Opinion
LNDCV146055533S
04-28-2016
Susan Gail Kniep et al. v. Zoning Board of Appeals for East Hartford et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Marshall K. Berger, J.
I
The plaintiffs, Susan Gail Kniep of 44-46 Olde Roberts Street and David L. Weaver of 40 Olde Roberts Street in East Hartford, appeal a decision of the defendant, the East Hartford zoning board of appeals (board) granting a use variance to the codefendant, Difano, LLC (Difano), from § 303.2 of the town of East Hartford zoning regulations (regulations). Difano filed an application for a variance on September 1, 2014, to conduct a commercial catering business serving liquor at 30 Olde Roberts Street. (Return of Record [ROR], Item 4.) On October 30, 2014, the board held a public hearing and unanimously granted the variance. (ROR, Item 11; Item 12, p. ZV-34; Item 14.) Notice of the decision was published on November 4, 2014, in the Journal Inquirer . (ROR, Item 15, p. ZV-45.)
Special permit uses allowed under § 303.2 include commercial farms, subject to certain conditions; houses of worship, convents and similar uses and colleges, subject to certain conditions; nonprofit donation drop-off boxes when associated with legally conforming houses of worship, subject to certain conditions; nonprofit educational group care facilities, subject to certain conditions; and truck gardens, greenhouses, and plant nurseries on lots of two acres or more. (Return of Record [ROR], Item 18, pp. ZV-150-51.)
This appeal was commenced on November 18, 2014. On September 11, 2015, the return of record was filed. The plaintiffs filed their brief on October 1, 2015, Difano filed its brief November 20, 2015, and the board filed its brief on December 11, 2015. The court heard the appeal on February 23, 2016.
In addition to this appeal, this court heard a companion appeal, Kniep v. East Hartford Planning & Zoning Commission, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-14-6055769-S, commenced by these plaintiffs against the East Hartford planning and zoning commission (commission) and Difano. On September 4, 2014, Difano applied for a special permit under § 222.3 of the regulations for a catering hall serving liquor. The commission granted the special permit and the plaintiffs allege in their appeal that the commission failed to consider the standards set forth in § 207 of the regulations, that the decision was not based upon substantial evidence, and that the commission relied on an invalid variance--the subject of this appeal.
II
General Statutes § 8-8(b), in relevant part, provides that " any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located . . ." General Statutes § 8-8(a)(1) defines " aggrieved person" as " a person aggrieved by a decision of a board" and " includes any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
Before this court on February 23, 2016, counsel for both plaintiffs referred to the affidavits previously filed (pleadings ##109.00-110.00) to which there were no objections. As the plaintiffs' properties are within 100 feet of Difano's property, this court found that they were aggrieved under General Statutes § 8-8(a)(1) and (b).
III
" In reviewing a decision of a zoning board of appeals, [i]t is well settled that courts are not to substitute their judgment for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . Upon appeal, the [Superior Court] reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . . In light of the existence of a statutory right of appeal from the decisions of local zoning authorities . . . a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty . . . The critical inquiry is whether the board's decision is supported by the evidence contained in the administrative record. In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record." (Citation omitted; internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, 155 Conn.App. 657, 677-78, 111 A.3d 473 (2015).
" [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . Where the board states its reasons on the record we look no further . . . Where, however, the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board's decision . . . More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons." (Internal quotations omitted.) 347 Humphrey Street, LLC v. Board of Zoning Appeals, 160 Conn.App. 214, 224, 125 A.3d 272 (2015).
" As our Supreme Court has explained, a variance constitutes authority extended to the owner to use his property in a manner forbidden by the zoning enactment . . . It is well established . . . 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, we have 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 . . . The granting of a variance is no insignificant matter, as it runs with the land in perpetuity. See General Statutes § 8-6 (b)." (Citations omitted; internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 678-79.
" Zoning boards of appeal possess a limited authority, as circumscribed by statute, the scope of which cannot be enlarged by either the board or the local zoning regulations." Id., 681. " 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 the property owner's control . . . The applicant bears the burden of demonstrating the existence of a hardship . . . 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 quotations omitted.) 347 Humphrey Street, LLC v. Board of Zoning Appeals, supra, 160 Conn.App. 224-25.
