RUSCITO v. ZBA

Full title: MARIANNE RUSCITO v. FAIRFIELD ZONING BOARD OF APPEALS ET AL

Court: Connecticut Superior Court Judicial District of Fairfield at Bridgeport

Date published: Mar 30, 2005

2005 Ct. Sup. 5552 (Conn. Super. Ct. 2005)

Opinion

No. CV 01 01383807 S

March 30, 2005

STATEMENT OF APPEAL

HUDOCK, JUDGE.

The plaintiff, Marianne Ruscito,¹ appeals from a decision of the defendant, the Fairfield Zoning Board of Appeals, granting a variance application of the defendants, Michael and Carole Schumer.

1 Although the file jacket in this appeal spells the plaintiff's name as "Rescito," subsequently, the plaintiff filed a motion for permission to serve an amended process to correct the spelling of her last name to "Ruscito." (Docket Item No. 104.)

II BACKGROUND

On July 5, 2000, the defendants, Michael and Carole Schumer applied for a variance from Fairfield's § 11.12 of the Fairfield zoning regulations, the section governing setbacks from Long Island Sound, and § 11.11.1, the section governing sideyard setbacks, in order to raise a lower level deck fifteen inches to the height of their upper level deck. (Supplemental Return of Record [Supp. ROR].) The stated hardship was the hazardous condition created by the dual-level deck. (Supp. ROR.) The parties represent that the defendant, the Fairfield zoning board of appeals, ultimately denied this application. (5/12/04 Trial Transcript; Ruscito's Brief, pp. 10-15; Schumers' Brief pp. 10-13.) On February 16, 2001, the Schumers filed another variance application with respect to the same regulations, citing the safety hazards caused by the dual-level deck, as well as the unusual topography of the sand dunes located on the property as hardships. (Return of Record [ROR], Exhibit 2.) The ZBA granted the application on February 1, 2001. (ROR, Exh. 3.)

The Ruscitos filed this appeal with the Superior Court on May 1, 2001, alleging that the ZBA's decision was arbitrary, illegal and constituted an abuse of its discretion. The court, Hudock, J., conducted a trial in this matter on May 12, 2004.

III JURISDICTION

General Statutes § 8-8 governs appeals from a zoning board of appeals to the Superior Court. A statutory right of appeal may be taken advantage of only by strictly complying with the statutory provisions that create that right. Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 283, 487 A.2d 559 (1985).

A Agrievement

"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal." (Internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 409, 788 A.2d 1239 (2002). "Aggrievement is an issue of fact . . . and credibility is for the trier of the facts." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning and Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).

General Statutes § 8-8(a)(1) provides, in pertinent part, that "`[a]ggrieved 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." Ruscito pleads that her property abuts the Schumers' property, her property has suffered a loss in value, and it has been negatively impacted. (5/12/04 Amended Complaint, ¶ 13.) At the time of trial, the parties stipulated to facts from which this court finds aggrievement.

B Timeliness and Service of Process

General Statutes § 8-8(b) provides "any 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."

General Statutes § 8-8(f) provides that "[s]ervice 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."

Ruscito alleges that the board's decision was published in the Fairfield Citizen News on April 11, 2001; (5/12/04 Amended Appeal, ¶ 12); and the Schumers have admitted the same. (12/9/03 Answer, ¶ 12.) On April 26, 2001, the appeal was commenced by service of process on the assistant town clerk, the chairman of the board, the clerk of the board and upon the Schumers. Accordingly, Ruscito commenced the appeal in a timely manner by service of process on the proper parties.

IV SCOPE OF REVIEW

"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." (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 402, 420. "In the absence of a statement of purpose by the zoning commission for its actions, it [is] the obligation of the trial court . . . to search the entire record to find a basis for the [board's] decision . . ." (Citations omitted; internal quotation marks omitted.) Id., 423.

In the present appeal, the ZBA granted the variance without stating any reasons. Accordingly, the court must search the record to find support for the ZBA's decision.

