Opinion
No. FSTCV10-6003074S
May 6, 2011
MEMORANDUM OF DECISION
The plaintiffs Eric Simonson and Barbara Simonson appeal from a decision of the defendant Zoning Board of Appeals (ZBA) of the Town of Darien in which the ZBA granted three setback variances to the defendants J. William Ropp and Adrienne Dreiss (the "Ropps") with respect to the proposed tear down and replacement of their existing residence on the property at 364 Hollow Tree Ridge Road in Darien.
Background
The Ropps' existing home is a legally nonconforming structure for which the prior owner Suzanne Shutts was granted three building setback variances in 1997 based on hardship because of the unique configuration of the property which is a 2.8577-acre rear lot in a Residential Two Acre ("R-2") zone with no public street frontage. The plaintiffs, Eric and Barbara Simonson, own and reside at the premises at 362 Hollow Tree Ridge Road. The Simonson property is a 5.335-acre rear lot. Both the Ropp property and the Simonson Property were created from the 1959 subdivision of an existing lot that was over 7 acres in size. When the properties were first subdivided, it was understood that the Ropp property would be accessed off a private road to be known as Whitewood Lane. (See Return of Record ("ROR") #9.) Whitewood Lane, however, was never developed and the Ropp property became a rear lot with no frontage. Id. All the Ropp lot lines are therefore considered to be rear lot lines causing the lot to be subject to fifty-foot setbacks from all lot lines under Section 406 of the Darien Zoning Regulations. (ROR #38.) The Simonson and Ropp properties now share a common driveway providing access to a public highway.
Approximately two-thirds of the Ropp property consists of a pond, stream and related wetlands. The only land on the Ropp property that is outside the wetlands is the northwest corner, a good deal of which is within the fifty-foot setback areas. (ROR #31.) In October of 1997 the ZBA granted Variance Application No. 67-1997 (ROR #9, #30) to Mrs. Shutts in order to add an addition to her house, add a second floor, and add a deck. The ZBA granted three variances from the setback requirements of Zoning Regulations § 406: "23 in lieu of 50 foot required setback from the northerly property line; 22 in lieu of 50 foot required setback from the westerly property line; and 35 in lieu of required 50 foot setback from the southwest property line." The 1997 variances were granted by the ZBA "due to the unusual circumstances of the property and because strict application of the regulations would cause undue hardship." Id. When the Ropps purchased the property from Mrs. Shutts she had completed some, but not all, of the renovations proposed in her 1997 variance application. Specifically, she had added on an addition to the westerly side of the building extending to ± 22 feet of the property line, and added a deck to the north of the building within ± 23 feet of the property line in conformance with the approved plans. (See Plans ROR #31 and photo ROR #20.) She did not at any time, however, construct the second floor addition to the home and the variance to commence construction on the second floor has expired. After the Ropps purchased the property they decided to renovate the existing structure by taking it down to the foundation walls and building a new house structure on substantially the same foundation footprint. (Application Form ROR #7.) They planned to re-use approximately 70% of the existing foundation walls. (Transcript p. 36 ROR #37.) As their attorney testified, "the purpose of maintaining the existing foundation and footprint was to minimize disturbance to the existing onsite wetlands." (Tr. 3. ROR #37.) The Ropps also planned to decrease the nonconformity of the existing home into the setback area by removing the large porch on the northern side of the building, and removing a majority of the existing paved driveway by replacing it with grass pavers. (Tr. 5-6 ROR #37; plans ROR #31.)
The Ropps' 1997 Variance Application No. 67-1997 (ROR #7), seeks variances of the Section 406 setback requirements to allow the replacement structure to be built on the same location as the existing foundation: ± 31 feet in lieu of 50 feet from the northerly property line; and ± 28 feet (later amended to 28.3 feet) in lieu of 50 feet from the southwesterly property line. After public notice (ROR #1-4) the application was considered at public hearings of the ZBA on September 23, 2009 and November 18, 2009. On November 18 the ZBA unanimously (4-0) approved the requested variances. See ZBA Minutes and resolution Cal No. 39-2009, ROR #35. Specifically the ZBA granted the requested variances on the following grounds:
[D]ue to the demonstrated, unusual hardship circumstances of the subject property, and because granting of the request is in harmony with the general purposes and intent of Section 100 of the Zoning Regulations; and because strict application of the Zoning Regulations would deprive the applicant of substantial justice in the use of the property; and because the requested variance is the minimum adjustment necessary to achieve substantial justice while securing public safety and welfare; and because the proposed project will not have any significant, negative impacts upon the neighboring properties.
