Opinion
No. CV 02 0077547 S
October 31, 2003
MEMORANDUM OF DECISION
I. STATEMENT OF THE APPEAL
The pro se plaintiffs, Debra and Joseph Remesch, appeal the decision of the defendant, the Andover zoning board of appeals (board). The defendants, Clyde and Georgette Conrad, sought variances from setback and lot coverage requirements in order to construct an additional garage on their property, and the board granted their application for the requested variances. The Remeschs bring this appeal pursuant to General Statutes § 8-8.
II. BACKGROUND
The record reveals the following facts. The Conrads are the owners of property located at 117 Lakeside Drive, Andover, Connecticut (subject property). (Return of Record [ROR], Item K.) The Remeschs are the owners of property located at 112 Lakeside Drive, Andover, Connecticut. (ROR, Item G, Amended Complaint, ¶ 1.) On November 11, 2001, the Conrads filed an application for variances seeking relief from § 11.2 of the Andover zoning regulations. The Conrads requested a reduction in the front yard setback from sixty feet to thirty-eight feet and six inches, a reduction in the side yard setback from twenty feet to ten feet, a reduction in the cumulative side yard from fifty feet to thirty-four feet, and further sought to exceed the total lot coverage by 3 percent in order to construct an additional garage on their property. (ROR, Item B.) On November 28, 2001, a public hearing was held concerning the Conrads' application; (ROR, Items, A, B, C.); and the board voted unanimously to approve the Conrads' application. (ROR, Item C.) The board's notice of decision stated the following: "The Andover Zoning Board of Appeals took the following action at their Regular Meeting held on Wednesday, November 28, 2001 . . . Approved the application of Clyde and Georgette Conrad, 117 Lakeside Drive, for relief from Section 11.2 of the zoning regulations so as to allow for construction of a garage." (ROR, Item E.) On December 4, 2001, the board published notice of its decision in the Willimantic Chronicle. (ROR, Item Q.)
The court notes that the record has been amended several times, which has resulted in duplicative labeling of multiple copies of the items contained within the record. Therefore, the court has searched the entire record and re-labeled the items located in the return of record in order to avoid confusion when the court references items contained within the amended return of record.
A review of the record reveals that this was the Conrads' second application for the requested variances. Apparently, the Conrads appeared before the board concerning the construction of the garage but the board had denied their application. (ROR, Item A, p. 2 and Item D.) The record does not reveal the board's reason for denying the Conrads' previous application. The Conrads, however, submitted a new application and reduced the length from the front lot coverage by six feet. (ROR, Item A, p. 5.)
The Remeschs now appeal the board's approval of the Conrads' application for the requested variances on the ground that the board acted arbitrarily, illegally and abused its discretion in the following ways: (1) that the hardship presented by the Conrads resulted from their own voluntary act and, therefore, they will be the only ones to benefit from the variances; (2) the board considered evidence that was both incorrect and misleading when it rendered its decision; (3) that the building of a garage is excessive for the Conrads' purpose of adding extra storage onto the subject property; (4) that less obtrusive options existed; and (5) that the proposed garage will obstruct the Remeschs' view of the lake, thereby depreciating the value of their own property. (Amended Complaint, ¶ 3, §§ A, B, C, D, E.) On April 15, 2003, the court held a trial on this matter. On May 15, 2003, this court dismissed the Remeschs' appeal on the ground that the court lacked jurisdiction to adjudicate this matter because the Remeschs failed to commence their action upon the proper parties in a timely manner. See Remesch v. Zoning Board of Appeals, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 02 0077547 (May 15, 2003, Klaczak, JTR.) On June 13, 2003, the Remeschs filed a motion to open the judgment as will be discussed, infra. On August 14, 2003, this court granted the motion to open.
III. JURISDICTION
General Statutes § 8-8 governs an appeal from the decisions of a planning and 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 of an 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). "In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, `aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." General Statutes § 8-8 (a)(1).
