MARYLOU C. AMENDOLA v. ZONING BOARD OF APPEALS OF THE CITY OF WEST HAVEN
AC 36811
HOWARD WARREN BENEDICT ET AL. v. ZONING BOARD OF APPEALS OF THE CITY OF WEST HAVEN
AC 36813
Appellate Court of Connecticut
December 15, 2015
DiPentima, C. J., and Beach and Lavery, Js.
Argued September 16
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Timothy B. Yolen, for the appellants in both appeals (plaintiffs).
Michael A. Leone, with whom, on the brief, was Brian G. Enright, for the appellee in both appeals (defendant Robert Fischer).
LAVERY, J. These two appeals raise the common question of whether the size and shape of the subject property constituted a legally recognized hardship.1 In 2009, the defendant Zoning Board of Appeals of the city of West Haven (board), granted six variances sought by the applicant, the defendant Robert F. Fischer,2 to expand his already nonconforming dwelling. Fischer‘s immediate neighbors, the plaintiff in AC 36811, Marylou C. Amendola and her husband, Vincent Amendola, to the west of Fischer, and the plaintiffs in AC 36813, Howard Warren Benedict and Barbara Spencer Benedict, to the east, appealed from the board‘s decision to the Superior Court. The court heard together and dismissed both appeals, concluding, inter alia, that the administrative record supported the board‘s finding of a legally recognized hardship necessary for the granting of a variance. These certified appeals followed, with the dispositive issue in both cases being whether a legally recognized hardship exists. We conclude, for the reasons that follow, that the finding of hardship was improper and, accordingly, reverse the judgments of the Superior Court.
I
The property at issue (property) in this appeal is located at 201 Ocean Avenue in West Haven. It resembles a long and narrow rectangle, measuring approximately 50 feet wide by 200 feet long and stretches from Ocean Avenue, to the north, to Long Island Sound, to the south. Between the southern border of the property and Long Island Sound, as is the case with many of the other properties situated between Long Island Sound and Ocean Avenue, runs an unimproved utility and sewer easement known as Old King‘s Highway. As a result, the property has two front yards; one abuts the street and the other the water. The two longer sides of the property separate it from its Ocean Avenue neighbors. The Amendolas share an approximately 219.1 foot boundary with the property to the west, and the Benedicts share an approximately 198.5 foot boundary with the property to the east. Altogether, the property lot measures approximately 10,400 square feet.
On the property stands Fischer‘s two-story single-family residential dwelling. The dwelling measures 30 feet wide by 35 feet long and is set back 10 feet on both its east and west boundaries. Like most of the surrounding homes, the dwelling is located closest to the water side of the property. As a result, while it is setback approximately 158.5 feet from its Ocean Avenue border, the setback from Long Island Sound is nonexistent because a deck, measuring 30 feet wide (the width of the dwelling) extends 18 feet from the dwelling toward the Sound and thus encroaches onto the Old King‘s Highway easement.
On March 13, 2009, Fischer applied for six variances from the West Haven zoning regulations to expand the existing dwelling. Along with a building coverage variance and a lot coverage variance, Fischer requested four setback variances to construct: (1) an addition on the street side of the property allowing him to nearly double his living space; (2) an attached three car garage to be located on the street side of the newly constructed addition; (3) an addition on the water side of the dwelling, by enclosing a portion of the existing deck; and (4) a second floor balcony on the water side, that would extend from the second floor of the newly enclosed addition to the end of the current deck.4 With respect to the claim of hardship, Fischer stated that “[t]he lot size limits the full enjoyment of th[e] property, [and the] undersize lot and shape were developed prior to the current zoning.”
On April 15, 2009, the board held a public hearing on Fischer‘s application. At the hearing, Brian Enright, counsel for Fischer, explained that the expansion was necessary for “additional dwelling space,” and “to procure reasonable use of the lot.” Enright further stated that the hardship underlying the requested variances was due to the small size of the lot, its rectangular shape, and the location of the unimproved Old King‘s Highway easement.
