Opinion
No. CV07 400 85 78S
March 6, 2009
MEMORANDUM OF DECISION
The plaintiff, Stephen Zuber, owner of the subject property identified as 28 Moulthrop Street, Ansonia, Connecticut, appeals from the decision of the defendant, Zoning Board of Appeals of the City of Ansonia (hereinafter "Board"), denying his application for a variance of "Section 325 — That portion of Section 325 that requires that any interior lot in a residential district be for a one family dwelling even where the residence district permits a two family dwelling." (See Plaintiff's Zoning Board of Appeals application.)
The plaintiff claims hardship. "The property is a .71 acre parcel of property that is a pre-existing lot. Access to Moulthrop Street is by a 20' accessway. The lot is larger than any other lot in the area and the neighborhood is comprised of many two family dwellings. The lot size is sufficient to comply with existing density requirements. As a result of its unique size and access it is a hardship to permit only a one family dwelling on property of said size in a two family zone." (See Plaintiff's Zoning Board of Appeals application.)
The Ansonia Zoning Board of Appeals conducted a hearing on the plaintiff's application for a variance on July 6, 2007. The Board denied the plaintiff's application stating as a reason: "Wasn't a sufficient hardship." (See page 23, transcript of Zoning Board of Appeals meeting.)
The plaintiff, who is classically aggrieved, claims that the Board acted illegally, arbitrarily and in abuse of the discretion vested in it by law as an administrative agency in that:
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specifically and injuriously affected that specific personal or legal interest . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on the legally protected interest." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 665, 899 A.2d 26 (2006).
a. The record does not reasonable (sic) support the defendant's decision because the board misapplied the law regarding hardship.
b. The comments of the board members who voted to deny the application indicated that they based their decision on the position that, as a board, they should follow the `book' referring to the Ansonia Zoning Regulations.
c. The alleged reason that there is no hardship if the plaintiff can make any use of the property is an improper basis to deny a variance where the property is unique for the area and has a condition not effecting (sic) other properties in the zone where the other lots are substantially smaller with multi-family dwellings.
d. The requested variance did not affect substantially the comprehensive zoning plan because the area is mainly residential, multi-family dwellings and adherence to the strict letter of the zoning ordinance would cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.
(Plaintiff's Complaint, paragraphs 11a through 11d.)
The subject property is a legally existing interior building lot, accessed by a driveway from Moulthrop Street. The area of the lot is 0.71 +/- acres or 30,927 square feet (43,560 x .71 = 30,927). The interior dimensions are 160 +/- x 180' +/-. The driveway dimension is 122' +/- x 20' +/-.
The subject property is located in a Residence B zone which permits two-family residences. However, § 325 of the Ansonia Zoning Regulations, which applies to all residential zones in the City of Ansonia, limits interior building lots to one-family dwellings.
The plaintiff alleges in paragraph four of his Complaint that: "Section 325 of the Ansonia Zoning Regulations provides that any interior residential lot can only be used for a one-family dwelling." The defendant admits paragraph four in its Answer.
Section 325 was enacted to promote the public health, safety and welfare of the City of Ansonia community.
The plaintiff argues that he should be granted a variance because:
Connecticut General Statute § 8-6(a)(3) provides, inter alia, that "[t]he 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 . . ."
The subject property is a legally existing building lot located in a zone permitting two-family dwellings prior to the enactment of § 325 of the Zoning Regulations and therefore presently permitted to build a two-family dwelling were it not for § 325.
The subject property is over-sized and located in a neighborhood of one-and two-family legally existing homes and some lots in said neighborhood are 5,000 square feet and 10,000 square feet.
The subject property has private access in fee simple to Moulthrop Street.
The subject property meets all zoning and building requirements regarding density, lot size, set backs and access to utilities.
Despite these arguments, the Board denied the plaintiff's application for a variance.
A trial court "review(s) the decision of zoning board of appeals to determine if the board acted arbitrarily, illegally or unreasonably." Wnuk v. Zoning Board of Appeals, 225 Conn. 691, 695-96 (1993). "The trial court has to decide whether the board correctly interpreted the regulations and applied it with reasonable discretion to the facts." Spero v. Zoning Board of Appeals, 217 Conn. 435, 440 (1991). "In granting a variance, the board is presumed to have acted fairly and upon valid reasons unless the contrary is shown." Burlington v. Jencik, 168 Conn. 506, 509 (1975). "Where a zoning agency has stated its reasons for its actions, 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." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208 (1993). "The burden of proof to demonstrate that the board acted improperly is upon the plaintiff." (Internal quotation marks omitted.) Id. 206; see also Pleasant View Farm Development, Inc. v. Zoning Board of Appeals, 218 Conn. 365, 270 (1991). The question is whether the reasons assigned by the board are reasonably supported by the record and are pertinent consideration for granting a variance. Chevron Oil Company v. Zoning Board of Appeals, 170 Conn. 146, 151-54 (1975). The court should not go beyond the official statement of the board. Id., 153.
The court should not substitute its judgment for that of the board as long as an honest judgment has reasonably and fairly been made after a full hearing. Stankiewich v. Zoning Board of Appeals, 15 Conn.App. 729, 732 (1988).
Although the plaintiff suggests that "the comments of one of the two members of the defendant who voted against the variance can, at best, be considered confusing" (Plaintiff's Brief, page 7), the court disagrees with this characterization. The court suggests that the comments referred to are inarticulate yet plausible.
The Board is determining whether in its discretion a legal, valid hardship exists on behalf of the plaintiff.