The plaintiffs have properly served and filed a timely appeal of the granting of the foregoing setback variances, claiming that the ZBA acted illegally, arbitrarily, and abuse of discretion in that (a) the Board granted the requested variances even though the applicants failed to provide evidence of a hardship; (b) the Board granted the requested variances even though any hardship the applicants may have shown was self-created, and not a valid basis for granting the requested variances; (c) The Board granted the requested variances even though the Application was incomplete; (d) the Board granted the requested variances even though the proposed residence did not comply with the maximum height limits; (e) the Board granted the requested variances on the basis that the proposed building would be built on the same footprint as the existing residence, even though reconstruction on an existing footprint is not a valid basis for granting variances; (f) the Board granted the requested variances on the basis that a variance had been granted for the property several years previously, even though the existing of prior variances is not a valid basis for granting a new variance; and (g) the Board's decision was arbitrary, capricious an abuse of discretion, and illegal.
Jurisdiction
General Statutes § 8-8 governs an appeal taken from a decision of a zoning board of appeals. "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 (1989).
Aggrievement
"It is well settled that pleading and proof of aggrievement to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38 (2003). The plaintiffs have pleaded aggrievement based upon their ownership of property at 362 Hollow Tree Ridge Road, Darien, Connecticut, which abuts and lies within 100 feet of the subject property. (Appeal, ¶ 4.) Conn. Gen. Stat. § 8-8(a)(1) provides that an "aggrieved person" includes "any person owning land that abuts or is within a radius of 100 feet of any portion on the land involved in the decision of the board." The court has reviewed the deeds by which the plaintiffs acquired title to the premises at 362 Hollow Tree Ridge Road (Pl. Ex, 1, 2) and the survey map (ROR #31) and finds that the plaintiffs Eric Simonson and Barbara Simonson are statutorily aggrieved in that they own property which abuts the subject property.
Standard of Review
Zoning boards are endowed with liberal discretion. Cumberland Farms v. Zoning Board of Appeals for the Town of Groton, 74 Conn.App. 622, cert. denied 263 Conn. 901 (2003). "Generally, it is the function of a zoning board or commission 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." Raymond v Zoning Board of Appeals for Norwalk, 76 Conn.App. 222, 228 (2003). "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 . . ." (Internal citations and quotation marks omitted.) Adolphson v. Zoning Board of Appeals for Fairfield, 205 Conn.703, 707 (1988). As stated in Hoffer v. Zoning Board of Appeals of Town of Oxford, 64 Conn.App. 39, 41 (2001):
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 . . . The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs.
Thus, this court may interfere only if the board acted arbitrarily or illegally or so unreasonably as to have abused its discretion. Culinary Institute of America v. Board of Zoning Appeals, 143 Conn. 257, 262 (1956).
It is well established 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 regulations produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone. Moon v. Zoning Board of Appeals, 291 Conn. 16, 24 (2009). As said by the Supreme Court in Moon, at 24, quoting from Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205-08:
Accordingly, we have interpreted [General Statutes § 8-6(a)(3)] to authorize a zoning board of appeals to grant a variance only when two basic requirements are satisfied: (1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan . . . Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance . . . A mere economic hardship or a hardship that was self created, however, is insufficient to justify a variance . . . and neither financial loss nor potential for financial gain is the proper basis for granting a variance.
Discussion Hardship
Plaintiffs claim that the record in the present case contains no evidence of a legally cognizable hardship.
In face of this allegation the court must consider whether the board gave reasons for its action. Where a zoning board of appeals does not formally state the reasons for its decision, the trial court must search the record for a basis of the board's decision. Bloom, supra, 208. Although individual members of the board may discuss or articulate their reasons for granting a variance, that cannot stand as the formal, official collective reason for the board's action, which must include an ultimate decision with express reason behind that decision, Harris v. Zoning Commission, 259 Conn. 402, 420-21 (2002). In this case, although the transcript contains some statements by individual board members in their deliberations, (TR. 53-71, ROR 37) there is no collective official statement of the reason or reasons for granting the variances other than the conclusory non-factual statement from the minutes quoted above at page three, which is inadequate for purposes a judicial review. The court will therefore search the record for a basis of the board's decision.
