Opinion
No. CV-05-4012433 S
July 14, 2006
MEMORANDUM OF DECISION
STATEMENT OF APPEAL
The plaintiff, Deborah Judelson, appeals from a decision of the defendant Madison zoning board of appeals (ZBA) in which the ZBA granted the defendants Robert Stefanowski and Amy Stefanowski (hereinafter Stefanowskis) a variance to: (1) accommodate an air conditioning "pad" that had already been constructed by the Stefanowskis, and (2) restore a porch roof, with the accompanying enlargement of a nonconforming structure.
FACTUAL BACKGROUND
On May 13, 2005, the Stefanowskis submitted an application to the ZBA, seeking a coverage and setback variance in order to allow them to construct a new swimming pool and deck. (Return of Record [ROR], No. 6a.) They also sought a variance to accommodate an air conditioning concrete pad that had already been constructed by the Stefanowskis and also to repair and rebuild a covered one-story porch and the associated enlargement of a nonconforming structure. These requests were made concerning real property known as 61 Soundview Avenue. (ROR, No. 6a.) On June 7, 2005, the ZBA, after giving the required notice, conducted a public hearing on the Stefanowskis' application. (ROR, No. 1.) At that hearing, various individuals spoke concerning their positions on the Stefanowskis' application. (ROR, No. 1.) During the course of the hearing, the Stefanowskis abandoned their requests for coverage and setback variances for the pool and deck. (ROR, No. 1, p. 41.) At that June 7, 2005 meeting, the ZBA unanimously voted to approve the variances for the air conditioning pad and the porch roof restoration. (ROR, No. 1, pp. 46-47.) Subsequently, the plaintiff filed this appeal, naming as defendants the ZBA and the Stefanowskis. Briefs have been filed by all parties. On March 21, 2006, this court conducted the trial in this matter.
JURISDICTION
General Statutes § 8-8 governs an appeal from a zoning board of appeals to the Superior Court. A plaintiff may take advantage of a statutory right of appeal only by complying strictly with the statutory provisions governing that right. Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
I. Aggrievement
"Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d. 883 (2003).
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Emphasis added; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). "Aggrievement is an issue of fact . . . and credibility is for the trier of the facts." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
There are two types of aggrievement — statutory aggrievement and classical aggrievement.
Statutory aggrievement is outlined in General Statutes § 8-8(a)(1). That section provides, in part, that "`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." In the complaint, the plaintiff alleges that she is "both classically and statutorily aggrieved by the decision of the ZBA in that (1) she owns land within 100 feet of the Stefanowskis' property and (2) her land is substantially affected by the decision of the ZBA." At the trial held on March 21, 2006, the attorney for the plaintiff submitted into evidence a deed evincing Deborah Judelson's ownership interest in Lot #4, on a map entitled `The Highlands, Madison, Conn.-Property of F.B. Griffin and L.E. Korper, Hartford, Conn." (Plaintiff's Exhibit A.) This lot, also known as 69 Soundview Avenue in Madison, abuts the subject property. Accordingly, the court finds that the plaintiff owns land that abuts the land involved in the decision of the ZBA in this case and that the plaintiff, therefore, has pleaded and proven statutory aggrievement.
As the court finds that the plaintiff is statutorily aggrieved pursuant to General Statutes § 8-8(a)(1), it is not necessary for the court to address the issue of whether the plaintiff is classically aggrieved.
2. Timeliness and Service of Process
General Statutes § 8-8(b) provides that "[an] appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes."
General Statutes § 8-8(f) provides that "[s]ervice of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows: . . . (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57. Such service shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the clerk of the municipality or the chairman or clerk of the board a necessary party to the appeal."
Notice of the decision was published in the Shore Line Times, a newspaper of general circulation in the Madison area, on June 15, 2005. (ROR, No. 6x.) On June 28, 2005, this appeal was commenced by service of process on Robert Stefanowski and Amy Stefanowski, at their usual place of abode, and on the ZBA, by leaving four true and attested copies of the complaint, appeal, citation and recognizance with the town clerk. Accordingly, the court finds that this appeal was commenced in a timely manner and that service was made upon the properparties.
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, supra, 259 Conn. 420. However, "[w]here a zoning board of appeals does not formally state the reasons for its decision . . . the trial court must search the record for a basis for the board's decision." (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 454, 853 A.2d 511 (2004). Accordingly, as the record does not contain a formal, collective statement of the reasons for the ZBA's decision, the court must search the record for an adequate basis for that decision.
