Opinion
No. CV 07 4006601
June 18, 2008
MEMORANDUM OF DECISION
I. STATEMENT OF APPEAL
The plaintiff, Ronald Prisley, appeals from the decision of the defendant, the zoning board of appeals of the town of Deep River (ZBA), denying his application for a variance of the minimum rectangle requirement needed to build a house pursuant to the town's regulations.
II. BACKGROUND
On November 21, 2006, the ZBA held its first public hearing regarding the plaintiff's application for a variance of the minimum rectangle requirement of a parcel of land in which the plaintiff sought to build a one-family residence on property located on 164 Cedar Lake Road, Deep River, Lot No. 2-A of Subdivision Map 16. (Return of Record [ROR], Exhibit [Ex.] 1, 5.) At this meeting, three exhibits were introduced into evidence, two subdivision maps and a letter from the Connecticut River Area Health District to Ronald Prisley, giving the plaintiff's plan health district approval only. (ROR, Ex. 5a, 5b, 5c.)
Schedule 5-A of the town's regulations require that a building rectangle in a R-40 residential zone, the zone in this matter, must measure at least 150 x 200 feet. (ROR, Regulations, Section 5-A.) In support of his variance application, the plaintiff stated that the property in question is a parcel that consists of over five acres, with the middle portion of the parcel already having been subdivided. (ROR, Ex. 5, p. 4-10, Ex. 5a, 5b.) The plaintiff stated that he wished to build a new home on the front portion of the property on which a mobile home is currently located. (ROR, Ex., p. 4-5.) Due to the existing mobile home on the front lot, the front portion of the property makes an oddly shaped L. (ROR, Ex. 5, p. 4-11, Ex. 1a, 5a, 7.) The plaintiff argues that a hardship exists because although the back portion of his property conforms to the regulations, the front lot, the subject of this appeal, is of such an odd shape that without a variance, he will be unable to build on it. (ROR, Ex. 5, p. 4-12.) At the hearing, some abutting landowners expressed their concern regarding the variance, stating that the variance would not conform to the character of the neighborhood. (ROR, Ex. 5, p. 8-10.) At the close of the public hearing, the ZBA agreed to continue the meeting to December 19, 2006. (ROR, Ex. 5, p. 15.)
At the December 19, 2006 hearing, six additional exhibits were introduced as evidence. (ROR, Ex. 7a-7f.) At this hearing, the plaintiff stated that he would be removing the existing mobile home on the front parcel. (ROR, Ex. 7, p. 7.) The hearing revealed that the plaintiff was looking to subdivide one lot, Lot 2A, into two separate lots, both front and back, and was seeking the variance on the front portion. (ROR, Ex. 7, p. 8.) Plaintiff needed to obtain the variance on the front parcel in order to get full approval for the subdivision. (ROR, Ex. 7, p. 18-20.) After some initial confusion, the hearing established that the regulations require a building rectangle of 150 x 200 feet, but the maps submitted by the plaintiff only provided for a building rectangle of 150 x 121 feet, 79 feet short of the required regulations on both the north and south sides of the front parcel. (ROR, Ex. 7, p. 23-26.) The plaintiff then asked the commission to take into consideration the fact that he did not break up his property in such an odd way. (ROR, Ex. 7, p. 28.) Two people spoke against the plaintiff's application, the meeting concluded and the tape recording was shut off. (ROR, Ex. 7, p. 29-36.)
The ZBA did not record the portion of the hearing in which it determined to deny the plaintiff's variance, but the minutes from the meeting were submitted as part of the record. (ROR, Ex. 8.) This court, (McWeeney, J.), on August 13, 2007, granted a motion for clarification, stating that the minutes from the December 19, 2007 hearing were sufficient to supplement the record in the absence of the hearing transcript. The minutes from the hearing indicate that the ZBA unanimously voted to deny the plaintiff's variance because "1) there was no proven hardship, 2) there is sufficient land to build a residence, 3) the applicant's desire to subdivide the property does not constitute a legal hardship, 4) there was opposition from abutting landowners citing depreciation of their property." (ROR, Ex. 8.) Notice of the decision was published in the Hartford Courant on January 26, 2006. However, the plaintiff's name was listed as Richard, instead of Ronald, and due to this error, notice was published again on January 9, 2007. (ROR, Ex. 10, 11, 13.) The plaintiff commenced this appeal on January 10, 2007. Trial was held on May 16, 2008.
III. JURISDICTION CT Page 10190
General Statutes § 8-8 governs an appeal from the decision of a zoning board of appeals to the Superior Court. "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.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
A. Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003). A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
"Two broad yet distinct categories of aggrievement exist, classical and statutory. Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665.
