JACK E. TUREK ET AL. v. ZONING BOARD OF APPEALS FOR THE CITY OF MILFORD
AC 41824
Connecticut Appellate Court
February 25, 2020
Alvord, Devlin and Pellegrino, Js.
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Syllabus
The defendant zoning board of appeals appealed from the judgment of the trial court sustaining the appeal filed by the plaintiff landowners. After a hurricane destroyed their home, the plaintiffs sought to construct a new home on their property. The plaintiffs filed an application for a variance from the building height requirements of certain zoning regulations. The board denied the application, and the plaintiffs appealed to the trial court, alleging that the board acted illegally, arbitrarily and in abuse of its discretion by ignoring certain legal hardships unique to the property. The trial court sustained the plaintiffs’ appeal, concluding that the plaintiffs demonstrated an unusual hardship on the basis of the destruction of their previous home and the need to comply with applicable federal and state flood elevation requirements, and that their proposal qualified under the narrow exception to the hardship requirement set forth in Adolphson v. Zoning Board of Appeals (205 Conn. 703), because the proposed house would reduce nonconformities in relation to the previous house. Thereafter, this court granted the board‘s petition for certification to appeal to this court, and this appeal followed. Held:
- The trial court incorrectly concluded that the plaintiffs demonstrated a legally cognizable hardship: an applicant for a variance must show that, because of some peculiar characteristic of his property, a strict application of the zoning regulation would produce an undue hardship, and the plaintiffs here failed to carry their burden of demonstrating a legally cognizable harship as the record of the proceedings before the board contained no evidence of hardship originating in the zoning ordinance because the evidence merely established that the plaintiffs could not, in the absence of a variance, build the type of house that they desired while conforming to flood elevation requirements; although the plaintiffs’ proposed home did not increase substantially the square footage when compared to their prior home, the plaintiffs’ alleged hardship arose out of their desire to build a certain type of home, which was appropriately characterized as personal disappointment.
- The trial court erroneously determined that the plaintiffs’ proposal qualified under the Adolphson exception to the hardship requirement: although the plaintiffs argued that the board should have granted a variance because it would reduce other nonconformities, the plaintiffs’ proposed new construction would create a height nonconformity where none previously existed, and the plaintiffs provided this court with no authority suggesting that the board was required to grant the requested variance from the height limitation, which would create a new nonconformity, on the basis of a proposed reduction or elimination of other nonconformities and compliance with flood regulations.
Argued November 18, 2019—officially released February 25, 2020
Procedural History
Appeal from the decision of the defendant denying the plaintiffs’ application for a variance from the city of Milford‘s zoning regulations, brought to the Superior Court in the judicial district of Hartford, Land Use Litigation Docket, and tried to the court, Hon. Marshall K. Berger, judge trial referee; judgment sustaining the appeal, from which the defendant, on the granting of certification, appealed to this court. Reversed; judgment directed.
Matthew B. Woods, for the appellant (defendant).
Opinion
ALVORD, J. The defendant, the Zoning Board of Appeals of the City of Milford (board), appeals from the judgment of the trial court sustaining the appeal filed by the plaintiffs, Jack E. Turek and Donna Weaver, and reversing the decision of the board that the plaintiffs were not entitled to a variance. On appeal, the board claims that the trial court erroneously sustained the appeal, and causes us to consider (1) whether the plaintiffs demonstrated a legally cognizable hardship, and (2) whether the plaintiffs’ proposal qualifies under the exception to the hardship requirement set forth in Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 710, 535 A.2d 799 (1988), and its progeny.1 We reverse the judgment of the trial court.
Prior to Hurricane Sandy in late October, 2012, there existed on the property a single-family residence. The two-story residence, which was more than 100 years old, measured 1500 square feet. There were two other structures, a detached garage and a shed, on the property. Hurricane Sandy destroyed the residence, which was later demolished, and since that time the lot has remained vacant.
The regulations provide that “[a]reas of special flood hazard are determined utilizing the base flood elevations (BFE) provided on the flood profiles in the Flood Insurance Study (FIS) for a community. BFEs provided on a [FIRM] are only approximate (rounded up or down) and should be verified with the BFEs published in the FIS for a specific location.” (Footnote added).7
The National Flood Insurance Program, administered by FEMA, “makes
With that factual and regulatory background in mind, we turn to the procedural history of the present case. After Hurricane Sandy destroyed their home, the plaintiffs sought to construct a new home on the vacant property. On May 26, 2015,10 the plaintiffs filed an application for variances from the building height and setback requirements of the regulations11 and submitted
As noted previously, building height as provided for in the regulations is measured from “the average existing level of the ground surrounding the building,” in this case, 10 feet and 8.4 inches above sea level, to the midpoint of the pitched roof.