DISCUSSION
In the complaint, the plaintiff alleges that in approving the variance application, the ZBA acted illegally, arbitrarily and in abuse of its discretion in several ways. Although the plaintiff has alleged several grounds for this assertion, it has not briefed all of those grounds. "Issues that are initially raised in a zoning appeal which are not briefed by the plaintiff will be considered abandoned and will not be decided." Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 109 n. 3, 682 A.2d 1070, cert. denied, 239 Conn. 949, 686 A.2d 123 (1996). Accordingly, the court will address only those issues that were adequately briefed or argued.
In her brief, the plaintiff first argues that the ZBA granted the variance without a proper showing of a legally sufficient hardship. She maintains that any hardship relating to the air conditioner pad is self-created and that the purported hardship that formed the basis for the ZBA's decision to grant a variance allowing the reconstruction and reconfiguration of the porch and porch roof was based merely on design preference. She also argues that the Stefanowskis are bound by the "purchaser with knowledge rule," which, she maintains, bars a property owner who purchased property with knowledge of the applicable zoning restrictions from obtaining a variance of those restrictions. She contends that the Stefanowskis had constructive knowledge of the zoning regulations and the nonconforming nature of their property at the time they purchased the property and cannot now claim that application of the regulations to their property presents a hardship. These issues will be addressed in turn.
AIR CONDITIONER PAD
The first issue which is the subject matter of this appeal concerns the variance granted by the ZBA to allow a 9.25 square foot concrete air conditioner pad that had been installed by a contractor hired by the Stefanowskis. The record demonstrates that this concrete pad was installed without the knowledge that the zoning regulations of Madison required a variance because of the increase in lot coverage. (ROR, No. 1, p. 1: Duo Dickenson; p. 6: Robert Stefanowski.) This court affirms the unanimous decision of the ZBA granting the variance.
The court notes that at the hearing held before the ZBA, Bruce Judelson, the plaintiff's husband, stated, "My wife was there when they put [the air conditioner pad] in the first place, next to our property, pointed out to them that they needed to have an approved . . . Um, to be honest, I'm not objecting to it." (ROR, No. 1, p. 20.) Although this statement was made by the plaintiff's husband, rather than the plaintiff, the plaintiff was present at the hearing and also addressed the ZBA; (ROR, No. 1, p. 28); and did not contradict, negate, or oppose her husband's statements. Nevertheless, as the plaintiff herself did not unequivocally waive her right to appeal the approval of the variance as to the air conditioner pad, the court considers her claim that the variance was improperly granted.
The plaintiff argues that the variance of the building coverage limitation was based on a self-created hardship in that the 9.25 square foot air conditioner pad was installed prior to submission of the variance application. She argues that where a property owner has directly hired a contractor and directed that contractor to expand a nonconformity, any purported hardship arising therefrom is self-created.
The ZBA counters that its decision is supported by the record because the variance is consistent with the comprehensive plan, which allows residential houses in this R-2 zone, and the variance application did not propose any change in use. It further contends that the board may approve a reasonable increase to a nonconforming use and the applicant demonstrated a legal hardship. All of the defendants maintain that a hardship has been demonstrated based on the fact that the lot is a nonconforming, undersized lot that predates the current zoning regulations and that, consequently, the changes at issue cannot be made without obtaining a variance. They maintain that the hardship is the Stefanowskis' inability to expand at all for relatively minor, basic housing upgrades and is not based on the fact that the air conditioner pad is already in place.
The court notes that there also has been much discussion by all parties as to the percentage of coverage of the lot and what the percentage was at the time the application was filed by the Stefanowskis. A variance granted in 1983 expanded the allowed coverage of the building lot from 13.25 percent to 14.2 percent. (ROR, No. 6b.) The Stefanowskis in their application stated that the coverage stated that the coverage of the lot was 15 percent and sought to expand the lot to 15 percent. (ROR, No. 6b, p. 3.) It appears in actuality that the lot coverage area, prior to the action of the ZBA was 14.8965 percent of the lot size. The plaintiff in both her both her presentation to ZBA; (ROR, No. 61); and her brief; (at page 5, note 1); makes much of the fact that this increase from 14.2 percent to 14.895 percent was improper and unauthorized. This court will not speculate as to if this is so. Nor was this issue before the ZBA. The 9.25 square foot concrete pad expanded the lot coverage to 14.983 percent. The Stefanowskis asked for and were granted a lot coverage of 15 percent. The pertinent issue, therefore, is not the exact amount of the increase allowed by the variance, but rather, whether the decision to grant the variance was supported by substantial evidence in the record.
