Opinion
No. CV 02079481 S
December 30, 2003
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiffs, Albert M. Pietruska and Leontine O. Pietruska, appeal from the decision of the defendant, the Milford Zoning Board of Appeals (ZBA), denying their application for a variance concerning side yard setbacks for a deck.
II BACKGROUND
The plaintiffs elected to participate in a flood-proofing program initiated by the United States Army Corps of Engineers (USACOE). (Return of Record, [ROR], Item p; Appeal ¶ 5.) The project initially entailed elevating the plaintiffs' shore-front house so that the first floor was above the fifteen-foot flood elevation. (ROR, Item a.) The USACOE applied to Milford's planning and zoning board and obtained the necessary permits for this initial work. (ROR, Item w.) In addition, the plaintiffs engaged the USACOE to elevate the garage and to construct a deck connecting the house and the garage (garage deck) and a deck running along the side of the house (side deck). (ROR, Items a, j.) Neither the USACOE nor the plaintiffs applied for, or obtained, permits for this additional work. (ROR, Item w.)
After the project was completed, Milford's zoning enforcement officer discovered the additional work and determined that all the additional work violated various zoning regulations regarding lot coverage and setbacks. On June 26, 2002, the plaintiffs filed an application with he ZBA for a variance seeking relief from § 3.1.4.1 of the Milford zoning regulations (regulations) requesting to exceed lot coverage by 4 percent, a reduction in the front yard setback from 20 feet to 8 feet, in order to allow a raised garage. The plaintiffs also sought relief from § 4.1.4 of the regulations requesting a reduction in the side yard setback from 4 feet to 1 foot, 4 feet to 2 feet and 8 feet to 0.4 feet and a reduction in the rear yard setback from 16 feet to 15 feet in order to allow a newly constructed deck to remain. (ROR, Item a.) On August 13, 2002, the ZBA conducted a public hearing on the plaintiffs' application for the variances. The ZBA approved the variance requests as to the lot coverage, front yard setback and rear yard setback, but denied the variance request as to the side yard setbacks. (ROR, Item r.) Thereafter, the plaintiffs appealed from the ZBA's denial of a request for a side yard setback variance to the Superior Court, and the appeal was tried to this court on October 16, 2003.
Milford Zoning Regulations § 3.1.4.1 is a schedule of lot and building requirements for one family residential districts. Section 3.1.4 provides in part: "Buildings and uses shall comply with all requirements of the applicable Zoning District in the Schedule of Lot and Building Requirements for One Family District[s] . . ."
Milford Zoning Regulations § 4.1.4 provides, in relevant part: "The space in any required yard shall be open and unobstructed except for the ordinary projection of open entries, steps, stoops, or porches, cantilever roofs, eaves, cornices; chimneys, belt courses, window sills, balconies and similar architectural features, provided that such features shall not project more than four feet into any required yard nor more than a distance equal to twenty percent of the required yard."
III JURISDICTION
General Statutes § 8-8 governs an appeal taken from a decision of a zoning board of appeals. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).
A AGGRIEVEMENT
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). Aggrievement is a factual issue. See Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001). An owner of the subject property is aggrieved and entitled to bring an appeal. See Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991).
The burden of proving aggrievement rests with the plaintiff. See Quarry Knoll II Corp. v. Planning and Zoning Commission, supra, 259 Corn. 702. A plaintiff may prove title to the subject property "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Id., 703.
In the present appeal, the plaintiffs allege that they are aggrieved because they are the owners of the property involved in the decision. (Appeal, ¶ 12.) The plaintiffs have submitted a warranty deed evincing their ownership of the subject property. (Plaintiffs' Exhibit 1.) The court finds that the plaintiffs have properly pleaded and proven aggrievement for the purpose of bringing this appeal.
B TIMELINESS AND SERVICE OF PROCESS
General Statutes § 8-8(b) provides, in part, 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." Section 8-8(f) further provides that service "shall be made by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality." "It is well established that within the context of administrative appeals, defects in service of process deny the court subject matter jurisdiction over the appeal." Gadbois v. Planning Commission, 257 Conn. 604, 607, 778 A.2d 896 (2001).
