ANTHONY VERRILLO v. ZONING BOARD OF APPEALS OF THE TOWN OF BRANFORD ET AL.
AC 36196
Appellate Court of Connecticut
March 10, 2015
Gruendel, Mullins and Bear, Js.
Argued November 19, 2014—officially released March 10, 2015
(Appeal from Superior Court, judicial district of New Haven, Blue, J.)
Michael
Michael G. Tansley, with whom was Heather L. Dostaler, for the appellee (plaintiff).
ANTHONY VERRILLO v. ZONING BOARD OF APPEALS OF THE TOWN OF BRANFORD ET AL.
AC 36196
Appellate Court of Connecticut
Opinion
This appeal concerns real property known as 112 Limewood Avenue (property). The property is located in a coastal area of town ‘‘comprised mostly of small cottage type homes on small parcels . . . .’’ Its title originates in a deed recorded in 1908. The lot is approximately sixty feet long and twenty-six feet wide, and its total area is 1605 square feet. In 1925, what the applicants describe as a ‘‘summer residence’’ was constructed on the property. That two-story structure contains four bedrooms and two bathrooms, with a living area of approximately 1000 square feet.
The town first enacted zoning regulations (regulations) in 1956. Branford Zoning Regs., § 6.1.C.3.2 Under those regulations, the property is classified as part of the ‘‘Residence R-2 District.’’ That district consists ‘‘of residential areas that have been developed over a period of years primarily with single-family houses for seasonal as well as year-round occupancy on relatively small lots.’’ Branford Zoning Regs., § 3.2.B.1. Section 3.2.F.1 of the regulations requires a minimum lot area of 4000 square feet in that district, with which the property plainly does not comply. The existing structure likewise does not comply with the requirements of the R-2 district in several respects, as it significantly intrudes upon the front, rear, and side setback requirements of the property,3 as well as certain maximum coverage restrictions4 and the ‘‘[n]arrow [street
It nevertheless is undisputed that the lot and existing structure antedate the enactment of the regulations in
ance.” Horace v. Zoning Board of Appeals, 85 Conn. App. 162, 171, 855 A.2d 1044 (2004). Improving the utility or the appearance of a building, “even if
At the public hearing, Gibson explained that the applicants were seeking to obtain “more space” inside the existing nonconforming structure. He noted that the existing structure was “an old building” that was “in dire need of renovation and upgrade. . . . The basic problem is, there’s practically no room to expand at ground level.” In addition to providing a new space to locate the furnace, which currently was located in the crawl space, the applicants sought to obtain more “living and storage space” on the proposed third story of the structure. Gibson stated that “[w]hat [the applicants] want to do is improve the property and expand it so we can get some living space” and emphasized that “since there is little or no room . . . for horizontal expansion [under the regulations], what has to be done in order to improve the property and modernize it . . . is to go up.”
Karpuska, the architect who prepared the plans submitted to the board depicting the proposed expansion, testified that “[t]he washer and dryer is [currently] in the dining room” and that “a water heater [is located] in this back room on the first floor.” To ameliorate the effects of an internal layout that was poorly designed to meet the needs of modern living; Moon v. Zoning Board of Appeals, supra, 291 Conn. 26 n.9; Karpuska explained that “pretty much the place will be gutted to make a better living standard.” Likewise, in summarizing the board’s action, the minutes of the March 20, 2012 meeting state in relevant part that granting the requested variances “would allow more living space for the upper stories,” would allow “more comfortable surroundings” by creating additional room for mechanicals, and that “the improvements to the structure would bring it up to date to meet today’s needs . . . .” It nevertheless remains that neither the applicants’ personal desire to expand their existing nonconforming structure to obtain additional, more comfortable space nor their desire to modernize that structure constitute legal hardship under our law. Accordingly, those rationales do not furnish the requisite basis for a finding of hardship by the board.
D
We turn next to the argument that the scope of the variances sought is
As Harrington noted during the board’s deliberations, the fact that a particular variance request appears de minimis in scope is not a valid basis for granting a variance. Neither the applicants nor the board argue otherwise in this appeal. This court expressly has declined “to recognize a ‘de minimis’ deviation exception that would obviate the need for [applicants] to prove hardship.” Morikawa v. Zoning Board of Appeals, 126 Conn. App. 400, 413, 11 A.3d 735 (2011); see also R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 9.3, p. 256 (“Connecticut does not recognize an exception to the hardship rule allowing de minimus variances”).
On a more basic level, the administrative record before us does not substantiate a finding that the requested variances were de minimis in scope. The applicants’ proposal entails adding a third story to the existing two-story structure. As this court noted in Munroe v. Zoning Board of Appeals, 75 Conn. App. 796, 810–11, 818 A.2d 72 (2003), a case involving vertical expansion of a nonconforming structure in the same municipality as the present case: “The addition of a . . . story is not a negligible or cosmetic change from the original nature of the nonconformity. The bulk of the building has been increased in quantity and dimension, thereby intensifying the nonconformity. The [additional] story provides a significant additional amount of enclosed space within the confines of the nonconforming footprint, causing a substantial increase in the nonconformity.” In addition, the applicants sought to increase the maximum floor area ratio from 0.72 to 0.89—well beyond the .50 maximum set forth in
E
The administrative record likewise does not substantiate a finding that the hardship arose from an inability to comply with any fire or building codes. In their application, the applicants alleged, inter alia, that the requested variances would make the existing structure “more code compliant,” and would “contribute to the health and safety of the [applicants] by providing compliance with building and fire code requirements.”25 Although the transcript of the public hearing contains a few isolated and vague references to such requirements by the applicants’ counsel,26 the record lacks any evidence
Moreover, as McGrath argued at the public hearing, “[t]here are zoning laws which require and building codes which this applicant is required to comply with. If there is some condition about mechanicals or anything else on the property that’s not in compliance, they need to bring it into compliance, and a lack of compliance with other laws is not a basis for a hardship in this case.” Given the paucity of evidence regarding this issue, we need not further consider McGrath’s contention that such noncompliance with fire or building code requirements cannot constitute a valid basis for a finding of legal hardship. Understandably, neither the applicants nor the board have raised such a claim in this appeal.28
F
It is undisputed that a three foot wide easement runs along the easterly property line.29 At the public hearing, Gibson made two references to that easement, stating that “you can see there is a right-of-way that takes up three feet on the eastern side of the property and is shared with the property to the east,” and that he thought “the fact that [the property is] encumbered by a right-of-way to the east makes it somewhat unique.” No further mention of that easement occurred in either the public hearing or the board’s subsequent deliberations.
We fail to see how the existence of that easement gives rise to any claim of hardship. The easement originates at the easterly property line and is three feet in width—well within the ten foot side setback specified by
G
The defendants also contend that the application of the regulations in the present case had a confiscatory effect on the property.30 That contention sits at the intersection of two related, yet distinct, areas of law: land use regulation and constitutional takings jurisprudence. This is not a case where the applicants are alleging a taking of property without just compensation in violation of the fifth amendment to the federal constitution and article first,
Under Connecticut law, two distinct tests apply to such claims in the variance context. The first is the “practical confiscation” test. As the Supreme Court explained more than one-half century ago, a zoning board of appeals “stands between the public and the individual property owner to protect the latter from unnecessary hardship—hardship, that is, which, owing to some condition affecting his land peculiarly, he would suffer when it is not necessary for him to do so in order to effectuate the general plan of zoning adopted for the community as a whole.” Goldreyer v. Board of Zoning Appeals, 144 Conn. 641, 645, 136 A.2d 789 (1957). “A classification permanently restricting the enjoyment of property to such an extent that it cannot be used for any reasonable purpose goes beyond valid regulation and constitutes a taking without due process”; id.; and “amounts to ‘practical confiscation.’ ” Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 151, 353 A.2d 104 (1976).
“A practical confiscation occurs when a landowner is prevented from making any beneficial use of its land—as if the government had, in fact, confiscated it.” (Emphasis added.) Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 256, 662 A.2d 1179 (1995). “[A] practical confiscation requires a complete loss of any beneficial use . . . .” (Emphasis in original; internal quotation marks omitted.) Green Falls Associates, LLC v. Zoning Board of Appeals, 138 Conn. App. 481, 495 n.9, 53 A.3d 273 (2012). Our Supreme Court “repeatedly [has] held that considerations of financial disadvantage—or, rather, the denial of a financial advantage—do not constitute hardship, unless the zoning restriction greatly decreases or practically destroys [the property’s] value for any of the uses to which it could reasonably be put . . . .” (Internal quotation marks omitted.) Rural Water Co., 287 Conn. at 295. Thus, to prevail under a claim of practical confiscation, a party must demonstrate that a literal application of the regulations at issue “will not allow any reasonable use of its property.” (Emphasis
Practical confiscation has been found where “there are no alternative uses” for a vacant nonconforming property in a residential zone other than “the construction of a single-family home.” Archambault v. Wadlow, 25 Conn. App. 375, 383, 595 A.2d 333 (1991); accord Lessner v. Zoning Board of Appeals, 151 Conn. 165, 168–70, 195 A.2d 437 (1963) (variance properly granted to permit construction of one-story house on vacant nonconforming lot in residential zone because property “cannot be used for any permitted purpose without a variance” and “the application of the regulations to [the] property practically destroys its value”). It also has been found where “the application of [the] regulations [at issue] prohibited any reasonable use of the subject lot” in a residential zone, where the applicant sought a variance to construct an accessory building on a vacant nonconforming lot. (Emphasis added.) Stankiewicz v. Zoning Board of Appeals, 15 Conn. App. 729, 735, 546 A.2d 919 (1988), aff’d, 211 Conn. 76, 556 A.2d 1024 (1989), overruled in part on other grounds by Gibbons v. Historic District Commission, 285 Conn. 755, 771, 941 A.2d 917 (2008); see also Bauer, 234 Conn. at 254–55 (“[o]ur cases that have found a taking by practical confiscation have involved situations that required a landowner to leave his property in essentially its natural state”).