Enright further informed the board that not only was the expansion plan influenced by the size and shape of the lot, but the expansion plan also reflected the concerns of Fischer‘s neighbors. For example, Enright stated that “in an effort to try and address some of the concerns of the neighbors, [Fischer] shortened the addition on the [Sound] side and moved it approximately 1.25 feet closer to Ocean Avenue.” He explained that under the original plan, “the entire addition of the house was going to go out approximately 8.25 feet on
Enright also argued that although the new expansion plans resulted in an impermissible increase of a nonconforming structure; see
In response to a question from the board, Enright clarified that it was Fischer‘s preference to construct a nonconforming attached garage, instead of a detached garage that would conform to the regulations. He explained: “As you folks are aware, if this were a true garage, if it were a detached structure and while we understand that there are certain size limitations relevant to that in an R-2 zone this building could actually be placed as close as 4 feet to the neighboring side yard. We believe for a lot of reasons that attached is more appropriate. We think esthetically it works better for the neighboring properties. We think that it clearly makes more practical sense. . . . We think from the standpoint of esthetics and overall property values of everyone around us, it works better i[n] this fashion. We understand that . . . reasonable men and women that can differ and you may hear those opinions but we think this is the most appropriate and most limited variance to ask for this portion of the application.”
Following Enright‘s presentation, the board heard from members of the public. Vincent Amendola, Fischer‘s neighbor to the west, argued that the proposed plans would interfere with his water view, property
Likewise, Howard and Barbara Benedict, Fischer‘s neighbors to the east, opposed the variance application, arguing that increasing the size of the dwelling would result in a structure that is “overpowering for the size of the lot and particularly overpowering in length. . . . It‘s so long and it‘s so close and that is a 24 foot high garage that is attached coming 5 feet from the property line. So it‘s really in your face. When that goes up, it‘s going to be enormous.” With respect to the garage, the Benedicts echoed the concerns of Vincent Amendola, arguing that Fischer could construct a detached garage without the need for setback variances. Barbara Benedict stated, “[t]here‘s plenty of room on the property. As [Vincent] Amendola said, we can‘t have everything we want. I‘m willing to say if he wants a three car garage if it‘s separate. I wouldn‘t even object to the height if it was attractive and it looked like a nice structure. . . . There‘s plenty of space to do what he wants.” After hearing from the plaintiffs and other members of the public, the board continued the hearing until August 19, 2009.
On August 19, 2009, the board, without giving a statement of its reasons, granted Fischer‘s application. On September 4, 2009, the plaintiffs commenced two separate appeals from the decision of the board in the Superior Court. In their complaints, which are nearly identical, the plaintiffs alleged, inter alia, that the board, in granting the requested variances, “acted illegally,
On January 25, 2013, the court held a hearing on both appeals. On July 16, 2013, the court, in a memorandum of decision, dismissed both appeals, concluding that the board‘s decision was not unreasonable, arbitrary, or illegal. Specifically, the court determined that “the unusually narrow shape of the subject property and the presence of Old King‘s Highway on the water side of the property support the board‘s finding of hardship. The subject lot is merely 10,400 square feet, which is approximately 60 percent of the minimum area for properties located within the R-2 district.
II
We begin by setting forth our standard of review applicable to appeals from a decision of a zoning board. “In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule . . . .” (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 559, 916 A.2d 5 (2007). “We must determine whether the trial court correctly concluded that the board‘s act was not arbitrary, illegal or an abuse of discretion . . . . 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 . . . . 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 . . . . We, in turn, review the action of the trial court.” (Internal quotation marks omitted.) Durkin Village Plainville, LLC v. Zoning Board of Appeals, 107 Conn. App. 861, 867, 946 A.2d 916 (2008).
“When a zoning board states the reasons for its action, the question for the court to pass on is simply
In this case, although board members discussed the characteristics of the property and conditions for granting the proposed variances, the record does not contain a collective statement of the board‘s reasons for granting the variances. See Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208–209, 658 A.2d 559 (1995) (“although individual members of the board discussed reasons for granting the owners a variance, the board did not state a collective, official reason for its action“); Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 546 n.15, 600 A.2d 757 (1991) (“[i]t [is not] appropriate for a reviewing court to attempt to glean such a formal, collective statement from the minutes of the discussion by commission members prior to the commission‘s vote“). As a result, we must review the entire record to ascertain whether “the evidence reveals any proper basis for the board‘s decision to grant the variances in the present case.” Verrillo v. Zoning Board of Appeals, 155 Conn. App. 657, 676, 111 A.3d 473 (2015).
III
Before considering the specific claim advanced in this appeal, we first review the standard in our state for granting a variance.
