Opinion
No. CV 05 4007817 S
December 8, 2005
MEMORANDUM OF DECISION
On November 22, 2004, the defendant Vaugh C. Knowles filed an application with the Guilford zoning board of appeals (board) seeking a variance from § 273-24, table 3, items 2 and 3 of the Guilford zoning regulations to allow the subject property to be divided into two lots. (Return of Record [ROR], Item 1.) The board conducted a public hearing regarding the application on January 26, 2005. (ROR, Items 20 and 23.) At the hearing, the board voted unanimously to grant the application. (ROR, Items 20 and 23, pp. 1 and 23.) The plaintiffs, Charles Johnson, Jr. and Maika Johnson, appeal from the board's decision.
The variance application listed Gary Knowles, Kenneth Knowles, Helen Knowles Jacobson and Vaughn Knowles as owners of the property. (Return of Record [ROR], Item 1.) Vaughn Knowles was appointed agent in connection with the processing of the variance application. (ROR, Item 11.) Further, as Vaughn Knowles is the only owner specifically named as a defendant in the present action and was the applicant for the variance at issue, he will hereinafter be referred to as Knowles.
Section 273-24 of the Guilford zoning regulations provides in relevant part that "[t]he requirements shown in Table 3 shall apply to the lot area of land surface and to the location and bulk of buildings and other structures in the following districts . . . Residential R-1 District." Table 3, item 2 of the Guilford zoning regulations provides in relevant part that "[e]ach lot created by the division or acquisition of land . . . shall be of such shape that a square with the following number of feet on each side will fit the lot . . ." The table lists the number of feet so required in an R-1 district as "80." Table 3, item 3 of the Guilford zoning regulations provides in relevant part that in the R-1 district, "[e]ach lot shall have a frontage of the following number of feet or more on a street, said frontage to be a minimum of 50 feet in depth . . ." The table lists the number of feet so required in an R-1 district as "80."
General Statutes § 8-8 governs an appeal from a zoning board of appeals to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
In their appeal, the plaintiffs allege that they own land within one hundred feet of the property involved. A plaintiff's ownership of "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" gives it the right to appeal a decision of a municipal zoning commission to the Superior Court. See General Statutes § 8-8(a)(1) and (b). At trial on November 7, 2005, the plaintiffs introduced uncontroverted testimony and a certified copy of a deed demonstrating that they own property located within 100 feet of the subject property. (Plaintiffs' exhibit 1.) From the facts alleged, and from the facts adduced at trial, the court finds that the plaintiffs are statutorily aggrieved for the purpose of bringing this appeal.
SCOPE OF REVIEW
"The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal . . . Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations . . . It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Citations omitted; internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).
"When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). The board's stated reason for granting the variance application was that "[t]he crossfire of the regulations creates a specific hardship for this property. Each lot will be an adequate size." (ROR, Item 19.) Accordingly, this court will confine its search of the record to determining whether the record contains substantial evidence in support of that reason.
DISCUSSION
The plaintiffs appeal on the grounds that "[i]n granting the application, the board acted illegally, arbitrarily and in abuse of discretion vested in it in that there was no undue hardship to warrant the granting of the variance." (Appeal, ¶ 5.) In support of their appeal, they contend that section 273-3 of the Guilford zoning regulations expressly prohibits the relief granted. They further argue that the "cross-fire" of regulations is not a valid basis for granting a variance and that Knowles has not established that he is eligible to make such a claim. The court will address each of these arguments to determine whether the board's decision is supported by substantial evidence in the record.
A Whether § 273-3 of the Guilford Zoning Regulations Prohibits the Issuance of the Variance
The plaintiffs argue that, by granting a variance from the lot width and shape requirements of § 273-24 of the Guilford zoning regulations, the board has endorsed the creation of two non-conforming lots. They contend that this action is expressly prohibited by § 273-3 of Guilford zoning regulations, which requires conformity with the regulations. They argue that since Knowles did not seek a variance from § 273-3 of Guilford zoning regulations, that section renders the board's actions "arbitrary and capricious, beyond its authority, impermissible under the [r]egulations, and an improper grant of relief not requested." (Plaintiffs' memorandum, pp. 8-9.)
Section 273-3 of Guilford zoning regulations provides in relevant part that "[n]o lot or land shall be subdivided . . . so as to . . . [m]ake said lot or land nonconforming . . ."
