62 Conn. App. 528 | Conn. App. Ct. | 2001
Opinion
The defendants Linda MacArthur Anderson and Ruth MacArthur
MacArthur acquired the real property designated as 2 Esther Place (lot 8) in the town in 1967. In 1974, she acquired the adjacent lot of real property designated as 6 Esther Place (lot 9). In 1979, MacArthur filed an application for a building permit to allow her to build an addition to her dwelling that rested entirely on what had been lot 9. In the application, MacArthur represented that lots 9 and 8 were a single parcel of land. The addition was approved, and MacArthur added an enclosed porch to her dwelling. The addition extended onto what had been lot 8.
The plaintiffs appealed to the trial court, which concluded that the board had acted arbitrarily, capriciously and in abuse of its discretion. Accordingly, the court sustained the plaintiffs’ appeal and reversed the decision of the board. This appeal followed.
The defendants claim that the court improperly concluded that the evidence contained in the record does not provide a valid basis for granting the respective variances. Specifically, the defendants claim that the court improperly concluded that (1) Anderson’s hardship is insufficient in that it merely alleges financial loss and (2) MacArthur’s hardship is insufficient in that it also alleges financial loss and that it was self-created. We disagree.
General Statutes § 8-6 (a) (3)
I
The defendants first claim that the court improperly concluded that the financial loss Anderson claimed if she were unable to sell lot 8 as a buildable lot is not a valid hardship for the granting of her variance.
“Disadvantage in property value or income, or both, to a single owner of property, resulting from application of zoning restrictions, does not, ordinarily, warrant relaxation in his favor on the ground of . . . unnecessary hardship. . . . Financial considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations to the property greatly decreases or practically destroys its value for any of the uses to which it could reasonably be put and where the regulations, as applied, bear so little relationship to the purposes of zoning that, as to particular premises, the regulations have a confiscatory or arbitrary effect.” (Citations omitted;
Applying our standard of review, we conclude that the court properly concluded that Anderson’s claimed hardship is not a valid basis for granting her variance because it merely alleges financial loss. See Bloom v. Zoning Board of Appeals, supra, 233 Conn. 208. Furthermore, because lot 8 could have value as an addition to an abutting lot, we agree with the court’s conclusion that denial of Anderson’s variance does not amount to a confiscation of lot 8. See Grillo v. Zoning Board of Appeals, supra, 206 Conn. 370-71 (fact that unimproved lot would be more valuable as buildable lot does not mean it is valueless because lot could be used as side yard to enhance value of adjoining property). Accordingly, we conclude that the court properly determined that there is not a valid basis for granting Anderson’s variance.
II
MacArthur claims that the court improperly concluded that her claimed hardship is not valid in that it is (1) based on financial loss and (2) self-created. We disagree.
The following additional facts are necessary for our resolution of this claim. MacArthur claims as a hardship that while the lots are treated as one for zoning purposes, they are taxed separately. MacArthur presented evidence that she pays a higher amount of property taxes because the lots are taxed separately than she would pay if the lots were taxed as one. Put more simply, MacArthur argues that she is burdened with the
As noted previously, a hardship that merely involves financial loss is not a valid basis for granting a variance. Bloom v. Zoning Board of Appeals, supra, 233 Conn. 208. Here, MacArthur’s hardship is based on an alleged financial loss she suffered as a result of the town’s separate taxation of the lots. In Spencer v. Zoning Board of Appeals, 15 Conn. App. 387, 390, 544 A.2d 676 (1988), the plaintiff owned a dwelling that was situated partially on two adjoining lots. She sought a variance to allow for the construction of a dwelling on each of the lots. The plaintiff claimed as a hardship the town’s practice of taxing her parcel of real property as two separate lots but refusing to allow her to construct a dwelling on each lot. Id., 391. This court characterized the plaintiffs claimed hardship as simply “an argument that the zoning regulations [prevented] maximum economic utilization of the parcel.” Id. Accordingly, this court concluded that the plaintiffs hardship was not a sufficient justification for granting a variance. Id., 392.
Here, MacArthur owns a dwelling that is partially situated on two lots, and she claims that the town’s practice of separately taxing the lots without allowing for dwellings on both lots is a hardship. Applying our
Because we conclude that the nature of the hardship itself is insufficient to support the granting of MacArthur’s variance, we need not consider the defendants’ claim that the court improperly concluded that the hardship is insufficient because it was self-created.
The judgment is affirmed.
In this opinion the other judges concurred.
The defendants in this appeal are Linda MacArthur Anderson and Ruth MacArthur, who own the lots in question. The defendant Salvatore Marrotoli, a prospective buyer of Anderson’s lot, and the defendant zoning board of appeals of the town of Branford are not involved in this appeal. We refer in this opinion to the defendants Anderson and MacArthur as the defendants.
There are three plaintiffs in this matter: Otty Norwood, Perdita Norwood and Margaret Montelius, who own real property that abuts the real property at issue in this appeal.
In their brief, the defendants also argue that it was an abuse of discretion for the trial court to search the record to determine if there was a basis for the board’s decision. The defendants argue that the court improperly found facts not found by the board. The board, however, did not find any facts as it did not provide a basis for its decision. “Where a zoning board of appeals does not formally state the reasons for its decision . . . the trial court must search the record for abasis for the board’s decision.” (Emphasis added.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995); see also Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369,
Zoning regulation § 5.1 (1956) provides: “It is the intent of these Regulations that nonconformities are not to be expanded, that they should be changed to conformity as quickly as the fair interest of the owners permit and that the existence of any existing nonconformity shall not of itself be considered grounds for the approval of a variance for any other property.”
Zoning regulation § 5.11.4 (1956) provides that a variance may be granted where, inter alia, “the owner of the parcel shall not also have been, at any time since the enactment of the Zoning Regulations on December 3, 1956, the owner of contiguous land which in combination with such parcel that fails to conform would make aparcel that conforms or more nearly conforms to the area requirements of these Regulations pertaining to lots.”
General Statutes § 8-6 (a) (3) provides in relevant part that a zoning board of appeals shall have the power and duty “to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations
Anderson and MacArthur submitted a single brief. They do not make any specific claims with respect to the court’s reversal of the board’s decision to grant Anderson a variance. They do, however, make a generalized claim that there was sufficient evidence in the record to support the board’s decision to grant Anderson’s variance. Thus, the defendants implicitly claim that the court improperly reversed the board’s decision to grant the variance, and we have framed the issue accordingly.
In fact, the evidence shows that Anderson obtained lot 8 by way of a quitclaim deed and that she paid at least $1 for the property but less than $100. It is difficult to imagine how Anderson can make a colorable claim that she will suffer a financial loss on the property if she is not granted a variance.