As did the Supreme Court in the Moon case, at 26, the search is directed by looking first at the application for variance. The application (ROR #7) includes the following statements in Item K. "The majority of the property is wetlands and includes a pond and watercourse. In addition, the Property is a rear lot in the R-2 zone and is therefore subject to a fifty foot setback from all property lines." "Due to the existing wetlands on the property and the unique shape of the lot, it would be a hardship to require the applicant to require the building to be set back 50 feet from all property lines. On the whole, the Applicant's proposal will serve to reduce the existing nonconformity and is therefore an improvement over the existing conditions."
There are two reasons set forth in the application — which is part of the record — each on its own sufficient to support the granting of the variances: (1) the topography and configuration of the property, especially the extent of the wetland setback or "upland review areas"; and (2) the reduction of the existing nonconformities brought about by the requested variances. Each will be discussed.
The wetlands on the property and the relationship between the wetlands and 50-foot setbacks are well documented in the record. In addition to the statements in the application the wetlands setback lines and the "upland review area" are clearly depicted on the Zoning Location Survey (ROR, 27, 31) and the wetlands are shown on the Erosion and Settlement Control Plan (ROR #28). Atty Zabetakis, representing the Ropp applicants at the public hearing of November 18, 2009 (Transcript is ROR 37) gave a detailed explanation of the wetlands (which she described as constituting "the vast majority of the property," TR3), the detention pond on the property, the plans to decrease runoff by decreasing impervious surfaces and adding trench drains for gutter runoff, and a summary of the drainage report, and erosion and sedimentation control plan as prepared by a drainage engineer. (TR 3-5.) The wetland buffer played a role in the board's deliberations where the chairman made specific reference to "the 50 foot buffer zone from a wetland" (TR 56) and a member noted the application of the 50-foot rear property line setback from every property line of the lot "which creates a smaller building envelope in relation to the wetlands" (TR 57), causing the chairman to conclude "I think the wetlands, the existence of the wetlands prohibits this building." ( Id.)
The existence of wetlands has been found to constitute a basis for the granting of a variance. See, e.g. Levy v. Westport, Docket No. CV06-4015543S, Superior Court, Judicial District of Fairfield (October 25, 2007, Owens, JTR, 2007 WL 3318079 at *3 (" `A hardship resulting from the peculiar topography or condition of the land or a particular location which makes the property unsuitable for use permitted in the zone in which it lies may well be such a hardship as is contemplated by the ordinance' [citing] Plumb v. Zoning Board of Appeals, 141 Conn. 595, 601 . . . 1954). Consequently, in the present case, the topography, wetlands, and narrowness of the property create a legally cognizable hardship"); and Fifteen North Plains Industrial Road, LLC v. Wallingford Zoning Board of Appeals, Docket No. CV03-0475864, Superior Court, Judicial District of New Haven (September 22, 2004, Burns, JTR), 2004 WL 2287744 at *6 (existence of wetlands in the middle of the property "constitutes a topographical condition to support the board's approval of the variance").
The plaintiffs have not met their burden of showing that the board acted without the basis of a legally cognizable hardship. Their citation of Moon v. Zoning Board of Appeals, supra, is unavailing. In that matter the application for hardship variance was denied by the Madison ZBA, which was affirmed by the Superior Court which was affirmed on appeal. The primary litigated issue was whether or not the plan to add additional living space to the second story of the plaintiffs' nonconforming residence even required a variance, which turned on a judicial construction of a particular provision of The Town of Madison Zoning Regulations. The Supreme Court (which had taken the appeal on transfer from the Appellate Court) agreed with the Superior Court that a variance was required, which then brought into focus the trial court's conclusion that the plaintiffs had failed to establish before the board that strict enforcement of the zoning regulations would cause them exceptional difficulty or unusual hardship. The claims of hardship claimed before the ZBA were twofold: "(1) that their lot was so undersized that the strict enforcement of the zoning regulations would leave only a small strip of land unsuitable on which to build any house; and (2) that the internal layout of the house was poorly designed to meet the needs of modern living." The court, noting from photographs, drawings, and plans in evidence that there was already an existing residence on the property, ruled that the plaintiffs had "utterly failed" to present evidence to support the first claim ( id. 26) and that the second claim — the point for which plaintiffs herein cite Moon — was an "inconvenience" that "does not rise to the level of hardship necessary for approval of a variance." Id. 27, n. 9. The Ropps in this case have not made any claim of hardship premised on the internal layout of the house they intend to build, or internal convenience factors.
Self-Created Hardship
Plaintiffs claim that any hardship alleged by the Ropps cannot support the granting of a variance because it would be self-created, in that the evidence shows that the Ropp property and the Simonson property were formerly part of the same parcel which was voluntarily subdivided into two lots by a previous owner in 1959.