The defendants counter that § 273-3 of the Guilford zoning regulations is merely a general statement regarding land use and that the board is empowered by General Statutes § 8-6(a)(3) to vary the application of the zoning regulations. They further maintain that the Guilford zoning regulations acknowledge that authority. They also contend that a variance, by definition, allows an owner to use one's property in a manner proscribed by the zoning regulations. Accordingly, they argue that it is not necessary to seek a variance from § 273-3 of the zoning regulations because such a requirement would negate the existence and statutory authority of the board. Consequently, they argue, the board's decision was not improper.
The defendant erroneously refers to General Statutes § "8-6(3)" in its memorandum. The court notes that the section referred to is properly cited as General Statutes § 8-6(a)(3).
Section 273-3 of the Guilford zoning regulations does not prohibit the issuance of the variance. General Statutes § 8-6(a)(3) provides in relevant part that "[t]he zoning board of appeals shall have the following powers and duties to determine and vary the application of the zoning . . . regulations . . ." Additionally, § 273-107 of the Guilford zoning regulations provides in relevant part that "[t]he [board] shall have all of the powers and duties prescribed by . . . the general statutes . . ." Despite the general requirement in § 273-3 of the zoning regulations that lots cannot be subdivided so as to make them nonconforming, therefore, the regulations expressly incorporate the authority to issue variances in accordance with the General Statutes. Moreover, "[a] variance is authority granted to the owner to use his property in a manner forbidden by the zoning regulations." (Internal quotation marks omitted.) Reid v. Zoning Board of Appeals, 235 Conn. 850, 857, 670 A.2d 1271 (1996). Consequently, the appeal is not sustained on the ground that § 273-3 of the Guilford zoning regulations expressly prohibits the relief granted.
B Whether the Record Contains Substantial Evidence in Support of the Board's Determination that the Application Meets the Requirements for a Variance
The plaintiffs argue that the defendant board's primary justification for its approval of the variance application, that a "crossfire of the regulations creates a specific hardship for this property"; (ROR, Item 19); is without merit. They contend that no regulatory crossfire exists because Knowles did not pursue other permissible alternatives with the Guilford planning and zoning commission (commission) to create an interior lot. They argue that Knowles could have addressed the concerns raised by the commission and returned to the commission with plans addressing the commission's concerns. They maintain that the commission's suggestion that Knowles examine other alternatives was not a mandate to seek a variance, but a suggestion that he examine other ways to subdivide the property. They contend that a regulatory crossfire does not exist because Knowles did not attempt to demonstrate the viability of a proposal that would be permitted under the zoning regulations by revising its original application to the commission.
Prior to filing an application for a variance with the board, Knowles made an application to the commission seeking to create an interior lot on the property at issue. (ROR, Item 3.) That application was denied on November 3, 2004, "based upon a finding that the application has not adequately addressed the issue of compatibility with the historic neighborhood as required by [§]273-80F [of the Guilford zoning regulations] and has not provided architectural plans as required in order to evaluate this issue . . ." (ROR, Item 3.)
Additionally, the plaintiffs argue that the application does not meet the requirements of a variance. They note that the Supreme Court has "interpreted General Statutes . . . § 8-6 to authorize a zoning board of appeals to grant a variance only when two basic requirements are satisfied: (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 out of the general purpose of the zoning plan." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 207, 658 A.2d 559 (1995). They contend that contrary to the defendants' argument, the comprehensive zoning plan consists of the zoning regulations and the zoning map and that the existing street scape is not the comprehensive plan. They also maintain that the division of the subject property into two nonconforming lots would not enhance the comprehensive plan and is expressly proscribed by the zoning regulations.
The plaintiffs also argue that the hardship requirement must be satisfied by establishing a legally cognizable hardship, that is, a hardship based on the property conditions that is neither personal in nature nor self-created. They note that "[f]inancial considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations to the property greatly decreases or practically destroys its value for any of the uses to which it could reasonably be put and where the regulations, as applied, bear so little relationship to the purposes of zoning that as to particular premises, the regulations have a confiscatory or arbitrary effect." (Internal quotation marks omitted.) Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988). They argue that there is no evidence to indicate that the application of the zoning regulations greatly decreases or practically destroys the value of the existing lot. Finally, the plaintiffs argue in their supplemental brief that the case of Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 427 A.2d 1346 (1980), relied upon by defendant, is legally and factually distinguishable from this case. They contend that the variance granted in Whittaker implemented the town's comprehensive plan because the road extension that would divide the lot into two lots had been contemplated many years earlier. They maintain that the variance in this case, by contrast, impairs the comprehensive plan and is illegal.