"A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). "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, [the Supreme Court has] 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." (Citations omitted; internal quotation marks omitted. Id., 206-07.²

2 General Statutes § 8-6(a) provides, in pertinent part, "The zoning board of appeals shall have the following powers and duties . . . (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. No such board shall be required to hear any application for the same variance or substantially the same variance for a period of six months after a decision by the board or by a court on an earlier such application."

"The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206.

V DISCUSSION

Ruscito appeals on the ground that the ZBA's actions were arbitrary, illegal and an abuse of its discretion because it granted the approval without any evidence of unusual conditions at the subject property not otherwise encountered in the zoning district that would constitute exceptional difficulty or unusual hardship. In addition, she claims that the ZBA exceeded its authority without considering the intensification of the nonconformity created by the proposed construction, in violation of § 11.10 of the regulations, and failed to require a variance application for that section. Finally, Ruscito appeals on the basis that the ZBA improperly reversed its decision from a previous, substantially similar application from the same applicants without a showing of a change in circumstances. (5/12/04 Amended Appeal, ¶¶ 14, 15, 16.)

A Whether the Record Reflects that the ZBA Improperly Reversed Its Decision from a Previous, Similar Application Without Demonstrating a Change in Circumstances CT Page 5556

Ruscito argues that the previous application, which was denied, is identical to the present application, which was granted, and that the ZBA improperly granted the second application without a showing of the requisite material change in circumstances.

The Schumers respond that the "prior application rule" did not preclude the ZBA from granting the present variance application. They maintain that if a different hardship was claimed with respect to the two applications, or if different evidence was offered in support of two otherwise identical application, than the ZBA has the discretion to approve the second application.

Because the ZBA granted the second variance application without proferring any reasons, unaccompanied by any reasons, the court must "search the entire record to find a basis for the [board's] decision." (Internal quotation marks omitted.) Harris v. Zoning Commission, supra, 259 Conn. 402, 423.

In the present appeal, the Schumers' initial application, filed July 5, 2000, sought to "increase the height of [the] two sections [of a dual-level deck] to 18 inches so as to make the existing deck one uniform level, including the step at the front of the present deck." (Supp. ROR.) With respect to the claimed hardship, the application stated "[t]he exceptional or unusual hardship consists of the potentially hazardous condition created by the present two level deck, especially when used by young children. In order to eliminate that condition, the applicant proposes raising the lower level of the deck by 15 inches." (Supp. ROR.)

The second application, filed on February 16, 2001, also sought "to raise the height of Sections A and B and the long step to the height of the main deck." (ROR, Exh. 2.) The application further stated that "[t]he exceptional or unusual hardship results from the unusual topography of the sand dunes on the property. The current multi-level deck is a safety hazard when used by toddlers, young children and by aged and handicapped visitors. Suggestions to lower the deck to the height of the smaller sections would result in [the] loss of [the] view of the shoreline as a result of the sand dunes' height." (ROR, Exh. 2.)

"When a party files successive applications for the same property, a court makes up to two inquiries. The first is to determine whether the two applications seek the same relief. The zoning board determines that question in the first instance, and its decision may be overturned only if it has abused its discretion. Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 279, 129 A.2d 619 (1957). If the applications are essentially the same, the second inquiry is whether "there has been a change of conditions or other considerations have intervened which materially affect the merits of the matter." (Internal quotation marks omitted.) Laurel Beach Assn. v. Zoning Board of Appeals, 66 Conn.App. 640, 645 (2001).

In Laurel Beach Assn. v. Zoning Board of Appeals, supra, 66 Conn.App. 640, in 1988, an applicant applied for a permit and special exception to construct a house on a particular lot, but the zoning board denied his request. In 1989, the town enacted new zoning regulations that eliminated the special exception approval requirement. In 1998, the applicant submitted an application to construct a house, whereupon the zoning enforcement officer concluded that the lot was a legally nonconforming lot. The plaintiff association appealed, in pertinent part, on the ground that the board improperly reversed its 1988 decision without evidence of a material change in circumstances in the time period between the two applications. Addressing the concept that it is solely for the board, and not the court, to determine whether an applicant's petition is a new application or substantially the same as an earlier application, the court explained that "[this] seems to give a zoning board absolute discretion. Such a statement glosses over the court's inquiry as to whether the agency abused its discretion." Id., 647.