The board held a public hearing on the plaintiffs’ application on June 9, 2015. Counsel for the plaintiffs summarized the claimed hardship, including the topography of the property and applicable federal and state elevation requirements. He highlighted other communities’ amendments to zoning regulations to take into account base flood elevations in determining building height. He also argued that the proposed house would reduce nonconformities in relation to the previous house and submitted photographs of neighboring properties in support of his argument that the proposed house would not be out of character. Three neighboring residents spoke in opposition to the application, and four written statements of opposition were received. Following the conclusion of the public hearing, the board held the following discussion:
“Chairman [Joseph Tuozzola]: Okay, this hearing‘s closed. What are your thoughts, lady and gentlemen?
“[Board member Sarah] Ferrante: We did hear tonight that the slope of the land is similar to the others in the neighborhood so it‘s not really a unique lot in that regard and what applies here would apply to all is something to consider.
“[Board member Howard] Haberman: Yeah, I think what I struggle with is the fact that the property and the way that the grade, mean grade is measured in our, by the regs, it doesn‘t just affect this particular lot, it affects a lot of lots down there on the shoreline and in granting this variance for that height we‘re in essence amending the regulations and I don‘t think that‘s the purpose of this Board. If it were just [this] particular . . . lot alone, then I get it, there‘s a peculiarity, a hardship but I think it extends beyond just this lot and I think again, by granting that piece of the variance, the request would be, in essence, amending the regs and I don‘t think, again, I don‘t think that‘s the purpose of this board.
“[Tuozzola]: Mr. Soda.
“[Board member William] Soda: Well, I kind of feel the same way, it‘s not unique to this lot, the contours on the adjacent lots, and, I mean, as bad as I feel for these people and would love to see them get their house going, I mean, you know, I can‘t see it.
“[Haberman]: I have a question about the motion in terms of the other part of the application, obviously I have no problem with the other variances they have requested because given the size of the lot it‘s okay to approve, so I‘m wondering whether without prejudice again or do we split the vote, split the—
“[Tuozzola]: All right so what you‘re saying, do you want to split some things on here and allow some variances.”
“[Haberman]: Or deny [without] prejudice to give them the opportunity.
“[Soda]: Well what if we give them the other variances, then if they conform to the height they can, is that possible Stephen.
“[Zoning Enforcement Officer Stephen] Harris: It‘s unusual but possible, you can grant some variances but not others.
“[Tuozzola]: Well the height is really the issue, so I don‘t know how we can do the other things without addressing that. How are you going to start building a house with the variances and the height is still not addressed. It‘s still going to be up for debate.
“[Ferrante]: I‘m also hesitant to grant some variance and not to grant some variances without [an] overall plan, we‘re allowing something without knowing what we‘re getting at that point.
“[Soda]: We would know what we‘re getting except for the height.
“[Ferrante]: Right, I mean, but it is a brand new house and it could be redesigned another way.
“[Haberman]12: I guess Mr. Haberman‘s questions was how many times can you deny without prejudice, again, I would think you could.
“[Harris]: That‘s up to the board. You can deny with waivers to reapply as often as you would like.
“[Haberman]: I move to make a motion to deny without prejudice.
“[Soda]: I‘ll second that.
“[Haberman]: Reason for the motion obviously the height is an issue for us but other parts of the application are okay, there‘s room to change the application.” (Footnote added.)
The board then unanimously voted to deny the plaintiffs’ requested variances. The plaintiffs filed an appeal of that decision with the trial court. In their July 2, 2015 complaint, the plaintiffs alleged, inter alia, that the board, in denying the requested variances, acted illegally, arbitrarily, and in abuse of its discretion when it ignored evidence on the record of hardship that FEMA, state, and local regulations require residences in an AE-13 Flood Zone to be built at thirteen feet above mean sea level plus an additional one foot of freeboard,13 and that the FEMA and state regulations “do not account for how
After receiving the parties’ written briefs, the court held a hearing on the matter on August 9 and December 5, 2017. In its April 4, 2018 memorandum of decision, the court found that the requested variance would not “negatively [impact] the comprehensive plan.” Specifically, the court concluded that “the board‘s denial based solely upon the aesthetic height requirement—which the plaintiffs’ proposed structure arguably meets—does not consider the nuances and immediacy of flood hazard or sea level rise and the elevation requirements in the plan and is thus contrary to law and logic.” Turning to the hardship requirement, the court found that the plaintiffs had established unusual hardship, which was not self-imposed, on the basis of “the total destruction of the previous home by Hurricane Sandy and the need to comply [with] applicable elevation requirements.” It further concluded that the plaintiffs’ proposal qualified under the narrow exception to the hardship requirement set forth in Adolphson v. Zoning Board of Appeals, supra, 205 Conn. 710, in that the proposed house would reduce nonconformities. For those reasons, the court sustained the plaintiffs’ appeal. The board thereafter filed a petition for certification to appeal. This court granted the petition, and this appeal followed.