The defendants argue that the crossfire of regulations is a hardship that is unique to the property at issue and, therefore, is a proper basis for granting the variance. They contend that Knowles' application for an interior lot before the [p]lanning and [z]oning commission was adamantly opposed, regardless of the kind of structure proposed. They argue that the specific hardship is different in kind from that generally affecting other properties in the same zone given the opposition to the application for an interior lot before the planning and zoning commission. They also admit that the existing streetscape is not the entire comprehensive plan, but contend that it is a part of that plan and that the subdivision compliments both the entire comprehensive plan and the neighborhood. They argue that division of the lot as proposed by the variance application would better preserve the pattern of development in the neighborhood and that each proposed lot will have a greater total area than most of the other lots in the area. They contend that when the commission made its decision and recommendations, they had before them maps showing the existing conditions, the proposed conditions and an alternative proposal. They maintain that when the commission suggested considering alternatives, therefore, the only alternative way to subdivide the property was the alternative proposal before the commission. Additionally, they argue that the hardship was not self-created, but arose from the application of the zoning regulations in a manner unique and peculiar to this piece of property.
The defendants also argue the facts of this case are similar to those of Whittaker v. Zoning Board of Appeals, supra, 179 Conn. 650, in which the Supreme Court upheld the decision of the zoning board of appeals of Trumbull to grant a variance of the lot site requirements of the Trumbull zoning regulations to permit the subdivision of a parcel of land. They argue that the only issue is whether Knowles will divide his property by creating an interior lot or by the method proposed in the variance application. They maintain that the variance application will not substantially affect the comprehensive plan since the lots will conform to all other zoning requirements and the board conditioned its approval by limiting the minimum floor area and lot coverage. They contend that since they have demonstrated a unique hardship created by the zoning regulations and that the proposed division is in conformity with the comprehensive plan, the granting of the variance was proper and should not be disturbed.
"The power of the board to grant a variance should be used only where a situation falls fully within the specified requirements . . . Thus, the power to grant a variance should be sparingly exercised." (Internal quotation marks omitted.) Reid v. Zoning Board of Appeals, supra, 235 Conn. 857. "An applicant for a variance must show that, because of some peculiar characteristic of his 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 . . . Accordingly, [the Supreme Court has] interpreted General Statutes . . . § 8-6 to authorize a zoning board of appeals to grant a variance only when two basic requirements are satisfied: (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 out of the general purpose of the zoning plan." (Citations omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 207.
Although the board may have had substantial evidence before it to support its finding that the proposed variance did not affect substantially the comprehensive zoning plan, it is not necessary to address this issue because, as discussed infra, the record does not contain substantial evidence that the hardship requirement has been met. To justify the issuance of a variance, the record must contain substantial evidence of an "unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 207. "[General Statutes § 8-6] provides that the board may grant variances 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 . . . To support a variance, therefore, 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 the property owner's control." (Internal quotation marks omitted.) Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, 569, 785 A.2d 601 (2001).
"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.
The desire to subdivide property into [two] lots is a voluntary hardship created by the applicant requiring denial of a variance . . . Where the claimed hardship arises from the applicant's voluntary act . . . a zoning board lacks the power to grant a variance." (Citations omitted; emphasis added; internal quotation marks omitted.) Dupont v. Zoning Board of Appeals, 80 Conn.App. 327, 330, 834 A.2d 801 (2003).
The facts of the current case are analogous to Dupont v. Zoning Board of Appeals, supra, 80 Conn.App. 327. In Dupont, the plaintiff sought to subdivide his property into two lots, but the lot at issue only contained 30,000 square feet and the zoning regulations required a minimum of 18,000 square feet per lot. Id. at 328. In reversing the trial court's determination that a sufficient hardship existed, the court stated that "[i]f [it] were to entertain the proposition that a property owner has a right to subdivide his property simply because he owns it, then [they] would be undermining the policy identified by our Supreme Court that variances are to be granted only in limited circumstances." Id. at 332. "`[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.'" Id. quoting Pleasant View Farms Development, Inc., v. Zoning Board of Appeals, 218 Conn. 265, 270-71, 588 A.2d 1372 (1991).
