Opinion
No. CV-03-0473908 S
July 10, 2003
MEMORANDUM OF DECISION
The plaintiff, JLO Paddock, LLC, is the owner of property know as 440 South Colony Road (Route 5) in Wallingford (Exhibit 1).
The parcel, which consists of approximately .64 acres, is situated in a CB-12 zone, and is bounded in part by three public highways: South Colony Road, Mackenzie Avenue, and Allen Avenue (ROR 8g).
It is presently used as a new vehicle temporary storage lot, in connection with a car dealership operated by Executive Dodge, Inc.
The plaintiff, Executive Dodge, Inc. applied to the Town of Wallingford Zoning Board of Appeals for a variance of the landscape requirements applicable to property in a CB-12 Zone (ROR 1).
Section 6.14.C.2 of the Wallingford Zoning Regulations provides:
. . . there shall be a landscaped strip equal to at least 50 percent of the required front yard . . . along and contiguous to the front line of the property.
The regulations require 40 feet for a front yard in a CB-12 Zone (ROR 12, p. 100), thus mandating a 20-foot landscaped strip for the highways abutting 440 South Colony Road.
An examination of the history of the subject property reveals that the Wallingford Planning and Zoning Commission approved the use of 440 So. Colony Road for new vehicle temporary storage in 1994.
A site plan, approved by the Wallingford Planning and Zoning Commission in November of 1994, showed a 20-foot landscaped buffer area along Mackenzie Avenue, South Colony Road, and Allen Street, as required by the zoning regulations (ROR 8a).
The provisions of § 6.14.C.2 of the zoning regulations have not changed since the approval of the site plan.
No variance was requested from the Defendant Town of Wallingford Zoning Board of Appeals prior to the 1994 site plan approval.
On July 24, 1998, the assistant town planner, Thomas Talbot, wrote to Executive Dodge, Inc. (ROR 8b (e)), informing the dealership that the pavement portion of 440 South Colony Road was encroaching upon the area required to be landscaped.
On August 11, 1998, a representative of Executive Dodge, Inc. acknowledged the encroachment (ROR 8b (d)), and submitted a revised site plan showing the existing pavement (ROR 8g).
On January 15, 1999, the assistant town planner sent a letter to Executive Dodge, Inc. (ROR 8b (c)), notifying the plaintiff, through John Orsini, of the violation of § 6.14.C.2 of the zoning regulations.
The letter requested removal of the pavement from the areas which were required to be landscaped.
No appeal to the Wallingford Zoning Board of Appeals was taken, following receipt of the January 15, 1999 letter, pursuant to § 8-7 of the General Statutes.
"An appeal may be taken to the zoning board of appeals by any person aggrieved . . . and shall be taken within such time as is prescribed by rule adopted by said board, or, if no such rule is adopted by the board, within thirty days . . ."
In its November 22, 2002 application for a variance, the plaintiff, Executive Dodge, Inc., claimed that 440 South Colony Road was subject to unreasonable hardship because: "This property is bounded by three public highways which increase the area of landscaping setback. It is the only property in that entire zone impacted by three streets simultaneously as well as being irregularly shaped (ROR 1)."
The request for a variance was the subject of a public hearing held on January 21, 2003 (ROR 9).
At the hearing, the Wallingford Zoning Board of Appeals received communications from the town planner, and the Wallingford Planning and Zoning Commission (ROR 9, p. 1-2), opposing the request for a variance.
The Planning and Zoning Commission went on record in opposition, citing the plaintiff's ability to comply with the regulations, as demonstrated by the 1994 site plan, and further expressed its opposition to the granting of landscaping variances for properties located adjacent to Route 5.
The plaintiff argued that the failure to grant a variance would result in a substantial decrease in the number of parking spaces which the property could accommodate.
Following the public hearing, the defendant, Town of Wallingford Zoning Board of Appeals, voted, 4-1, to deny the requested variance.
The board gave two reasons in support of its decision (ROR 1, p. 2; ROR 10; ROR 9, p. 16):
1. No hardship was shown.
2. For aesthetic reasons.
Notice of the decision was published (ROR 11), and this appeal followed.
AGGRIEVEMENT
The plaintiff, JLO Paddock, LLC, is the owner of the property for which the landscaping variance was requested, and has been the owner at all times during which this appeal has been pending (Exhibit 1).
The plaintiff, Executive Dodge, Inc., entered into a 15-year lease of the property dated December 12, 1996 (Exhibit 2).
Executive Dodge, Inc. is in possession of 440 South Colony Road, and uses the property for the storage of new vehicles.
Both plaintiffs claim to be aggrieved by the decision of the Town of Wallingford Zoning Board of Appeals.
Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an appeal. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996); Lewin v. United States Surgical Corporation, 21 Conn. App. 629, 631 (1990).
The question of aggrievement is one of fact. Hughes v. Town Planning Zoning Commission, 156 Conn. 505, 508 (1968).
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 concern of all of the members of the community as a whole, and 2) the party must show that the specific personal interest has been specifically and injuriously affected by the action of the agency. Hall v. Planning Commission, 181 Conn. 442, 444 (1980); Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47 (1984).
The party having a specific personal and legal interest must maintain that interest throughout the course of the appeal. Goldfield v. Planning Zoning Commission, 3 Conn. App. 172, 177 (1985); Craig v. Maher, 174 Conn. 8, 9 (1977).
The owner of property which forms the subject matter of an appeal is aggrieved. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308 (1991); Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530 (1987).
A lessee is also an aggrieved party, entitled to maintain an appeal. Primerica v. Planning Zoning Commission, 211 Conn. 85, 94 (1989); R R Pool Home, Inc. v. Zoning Board of Appeals, 43 Conn. App. 563, 570 (1996).