It is well established that a hardship that is self-'created is never a proper ground for a variance. Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39-40 (1982); and that where an applicant or his predecessor in title creates a nonconformity, the board lacks power to grant a variance. Santos v. Zoning Board of Appeals, 100 Conn.App. 644, cert. denied, 282 Conn. 930 (2007). Plaintiffs also cite two cases where applicants were seeking variances for purposes of being able to subdivide their properties, and were denied on the ground of self-created hardship because of their voluntary decision to subdivide. See Aitken v. Zoning Board of Appeals, 18 Conn.App. 195, 206 (1989) and Dupont v. Zoning Board of Appeals, 80 Conn.App. 327, 330-31 (2003). None of those cases, however, establish that the hardship claimed by the Ropp defendants in this case was self-created. They are not seeking to subdivide the property. That was done more than fifty years ago. Nor are the Ropps claiming that the 1959 subdivision caused a nonconformity. Their lot contains more than 2.8 acres of land in a 2-acre zone, and there is nothing in the record to indicate that any variance was sought or obtained by the previous owner to enable that subdivision to occur. So far as the record shows, the lot existed without variance from 1959 until the Ropps' predecessor, Mrs. Shutts, was granted a variance in 1997 to build the existing house partially within the 50-foot rear lot line setback areas, because of the same wetland-related hardship now advanced by the Ropps. Counsel for Ropps has argued — and plaintiffs do not dispute — that the Town of Darien wetland regulations affecting this property were enacted in 1973, and it is the existence of those regulations and their impact on a substantial portion of the Ropps' lot which is basis of the hardship they are now claiming. Where the hardship is created by the enactment of a zoning ordinance, and the owner of the parcel could have sought a variance, a subsequent purchaser has the same right to seek a variance and, if his request is supported in law, to obtain the variance. Santos, supra, at 652; Kulak v. Zoning Board of Appeals, 184 Conn. 479, 482 (1981). The same principle applies to the enactment of a wetland regulation. Likewise the 50-foot setbacks did not apply to the lot as first subdivided. It was only later, when the strip known as Whitewood Lane was not developed as access to a public highway that the lot became a rear lot with all lot lines subjected to the setback of a rear lot line. For these reasons the voluntary subdivision of the property by a predecessor in title does not put the Ropps in the situation of claiming self-created hardship in these proceedings.
Plaintiffs also argue that the Ropps' voluntary decision to tear the existing house down to the foundation walls and build a new house on the same footprint is a personal preference which has resulted in a self-created hardship. This same argument was rejected in Spiro v. Town of Madison Zoning Board of Appeals, Docket No. CV01-0455293S, Superior Court (July 23, 2002, Burns, JTR), 2002 WL 005863, where the applicants successfully sought a hardship variance from a coastal site plan review, seeking to demolish their existing nonconforming house and to build a new house. The appealing neighbors argued that any hardship was self-created because the existing house preexisted the enactment of zoning regulations and the claimed hardship would only occur if the applicants voluntarily demolished the existing "charming structure which is worth $400,000)." Id., *4. The court nonetheless dismissed the neighbor's appeal, holding that the hardship was not self-created but arose from the enactment of a zoning ordinance affecting their property. *7. This court will follow that same reasoning and holds that the Ropps have not created their own hardship by seeking to demolish and rebuild.
Reduction of the Existing Nonconformity
The Ropps' application sought, and the board granted, yard setback variances that actually reduced the nonconformity as compared to the variances granted in 1997. The existing (1997) variances, which run with the land, include: 23 feet in lieu of 50 feet from the northerly property line; and 35 feet in lieu of fifty feet from the southwesterly property line. (ROR #7.) Those variances as granted to the Ropps in this 2009 proceeding have been reduced to 31 feet in lieu of fifty feet from the northerly property line (a reduction of eight feet), and 28.3 feet in lieu of fifty feet from the southwesterly property line (a reduction of 6.7 feet). Primarily by the proposed elimination of a large deck presently encroaching into the setback area, the Ropps have achieved a substantial decrease of the nonconformity of the existing structure and a substantial decrease in the extent of the setback encroachment granted in Cal. No. 76-1997. The fact of this reduction in the nonconformity did not go unnoticed at the public hearing of September 23, 2009: "[Acting Chairman] Greene: "Is it true that you're improving your encroachments generally in every direction . . . ? Zabetakis: Improving or maintaining, yes." See September 23, 2009 Transcript ROR #36, at 7.