At the trial held on April 15, 2002, Joseph Remesch testified that he was one of the owners of property, located at 112 Lakeside Drive, Andover, Connecticut, that fell within a hundred feet of the subject property owned by the Conrads. Accordingly, this court found that the Remeschs were statutorily aggrieved, pursuant to § 8-8 (a)(1), because their property fell within a hundred feet of the subject property.
B. Timeliness and Service of Process
"[A]ny person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located. The 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. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court." General Statutes § 8-8 (b). "Service of legal process for an appeal under this section shall be directed to a proper officer and 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." General Statutes § 8-8 (f).
In the present case, notice of the board's decision was published in the Willimantic Chronicle on December 4, 2001. (ROR, Item Q.) Service of process was made upon the chairperson of the board, Evelyn Russell, and upon the town clerk, Marjorie Anderson, on December 20, 2001. (Marshal's Return). Pursuant to § 8-8 (b), the Remeschs were required to commence service of process of their appeal within fifteen days from the date of publication of the board's decision and, therefore, it was the Remeschs' responsibility to serve both the chairperson of the board and the clerk of the municipality by December 19, 2001. On May 15, 2003, this court found that the Remeschs' failure to serve timely the proper parties by December 19, 2001 deprived it of subject matter jurisdiction. See Remesch v. Zoning Board of Appeals, supra, Superior Court, Docket No. CV 02 0077547.
Under certain circumstances, an appeal may be saved pursuant to General Statutes § 52-593a (a). That statute provides: "Except in the case of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within fifteen days of the delivery." In order to save an appeal, the state marshal responsible for serving process "shall endorse under oath on such state marshal's return the date of delivery of the process to such state marshal for service in accordance with this section." General Statutes § 52-593a (b).
On June 13, 2003, the Remeschs filed a motion to open the court's judgment and submitted the affidavit of state marshal, Gregory L. Woodruff, in which he averred that he received the appeal, complaint, bond, citation and other attachments from Debra Remesch on December 19, 2002. Therefore, because the Remeschs submitted the marshal's affidavit in which he averred that he had possession of the required documents within fifteen days from the date of publication the Remeschs' appeal is saved pursuant to § 52-593a (b). See Mollica v. Planning and Zoning Commission, Superior Court, judicial district of Waterbury, Docket No. CV 99 0155622 (July 9, 2001, West, J.). Accordingly, this court finds that it does have subject matter jurisdiction to adjudicate this appeal and, therefore, it will now consider the appeal on its merits.
In Mollica, the trial court, West, J., dismissed the plaintiffs' appeal on the ground that the court lacked subject matter jurisdiction because the plaintiffs untimely served the board's chairperson and town clerk. Subsequently, the plaintiffs filed a motion for reconsideration and attached the marshal's affidavit in which he averred that the plaintiffs had committed service to him within fifteen days from the date of publication of the board's decision. See Mollica v. Planning and Zoning Commission, supra, Superior Court, Docket No. CV 99 0155622. The trial court, West, J., then issued a memorandum of decision addressing the merits of the case. Id.
IV. SCOPE OF REVIEW
"The standard of review on appeal from a zoning board's decision to grant or deny a variance is well established . . . 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 . . ." (Citation omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205-06, 658 A.2d 559 (1995). "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." (Internal quotation marks omitted.) Reid v. Zoning Board of Appeals, 235 Conn. 850, 857, 670 A.2d 1271 (1996).
"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 . . . Rather, the 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 . . . The principle that a court should confine its review to the reasons given by a zoning agency . . . applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 420. However, "the failure of the zoning agency to give such reasons requires the court to search the entire record to find a basis for the commission's decision." (Internal quotation marks omitted.) Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 544, 600 A.2d 757 (1991).
"In light of the existence of a statutory right of appeal from the decisions of local zoning authorities, however, a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty." (Internal quotation marks omitted.) Quality Sand Gravel v. Planning Zoning Commission, 55 Conn. App. 533, 537, 738 A.2d 1157 (1999).