It is therefore found that both the plaintiff JLO Paddock, LLC and the plaintiff, Executive Dodge, Inc., are aggrieved by the decision of the Town of Wallingford Zoning Board of Appeals, denying the requested variance.
STANDARD OF REVIEW
The powers of a municipal zoning board of appeals are derived from § 8-6 (3) of the General Statutes, which gives the board broad authority:
(3) . . . to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with the general purpose and intent, and 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 secured.
In discharging its responsibilities, 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 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).
An agency decision must be upheld, if it is supported by substantial evidence. Bradley v. Inland Wetlands Agency, 28 Conn. App. 48, 52 (1992). Substantial evidence is enough evidence to justify, if the trial were to a jury, a refusal to direct a verdict where the conclusion sought to be drawn is one of fact. Sampeiri v. Inland Wetlands Agency, 226 Conn. 579, 599 (1993).
The credibility of witnesses, and the determination of issues of fact, are matters committed solely to the province of the administrative agency. 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, as here, a zoning board of appeals, as required by statute has stated reasons for its decision, a reviewing court need only determine if any reason given in support of the action is supported by the record. Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn. App. 53, 56-57 (1988).
Section 8-7 ". . . 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 the decision . . ."
The granting of a variance is reserved for unusual or exceptional circumstances. Bloom v. Zoning Board of Appeals, supra, 206-07.
One seeking a variance must satisfy two basic requirements: 1) the variance must be shown not to effect 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 out of the general purposes of the zoning plan. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368 (1988); Smith v. Zoning Board of Appeals, 174 Conn. 323, 326 (1978).
Proof of exceptional difficulty or unusual hardship is a condition precedent to the granting of a zoning variance. Point O'Woods Assn., Inc. v. Zoning Board of Appeals, 178 Conn. 364, 368 (1979).
AESTHETIC CONDITIONS ARE NOT A VALID REASON FOR DENIAL OF A VARIANCE
The Wallingford Zoning Board of Appeals justified its refusal to grant a variance to the plaintiff, Executive Dodge, Inc., citing "aesthetic" considerations.
Such considerations, standing alone, are insufficient to support the denial of a variance.
Allowing 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 (2nd ed.), § 4.48, p. 132 (1999). 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).
Furthermore, it is difficult to imagine a situation in which a minimal decrease in a mandated landscaping buffer would appreciably affect the aesthetic character of the CB-12 zone, or undermine the comprehensive plan, as contained in the regulations themselves.
The defendant Wallingford Zoning Board of Appeals cannot prevail, based upon its denial of the requested variance for "aesthetic reasons."
THE RECORD SUPPORTS DENIAL OF THE VARIANCE BECAUSE HARDSHIP WAS NOT PROVEN
The Wallingford Zoning Board of Appeals cited the lack of a legal hardship, in support of its denial of the requested variance.
The board had before it, at the hearing, information concerning the use of the property for new vehicle storage, and of ongoing zoning violations.
The record reveals that the parcel was used for new vehicle storage beginning in 1994, when the Wallingford Planning and Zoning Commission approved the use, and a site plan depicting a landscaping buffer of 20 feet, as mandated by the ordinance.
No change in the ordinance has occurred since 1994, and no variance was requested by either plaintiff until the action which precipitated this appeal.
The Town of Wallingford Zoning Board of Appeals was justified in concluding that the property can be used in accordance with the zoning regulations, without the necessity of a variance.
At the hearing, it was indicated that the Planning and Zoning Commission had determined to inject itself into the application, by formally opposing the granting of the variance.
At the public hearing, the opinion of the commission concerning the granting of any landscaping variances involving properties located on Route 5, was received.
The annoyance of the Planning and Zoning Commission is understandable, given the violation of the site plan submitted and approved in 1994.
However, notwithstanding its irritation directed toward the plaintiffs, the commission's attempt to impose a blanket prohibition on variances along Route 5, is inappropriate, and invades the province of the defendant Town of Wallingford Zoning Board of Appeals.
While the planning and zoning commission is charged with adopting and amending the zoning regulations, it is the province of the zoning board of appeals alone, to determine whether those regulations should be varied, based upon exceptional difficulty or unusual hardship.
The task committed by statute to the zoning board of appeals necessarily involves a case-by-case analysis, since any hardship must arise out of the application of the zoning regulations to a particular property. Norwood v. Zoning Board of Appeals, 62 Conn. App. 528, 533 (2001).
However, on the record presented, the inability of the zoning board of appeals to find hardship is supported by substantial evidence, notwithstanding the overreaching by the Wallingford Planning and Zoning Commission.
Although the shape of a lot and the location of structures may be considered in determining whether a variance should be granted, it cannot be said that the defendant Town of Wallingford Zoning Board of Appeals was required to find hardship, as a matter of law.
Mere discontent with the use of property does not constitute exceptional difficulty or unusual hardship. Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662 (1965).
Because the record contains substantial evidence to support a finding that no hardship was present, a trial court should not substitute its judgment for that of the zoning board of appeals. Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 547 (1999).
Compliance with the mandated buffer will limit the number of vehicles which may be parked on the subject property.
However, there can be no claim that the effect of the regulation is confiscatory, or that the present use of the property cannot continue
Financial loss or potential financial advantage to an applicant cannot form the basis of a legal hardship. Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239 (1972).
Although the defendant Town of Wallingford Zoning Board of Appeals might have reached a contrary conclusion, its decision is amply supported by substantial evidence in the record, and should not be disturbed.
The appeal of the plaintiffs, JLO Paddock, LLC and Executive Dodge, Inc., is DISMISSED.
Radcliffe, J.