When a reasonable use of the property exists, there can be no practical confiscation. For example, in Kelly v. Zoning Board of Appeals, 21 Conn. App. 594, 595, 575 A.2d 249 (1990), this court rejected a claim of practical confiscation with respect to an applicant’s request for a variance to construct multifamily dwellings in a residential zone limited to single-family dwellings. We reasoned that “[n]owhere does the record show that [the applicant] cannot use the parcel of land in a manner consistent with the zoning regulations and in the same manner as the other properties on [the street]. . . . There was no evidence that a single-family subdivision could not be developed. [The applicant] presented no evidence that the limitation to single-family homes on that parcel would be confiscatory or would effectively destroy the economic utility of the parcel.” Id., 598–99. Moreover, with respect to financial considerations, “[p]roof of financial hardship having a ‘confiscatory or arbitrary’ effect requires more than testimony that property can be sold only for a price substantially lower than can be obtained if a variance is granted to permit a use otherwise prohibited by the zoning regulations.” Grillo v. Zoning Board of Appeals, 206 Conn. 362, 371, 537 A.2d 1030 (1988). Rather, there can be no practical confiscation unless “application of the regulations renders the property in question practically worthless.” (Internal quotation marks omitted.) Hoffer v. Zoning Board of Appeals, 64 Conn. App. 39, 44, 779 A.2d 214 (2001).
Evidence that a property is not “ ‘practically worthless’ ” but “still possesses value” precludes a finding of practical confiscation. Id.
In the present case, the Superior Court rejected the applicants’ claim of practical confiscation, noting that the 2010 assessor’s card, which is part of the administrative record, indicates that the property’s assessed value at the time of the public hearing was $221,000. Equally significant, the applicants presented no evidence that a denial of the requested variances would preclude any reasonable use of the property. Instead, they argued that their proposed expansion of the existing
The second confiscation test, which we shall refer to as the “tantamount to confiscation” test, first was recognized in Chevron Oil Co. v. Zoning Board of Appeals, supra, 170 Conn. 146. Chevron Oil Co. involved a vacant lot located in a “CB-2 business zone, in which a gasoline service station is a permitted use.”31 Id., 147. The zoning regulation at issue required that “any building in a business zone be set back forty feet from the boundary of a residence zone.” Id. As a result, “[t]he application of that setback requirement to the [vacant lot], when taken in conjunction with front yard and side yard setback requirements, would restrict its usable area to only 3600 square feet.” Id., 147–48.
For that reason, an application was filed “with the defendant board of zoning appeals for a variance of the setback regulation from forty to twenty feet, and for certificates of approval for a gasoline station and for a limited repairer’s license.” Id., 148. The defendant board denied that request on the grounds that “ ‘the required variance in the setback line would not be in harmony with the purpose and intent of the ordinance’; that ‘such hardship as exists is of the applicant’s own making, inasmuch as he requested a zone change which now does not permit him to use the property as he now desires’; and that ‘the property could be used for a permitted use without variance.’ ” Id. On appeal, the Court of Common Pleas concluded that those reasons “lacked support in the record” and that “the application of the forty-foot setback regulation to the [applicant’s] property would be tantamount to confiscation . . . .” Id.
Our Supreme Court affirmed that decision, noting that “[t]he regulations permit the use of 35 percent of the area of any lot in a CB-2 zone. The application of the setback regulation to the . . . [plaintiff’s] property, because of its location and shape, would restrict its use to less than 15 percent of its area. That restriction would apply to any permitted use” of the vacant lot. Id., 150. Despite those limitations, the court determined that “There was no ‘practical confiscation’ in the present case, since a portion of the subject property could be used for some permitted use if the variance were not granted.” Id., 152. The court nevertheless proceeded to a consideration of the plaintiff’s claim that “the
The tantamount to confiscation test thus serves as a limited exception to the practical confiscation test. Whereas the latter requires “proof that denial of the variance would practically destroy the value of the property for all reasonable uses”; Rural Water Co., 287 Conn. at 297; the former applies in situations that fall just shy of that measure. This court clarified an applicant’s burden with respect to those two differing confiscation standards in Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 546 n.2, 684 A.2d 735 (1996), citing to Chevron Oil Co. and stating that “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.” (Emphasis added.)
A denial of the requested variances in the present case would not cause such a result. This case is not like Chevron Oil Co., in which an applicant sought to construct a new structure on a vacant lot, and the pertinent regulations restricted that proposed use to less than 15 percent of its area. Chevron Oil Co., 170 Conn. at 147–50. The applicants here have an existing residential structure that currently utilizes almost 50 percent of the property, and their proposal is to continue and expand that use.32 Chevron Oil Co., 170 Conn. at 152,
Although we normally would consider the degree of diminution in the value of the land; Chevron Oil Co., 170 Conn. at 151; no such evidence is contained in the record before us. The only evidence regarding the “value of the land”; id.; is the aforementioned assessor’s card, which indicates that the property’s assessed value at the time of the public hearing was $221,000.
Chevron Oil Co. also instructs that a reviewing court must consider “the alternatives available to the landowner.” (Internal quotation marks omitted.) Id. The most obvious alternative, and one urged by McGrath at the public hearing,33 is to continue to exercise their vested right in the nonconforming residential structure on the property, which has continued since 1925. That alternative is consistent with the aim of the regulations and the harm they were designed to prevent. This case is about the expansion of a nonconforming structure. The regulations at issue address such structures at great length, describing in detail the intent of the town to not “encourage [the] survival” of such nonconformities or permit any expansion thereof, because “[s]uch uses are . . . incompatible with permitted uses in the districts involved . . . .”
Raffaele, 157 Conn. at 462; see also Bauer, 234 Conn. at 243 (“a nonconforming structure cannot be increased in size in violation of zoning ordinances, i.e., nonconforming additions may not be made to the nonconforming structure”); Essex Leasing, Inc. v. Zoning Board of Appeals, 206 Conn. 595, 607, 539 A.2d 101 (1988) (“the familiar goal of zoning [is] to abolish nonconforming uses as quickly as justice will tolerate”). Accordingly, “[t]he alteration or substantial remodeling of a building existing as a nonconforming use is logically inconsistent with the principle that [a]n essential purpose of zoning regulations is
In sum, the record does not substantiate the claim that the applicants are “being completely or almost completely deprived of the use of the value of that land.” Jaser v. Zoning Board of Appeals, 43 Conn. App. 546 n.2. A denial of the requested variances, therefore, does not amount to a practical confiscation, nor is it tantamount to confiscation. Accordingly, confiscation is not a proper basis for a finding of hardship in this case.
H
As we have noted, the defendants have not alleged in this appeal, nor does the record substantiate, that the application of the regulations destroys the value of the property “for all reasonable uses.”35 Rural Water Co., 287 Conn. at 297. Instead, they argue that a more reasonable use exists—namely, an expanded and modernized residential structure. That contention, which was a primary point of discussion during the public hearing, reflects a misunderstanding of the concept of hardship under Connecticut law.
