Opinion
No. CV05 400 86 27 S
April 7, 2006
MEMORANDUM OF DECISION
FACTS
The defendant, William T. Pacelli, is the owner of property located at 5050 Main Street, Stratford.
The parcel overlooks the Housatonic River, and is located in an RS-3 (Residential) zone.
Although the property was unimproved when purchased by Pacelli in June of 2004, it was once the site of the Raven restaurant. The restaurant burned approximately 40 years ago, and the structure was razed.
On February 1, 2005, Pacelli applied to the Zoning Board of Appeals of the Town of Stratford for two variances, in anticipation of constructing a single-family residence on the property.
He sought a variance of § 4.2 of the regulations, in order to increase the maximum building coverage from 20% to 24.7%.
Pacelli also asked the board to grant him a variance of § 3.14 of the regulations. That section prohibits building construction or impervious surfaces within 75 feet of a coastal resource.
In Pacelli's proposal, the house would be constructed 45 feet from the Watercourse. A terrace consisting of blue stone pavers was contemplated to the rear of the house (ROR, 3) extending to within 12 feet of the Housatonic River.
In the application for the variances (ROR, 1), Pacelli claimed that the hardship sufficient to justify the granting of the variances was: "Size and shape of property, substantial concrete retaining wall exists on site to protect lot from river located many feet below property elevation."
The parcel is rectangular, consisting of 17,800 square feet, well in excess of the 10,000-square-foot minimum lot size permitted in an RS-3 zone.
The waiver of the coverage standard was requested in order to accommodate a proposed 4,361-square-foot house on the property (ROR, 3). A house consisting of 3,560 square feet can be constructed on the property without the requested variances.
Because of the proximity of the property to the Housatonic River, the Zoning Board of Appeals, in addition to considering the request for variances, was required to conduct a coastal site plan review, in accordance with § 22a-90 through 22a-112 of the General Statutes.
In the application for coastal site plan review (ROR, 2), Pacelli claimed that there would be "no direct impact on coastal resources."
The Zoning Board of Appeals conducted a public hearing on May 3, 2005 (ROR, 26), devoted to both the Coastal Management (CAM) review, and the request for two variances.
A portion of a letter received from the State of Connecticut Department of Environmental Protection (DEP) dated February 22, 2005 (Ex. 15), was read into the record at the hearing. The complete text of the letter is part of the record.
In her review of the Pacelli application, Senior Coastal Planner, Margaret Welch, stated "significant project modifications are required to make the proposed development consistent with CMA (Coastal Management Act.)."
The DEP analysis made specific recommendations, including adherence to the 75-foot setback, and reducing the size of the proposed structure to comply with the 20% lot coverage maximum.
While recognizing that a 100-foot buffer between a structure and the coastal resource is the "optimum buffer," it was recommended that the less restrictive buffer of 75 feet adopted by the Town of Stratford be adhered to, subject to the mandated review by the Stratford Zoning Commission. (ROR, 15, p. 3 and p. 3 of Technical Review Attachment.)
Section 22s-109(b), C.G.S.
The report "strongly" recommended that the project be redesigned, so that no variances were necessary, and questioned the claimed basis for a variance. (ROR, 15, p. 3-4, Technical Review Attachment).
The public hearing was originally scheduled for March 1, 2005, but was continued May 3, (ROR, 8). The applicant agreed to the extension of time within which to complete the public hearing (ROR, 9).
At the hearing, the Zoning Board of Appeals reviewed photographs of Pacelli's unimproved property, and the neighboring parcel (ROR, 17).
Counsel presented the board with a list of coverage variances granted by the Stratford ZBA between May 6, 1997 and March 1, 2005 (ROR, 21), along with a proposed agreement between William Pacelli and the owner of abutting property, Susan K. Riccio (ROR, 13).
No information was presented indicating that the retaining wall, a remnant of the restaurant, constituted an impediment to construction of a dwelling on the parcel.
The ZBA also heard from opponents of the granting of the variances, who pointed out that a single-family residence, conforming to all zoning requirements, could be constructed on the property, without securing any variances (ROR, 26, p. 16-18, p. 22-23).
On May 3, 2005, the Stratford Zoning Board of Appeals voted, 4-0, to approve the coverage and setback variances requested by the applicant (ROR, 27). No reasons for the action were given.