IV
A
Difano's property is located in a " Residence 3 (R-3)" zone which allows single-family dwellings, accessory structures, signs, public parks, and open spaces. (ROR, Item 18, p. ZV-150.) Special permitted uses in § 303.2 of the regulations include commercial farms, houses of worship, nonprofit donation boxes, nonprofit educational group care facilities, and truck gardens. (ROR, Item 18, pp. ZV-150-51.) They do not include catering halls. (ROR, Item 9, p. ZV-19; Item 18, pp. ZV-150-51.)
In 1968, a prior owner, Societa Maria S.S. DiMonte Carmelo, Inc., received a use variance to operate a religious shrine and society meeting place. (ROR, Item 7, p. ZV-15.) On March 30, 1978, the Mount Carmel Society was denied a use variance to allow a catering service under what was then § 330 of the regulations. (ROR, Item 4, pp. ZV-7-8; Item 6, p. ZV-14; Item 9, p. ZV-19.) After Anthony Guglielmi, owner of Difano, operated a catering business serving liquor on the property for a number of years, Difano purchased it in 2006, but Guglielmi learned that it lacked a special permit to operate a catering hall serving liquor before applying for one in 2014. (ROR, Item 1, p. ZV-1; Item 3, p. ZV-6.) Indeed, Guglielmi received a zoning cease and desist notice dated August 28, 2014, from Milton Gregory Grew, director of inspections and permits and zoning enforcement official. (ROR, Item 3, p. ZV-6.) Before this court on February 23, 2016, Difano's counsel advised that this application was filed in response to the cease and desist order.
In 2002, Guglielmi, who was preparing food on site, was advised that the facility did not have a license and should not be preparing food. (ROR, Item 19, p. ZV-190.)
The application for a liquor permit was filed by Guglielmi, as permittee applicant and as backer or authorized representative of the backer. (ROR, Item 1, pp. ZV-2, ZV-4.) The application is also signed by Milton Gregory Grew, director of inspections and permits, dated January 28, 2014, certifying that the property complies with the regulations. (ROR, Item 1, p. ZV-1.) Nevertheless, on May 28, 2014, Gary Zalucki, assistant zoning enforcement official, wrote to the department of liquor control indicating that the property had never received zoning approval to serve liquor on a permanent basis, that the application was signed and approved in error, and that it was thus rescinded. (ROR, Item 2, p. ZV-5.)
Difano's application indicated that " [t]he property has been used to operate a commercial catering hall business for many years. It was just discovered that a special permit to conduct such a business is not in effect. Given the longstanding use of the premises, the imposition of the zoning regulations, as to the property, in and of themselves, constitutes a hardship." (ROR, Item 4, p. ZV-7.) While Difano's counsel advised the board that it was not seeking approval to sell liquor, the application, notice, and approval all reflect precisely the opposite. (ROR, Item 1, pp. ZV-1, ZV-3; Item 4, p. ZV-7; Item 13, p. ZV-36; Item 15, pp. ZV-40-42; Item 17, pp. ZV-113-14.) At the hearing before the board on October 30, 2014, counsel for Difano stated, " [T]he conditions that we are claiming justify the granting of the variance, are one, the longstanding existence of the catering hall on the premises and two, the size of the parcel." (ROR, Item 17, p. ZV-53.)
" Under no circumstances are we seeking any type of approval to sell alcohol on the premises in question. " If the board did deem it proper to approve this application, I already have an application pending before the Planning and Zoning Commission relating to a request for a special permit to serve alcohol at the location, again, subject to this board's approval if that happens. " So it was never our intent to ask this board to render any type of approval specifically relating to alcohol. All we are simply requesting is that a use variance be granted." (ROR, Item 17, p. ZV-49.) In response, the following exchange occurred between the board's chairman and Difano's counsel, Michael Whelton: At the board's public meeting, counsel for Difano stated that it was not seeking to sell liquor: " It indicates that the variance being sought is to permit a catering hall with alcohol. That's not a correct representation. I think there was just a misunderstanding between my office and staff.
