Opinion
No. CV-05-4003399S
July 19, 2006
MEMORANDUM OF DECISION
This is an appeal by the plaintiff, Andrew Terracianno, from the decision of the defendant, East Lyme Zoning Board of Appeals, denying the plaintiff's application for a variance of the 1000-foot separation distance between drive through windows in a commercial zone required by § 20-26 of the East Lyme Zoning Regulations. The plaintiff claims that the defendant acted illegally, arbitrarily and in abuse of its discretion.
The plaintiff is the part-owner of 323-327 Flanders Road, East Lyme, Connecticut (the "property"), which is the subject of the variance at issue in this appeal. As a part-owner of the property, the plaintiff is aggrieved by the action of the defendant.
The property is located in a commercial zone designated "CA Commercial." The plaintiff has operated a bakery on the property for over thirty-three years and sought to add to his bakery a drive through window. The plaintiff filed an application with the defendant for a variance of § 20-26 of the zoning regulations which provides in pertinent part:
No restaurant or food service establishment with a drive through facility shall be built or established upon a lot or premises within a radius of 1000 feet of any part of any other building, lot or premises used for such purpose.
The plaintiff's property is located within 1000 feet of both a Wendy's restaurant and a MacDonald's restaurant, each of which has a drive through facility.
After holding a public hearing, the defendant voted three to two in favor of the plaintiff's application. However, because General Statutes § 8-7 requires there to be a concurring vote of four members of the zoning board of appeals, the application was denied. No reasons were given for the defendant's action.
The powers of a municipal zoning board of appeals are derived from § 8-6(a)(3) of the General Statutes, which provides broad authority to:
(3) 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 public safety and welfare secured . . .
One seeking a variance from a municipal zoning board of appeals must satisfy two basic requirements: 1) the variance must be shown not to affect substantially the comprehensive zoning plan, and 2) adherence to the strict letter of the zoning ordinances must be shown to cause unusual hardship, unnecessary to the carrying out of the general purposes of the zoning plan. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368 (1988). Proof of exceptional difficulty or unusual hardship because of some peculiar characteristic of the parcel of land is a condition precedent to the granting of a zoning variance. Reid v. Zoning Board of Appeals, 235 Conn. 850, 857 (1996). The granting of a variance, because it permits a property owner to use the property even though a violation of the zoning regulations will result, is reserved for unusual or exceptional circumstances. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206-07 (1995).
A zoning board of appeals is endowed with liberal discretion and its decisions are subject to review by a court only to determine whether the board acted arbitrarily, illegally or unreasonably. Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269 (1991). The burden of demonstrating that the board acted improperly is upon the party seeking to overturn the board's decision. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988).
A court should not usurp the function and prerogatives of a zoning board of appeals by substituting its judgment for that of the board where an honest judgment has been reasonably and fairly exercised after a full hearing. Bloom v. Zoning Board of Appeals, supra, 206. The question is not whether another decision maker, such as the trial court, would have reached the same decision, but whether the record compiled before the agency supports the decision reached. Calandro v. Zoning Commission, 176 Conn. 439, 440 (1979).
A decision must be upheld if it is supported by substantial evidence. 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 to justify, if a trial were to a jury, a refusal to direct a verdict where the conclusion sought to be drawn is one of fact. Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993).
In Graff v. Zoning Board of Appeals, 277 Conn. 645, 670 (2006), our Supreme Court summarized the law with reference to the failure of a zoning board to state the reasons for its actions as follows:
[O]ur case law clearly requires the trial court, in appeals from planning and zoning authorities, to search the record to determine the basis for decisions made by those authorities . . . [F]ailure to state on the record the reasons for its actions . . . renders appellate review more cumbersome, in that the trial court must search the entire record to find a basis for the commission's decision. We further stated that [i]f any reason culled from the record demonstrates a real or reasonable relationship to the general welfare of the community, the decision of the commission must be upheld . . . We have enunciated this duty of a trial court with respect to appeals from zoning boards in a long line of cases. (Citations omitted; internal quotation marks omitted, emphasis in original.)
The plaintiff claims that the reasons given by the board members for the defendant's decision were not valid reasons and were based on improper motives. The record, however, does not support the plaintiff's claim.
Although the defendant's decision did not articulate its reasons for denying the plaintiff's application, two members of the board expressed concerns as to traffic problems which would be caused by an additional drive through in the area. In the deliberations by the members of the board, before the vote on the application was taken, member Hunt indicated his concern based on his personal observations of the hazard of vehicles coming out of the property and member Mostowy agreed with member Hunt's concerns.
This expressed concern with traffic safety justifies the denial of the variance by the defendant in accordance with the provisions of C.G.S. § 8-6(a)(3) requiring the defendant to evaluate all variance applications with due consideration for conserving the public health and safety.
The plaintiff further claims that the regulation by the Town of East Lyme requiring a 1,000-foot separation between drive throughs constitutes a hardship sufficient to warrant the granting of a variance to the plaintiff.
The plaintiff's claim, however, would apply to every parcel of real estate which is within 1000 feet of another restaurant or food service establishment having a drive through facility. Therefore, the plaintiff has failed to show "that owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such . . . regulations would result in exceptional difficulty or unusual hardship." C.G.S. § 8-6(a)(3).
The plaintiff relies on four cases to support his claim that a variance may be granted because a property owner is unable to develop his property because of some zoning regulation. In each of the cases cited by the plaintiff, however, the successful applicant for a variance owned real estate with specific problems unlike other properties in the area. Stillman v. Zoning Board of Appeals of the Town of Redding, 26 Conn.App. 631 (1991) (variance granted of setback and coverage rules because of unusual characteristics of parcel, namely location of septic tank and well); Stryker v. Zoning Board of Appeals of the Town of Stonington, 1991 W.L. 170170 (Conn.Super., 1991) (variance granted of buffer zone because of unique physical characteristics and configuration of parcel, namely small and odd-shaped buildable area); Merlo v. Zoning Board of Appeals of the Town of Wethersfield, 16 Conn. L. Rptr. 406 (Conn.Super., 1966) (variance granted of side yard setback rules because of configuration of garage on real estate); Brown v. Zoning Board of Appeals of Town of Fairfield, 22 Conn. L. Rptr. 406 (1998) (variance of side yard setback rules granted because applicant could not construct addition to house anywhere except in setback area).
In each of the cited cases there was a unique characteristic of the applicant's real estate which differentiated it from other properties in the area. In the present case, there is no such unique characteristic of the plaintiff's property.
Therefore, the court finds that the plaintiff did not have a hardship sufficient to warrant the granting to the property of a variance of the 1000-foot separation distance between drive throughs.
Based on the foregoing, the court finds that the defendant had before it ample evidence that an additional drive through was not appropriate for the area in which the property is situated and that the plaintiff did not establish a hardship sufficient to warrant the variance he requested.
Accordingly, since the plaintiff has failed to sustain his burden of proof that the defendant acted illegally, arbitrarily and in abuse of its discretion, judgment may enter dismissing the plaintiff's appeal.