126 Conn. App. 400
Conn. App. Ct.2011Background
- Defendants sought permit to construct single-family home with height plan initially showing 38 feet, exceeding 35-foot limit; after adjustments, a 35-foot plan was approved and building commenced; a code enforcement officer later measured 37 feet 7 inches and issued cease and desist; board granted a variance on grounds including contractor/architect error and de minimis considerations; trial court sustained plaintiffs’ appeal, ruling hardship was self-created and no de minimis exception applies; final appellate decision affirms trial court’s ruling.
- The zoning district caps height at 35 feet in the relevant area; the height issue arose during construction and was discovered after building commenced; the board allowed a variance despite a formal cease and desist to correct the height; the variance was argued on three theories: contractor/architect error, code enforcement monitoring failure, and neighborhood/topography impact.
- The court reviewed whether the board’s variance was proper given legal standards requiring exceptional hardship and non-self-created hardship; the decision turned on whether contractor/architect error constitutes self-created hardship; the board’s de minimis reasoning was challenged as contrary to statute; the trial court’s articulation and the board’s stated grounds were evaluated for sufficiency and relevance.
- The court concluded the hardship was self-created due to the contractor/architect error benefiting the homeowners, thus board lacked authority to grant the variance; it declined to adopt a de minimis exception to bypass hardship requirements; thus, the trial court’s ruling sustaining the plaintiffs’ appeal was affirmed.
- The case emphasizes that variances require exceptional or unusual hardship tied to the land, not personal or self-created hardships, and rejects expanding the de minimis exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether hardship was self-created | Morikawa/Lynch: hardship arising from owner-employee contractor error is self-created | Ryans: hardship not self-created since fault lies with contractors/architects | Yes, hardship was self-created and cannot support a variance |
| Whether de minimis exception authorizes a variance without hardship prove | Morikawa/Lynch: de minimis should not overcome lack of hardship | Ryans: board may grant variance if violation is de minimis | No; no de minimis exception applies to avoid hardship proof |
| Whether board had authority to grant a variance without proving exceptional hardship | Morikawa/Lynch: statute requires exceptional hardship | Ryans: board discretion can apply when de minimis | Board lacks authority without exceptional hardship |
Key Cases Cited
- Moon v. Zoning Board of Appeals, 291 Conn. 16 (2009) (exceptional hardship required for variance; self-created not enough)
- Vine v. Zoning Board of Appeals, 281 Conn. 553 (2007) (hardship not required for certain nonconforming uses; discusses self-created hardship)
- Belknap v. Zoning Board of Appeals, 155 Conn. 380 (1967) (authority to grant variance where hardship arises from others’ voluntary acts; later limited by Highland Park)
- Highland Park, Inc. v. Zoning Board of Appeals, 155 Conn. 40 (1967) (hardship arising from owner’s own error generally not allowed; limits variance grounds)
- Pollard v. Zoning Board of Appeals, 186 Conn. 32 (1982) (hardship from someone else's voluntary acts may be self-created or not depending on context)
- Durkin Village Plainville, LLC v. Zoning Board of Appeals, 107 Conn.App. 861 (2008) (discusses limits of hardship and self-created doctrines)
- Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265 (1991) (variances should be rare, tied to land use and zoning purposes)
- Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282 (2008) (accepts narrowing grounds for variance; discusses reasons and scope)
- Osborne v. Zoning Board of Appeals, 41 Conn.App. 351 (1996) (distinguishes contractor/architect error from owner-created hardship)