Opinion
No. FST CV 07 4011875 S
June 23, 2008
MEMORANDUM OF DECISION
The plaintiff's appeal from the decision of the Westport Zoning Board of Appeals (hereinafter the "ZBA") granting a side yard variance to permit construction of an addition to an existing house. The addition consists of three parts: (1) an extension of an existing two-car garage toward the rear of the building so as to double its length so it can accommodate four vehicles in tandem; (2) the construction the of two more bays beneath the four-car garage to be used for storage; and (3) enlargement of an existing second floor game room. The property lies in the AAA zone which permits single-family lots of two acres. The house was built circa 1861 and is situated 25.6 feet from the plaintiff's property line at the northwesterly quarter of the lot. In 1999, the zoning regulations were amended so as to increase the side yard setback in the AAA zone from twenty-five feet to fifty feet. At that time the building became non-conforming with respect to its easterly side yard. On May 22, 2007 the ZBA granted the variance and found unusual hardship "from the application of the regulations to the subject property" by reason of "pre-existing non-conforming building, steep slopes and change in zoning regulations."
Section 11-4 of the Westport Zoning Regulations provides that "no principal building, structure or use, or accessory building or structure shall extend closer than fifty (50) feet from any street line or lot line.
The plaintiffs proved that they are owners in fee simple of the abutting property on the east and are thereby statutorily aggrieved G.S. § 8-8(1). They complain that the record before the ZBA does not contain substantial evidence to support its finding of unusual hardship because (1) the change in the side yard setback in 1999 does not by itself create a legally cognizable hardship; (2) the non-conforming location of the building does not prevent an equivalent addition on the other (southwesterly) side of the property where no variance would be required; and (3) there are no steep slopes on the other (southwesterly) side of the property which prevent construction of an equivalent addition. Property owner argues that there is hardship because the addition cannot reasonably be placed elsewhere on the property because (1) the presence of slopes; (2) to do so would "slice the property in half"; and (3) it would exceed the 25% coverage limitation. The following principles of law relating to variances guide the court's inquiry. "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 (1995). "The authority of a Zoning Board of Appeals to grant a variance under Gen. Stat. § 8-6(3) requires the fulfilment of two conditions: (1) the variance must be shown not to affect substantially the comprehensive zoning plan, (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.) Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368 (1988); . . . "the hardship complained of must arise directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved . . . Where the condition which results in the hardship is due to one's own voluntary act, the Zoning Board is without the power to grant a variance . . . Where . . . the hardship 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." (Citation omitted; internal quotation marks omitted.) Vine v. Zoning Board of Appeals, supra, 281 Conn. 561. While hardship will vary from case to case, we repeatedly have held that considerations of financial disadvantage — or, rather, the denial of a financial advantage — do not constitute hardship, unless the zoning restriction "greatly decreases or practically destroys [the property's] value for any of the uses to which it could reasonably be put . . ." (Internal quotation marks omitted.) Id.; see also Grillo v. Zoning Board of Appeals, supra, 369; Carlson v. Zoning Board of Appeals, 158 Conn. 86, 89-90 (1969). Rural Water Company, Inc., v. Zoning Board of Appeals of the Town of Ridgefield, 287 Conn. 282, 295-96 (2008).
Section 11-6 of the Westport Zoning Regulations provides that "the total coverage should not exceed twenty-five percent (25%) of the area of the lot."
"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. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] . . . The question is not whether the trial court would have reached the same conclusion but whether the record before the [board] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission, . . . the agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-60, on remand, 102 Conn.App. 863, (207). As we previously have concluded, when a zoning board has given `a formal official collective statement of reasons for its actions,' the scope of our review is limited to determining "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. Harris v. Zoning Commission, 259 Conn. 402, 420 (2002)." Rural Water Company Inc. v. Zoning Board of Appeals of the Town of Ridgefield, supra.
Because this court believes that the second prong of the test for a variance is dispositive of this appeal it is unnecessary to consider the arguments regarding the first prong of the test. So, the sole issue on this appeal is whether the record contains substantial evidence that the variance granted was based upon a legally cognizable hardship. The court believes that it was not.