While the record contains no affidavit attesting to the publication date of the ZBA's notice, the plaintiffs allege, and the defendant admits, that the ZBA's decision concerning the plaintiffs' application was published in the New Haven Register on August 16, 2002. (Appeal, ¶ 11; Answer, ¶ 7-11.) On August 27, 2002, this appeal was commenced by serving the city clerk of Milford, Alan Jepson, and the clerk of the Milford ZBA, Beverly A. Hayes. Therefore, the plaintiffs made timely service of process upon the proper parties.
IV STANDARD OF REVIEW CT Page 14860
In reviewing the actions of a zoning board of appeals, "the board is endowed with . . . liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal." (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 697, 784 A.2d 354 (2001). "The burden of proof to demonstrate that the board acted improperly is upon the [party seeking to overturn the board's decision]." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995).
"Courts are not to substitute their judgment for that of the [zoning] board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206. The function of the trial court is "to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board's] findings . . . [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." (Internal quotation marks omitted.) Stancuna v. Zoning Board of Appeals, 66 Conn. App. 565, 568, 785 A.2d 601 (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." Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). "More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons." Stancuna v. Zoning Board of Appeals, 66 Conn. App. 565, 568, 785 A.2d 601 (2001).
Connecticut law governing variances is well established. General Statutes § 8-6(a)(3) provides, in relevant part, that a zoning board of appeals may "determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship . . ."
General Statutes § 8-6 is interpreted as authorizing "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." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 207.
"A variance is authority granted to the owner to use his property in a manner forbidden by the zoning regulations . . . The power of the board to grant a variance should be used only where a situation falls fully within the specified requirements . . . Thus, the power to grant a variance should be sparingly exercised . . . 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." (Citation omitted; internal quotation marks omitted.) Kaeser v. Zoning Board of Appeals, 218 Conn. 438, 445, 589 A.2d 1229 (1991).
V DISCUSSION A
The plaintiffs appeal the denial of the variance on the ground that, "[t]here is sufficient evidence of an unusual hardship or exceptional difficulty to support the granting of the requested variances." (Appeal, ¶ 13(a).) The plaintiffs contend that the property's narrow frontage, small size, location within two flood hazard areas, size and location of the existing home, garage and decks, and technical requirements of the zoning regulations constitute a hardship. The plaintiffs maintain that the hardship is not self-created, but rather arises out of the application of the regulations to their property. The plaintiffs claim that the property is unusual because it is an undersized lot located about nine feet below the existing flood hazard elevation. The plaintiffs argue that they reasonably sought a side yard variance to allow the elevation of an existing walkway for the use and passage around the south side of their property. The defendant counters that the construction of the side deck is a self-inflicted hardship, that the plaintiffs may exit their house and may access their garage without the side deck, and that the requested variance is a matter of aesthetics and convenience for the plaintiffs.
In their appeal, the plaintiffs allege that in denying the variance, the ZBA acted illegally, arbitrarily and in abuse of the discretion vested in it in the following ways:
(a) There is sufficient evidence of an unusual hardship or exceptional difficulty to support the granting of the requested variances; (b) the ZBA failed to follow its own Regulations; (c) the decision of the ZBA adversely affects the Plaintiffs' property rights without due process of law; (d) the ZBA failed to follow its own procedures at the public hearing when it prevented the Plaintiffs from offering rebuttal evidence; (e) there is substantial evidence that disapproval of the requested variances would deprive the Plaintiffs of the reasonable use and enjoyment of the Premises; (f) its decision is not in harmony with the purposes and intent of the Regulations and is detrimental to the public health, safety and welfare; (g) its decision ignored, and is not supported by, the substantial weight of the evidence in the record; (h) the decision of the ZBA is inconsistent with the provisions of Connecticut General Statutes 8-13a; (i) it otherwise acted illegally, arbitrarily and abused its discretion.
(Appeal, ¶ 13.)
The plaintiffs have failed to brief claims (c) and (d). This court need not address these claims because issues that are not briefed are considered abandoned. See Gaudet v. Safeco Ins. Co., 219 Conn. 391, 403, 593 A.2d 1362 (1991).
