Opinion
No. CV06-4021564S
May 6, 2008
MEMORANDUM OF DECISION
This is an appeal by the plaintiff, Michael H. Lotto, from the decision of the defendant New Haven Zoning Board of Appeals ("Board") denying the plaintiff's application for variance to permit enlargement of an existing house on a small lot at 9 North Bank Street in New Haven. The plaintiff claims that the defendant acted illegally and in abuse of its discretion. He had previously been granted at least two variances, in 1995 and 2002, and there is no significant dispute over the fact that the current enlargement exceeds, by either a few inches or as much as three and a half feet, that which was permitted by the 2002 variance.
William Deresiewicz and Aleeza Nussbaum, abutting property owners, have successfully moved to intervene as parties defendant. They have pulled the laboring oar in defending the present appeal.
The plaintiff explains his overbuilding as a "miscalculation and misunderstanding of the side lines" and claims that the hardship that he would incur if he had to remove the offending structure so as to comply with the previously granted variance justifies the granting of this, his third side yard variance. Deresiewicz, Nussbaum and the Board respond that this is a classic self-created hardship, which the law will not recognize as justification for a variance. The plaintiff further appears to argue to the effect that "once a hardship, always a hardship," so that having once been granted a hardship in order to extend his house to the side, that hardship continues to exist in order to provide continuing justification for additional variances. He offers no viable support, in either our statutes or case law, for this rather unusual proposition.
"[A]ny person aggrieved by any decision of a [planning and zoning] board . . . may take an appeal to the superior court . . . General Statutes § 8-8b . . . It is fundamental that appellate jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute . . . Pleading and proof that the plaintiffs are aggrieved within the meaning of the statute is a prerequisite to the trial court's jurisdiction over the subject matter of the appeal . . . The claims of aggrievement . . . [present] an issue of fact for the determination of the trial court . . . The burden of proving that they [are] aggrieved [is] on the plaintiffs." (Citations omitted; internal quotation marks omitted.) Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992).
Proof of ownership of the property at issue is all that is required to prove aggrievement under General Statutes § 8-8(a)(1). Bassert v. Norwalk, 157 Conn. 279, 285 (1968). In this case, the plaintiff did not appear at the hearing on the appeal, nor does it appear that he testified before the Board. Instead, his attorney submitted to this court certified copies of deeds that establish that the plaintiff and one David Lotto purchased the property in 1989, and that the plaintiff and Maryann Lotto quitclaimed the property to the plaintiff in 2001. There was no other evidence as to ownership, and hence as to aggrievement, submitted as to either side. The court must therefore determine whether the plaintiff has demonstrated that his apparent sole ownership of the property in 2001 (the unexplained disappearance of David Lotto from the chain of title to the contrary, notwithstanding), in the absence of any other evidence, establishes, by a fair preponderance of the evidence, that he was the owner as of all times relevant to this appeal. While the evidence, as just described, is flimsy, the court concludes that in the absence of any other evidence, it is sufficient to establish statutory aggrievement.
One seeking a variance from a municipal zoning board of appeals must satisfy two basic requirements: "(1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinances must be shown to cause unusual hardship unnecessary to the carrying out of the general purposes of the zoning plan." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 207 (1995). Although the Board had before it evidence that the plaintiff's allegedly oversized house was not at all in keeping with the neighborhood in which it is situated, the principal issue in this case is the plaintiff's claim of hardship.
"Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance . . . A mere economic hardship or a hardship that was self-created, however, is insufficient to justify a variance . . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance." (Internal quotation marks omitted.) Santos v. Zoning Board of Appeals, 100 Conn.App. 644, 648 (2003). A zoning board of appeals is endowed with liberal discretion and its decisions are subject to review by a court only to determine whether the board acted arbitrarily, illegally or unreasonably. Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269 (1991). The burden of demonstrating that the board acted improperly is upon the party seeking to overturn the board's decision. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988). A court should not usurp the function and prerogatives of a zoning board of appeals by substituting its judgment for that of the board where an honest judgment has been reasonably and fairly exercised after a full hearing. Bloom v. Zoning Board of Appeals, supra, 206. The question is not whether another decision maker, such as the trial court, would have reached the same decision, but whether the record compiled before the agency supports the decision reached. Calandro v. Zoning Commission, 176 Conn. 439, 440 (1979). A decision must be upheld if it is supported by substantial evidence. The substantial evidence rule has been defined as similar to and analogous to the standard to be applied in judicial review of jury verdicts. It must be enough to justify, if a trial were to a jury, a refusal to direct a verdict where the conclusion sought to be drawn is one of fact. Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993).
