Opinion
FBTCV166058335S
02-08-2017
Reef, LLC v. Stratford Board of Zoning Appeals et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
Plaintiff Reef, Inc. has appealed from the decision of the Stratford Board of Zoning Appeals (" ZBA") that granted the application of the Town of Stratford and the Town of Stratford Building Needs Committee (collectively the " Town") for six variances from strict enforcement of the Stratford zoning regulations (the " Regulations") to build a modern public high school on a downtown site where Stratford High School has been located since 1924. For the reasons stated below, the appeal is denied and the ZBA's decision to grant the variances is affirmed.
Standard of Review
In Anatra v. Zoning Board of Appeals of Madison, 307 Conn. 728, 737-38, 59 A.3d 772 (2013), the Supreme Court addressed the standard of review applicable to judicial review of a Zoning Board of Appeal's decision. " Generally, it is the function of a zoning board . . . to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court ha[s] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts . . . In applying the law to the facts of a particular case, the board is endowed with liberal discretion, and its action is subject to review . . . only to determine whether it was unreasonable, arbitrary or illegal . . . Moreover, the plaintiff's bear the burden of establishing that the board acted improperly." 307 Conn. at 737-38 (ellipsis in original) quoting Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 408-09, 920 A.2d 1000 (2007).
A reviewing court is not permitted to substitute its judgment on the evidence for that of the Board. " 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 the trial court finds 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." Woodbury Donuts, LLC. v. Zoning Board of Appeals of Woodbury, 139 Conn.App. 748, 759-60, 57 A.3d 810 (2012) (citations omitted).
A zoning board's actions must be approved if even one of the board's stated reasons is sufficient to sustain the action. See Blakeman v. Planning & Zoning Com'n of Shelton, 82 Conn.App. 632, 647, 846 A.2d 950 (2004).
The Anatra Court also distinguished between issues based on the interpretation of statutes, which presents a question of law subject to plenary review, and the question of whether the board properly ruled on an application, which is " subject to review only to determine whether the board 'acted unreasonably, arbitrarily, illegally or in abuse of its discretion.'" Anatra, 307 Conn. at 738 quoting Alvord, 282 Conn. at 409.
Plaintiff bears the burden of proving the ZBA acted improperly in granting the variances. Wood v. ZBA Somers, 258 Conn. 691, 698, 784 A.2d 354 (2008).
Plaintiffs Are Aggrieved by the ZBA Decision
Plaintiff owns and operates a carwash within one hundred feet of the subject premises with a driveway egress near the planned pedestrian footbridge and thus is aggrieved by the ZBA's decision under C.G.S. § 8-8(a)(1).
Standards for Granting a Variance
A variance constitutes permission for a party to use their property in a manner otherwise prohibited by the zoning regulations. Bloom v. ZBA, 233 Conn. 198, 206, 658 A.2d 559 (1995). The authority for granting variances is set forth in C.G.S. § 8-6(a)(3) which allows the board to vary the application of the zoning ordinance or regulations, consistent " 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." See generally R. Fuller, Land Use Law & Practice § 9:1 (4th ed. 2016) (" Fuller").
" A variance is granted for a particular piece of property and can be used by all subsequent owners; it is a legal status granted to property, and for that reason, the financial loss or potential of financial advantage to the property owner is not a proper consideration for the zoning board of appeals when deciding a variance.
To sustain the granting of a variance there must be evidence that: 1.) because of circumstances unique to the property adherence to the strict letter of the zoning regulations would cause exceptional difficulty and unusual hardship and 2.) the variance is not substantially inconsistent with and effect the town's comprehensive plan of development. See Grillo v. ZBA West Haven, 206 Conn. 362, 537 A.2d 1030, (1988); Bloom v. ZBA Norwalk, 233 Conn. 198, 206, 658 A.2d 559 (1995). See generally Fuller § 33.7.
There is an alternative to hardship as a ground for issuance of a variance: " [a] variance which will eliminate a nonconforming use is an independent ground for approving the variance. The reduction of existing nonconforming uses or the change of one nonconforming use to another one which has less impact on the neighborhood may also constitute a ground for granting a variance in some situations." Fuller § 9:3 (footnotes omitted). See Hescock v. ZBA of Stonington, 112 Conn.App. 239, 258-59, 962 A.2d 177 (2009), quoting Vine v. ZBA of North Branford, 281 Conn. 553, 571, 916 A.2d 5 (2007).