At the public hearing, the applicants maintained that their requests did not amount to “an excessive utilization of the variance . . . procedure.” Berdon, described by the board’s chairman as “the most vocal person on this application,” opined during the hearing that applicants are “entitled to, under the law, to variances . . . that allows them to use their property to a reasonable extent . . . . [T]he status of the property, as it currently sits, is to some extent immaterial because they’re entitled to get variances to a reasonable extent. To use the property to a reasonable extent.” At that point, Harrington stated, “I agree with that one hundred percent.” When McGrath spoke in opposition to the application, Berdon questioned whether he “would agree that variances . . . are designed [and] entitle . . . people reasonable use of their property.” McGrath stated that he did not agree. Instead, McGrath submitted that variances are designed to provide relief to applicants that can demonstrate “a hardship . . . owing to the characteristics of the land, that’s unique to their property and not present in the general zoning district.” McGrath then argued that because a reasonable use already existed on the property, the applicants could not establish the requisite hardship, as the application of the regulations to the property did not deny them the reasonable benefit thereof.36 During
The term “reasonable use” permeates our zoning cases, often without context or elaboration.37 It originates in decisions addressing practical confiscation. One illustrative case is Del Buono v. Board of Zoning Appeals, 143 Conn. 673, 674, 124 A.2d 915 (1956), which involved a property originally “zoned for industry” that later was reclassified in a residential zone. In finding a practical confiscation, the Supreme Court stated: “Because of the zonal classification in which the plaintiff’s property has been placed, he has, for all practical ends, lost all right to its enjoyment, since it has been stripped of every use to which it might reasonably be put. . . . [T]he fact that the land is in a [residential] zone precludes its use for any purpose for which it is or can reasonably be made adaptable and compels the owner to use it, if at all, for a purpose for which it is utterly unfitted. A classification permanently restricting the enjoyment of property to such an extent that it cannot be utilized for any reasonable purpose goes beyond valid regulation and constitutes a taking without due process. . . . [Such a] classification would be unreasonable and confiscatory.” (Citation omitted.) Id., 677–78. Under those circumstances, the court held that “the plaintiff was entitled to have his land removed from uselessness . . . .” Id., 678; see also Gregorio v. Zoning Board of Appeals, 155 Conn. 422, 428, 232 A.2d 330 (1967) (“[t]o grant the variance it was necessary for the board to find [inter alia] that the strict application of the provisions of the regulations would deprive the applicant of the reasonable use of the land or buildings”); Samp Mortar Lake Co. v. Town Plan & Zoning Commission, 155 Conn. 310, 315, 231 A.2d 649 (1967) (“[t]here is little doubt that the plaintiff will be disadvantaged economically by the change of zone, but the change does not amount to confiscation or deprive the plaintiff of all reasonable use of his land”).
In considering the issue of whether a “reasonable use” exists, we repeat that “[v]ariances cannot be per-
sonal in nature, and may be based only upon property conditions.” (Emphasis added.) Reid v. Zoning Board of Appeals, 235 Conn. 850, 857, 667 A.2d 1289 (1995). The preference of, and convenience to, a particular property owner is irrelevant to the hardship question. See, e.g., Moon, 291 Conn. at 26 n.9 (personal “inconvenience” not “hardship necessary for the approval of a variance”); Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239–40, 303 A.2d 46 (1972) (“[p]ersonal hardships” such as a property owner’s “personal needs, preferences and circumstances . . . do not provide sufficient grounds for the granting of a variance”). For that reason, our Supreme Court has indicated that “[t]he basic zoning principle that zoning regulations must directly affect land, not the owners of land . . . limits the ability of zoning boards to act for personal rather than principled reasons” in exercising the variance power. (Citation omitted; internal quotation marks omitted.) Reid, 235 Conn. at 857–58. The court likewise consistently has held that “disappointment in [the] use of [the] property” does not constitute legal hardship under our law. Moon, 291 Conn. at 26 n.9; Berkman v. Board of Appeals on Zoning, 135 Conn. 393, 399–400, 64 A.2d 875 (1949). It therefore is hardly surprising that we can uncover no authority in which our Supreme Court has found sufficient hardship present where an applicant presently enjoyed a reasonable use of the property under the regulations, but nevertheless preferred an alternate one. The defendants likewise have not furnished any such authority. Contra Rural Water Co., 287 Conn. at 296–97 (applicant “had not met its burden to show unusual hardship” when it “failed to prove that it could not continue to use the property as it had been used for many years”)
The defendants nevertheless posit that “the real test for hardship is whether the condition of the property is such that it would preclude the establishment of a reasonable, permitted use. If it would, then the test for hardship may be met regardless of what other use may already exist on the parcel.”39 For multiple reasons, we disagree.
First and foremost is the fact that the defendants’ proposition is contrary to the precedent of this state’s highest court indicating that the personal preference of a property owner is irrelevant to the hardship determination; see Moon, 291 Conn. at 26 n.9; Rural Water Co., 287 Conn. at 296–97; Reid, 235 Conn. at 857; Garibaldi, 163 Conn. at 238–39; and disappointment in the use of one’s property does not constitute legal hardship. See Moon, 291 Conn. at 26 n.9; Longo v. Board of Zoning Appeals, 143 Conn. 395, 398, 122 A.2d 784 (1956); Berkman, 135 Conn. at 399–400.
Furthermore, in the context of existing
Second, this court has rejected the precise claim advanced by the defendants in this appeal. In Vine v. Zoning Board of Appeals, 93 Conn. App. 1, 9 n.14, 887 A.2d 442 (2006), rev’d, 281 Conn. 553, 916 A.2d 5, aff’d after remand, 102 Conn. App. 863, 927 A.2d 958 (2007), this court concluded that it is not proper to grant a variance “on the basis of the denial of reasonable use of the property. To adopt such a standard would represent a significant change in our zoning jurisprudence, namely, our Supreme Court’s repeated instructions that variances are to be granted sparingly and only in exceptional situations.”40 We concur with that assessment, and note that if the well established hardship standard is to be modified, such modification is the prerogative of our Supreme Court.
Third, at its essence, the defendants’ proposition asks this court to eviscerate the hardship standard under Connecticut law. If the measure to be applied merely is whether an applicant is proposing a use of the property that is “within reason,” as was suggested by one board member during the public hearing, then we arrive at a place where “most setback variance applications would have to be granted.” (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 211 n.13, 658 A.2d 557 (1995). Such a legal standard for hardship would effectively preclude any meaningful review of a board’s decision to grant a variance, so long as the decision included a finding that the proposed activity was reasonable.
While the hardship standard in our law may appear a formidable one; see, e.g., Aitken v. Zoning Board of Appeals, 18 Conn. App. 195, 205, 557 A.2d 1265 (1989) (noting “the stringent requirements for establishing hardship”); the alternative is far less attractive. The “reasonable use” standard proposed by the defendants here would undermine the essential purpose of land
use regulation, which is “to adopt measures to regulate property uses in conformance with a comprehensive plan in a manner to advance . . . the public health, safety, morals and general welfare.” (Citations
During the public hearing, the board’s chairman summarized his interpretation of the applicants’ request as follows: “What I’m hearing [from the applicants] is, we have a structure that is old, it’s falling apart . . . it’s in need of major renovations . . . regardless of whether it gets expanded or not. But since we’re going to go through all that, we might as well, rather [than] to maintain the status quo, we’re going to ask for permission to improve it and enlarge it somewhat. That’s what I’m hearing.” (Emphasis added.) That observation aptly summarizes what this case is about. A variance is not a tool of convenience, but one of necessity. They are to be granted when the strict application of the regulations results in unusual hardship peculiarly affecting the property. 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. See Rural Water Co., 287 Conn. at 296–97 (applicant “had not met its burden to show unusual hardship” when it “failed to prove that it could not continue to use the property as it had been used for many years”); Bauer, 234 Conn. at 256 (variance not justified “when the landowner cannot take advantage of a myriad of uses acceptable under the applicable regulations because of choices the landowner itself has made that limit its land use options”); Green Falls Associates, LLC, 138 Conn. App. at 94 (because “the plaintiff can build a smaller house and likely comply with all regulations” it was not entitled to variance; inability to build “its desired house” was merely disappointment); Jaser, 43 Conn. App. at 548 (“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”).
In the present case, the regulations protect the applicants’ vested right to continue the residential use of their existing nonconforming structure. See
In light of the foregoing, we need not discuss the small size of the applicants’ parcel in much detail. This is not a case where, absent the requested variances, the application of the regulations precludes the use of the property for a permitted residential purpose. Contra Lessner v. Zoning Board of Appeals, 151 Conn. 168–70; Archambault v. Wadlow, 25 Conn. App. 382–83. This also is not a case where the “variance application was submitted for the board’s consideration as if the lot were vacant” because “[t]he existing [nonconforming residential structure] is to be razed and replaced with a new structure . . . .”41 Stancuna v. Zoning Board of Appeals, 66 Conn. App. 565, 573, 785 A.2d 601 (2001). Although the defendants have offered a hypothetical comparison of the applicants’ parcel in a vacant state to the property at issue in certain cases, such as Chevron Oil Co., it remains that the property is not vacant. We therefore decline to resort to speculation and conjecture, which “have no place in appellate review.” (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 502, 510, 970 A.2d 578 (2009).
IV
The defendants also claim that the court improperly concluded that the record failed to disclose any hardship that was unusual or unique to the property. We disagree.
In the seminal case of Ward v. Zoning Board of Appeals, 153 Conn. 141, 143, 215 A.2d 104 (1965), our Supreme Court noted that the requirement that a claimed hardship must be unusual and unique to the property “is a fundamental one in zoning law . . . .” As it explained, “[o]ne seeking a variance must show that his property is peculiarly disadvantaged by the operation of the zoning ordinance and not merely that a general hardship, equally applicable to other properties in the neighborhood, results from a strict enforcement of the code.” Id.
emphasized that “[t]he granting of a variance must be reserved to those situations involving exceptional or unusual circumstances”; id., 145; and then detailed precisely why the decision to grant a variance in that case was improper: “In upholding the board’s action, the court may seem to have condoned the board’s use of its variance power to alter the zoning classification of an entire neighborhood. Such a practice is incompatible with established zoning procedures and ignores the rule, so often emphasized by this court, that a variance may not be granted unless the applicant can show that the zoning ordinance works a distinct hardship on his particular piece of property and not merely a general hardship on the neighborhood at large.” Id., 146. Accordingly, because “[t]he record . . . fails to demonstrate that a strict application of the ordinance created an unreasonable hardship or had any adverse effect on the property of the [applicants] in comparison with other properties in the same general area,” the court sustained the appeal. Id., 147.