The first part of the test, that the use requested by the variance application is in accord with the comprehensive zoning plan, is usually met when the use to be allowed by the variance is consistent with other uses in the area. See Eagan v. Zoning Board of Appeals, 20 Conn. App. 561, 564–65, 568 A.2d 811 (1990) (concluding variance application to construct single family home in violation of lot area and setback regulations complied with comprehensive zoning plan in residential zoning district where many single family homes in immediate area were built on small lots and enjoyed similar setbacks). The trial court concluded that this part of the test was met and we agree. See id.
The second part of the test, that the zoning regulation cause unusual hardship to the land unnecessary to carrying out the zoning plan, is generally more difficult to satisfy, but remains an absolute necessary as a condition precedent to the granting of a zoning variance. See R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 9:3, pp. 240–42. The applicant has the burden of proving hardship and “must establish both the existence of a sufficient hardship and that the claimed hardship is . . . unique . . . .” (Internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, supra, 155 Conn. App. 682. The claimed hardship must originate in the zoning ordinance; Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39, 438 A.2d 1186 (1982); meaning that “because of some peculiar characteristic of [the] 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, supra, 233 Conn. 207. In other words, a legal hardship must “[relate] to the property for which the variance is sought and not to the personal
IV
We now address the claimed hardship. The city‘s regulations require a fifteen foot setback between Fischer‘s dwelling and the property line. See
We first note the significance that Fischer‘s zoning application sought to expand—and perpetuate—an existing nonconforming structure, despite the general rule that “a nonconforming structure cannot be increased in size in violation of zoning ordinances . . . .” Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 243, 662 A.2d 1179 (1995). Although a nonconforming property owner may “continue the same use of the property as it existed before the date of the adoption of the zoning regulations“; Helbig v. Zoning Commission, 185 Conn. 294, 306, 440 A.2d 940 (1981); “it is the indisputable goal of zoning to reduce nonconforming to conforming uses with all the speed justice will tolerate“; (internal quotation marks omitted) id.; and “[i]n no case should [a nonconformance] be allowed to increase.” (Internal quotation marks omitted.) Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 710, 535 A.2d 799 (1988). With that goal in mind, “[t]here exists a crucial distinction between maintaining an existing nonconforming structure and improving, or modernizing, it.” Verrillo v. Zoning Board of Appeals, supra, 155 Conn. App. 693 n.23. “Zoning regulations that
The express intent of the West Haven zoning regulations is to “regulate the use of property in lots having minimum sizes, dimensions and characteristics. It is also the intent of these Regulations that the structures located on said lots shall similarly comply with certain dimensional requirements.”
Here, the property is nonconforming in four respects and the prior owner of the property previously received a variance from the front yard setback requirement on the waterside of the property—one of the very variances Fischer now seeks—which was not contested or appealed. See footnote 3 of this opinion. Nonetheless, Fischer‘s present application seeks six variances, each of which would further increase the property‘s degree of nonconformity and one that would increase the property‘s degree of nonconformity in the very area where the property already enjoys a variance. See Munroe v. Zoning Board of Appeals, supra, 75 Conn. App. 810–11 (holding addition to nonconforming structure, even if constructed within existing footprint, was “a substantial increase in the nonconformity“). With this backdrop in mind, we turn to the controlling issue: whether substantial evidence supports the board‘s finding that Fischer demonstrated a legally recognized hardship resulting from his inability under the regulations to
In his application for a variance, Fischer alleged that exceptional hardship existed because “[t]he lot size limit[ed] the full enjoyment of th[e] property . . . .” Specifically, the setback and coverage requirements precluded Fischer from erecting the “additional dwelling space” in accordance with his desired construction plans. Additionally, Enright described the proposed expansion as reflecting not only Fischer‘s personal preference, but that of his neighbors as well, noting that Fischer acquiesced to a reduction in the size of the expansion at his neighbors’ behest. He also acknowledged that although Fischer could construct a detached garage without violating the regulations, it was Fischer‘s personal preference to construct a nonconforming attached garage on the grounds that the nonconforming option was more reasonable based on esthetics and practicality.