Before turning to the claims on appeal, we set forth the applicable law governing variances and our scope and standard of review.
“[A] variance constitutes authority extended to the owner to use his property in a manner forbidden by the zoning enactment. . . . It is well established . . . that the granting of a variance must be reserved for unusual or exceptional circumstances. . . . An applicant for a variance must show that, because of some peculiar characteristic of his 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. . . . Accordingly, we have interpreted . . .
In reviewing a decision of a zoning board of appeals, “[c]ourts 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. . . . The burden of proof to demonstrate that the board acted improperly is upon the [plaintiff].” (Internal quotation marks omitted.) Mayer-Wittmann v. Zoning Board of Appeals, supra, 333 Conn. 639; see also Richardson v. Zoning Commission, 107 Conn. App. 36, 42, 944 A.2d 360 (2008) (“Trial courts defer to zoning boards and should not disturb their decisions so long as honest judgment has been reasonably and fairly exercised after a full hearing. . . . The trial court should reverse the zoning board‘s actions only if they are unreasonable, arbitrary or illegal.” (Internal quotation marks omitted.)). “Because the plaintiffs’ appeal to the trial court is based solely on the record, the scope of the trial court‘s review of the board‘s decision and the scope of our review of that decision are the same.” (Internal quotation marks omitted.) Mayer-Wittmann v. Zoning Board of Appeals, supra, 639.14
In order to determine whether the board properly denied the subject variance, we first must consider whether the board gave reasons for its action. “It is well settled that [w]hen a zoning board states the reasons for its action, the question for the court to pass on is simply whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations. . . . The court should not go behind the official statement of the board. . . . In the absence of a statement of purpose by the zoning [agency] for its actions, it [is] the obligation of the trial court, and of this court upon review of the trial court‘s decision, to search the entire record to find a basis for the [agency‘s] decision. . . . Our inquiry begins, therefore, with the question of whether the board rendered a formal, official, collective statement of the reasons for its action. . . .
“That analysis is guided by certain established precepts. First, individual reasons given by certain members of the [zoning agency do] not amount to a formal, collective, official statement of
“Fourth, our Supreme Court has explained that the cases in which [it] held that the agency rendered a formal, official, collective statement involve circumstances wherein the agency couples its communication of its ultimate decision with express reasons behind that decision.” (Citations omitted; emphasis in original, footnote omitted; internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, supra, 155 Conn. App. 672-74.
In reviewing the meeting minutes, as set forth previously, we note that, although certain individual board members offered their thoughts on whether the plaintiffs had established a hardship prior to voting on the application, that discussion does not constitute a formal, official, collective statement of reasons for its action. See Amendola v. Zoning Board of Appeals, 161 Conn. App. 726, 736, 129 A.3d 743 (2015) (“although board members discussed the characteristics of the property and conditions for granting the proposed vari-ances, the record does not contain a collective statement of the board‘s reasons for granting the variances“). Board member Haberman‘s statement, in moving to deny the application, that “obviously the height is an issue for us,” which the trial court relied on as forming an official reason for the decision, is likewise not sufficient. See Verrillo v. Zoning Board of Appeals, supra, 155 Conn. App. 674 (“the remarks of a board member in moving to grant a variance do not constitute a collective statement of the basis for the board‘s action“); see also Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208-209, 209 n.12, 658 A.2d 559 (1995) (board‘s discussion of reasons supporting variance before vote and chairman‘s remarks in moving to grant variance did not constitute collective statement of basis for board‘s decision granting variance). Accordingly, we must search the record as a whole to determine whether the evidence supports the board‘s decision to deny the subject variance.
I
The board‘s first claim on appeal is that the court erroneously concluded that the plaintiffs had established a hardship. The board maintains that the hardship claimed by the plaintiffs was self-created because “if the plaintiffs eliminated one story in the new structure, or otherwise reduced the structure‘s height by 4.5 feet, they would not need a height variance.” We agree with the board that the plaintiffs failed to establish the existence of a legally cognizable hardship and the trial court erred in concluding to the contrary.