On May 9, 2005, the ZBA approved the coastal site plan 3-0. Once again, the board declined to state any collective reasons for its action.
The plaintiff, Susan, K. Riccio, brings this appeal concerning both actions of the Stratford Zoning Board of Appeals.
At trial, the plaintiff requested, pursuant to § 8-8(k) of the General Statutes, permission to supplement the record by introducing plans which conform to all zoning regulations, and which are the basis of ongoing construction by Pacelli at 5050 Main Street, Stratford.
Section 8-8(k) C.G.S.-"(k) The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if . . . (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal . . ."
The court permitted this information to be presented, in order to demonstrate that a single-family dwelling was in the process of construction, without the necessity of any variances to the applicable zoning regulations. The information was not available at the time of the public hearing.
AGGRIEVEMENT
The plaintiff, Susan K. Riccio, owns the property at 5060 Main Street, which abuts the Pacelli parcel, 5050 Main Street (Ex. 1).
Section 8-8(a)(1) of the General Statutes defines aggrieved person to mean: "one 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."
Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an appeal. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996); Lewin v. United States Surgical Corporation, 21 Conn.App. 629, 631 (1990). The question of aggrievement is one of fact. Hughes v. Town Planning Zoning Commission, 156 Conn. 505, 508 (1968).
As the owner of property which abuts the parcel for which variances were sought, the plaintiff is statutorily aggrieved by the action of the Stratford Zoning Board of Appeals, from which this appeal arises.
It is found that the requirement of aggrievement has been satisfied.
STANDARD OF REVIEW
The powers of a municipal zoning board of appeals, unless exercised pursuant to a Special Act, are derived from § 8-6(3) of the General Statutes. That section provides broad authority to:
(3) . . . determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with the 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.
In discharging its responsibilities, a zoning board of appeals is endowed with liberal discretion, and its decision are subject to review by a court only to determine whether the board acted arbitrarily, illegally or unreasonably. Pleasant Farm Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269 (1991); Torsiello v. Zoning Board of Appeals, 3 Conn.App. 47, 50 (1984).
The burden of demonstrating that the board has acted improperly is on the party seeking to overturn the board's decision. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988); Whitaker v. Zoning Board of Appeals, 179 Conn. 650, 654 (1980).
A court should not usurp the function and prerogatives of a zoning board of appeals by substituting its judgment for that of the board, when an honest judgment has been reasonably and fairly exercised after full hearing. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995).
The question is not whether another decision maker, such as the trial court, would have reached a different conclusion, but whether the record before the agency supports the decision reached. Calandro v. Zoning Commission, 176 Conn. 439, 440 (1979).
The decision of the board must be supported, if the record contains substantial evidence in support of the decision. Bradley v. Inland Wetlands Agency, 28 Conn.App. 48, 52 (1992). The substantial evidence rule has been defined as similar to, and analogous to, the standard to be applied in judicial review of jury verdicts. It must be enough evidence to justify, were the trial to a jury, a refusal to direct a verdict where the conclusion sought to be drawn is one of fact. Sampieri v. Inland and Wetlands Agency, 226 Conn. 579, 588 (1993).
The possibility of drawing two inconsistent conclusions does not prevent a decision from being supported by substantial evidence. Property Group, Inc. v. Planning Zoning Commission, 226 Conn. 684, 697 (1993).
When a zoning board of appeals has stated reasons for its action as required by § 8-7 of the General Statutes, a court need only determine whether any reason given in support of the action is supported by substantial evidence in the record. Daughters of St. Paul v. Zoning Board of Appeals, 17 Conn. 53, 56 (1988).
Section 8-7, C.G.S-". . . When a board of appeals grants or denies any . . . variance in the zoning regulations applicable to any property . . . it shall state upon the record its reason for the decision . . . and where a variance is granted, describe specifically the exceptional difficulty or unusual hardship on which its decision is based . . ."
However, where, as here, a zoning board of appeals has failed to state the reasons for its decision, that fact is not fatal to the board's action. In that event, a court is required to search the record in an attempt to determine some basis for the action taken. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369 (1988); Ward v. Zoning Board of Appeals, 153 Conn. 141 (1965).