The plaintiff argues that there is substantial evidence in the record both that the sought variance is in accord with the comprehensive plan and that a literal enforcement of the building area requirement of the regulations would cause a unique hardship because of the extensive reconstruction that would be required if he were to be ordered to remove the portion of the structure that exceeds the limits of the previously granted variance. The plaintiff's claim of hardship is countered by the defendants' assertion that the claimed hardship was totally self-created.
Indeed, it would be difficult to conceive of a better example of a self-created hardship than this one. The plaintiff received what he wanted in 2002, then built in such a fashion that he exceeded the limits that which he himself had sought, and now claims unusual hardship. The court concludes that the Board's denial of the variance is amply supported by the evidence and cannot be disturbed by this court on appeal.
One is reminded of the classic illustration of "chutzpah" . . . the defendant convicted of killing his father and mother but who pleads for mercy on the ground that he is an orphan.
Where the hardship involved arises as the result of a voluntary act by one other than the one whom the variance will benefit, the board may, in the sound exercise of its liberal discretion, grant the variance. Where the claimed hardship arises from the applicant's voluntary act, however, a zoning board lacks the power to grant a variance. The hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance and arises directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved. [S]elf-inflicted or self created hardship is never considered proper grounds for a variance. In Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 300, 429 A.2d 883 (1980), [the Court] stated that [w]here the applicant or his predecessor creates a nonconformity, the board lacks power to grant a variance.
(Citations omitted internal quotation marks power omitted.) Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39-40 (1982). In Pollard, the alleged hardship was the failure to meet the lot width requirements for the purpose of constructing a single-family house which was caused by a surveying error, and the Supreme Court stated, "[t]he fact that the surveyor . . . committed the error which resulted in the hardship is not critical." Id., 41.
The record in this case establishes that any hardship the plaintiff suffered in this case was due to his own error, but that it did not arise from the application of the zoning regulations themselves. The plaintiff here does not even allege that his claimed hardship was created by an intermediary in his employ; rather, he acknowledges that he himself miscalculated and misunderstood the extent of the previously granted variance. He is then, literally, the architect of his own misfortune.
The plaintiff also appears to argue that the hardship previously found by the Board in 2002 somehow continues to survive in the present application for a variance without additional proof. The cases he cites for this rather unusual proposition, however, provide him with no support. For example, in Yerkes v. Town of Voluntown ZBA, No. CV 94 105711 and CV 95 107731 (Judicial District of New London at Norwich, September 3, 1996, Beach, J.), a highly fact-bound case, the court concluded that there was no factual basis for a conclusion that a swap of wet land for dry land constituted a material change in circumstances that would undo the previously found hardship. Here, there was ample evidence, which the Board saw fit to believe, that the addition constructed by the plaintiff had gone well beyond what was needed to be done to remedy the scope of the hardship for which the previous variance had been granted. In doing so, it had created an entirely new hardship for the plaintiff, one not at all contemplated by the previous grant of a variance.
The plaintiff's final argument is grounded in the maxim, de minimis non curat lex. Although it is always a pleasure for the court to hear Latin quoted, even incorrectly, the court finds that the plaintiff provides no factual or legal support for his contention that the protrusion of the plaintiff's addition, or its impact upon the intervening defendant's property values, as testified to, without contradiction, by the defendant's appraiser, is "de minimis." To the contrary, there was evidence that the extension beyond the variance could be measured in feet, and that the diminution of the intervenors' property value was between 5 and 10 percent. Although the plaintiff quarrels with those assertions as testified to at the hearing before the Board, he does so on the basis of speculation and not of evidence.
The plaintiff's brief purports to rely on the maxim "de minimus non curat lex." The preposition "de," however, always takes the ablative case. Hence, de minimis.
Based on the foregoing, the court finds that any hardship claimed by the plaintiff was self-created, and the Board was well within its authority to deny the requested variance. The reasons advanced for denial were valid and supported by the record. Accordingly, the Board's decision is affirmed and the appeal is dismissed.