As noted previously, “[a] variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town. . . . It is well established, however, that the granting of a variance must be reserved for unusual or exceptional circumstances. . . . An applicant for a variance must show that, because of some peculiar characteristic of his 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. . . . Accordingly, we have [concluded that a zoning board of appeals may] grant a variance only when
The board argues that this court‘s decision in Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 545-46, 684 A.2d 735 (1996), controls. In Jaser, after a house was destroyed by a fire, the owner sought a variance of the setback requirement in order to build a new house on the property. Id., 546. Prior to submitting their variance application, however, the plaintiffs submitted an application to the zoning board of appeals to have the lot declared a nonconforming building lot, and they submitted a survey that showed that a house could be built on the property within the applicable setback requirements. Id. The board denied the variance application, stating the following as its reason: “It was felt by those in opposition that there was no evidence presented to establish a hardship and noted that approval was granted for the nonconforming lot on the basis that a structure to be built would comply with setback requirements.” (Internal quotation marks omitted.) Id., 547. After the trial court sustained the plaintiffs’ appeal, this court reversed the judgment of the trial court, concluding that “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.” Id., 547–48.
In the present case, the federal and state mandated minimum flood elevation requirements combined with the local height limitation have the effect of limiting the height of the home that the plaintiffs seek to build on their property. The plaintiffs maintain that the multiple requirements “severely [restrict] what can be built.” They do not argue that they cannot build a single-family residence on their property in the absence of a variance from the building height regulation. Cf. Mayer-Wittmann v. Zoning Board of Appeals, supra, 333 Conn. 648-49 (applicant established that unusual hardship would result from strict enforcement of height limitation, which would deprive applicant of right to continue using existing, legally nonconforming accessory structure, where such structure could not be rebuilt in absence of either variance from building height regulations or minimum flood elevation requirement). Instead, as the board emphasizes, “the need [for a variance] arises from the plaintiffs’ desire to construct a new three-story, 1600 square foot house to replace a two-story, 1500 square foot house.”
“A variance is not a tool of convenience, but one of necessity. . . . They are not to be granted when a reasonable use already is present, or plainly is possible under the regulations, but an owner prefers otherwise.” Verrillo v. Zoning Board of Appeals, supra, 155 Conn. App. 716. Moreover, a property
We agree with the board that the record contains no evidence demonstrating that, in the absence of a variance from the height limitation, the plaintiffs cannot build a home on their property that conforms with the federal and state mandated minimum flood elevation requirements.15 See Verrillo v. Zoning Board of Appeals, supra, 155 Conn. App. 696-97 (record did not substantiate finding that hardship arose from inability to comply with fire or building codes where applicant submitted no evidence showing that proposed expansion of existing structure was necessary, rather than preferable, course to achieve compliance with code requirements). In sum, the record lacked evidence of hardship originating in the zoning ordinance because the plaintiffs’ evidence submitted to the board merely established that they could not build the type of house that they desired while conforming to the height limitation. Thus, although the plaintiffs’ proposed home did not increase substantially the square footage when compared to their prior home, the plaintiffs’ alleged hardship arises out of their desire to build a certain type of home; see Jaser v. Zoning Board of Appeals, supra, 43 Conn. App. 548; which is appropriately characterized as personal disappointment.
To obtain the requested variance, the plaintiffs bore the burden of demonstrating, on the record of the proceeding before the board, a legally cognizable hardship. See Verrillo v. Zoning Board of Appeals, supra, 155 Conn. App. 719–20; see also Amendola v. Zoning Board of Appeals, supra, 161 Conn. App. 738-39 (applicant has burden of proving existence of sufficient hardship).16 We conclude that the plaintiffs failed to carry their burden of demonstrating a legally cognizable hardship and, therefore, the board acted properly in denying the variance.
