161 Conn.App. 726
Conn. App. Ct.2015Background
- Property at 201 Ocean Avenue, West Haven: a long, narrow, 50' x ~200' lot (~10,400 sq ft) abutting Long Island Sound and Ocean Avenue; contains an existing two‑story dwelling and a 30' wide deck encroaching on an unimproved easement (Old King’s Highway).
- Lot is legally nonconforming (undersized lot area, inadequate front and side setbacks, insufficient street frontage) and previously received a front‑setback variance in 1992 for the deck/dwelling.
- Owner Robert F. Fischer applied in 2009 for six variances to enlarge the nonconforming dwelling (street‑side addition, attached three‑car garage, enclosing part of the deck, second‑floor balcony) and to increase lot/building coverage.
- Neighbors (Amendola; Benedicts) opposed, arguing no unique hardship (alternatives exist, e.g., detached garage or additions toward Ocean Avenue) and adverse impacts (views, privacy, scale).
- Zoning Board of Appeals granted the six variances without a collective written statement of reasons; Superior Court affirmed the board (finding hardship from lot size/shape and Old King’s Highway), but the appellate court reversed, holding no legally cognizable hardship and remanding to sustain the neighbors’ appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a legally cognizable hardship existed to justify variances | Fischer’s lot size/shape and the Old King’s Highway easement create an exceptional, parcel‑specific hardship preventing reasonable use | Fischer: undersized, narrow lot and easement uniquely limit buildable area and prevent desired additions | No — hardship was personal preference/disappointment, not a parcel‑specific legal hardship; variances improperly granted |
| Whether enlarging an existing nonconforming structure can be allowed | Neighbors: expansions further increase nonconformity and are disfavored; alternatives exist | Fischer: additions are reasonable, maintain existing noncompliance lines, and respond to neighbors’ concerns | Court emphasized zoning policy against increasing nonconformity; applicant failed to show hardship sufficient to permit expansion |
| Whether the board’s action complied with variance standards (compatibility with comprehensive plan) | Neighbors: even if use is consistent with residential district, hardship requirement still not met | Fischer/Board: proposed single‑family use fits the residential plan; first prong satisfied | Both courts agreed the variance use met the comprehensive plan prong; failure was on the hardship prong |
| Whether a reviewing court may search the record where the board gave no collective reasons | Plaintiffs: absent stated reasons, court should search record for any proper basis | Board: relied on hearing discussion and apparent findings | Appellate court searched the record (per precedent) and found no substantial evidence of legally cognizable hardship |
Key Cases Cited
- Smith v. Zoning Board of Appeals, 174 Conn. 323 (Conn. 1978) (hardship must be different in kind from that generally affecting properties in the district)
- Bloom v. Zoning Board of Appeals, 233 Conn. 198 (Conn. 1995) (variance requirements and limits on increasing nonconformity; courts may not infer a collective rationale from minutes)
- Garibaldi v. Zoning Board of Appeals, 163 Conn. 235 (Conn. 1972) (variance runs with the land and is not a personal exemption)
- Grillo v. Zoning Board of Appeals, 206 Conn. 362 (Conn. 1988) (preventing maximum economic use does not necessarily create legal hardship)
- Giarrantano v. Zoning Board of Appeals, 60 Conn. App. 446 (Conn. App. 2000) (distinguishing cases where lot shape/size preclude any reasonable permitted use)
- Verrillo v. Zoning Board of Appeals, 155 Conn. App. 657 (Conn. App. 2015) (appellate review must search the record when the board gives no official reasons for its decision)