The minutes of the board meeting reveal that the ZBA denied the variance as to the side yard setbacks for the following reasons: (1) even though there had been a brick walk along the ground level, the raising of the house did not automatically permit a deck without prior approval; (2) the deck intrudes on the neighbors with less than 4 inches on the property line; and (3) the deck is not in keeping with the community. (ROR, Item v.) Where, as here, the ZBA, as required by statute, has stated reasons for its decision, this 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." Harris v. Zoning Commission, supra, 259 Conn. 420.
The minutes of the public hearing held by the Milford ZBA on August 13, 2002, provides in relevant part: "Mr. Katen made a motion to deny to vary Section 4.1.4 projections into required side yards from 4 ft. permitted to 1 ft; 4 ft. to 2 ft. + and 8 ft. to 0.4 ft. to allow decks to remain with Mr. Flanders seconding the motion. Mr. Katen explained that even though they had a brick walk along the ground level, raising of it did not mean that it automatically goes up on the house without getting approval and it certainly intrudes on the neighbors with less than 4 inches on the property line and I think that it is intrusive and is not in keeping with that community. The motion carried unanimously."
The ZBA's first stated reason that "the raising of the [plaintiff's] house did not automatically allow a deck without prior approval" is reasonably supported by the record. The record reveals that the subject property is located in an R-5 residential zone. (ROR, Item c.) Pursuant to § 3.1.4.1 of the Milford zoning regulations, an R-5 zone requires minimum side yards of 4 feet for accessory structures. It is noteworthy that because of the location of the plaintiffs' house in two flood hazard zones, the plaintiffs voluntarily elected to participate in the flood proofing program and authorized USACOE to elevate their house. (ROR. Items j, p.) The record reveals that while the plaintiffs' house prior to elevation had existing wooden decks and brick walks, it did not have a wrap around side deck that now exists as a result of the raising of the house. (ROR, Item w, p. 4.) The record supports the ZBA's conclusion that the plaintiffs were aware that they did not have the requisite permission or permits to build the side deck at issue in this appeal. The zoning enforcement officer for the city of Milford, Linda Stock, testified that she had explained to the plaintiff Leontine Pietruska, that the construction of the side deck was done without permits. (ROR, Item w, p. 12.) Stock also testified that other decks on the property were placed there without permits and did not "come to light" until the house was raised. (ROR, Item w, p. 12.)
At the public hearing, the plaintiffs' counsel asserted that the variance was necessary because of hardship, specifically citing problems of size, shape and the topography of the land (ROR, Item w, pp. 1-2.) The plaintiffs claimed they were not aware they had to get a permit and were assured that the work was done on USACOE's permit. (ROR, Item w, p. 2.) The record, however, does not establish the requisite legal hardship that would support the granting of the variance. The burden is on the plaintiffs to establish hardship. See Carini v. Zoning Board of Appeals, 164 Conn. 169, 172, 319 A.2d 390 (1972), cert. denied, 414 U.S. 831, 94 S.Ct. 64, 38 L.Ed.2d 66 (1973), reh. denied, 414 U.S. 1087, 94 S.Ct. 610, 38 L.Ed.2d 494 (1973).
"The hardship must arise from circumstances or conditions beyond the control of the property owner." (Internal quotation marks omitted.) Kelly v. Zoning Board of Appeals, 21 Conn. App. 594, 598, 575 A.2d 249 (1990). "The hardship which justifies a zoning board of 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." (Internal quotation marks omitted.) Stilson v. Danbury, Superior Court, judicial district of Danbury, Docket No. 316952 (May 11, 1995, Stodolink, J.). "Where the claimed hardship arises from the applicant's voluntary act, however, a zoning board lacks the power to grant a variance." Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39, 438 A.2d 1186 (1982). "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." Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239-40, 303 A.2d 743 (1972).