The legal notice, published in the Willimantic Chronicle, states the following: "Approved the application of Clyde and Georgette Conrad, 117 Lakeside Drive, for relief from Section 11.2 of the zoning regulations so as to allow for construction of a garage." (ROR, Item Q.) After the public hearing was closed on November 28, 2001, a board member moved to approve the Conrads' application, and the motion passed unanimously. (ROR, Item C.) A review of the record reveals that the board did not issue a formal, official, collective statement of its reasons that it based its decision. Accordingly, this court must now search the record in order to ascertain the basis of the board's decision because it failed to articulate its reasons.
V. DISCUSSION
The Remeschs appeal the board's decision on the grounds that it acted arbitrarily, illegally and abused its discretion in the following ways when it granted the Conrads' application. First, that the board failed to state its reasons for granting the Conrads' application. Second, that the Conrads failed to demonstrate the existence of a hardship in order to justify the granting of their application. Third, that the Conrads' hardship is self-created and, therefore, does not justify the granting of their application for the requested variances. Finally, that the board did not have any legal basis supporting its decision to grant the Conrads' application.
In opposition, the Conrads set forth several arguments. First, the Conrads argue that the board's failure to state its reasons for its approval of their application does not provide a basis upon which this court may overturn the board's decision. Second, the Conrads contend that they did establish the existence of a hardship by providing the board with evidence demonstrating that their property is restricted by a significant slope and ledge configuration. Third, the Conrads maintain that their hardship is not self-created but arose from the town's zoning regulations.
The Conrads filed a memorandum of law in this action but the board did not file its own memorandum of law, choosing instead to adopt the Conrads' arguments. Accordingly, the court will refer to the Conrads and their arguments throughout this decision.
A.
The court first addresses the Remeschs' initial argument wherein they contend that the board's failure to state its reasons for the approval of the Conrads' application is fatal. Specifically, that the board was required pursuant to § 22.0.4 of the town's zoning regulations to identify in writing the specific hardship that justified the granting of the Conrads' application. The Conrads contend that the board's failure to state its reasons for its approval of their application is not a ground upon which this court may overturn the board's decision.
Section 22.0.4 provides in relevant part: "Before any exception or variance is granted, the Board of Appeals shall include a written finding in its minutes as part of the record in each case, stating specifically the . . . unnecessary hardship involved."
Section 22.0.4 tracks the language of General Statutes § 8-7 that provides in relevant part: "Whenever a zoning board of appeals grants or denies [a] variance in the zoning regulations applicable to any property . . . it shall state upon its records the reason for its decision and the zoning bylaw, ordinance or regulation which is varied in its application or to which an exception is granted and, when a variance is granted, describe specifically the exceptional difficulty or unusual hardship on which its decision is based." The board's failure to comply with § 8-7 does not render its decision invalid. "[W]here there is a failure to comply with the obligation to state reasons, the action is not deemed void but the court must search the record to see whether the board was justified in its decision." (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 515, 636 A.2d 1342 (1994). Accordingly, the board's failure to state its reasons for the approval of the Conrads' application is not a ground upon which this court will overturn the board's decision. Instead, it is now the responsibility of this court to examine the record in order to ascertain the basis on which the board relied on when it granted the Conrads' application.
B.
It is the Remeschs' contention that the board's decision is illegal, arbitrary and that it abused its discretion by granting the Conrads' application because the Conrads failed to establish the existence of an undue hardship. Furthermore, the Remeschs maintain that if it is found that a hardship does exist then that hardship is self-created and, therefore, the board improperly granted the Conrads' application.
In opposition, the Conrads counter that the town's zoning regulations created the hardship because their lot predates the current zoning regulations and, therefore, they were required to seek the requested relief in order to be able to construct the proposed garage on the subject property.
Further, the Conrads argue that the facts of this case are identical to the facts in Stillman v. Zoning Board of Appeals, 25 Conn. App. 631, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991), and, therefore, Stillman controls.