Review of the ZBA's granting of the variance starts with analysis of the reasons for the board's action. " Whenever a zoning board of appeals grants a variance, it is required to state the reasons for its action . . . Where the board states the reasons for its decision, the court only determines if those reasons are reasonably supported by the record and are pertinent to the considerations that the board was required to apply. Where the board fails to state its reasons for granting or denying a variance, the court must search the record to attempt to find some basis for the action taken. If a zoning board of appeals gives no reasons for granting variance the trial court searches the record to determine whether the board should have granted it." Fuller § 33.7 (footnotes omitted).
On July 5, 2016, the ZBA unanimously approved the granting of the six variances requested. The motion cited the following reasons for approval based on " the hardships listed as the parcel is too small to support modern high school structure, for the clearance requirements, the site is too small to accommodate current parking demand, current parking is not sufficient, existing building size and location in relation to the site circulation." The reasons for approval of the variances dated July 6, 2016, by Stratford's Planning & Zoning Administrator, Jay Habansky, were as follows:
1. Size and shape of lot(s) undevelopable to meet the needs of modern school,
2. Modern school cannot be constructed while meeting the design standards of a single-family residential zone.
The Court has searched the record to review the background and supporting evidence for the reasons given by the ZBA for its decision. In addition to the site plan and assessor's map, the most cogent evidence in the record that supports the decision are the comments and recommendations of Mr. Habansky, dated June 21, 2016, the project summary, and the testimony of an architect, George Perham, and a civil engineer, Antonio DiCamillo, about the design of the proposed improvements.
Mr. Habansky described the hardship underlying the need for the variances:
In general, the qualifying hardship refers to a parcel of land having unusual conditions, not generally encountered within the zoning district, that would make development in full accordance with the regulations extremely difficult. In legal terms, the conditions must cause 'exceptional difficulty or unusual hardship.' Traditionally, the zone development standards for an RS-4 District, which this development presides, are in place to guide and restrict the development of single-family dwellings, not a modern high school. In this instance, it would be exceptionally difficult to develop a modern high school, that meets the needs of students and faculty, while subject to single-family development standards . It appears as if the applicant has satisfied the claimed hardship requirements that qualify for consideration of granting the requested waivers. (Emphasis added.)
Plaintiff asserts that the Town's rationale for obtaining the variances is either not a hardship or is a self-created hardship because the variances are driven by the Town's decision to expand the high school to fulfill requirements imposed by the Town, and by state and local boards of education, on a site that it too small to meet the desire to modernize and maintain the Stratford High School on its present site.
" 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 . . ." Bloom v ZBA Norwalk, 233 Conn. 198, 207, 658 A.2d 559 (2003) citing Krejpcio v. ZBA Hartford, 152 Conn. 657, 662, 211 A.2d 687 (1965) (" [d]isappointment in the use of property does not constitute exceptional difficulty or unusual hardship"). The Supreme Court in E & F Associates v. ZBA Fairfield, 320 Conn. 9, 18, 127 A.3d 986 (2015), recently cited Krejpcio in holding that the inability to add a second floor to a commercial building was not a hardship for a zoning variance.
" . . . [T]he fact that the peculiar characteristics of the applicant's property made it difficult to construct a second story on the building that would comply with setback requirements did not justify the granting of the variance when the evidence established that the property would have economic value if the variance were denied." E & F Assocs., 320 Conn. at 18.
Plaintiff argues that the hardship must arise from circumstances or conditions beyond the control of the property owner citing Garibaldi v. ZBA Norwalk, 163 Conn. 235, 238-39, 303 A.2d 743 (1972) and Smith v. ZBA, 174 Conn. 323, 327, 387 A.2d 542 (1978). Here, plaintiff argues all the Town demonstrated was that the site was undersized for the project as designed and it failed to show a new high school could not be built on the site without the need for variances or that there were no other sites available. Plaintiff also argues that the Town failed to prove the hardship did not exist when it acquired the property.
" Similarly, it is also well established that self-inflicted hardship which arises because of individual actions by the applicant will not provide a zoning board of appeals with sufficient reason to grant a variance . . . Hardships in such instances as these do not arise from the application of zoning regulations, per se, but from zoning requirements coupled with an individual's personal needs, preferences and circumstances. 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, 163 Conn. at 239-40 (citation omitted). The Town's need, preference and circumstance is to replace an obsolete high school with a modern high school to serve its residents and the community, according to the evidence in the record.
In Garibaldi the Supreme Court agreed with the proposition " under § 8-6 of the General Statutes and the decisions of this court that a variance is properly granted only where there is a showing before the zoning board of appeals that the hardship caused by the application of zoning regulations relates to the property for which the variance is sought and not to the personal hardship of the owners thereof. We agree with the merits of this contention and find it decisive on this appeal." 163 Conn. at 238.