The plaintiffs built the wrap around side deck without first seeking a variance. This is a self-created hardship because the side deck was not required by, or incident to, the USACOE house raising project. The location of the side deck is not beyond the control of the plaintiffs because the plaintiffs voluntarily added it when they raised their home. "[T]he fact that an owner is prohibited from adding new structures to the property does not constitute a legally cognizable hardship. If it is a hardship to not be able to use one's property as one wishes, then most setback variances would have to be granted." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 210-11 n. 13. After a review of the record, it is apparent that no side deck existed prior to the raising of the house. Before the ZBA, the plaintiffs indicated that the side deck replaced an existing brick walkway, not an existing deck. This is merely a disadvantageous situation arising from a voluntary act on the part of the plaintiffs and cannot be considered a hardship. See Pollard v. Zoning Board of Appeals, supra, 186 Conn. 42-43 (finding self-created hardship where defendants were unable to comply with requirements of zoning regulations because of an error made by a surveyor in subdividing the property).
Yvette Fallon (Fallon), the plaintiffs' attorney, stated: "With the only wood deck that was not raised, that was not existing in . . . the form that it exists now is a small brick walkway to the front of the property that . . . originally was a brick walkway but it was not feasible to raise the brick walkway and they raised wood instead . . ." (ROR, Item w, p. 2.) Fallon also stated: "Nothing was added except for the small brick walkway of 10 feet towards the front of the premises that they raised as wood instead of brick . . ." (ROR, Item w, p. 4.)
The plaintiffs cite Stillman v. Zoning Board of Appeals, 25 Conn. App. 631, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991), for the proposition that a hardship may arise from the size or configuration of a lot and from the location of existing structures or improvements. In Stillman, the court held that the plaintiff, who requested a variance in order to build an addition, established hardship due to the configuration of the lot and the location of the well and septic system. See id., 636-37. Contrary to the plaintiffs' contention, the reasoning of Stillman does not apply to the present case. Unlike Stillman, the plaintiffs have failed to establish that the configuration of the subject property or the location of any existing structures constitute an undue hardship. Moreover, Stillman has been called into question by the Supreme Court's decision in Bloom v. Zoning Board of Appeals, supra, 233 Conn. 210-11 n. 13. In Bloom, as indicated earlier, the court stated that there is no legally cognizable hardship when an owner is prohibited from adding new structures to the property.
Specifically, the Supreme Court stated: "Although we distinguish Stillman from this case, we do not necessarily endorse its holding." (Emphasis added.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 210-11 n. 13, 658 A.2d 559 (1995).
The court finds that the first reason articulated by the ZBA to deny the plaintiffs' variance is reasonably supported by the record.
B
The plaintiffs further appeal the denial of the variance on the ground that the ZBA acted illegally, arbitrarily and in abuse of discretion in that, "[i]ts decision is not in harmony with the purposes and intent of the Regulations and is detrimental to the public health, safety and welfare." (Appeal, ¶ 13(f).) The plaintiffs argue that the requested variance is in harmony with the purpose and intent of the regulations by rendering the house in conformance with the city's flood hazard regulations, by providing off-street parking and by decreasing the existing setback of the side yard. Additionally, the plaintiffs argue that few homes in the neighborhood conform to the side yard setbacks and that improvements like decks and patios predate current zoning regulations. The defendant claims that there is no support in the record that the variance would not affect the comprehensive zoning plan, especially since a primary purpose of zoning is to lessen congestion and the deck at issue intrudes on the neighbor's house.
The record fails to disclose that the variance would not substantially affect the comprehensive zoning plan of the neighborhood. "The comprehensive plan is to be found in the scheme of the zoning regulations themselves." (Internal quotation marks omitted.) Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 713, 535 A.2d 799 (1988). Here, Article 1, Section 1.1 of the Milford Zoning Regulations provides in part: "There is hereby established a comprehensive zoning plan . . . which plan . . . is adopted for the purposes set forth in the General Statutes of the State of Connecticut which, in the interest of protecting and promoting the public health, safety and welfare, shall be deemed to include the following . . . [t]he protection of the character of existing built-up areas and the enhancement of the appearance of the community as a whole . . . [t]he preservation of sites, buildings and uses of historical significance to the community . . . [t]he minimization of non-conforming buildings and lots in existing built-up areas . . . [t]he encouragement of the private sector to renew and upgrade neighborhoods in which deterioration has become apparent . . . [t]he control of the form of growth in newly developing areas . . . [t]he provisions for economic health of the community in harmony with the City Development Plan . . . [t]he preservation of open spaces and natural features of the land . . . [t]he provision of adequate and efficient public facilities and services."