The Conrads, in their second application for the requested variances, list the following as their hardships: "nonconforming lot size, location of structure on lot, location of septic system-relative to existing [building], ledge of surface, dramatic slope of lot, [p]rohibits alternative location for addition." (ROR, Item K, p. 2.) In a letter to the board, dated November 7, 2001, the Conrads stated that it was their intent to convert their existing garage into a bedroom and bathroom for their elderly mother to reside in and that "[l]osing the garage creates a major hardship for us because the size and topography of our lot prevents us from creating a place to house the snowblower, standing toolboxes, compressor, freezer and other miscellaneous items commonly found in a garage." (ROR, Item D.) At the public hearing, Clyde Conrad stated that the proposed garage was the "cheapest, and easiest and fastest way to solve our problem. We have to do something with her [Georgette Conrad's] mother." (ROR, Item A, p. 5.)
As previously mentioned, the record reveals that the Conrads had previously submitted an application that was denied by the board. (ROR, Items D and K.) See footnote 2 of this decision.
Section 22.0.4 of the town's zoning regulations govern the granting of variances and provides in pertinent part: "To authorize upon appeal in specific cases variances from the terms of these regulations, where reason for exceptional shape, size or topography of lot, or other exceptional situation or condition of the building or land, exceptional difficulty or unusual hardship would result to the owners of said property from strict enforcement of these regulations." The language of § 22.0.4 authorizing the board's power is similar to the language contained in General Statutes § 8-6 (3) that provides in relevant part: "[T]o 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 . . ."
The Conrads set forth two arguments to support their contention that the board properly determined that a hardship did exist and was therefore justified in granting their application. First, the Conrads argue that the board considered evidence relating to the significant slope of the subject property and the locations of the well and septic system that "made it impossible to locate the proposed addition in any other location . . ." (Conrads' Memorandum of Law, p. 4.) The Conrads maintain that these factors provided a basis upon which the board relied when it granted their application. Second, the Conrads argue that the subject property predates the current zoning regulations and, therefore, the subject property is a nonconforming lot and should be afforded the protection provided by General Statutes § 8-2.
I. Whether an undue hardship exists?
"To establish a hardship under General Statutes § 8-6, an applicant must show not only that he is thwarted in a desired use of land, but also that he is being completely or almost completely deprived of the use of the value of that land." Jaser v. Zoning Board of Appeals, supra, 43 Conn. App. 546 n. 2. "In order to justify a variance, the hardship must differ from the conditions that generally affect the property owners in the same area and it must arise from circumstances beyond the control of the property owner seeking the variance." Bloom v. Zoning Board of Appeals, supra, 233 Conn. 209. "[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." (Internal quotation marks omitted.) Id., 210-11 n. 13. "Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship . . ." (Internal quotation marks omitted.) Jaser v. Zoning Board of Appeals, supra, 43 Conn. App. 548.
A review of the record reveals that the Conrads failed to establish the existence of a hardship. The Conrads maintain the subject property as a residence that already includes the existence of a garage that is presently being used for storage. The Conrads voluntarily decided to convert their current garage into a second bedroom and bathroom for an elderly parent and now seek the requested variances in order to construct an additional garage that will be used for storage purposes. (ROR, Items A, p. 2 and D.) The Conrads stated, in their letter addressed to the board, dated November 7, 2001, that they had considered, as an alternative, erecting a shed in the front yard but determined that it would be "unsightly to our neighbor . . ." (ROR, Item D.) Furthermore, at the public hearing, Clyde Conrad stated that they planned to store their jeep somewhere located off the subject property. (ROR, Item A, p. 6.) This is not a situation in which the Conrads have been denied the use of their property. In addition, the Conrads indicated that they had considered an alternative option of erecting a shed on the subject property. Whether this option would be in conformance with the town's zoning regulations is not evident from the record. Finally, it appears from the record that the Conrads have storage available to them off the subject property.
"Variances cannot be personal in nature, and may be based only upon property conditions . . . In fact, we have stated that [p]ersonal 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 . . . [T]he basic zoning principle that zoning regulations must directly affect land, not the owners of land . . . limits the ability of zoning to act for personal rather than principled reasons, particularly in the context of variances." (Citations omitted; internal quotation marks omitted.) Reid v. Zoning Board of Appeals, supra, 235 Conn. 857-58. "The desire to acquire additional storage for one's property, however is a personal, rather than a legal hardship." (Internal quotation marks omitted.) Lacerenza v. Stamford Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0169017 (January 17, 2001, Ryan, J.) ("storage needs are personal in nature because the amount of storage space needed by a particular ovmer is peculiar to the owner, rather than peculiar to the land, and is therefore insufficient to justify the proper granting of a variance.")