At trial, a copy of the plaintiff's property deed was submitted as evidence, proving that the plaintiff is the owner of the property that is the subject of this appeal. (Plaintiff's Ex. 1.) The property involved in the ZBA's decision is situated at 164 Cedar Lake Road, Deep River, Connecticut, 06417. "The plaintiff's status as owner of the property establishes that [he] has `a specific personal and legal interest in the subject matter of the decision.' The fact that the agency's decision resulted in the denial to the plaintiff of the ability to use this property as proposed establishes that `this specific personal and legal interest has been specially and injuriously affected.'" Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530, 525 A.2d 940 (1987). The court finds, therefore, that the plaintiff is classically aggrieved by the ZBA's decision.
B. Timeliness and Service of Process
Pursuant to General Statutes § 8-8(b), 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." General Statutes § 8-8(f) provides in relevant part: "Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows . . . (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57 . . ." General Statutes § 52-57(b) provides that in an action against a town commission, process must be served "notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the . . . commission." General Statues § 52-57(b)(5).
The ZBA published notice of its decision in the Hartford Courant on January 9, 2007. (ROR, Ex. 13.) The plaintiff commenced his appeal by service of process on the Deep River town clerk on January 10, 2007. (Marshal's Return.) Accordingly, the court finds the plaintiff's appeal was timely and service of process was proper.
IV. SCOPE OF REVIEW
"In challenging an administrative agency action, the plaintiff has the burden of proof. The plaintiff must do more than simply show that another decision maker, such as the trial court, might have reached a different conclusion. Rather than asking the reviewing court to try the case de novo . . . the plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision." (Internal quotation marks omitted.) Tarullo v. Inland Wetlands Watercourses Commission, 263 Conn. 572, 584, 821 A.2d 734 (2003).
As the Appellate Court stated in Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 859-60, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005):
CT Page 10192
[N]either this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion. (Quoting Towbin v. Board of Examiners of Psychologists, 71 Conn.App. 153, 162-63, 801 A.2d 851, cert. denied, 262 Conn. 908, 810 A.2d 277 (2002).)
In Gibbons v. Historic District Commission, 285 Conn. 755, 769-70, 941 A.2d 917 (2008), the Supreme Court recently stated:
[W]hen a zoning commission has formally stated the reasons for its decision, the court should not go behind that official collective statement . . . [and] attempt to search out and speculate [on] other reasons which might have influenced some or all of the members of the commission to reach the commission's final collective decision . . . Notwithstanding the statutory language providing that a zoning commission shall state its reasons for a decision, we also long have held that when a commission gives no reason for its decision, the trial court must search the entire record to find a basis for the commission's decision. (Citations omitted; internal quotation marks omitted.)
In this case, the ZBA stated four specific reasons for its decision to deny the plaintiff's request for a variance. (ROR, Ex. 8.) This court, therefore, need only search the record to ensure that the reasons stated by the ZBA are supported by the evidence.
V. DISCUSSION
The plaintiff argues in support of his appeal: 1) that the ZBA acted improperly by exceeding its authority pursuant to General Statutes § 8-6 when it considered property values on abutting landowners in accordance with Section 16.5 of the town's zoning regulations in denying his variance, and 2) that the ZBA exceeded its discretion in denying the variance because the plaintiff properly showed a hardship. The plaintiff's second argument will be addressed first because "proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995).
A. Hardship
The plaintiff argues that the shape of his property creates a hardship and the denial of his variance application, given the unusual shape of the parcel, constituted an abuse of discretion on the part of the ZBA. The town, on the other hand, argues that the plaintiff only seeks a variance because he will be unable to resubdivide his property without one and that the situation is "self-created" and thus not a sufficient hardship for which a variance may be granted.
The law regarding variances is well settled. As set forth in Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206:
A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town . . . It is well established, however, 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 . . . 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.
(Citations omitted; internal quotation marks omitted.) Id., 206-08.
In this case, the ZBA denied the application because the plaintiff failed to show a sufficient hardship. The plaintiff claims that the L shape of his front parcel caused a hardship, and therefore, the ZBA's decision to deny the variance was an abuse of discretion. In support of his claim, the plaintiff cites to Stillman v. Zoning Board of Appeals, 25 Conn.App. 631, 636, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991), in which the court stated 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, 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." (Citations omitted.)
The Supreme Court in Bloom v. Zoning Board of Appeals, supra, 233 Conn. 210-11 n. 13, addressed the holding in Stillman as follows:
[w]e do not consider Stillman dispositive in this case. In Stillman, there were permanent structures on an undersized but legally nonconforming lot that prevented the defendant from constructing the proposed addition at any location other than within the setback. Therefore, because construction was possible only within the setback, the court concluded that the defendant was entitled to a variance . . . [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 variance applications would have to be granted . . . Although we distinguish Stillman from this case, we do not necessarily endorse its holding.
The town relies on Aitken v. Zoning Board of Appeals, 18 Conn.App. 195, 557 A.2d 1265 (1989), which is factually similar to this case. In Aitken, the court stated:
CT Page 10195
[w]here the claimed hardship arises from the applicant's voluntary act . . . 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 beyond the control of the party involved . . . It is well established that a hardship that is self-created is never a proper grounds for a variance.
(Citation omitted; internal quotation marks omitted.) Id. 205-06.