In addition, the record reflects that the defendant's decision to deny the requested variance on the basis that the deck "intrudes on the neighbors with less than 4 inches on the property line," and that "the deck is not in keeping with the community" is supported by the record. There was testimony before the board that the deck overshadows the neighbor's home, coming within 0.4 ft. of the property line, and abuts the neighbor's bathroom and bedroom. (ROR, Item w, pp. 27-28.) In fact, James A. Grutzmacher, an abutting neighbor, testified that the deck at issue "almost overhangs our property," obstructs the view and the air, and is "a fire hazard." (ROR, Item w, p. 33.) Moreover, a letter from the Point Beach Improvement Association of Milford states that, "the decks constitute a fire hazard as they are within inches of other structures. If a fire ensued, it would quickly spread to the abutting property(s) placing the neighborhood in jeopardy. If for no other reason, the application should be denied for the safety of the residents." (ROR, Item i.) Additionally, the letter states that, "[t]he set backs that they are requesting are incongruous . . . [a]llowing the side set back to be reduced to 0.4 ft and permitting the decks to remain would be counterproductive to the Planning and Zoning Department." (ROR, Item i.) While the plaintiffs offer evidence and testimony from other neighbors that the raising of their house has "enhanced the neighborhood and the integrity of the neighborhood," that evidence tends to support the other variances that the defendant granted to the plaintiffs, and not the variance that is the subject of this appeal. (ROR, Item w, pp. 8-9.) Accordingly, in reviewing the record as a whole, this court finds that the evidence is sufficient to support the ZBA's determination that the deck at issue is intrusive and is not in keeping with the community.
C
The plaintiffs further appeal the denial of the variance on the ground that, "[t]he decision of the ZBA is inconsistent with the provisions of Connecticut General Statutes Section 8-13a." (Appeal, ¶ 13(h).) The plaintiffs claim that the prior ground level side deck and walkway were nonconforming and therefore, it was not necessary for them to seek a variance for the elevated side deck. Further, they argue that the deck and the brick walkways are "structures" within the definition of a "building" under the regulations. The defendant, however, contends that the ground brick walkway was not the "grandfather" of the elevated deck and that the walkway is neither a "structure" nor a "building" as provided in General Statutes § 8-13a.
Section 8-13a of the General Statutes provides, in relevant part, that: "[w]hen a building is so situated on a lot that it violates a zoning regulation of a municipality which prescribes the location of such a building in relation to the boundaries of the lot . . . and when such building has been so situated for three years without the institution of an action to enforce such regulation, such building shall be deemed a nonconforming building in relation to such boundaries or to the area of such lot, as the case may be." If the side deck has become a nonconforming use as a result of [General Statutes] § 8-13a, a variance would not be required. "A variance requires proof of hardship imposed by the zoning regulations, as a condition precedent to waiver of the provision in the regulations, but no variance is needed if the [deck] is legally protected as a valid nonconforming use." Kucej v. Zoning Board of Appeals, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 93 03064785 (April 28, 1994, Fuller, J.).
It is unclear from the record whether the ZBA considered the claim of a nonconforming use and rejected it based on the lack of evidence at the public hearing or whether it failed to consider that claim at all. Since the resolution of this issue is unnecessary to decide this appeal, this court will not decide this issue. The court notes, however, that the record does not establish that the plaintiffs expressly argued before the ZBA that no variance was necessary because of a prior legally nonconforming deck. Rather, the record reveals that the plaintiffs specifically sought a variance of Section 4.1.4 of the Milford Zoning Regulations, requiring side yard setbacks. "It is well known that an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level . . . This rule applies to appeals from administrative proceedings as well." (Citations omitted; internal quotation marks omitted.) Towbin v. Board of Examiners of Psychologists, 71 Conn. App. 153, 175-76, 801 A.2d 851, cert. denied, 262 Conn. 908, 810 A.2d 277 (2002).
In conclusion, a review of the record indicates that the ZBA did not act illegally, arbitrarily or in abuse of its discretion when it denied the variance sought by the plaintiffs. Accordingly, this court dismisses the plaintiffs' appeal.
CREMINS, JUDGE.