Opinion
No. 567146
May 25, 2004
MEMORANDUM OF DECISION
These are two appeals by plaintiff Robert MacDonald from actions of the defendant Zoning Board of Appeals (Board) of the Town of Waterford in granting variances to defendants Michael E. Stein and Alan M. Stein (defendants). Plaintiff's motion to consolidate the cases was granted on November 24, 2003 (Hurley, JTR).
The decisions of the Board in both cases are affirmed.
At the time of trial, it was undisputed that petitioner acquired title to property which abuts the property owned by the defendants which was the property for which the variances were granted. In his brief, plaintiff claims that by virtue of ownership of the above property abutting defendants' property, he has standing to prosecute this appeal.
Plaintiff has brought these appeals under the provisions of Connecticut General Statute § 8-8(b). This statute limits appeals to persons aggrieved by the decision appealed from.
"Pleading and proof of facts that constitute aggrievement are essential prerequisites to the trial court's subject matter jurisdiction over that administrative appeal. The trial court must be satisfied first that the plaintiff alleges facts which, if proven, would constitute aggrievement as a matter of law. If the plaintiff fails to allege such facts, the appeal must be dismissed for lack of subject matter jurisdiction. Hendel's Investors Co. v. Zoning Board of Appeals, 62 Conn. App. 263, 271 (2001) (citations omitted).
A careful review of the complaints in these two appeals fails to disclose any allegation that plaintiff is aggrieved and has standing to prosecute the actions. Although the parties have agreed to facts, which would mandate a finding of statutory aggrievement, in the absence of any such allegation in the complaints, a question of subject matter jurisdiction exists and the Court cannot find what is not alleged.
The fact that the complaints failed to contain allegations of aggrievement was discovered in a review of the complaints after this memorandum was 90 percent completed.
The record indicates that by application filed April 1, 2003, defendants applied to the Board for a variance of § 4.4.2 of the zoning regulations for a side yard (north) variance to reduce the side yard from the required twenty feet to twelve feet, side yard (south) to reduce this side yard from the required twenty feet to thirteen feet and § 4.4.3 rear yard to reduce the rear yard from the required fifty feet to seventeen feet.
The claim of hardship was stated on the application as follows.
(12) What hardship is claimed?
The subject property is a pre-existing nonconforming residential lot. A single-family dwelling existed at the subject property along with a detached garage. These structures wee located in such a way that the rear yard setback was only 7 1/2 feet, the north side yard set back was only 2 1/2 feet, and the south side yard setback was only 8 feet.
The subject property is undersized for the R-20 zone. It was in existence prior to zoning. The application of the required setbacks to the subject property create a hardship in constructing a single-family dwelling. In addition, the variances requested will actually allow the setbacks on the subject property to decrease based upon the existing setbacks.
A public hearing on this application was scheduled for May 1, 2003. At this hearing, plaintiff and defendants were heard as were other interested parties. After the public hearing, the Board considered the application and voted to approve the variances for § 4.4.2 for the north and south side lines. The Board voted to deny the rear yard variance. This denial was without prejudice. The Board did not state the reasons for its action on the record.
Within the time allowed by statute, plaintiff appealed the granting of the variance. (Docket Number CV-03-0566049-S.)
The previous denial having been without prejudice, by application filed May 16, 2003, defendants applied to the Board for a variance of § 4.4.1 to reduce the front yard setback from the required fifty feet to eighteen feet and § 4.4.3 rear yard from fifty feet to fifteen feet. The hardship claimed on this application was as follows:
The application of the required setbacks to the subject property create a hardship in constructing a single family dwelling. The location of existing wells prevent moving the house toward Oswegatchie Road.
A hearing on the application was held on August 7, 2003, at which parties at interest were heard. At the conclusion of the public hearing, the Board voted to approve the variances without stating the reasons therefor. Within the time allowed by statute, plaintiff instituted this appeal. (D.N. CV-03-0567146.)
All notices required by law have been properly given and timely published. No questions concerning jurisdiction have been raised.
In considering the issues raised in these appeals, the scope of judicial review is limited. Horn v. Zoning Board of Appeals, 18 Conn. App. 674, 676 (1989). The authority of the court is limited by § 8-8 to a review of the proceedings before the Board. The function of the court in such a review is to determine whether the Board acted fairly or on valid reasons with the proper motives. Willard v. Zoning Board of Appeals, 152 Conn. 247, 248-49 (1964). The court is limited to determining whether the record reasonably supports the conclusions reached by the Board. Burnham v. Planning and Zoning Commission, 189 Conn. 261, 265 (1983). The court cannot substitute its discretion for the liberal discretion conferred by the legislature on the Board. The court is limited to granting relief only when it can be shown that the board acted arbitrarily or illegally and consequently has abused its statutory authority. Gordon v. Zoning Board, 145 Conn. 597, 604 (1958). The burden rests with the plaintiff to prove the impropriety of the Board's actions. Burnham, supra, 189 Conn. 266.
It is not the function of the court to rehear the matter or question wisdom of the defendant Board in taking the action which it did. The court is limited to determining whether or not the Board's action can be supported under the law.
Here, the defendants requested that the Board grant variances from the strict application of certain sections of the zoning regulations. A variance constitutes permission for a party to use their property in a manner otherwise prohibited by the zoning regulations. For these reasons, the granting of a variance is generally reserved for unusual or exceptional circumstances. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995).