The same rule applies where, as here, a board has failed to state its reasons for approving a coastal site plan application.
Section 22a-106(d), C.G.S.-"(d) A municipal board of commission approving, modifying, conditioning or denying a coastal site plan on the basis of the criteria listed in subsection (b) of this section shall state in writing the finding and reasons for its action.
REVIEW OF THE RECORD FAILS TO JUSTIFY GRANTING OF VARIANCES
In order to grant a variance, a zoning board of appeals must find that two conditions have been satisfied: 1) the variance must be shown not to affect substantially the comprehensive plan, and 2) adherence to the strict letter of the zoning ordinance or regulation must be shown to cause unusual hardship, unnecessary to the carrying out of the general purposes of the zoning plan. Francini v. Zoning Board of Appeals, 228 Conn. 785, 790 (1994); Smith v. Zoning Board of Appeals, 174 Conn. 323, 326 (1978).
A variance runs with the land. Reid v. Zoning Board of Appeals, 235 Conn. 850, 858 (1996); § 8-6(b), C.G.S. and must be based upon property conditions. Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239 (1972). The identity of the applicant is irrelevant. Dinan v. Zoning Board of Appeals, 220 Conn. 61, 66-67 (1972).
The granting of a variance, because it permits a property owner to use his property even though a violation of the zoning regulations will result, is reserved for unusual or exceptional cases. Bloom v. Zoning Board of Appeals, supra, 206-07; Ward v. Zoning Board of Appeals, supra, 145.
To support 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. Norwood v. Zoning Board of Appeals, 62 Conn.App. 528, 533 (2001). If the hardship is self-inflicted, arising from the voluntary act of the applicant, the board does not have the authority to grant a variance. Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39 (1982); Archambault v. Wadlow, 25 Conn.App. 375, 381 (1991).
Hardships which are personal to the applicant, however compelling from a human standpoint, do not provide sufficient grounds for the granting of a variance. Garibaldi v. Zoning Board of Appeals, supra, 239-40; Gangemi v. Zoning Board of Appeals, 54 Conn.App. 559, 564 (1999).
A variance cannot be granted where it impairs the integrity of the comprehensive plan. Whittaker v. Zoning Board of Appeals, supra, 656. The comprehensive plan consists of the zoning regulations themselves. Burnham v. Planning Zoning Commission, 189 Conn. 261, 267 (1983).
The record reveals that the property for which the variances are sought is located in an RS-3 (Residential) zone, in which single-family residences are a permitted use.
The defendant, William Pacelli, seeks to use the property for the construction of a residence. Residential use of the property is consistent with other uses in the area, including the use of the plaintiff's property.
The record supports a finding that the variances requested will not substantially affect the comprehensive plan.
Hardship, however, is another matter.
The defendants argue that unique topographic conditions on the property constitute a legal hardship, justifying relief in the form of the variances requested.
A thorough search of the record fails to uncover any support for this contention.
The property is a rectangular parcel, which is much larger than the minimum lot size of 10,000 square feet required in an RS-3 (Residential) zone.
No unusual soil conditions prevent construction on the parcel, and the property does not have any permanent, immovable structures or utilities which prevent construction of a single-family residence without the requested variances.
The defendant Zoning Board of Appeals admits in its brief (p. 5-6), that William Pacelli can construct a smaller residence on the property, without the required variances. A residence is currently under construction, in accordance with existing zoning regulations, without the necessity of obtaining any variances. (Ex. 1).
The defendants argue, however, that forcing the applicant to construct a smaller house, deprives him of the reasonable use of the property, and deprives the Town of Stratford of tax revenue it would receive from a larger and more expensive dwelling.
During the course of the public hearing, counsel for the applicant argued that the proposed 1.5 million dollar house would generate $25,000 to $30,000 in tax revenue. He also argued that the Stratford Zoning Board of Appeals had granted variances concerning other properties in the past. (ROR, 26, p. 10-12).
These arguments, although designed to appeal to individual board members as taxpayers and residents of the Town of Stratford, cannot provide the basis for a variance.