The Appellate Court concluded that even if the board had considered the two applications substantially the same, it would not necessarily follow that the board abused its discretion in granting the permit. The court emphasized that the record revealed that certain documentation was presented with the second application that had not been presented with the 1988 application. Accordingly, "the zoning board could have properly granted the permit in 1998 even if it did view the relief requested as substantially similar." Id., 648.

In the present appeal, the two applications sought the same relief, i.e., raising two sections of the deck to the height of the main section. In fact at the April 5, 2001 public hearing, a board member inquired, "Did you make any changes from your last application?" and Mike Schumer responded "The application itself, in terms of what we want to do, is the same." (ROR, Exh. 1, p. 2.) Therefore, the court must proceed to the second inquiry of whether there has been a change of conditions or other intervening considerations which materially affect the merits of the matter. The second application describes "unusual topography of the sand dunes on the property" as an "exceptional or unusual hardship." (Supp. ROR.) At the time of the public hearing, however, the transcript reveals that the Schumers only raised the issue of the loss of view to refute a suggestion to lower the upper deck to the height of the lower sections. (ROR, Exh. 1, pp. 7, 13.) For example, Mike Schumer stated on the record that "[s]uggestions to lower the entire deck to match the height of the lowest sections, would result in loss of the view of the Long Island Sound, when we're using the deck, as a result of the sand dunes between the deck and the Sound." (ROR, Exh. 1, p. 7.) Later, he explained "[i]t's the nature of the property, if we make the deck lower, we lose our view, which is the reason you buy a property on the beach." (ROR, Exh. 1, p. 13.)

A zoning board of appeals is prohibited "from reversing its previous decision unless the facts and circumstances which actuated the decision are shown to have so changed as to vitiate or materially affect the reason which produced and supported and no vested rights have intervened." (Emphasis added.) Laurel Beach Assn. v. Zoning Board of Appeals, 166 Conn. 385, 387, A.2d 834 (1974).

This court concludes that the second application differs from the first in that it has the additional "unusual topography" language. Therefore, the Board was not precluded by the "prior application" rule from reversing its previous decision.

B Whether the Record Reflects that the Schumers Demonstrated a Legally Cognizable Hardship

In her memorandum in support, Ruscito contends that a variance may not be granted unless the claimed hardship originates in the zoning regulation, and arises from the application of the regulation to conditions that are beyond the control of the applicant. Ruscito acknowledges that topographic conditions on the property, such as the presence of sand dunes, could be a basis for the granting of a variance, but, she argues, only if other properties in the area do not have the same condition. She maintains that the sand dunes are not unique to the Schumers' property because all of the properties in the Schumers' neighborhood are located on the beach, and are equally affected by the beach. She concludes that because the topography is not unique to the Schumers' property, the hardship is not unique to that property, and, accordingly, may not justify the granting of a variance.

The Schumers counter that the record evidence demonstrates that their property contains sand dunes that obstruct their view of the water, and that the ZBA properly found hardship due to the topography of their lot. They acknowledge that other homes in the neighborhood have sand dunes, but that only four or five have dunes as high as theirs. They conclude, therefore, that the topography on their lot constitutes a special circumstance that does not generally apply to other lots in the neighborhood. In addition, the Schumers maintain that the variance conforms to Fairfield's comprehensive zoning plan because raising the deck to a uniform height promotes public health and safety.

As previously set forth, the Schumers applied for a variance from § 11.12, outlining the setback requirements from Long Island Sound,³ and § 11.11.1, the section governing sideyard setbacks.⁴ (ROR, Exh. 2.) The stated hardships were safety considerations because of the varying heights of the deck's sections and the existence of sand dunes. (ROR, Exh. 2.)

3 Section 11.12 provides that "[t]he minimum setback of buildings and structures from Long Island Sound shall not be closer than the front wall of the building existing as of the date of the adoption of these Beach District Regulations facing Long Island Sound, or if a vacant lot, then no closer to the mean high water line of Long Island Sound than a line drawn between the two (2) closest front corners of the closest houses on either side, including porches, but no open decks on the ground floor, except that in no case shall the setback be less than twenty-five (25) feet. This setback shall also apply to fences and other structures more than one foot above the ground."