The Conrads have repeatedly stated that they intended to convert their current garage into a bedroom and bathroom for an elderly parent and, therefore, they have suffered a major loss in giving up the use of the garage for storage purposes. (ROR, Item A, p. 2 and Item D.) Although it is laudable that the Conrads want to provide a suitable environment for an elderly parent, the desire for additional storage in which to keep equipment is personal in nature because it is particular to their needs and not particular to the subject property.
Further, a review of the public hearing transcript hearing reveals that the slope of the subject property was only briefly referenced by the Conrads. Georgette Conrad stated that they did not have a place to store their snowblower and other items commonly stored in a garage "[b]ecause our land slopes down so rapidly in the back . . ." (ROR, Item A, p. 2.) Clyde Conrad explained that "[f]rom driveway level, at ten feet it drops three feet, at thirty feet it drops seven feet and at fifty feet it drops fifteen feet. So there is quite a slope to negotiate . . . it's almost impossible to put anything down there. Other than [that] it just levels off and goes into the lake." (ROR, Item A, p. 2.) These are the only references made during the public hearing concerning the slope of the property. In a letter drafted by the Conrads and directed to the board's attention, the Conrads stated that "losing the garage creates a major hardship for us because the size and topography of our lot prevents us from creating a place to house the snowblower . . ." (ROR, Item D.) The record does not reveal, however, that any evidence was submitted with respect to topographical difficulties affecting the subject property.
"Topographic conditions on the property involved in the application may be a basis for granting a variance, as long as other properties in the area do not have the same problem." R. Fuller, 9 Connecticut Practice Series: Land Use and Practice (2d Ed. 1999) § 9.3, p. 184. However, "[i]n order to justify a variance, the hardship must differ from the conditions that generally affect the property owners in the same area and it must arise from circumstances beyond the control of the property owner seeking the variance." Bloom v. Zoning Board of Appeals, supra, 233 Conn. 209.
The Conrads rely on the holding in Stillman v. Zoning Board of Appeals, supra, 25 Conn. App. 631, and argue that it is controlling here because the Appellate Court concluded that a hardship may exist based on the locations of a well and septic system and the size of the lot. Stillman is distinguishable from the present case. In Stillman, the Appellate Court emphasized that the hardship arose from the configuration of the applicant's lot as well as the locations of the well and the septic system. Here the Conrads have failed to submit any evidence establishing that the topographic conditions of the subject property constitute an undue hardship. As previously stated, the slope of the backyard is merely referenced several times with no evidence submitted identifying the slope. Moreover, the Conrads have not shown that the slope is peculiar to the subject property. The subject property borders Andover Lake and the slope that is referenced by the Conrads may well affect their neighbors as well. If the Conrads' neighbors' properties are also subject to the same slope then that would indicate that this condition affects the neighborhood generally. In addition, although the Conrads argue that the location of the septic system is problematic, the court cannot find any reference to it during the public hearing that would enable it to conclude that the board considered it in its decision. Finally, the Conrads had indicated that they had considered an alternative option but concluded that it might be unattractive to their neighbors.
In Bloom v. Zoning Board of Appeals, supra, 233 Conn. 210 n. 13, our Supreme Court distinguished Stillman. In distinguishing Stillman, our Supreme Court stated that because "the construction was possible only within the setback, the [appellate] court concluded that the defendant was entitled to a variance." Further, our Supreme Court concluded that the owners failed to submit evidence demonstrating that "the renovations could only be accomplished within the front setback. [T]he fact that an owner is prohibited from adding new structures to the property does not constitute a legally cognizable hardship." Id. The court in Bloom, however, did observe that it did not endorse the holding in Stillman.