One of the purposes of the Darien Zoning Regulations is to "[b]ring about the gradual conformity of the uses of land and buildings throughout the Town to comprehensive zoning plan set forth in these Regulations . . ." Section 100e ROR#38. In keeping with that policy it has been held the elimination and reduction of existing nonconformities can be an independent basis for granting a variance. Hesock v. Zoning Board of Appeals of the Town of Stonington, 112 Conn.App. 39 (2009). (Granting of variance on application to raze a house located in flood control zone affirmed: increased compliance with the 100-foot setback requirement on the property served as an independent basis for granting the variance without a showing of unusual hardship.) As Explained by the Connecticut Supreme Court in Vine v. Zoning Board of Appeals, 281 Conn. 553 (2007):
In cases in which an extreme hardship has not been established, the reduction of a nonconforming use to a less offensive prohibited use may constitute an independent ground for granting a variance. (Citation omitted.) Id. 561
[I]t would elevate form over substance to insist on the principle [a showing of exceptional hardship] when there is no claim or evidence that granting the variance could result in even minimal harm to the neighborhood or undermine in any way the overarching zoning scheme, especially when substantial evidence to support a conclusion that it would result in a more conforming use. Id. 571
Even if the Ropps did not make a showing of exceptional hardship, then, the granting of these variances are upheld on the independent basis that the variances granted to them would reduce the existing lot line nonconformities and there is no evidence that the variances granted would result in harm to the neighborhood and they would advance the goal of Section 100e of the Darien Zoning Regulations.
The Prior 1997 Variance
Plaintiffs argue that the variance granted to the Ropps in 2009 was allowed on the basis of the variance granted to their predecessor Mrs. Shutts in 1997 to build the existing house. They cite Aitken v. Zoning Board of Appeals, supra, for the proposition that a prior variance is not a basis for granting a new variance. In Aitken the applicant Stosse was seeking a frontage variance in order to subdivide his property into two lots. Ten years prior, the parcel was four times larger, and he had obtained a frontage variance to subdivide into four lots, one of which he kept and was seeking to subdivide into the two lots. He put on no evidence of hardship other than to mention the earlier variance. The Appellate court reversed the dismissal of Aitken's appeal ordered the appeal to be sustained, saying "The fact that he [Stosse] obtained a variance more than ten years ago for property that was four times the size and subsequently subdivided is not sufficient reason to grant a variance." 18 Conn.App. at 195. This case is much different. The property is exactly the same lot, the variance being sought is virtually the same, the only difference being that the Ropps were seeking slightly less intrusion into the setback area. The claim of hardship was based on the same factors: the 50-foot setbacks on all sides and the wetlands. Unlike Mr. Stosse in the Aitken case, however, the Ropps included in the record and presented at the hearing substantial evidence of hardship presently existing in 2009, summarized above. There was mention of the 1997 variance, and the 1997 variance was part of the record (ROR #9) and counsel for the Ropps argued the 1997 variance as a reason for granting the Ropps' variance. Under all the circumstances, this court is not convinced that was improper. It is clear, however, that the ZBA had before it adequate evidence of present hardship to justify its finding of hardship. In fact, the issue of the earlier variance came up in deliberations, and the non-voting Code Compliance Officer, Mr. Woodside, told the board: "Any prior variance is certainly a good guide, but you're not bound by it. This is a start-over project effectively." (TR 61, ROR 37.)
The court finds no impropriety related to the evidence of the 1997 variance being before the ZBA
Adequacy of the Application
Plaintiffs point out that, in accordance with Conn. Gen. Stat. § 8-6(a)(3), in addition to finding unusual hardship, a ZBA must also find that the variance must be shown not to affect substantially the comprehensive zoning plan. The Darien ZBA in granting the Ropp variance did make a finding of that nature in its minutes and resolution, saying ". . . because granting of the request is in harmony with the general purposes and intent of Section 100 of the Zoning Regulations. . . ." (ROR #35.) Plaintiffs argue, however, that it was impossible for the ZBA to determine whether the proposed project complied with the applicable zoning regulations, because the application was incomplete in that it did not include elevation data sufficient to determine height in stories or in linear feet. The height limitations for a single-family house in an R-2 zone in Darien are: Maximum Height in Stories — 2 1/2; Maximum Height in Feet — 30. (ROR #38, Section 406.) The architectural plans for the proposed new house were submitted. (ROR #27.) The architect Mr. Schownenberger testified at length at the public hearing. He told the ZBA that the roof ridge "dimension [height] is 29 feet and change, 29 and 10, and I understand 30 feet is the maximum allowed." (ROR #37, Tr. 5.); and Atty. Zabetakis told the board: "[t]he architectural plans that were approved by the board for the Shutts residence, as you can see there is clearly a second floor on this building and because it is a roof with a much greater peak than is being proposed for this house. It [the proposed (but never built) second floor on the Shutts plans] is, in fact, a taller building if you look at it to the top peak on the roof" (TR 31). There was adequate basis to find that the 30-foot maximum height was not exceeded. There was also extensive discussion about whether or not the plans called for a three-story house, with focus on whether or not the basement would constitute a "story" or a "half story," and the effect of the sloping elevation of the soil around the house. (TR 31-51.) Atty. Zabetakis offered to get square foot calculations (TR 40) but was not asked to do so. The chairman commented "We're not going to pass on that. That's the Building department's job." (TR 45.)