Under Connecticut law, “a unique hardship, imposed by conditions outside the property owner’s control, is a condition precedent to the issuance of a zoning variance.” (Emphasis in original.) Michler v. Planning & Zoning Board of Appeals, 123 Conn. App. 182, 185, 1 A.3d 1116 (2010); see also Wnuk v. Zoning Board of Appeals, 225 Conn. 691, 699 n.11, 626 A.2d 698 (1993) (“[t]he hardship would not be unique to the owner’s property . . . and therefore could not support a grant of variance”); Bloom v. Zoning Board of Appeals, 233 Conn. 198, 207–208, 658 A.2d 557 (1995) (proof of unusual hardship “is absolutely necessary” to obtain variance); B. I. B. Associates v. Zoning Board of Appeals, 163 Conn. 615, 617, 316 A.2d 414 (1972) (“the claimed hardship is not one unique to the property of the applicants”); 9 R. Fuller, supra, § 9.3, p. 242 (“[a] person is not entitled to a variance where the hardship claimed is not different in kind from that generally affecting property in the same zoning district, namely the hardship is not unique or unusual”). An applicant therefore bears the burden of establishing, on the record of the proceeding before the zoning board of appeals, that the claimed hardship is peculiar to its property and not one generally present in the zoning district. See Komondy v. Zoning Board of Appeals, 127 Conn. App. 669, 678, 16 A.3d 741 (2011) (“[T]he burden rests with the applicant [seeking a variance] to demonstrate its entitlement to the requested relief. . . . It thus is incumbent on an applicant to provide an evidentiary basis, whether through testimony, documentation or a combination thereof, in support of its plea for relief.” [Citations omitted.]).
In an administrative appeal challenging the decision of the board to grant a variance, a reviewing court must examine the record to ascertain whether it contains substantial evidence that the claimed hardship did not apply to other properties in the area. See Vine v. Zoning Board of Appeals, 281 Conn. 553, 559–60, 916 A.2d 5 (2007).
As our Supreme Court stated in a case where a zoning board of appeals, like the present case, did not make any finding of unique hardship: “[T]he board made no specific finding that exceptional difficulty or unnecessary hardship would result to the owner of the property from the strict enforcement of the regulations. It described no special circumstances in detail which do not apply to other properties in the area and which constitute a hardship to the applicants . . . . Moreover, such findings cannot be implied from the minutes or from other portions of the record before us. . . . [T]he variance, therefore, was not properly granted.” Gross v. Planning & Zoning Board of Appeals, 171 Conn. 326, 328, 370 A.2d 944 (1976); see also Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994) (“there were many other nonconforming lots in the area that were subject to the same zoning restrictions as the plaintiff’s property”); Grillo v. Zoning Board of Appeals, 206 Conn. 362, 373, 537 A.2d 1030 (1988) (because “[t]he record does not indicate how many other property owners in the zone also had” same hardship present on their property, “[t]here is no basis . . . for assuming that [the applicant’s] situation was essentially different from that of many others in the area”); Allen v. Zoning Board of Appeals, 155 Conn. 506, 510, 235 A.2d 654 (1967) (stating that “there is nothing which significantly distinguishes the [applicant’s] property from other property located on either [the street] or on the cul-de-sac [on which the property is located]. Unless such dissimilarity is shown, the board may not properly vary the application of the regulations.”); Kelly v. Zoning Board of Appeals, 21 Conn. App. 594, 599, 575 A.2d 249 (1990) (“[t]here was no evidence that the application of the existing zoning regulation affected this particular parcel in a manner distinct from neighboring properties”); Green v. Zoning Board of Appeals, 4 Conn. App. 500, 504, 495 A.2d 290 (1985) (same); 2 P. Salkin, American Law of Zoning (5th Ed. 2011) § 13:16, pp. 13-46
A review of the record in the present case reveals no legally cognizable hardship that does “not apply to other properties in the area . . . .” Gross, 171 Conn. at 328. The size of the applicants’ parcel arguably presents their strongest case for hardship, as the buildable area, consistent with the setback and lot coverage requirements of the R-2 district, is quite small. The application of the regulations to their property in that regard is not unique. As the Superior Court correctly noted in sustaining the administrative appeal, “[a] careful review of a map of the neighborhood contained in the record confirms [that] [m]any properties . . . are as small as, or even smaller, than the [applicants’] property.” Our review of the zoning map43 likewise confirms that several proper-
ties in the R-2 district are of a comparable size and suffer similar limitations in terms of buildable area. To paraphrase Celentano, Inc. v. Board of Zoning Appeals, 149 Conn. 671, 674, 184 A.2d 49 (1962), “[t]he hardship claimed is in no sense peculiar” to the applicants’ property.
As specifically described in the regulations, the R-2 district consists “of residential areas that have been developed over a period of years primarily with single-family houses for seasonal as well as year-round occupancy on relatively small lots.”
In extolling the “salutary result” of granting variances in such “older neighborhoods”—namely, the prevention of “dilapidation and blight”—the defendants encourage us to take judicial notice of “the widespread existence of such small-lot, waterfront communities in this state.”45 In so doing, they fail to appreciate the “fundamental distinction between the legislative function of the zoning commission, and the administrative and quasi-judicial functions of the zoning board of appeals . . . .” T. Tondro, supra, p. 129. As we recently observed, “[t]he variance power exists to permit what is prohibited in a particular zone. . . . In simple terms, the zoning commission acts as a land use legislature in enacting zoning requirements. . . . By contrast, the zoning board of appeals is the court of equity of the zoning process . . . . [Z]oning commissions and zoning boards of appeal are, by design and by statute, independent branches of a municipality’s land use department.” (Citations omitted; footnotes omitted; internal quotation marks omitted.) MacKenzie v. Planning & Zoning Commission, 146 Conn. App. 406, 429–30, 77 A.3d 904 (2013).
To the extent that the defendants argue that the variance power properly may be wielded to foster such “salutary” results in a given district, they are mistaken. “When a zoning board of appeals grants a variance on grounds which apply equally to a large number of properties in a given area, it in effect establishes a new zoning regulation applicable to that area. . . . Arguments concerning the general unsuitability of a neighborhood to the zoning classification in which it has been placed are properly addressed to the promulgators of the ordinance and not to those who have been empowered to grant variances. . . . The granting of a variance must be reserved to those situations involving exceptional or unusual circumstances.” (Citation omitted; footnote omitted.) Ward v. Zoning Board of Appeals, 153 Conn. 144–45. “[t]he purpose of variances . . . is not to work major changes in a zoning plan, or to correct errors of judgment in zoning.” (Footnotes omitted.) 101A C.J.S., supra, § 301, p. 387. The variance is an instrument of relief, not rezoning. As our Supreme Court has held, “[a variance] should not be used to accomplish what is in effect a substantial change in the uses permitted in a residence zone. That is a matter for the consideration of the zoning commission. . . . The power to repeal, modify or amend a zoning ordinance rests in the municipal body which had the power to adopt the ordinance, and not in the zoning board of appeals.” (Citation omitted; internal quotation marks
Furthermore, as exemplified by Harrington’s observation during the public hearing, this case is not about repair, but rather the expansion of the nonconformity of an existing structure.46 To obtain a variance, the applicants bore the burden of establishing a legally cognizable hardship that peculiarly affected their property, rather than numerous properties in the R-2 district. The small buildable area on their parcel that results from the application of the regulations at issue is an affliction shared by several other properties in that district. It, therefore, is not a unique hardship warranting exercise of the variance power.
V
We note that a narrow exception exists to the traditional test for obtaining a variance, on which a board properly may grant a variance despite an applicant’s failure to establish the requisite hardship. In Adolphson v. Zoning Board of Appeals, 205 Conn. 705, 535 A.2d 799 (1987), the applicants owned property located in an industrial zone, on which existed an aluminum casting foundry, which was a nonconforming use. The applicants sought certain variances in order to use the property as an automobile repair shop, despite the fact that such use also was prohibited in that industrial zone. Id., 706. The Zoning Board of Appeals nonetheless granted the requested variances, and the Superior Court upheld that decision on appeal, concluding that “the proposed use for the subject property operating under current regulations as to air pollution and the like would be far less offensive to the surrounding residents than a foundry.” (Internal quotation marks omitted.) Id.