The Conrads contend that there is no "factual support . . . that the slope of the [their] property is not special to their property." (Conrad's Memorandum of Law, p. 6.) A review of the record, however, reveals that no evidence was submitted that demonstrated that the slope was peculiar to the subject property.
For these reasons the court cannot reasonably conclude from the record that the Conrads presented any evidence regarding the topographic conditions of the subject property from which the board could determine that the slope of the subject property and the location of the septic tank were so significant that it created an undue hardship upon which the Conrads' application should have been granted. Furthermore, a review of the record reveals that the board was not justified in granting the Conrads' application because the Conrads had indicated that they had considered an alternative option that could be used to accomplish their goal of increasing their storage capacity. (ROR, Item D.) See Jaser v. Zoning Board of Appeals, supra, 43 Conn. App. 548.
2. Whether the subject property, as a nonconforming lot, is protected under General Statutes § 8-2?
The Conrads also argue that their lot predates the enactment of the town's zoning regulations and, therefore, it enjoys the status of a nonconforming lot and should be afforded protection pursuant to § 8-2. The Conrads contend that the zoning regulations created their hardship as a result of the subject property being nonconforming lot status. A review of the record does not indicate a date upon which the lot was established. The zoning regulations show that the regulations were adopted on June 16, 1950 and that § 11.2 was revised on October 17, 1988, effective on November 12, 1988. (ROR, Items P and M.) The court is unclear as to what part of § 11.2 was revised, nor have the Conrads argued that they owned the subject property before any of the abovementioned relevant dates. The Conrads stated in their letter to the board that they have resided in Andover since 1969, however, they do not specify whether they have lived on the subject property from that time. (ROR, Item D.) Attached to the letter, the Conrads submitted a document indicating that a prior application for a variance regarding the subject property was granted by the board in 1977. (ROR, Item D.)
The Conrads interchangeably substitute the words lot, structure and use when describing the status of the subject property as nonconforming. They argue that the subject property is a nonconforming lot but cite to § 4.1.4 of the town's zoning regulations and § 8-2 that provides for the protection of nonconforming structures. The Conrads contend that the subject property is "a nonconforming lot with a house on it." (Conrad's Memorandum of Law, p. 4.) There are four types of nonconformities: "(1) nonconforming use — the use of the land or structure on it is nonconforming (e.g., commercial use in a residential zone); (2) a nonconforming lot — the lot is undersized, irregularly shaped, has inadequate width or depth or inadequate frontage; (3) nonconforming building or structure — the structure does not meet the minimum or maximum size requirements, floor area ratio, height or bulk requirements of the existing zoning regulations; (4) nonconformity as to location of structure, i.e., it does not conform with one or more of the setback requirements." (Internal quotation marks omitted.) Munroe v. Zoning Board of Appeals, 75 Conn. App. 796, 806, 818 A.2d 72 (2003). The court is unclear as to which type of nonconformity the Conrads are referencing with respect to their property.
The crux of the Conrads' argument is that the lot predates the zoning regulations. The Conrads indicated "nonconforming lot size" as a hardship on their application. (ROR, Item K, p. 2.) A review of the record reveals that the Conrads, however, failed to submit any evidence to the board that demonstrated the subject property predated the zoning regulations thereby maintaining the status of a nonconfonring lot. The Conrads submitted the above-mentioned document which indicated that they owned the subject property in 1977, however, they failed to submit any evidence demonstrating that when they owned the subject property it was affected by either the enactment of the town's zoning regulations or the 1988 revision of § 11.2 so as to justify the granting of their application. The court cannot reasonably determine from the record whether the 1988 revision of § 11.2 affected the zoning regulations thereby rendering the subject property nonconforming upon which the Conrads now seek the requested variances. Accordingly, the court cannot reasonably conclude from a review of the record that the board's decision granting the Conrads' application was based on the status of the subject property being a nonconforming lot.
VI. CONCLUSION
The court cannot reasonably determine from the record the basis of the board's decision in granting the Conrads' application. A review of the record does not reveal any undue hardship that would justify the granting of the Conrads' application for the requested variances. Accordingly, the Remeschs' appeal is sustained.
Klaczak, JTR