THE CHAIRMAN: I think that the application is for a catering hall; the alcohol is less than what was posted, therefore, I don't see that we have to postpone it at this point. They are asking for less than what was posted. And it's up to planning and zoning for those additional issues. MR. WHELTON: Correct. And the application is limited to a variance under section 303 subsection two. The application doesn't make any reference to section 222.3 of our zoning regulations. I mean nowhere in the application am I asking for alcohol approval.(ROR, Item 17, p. ZV-50.)One could easily conclude that Difano attempted to avoid the issue of liquor before the board as a result of those comments; yet it sought a permit for a catering hall serving liquor and that is what was ultimately granted even though the board's chairman suggested otherwise. Difano needed that approval to pursue its special permit under § 222.3 of the regulations, which provides: " In those zoning districts where restaurants or catering halls serving alcoholic beverages are permitted, such use . . . may be permitted by the Planning and Zoning Commission only by special permit use . . ." (ROR, Item 18, p. ZV-148.) Difano's counsel explained to the court on February 23, 2016, that the distinction he was attempting to make was that " although the applicant has referred to the desire to get a liquor permit for this location, the [board] cannot grant a variance for liquor. Any permit to sell liquor must be obtained from the Planning and Zoning Commission." (ROR, Item 9, p. ZV-19.) Regardless of the fact that board was without authority to grant a variance for liquor, the distinction between a catering hall and a catering hall serving liquor does not affect the court's decision.
B
Section 808.2 of the regulations list the situations that may qualify for granting of a variance: " The Board may grant variances from the strict application of these regulations when, by reason of exceptional narrowness, shallowness, shape or substandard size of specific parcels of property, the strict application of these regulations or amendments thereto would result in unusual difficulty or unreasonable hardship upon the owner of said property, provided that such relief or variance can be granted without substantial impairment of the intent, purpose, and integrity of these regulations and of the Plan of Development for the Town of East Hartford. Before granting a variance on the basis of unusual difficulty or unreasonable hardship, there must be a finding by the Zoning Board of Appeals that all of the following conditions exist:
a. That if the owner complied with the provisions of these regulations, he/she would not be able to make any reasonable use of the property;
b. That the difficulties or hardship are peculiar to the property in question, in contrast with those of other properties in the same district;
c. That the hardship was not the result of the applicant's own action; and
d. That the hardship is not merely financial or pecuniary." (Italics in original.)(ROR, Item 18, p. ZV-186.)
Italics are used in the regulations to indicate words that are defined in § 200. (ROR, Item 18, p. ZV-124.)
According to this regulation, the granting of a variance must not substantially impair " the intent, purpose, and integrity of these regulations and of [East Hartford's] Plan of Development." This conforms with the mandate that " the variance must be shown not to affect substantially the comprehensive zoning plan." (Internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 678-79. " [T]he comprehensive plan is to be found in the zoning regulations themselves." (Internal quotation marks omitted.) Konigsberg v. Board of Aldermen, 283 Conn. 553, 585, 930 A.2d 1 (2007). As previously noted, East Hartford's regulations do not allow restaurants or catering halls--or catering halls selling liquor--in this residential zone. (ROR, Item 18, pp. ZV-150-51.) Moreover, it appears that catering halls are allowed, by special permit, in other zones. (ROR, Item 18, pp. ZV-153, ZV-160, ZV-169.)
This court notes that while § 208 of the regulations contains a blanket prohibition on the granting of certain use variances, including restaurants serving liquor, the list does not mention catering halls. (ROR, Item 18, pp. ZV-144-45.) Whether there is any difference between a restaurant serving liquor and a catering hall serving liquor is an interesting question, but it is not before the court.
In light of the limited return of record under Practice Book § 14-7B, this court was supplied with excerpted regulations.
" [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." (Internal quotation marks omitted.) Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 270-71, 588 A.2d 1372, 1375 (1991). " The variance is an instrument of relief, not rezoning . . . [A variance] should not be used to accomplish what is in effect a substantial change in the uses permitted in a residence zone. That is a matter for the consideration of the zoning commission." (Internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 724.
In the present case, the board approved the variance stating that " a literal enforcement of the zoning regulations would result in exceptional difficulty and unusual hardship to the applicant." (ROR, Item 12, p. ZV-34.) It appears that the board was moved by the continued use of the operation at the premises since 1968, even though such use was illegal and the board had denied the same request in 1978. (ROR, Item 4, pp. ZV-7-8; Item 12, p. ZV-34; Item 17, pp. ZV-114-15.) As to Difano's claim concerning the size of the parcel, this court notes that it is not nonconforming; it is just large. (ROR, Item 17, p. ZV-53.) With 108, 000 square feet, this oversized lot is over ten times the size of the minimum 10, 000-square-foot lot. (ROR, Item 17, pp. ZV-56, ZV-150-51.) Thus, Difano may have several options to put the property to many conforming uses.