The problem with plaintiff's position is that it fails to appreciate that in weighing whether there is a hardship sufficient to support a variance the ZBA must consider not only the particular property but also the use of that property regulated by zoning. " '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.'" Bloom, 233 Conn. at 207 (citation omitted). Analysis of whether the application of the zoning laws produces an unusual hardship must consider whether there is undue interference with the lawful use intended for the property, which here is the construction and operation of a modern public high school.
That the Town is the applicant is not irrelevant, as plaintiff asserts, because the present and planned use of the site as a public high school is a municipal function subject to requirements and design considerations not applicable to a non-municipal use. I am mindful " [v]ariances go with the land and apply to the use of the land, not the user of the land, " Fuller § 9.1, but here the public use and the user are inextricably linked. The project summary presented detailed information to the ZBA about the project development and requirements. Presumably, members of the ZBA also drew on their knowledge of the site, adjacent neighborhoods and the community.
The ZBA was confronted with a particular property that historically had been used as of right for a unique purpose different than the surrounding neighborhood and a use for which applicable zoning regulations had not been designed or adopted. The site had been used for Stratford High School for 92 years. The site consists of two parcels of 10.35 acres separated by a public street, with frontage on multiple streets, located in two zoning districts, RS-4 (residential) and LB (commercial). The variances sought are from the RS-4 regulations because the site is predominantly in the residential district. The area is well-developed and central to downtown Stratford. Its use as a public high school sets it apart from the surrounding neighborhoods. Although the present Stratford High School predates zoning, schools are a permitted use in the RS-4 zone subject to special permit review. As a permitted use, there is a presumption that such use does not adversely affect the district and is in general harmony with the district. See e.g., TLC Development, Inc. v. PAZ, 215 Conn. 527, 532-33, 577 A.2d 288 (1990). This use is also consistent with the Plan of Conservation and Development (" POCD") that recommends construction of high performance schools and municipal projects. The strong preference of the Town is to continue the site's historic use as a public high school with the existing obsolete structure replaced by a modern high school.
The Town has obtained " special case" approval of its plan for the new high school from the Stratford Planning & Zoning Commission, which is the subject of a pending zoning appeal, Reef LLC v. Stratford Zoning Comm'n et al., FBT CV 16-6058900-S, .
The proposals incorporate many performance standards set forth in the POCD.
To construct a modern high school on this site to replace the existing obsolete structure and to continue the present permitted use as a public high school required adherence to state and local requirements outside the control of the Town that influenced the design and resulted in a plan in conflict with certain zoning regulations applicable to the residential zone. Reasonable use of the site for a modern high school must include design to carry out the programmatic needs assessed by educational authorities. Without the variances the evidence in the record shows the Town could not construct a modern high school that met its needs, fulfilled requirements and continued the present use of the site as a public high school with its present enrollment and programs. It must be stressed that the requirements imposed on the Town in the construction of a new public high school are imposed by outside requirements related to the construction of a public school, gymnasium and auditorium, not merely the sort of personal considerations or desire to modernize a non-conforming structure for convenience held not to be a hardship in Verrillo v. ZBA Branford, 155 Conn.App. 657, 691-95, 111 A.3d 473 (2015).
As the Town's Zoning Administrator observed: " standards for an RS-4 District, which this development presides, are in place to guide and restrict the development of single family dwellings, not a modern high school. In this instance, it would be difficult to develop a modern high school, that meets the needs of students and faculty, while subject to single family standards." Both the architect, Mr. Perham, and the engineer, Mr. DiCamillo, testified about the requirements factored into the design to plan a new modern high school on the site. Mr. DiCamillo addressed the hardships addressed in accommodating the plans to site conditions to carry out the school program and building requirements.
The ZBA received evidence of the extensive design process and requirements reflected in the proposed improvements to the site.
The existing structure is non-conforming in certain respects to the RS-4 regulations and the replacement building will reduce certain non-conformities and subject the project to special permit review to further the goals of the zoning regulations. Strict adherence to zoning requirements that were adopted to regulate a residential neighborhood of single-family homes, not tailored to meet the site's use as a public high school, would require the Town either to abandon the site when there was no reasonably available alternative, continue to utilize the existing obsolete, nonconforming facility or to replace it with a substantially smaller structure that did not meet its needs to comply with zoning requirements never intended to apply to a public high school. This constitutes a hardship that the ZBA could rectify by issuing the variances requested. The ZBA had substantial evidence in the record as to the unique use of the site, pre-existing non-conformities and the unusual size, shape, topography and location of the site to sustain its granting of the variances.
When the Town acquired the site there were no zoning laws so ipso facto there was no hardship.