A divided Supreme Court affirmed that determination. The majority opinion emphasized that the applicants were seeking “to change an established nonconforming use to a less offensive nonconforming use.” Id., 712. In that regard, the majority distinguished cases in which applicants sought to expand a nonconformity; id., 708; recognizing the well established principle of Connecticut law that “nonconforming uses should be abolished or reduced to conformity as quickly as the fair interest of the parties will permit—[i]n no case should they be allowed to increase.” (Emphasis added; internal quotation marks omitted.) Id., 710. The court continued: “The accepted method of accomplishing the ultimate object is that, while the alien use is permitted to continue until some change is made or contemplated, thereupon, so far as is expedient, advantage is
This court applied that exception three years later in Stancuna v. Zoning Board of Appeals, supra, 66 Conn. App. 565. The property at issue contained a nonconforming use—a single-family residence in a commercial zone. Id., 571. The applicant sought a variance of certain side yard setback requirements to permit the construction of a new commercial building, which the Zoning Board of Appeals granted. Id., 567. We affirmed that decision, citing to Adolphson and stating, “[t]hat a variance will eliminate a nonconforming use constitutes independent grounds for sustaining the granting of a variance.” Id., 572. Because “the variance eliminates the nonconforming residential use of the property and
allows a commercial use in a commercial zone,” this court concluded that the variance properly was granted.48 Id.
The limited exception articulated in Adolphson most recently was applied by our Supreme Court in Vine v. Zoning Board of Appeals, supra, 281 Conn. 553. In that case, the court noted that “[i]n 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.” Id., 562. The court ultimately concluded that the zoning board’s “decision to grant the variance was proper because it reduced the preexisting nonconforming use of the property to a less offensive use.” Id., 563; see also Morikawa v. Zoning Board of Appeals, 126 Conn. App. 413 (recognizing “that case law has carved out a narrow exception” to unusual hardship requirement); Hescock v. Zoning Board of Appeals, 112 Conn. App. 239, 242, 260–61, 962 A.2d 177 (2009) (in case where applicants “wanted to raze the [existing nonconforming residential structure] that occupied their property and to construct a new one,” Superior Court “properly concluded that the [Adolphson exception] was fully applicable to the present circumstances” because “there was substantial evidence that the new construction would reduce and eliminate existing nonconformities”).
The present case does not qualify under the Adolphson exception to the hardship requirement. The applicants here proposed
VI
Even if the defendants qualified under the Adolphson exception or otherwise demonstrated a peculiar hardship, they still could not prevail, as applicants seeking a variance also must demonstrate that the requested relief will not “affect substantially the comprehensive zoning plan . . . .” (Internal quotation marks omitted.) Moon v. Zoning Board of Appeals, 291 Conn. 24. Put differently, “a variance should not be granted unless it is in harmony with the general purpose and intent of the zoning ordinance.” Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662, 211 A.2d 687 (1965); see also 3 E. Yokley, Zoning Law and Practice (4th Ed. MacGregor 2010) § 20-1, pp. 20-1 and 20-2 (a variance “waives the strict letter of the zoning ordinance while at the same time it preserves, or should preserve, the spirit and purpose of the ordinance). Following the commencement of this appeal by the defendants, the plaintiff filed a timely alternate ground of affirmance pursuant to Practice Book
variances would not substantively impact the town’s comprehensive plan.
‘‘The comprehensive plan is found in the zoning regulations themselves.’’ Pike v. Zoning Board of Appeals, 31 Conn. App. 270, 277, 624 A.2d 909 (1993). In Raffaele v. Planning & Zoning Board of Appeals, supra, 157 Conn. 454, our Supreme Court addressed whether the proposed expansion of a nonconformity was in harmony with the comprehensive zoning plan. The court noted that ‘‘[a]n essential element in the board’s consideration of the appeal would be the settled proposition that zoning regulations in general seek the elimination rather than the enlargement of nonconforming uses.’’ Id., 458. In reviewing the regulations at issue, the court stated that ‘‘[n]owhere in the regulations is there any indication that an extension of a nonconforming use is to be permitted. . . . It is the intent of building zone regulations generally that nonconforming uses should not be allowed to increase, and an extension of the space allotted to a nonconforming use is a proscribed extension of that nonconforming use and is inconsistent with the policy and comprehensive plan of the regulations.’’ (Citation omitted.) Id., 462; accord Bauer v. Waste Management of Connecticut, Inc., supra, 234 Conn. 243 (‘‘a nonconforming structure cannot be increased in size in violation of zoning ordinances, i.e., nonconforming additions may not be made to the nonconforming structure’’); 4 E. Yokley, Zoning Law and Practice (4th Ed. MacGregor 2003) § 22-7, p. 22-38 (‘‘[n]onconforming uses . . . are not to be enlarged in derogation of the general zoning scheme’’).
The court likewise set aside the granting of a variance in Bradley v. Zoning Board of Appeals, 165 Conn. 389, 334 A.2d 914 (1973), due to a lack of harmony with the comprehensive plan. The court stated in relevant part that ‘‘[t]o allow zoning boards of appeal to grant variances authorizing uses nowhere permitted in the zoning regulations of the town would fly in the face of that clearly expressed policy. To do so would, in effect, give zoning boards the capacity to shape the development of the community with little or no regard for the community plan as expressed in the
orderly process of zoning, usurps the legislative function of the zoning and planning commission, and is thus illegal and an abuse of the board’s discretion.’’ (Citations omitted.) Bradley v. Zoning Board of Appeals, supra, 395–96.
That logic applies with equal force here. The present case involves a request to expand the nonconformity of an existing structure. The regulations expressly articulate a policy precluding the expansion thereof. Section 8.1.A.3 provides in relevant part that ‘‘[i]t is . . . the intent of this [s]ection that nonconformities shall not be enlarged, expanded or extended if such a change increases the nonconformity, nor shall they be used as grounds for adding other structures or uses prohibited elsewhere in the same district.’’ Section 8.1.B requires in relevant part that ‘‘[a]ny changes to the nonconforming use or structure shall be in compliance with these [r]egulations.’’ Section 8.1.C.1 specifies that ‘‘[n]o nonconforming use of land shall be enlarged, extended or altered, and no structure or part thereof devoted to a nonconforming use shall be enlarged, extended, reconstructed or structurally altered, except where the result of such changes is to reduce or eliminate the nonconformity.’’ Section 8.1.C.2 provides in relevant part that ‘‘[n]o nonconforming use of a structure shall be extended to occupy land outside such structure . . . .’’ Section 8.1.C.3 similarly provides that ‘‘[n]o building or other structure that does not conform to the requirements of these regulations regarding the building height limit, area and width of lot, percentage of lot coverage, and required yards and parking facilities shall be enlarged unless such enlarged portion conforms to the regulations applying to the district in which it is located.’’ Section 8.1.D.5 provides in relevant part that ‘‘[n]o building, structure or use in a nonconforming location may be . . . expanded into a different nonconforming location.’’ As was the case in Raffaele, nowhere in the regulations is there any indication that an expansion of an existing nonconforming structure that increases the nonconformity is to be permitted.49 The granting of multiple variances to permit such expansion thus flies in the face of the clearly expressed policy of the regulations. Accordingly, we conclude that the record does not substantiate the necessary
VII
We have scoured the entire record in search of a proper basis for the board’s decision to grant the requested variances to expand the existing nonconforming structure. The record does not substantiate a finding that (1) a legally cognizable hardship exists peculiarly affecting the applicants’ property, or (2) the proposed expansion would not affect substantially the comprehensive zoning plan. The record also indicates
that the Adolphson exception does not apply. We therefore conclude that the Superior Court properly sustained the plaintiff’s administrative appeal.
The judgment is affirmed.
In this opinion the other judges concurred.
1 ‘‘In hearing the plaintiff’s appeal from the decision of the zoning board of appeals, the Superior Court acts as an appellate body.’’ Megin v. Zoning Board of Appeals, 106 Conn. App. 602, 603 n.1, 942 A.2d 511, cert. denied, 289 Conn. 901, 957 A.2d 871 (2008).
2 Unless otherwise indicated, all references to the regulations in this opinion pertain to the 2011 revision thereof.
3 The variance application submitted to the board indicates that the existing structure intrudes upon the fifteen foot front setback by approximately thirteen and one-half feet, the twenty foot rear setback by approximately thirteen and one-half feet, the ten foot westerly side setback by approximately eight and one-half feet, and the ten foot easterly side setback by approximately two and one-half feet.
4 The variance application submitted to the board indicates that the existing structure exceeds the .50 maximum floor area by .22 and exceeds the .25 maximum lot coverage by .24. We note that the regulations deliberately utilize decimals rather than percentages. As Jennifer Fisher from LWF Land Surveying explained during the public hearing on the applicants’ request for variances, ‘‘[t]he way the new regulations were written, under the revised regulations they changed it to [decimals so] people can multiply that.’’
5
6 The record indicates that the applicants previously requested, and the board granted, similar variances for the property in 2009. As required by
The applicants then moved to dismiss the plaintiff’s administrative appeal in the Superior Court, claiming that the affidavit rendered moot the plaintiff’s appeal. The plaintiff opposed that motion, arguing that variances run with the land and are not personal in nature. See Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972) (‘‘[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.’’).
