The substantial evidence rule has been defined as similar to and analogous to the standard to be applied in judicial review of jury verdicts. It must be enough to justify, if a trial were to a jury, a refusal to direct a verdict where the conclusion sought to be drawn is one of fact. Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993).
The plaintiff argues that substantial evidence exists in the record that the variances are in accord with the comprehensive plan and that a literal enforcement of the building area requirement of the regulations would cause a unique hardship because of the existing topography of the lot and its substantial coverage with wetlands. The plaintiff's claim of hardship is countered by the zoning board's assertion that the claimed hardship was self-created because the plaintiff retained the services of a surveyor to subdivide the property, who, in subdividing the property, created a lot which failed to meet the requirements of the regulations. The plaintiff in response to the claim of self-created hardship argues that, since an owner can split a lot into two lots without subdivision approval, there is nothing which prohibits an owner from combining three lots into two lots as was done in this case. The plaintiff further claims that denial of the variances based on self-created hardship is not supported by substantial evidence in the record.
The plaintiff's application for a variance states, "Applicant's unique hardship arises out of the unconventional interpretation of the Buildable Area requirement of the regulations and the existing conditions of the lot subject to this variance. While the lot is in excess of four (4) acres, more than half of the lot (50%) is either wetlands, in the wetland buffer, or access is restricted by wetlands. To afford Applicant reasonable use of its property a variance is required. The grant of the variance is in accordance with the comprehensive plan as the area is residential and is further zoned residential. The hardship is unique to the subject parcel and does not affect other parcels within the zone. Because of the wetlands the only area in which the Buildable Area can be placed is as shown on the plan. Placing the Buildable Area anywhere else would invade wetlands. Thus the variances are warranted. Failure to grant the variances would deprive Applicant of all reasonable use of its property and would be a constructive taking without just compensation."
Even if the court assumed that the plaintiff satisfied its burden of establishing that the variances sought do not substantially affect the comprehensive zoning plan and that adherence to the strict letter of the zoning ordinances would be a unique hardship, the court finds that the hardship, if any, was self-created. "Where the hardship involved 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. Where the claimed hardship arises from the applicant's voluntary act, however, a zoning board lacks the power to grant a variance. The hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance and arises directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved. [S]elf-inflicted or self created hardship is never considered proper grounds for a variance. In Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 300, 429 A.2d 883 (1980), [the Court] stated that [w]here the applicant or his predecessor creates a nonconformity, the board lacks power to grant a variance." (Citations omitted; internal quotation marks omitted.) Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39-40 (1982). In Pollard, the alleged hardship was the failure to meet the lot width requirements for the purpose of constructing a single-family house which was caused by a surveying error and the Supreme Court stated, "[t]he fact that the surveyor . . . committed the error which resulted in the hardship is not critical." Id., 41.
The record reveals that any hardship the plaintiff suffered in this case was due to the plaintiff's error or the error of one employed by the plaintiff and does not arise from the application of the zoning regulations themselves. The plaintiff acquired three irregular and vaguely described parcels of land at a foreclosure sale. The plaintiff then had the parcels surveyed. Following the survey, the plaintiff sold a portion of the parcels, leaving the plaintiff with approximately four acres, the property which is the subject of this variance application. Therefore, the plaintiff created a nonconforming lot when the plaintiff hired the surveyor to subdivide the parcels because the plaintiff was left the property which did not meet all the requirements of the regulations to construct a residence on a rear lot. Where the applicant or his predecessor creates a nonconformity, the board lacks power to grant a variance. Johnny Cake, Inc. v. Zoning Board of Appeals, supra, 180.
Based on the foregoing, the court finds that any hardship claimed by the plaintiff was self-created. Accordingly, the decision of the Franklin zoning board of appeals is affirmed and the appeal is dismissed.