As a threshold matter, the court agrees with the defendants that the increase in lot coverage as a result of installation of the air conditioner pad, which was expanded by a factor of 0.00008726, is de mimims. This court will not comment on whether the time and effort expended by all counsel in researching, arguing and briefing this issue is appropriate. It certainly is a waste of judicial resources to have to address the issue of whether the ZBA was correct in allowing a variance for a 9.25 square foot air conditioner pad.
"The [de minimis] doctrine applies only where: (1) a minor deviation from the dimensional uses of a zoning ordinance is sought, and (2) rigid compliance with the zoning ordinance is not necessary to protect the public policy concerns inherent in the ordinance . . . The determination of whether the de minimis doctrine applies requires consideration of both factors." (Citation omitted.) Wine Seller Spirits v. Zoning Board of Appeals, Superior Court, judicial district of Fairfield, Docket No. CV 04 0411900 (March 1, 2006, Owens, J.T.R.) ( 40 Conn. L. Rptr. 814).
Nevertheless, "[n]o Connecticut court has addressed, adopted or recognized the de minimis doctrine." Wine Seller Spirits v. Zoning Board of Appeals, Superior Court, judicial district of Fairfield, Docket No. CV 04 0411900 (March 1, 2006, Owens, J.T.R.) ( 40 Conn. L. Rptr. 814) (declining to apply the doctrine to allow variance of minimum separation distance between sellers of alcoholic beverages). Moreover, "the de minimis nature of the variance does not alleviate the necessity of establishing hardship in granting a variance." Kreitner v. Zoning Board of Appeals, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 91 0037211 (September 17, 1992, Sequino, J.) ( 7 C.S.C.R. 1200). Consequently, the court must consider whether the decision to grant the variance for the air conditioner pad is supported by substantial evidence in the record.
"A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). The Madison zoning regulations limit the extent to which structural nonconformities may be expanded. Section 12.3 of the Madison zoning regulations provides, "No non-conforming use shall be extended or expanded." Section 12.6 of the regulations further provides in relevant part that "[n]o building which does not conform to the requirements of these regulations regarding . . . percentage of lot coverage . . . shall be enlarged unless such enlarged portion conforms to the regulations applying to the district in which it is located."
"It is well established, however, that the granting of a variance must be reserved for unusual or exceptional circumstances . . . 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 . . . 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." (Citations omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206-08.
Accordingly, the court first considers whether the record would support a finding that the variance would not substantially affect the comprehensive zoning plan. The comprehensive plan is found in the zoning regulations themselves. Connecticut Resources Recovery Authority v. Planning Zoning Commission, 225 Conn. 731, 753-54, 626 A.2d 705 (1993). The R-2 district in which the subject property is located permits residential uses. Madison Zoning Regs., § 3.2; (ROR, No. 2, p. 7; No. 3). As noted previously, the increase in lot coverage caused by the installation of the air conditioner pad is merely 9.25 square feet. Moreover, the record shows that the air conditioner "essentially is invisible . . . [A]nd it's the place that is the furthest away from any other neighbor." (ROR, No. 1, p. 1: Dickinson.) The photographs of the area in front of the house where the air conditioner is located show that the air conditioner is completely hidden by shrubbery. (ROR, No. 6T.) Accordingly, the record contains substantial evidence to support a finding that the increase in lot coverage by 9.25 square feet to allow the air conditioner pad would not substantially affect the comprehensive zoning plan.
Next, the court must consider whether the Stefanowskis have established a hardship. As noted, supra, the defendants maintain that the record supports a finding of a hardship because the lot is a nonconforming, undersized lot that predates the current zoning regulations and that, without the variance, the Stefanowskis would not be able to have an air conditioner pad anywhere on their property.