Both the property owner and the board have cited the passage of the 1999 amendment as a hardship that warranted the variance. These parties offer for the court's consideration several appellate level and trial court decisions in support of this claim. The court has considered each of them and finds them clearly distinguishable from this case. In every case in which the variance was upheld, there existed some unique condition on the property involved. In Weber v. The Zoning Board of Appeals of the Town of Ridgefield, Superior Court, Danbury J.D. no. CV 03-0349892S (Jun. 10, 2004, Nadeau, J.), the hardship recognized was the need to protect a revolutionary war building. In Stillman v. Zoning Board of Appeals, 25 Conn.App. 631 (1991), the hardship consisted of the particular location of the well and septic system which limited the location of the addition for which the variance was sought. In Bloom v. Zoning Board of Appeals, 233 Conn. 198 (1995), the variance was overturned because the record contained no evidence that the particular addition could only be accomplished within the setback for which the variance was sought. Id. fn.13, p. 210. In Carello v. Zoning Board of Appeals of the City of Milford, Superior Court, Ansonia/Milford J.D. no. CV04-00848519, (August 4, 2005, Shluger, J.), the hardship was that to deny the variance would have denied "the reasonable commercial use of the premises." Obviously, commercial use is not involved here. In a case factually similar to this case, the court found no hardship because the owner admitted on the record that he could have built "a house of some sort" with no variance. Flaherty v. Zoning Board of Appeals of New Haven, Superior Court, New Haven J.D. no. CV 388059 (April 10, 1997, Blue, J.).
The only case that could be found which runs contrary to the above is Enger v. New Canaan Zoning Board of Appeals, Superior Court Stamford/Norwalk J.D. no. CV 02-0192283, (March 10, 2004, Ryan, J.T.R.). In that case the court upheld a coverage variance because the record contained evidence that "the house is historic and may be deserving of the variance to ensure the preservation of its unique and distinctive architectural style and features." The board explicitly found that permitting construction of the garage would maintain the architectural character of the home and this constituted unusual hardship. In this case, the record is barren of any evidence of the historical significance of the house other than that it was built in 1861. The court notes that the ZBA did not assign preservation of an architecturally or historically significant house as an identified hardship. "When an administrative agency specifically states its reasons the court should go no further because it could reasonably be inferred that this was the extent of its findings. To go beyond those stated reasons invades the fact finding mission of the agency by allowing the court to call out reasons that the agency may not have found to be credible or proven." Givens v. Historic District Commission, 285 Conn. 755, 771 (2008).
The 1999 Amendment
The court's research leads it to the conclusion that the mere enactment of an amendment to the zoning regulations which enlarges a required setback for a residential lot does not, as a matter of law, constitute a legally cognizable hardship unless one of two conditions are present: (1) the application of the new regulation would render the lot practically unbuildable and therefore the new regulation becomes confiscatory; or (2) physical conditions of the property prevent the proposed improvement from being built without a variance. See E.G. Johnny Cake v. Zoning Board of Appeals; 180 Conn. 296 (1980); Lawrence Memorial Hospital v. Board of Appeals, 22 Conn.App. 281 (1990); Edgan v. Zoning Board of Appeals, 20 Conn.App. 561 (1990). There is no claim in this case that condition number one is present but it is the property owner's contention that and the ZBA so found that steep slopes exist elsewhere on the property which prevent construction of this addition except where proposed.
Steep Slopes
The record does not support the finding that steep slopes prevent erection of this addition elsewhere on the lot. In fact, the record supports the opposite. The transcript at page 12 discloses that Peter Romano, the owner's representative at the hearing before the ZBA, stated only that "the topography lends itself" to the proposed location. The court notes that the topographic survey in the record shows that the elevations on the other side of the house (southwesterly side) where there is an alternative site for the addition, range from 99 to 94 feet whereas the elevations at the proposed site range from 99 to 92 feet. So, it is apparent that unfavorable slopes do not militate against this improvement being located on the other side of the house. Admittedly, to do so would change the architectural configuration of the dwelling, would require greater excavation, would cause the driveway to split the house from the swimming pool and its amenities, would necessitate the removal of a desirable shade tree, would make the improvement more noticeable from the street. Each of these reasons makes the alternate location less desirable, but they do not constitute a legally cognizable hardship. Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship. Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662 (1965). Nor do personal preferences rather than principled reasons justify the granting of a variance. Durkin Village Plainville, LLC v. Zoning Board of Appeals, 107 Conn.App. 861, 870 (2008). In short, there is nothing in the record, including possible lot coverage limitations, that precludes this improvement from being placed in an alternate location.
Pre-existing Nonconforming Building
The ZBA's rationale for this ground seems to be that because the current property owners did not situate the house in its present location, they should not be made to abide by a setback limitation which came later. The record indicates that the contrary is true. The fact that the building is not centered on the lot but is situated in the northwesterly quarter of the lot affords the owner greater freedom in building improvements in the remaining area of the lot. As long as the record shows that this freedom exists, no hardship justifies the proposed location.
Finally, with the approval and in the presence of counsel, the court conducted a view of the property. The view revealed that the addition in question has already been built. The fact that it seems to integrate naturally and appropriately into the pre-existing building does not override the absence of hardship. The appeal is sustained.