Architect Perham testified about Stratford's unsuccessful efforts to find a suitable alternative location for Stratford High School. The ZBA was presented with this evidence, and no evidence of another suitable location, so the board could reasonably have concluded there was no available, suitable alternative site.
Forcing the Town to build a public high school of a size that did not meet its reasonable educational needs is analogous to the cases which upheld variances to ameliorate hardships that would have forced the owners to build impracticable structures of such unreasonable size that they could not accommodate the owners' lawful planned use. Compare, Stancuna v. ZBA Ansonia, 66 Conn.App. 565, 571, 785 A.2d 601 (2001) (without variance owner had choice of building a very narrow commercial building or continuing nonconforming use); MacDonald v. ZBA Waterford, 2004 WL 1326071 *5 (Conn.Super. 2004) (applying setbacks would result in impracticably small residence).
The hardship facing the Town in building a modern high school on the present site of the obsolete Stratford High School under the residential zoning regulations is unique and unlike that facing any of the other properties in the RS-4 District. See Pollard v. ZBA Norwalk, 186 Conn. 32, 39, 438 A.2d 1186 (1982). The hardship of applying residential regulations to a public high school arises " directly out of the application of the ordinances to circumstances or conditions beyond the control of the party involved." Whittaker v. ZBA Trumbull, 179 Conn. 650, 658, 427 A.2d 1346 (1980).
Nor would these variances constitute an impermissible expansion of a non-conforming use. The use of this site for a public high school is a permitted use in the RS-4 District under § § 4.1.6.1 and 6.1.6 of the Regulations (educational uses permitted), See Petruzzi v. ZBA Oxford, 176 Conn. 479, 481, 408 A.2d 243 (1979); Thomas v. PAZ Thompson, 98 Conn.App. 742, 749, 911 A.2d 1129 (2006). The non-conforming building will be substantially demolished. The permitted use as a high school on the undersized lot have not changed, any non-conformity in the planned permitted use by the new improvements was subject to special permit review and adjustment by variance under the Regulations. See Fuller, § § 52.2 and 52.3. If anything, the planned use would reduce zoning non-conformity and relieve existing traffic, safety and parking issues under the present permitted use, which is consistent with the Regulations and affords an alternative and independent ground for the variances. Hescock, 112 Conn.App. at 261. Section 14.2 of the Regulations does not bar issuance of the variances.
" A permitted use is not a nonconforming use; a nonconforming use is merely an existing use established prior to zoning regulations or which existed when the regulations changed, the continuance of which is authorized by statute or by the zoning regulations. It is not the same as an illegal use or a use allowed by variance. A variance is authority granted to the owner to use his property in a manner forbidden by the zoning regulations. Stated another way: 'A property owner may legally engage in a prohibited use under either of two dispensations. He may obtain a variance, or his use may qualify as a nonconformity . . . A nonconformity is a use of structure prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations are adopted. On the other hand, a variance is a prohibited use or structure that is permitted by the [zoning board of appeals], pursuant to its authority under the regulations.' Whether a use is permitted or nonconforming depends upon the terms of the zoning ordinance. While a variance allows a use otherwise not allowed by the zoning ordinance, a special exception allows a permitted use subject to conditions in the regulations.1" Fuller § 52.1 (footnotes omitted).
" The zoning regulations may allow a property owner to change one nonconforming use to another nonconforming use or may allow expansion of a nonconforming use by special permit. The regulations may also permit changing a nonconforming use to a less intensive nonconforming use which is more compatible with the zone or surrounding uses." Fuller § 52.2 (footnotes omitted).
The existing structures do not conform to setbacks and exceed allowed coverage limits on the site, bisected by a public street, which is undersized and irregularly shaped for its present use as a public high school. Lack of adequate on-site parking causes parking for the high school to spill over onto adjacent streets.
Examination of the specific variances granted confirm the hardships they addressed. The variance to the front yard setback in Section 4.2 of the Regulations would allow construction of a structure further way from the public street than the existing building. Adherence to setback requirements would interfere with the ability to locate a turnaround on the northwest corner for circulation of buses, trucks and fire apparatus. The variance would also permit construction of a pedestrian footbridge over the street that bisects the property, which will improve pedestrian safety for students crossing from one side of the campus to the other and the flow of street traffic on the street since cars will experience fewer pedestrians crossing the street in traffic.
