26 Conn. App. 187 | Conn. App. Ct. | 1991
The defendant zoning board of appeals of the town of Oxford appeals from the judgment of the trial court sustaining the plaintiffs’ appeal from the board’s denial of their variance application. On appeal, the defendant argues that the trial court (1) improperly based its decision on the defendant’s prior approval of a separate variance application filed by a different applicant pertaining to another parcel of land on the same road, (2) failed to review the entire record in order to find a basis for the board’s action, (3) ignored the issue of self-inflicted hardship, and (4) improperly placed upon the defendant the burden of proof.
The facts pertinent to this appeal are as follows. The property involved is a 3.36 acre lot (no. 81) located on Hemlock Trail, an unapproved private dirt road less than fifty feet wide in the town of Oxford. The plaintiffs had planned to build a residence on their lot and to use Hemlock Trail as the access road. The trial court noted in its memorandum of decision that “Hemlock Trail is a private right-of-way running northerly from Little Punkup Road, a public highway. Lot 81 is about 2000 feet north of the point where Hemlock Trail and Little Punkup Road meet. Hemlock Trail varies in width from 12 to 45 feet.” There are seven existing residences on the road, which is located in a one-half acre residential zone.
Article 6, section 4, of the Oxford zoning regulations
The plaintiffs principally argued before the board that (1) seven residential lots already use Hemlock Trail for exclusive access, (2) they, with the support of some of these residents, were willing to pay for the improvement and maintenance of the road, and (3) in 1984 the defendant had granted the same variance as presently requested by the plaintiffs to Thomas Markovich after Markovich had been initially denied a certificate of approval to rebuild a residence on Hemlock Trail that had burned down nine years before he applied for a variance.
On May 8,1989, the board failed to obtain a quorum and the matter of the plaintiffs’ application was continued for a special meeting to be conducted May 15, 1989. At that meeting, five members were present, but only four acted on the application. A fifth member, John Passander, was present but abstained from participating in the matter. After a public hearing, the board initially voted to approve the application by a three to one vote, and then unanimously voted to deny the application without prejudice since the four affirmative votes, necessary for variance approval pursuant to General Statutes § 8-7 were lacking.
In the present appeal, the defendant principally argues that the trial court improperly used the Markovich variance as the basis for its action sustaining the plaintiffs’ appeal, and that the court ignored the matter of the plaintiffs’ self-created hardship. We agree.
The ultimate issue in this appeal, of course, is whether the trial court correctly concluded that the defendant board’s denial of the variance was arbitrary, illegal and an abuse of its discretion. D&J Quarry Products, Inc. v. Planning & Zoning Commission, 217 Conn. 447, 453, 585 A.2d 1227 (1991); Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988); Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980). Courts must not substitute their judgment for that of the board. Whittaker v. Zoning Commission, supra; Koproski v. Zoning Board of Appeals, 162 Conn. 635, 636, 295 A.2d 564 (1972); Fernandes v. Zoning Board of Appeals, 24 Conn. App. 49, 53, 585 A.2d 703 (1991); Horn v. Zoning Board of Appeals, 18 Conn. App. 674, 676-77, 559 A.2d 1174 (1989); Molic v. Zoning Board of Appeals, 18 Conn. App. 159, 164, 556 A.2d 1049 (1989).
A zoning board of appeals derives its authority to grant variances from General Statutes § 8-6 (3), which
In the present case, the board had not previously considered an application for a variance regarding the plaintiffs’ property. The plaintiffs, however, seem to believe that the board’s grant of a variance to Markovich in 1984 created for them a “wild card,” in the words of their attorney, which they could “tap” and “have [the Markovich] variance granted to us.” The trial court, in essence, agreed with this position. The crux of the court’s memorandum of decision is that the Markovich variance and the plaintiffs’ application are virtually identical, and therefore the board arbitrarily denied the plaintiffs their variance. We find that the court incorrectly reached this conclusion.
In addition to finding that the board improperly denied the plaintiffs a variance that was identical to one granted to another person at an earlier time, the court found that the board failed to discuss the question of hardship, access and the two lot access requirement set forth in the regulations. We again disagree with the trial court.
When a zoning board does not state the reasons for its decision on the record, the court must search the record to attempt to find some basis for the action taken. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988); Wardv. Zoning Board of Appeals, 153 Conn. 141, 144, 215 A.2d 104 (1965); Aitken v. Zoning Board of Appeals, 18 Conn. App. 195, 205, 557 A.2d 1265 (1989). Our review of the record reveals evidence of questioning, discussion and consideration of the very issues the court found that the board ignored. At the public hearing, the plaintiffs’
Furthermore, the record clearly reveals that any hardship the plaintiffs suffered was self-created. The answer to zoning board member Mills’ query “What’s the hardship?” is clear from an examination of the record: There is none. The plaintiffs purchased a parcel of land from a predecessor in title that had been improperly split, without an Oxford planning or zoning approval in 1979. Because the zoning regulations were clearly in effect at the time of the purchase, the plaintiffs purchased a piece of property that clearly was a nonconformity created by the predecessor in title and clearly did not qualify for residential construction. “Where the applicant or his predecessor creates a nonconformity, the board lacks power to grant a variance.” Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 300, 429 A.2d 883 (1980); Garibaldi v. Zoning Board of Appeals, supra, 239.
The board here was correct in denying the plaintiffs’ application for variance and, as such, the trial court was incorrect in its conclusion that the board acted improperly.
In this opinion the other judges concurred.
Article 6 of the Oxford zoning regulations provides in pertinent part: “SECTION 4. Lot Area, Shape, Frontage, and Access. Each lot shall have a minimum land area of one and one-half (11/2) acres and shall be of such shape that a square with 160 feet on each side will fit on the lot. Each lot shall also have a frontage of 175 feet or more on a public street or properly-bonded subdivision street or shall have an easement of access or private right-of-way at least 25 feet in width to a public street or properly bonded subdivision street. Only one lot may depend upon an easement of access or private right-of-way for exclusive access except that [it] the easement of access or private right-of-way is 50 feet or more in width to a public street
The proposed house was never fully constructed because of the death of the then owner of the lot.
General Statutes § 8-7 provides in pertinent part: “The concurring vote of four members of the zoning board of appeals shall be necessary to reverse
The plaintiffs also ask, in what we regard as an alternative basis to support the trial court’s decision, that we decide whether a zoning board member’s vote of abstention is to be regarded as an affirmative vote under Connecticut law. The plaintiffs cite no support for this proposition in zoning law. Furthermore, because it is clear that, from our review, Passander, the abstaining member, removed himself from any and all consideration both at the May 8 and May 15 meetings, this issue is wholly without merit.