Defendant Board derives its authority to vary the application of the zoning regulations from the provisions of General Statutes § 8-6(3) and § 27.2.3 of the Waterford zoning regulations. The statute establishes two basic conditions which must be met for the granting of a variance are (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. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368 (1988).
An applicant for a variance must show that, because of some peculiar characteristic of its property, the strict application of the zoning regulation produces an unusual hardship as opposed to the general import which the regulation has on other properties in the zone. Dolan v. Zoning Board of Appeals, 156 Conn. 426, 429 (1968).
Connecticut General Statutes § 8-7 provides that whenever a zoning board of appeals grants a variance, it shall state upon its record the reason for its decision, and when a variance is granted, describe specifically the exceptional difficulty or unusual hardship on which its decision is based.
In this case, the Board failed to state upon the record the reasons for its decision. Where the Board fails to state the reasons for its action on the record as required by statute, the court must search the record to attempt to find some basis for the action taken. Grillo v. Zoning Board of Appeals, 206 Conn. supra, 369.
The property which is the subject of the variance request is owned by defendants and is located at 4 Riverview Road in the Town of Waterford. The property is located in the R-20 zone and is a pre-existing nonconforming building lot. The property is a corner lot fronting on Oswegatchie Road, a town-approved road, and on Riverview Road which is not a town-accepted street. Defendants propose to build a single-family residential structure which will front on Riverview Road. Because of the zoning regulations, the public street, Oswegatchie Road, must be used as its frontage.
The property is 8,838 square feet in area. The zoning regulations require a minimum lot size of 20,000 square feet in the R-20 zone. Frontage for the property on Oswegatchie Road is sixty-five feet.
Since the Board failed to state the reasons for the granting of the variances, the court must search the record to determine if such action is supported by sufficient evidence in the record.
Two basic conditions must be met for the granting of a variance. The first condition is that the variance will not affect substantially the comprehensive zoning plan. Grillo v. Zoning Board of Appeals, supra, 206 Conn. 368. The comprehensive plan consists of the zoning regulations themselves and the zoning map that has been established pursuant to those regulations. Burnham v. Planning Zoning Commission, supra, 189 Conn. 267.
The property for which the variances were granted is located in a residential zone. The variances will facilitate the erection of a residential building which is compatible with other uses in the zone. The record indicates that many of the homes in the area near the property are on small, nonconforming lots similar to the lot in question. It must then be found that the requirement that the variance be shown not to affect substantially the comprehensive plan of zoning is supported by substantial evidence in the record.
The second condition which must be met for the granting of a variance is that adherence to the strict letter of the zoning regulations must be shown to cause unusual hardship unnecessary to carrying out the general purpose of the zoning plan. Id.
The property here, zoned for residential use, is a valid, preexisting, nonconforming lot much smaller than the regulations now require. There was testimony at the hearing that the building which could be erected in accordance with the present regulations would be about the size of a two or three-car garage. While plaintiff asserts such a building could be constructed, there was evidence that a building this size would be impractical for residential use.
In Stillman v. Zoning Board of Appeals, 25 Conn. App. 631, 636 (1991), the Appellate Court rejected the standard used by the trial court that unless the property "has little or no value because of the setback regulations, no hardship has been shown" as overly restricted. The court ten went on to state that, "A variance may be granted if the literal enforcement of a regulation causes exceptional difficulty or hardship because of some unusual characteristic of the property. To support the granting of a variance, the hardship must arrive 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. Id. (citations omitted). Here, the nonconformity of the lot arose from the enactment of the zoning regulations.
In the present case, defendants could not comply with the present regulations governing the setback and side yard requirements because of the size of the lot. Defendants could build a house on the nonconforming lot, but a strict enforcement of the regulations would prevent them from building a practical residential structure.
The unique size of the lot prevents strict compliance with both the side yard requirements and the front and rear yard requirements. A valid nonconforming undersized lot has been found to create a legal hardship so as to validate the granting of variances to similar regulations. Archambault v. Wadlow, 25 Conn. App. 375 (1991); Stillman v. Zoning Board of Appeals, supra, 25 Conn. App. 631; also Superior Court cases, Linville v. Zoning Board of Appeals, Superior Court, Judicial District of Stamford/Norwalk at Norwalk, D.N. CV-98-01685175 (August 1, 2000) (Rodriguez, J.); Alsa Associates v. Zoning Board of Appeals, Superior Court, Judicial District of New London, D.N. 561889 (May 15, 2003) (McMahon, J.).
After the above analysis of the facts in the record, it must be concluded that there is substantial evidence in the record to support a finding of unusual hardship unnecessary to carrying out the general purpose of the zoning regulations.
Plaintiff argues that since defendants claim to have a right to build on the footprint of the house formerly existing on the lot they have no hardship. If the use for which a variance is sought is permitted by the regulations, a variance cannot be granted. Grillo v. Zoning Board of Appeals, supra, 206 Conn. 372.
In this case, however, defendant's ability to build on the footprint of the former house is not absolute. In the first place, the old house has been torn down and locating the footprint could be a problem. Also, the ability to build on the basis of the former structure would depend on the successful prosecution of an action based upon municipal estoppel. Conventional wisdom dictates that the outcome of such an action could not be preordained.
After examination of the record, it must be found that there is substantial evidence in the record to support the action of the Board in granting to variances. Plaintiff has failed to prove that in granting the variances the Board acted arbitrarily, illegally or in the abuse of its statutory authority.
Accordingly, the decision of the Board in both cases is affirmed.
Joseph J. Purtill Judge Trial Referee