43 Conn. App. 545 | Conn. App. Ct. | 1996
The defendant appeals from the judgment of the trial court sustaining the plaintiffs’ appeal and reversing the decision of the defendant Milford zoning board of appeals (board) that the plaintiffs did not suffer a hardship and were not entitled to a variance. The sole issue in this appeal is whether the trial court impermissi-bly substituted its judgment for that of the board. We find that it did. We reverse the decision of the trial court.
Prior to the submission of the variance application, the plaintiffs submitted an application to the board to have the lot declared a nonconforming building lot. The plaintiffs at that time submitted a survey that showed that a house could be constructed on the property within the applicable setback requirements.
On July 22, 1994, the plaintiffs applied to the board for a variance of Milford zoning regulations § 3.I.4.I.
At the hearing before the board, the plaintiffs presented plans for the house they proposed to construct
The plaintiffs appealed to the Superior Court pursuant to General Statutes § 8-8. The trial court, Mancini, J., sustained the appeal and granted the variance. The trial court, in its memorandum of decision stated in pertinent part: “This lot is more unique than others because of the presence of tidal wetlands to rear of the property and as such needs the requested variance. To construct the desired dwelling without wetlands approval would be most difficult. . . . The court finds the board’s reasoning was inadequate and improperly recorded.” In addition, the trial court concluded: “The new structure would enhance property values surrounding the building and the decision of the board to allow them to build a small, narrow building to conform with the zoning laws whereby said building would certainly be a detriment to real estate values.” The defendant now appeals the decision of the trial court.
The controlling issue on appeal is whether the trial court impermissibly substituted its factual findings for those of the board. “ ‘ “It is well settled that courts are not to substitute their judgment for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing ... as the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency.”. . . Stankiewicz v. Zoning Board of Appeals, 15 Conn. App. 729, 731-32, 546 A.2d 919 (1988), aff'd, 211 Conn. 76, 556 A.2d 1024 (1989). The court’s function is to determine on the basis of the record whether
In the present case, 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.
The judgment is reversed and the case is remanded with direction to render judgment dismissing the plaintiffs’ appeal.
In this opinion the other judges concurred.
“Under General Statutes § 8-6 (3), the board may grant a variance provided (1) the variance is shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning regulation is shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.” Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 709, 535 A.2d 799 (1988).
To establish a hardship under General Statutes § 8-6, an applicant must show not only that he is thwarted in a desired use of land, but also that he is being completely or almost completely deprived of the use of the value of that land. See Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 151-52, 365 A.2d 387 (1976); Devaney v. Zoning Board of Appeals, 132 Conn. 537, 542, 45 A.2d 828 (1946).
The plaintiffs had previously submitted a plan for a house, albeit not the one that is the subject of this appeal, that could conform to the particular setback requirements of the lot. Addressing this “inconsistency,” one board member at the public hearing on August 9, 1994, stated: “Under our regulations, any lot that’s nonconforming, and is declared nonconforming, must meet all the other setback requirements, and you had it declared, or your client had it declared at one point, a nonconforming lot, indicating that, by that, it could meet all setback requirements and then nine months later, is here asking for a variance of those setback requirements. I find that a little inconsistent.”