The plaintiff also argued that a dismissal of the appeal, in essence, would deprive him of his right to fundamental fairness, as the board would be bound to approve a future variance request for the property in light of its earlier decision on the matter. See, e.g., Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 215, 719 A.2d 465 (1998) (‘‘[t]he established law of this state . . . prohibits a zoning board of appeals from reversing its previous decision unless the facts and circumstances which actuated the decision are shown to have so changed as to vitiate or materially affect the reason which produced and supported it and no vested rights have intervened’’ [internal quotation marks omitted]).
Despite those objections, the court granted the applicants’ motion to dismiss, reasoning that ‘‘[i]f the property owner must apply for the variance and the grant thereof is only effective upon its being recorded on the land records, why cannot the owner, on the very same land records, relinquish the variance and declare it null and void?’’ Verrillo v. Zoning Board of Appeals, supra, 50 Conn. L. Rptr. 163. The court then stated that ‘‘[o]ut of an excess of caution the court will grant the motion to dismiss but will also vacate the board’s action in granting the variances—this only makes explicit the defendants’ direction to the board to nullify its previous actions regarding the granting of the variances. Any future application for the same or similar variances must therefore be reviewed on a de novo basis by the board, and any future granting of such an application that relies on the action taken by the board in granting the variances that are the subject of this appeal would therefore be a grounds for reversal of any favorable action on such new application. The court, of course, is not vacating the action of the board based on an examination of the merits of the plaintiffs’ appeal. The court views its action as a compromise between ensuring fundamental fairness to the plaintiffs’ right to fully contest the merits of any future granting of an application for the same or similar variances. It also seeks to avoid what it believes would be the unnecessary burden and expense that would be imposed on the defendants by having to further contest this appeal when they have declared they have no present intention to act on the variances.’’ Id., 164.
We are perplexed by that decision in multiple respects. Nonetheless, it remains that no appeal was taken from that judgment. We therefore do not consider the propriety of that decision in resolving the present appeal. At the same time, we do not necessarily endorse its holding.
At the outset of the public hearing in the present case, counsel for the applicants reviewed the history of the 2009 variances and submitted to the board that ‘‘your prior decision on [that matter] should not be considered by your board with regard to this application . . . .’’ The public hearing then proceeded on the merits of the new application without further mention of the 2009 variances. In this appeal, none of the parties raised any issues with respect to the variances granted by the board in 2009.
7
8 The record indicates that the existing structure consists of a first floor, a second floor and a crawl space underneath the structure. The plan proposed raising the structure so that a garage, mechanical room and storage area could be located on the first level of the structure. The proposed second level would be similar to the first floor of the existing structure and contain the kitchen, dining, and living rooms, as well as a bathroom, enclosed front porch and staircase to the third floor. The proposed third level largely would resemble the second floor of the existing structure, albeit with an expanded master bedroom and the addition of a second bathroom on that floor. During the hearing, Karpuska stated that the existing second floor would become the third floor of the structure under the applicants’ proposal.
9 The court found that the plaintiff was statutorily aggrieved as the owner of abutting property. The defendants do not quarrel with that conclusion on appeal.
10 ‘‘Scope of review and standard of review are often—albeit erroneously—
used interchangeably. The two terms carry distinct meanings and should not be substituted for one another. Scope of review refers to the confines within which an appellate court must conduct its examination. . . . In other words, it refers to the matters (or what) the appellate court is permitted to examine. In contrast, standard of review refers to the manner in which (or how) the examination is conducted.’’ (Internal quotation marks omitted.) Brunswick v. Statewide Grievance Committee, 103 Conn. App. 601, 606–607 n.7, 931 A.2d 319, cert. denied, 284 Conn. 929, 934 A.2d 244 (2007).
11 In Gibbons v. Historic District Commission, 285 Conn. 755, 771, 941 A.2d 917 (2008), our Supreme Court expressly overruled Stankiewicz v. Zoning Board of Appeals, 211 Conn. 76, 556 A.2d 1024 (1989), aff’g 15 Conn. App. 729, 546 A.2d 919 (1988), to the extent that it conflicted with the ‘‘traditional rule that when a reason is given, [a reviewing court] should not search beyond it. . . . [T]his is the appropriate scope of review for municipal land use appeals . . . . When an administrative agency specifically states its reasons, the court should go no further because it could reasonably be inferred that this was the extent of its findings. To go beyond those stated reasons invades the factfinding mission of the agency by allowing the court to cull out reasons that the agency may not have found to be credible or proven.’’ (Citations omitted; internal quotation marks omitted.)
12 One commentator has observed that ‘‘[a] fundamental responsibility of the courts vis-a-vis administrative agencies is to prevent them from roaming at will over the adjudicative landscape, without going as far as to substitute the court’s judgment for that of the agency. [When] the board does not state why it made a decision, it will be that much more difficult for the court to perform its function. . . . [R]equiring a [zoning agency] to state its reasons for the decision so that a court will not have to search the record for an adequate reason, will prevent a judicial usurpation of the administrative authority.’’ (Footnotes omitted; internal quotation marks omitted.) T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) pp. 482–83. That commentary highlights the inherent tension that arises in such instances wherein a reviewing court must scour the record in search of a valid basis for the zoning agency’s action. As it notes, ‘‘[it] is nearly boilerplate Connecticut land use law that the court cannot undertake a review de novo of a [zoning agency’s] decision, a position somewhat out of place when at the same time the court will re-examine the evidence before [the agency] to search for adequate support for its decision.’’ (Emphasis omitted.) Id., 483.
13 The regulations similarly provide that ‘‘[i]n accordance with [§] 8-6, the [b]oard shall have the power and duty to determine and vary the application of the [r]egulations 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 these [r]egulations would result in exceptional difficulty or unusual hardship.’’
14
15 As then Chief Judge Benjamin N. Cardozo of the New York Court of Appeals once observed, ‘‘[t]he power of the [b]oard of [a]ppeals is confined to variations in special cases to meet some unusual emergency, some unnecessary hardship. . . . There has been confided to the [b]oard a delicate jurisdiction and one easily abused. Upon a showing of unnecessary hardship, general rules are suspended for the benefit of individual owners, and special privileges established.’’ People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N.Y. 280, 289–90, 155 N.E. 575 (1927).
16
17 In their principal appellate brief, the defendants argue that the plaintiff’s attorney ‘‘made an important concession’’ during the public hearing when
he indicated his agreement with the proposition that if the existing structure on the property ‘‘was leveled in a storm,’’ the applicants ‘‘would have the right . . . to build at least the same structure that was there before.’’ That alleged ‘‘concession’’ appears entirely consistent with Lampasona and the principles of law articulated therein.
18 In response to a question from the board as to whether the applicants would be ‘‘tearing the house down and starting all over again, Gibson explained that the applicants instead proposed expanding the existing nonconforming structure. He stated in relevant part: ‘‘No, we’re not going to tear it down. . . . [W]hat we’re going to try to do [is] to provide more space by raising the building up to raise the area of the crawl space. . . . And also to have living and storage space on the third level, which is really the second floor, in the rear of the . . . building.’’
19 In Wiltzius v. Zoning Board of Appeals, 106 Conn. App. 1, 28, 940 A.2d 892, cert. denied, 287 Conn. 906, 907, 950 A.2d 1283, 1284 (2008), this court similarly noted that the regulations at issue ‘‘expressly prohibit [the] expansion of the nonconformity.’’ In light of that regulatory prohibition and the general principle of zoning law that nonconformities should not be allowed to increase, we held that the applicant’s proposal to replace ‘‘individual [nonconforming] mobile homes with larger mobile homes in [their] mobile home park constituted an illegal expansion and enlargement of a nonconformity.’’ Id., 24.
20 The applicants neither requested nor obtained a variance from § 8.1.C.2 of the regulations, despite the fact that they proposed expanding their residential use of the existing structure. In Munroe v. Zoning Board of Appeals, 75 Conn. App. 796, 806, 818 A.2d 72 (2003), we expressly considered ‘‘what is embraced in the term nonconforming use. The term nonconforming uses is often used without consideration as to what aspect of the use of property is nonconforming, and in determining whether an activity is an expansion or change of a nonconforming use, the nature of the nonconformity is important. There are basically four types of nonconformity: (1) nonconforming use—the use of the land or structure on it is nonconforming (e.g., commercial use in a residential zone); (2) a nonconforming lot—the lot is undersized, irregularly shaped, has inadequate width or depth or inadequate frontage; (3) nonconforming building or structure—the structure does not meet the minimum or maximum size requirements, floor area ratio, height or bulk requirements of the existing zoning regulations; (4) nonconformity as to location of structure, i.e., it does not conform with one or more of the setback requirements. These distinctions are important because a particular piece of property may be nonconforming in one of these respects, but conforming as to the others.’’ (Internal quotation marks omitted.)