Section 100 of the Darien Zoning Regulations (ROR 38) is entitled "Purposes" and sets forth in subsection a through k the general objectives of the regulations. There are no specific numerical goals or objectives and no references at all to roof heights or number of stories of a building.
Keeping in mind that requirement is for the board to find the variance must be shown not to affect substantially the comprehensive zoning plan, and the ZBA did find that "granting of the request is in harmony with the general purposes and intent of Section 100 of the Zoning Regulations" (emphasis added) based on the plans submitted and the testimony and extensive colloquy at the hearing, the court cannot say that the granting of the variance was unreasonable, arbitrary or illegal. It was not unreasonable for the board to defer the detailed calculations to the expertise of Darien Building department in conjunction with the application for the issuance of a building permit. The ZBA determined that it was satisfied with the information provided to it and satisfied that, as indicated by ZBA staff: "a routine part of any subsequent construction permit application process would be confirmation by Zoning staff that the maximum height was not exceeded and that the basement level and story maximum height was not exceeded." ZBA Resolution, ROR #35, ¶ 26, at 6. The board noted that the application for variance before it was not seeking to vary the height or story requirements of the zoning regulations. (ROR #37, TR 47-48) and that "it has to meet the requirements when they come in for their construction permit . . ." (TR 48) and that "[i]f they hit the three story issue they may not be able to build it" (TR 67).
"An administrative agency has reasonable discretion to determine if sufficient documentation has been submitted to proceed with an application." DeMilo v. Norwalk Planning Commission, Docket No. FSTXV06-4010464S, Superior Court, Judicial District of Stamford/Norwalk at Stamford (March 10, 2010, Mottolese, JTR), 2010 WL 1508302 at *2 quoting from R. Fuller, 9 Conn Practice Series, Land Series, Land Use Law and Practice (2d Edition 1999) Section 15.12 at 360. The Darien ZBA did not abuse that discretion in proceeding to decide this application and make its finding of harmony with the general purposes and intent of the zoning regulations.
Section 383b of the Zoning Regulations
Plaintiffs argue that the defendants failed to request or obtain a necessary variance to Section 383b of the Town of Darien Zoning Regulations (ROR #38). Section 383b provides, in part:
Such non-conforming building shall not be structurally altered to an extent greater than 50 percent of its current fair market value unless such alterations are required by law; provided, however, that such maintenance and repair work as is required to keep a non-conforming building or structure in sound condition shall be permitted; . . .
The meaning of the term "[s]uch non-conforming building" is apparent by reference to the preceding section, 383a, and the following section, 384, of the Regulations. Section 383a provides:
A building or structure, the use of which does not conform to the use regulations for the zone in which it is situated, shall not be enlarged or extended unless such building or structure, including such enlargement or extension, shall be made to conform to all regulations, including use, for the zone in which it is situated. (Emphasis added.)
Section 384 provides:
A building that is conforming in use, but does not conform to the height, yard, land coverage, or parking requirements of these regulations shall not be considered to be non-conforming within the meaning of Subsection 383.
Reading these three provisions together it is obvious that the term "[s]uch non-conforming building" as used in Section 383b refers only to a building that is non-conforming in use, and that a variance from Section 383b would be a use variance. But this case has nothing to do with a use variance. The Ropp property is located in a R-2 residential zone. It has been used as a residence. The replacement building they would like to construct would also be used as a residence. The only variances they sought and obtained were yard setback variances. Section 383b has no application to yard setback variances, and no variance from Section 383b would be necessary or appropriate.
Order
For all the foregoing reasons the plaintiffs' appeal from the granting of the variances is dismissed, Judge Trial Referee.