In the present case, Knowles's application to the board claimed that the "denial of the applicant's special permit for an interior lot, the reasons for the objections thereto, the concerns raised to preserve the pattern of lot layouts on High Street and the suggestion of the [p]lanning and [z]oning [c]ommission to consider alternative ways to subdivide the applicant's property create a hardship specific to the property." (ROR, Item 2.) When asked to articulate the hardship at the hearing before the board, Knowles' attorney stated, in part, that "[w]e can go back to planning and zoning with a new scaled lot and to what you can put on it, meeting all the requirements and we will have a two lot subdivision, so it's not so much the issue of whether or not the lot is [subdivided], the question really is whether we can have an interior lot or we have two lots that front on High Street." (ROR, Item 23, pp. 20-21.) The hardship claimed was that Knowles was "caught between two different sets of regulations within the zoning regulations" and that it would be unfair to deny both applications. (ROR, Item 23, p. 21.) Knowles stated at the hearing before the board that he believed the property was meant to be a double lot and that someone should benefit from it. (ROR, Item 23, p. 20.)
As the applicant's desire to subdivide the property was not a legally cognizable hardship, the board lacked the authority to grant the variance. Dupont v. Zoning Board of Appeals, supra, CT Page 15809 80 Conn.App. 330. Additionally, the defendants' argument that the property will be subdivided one way or the other can only support a finding that a sufficient hardship does not exist. The commission had denied the application for an interior lot "based upon a finding that the application has not adequately addressed the issue of compatibility with the historic neighborhood as required by 273-80F and has not provided architectural plans as required in order to evaluate this issue. The commission recommends that the applicant develop house plans to show size and mass of a proposed house so that this issue can be appropriately addressed. The commission further suggests that the applicant consider alternative ways to subdivide this property so as to preserve the pattern of lot layouts reflected along this street and in the neighborhood." (ROR, Item 3.) Although the commission did suggest that Knowles consider alternative ways to subdivide the property, it did not foreclose the possibility of returning to it with the recommended plans to allow it to evaluate the proposed interior lot's compatibility with the historic neighborhood. Since the commission did not foreclose the possibility of returning to it with a complete application for an interior lot, the regulatory crossfire hardship claimed by Knowles and found by the board is not supported by the record.
Section 273-80F of the Guilford zoning regulations provides in relevant part that "[t]he establishment of a special permit use shall not have a significant adverse effect on a historic property or historic district."
Moreover, Whittaker v. Zoning Board of Appeals, supra, 179 Conn. 650, a case relied upon by the defendants, is distinguishable from the present case. In Whittaker, the Trumbull zoning board of appeals granted a variance allowing the applicant to subdivide his 1.79 acre property into two lots where a minimum one-acre lot was required. Id. at 652. The variance was granted upon the condition that an existing street, Quail Trail, be extended through the property in order to connect that street with Foster Avenue, which was part of an existing subdivision. Id. It had been the intention of the planning and zoning commission to extend Quail Trial through the subject parcel to connect with Foster Avenue when it approved that sub division approximately eight years earlier. Id.
In examining whether the proposed variance would affect substantially the comprehensive plan, the Supreme Court found that the Trumbull zoning board of appeals was justified in finding that the variance would be in harmony with that plan. Id. at 656. The court stated that "[i]f the 1.79 acre parcel had been developed as a single lot as the plaintiffs suggest" the comprehensive plan would have been impaired because such development would have prevented the commission from improving traffic flow and thereby reduce congestion and facilitate the delivery of vital health and protective services." Id. at 656-57. In addition, the fact that the zoning and planning commission originally intended to extend Quail Trail bolstered the finding that the variance was not in conflict with the town's comprehensive plan. Id. at 657.
With regard to the hardship, the court found that the applicant "was presented with a genuine hardship beyond his control and not of his or the record owner's making." Id. at 658. The parcel of land at issue had been designated as the location through which Quail Trail would be extended when the subdivision was approved. Id. at 658-59. The applicant applied for a variance long after this decision was made and the approval for the subdivision was conditioned upon the extension of Quail Trail. Id. at 659. The court concluded that "under the circumstances of this case, the extension of Quail Trial can hardly be said to be the voluntary act of [the applicant]. Therefore, the board was legally justified in concluding that a strict interpretation of the zoning regulations would result in undue hardship to him." Id. at 661.
The facts in the present case are substantially different. Under the circumstances of this case, there is no evidence in the record to suggest that Knowles was presented with a hardship beyond his control and not of his making; there is no evidence of any administrative body designating the property at issue for any additional use, such as the extension of a road. Additionally, the board's restriction of the building area on the new lot is distinguishable since it appears to have nothing to do with a preexisting plan. (ROR, Item 23, p. 23.) Moreover, although the proposed subdivision of the lot was found not to affect substantially the comprehensive zoning plan, it can hardly be said to "reduce congestion and facilitate the delivery of vital health and protective services." Id. at 657.
Accordingly the appeal, therefore, is sustained on the ground that the board lacked the authority to grant the variance based on the specified hardship.