Munroe involved the vertical expansion of a nonconforming structure in the same municipality as the present case. Id., 798. At issue was § 5.7 of the regulations as they existed in 1997, which was titled ‘‘Enlargement’’ and contained language largely identical to that set forth in § 8.1.C of the regulations as they existed in 2011, which also is titled ‘‘Enlargement.’’ See Munroe v. Zoning Board of Appeals, supra, 75 Conn. App. 798 n.4. In that case, this court observed that the proposed expansion implicated ‘‘the fourth type of nonconformity, that aspect of use of land or property that relates to the location of the structure or building on the land and whether a second story addition to the building is an increase in that type of nonconforming land use.’’ Id., 806. Unlike the present case, the proposed expansion in Munroe would not have ‘‘changed the footprint of the building.’’ Id.
21 Like the applicants in the present case, the applicant in Michler owned property containing an existing nonconforming structure. Michler v. Planning & Zoning Board of Appeals, supra, 123 Conn. App. 184.
22 The plaintiff in his appellate brief notes that ‘‘the regulations have absolutely no bearing on the applicants’ ability to renovate and upgrade their property, to relocate the heating system or replace it with an alternative heat source . . . . The regulations prohibit the applicants only from enlarging their house because it would be an expansion of a nonconforming structure.’’
23 There exists a crucial distinction between maintaining an existing nonconforming structure and improving, or modernizing, it. As noted in Munroe v. Zoning Board of Appeals, 75 Conn. App. 796, 810, 818 A.2d 72 (2003), ‘‘[z]oning regulations that deal with legal nonconforming uses of land or buildings balance two competing interests, the protection of individual property rights and the protection of the community’s interest in a speedy elimination of the particular nonconformity. . . . The landowner has an interest in making reasonable renovations to prevent deterioration, but the community has an interest in not extending the life of the nonconformity so that
the nonconformity gradually will be eliminated. . . . If a property owner is allowed to make drastic changes in a building, that interest would be favored over the interest of the community.’’ (Citations omitted.) See also 4 E. Yokley, Zoning Law and Practice (4th Ed. MacGregor 2003) § 22-11, p. 22-62 (‘‘[g]enerally, while buildings may be repaired or restored, the use may not be enlarged’’ [footnote omitted]). For that reason, the regulations here provide in relevant part that the intent of the regulations is ‘‘to permit these nonconformities to continue until they are removed, but not to encourage their survival’’;
As our Supreme Court explained in Helbig v. Zoning Commission, 185 Conn. 294, 306, 440 A.2d 940 (1981), ‘‘the indisputable goal of zoning [is] to reduce nonconforming to conforming uses with all the speed justice will tolerate. . . . Nevertheless, the rule concerning the continuance of a nonconforming use protects the right of a user to continue the same use of the property as it existed before the date of the adoption of the zoning regulations.’’ (Citations omitted; emphasis added; internal quotation marks omitted.). ‘‘A determination as to whether an alteration, extension, reconstruction, or repair of a nonconforming structure . . . is permissible is dependent on, or is affected by, the particular provisions of the applicable zoning ordinance . . . .’’ (Internal quotation marks omitted.) Munroe v. Zoning Board of Appeals, supra, 75 Conn. App. 805–806; see also 101A C.J.S., supra, § 181, p. 264 (‘‘[t]he right to alter or extend a nonconforming structure depends primarily on the terms of the applicable zoning ordinance’’).
24 The minutes to the board’s March 20, 2012 meeting likewise state that the ‘‘changes requested’’ by the applicants were ‘‘slight . . . .’’
25 Unlike the plaintiffs in Moon v. Zoning Board of Appeals, supra, 291 Conn. 26, the applicants here did not claim in their application or at the public hearing before the board that the literal enforcement of the regulations at issue made ‘‘it impossible to add onto the existing [nonconforming] building for . . . necessary compliance with building codes.’’ (Internal quotation marks omitted.)
26 In his prefatory remarks, Gibson stated in relevant part that ‘‘since there is little or no room . . . for horizontal expansion, what has to be done in order to improve the property and modernize it, bring it up to code as much as possible, is to go up.’’ Gibson later argued that the expansion of the existing structure ‘‘will contribute to the health and safety of the applicants and owners by helping to provide [them] with fire and building code requirements and providing some modem (sic) of storage which is really needed also for health purposes.’’
27 Although Laska made an isolated reference to a ‘‘FEMA compliant building’’ during the board’s deliberations, the record contains no evidence of any such requirements. The only other reference in the record to ‘‘FEMA’’ appears in the ‘‘Building/Engineering/Zoning/Wetlands Routing Sheet’’ that the applicants submitted to the town Planning and Zoning Commission on February 23, 2012. In that completed form, the applicants indicated that the property was not within a ‘‘FEMA Flood Zone.’’ The applicants made no mention of any FEMA requirements in their application or their presentation at the public hearing. In this appeal, the applicants and the board likewise have not mentioned such requirements in either their appellate briefs or at oral argument before this court.
28 The defendants did not make any mention of compliance with building and fire code requirements either in their appellate briefs or at oral argument before this court.
29 A deed to the property dated July 3, 1908, references ‘‘a right in common with others to a passway for teams and pedestrians over a strip of land 3 ft. wide’’ that runs ‘‘over the [e]ast side of said lot . . . .’’
30 To be clear, the applicants did not specifically raise any confiscation claim before the board. They merely argued that, absent the requested variances, they could not expand the existing nonconforming structure.
31 That property originally was located in a residential zone. Chevron Oil Co.
v. Zoning Board of Appeals, supra, 170 Conn. 147. At the applicant’s request, that zoning classification ‘‘was changed to a CB-2 business zone’’; id.; prior to his request for a variance. Id., 148.
32 On appeal, the defendants urge us to ignore the presence of the existing nonconforming structure on the property for purposes of our hardship analysis. We decline to do so. Unlike myriad cases, such as Chevron Oil Co. v. Zoning Board of Appeals, supra, 170 Conn. 146, and Archambault v. Wadlow, supra, 25 Conn. App. 375, the present case does not involve an applicant seeking to build a structure on a vacant lot, as Gibson explicitly stated at the outset of the public hearing. Instead, this case involves a proposal to expand an existing nonconforming structure in numerous respects. The suggestion that we must now engage in the fiction that the nonconforming structure does not exist strikes us as both illogical and insincere. The applicants are seeking to continue the ‘‘advantages’’ acquired by the enactment of the regulations; Kleinsmith v. Planning & Zoning Commission, supra, 157 Conn. 314; which permit and protect significant intrusions into setback and other requirements of the regulations. See footnotes 3 and 4 of this opinion. At the same time, they ask us to ignore the existence of those intrusions in analyzing the hardship issue, despite the fact that their proposal seeks to continue—and expand—those intrusions. In so doing, the defendants ‘‘apparently believ[e] that it really is possible to have one’s cake and eat it too . . . .’’ (Internal quotation marks omitted.) Piquet v. Chester, 306 Conn. 173, 191 n.17, 49 A.3d 977 (2012).
33 McGrath stated during the public hearing: ‘‘It’s not as though this applicant can’t build [and] is being denied [the] use of his property [and] is denied all reasonable benefit of this property. There’s a house here. It’s a residential district. There is a residence. It’s [been] used as a summer residence, it has been for a very long period of time. There’s nothing about this . . . lot, this structure and the application of the [regulations] to it that denies them the reasonable benefit of their property.’’
34 Another alternative is to revise their proposal so as request variances that lessen the nonconformity on the property, consistent with Adolphson v. Zoning Board of Appeals, supra, 205 Conn. 703, and its progeny. See part V of this opinion.
35 The applicants presented no evidence at the public hearing that a denial of the requested variances would preclude any reasonable use of the property. In their principal appellate brief, the defendants argue that we should ignore the existing nonconforming residential use of the property for purposes of our hardship analysis, which claim we already have rejected. See footnote 32 of this opinion.
36 McGrath stated: ‘‘It’s not as though this applicant can’t build [and] is being denied [the] use of his property [and] is denied all reasonable benefit of this property. There’s a house here. It’s a residential district. There is a residence. It’s [been] used as a summer residence, it has been for a very long period of time. There’s nothing about this . . . lot, this structure and the application of the [regulations] to it that denies them the reasonable benefit of their property. They have a house there. It’s their notion that they want to build, they want to expand, they want to completely gut the place as the architect indicated, they want to put a master bedroom on and another bathroom . . . they want to do all these things. It’s the construction that creates the extensible hardship. . . . It’s their desire to expand. It’s their desire to extend. Their desire to have a better . . . living space than they have now that . . . causes them to bring this application, and it makes them try to find this as a hardship.’’ If the requested variances were denied, McGrath argued, ‘‘the applicant still has a perfectly useful residence.’’
37 In an unrelated context, the terminology also pertains to one’s duty to neighboring properties. See, e.g., Nailor v. C. W. Blakeslee & Sons, Inc., 117 Conn. 241, 245, 167 A. 548 (1933) (‘‘[i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor’’).