4 Section 11.11.1 provides that "[s]ideyard setbacks for lots having an average width of less than forty (40) feet shall be as established by the existing foundation of the principal structure, or if there shall be no existing structure, then the cumulative sideyard setback shall be twenty (20) percent of the average width of the lot, but no less than four (4) feet on any side."

Variances may be granted only when the applicant has demonstrated that (1) the variance will not affect substantially the town's comprehensive zoning plan, and (2) adhering to the strict letter of the zoning regulation will cause unusual hardship unnecessary to carrying out the general purpose of the zoning plan. Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206-07.

The topography of an applicant's property may constitute a hardship sufficient to justify the granting of a variance, however, "[t]o 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." 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 Seplowitz v. Clinton Zoning Board of Appeals, Superior Court, judicial district of Middlesex at Middletown, CV 95 077150 (January 6, 1997, Arena, J.), an applicant sought a variance to construct a rear deck, and the board had granted the application, citing "safety as the hardship element," and noting that the requested variance "would enable the property to be brought into conformity with surrounding lots." Id. The abutting landowner appealed, asserting that permitting the applicant to construct an elevated rear deck would inhibit her view of Long Island Sound.

With respect to the hardship issue, the court observed that "[t]he [b]oard determined that the subject property is the only property in the vicinity which lacks a view of the water . . . Furthermore, since the view is blocked by neighboring homes, this condition was not created by the [applicant]. As a result, the strict application of the setback requirements specified in the zoning regulations will deprive the [applicant] of any possibility of obtaining a water view." Id. The court concluded that "since the record supports the [b]oard's finding of a hardship which is unique to [the applicant's] property, this court will not disturb the board's wide discretion."

In Overshore Assn. v. Madison Zoning Board of Appeals, Superior Court, judicial district of New Haven, CV 02 0459303 (October 22, 2002, Radcliffe, J.), an applicant sought variances to replace an existing dwelling with a new structure. The Board granted the variances after determining that a hardship existed because of beach front erosion that had occurred under the existent structure. The plaintiffs appeal on the basis that the applicant failed to establish hardship. The court observed that the board had "found that a hardship existed because the property in question had been uniquely subjected to natural forces which eliminated a substantial portion of the beach in front of the structure." Id. The court further emphasized that the record provided "substantial evidence of the erosion of the defendant's property," and that even the plaintiffs had acknowledged that the record did not reflect similar problems on the neighboring parcels. Id.

In the present appeal, Michael Schumer represented at the public hearing that "[n]ot all properties on Fairfield Beach have the kind of dunes we have. There are four or five houses in a row that have them." (ROR, Exh. 1, p. 7.)

This court concludes that the Board had insufficient evidence to determine the uniqueness of the hardship alleged by the defendant Schumer and therefore was acting in a manner that was illegal, arbitrary and an abuse of its discretion when it granted the variance. The court has limited its review to the record presented to the Board. Upon examination of the exhibits and the hearing minutes, the court fails to find, for example, any meaningful description of Fairfield Avenue including but not limited to information relating to length of the avenue as it abuts Fairfield Beach and the number of adjoining beachfront property. There is no description of the topography of the beach itself insofar as it relates to the existence of sand dunes, their size and their effect upon the adjoining properties. Mr. Schumer's statement, quoted above (ROR, Exh. 1, p. 7.), is virtually the sole evidence as to the unique impact of the sand dunes. The Board received no evidence as it related to the effect of the sand dunes upon the line of sight of any other beach front homes, including the "four or five" mentioned by Mr. Schumer. While this court is willing to give due deference to the Board for its expertise in matters of local zoning rules and their enforcement, it cannot be the "rubber stamp" for decisions that lack both a stated rationale and sufficient evidence to support the Board's decision. Such is the present case.

VI CONCLUSION

For the foregoing reasons, the court sustains Ruscito's appeal. The Decision of the Fairfield Zoning Board of Appeals is hereby reversed and this matter is remanded to the Board for further proceedings.

BRUCE HUDOCK SUPERIOR COURT JUDGE