A variance may not be justified on the ground that other variances have previously been issued, even if those variances were issued in the immediate area. Haines v. Zoning Board of Appeals, 26 Conn.App. 187, 191 (1991). Furthermore, economic hardships, or hardships that are self-created, are insufficient to justify a variance. Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662 (1965). Neither financial loss, nor the potential for financial gain, are sufficient to form the proper basis for the granting of a variance. Bloom v. Zoning Board of Appeals, supra, 208. Geribaldi v. Zoning Board of Appeals, supra, 303.
A claimed hardship, representing a general hardship on the neighborhood or the community as a whole, will not support the granting of a variance. Malstrom v. Zoning Board of Appeals, 152 Conn. 385, 390 (1965); Finch v. Montanari, 143 Conn. 542, 546 (1956). Loss of projected tax revenue clearly falls into this category.
Nor is the applicant assisted in his quest for the variances by the presence of the retaining wall on the property. At trial, it was acknowledged that construction of the completed 4,300-square-foot residence could be accomplished, without regard to the presence of the retaining wall.
The Appellate Court cases cited by the defendants in support of the requested variances, are easily distinguished.
Stillman v. Zoning Board of Appeals, 25 Conn.App. 631 (1991), concerned the proposed expansion of a dwelling into a setback area. The hardship cited involved the presence of a well and septic system on the property, which prevented expansion of the structure anywhere except within the setback area.
The court determined that the presence of the improvements, coupled with the size of the lot, justified the granting of a variance. Stillman v. Zoning Board of Appeals, supra, 636-37.
Although the holding in Stillman has not been overruled, subsequent decisions by the Connecticut Supreme Court have cast doubt upon its continued validity. In recognizing that the inability of the owner to add new structures to property does not constitute a hardship, the court said: "Although we distinguish Stillman in this case, we do not necessarily endorse its holding." Bloom v. Zoning Board of Appeals, supra, 210-11, n. 13.
Here, the retaining wall, a structure not to be compared with a septic tank system or a well, does not prevent construction of a conforming single-family dwelling, on a rectangular price of property.
In Giarrantano v. Zoning Board of Appeals, 60 Conn.App. 446 (2000), a variance was granted permitting the construction of a hotel, in a commercial zone. A residential structure on the lot was non-conforming.
The court found hardship, based on the inability of any conforming commercial structure to be built on the parcel, in a zone in which commercial structures were a permitted use. Giarrantano v. Zoning Board of Appeals, supra, 454.
Here, the applicant proposes to construct a residential dwelling in a zone in which single-family residences are a permitted use. The property is not being put to a use which renders it nonconforming under existing zoning regulations.
The court is mindful of the liberal discretion vested in municipal zoning agencies, and that courts should be loathe to substitute their judgment for that of the agency.
However, that liberal discretion is not a license to ignore the legal requirements which must be met in order to justify a finding of hardship, when the record fails to provide any justification for the granting of a variance.
Because a search of the record fails to reveal any basis for the granting of the requested variances by the Stratford Zoning Board of Appeals, the plaintiff's appeal must be sustained.
THE ZONING BOARD OF APPEALS FAILED TO DEAL WITH THE ISSUES RAISED BY THE COASTAL AREA MANAGEMENT ACT (CAM)
Since the record fails to support the granting of the requested variances to William Pacelli, it is not necessary to consider whether approval of the coastal site plan by the ZBA was proper and appropriate under the circumstances.
As with its approval of the variances, the board failed to give any reasons for its approval of the coastal site plan, and failed to address on the record either the statutory criteria of the Coastal Area Management Act (CAM), or the letter from the Connecticut DEP which "strongly" recommended that the project be reconfigured, and that the construction be accomplished without resort to the granting of variances (ROR, 15).
The only comment even remotely connected with the coastal management criteria came from a board member who believed that the presence of the retaining wall justified a setback of 12 feet, where the regulations provide for 75 feet, and the DEP believes that the optimum buffer is 100 feet (ROR, 26).
It is apparent that the board merely dismissed the DEP concerns out of hand, and failed to discuss either the recommendations, or the "conditions" which were evidently attached to the coastal site plan approval (ROR, 28).
The Zoning Board of Appeals does not have the last word, in terms of compliance with the coastal site plan review. The location of the proposed residence required action by the zoning commission, because it was situated within 100 feet of the Housatonic River.
CONCLUSION
The appeal of the plaintiff, Susan K. Riccio, is SUSTAINED.