In Stillman v. Zoning Board of Appeals, 25 Conn.App. 631, 596 A.2d 1 (1991), the Appellate Court upheld a zoning board of appeals decision granting a variance for the construction of an addition to a house, allowing an increase of an encroachment upon a side yard setback. In that case, the subject property consisted of a nonconforming half-acre lot located within a zone requiring two-acre lots. As a nonconforming property, the house thereon was located partially within the side yard setback. The lot also contained a nonconforming garage in the southeast corner of the lot, a septic system to the south of the house and a well to the rest of the house. Id., 632-33. Although the board found that the applicant had sought the variance "to construct an addition to her house in order to add a bathroom and a laundry room to the first floor" and that she "proposed to make these renovations because of her advancing age"; id., 633; the Appellate Court held that "[t]he hardship claimed by the defendants arises from the configuration of [the applicant's] lot and the location of the well and the septic system. These conditions are not personal to [the applicant] and would exist no matter who owned the lot." Id., 637. Thus, the court upheld the board's finding of a hardship based upon record evidence demonstrating that the proposed addition, which would increase a preexisting nonconformity, could not have been constructed in any other area of the property without violating the applicable zoning regulations or relocating other existing structures.
In the present case, it is undisputed that the air conditioner pad could not have been installed anywhere on the Stefanowski's property without increasing the lot coverage, which already exceeds the amount of coverage permitted in the zone as a preexisting nonconforming property. Therefore, without a variance, the Stefanowskis would not be able to place an air conditioner pad anywhere on the property. Accordingly, the record would support a finding that adherence to the strict letter of the zoning regulations has been shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan because the house, which was constructed prior to the adoption of zoning regulations in Madison; (ROR, No. 6d; No. 7, p. 47A); already lawfully exceeds the allowable building coverage of 10 percent as a preexisting nonconforming lot and, consequently, without a variance, an air conditioner pad could not be installed anywhere on the property.
The ruling by the ZBA approving the variance as to the air conditioner pad, therefore, is neither unreasonable, arbitrary nor an abuse of its discretion and its decision is reasonably supported by the record.
ROOF PORCH RESTORATIONS
The plaintiff contends that the decision to grant the variance as to the rear setback restriction to allow the reconstruction of the porch roof is not supported by substantial evidence because the purported hardship is based on aesthetics and design preference. She further argues that their architect, Donald Baerman, confirmed that the roof could be reconstructed or repaired without expanding the structure and that the Stefanowski's architect, Duo Dickinson, never stated that the additional height would be necessary to effect the repair or meet building code requirements. She maintains that if the Stefanowskis had decided to retain the original design, a variance would not be needed. She argues that disappointment in the use of property does not constitute exceptional difficulty or unusual hardship.
The defendants counter that the deterioration of an existing nonconforming structure, such as the porch at issue in this case, combined with the nonconforming nature of the lot, constituted a sufficient hardship. The defendants maintain that no change whatsoever could be made without a variance. Further, they contend that the evidence in the record supports its finding that the new roof design with an increase in height was necessary to improve the roof's ability to shed water and to bring the addition into compliance with current building codes and that the existing structure is unsafe, inefficient or otherwise inadequate. They note that the record contains conflicting expert opinions on the subject, but argue that the ZBA acted within its discretion in deciding which expert's opinion to credit. They further note that the plaintiff's expert, Baerman, was not present at the meeting and could not be cross-examined as to the opinion he stated in his letter, while the Stefanowski's expert, Dickinson, was present and testified before the ZBA.
This court affirms the unanimous decision of the ZBA granting the variance.
As part of their application, the Stefanowskis sought to rebuild a covered one-story porch located on the south side of the house. The variance sought was from the provisions of the regulations requiring certain rear and side yard distances and prohibiting the expansion of nonconforming structures to accommodate the roof reconfiguration. "The porch renovations will include new windows, doors, and a roof." (ROR, No. 6f, p. 3.)
The record contains substantial evidence to support a finding of a hardship. At the public hearing, the Stefanowskis' architect, Dickinson, explained the reasons for the proposed renovations to the porch roof. He stated, "The last thing we're asking for, um, is the roof reconfiguration, and that's for several reasons. The first reason is that right now it's leaking and it's rotting and it's not in great shape." (ROR, No. 1, p. 2.) Dickinson elaborated on the new porch by stating that he was proposing a roof with a maximum pitch, in order to keep the water off the roof. (ROR, No. 1, p. 3.) He also stated that even with the maximum pitch, "we're . . . keeping [the roof] under the existing horizontal roof line; and we also want to raise the floor up inside a little bit and we also want to get more light inside the house, so we want to have a broader face. So we are raising the peak from the existing peak here, raising it 4 feet; at the sides, we're lowering the eaves 2 feet. So it does go up higher. There is . . . more mass here, but it's a relatively small triangle of mass. The footprint remains exactly the same. The coverage of this remains the same." (ROR, No. 1, p. 3.) ROR, Nos. 6q, 6r, 6s and 6t all show the roof as it presently exists and as proposed.