II
The board‘s second claim on appeal is that the trial court erroneously concluded that the plaintiffs’ proposal qualifies under the exception to the hardship requirement set forth in Adolphson v. Zoning Board of Appeals, supra, 205 Conn. 710. Specifically, it argues that “[t]he Adolphson exception does not apply to the height variance request, because the proposed new structure does not propose to lessen the structure‘s nonconformity as to height. . . . Adolphson does not stand for the proposition that the reduction in one nonconformity allows as a tradeoff the increase in, or creation of, another nonconformity.” (Internal quotation marks omitted.) We agree with the board that the present case does not qualify under the Adolphson exception to the hardship requirement.17
“In cases in which an extreme hardship has not been established, the reduction of a nonconforming use to a less offensive prohibited use may constitute an independent ground for granting a variance.” Vine v. Zoning Board of Appeals, 281 Conn. 553, 562, 916 A.2d 5 (2007). In Adolphson v. Zoning Board of Appeals, supra, 205 Conn. 705, the applicants had purchased property located in an industrial district 1 zone, on which property the prior owners had operated an aluminum casting foundry, which was a nonconforming use. The applicants purchased the property with the intention of using it as an automobile repair shop, and
In Stancuna v. Zoning Board of Appeals, 66 Conn. App. 565, 567, 569–71, 785 A.2d 601 (2001), the lot at issue, which predated town zoning regulations, contained a single-family residence in a commercial zone. The applicant intended to construct a new commercial building on the property and sought a variance of the zoning regulation requiring a twenty foot side yard setback, which the zoning board of appeals granted. Id., 566–67. On appeal to this court following the trial court‘s dismissal of the appeal, this court recognized the following, citing Adolphson: “That a variance will eliminate a nonconforming use constitutes independent grounds for sustaining the granting of a variance.” Id., 572. Noting that the variance would eliminate the nonconforming residential use of the property and would permit construction of a building for commercial use in a commercial zone, this court affirmed the judgment of the trial court. Id. In Vine v. Zoning Board of Appeals, supra, 281 Conn. 559, our Supreme Court applied Adolphson and Stancuna, in concluding that a zoning board‘s decision to grant a variance was proper because it reduced a preexisting nonconforming use of the property to a less offensive use.
The plaintiffs argue that the facts presented in Hescock v. Zoning Board of Appeals, 112 Conn. App. 239, 962 A.2d 177 (2009), are most similar to those in the present appeal. In Hescock, the applicants sought to raze the house located on their property and to construct a new house. Id., 242. They sought a variance of the regulation requiring that new construction “be located 100 feet landward of the reach of the mean high tide.” (Internal quotation marks omitted.) Id. The existing house was located forty-four feet from the mean high tide, and the proposed new house would be located forty-seven feet from the mean high tide. Id. The new house would be compliant with all other flood regulations, including the standards concerning base flood elevation levels, and would replace the existing home below the base flood elevation. Id., 242–43, 260. The board approved the variance, stating that the application “as presented—will diminish existing non-conformity and will address and improve flood zone issues.” (Internal quotation marks omitted.) Id., 251. On appeal, this court concluded that the board‘s determination that the new construction would lessen nonconformities was substantially supported by the evidence presented at the hearing, including that
The plaintiffs argue that they are entitled to the requested height variance under Adolphson, Stancuna, Vine, and Hescock, on the basis that their proposed residence would reduce “nonconformities from the pre-vious structure.” Specifically, they maintain that the previous nonconformities included the detached garage in the front yard setback,19 the shed structure on the property line in violation of the side yard setback, the residence in violation in the side yard setback, portions of the residence in the VE 13 Flood Zone which made it more susceptible to serious flooding, and a finished floor elevation below the flood line. They argue that “[t]he proposed plan consolidated all of the nonconforming structures on the property into one structure, which is to be built flood compliant with federal, state, and Milford regulations.” We disagree.
In each of the cases cited by the plaintiff, the applicants sought a variance and their proposal included the elimination of a nonconforming use or conversion to a less offensive nonconforming use; see Adolphson v. Zoning Board of Appeals, supra, 205 Conn. 710 (variance from regulation prohibiting operation of automobile repair shop justified because such use was less offensive than prior nonconforming use of foundry); Stancuna v. Zoning Board of Appeals, supra, 66 Conn. App. 569-71 (variance from setback requirement was proper because variance eliminated nonconforming residential use and allowed for conforming commercial use); or the variance the applicant sought itself constituted a reduction or elimination of a presently existing nonconformity. See Vine v. Zoning Board of Appeals, supra, 281 Conn. 571-72 (variance from minimum square footage requirement justified because building two houses on two lots constituted reduction in nonconformity of three houses on three lots); Hescock v. Zoning Board of Appeals, supra, 112 Conn. App. 260-61 (variance from setback requirement for proposed new construction justified by reduction in existing noncompliance with setback requirement and elimination of
In the present case, however, the plaintiffs’ proposed new construction would create a height nonconformity where none previously existed. These circumstances distinguish the present case from Adolphson, Stancuna, Vine, and Hescock. Cf. Verrillo v. Zoning Board of Appeals, supra, 155 Conn. App. 728 (applicants’ proposed expansion would not result in lesser nonconformity on applicants’ property and, therefore, Adolphson exception was not applicable). The plaintiffs have provided this court with no authority suggesting that the board was required to grant the requested variance from the height limitation, which would create a new nonconformity, on the basis of a proposed reduction or elimination of other nonconformities and compliance with flood regulations. Thus, we conclude that the present case does not qualify under the Adolphson exception to the hardship requirement. Accordingly, the trial court improperly sustained the plaintiffs’ appeal.
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.