38 The defendants rely principally on this court’s decision in Stillman v. Zoning Board of Appeals, 25 Conn. App. 631, 632, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991). That decision is distinguishable from the present case, as the applicant in Stillman sought to construct a first floor addition to her house due to ‘‘her advancing age’’; id., 633; and the hardship that supported the granting of a variance arose ‘‘from the configuration of [the applicant’s] lot and the location of the well and the septic system’’; id., 637; which left the side setback area as the only area in which an addition was possible. Id., 636. The present case, by contrast, is not one in which the buildable area on the property is constrained by the presence of what Stillman referred to as ‘‘improvements’’ such as a well or septic
system. Id. Moreover, unlike Stillman, the applicants’ proposal involves adding a third story to the existing nonconforming structure; see footnote 8 of this opinion; which causes ‘‘a substantial increase in the nonconformity.’’ Munroe v. Zoning Board of Appeals, supra, 75 Conn. App. 811.
Having concluded that Stillman is factually distinguishable from this case, we also disagree with the defendants’ assertion that Stillman modified the hardship standard when it allegedly ‘‘rejected’’ a ‘‘strict interpretation of the hardship test’’ for instances in which an applicant already possessed ‘‘a reasonable use of their land.’’ It is axiomatic that this court ‘‘is not free to depart from or modify the precedent of our Supreme Court.’’ Three Levels Corp. v. Conservation Commission, 148 Conn. App. 91, 113, 89 A.3d 3 (2014). As we just discussed, our Supreme Court consistently has held that the personal preferences of property owners in terms of the use of their property is not a proper basis for a finding of hardship, nor is disappointment in the use of their property. With respect to the expansion of existing nonconformities, that court has held that ‘‘nonconforming uses should be abolished or reduced to conformity as quickly as the fair interest of the parties will permit—[i]n no case should they be allowed to increase.’’(Internal quotation marks omitted.) Adolphson v. Zoning Board of Appeals, supra, 205 Conn. 710; see also Bauer v. Waste Management of Connecticut, Inc., supra, 234 Conn. 243 (‘‘a nonconforming structure cannot be increased in size in violation of zoning ordinances, i.e., nonconforming additions may not be made to the nonconforming structure’’).
We further are mindful that Bloom v. Zoning Board of Appeals, supra, 233 Conn. 199, also involved applicants who ‘‘expanded and altered’’ a nonconforming structure ‘‘within the nonconforming areas’’; id.; and then relied on Stillman in support of their claim of hardship. Id., 210 n.13. After distinguishing that precedent, our Supreme Court declared: ‘‘Furthermore, the fact that an owner is prohibited from adding new structures to the property does not constitute a legally cognizable hardship.’’ Id., 210–11 n.13. The court then opined that ‘‘[i]f it is a hardship to not be able to use one’s property as one wishes, then most setback variance applications would have to be granted.’’ (Internal quotation marks omitted.) Id., 211 n.13. The Supreme Court concluded its discussion of Stillman with the following admonition: ‘‘Although we distinguish Stillman from this case, we do not necessarily endorse its holding.’’ Id., 211 n.13. In the nearly quarter-century since Stillman was decided, the Supreme Court not once has relied on that precedent in any manner, and the Supreme Court has since stated that the inability to add ‘‘new structures to the property does not constitute a legally cognizable hardship’’; id., 210–11 n.13; that personal ‘‘inconvenience . . . does not rise to the level of hardship necessary for the approval of a variance’’; Moon v. Zoning Board of Appeals, supra, 291 Conn. 26 n.9; and that an applicant cannot demonstrate unusual hardship when it ‘‘failed to prove that it could not continue to use the property as it had been used for many years . . . .’’ Rural Water Co. v. Zoning Board of Appeals, supra, 287 Conn. 297. In light of the great weight of authority of our Supreme Court, and Bloom’s treatment of Stillman in particular, we thus view Stillman as best confined to its essential facts.
39 The defendants’ position appears to be animated by a faulty premise—namely, that the applicants possess a right to expand their nonconforming structure. That presumption finds no support in our law. As the Supreme Court observed in Bloom v. Zoning Board of Appeals, supra, 233 Conn. 210–11 n.13, ‘‘the fact that an owner is prohibited from adding new structures to the property does not constitute a legally cognizable hardship.’’ See also Bauer v. Waste Management of Connecticut, Inc., supra, 234 Conn. 243 (‘‘a nonconforming structure cannot be increased in size in violation of zoning ordinances, i.e., nonconforming additions may not be made to the nonconforming structure’’). Property owners that enjoy the advantages of a nonconforming lot or structure, therefore, must recognize that the existence of such nonconformities does not confer the ‘‘right to build an addition.’’ T. Tondro, supra, 77 (Cum. Supp. 2000); see also 2 P. Salkin, American Law of Zoning (5th Ed. 2011) § 12:19, p. 12-121. (‘‘[t]he right to continue a nonconforming use does not include a right to expand or enlarge it’’); 101A C.J.S., supra, § 188, p. 269 (‘‘the area of a nonconforming use may not be enlarged or extended, except as permitted by applicable zoning statutes or ordinances’’ [footnote omitted]).
40 In so doing, the court in Vine distinguished Giarrantano v. Zoning Board of Appeals, 60 Conn. App. 446, 760 A.2d 132 (2000), another case cited by the defendants in this appeal. As the court noted, the regulations at issue specifically included the phrase ‘‘ ‘reasonable use of such land’ ’’ in specifying the powers and duties of the defendant board. Id., 448 n.1. In Vine—a subsequent decision by the same authoring judge—this court explicitly noted that distinction in rejecting the claim that ‘‘a variance may be granted on the basis of the denial of reasonable use of the property.’’ Vine v. Zoning Board of Appeals, supra, 93 Conn. App. 9 n.14.
41 See footnote 18 of this opinion.
42 In their principal appellate brief, the defendants submit that ‘‘to obtain a variance, one need not prove that the circumstances are highly unusual; one must prove only that one’s circumstances are not applicable or relevant to the whole of the pertinent zoning district . . . .’’ (Emphasis added; internal quotation marks omitted.) They then argue that ‘‘[n]othing in the administrative record suggests that the conditions affecting the applicants’ property ‘generally affected’ all of the other properties in the R-2 district.’’ (Emphasis added.) That novel take on the hardship standard cannot be reconciled with the ample body of precedent from this state’s highest court indicating otherwise.
43 ‘‘[A] zoning map is an integral part of the zoning regulations, without which the regulations are said to be meaningless . . . .’’ (Citation omitted; internal quotation marks omitted.) Planning & Zoning Commission v. Gilbert, 208 Conn. 696, 706–707, 546 A.2d 823 (1988). Following the commencement of this appeal, the defendants filed a motion for permission to correct the record by filing ‘‘a corrected set of zoning regulations and zoning map,’’ consistent with the dictates of Practice Book § 81-6 (‘‘[t]he appellant’s brief shall be filed simultaneously with one complete copy of the local land use regulations that were in effect at the time of the hearing that gave rise to the agency action or ruling in dispute.’’). We granted that motion, thereby accepting those materials into the record before us.
44 ‘‘An interesting feature of the . . . test for a variance is the situation of the undersized residential lot in a subdivision or neighborhood with similar undersized lots. The existence of similar lots . . . make[s] it difficult or impossible to prove unusual or unique hardship.’’ 9 R. Fuller, supra, § 9.2, p. 240.
45 Arguably implicit in that request is some acknowledgement that the applicants’ claimed hardship is not unique to their property.
46 As the board’s chairman noted, ‘‘What I’m hearing [from the applicants] is, we have a structure that is old, it’s falling apart . . . it’s in need of major renovations . . . regardless of whether it gets expanded or not. But since we’re going to go through all that, we might as well, rather [than] to maintain the status quo, we’re going to ask for permission to improve it and enlarge it somewhat. That’s what I’m hearing.’’
47 The dissenting justices expressed their disagreement with the proposition ‘‘that a change in a nonconforming use otherwise violative of the comprehensive plan may be permitted by way of a variance, so long as the new use is less offensive than the former use . . . .’’ Adolphson v. Zoning Board of Appeals, supra, 205 Conn. 717 (Shea, J., dissenting).
48 As in Adolphson, the court in Stancuna went to great lengths to emphasize that the variance did not result in an increase of the existing nonconformity. We stated: ‘‘In this case, the court did not conclude that the variance was an expansion of a nonconformity. Rather, it concluded that the board had properly granted the variance. The board did not allow for a continuance and expansion of the nonconforming use, rather, it granted [the] application for a variance under the applicable regulations. The defendant is not increasing the size of the existing structure or building a larger one at the same location. Therefore, no expansion of the nonconforming use can occur.’’ Stancuna v. Zoning Board of Appeals, supra, 66 Conn. App. 573.
49 In their reply brief, the defendants state that § 8.1 ‘‘flatly prohibits any enlargement of a nonconforming structure.’’ They are mistaken. Although that regulation flatly prohibits the enlargement of any nonconformity on an existing nonconforming structure, the regulation permits the expansion of such structures to the extent that (1) it does not increase the nonconformity;