Baerman, the architect retained by the plaintiff, submitted a six-sentence letter to the ZBA, in which he gave his opinion concerning the proposed roof reconstruction. (ROR, No. 61.) He stated in that letter, "I am not aware of any reason why the existing configuration of the sunroom cannot be continued. If the existing roof is in good condition, it can be retained, and if the existing roof is not in good condition, it can be replaced with the same configuration." (ROR, No. 61.) The ZBA chose to credit Dickinson and not credit Baerman as they have the right to do, especially given the facts that the sum of Baerman's analysis is that he was unaware of any reason why the present roof could not be replaced with a roof of the same configuration and that he was not present at the hearing for cross examination. "[A]n administrative agency is not required to believe any witness, even an expert, nor is it required to use in any particular fashion any of the materials presented to it so long as the conduct of the hearing is fundamentally fair." (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 597, 628 A.2d 1286 (1993). Accordingly, the record supports the ZBA's determination that Dickinson's statements concerning the need for the proposed porch roof design presented a hardship sufficient to justify the decision to grant the variance.
As this court has noted above, the lot on which the Stefanowskis house sits was lawfully established prior to the adoption of zoning regulations in Madison. The house also predates the zoning regulations and, consequently, is nonconforming. Because of this, the existing porch already lies within the setback area and cannot be reconstructed without a variance which, in turn, requires a showing of a hardship. Thus, as is the case with respect to the air conditioner pad, discussed supra, the hardship that the Stefanowskis claim is not one created by them, but rather one created by the fact that the lot is undersized because of the zoning regulations enacted after the lot was established and the house was built. The ZBA's finding of a hardship, therefore, is supported by substantial evidence in the record. The record also demonstrates that the change in the porch roof configuration would not substantially affect the comprehensive zoning plan. As discussed above in the discussion of the air conditioner pad, the property is located in an R-2 residential zone and the Stefanowskis have not proposed to change the use of the property from residential to any other use. At the public hearing before the ZBA, board members noted that the change sought by the Stefanowskis was minimal and the change in the pitch of the roof would help with drainage. The ZBA then voted unanimously to approve the variance. (ROR, No. 1, pp. 42 to 47). As board member Ron Fiume noted, "I just don't see how changing the roof pitch is a big enough change to the structure on the — it's still well below the uh existing roof. I mean, you know, it's facing the ocean side. It's really a minimal change . . ." (ROR, No. 1, p. 43.) Moreover, as board member Catherine Nelli stated, "they're not increasing the width; they're not increasing anything but some height." (ROR, No. 1, p. 43.) The drawings of the proposed roof reconfiguration support these assertions. They show that the peak of the proposed roof will be approximately four feet higher than the existing roof peak and that the footprint of the porch itself will not change at all. The record, therefore, contains substantial evidence demonstrating that the proposed roof reconfiguration would not affect substantially the comprehensive zoning plan. One more issue needs to be addressed. At the hearing, the plaintiff's husband, Bruce Judelson, stated, "on the subject of the roof, if you look at the very last page, there are some pictures. These pictures were taken out of uh rooms, three different bedrooms in our house. Uh, and they're pictures looking uh, toward the east, towards Hammonasset; and you can see in these pictures; and I have sort of put hatch marks across the areas uh roughly where that roof would be [INAUDIBLE] Uh, and that and that would be the extent to which the view from our house, from ten different bedrooms, uh, would be blocked uh by putting that new repair uh, repaired roof." (Emphasis added.) (ROR, No. 1, p. 23.) The record demonstrates, that a central reason for the plaintiff's objection to this variance, therefore, is that the new roof would interfere with their view. It is settled law that views of property owners are not the subject of zoning regulations. See, e.g., Puorto v. Chieppa, 78 Conn. 401, 404, 62 A. 664 (1905) ("[i]f the ancient law of implied grants of easements of light and air . . . has any existence in this State, its force is recognized only to a very limited extent, and it is rarely, if ever, applied against bona fide purchasers of the land over which such easement is claimed"); see also New Haven v. United Illuminating Co., 168 Conn. 478, 495, 362 A.2d 785 (1975) (procedural due process rights not affected where no evidence disclosed "the existence of any statute, contract, or easement, express or implied, which might conceivably serve as the basis for its claimed right to light, air, and view unobstructed by" construction of electrical transmission lines and towers); see also General Statutes § 47-25 ("No occupant of real estate may acquire, by adverse occupation, the right to keep, sustain or enjoy any window or light, so as to prevent the owner of adjoining premises from erecting and maintaining any building thereon."). The ZBA acknowledged this in the following discussion at the public hearing:
"R. BURRIS: [The reconfigured porch roof] will obstruct their view of their neighbors, however.