The variance of the 25% maximum building coverage for the RS-4 zone in Section 4.2 of the Regulations will accommodate the proposed building coverage of 36.5% for the east parcel and 28.7% for the west parcel. The east parcel coverage for the east parcel is now 36.2% so there is not an appreciable change. The west parcel is now underutilized as playing fields and the new building will exceed coverage under zoning by 3.7%. The ZBA's decision is supported by evidence in the record that the sizes of the proposed buildings are necessary to accommodate the enrollment and programs projected for the modern high school planned to be constructed given requirements for school construction.
The variance from height restrictions allowed in the R-4 zone in Section 4.2 of the Regulations reflect the practical reality that school buildings have different requirements than single family homes. The Stratford High School currently exceeds height limitations. The requirements for construction of a new academic and administrative building on the west parcel call for erection of a three story building with a rooftop mechanical penthouse. The requirements for the gymnasium and auditorium on the east parcel call for the proposed height for proper functionality of the associated programs for which the facilities are designed. The design employs setbacks and offsets to mitigate the visual impact from the ground, which will not be as obtrusive as the current structure.
The fourth variance waives the parking requirements in Section 12.5.5 of the Regulations applicable to auditoriums and assembly halls. There is no parking requirement applicable to a high school. If the auditorium and gymnasium were stand-alone structures there would need to be 300 spaces on site. The current high school has 210 spaces and the new plan calls for 273 spaces, an increase of 63 spaces to reduce any nonconformity in parking. This will relieve the surrounding community of some school-related parking while meeting the needs of the larger facilities needed to meet requirements for a modern high school. Community needs will be met by easier access to the public auditorium and gymnasium.
The new parking areas located in four different lots around the proposed structures of the size and location discussed above required variance of the 50 foot distance from a residence not located on the property required in the RS-4 zone under Section 12.11 of the Regulations. The actual distances will be from 21 feet to 36 feet from the nearest residence. The impact is lessened by screening using plantings and fencing.
The Regulations in Section 12.11 permit the P& Z to approve an application with " lesser requirements" to permit parking spaces within 50 feet of a residence, which the P& Z did by granting special case approval to the project.
The final variance seeking relief from Section 3.14 of the Regulations was to replace an existing headwall that was deteriorating and to construct a new driveway with incidental grading. The driveway is needed to provide access to the site and connect the parking areas to be constructed to improve on-site parking. The work will reduce non-conformity and improve water quality.
The project was approved by the Stratford Wetlands and Watercourses Commission. Together with the new storm water system the ZBA received evidence that water quality would improve and the site would be brought into compliance with municipal and state standards.
Based on review of the entire record it is apparent the ZBA recognized the net effect of constructing a modern high school on the site of Stratford High School would improve the health, safety and quality of the area and reduce the effect of existing non-conformities, which is consistent with and in furtherance of the zoning laws and regulations and the plan of conservation and development. The decision of the ZBA is supported by substantial evidence in the record.
Plaintiff has failed to meet its burden that the ZBA acted illegally, arbitrarily or in abuse of its discretion. The assigned grounds for the variances are reasonably supported by the record of the hearing and they are pertinent to the considerations which the authority was required to apply under the zoning regulations. The appeal is denied and the ZBA's grant of the variances is affirmed.
" 'The standard of review on appeal from a zoning board's decision to grant or deny a variance is well established. We must determine whether the trial court correctly concluded that the board's act was . . . arbitrary, illegal or an abuse of discretion . . . Courts are not to substitute their judgment for that of the 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 . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . . We, in turn, review the action of the trial court.' . . .
Variances go with the land and apply to the use of the land, not the user of the land . . . [V]ariances can be granted by the board only when 'exceptional difficulty or unusual hardship' is shown by applying the zoning ordinance to a specific parcel of land. This requires the hardship to be unique, which means that it must be more than and different from the restriction imposed by the zoning regulations on other properties in the area. The statute does not allow a variance to be granted where it would be inconsistent with a general purpose and intent of the zoning ordinance or would adversely affect public health, safety and welfare, or property values in the district. The requirement that a variance must be consistent with a general purpose and intent of the zoning ordinance is highly important. These concepts have gradually evolved and been compressed into a requirement that the variance cannot substantially be inconsistent with and effect the comprehensive zoning plan. This ties in directly with the policy reason behind limited use of the variance power, namely 'that unless great caution is used and variations are granted on in proper cases, the whole fabric of town and city-wide zoning will be worn through in spots and raveled at the edges until its purpose in protecting property and securing an orderly development of the community is completely thwarted.'" Fuller § 9.1 (footnotes omitted).
'In order to determine whether the board properly granted the subject variance, we must first consider whether the board gave reasons for its action.' '. . . [W]hen 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.'" Morikawa v. ZBA Weston, 126 Conn.App. 400, 406-07, 11 A.3d 735 (2011) (citations omitted).