Accordingly, Fischer is at pains to characterize his alleged hardship as anything other than personal preference disappointed by the regulations. Our case law precludes the granting of a variance based upon a property owner‘s personal preference for constructing an addition that is frustrated by zoning regulations. See Berkman v. Board of Appeals, 135 Conn. 393, 399–400, 64 A.2d 875 (1949) (“disappointment in the use of property can hardly constitute practical difficulty or unnecessary hardship within the meaning of a zoning law or regulation“). This principle is founded in the requirement that “a variance is not a personal exemption from the enforcement of zoning regulations. It is a legal status granted to a certain parcel of realty without regard to ownership.” Garibaldi v. Zoning Board of Appeals, supra, 163 Conn. 239. Thus, the hardship necessary for the granting of a zoning variance must be unrelated to the desire of any particular property owner. Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 382, 311 A.2d 77 (1972). So, “the fact that an owner is prohibited from adding new structures to the property does not constitute a legally cognizable hardship.” Bloom v. Zoning Board of Appeals, supra, 233 Conn. 210–11 n.13. Therefore, Fischer‘s inability to more than double the existing size of his already nonconforming dwelling for spatial and aesthetic reasons is not a hardship. A property owner‘s desire to build a larger home does not run with the land and is more appropriately characterized as personal disappointment, which does not rise to the legally recognized hardship necessary for a variance. Michler v. Planning & Zoning Board of Appeals, 123 Conn. App. 182, 187, 1 A.3d 1116 (2010) (concluding “the inability to build a larger structure” to be personal hardship). The record, therefore, does not support the conclusion by the board that Fischer had established the legal hardship required for the granting of a variance.
First, in Grillo v. Zoning Board of Appeals, supra, 206 Conn. 371, our Supreme Court rejected a claim of hardship premised on a property owner‘s inability to construct the building he desired to maximize the financial value of the property. In reversing the Superior Court‘s conclusion that hardship existed, the Supreme Court noted that the undeveloped property already was being used by the property owner, even though the current use significantly reduced the property‘s value. Id., 370 (“[a] zoning regulation that prevents land from being used for its greatest economic potential, however, d[id] not create the exceptional kind of financial hardship that we have deemed to have a ‘confiscatory or arbitrary’ effect“). Because of Fischer‘s desire to expand his dwelling, it follows that he does not suffer from legal hardship, but instead complains of personal disappointment.
Likewise, Fiorilla v. Zoning Board of Appeals, supra, 144 Conn. 275, does not support the assertion in Fischer‘s brief that “[o]ur courts have upheld approvals of variances premised on unique lot shapes, including the narrowness of the lot in many instances.” Instead of preventing a property owner‘s preferred expansion project, the hardship in Fiorilla was use specific.7 Fiorilla v. Zoning Board of Appeals, supra, 279–80. More importantly, in upholding the variance in Fiorilla, the court relied on the unique Norwalk zoning regulations, which the court observed “not only include[d] the customary authority to vary the regulations but extend[ed] to nonconforming uses a greater liberality than has previously come to our attention.” Id., 281. For example, the court noted that “under § 17 [of the regulations] the owner may obtain special exceptions from the board to extend the area of nonconformity.” Id. As a result, Fiorilla does not support Fischer‘s claim that the legal hardship results from his inability to increase his dwelling size by constructing his preferred expansion project.
By the same token, in Giarrantano v. Zoning Board of Appeals, supra, 60 Conn. App. 454, this court considered whether regulations deprived an owner of commercially zoned property of the ability to reasonably use his land for its approved purpose. In Giarrantano, the property was located in a commercially zoned area, but was occupied by a nonconforming residence. Id., 447–48. The hardship in Giarrantano was that the size and shape of the property deprived the owner of reason-
Finally, Stillman v. Zoning Board of Appeals, supra, 25 Conn. App. 636–37, is inapplicable to Fischer‘s circumstances because the particular improvements in Stillman could be constructed only on one section of that property, due to the location of a well and a septic tank. Dissimilarly, Fischer‘s proposed additions reflect personal preference, not hardship, and could be achieved through alternative construction plans that comply with the regulations. Indeed, the mere fact that a conforming structure could be built without the need for a setback variance transforms an alleged hardship into personal disappointment.8 See Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 547–49, 684 A.2d 735 (1996); see also id., 548 (“a hardship was not shown because the plaintiffs admitted that a house, even though not the type that they desired, could have been built on the lot while conforming to the setback requirements“).
For all of the foregoing reasons, we conclude that Fischer failed to demonstrate a legally cognizable hardship, and therefore, the board acted improperly in granting the variances. Accordingly, the Superior Court improperly dismissed the plaintiffs’ appeals.
The judgments are reversed and the case is remanded with direction to sustain the plaintiffs’ appeals.
In this opinion the other judges concurred.