"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.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 207, 658 A.2d 559 (1995). Proof of existence of practical difficulty or unusual hardship is a condition precedent to the granting of a variance. "To 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 of 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).
Zoning boards of appeal have authority pursuant to General Statutes § 8-6 to grant variances from local zoning regulations. "One who seeks a variance must show that, because of some unusual characteristic of his property, a literal enforcement of the zoning regulations would result in unusual hardship to him . . . The hardship complained of must arise directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved." (Citations omitted; internal quotation marks omitted.) Belknap v. Zoning Board of Appeals, 155 Conn. 380, 383, 232 A.2d 922 (1967). "Where the condition which results in the hardship is due to one's own voluntary act, the zoning board is without the power to grant a variance . . . Where . . . the hardship arises as a result of a voluntary act by one other than the one whom the variance will benefit, the board may, in the sound exercise of its liberal discretion, grant the variance." Id., at 384, 232 A.2d 922; Vine v. Zoning Bd. of Appeals of Town of North Branford, 281 Conn. 553, 560-61, 916 A.2d 5, 11 (Conn., 2007).
The "book" which the speaker refers to is Connecticut General Statutes § 8-6(a)(3) and Appendix A — Ansonia Zoning Regulations, which provide in part:
260.3 Variances: If a lot is of unusual size, shape, or topography, or if other unusual circumstances pertain to it or to any building that may be situated on it, and if such condition makes it impossible to apply strictly to such lot a specific provision of the Ordinance without resulting in unnecessary hardship, but in no other case, the Board of Appeals shall have the power to vary or adjust the strict application of the regulations or provisions of this Ordinance as will not be contrary to the public interest. A variance from the terms of this Ordinance shall not be granted by the Board of Appeals unless and until the following conditions and procedures govern: . . .
260.3.4 No variance in the strict application of any provisions of this Ordinance shall be granted by the Board of Appeals unless it finds
260.3.4.1 That there are special circumstances or conditions, fully described in the findings of the Board of Appeals, applying to the building or land for which the variance is sought, which circumstances or conditions are peculiar to such land or building and do not apply generally to land or building in the neighborhood and have not resulted from any willful act of the applicant subsequent to the date of adoption of the regulation or regulations appealed from, whether in violation of the provisions herein or not.
Although the foregoing regulations are quoted by the plaintiff in his Brief to support his argument that the Board should grant the plaintiff's application for a variance, the "book" also includes the additional zoning regulations, which, curiously, the plaintiff omits in his argument.
260.3.5 With respect to uses of land, buildings, and other structures, this ordinance is declared to be a definition of the public interest by the Zoning Commission, and the spirit of this Ordinance will not be observed by any variance which permits a use not generally permitted in the district involved, or any use expressly or by implication prohibited, by the terms of this ordinance in said district. Therefore, under no circumstances shall the Board of Appeals grant a variance to permit a use not generally permitted in the district involved, or any use expressly or by implication prohibited, by the terms of this ordinance in said district.
260.3.6 No similar use of neighboring lands, structures or buildings in the same district and no permitted use of lands, structures, or buildings in other districts shall be considered grounds for issuance of a variance.
The "book" is also tempered by Connecticut case law and the discretion of the Board which is entitled to deference.
A review of the record indicates that the plaintiff failed to prove or convince the Board that a hardship existed. The main thrust of the plaintiff's argument is that the building lot is located in a neighborhood of one-and two-family dwellings and, therefore, would be compatible with the neighborhood. But this argument is undermined by § 260.3.5 and § 260.3.6 which prohibits the granting of a variance that would override § 325. This is going by the "book."
For instance, on page 10 of the transcript of the Board hearing, after the plaintiff's presentation, the speaker says "But what we have to go by here is our book. It says all interior lots must be one-family houses. Now, I don't know how we can give up the book. That's what we go by."
The Board is not convinced that a large lot is unique and entitled to override § 325.
Again, on page 12 of said transcript:
SPEAKER: Why does he expressly want a two-family? Why doesn't he want a one-family?
MR. THOMAS: Well, he thinks the impact — the size of the lot is impacted severely by the zoning regulations, to be very honest with you. It is —
SPEAKER: So he has no specific reason?
MR. THOMAS: No more so than someone who [unintelligible] —
Here, the plaintiff offers no specific reason. Further, on page 13 of said transcript:
"SPEAKER: He just doesn't like it as it stands."
Here, the speaker suggests that the plaintiff does not like § 325.
Page 15 of said transcript, lines 3 and 4, which says: "SPEAKER: We can't go by the book, what are we going to do?" supports the Board's adhering to its regulations.
Page 17 of said transcript, Speaker says it is not hardship in response to a two-family home versus a one-family home.
Pages 19 and 20 of said transcript:
"SPEAKER: But I agree with Claudia. This is not truly a hardship."
"SPEAKER: Not in the sense that we are told to decide on hardships. He could still use this lot. If we were to make it — him unable to use it at all."
Page 20, lines 9 and 10 of said transcript:
"SPEAKER: Hardships are a very important part of our decision." Page 20, lines 13 and 14 of said transcript:
"SPEAKER: . . . It's not — you know, their hardship isn't, you know, a real hardship."
Admittedly, this was a divided Board, but the final conclusion and reason given was "Wasn't a sufficient hardship."
The Board's decision is legally supported in the record.
The Zoning Board of Appeals of the City of Ansonia did not act illegally, arbitrarily or in abuse of the discretion vested in it by law as an administrative agency.
Therefore, the plaintiff's appeal is dismissed.