In Aitken, as in the present case, the reason for the variance application was that the applicant wanted to subdivide his property into two lots. Without the variance, the applicant would not be able to subdivide his property. In Aitken, the situation was considered self-created and therefore, not a sufficient reason to depart from the zoning regulations. Id. 206. Here, as in Aitken, the plaintiff seeks to obtain a variance in order to have his full subdivision plan approved. (ROR, Ex. 1, 1a, 7, p. 18-20.) Without such approval, the plaintiff will be unable to build a house on his front parcel. As noted at the public hearing, the Conservation and Inland Wetlands Commissions approved the plaintiff's subdivision plan provided the plaintiff could obtain a variance on the front parcel. (ROR, Ex. 7, p. 19-20.) The record indicates that the plaintiff is 79 feet short on both the north and south sides of the property. (ROR, Ex. 7, p. 24-26.) Upon review, the record supports the ZBA's decision to deny the plaintiff's variance application on the ground that no hardship was proven. As in Aitken, the plaintiff's desire to subdivide his property does not constitute a legal hardship. (ROR, Ex. 8.) The ZBA, therefore, did not abuse its discretion when it denied the plaintiff's variance application. The appeal is therefore dismissed on this ground.
B. Limiting Authority
The plaintiff argues that the ZBA acted improperly by exceeding its authority pursuant to General Statutes § 8-6 when it considered property values of abutting landowners, in accordance with Section 16.5 of the town's zoning regulations, in denying his variance. Specifically, the plaintiff argues that the town regulations impermissibly limit the ZBA in determining a variance by requiring the ZBA to consider an additional twelve factors. In support of that argument, the plaintiff cites to Jersey v. Zoning Board of Appeals, CT Page 10196 101 Conn.App. 350, 921 A.2d 683 (2007). The plaintiff's reliance on Jersey, however, is misplaced.
General Statutes § 8-6(a) states in relevant part that
(a) The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter; (2) to hear and decide all matters including special exceptions and special exemptions under section 8-2g upon which it is required to pass by the specific terms of the zoning bylaw, ordinance or regulation; and (3) to 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 so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed.
Section 16.5 of the Deep River regulations states in relevant part that "[i]n addition to other requirements established within these Regulations, the Zoning Board of Appeals, prior to making its decision regarding any application for a variance or any other matter requiring Board action in accordance with the provisions of these regulations, shall consider, at a minimum, the following factors . . . (5) the resultant effect the proposal under consideration would have on the value and utilization of other properties within the surrounding neighborhood." The regulation lists twelve factors which "shall" be considered when the board seeks to act on a variance.
In Jersey, the plaintiffs argued that the Derby regulations required applicants for a variance to demonstrate that they were unable to make any reasonable use of the property. The court held that General Statutes § 8-6(a)(3) authorized a zoning board of appeals to grant a variance where the comprehensive zoning plan would not be substantially affected and adherence to the strict letter of the zoning regulations would cause an unusual hardship that is unnecessary to the carrying out of the general purpose of the zoning plan. The court stated:
In the present case, the regulation requires that every applicant seeking a variance must satisfy a test that has been reserved for the rare circumstance in which a property is rendered practically worthless. In other words, the requirement that the property cannot have any reasonable use has been grafted onto every application for a variance rather than the limited situation for which it was designed . . . This additional requirement impermissibly limits the power, given by the General Assembly, of the [ZBA] to grant variances in cases in which a hardship has been established, even if the property may be put to some other reasonable use. Simply put, it prohibits the [ZBA] from utilizing its discretion to determine whether to grant or deny a variance in favor of a bright-line rule.
Id. 359-60.
Here, section 16.5 of the Deep River regulation requires the ZBA to consider twelve factors, at a minimum, when granting a variance. (ROR, Ex. 14.) The regulations do not require the plaintiff to show that he can make no other use of his property, as in Jersey which mandated the denial of a variance in the absence of such showing. Regulation 16.5 requires the ZBA to consider such factors as public health, safety, convenience, welfare and property values in conformance with § 8-6(a)(3). Regulation 16.5 does not require the plaintiff to make special showings above and beyond the two set forth in General Statutes § 8-6. Although section 16.5 does require consideration of twelve factors, the regulation does not direct the ZBA's actions, requiring it to grant or deny a variance based on its consideration of those factors. Thus the regulation does not place impermissible restrictions on the discretion of the ZBA as prohibited in Jersey. The court therefore concludes that the ZBA did not abuse its discretion when it considered the effect of the proposed variance on abutting property owners in denying the plaintiff's application. The appeal, therefore, is hereby dismissed on this ground.
An abutting landowner noted the potential detrimental effect the variance could have on his property at the November 21, 2006 hearing, and further, two abutting landowners discussed the detrimental effect the variance would have on the surrounding neighborhood. (ROR, Ex. 5, p. 6-11.)
VI. CONCLUSION
Because there is record support for the ZBA's decision to deny the plaintiff's variance application, the appeal is dismissed on all grounds.
It is So Ordered, this 18th day of June 2008.