"J. MARCUS: Yeah, the view is not a protected right."
* * *
"S. KEASKIN: Yeah, [the obstruction of the neighbor's view is] not a point that we'd consider legally . . ." (ROR, No. 1, pp. 44-45.) Thus, although the ZBA discussed the potential impact that the reconfiguration of the roof might have on the plaintiff's view, it properly disregarded this in rendering its decision.
For these reasons, the ZBA's decision to grant the variance as to the roof reconfiguration is neither unreasonable, arbitrary or an abuse of its discretion and its decision is reasonably supported by the record.
PURCHASE WITH KNOWLEDGE RULE
Finally, the plaintiff argues that the Stefanowskis are bound by the "purchaser with knowledge rule," which, she maintains, bars a property owner who purchased property with knowledge of the applicable zoning restrictions from obtaining a variance of those restrictions. She contends that the Stefanowskis had constructive knowledge of the zoning regulations and the nonconforming nature of their property at the time they purchased the property and cannot now claim that application of the regulations to their property presents a hardship.
The defendants contend that the Stefanowskis are not precluded from obtaining a variance by the purchase with knowledge rule. They argue that for a nonconformity to preclude the issuance of a variance, that nonconformity must be attributable to the purchaser or his predecessor in interest. In this case, they maintain, the nonconformity is a result of the enactment of the zoning regulations themselves and, therefore, the purchase with knowledge rule is not applicable. The court agrees with the defendants.
"Under [the purchase with knowledge] rule, if a purchaser acquires property with knowledge of the applicable zoning regulations and later attempts to use that property in a manner that is proscribed by the regulations, the purchaser is barred from obtaining a variance." (Internal quotation marks omitted.) Sydoriak v. Zoning Board of Appeals, 90 Conn.App. 649, 658 n. 8, 879 A.2d 494 (2005).
Nevertheless, "[w]here . . . the hardship is created by the enactment of a zoning ordinance and the owner of the parcel could have sought a variance, a subsequent purchaser has the same right to seek a variance and, if his request is supported in law, to obtain the variance . . . This right is not lost merely because the subsequent purchaser takes with the knowledge that the current zoning regulations would prohibit the use . . . Rather, the nonconformity must be attributable to the purchaser or his predecessor in interest in order for the hardship to be considered self-created." (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 660.
In Sydoriak v. Zoning Board of Appeals, supra, 90 Conn.App. 649, the Appellate court described the facts of that case, which are remarkably similar to those of the present case. The court stated, "the record . . . reveals that the plaintiff's lot was created prior to the enactment of the zoning regulations. The record also reveals that neither the plaintiff nor his predecessor in interest was responsible for the later nonconformity of the lot; the boundaries of the lot were created when the town cut a road through a previously existing subdivision. It was the subsequent enactment of the zoning regulations, in 1959, and not any act by the plaintiff or his predecessor in interest, that rendered the lot nonconforming to those regulations. Those circumstances were beyond the plaintiff's control . . . and are the type of circumstances that variances were designed to ameliorate." (Citation omitted; internal quotation marks omitted.) Id., 660-61.
Similarly, in the present case, the lot was created prior to the enactment of the current zoning regulations and neither the Stefanowskis nor their predecessors in interest were responsible for the nonconformities at issue. Accordingly, the purchase with knowledge rule is inapplicable.
CONCLUSION
For the foregoing reasons, the court dismisses the plaintiff's appeal.