" A practical confiscation occurs when an ordinance so limits the use of land that it cannot be utilized for any permitted purpose without a variance." Archambault v. Wadlow, 25 Conn.App. 375, 382, 594 A.2d 1015 (1991). Such is not the case here. As indicated, Difano has one special permit and, of course, there are a number of permitted uses allowed in the R-3 zone. (ROR, Item 17, pp. ZV-150-51.) The size of the parcel does not in this case justify the granting of a variance. In fact, this appeal is not about the size of the parcel.
The real issue is the claim that the variance should be granted because of " the longstanding existence of the catering hall on the premises--a use which has violated the regulations for many years. The argument is purely financial and financial hardships do not justify the granting of a variance." 347 Humphrey St., LLC v. Board of Zoning Appeals, supra, 160 Conn.App. 225 (" [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]). As indicated, the prior owners never had the proper permits to operate the facility as a catering hall and nothing indicates that Difano, who operated the premises for years before purchasing the property, could not have learned through due diligence of its legal status prior to the closing in 2006. See Highland Park, Inc. v. Zoning Board of Appeals, 155 Conn. 40, 43, 229 A.2d 356 (1967) (" any hardship present in the situation is due to the property owner's own error . . . and does not arise from the application of the zoning regulations themselves"). Indeed, as previously mentioned, while a variance was granted to expand the size of the building, the last use variance request for a catering business was denied in 1978. (ROR, Item 4, p. ZV-7; Item 6, p. ZV-14; Item 9, p. ZV-19.)
See footnote 3 of this memorandum of decision.
Furthermore, no vested rights could be created in the illegal use. See Schomer v. Shilepsky, 169 Conn. 186, 194, 363 A.2d 128 (1975) (" The action taken here was contrary to the regulations at all times. In those circumstances no vested rights have been infringed upon"). " [T]he board is not required to extricate an applicant from an unusual hardship, at least if it does not arise out of the application of the zoning regulations themselves." Belknap v. Zoning Board of Appeals, 155 Conn. 380, 384-85, 232 A.2d 922 (1967).
As noted by the court in Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 691-92, " In Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 238, 303 A.2d 743 (1972), our Supreme Court held that a variance is properly granted only where there is a showing before the zoning board of appeals that the hardship caused by the application of zoning regulations relates to the property for which the variance is sought and not to the personal hardship of the owners thereof. The court further explained that a variance is not a personal exemption from the enforcement of zoning regulations. It is a legal status granted to a certain parcel of realty without regard to ownership. It is for this reason that the rule is well established that the financial loss or the potential of financial advantage to the applicant is not the proper basis for a variance . . . Similarly, it is also well established that self-inflicted hardship which arises because of individual actions by the applicant will not provide a zoning board of appeals with sufficient reason to grant a variance . . . Hardships in such instances as these do not arise from the application of zoning regulations, per se, but from zoning requirements coupled with an individual's personal needs, preferences and circumstances. Personal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance . . . For that reason, [t]he situation of any particular owner is irrelevant to the determination of whether a hardship exists." (Citation omitted; internal quotation marks omitted.)
In the present case, the granting of the variance only served to save Difano from its own actions and its alleged financial loss is not the proper basis for the board to grant the variance. See 347 Humphrey Street, LLC v. Board of Zoning Appeals, supra, 160 Conn.App. 225. Furthermore, " [d]isappointment in the use of one's property does constitute exceptional difficulty or unusual hardship." (Internal quotation marks omitted.) Green Falls Associates, LLC v. Zoning Board of Appeals, 138 Conn.App. 481, 494, 53 A.3d 273 (2012). In sum, the board acted improperly in granting Difano's variance in a residential zone because its application for a variance meets none of the criteria found in § 808.2, the variance substantially affected the comprehensive zoning plan, and denying the variance would only present an economic hardship for the applicant.
Accordingly, the appeal is sustained.