RICE v. OLD SAYBROOK ZBA, No. CV04-0103701S (Mar. 1, 2005)

HOLZBERG, JUDGE.

The plaintiffs, Dorothy Rice, Michael Rice, Leigh Bonney, Larry Ritzhaupt, Kathryn Melanson, Thomas Melanson, Gerald Wilson, and Maryann Wilson appeal a decision of the defendant, the Old Saybrook zoning board of appeals. The board granted the defendant John Whittier Anderson's application for a variance of § 7.2.1(c) of the Old Saybrook zoning regulations.

The plaintiff's claim that the commission acted illegally, arbitrarily, and in abuse of discretion in granting the variance in that Anderson did not allege or prove, and the board did not find, that the variance sought was in harmony with the general purpose and intent of the Old Saybrook zoning regulations; the elements necessary for granting a variance pursuant to General Statutes § 8-6 did not exist in his application; any hardship claimed was personal and/or financial in nature rather than caused by some unusual characteristic of the property and, therefore, legally insufficient; any hardship claimed was self-created in nature and, therefore, legally insufficient; and the board failed to describe specifically and adequately the exceptional difficulty or unusual hardship on which its decision was based as required by General Statutes § 8-7.

FACTS

The record reveals the following facts. John Whittier Anderson is the owner of property located at 509 Main Street, Old Saybrook, Connecticut. (Return of Record [ROR], Item 1.) Anderson's property consists of 2.5 acres and is improved with one single-family dwelling. (ROR, Item 14.) The plaintiffs are all owners of properties immediately adjacent to Anderson's property. (Trial Exhibit 1.) CT Page 3845

Anderson has owned the property since 1949. Anderson's property is located in the Residence A District according to the Old Saybrook zoning map. Residence A Districts permit single-family dwellings on lots of 20,000 square feet or more. (ROR, Item 17, § 24.1.1 and § 24.3.1.) Anderson's property is located entirely within one or more special flood hazard areas. (ROR, Item 1, p. 2, Item 16, p. 2.)

In 1995, the Old Saybrook zoning commission passed a regulation consisting of various requirements for lots created after April 13, 1995. (ROR, Item 16, p. 2; Item 17.) These regulations are contained in § 7.2.1 of the town's regulations. Section 7.2.1(c) states that such lots may not contain any land delineated as a special flood hazard area when determining the minimum area of buildable land.

The relevant portions of § 7.2.1 provide in part: "7.2.1 Minimum Area of Buildable Land. (Amended effective 4/13/95.) In addition to other requirements, every new lot created subsequent to April 13, 1995, which is to be used for building purposes, will contain within its boundaries a minimum area of buildable land (MABL), with the following characteristics . . .: c. The MABL will not include any land determined to be inland wetlands CT Page 3854 or tidal wetlands, as defined by the Connecticut General Statutes, nor any land delineated as a Special Flood Hazard Area." (ROR, Item 17.)

On or about December 15, 2003, Anderson applied to the board for a variance from § 7.2.1(c) so that he would be able to subdivide his land into an unspecified number of single-family residential lots and sell them. (ROR, Item 1.) The board held a public hearing on the application on January 14, 2004. (ROR, Item 14.) On January 15, 2004, the board granted the application for a variance. (ROR, Item 15.) In doing so, the board found, inter alia, that Anderson had shown sufficient hardship. (ROR, Item 16, pp. 24-25.) Legal notice of the decision was published in the Hartford Courant on Friday, January 23, 2004. (ROR, Item 15.)

The plaintiffs now appeal the commission's decision to the Superior Court.

JURISDICTION

General Statutes § 8-8 governs appeals from planning and zoning commissions to the Superior Court. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).

Aggrievement

The plaintiffs allege that they are aggrieved by the board's decision pursuant to General Statutes § 8-8(a)(1) in that they own land that abuts or is within a radius of 100 feet of a portion of the land which is the subject of the variance CT Page 3846 application. (Plaintiff's Complaint, ¶ 9.) "To be entitled to an appeal, the plaintiff [is] required to allege and prove that [he was] aggrieved by the decision of the commission . . . Aggrievement is an issue of fact . . . and credibility is for the trier of the facts." (Citations omitted; internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning and Zoning Commission, 256 Conn. 674, 702-03, 780 A.2d 1 (2001).

This section provides in relevant part: "`[a]ggrieved person' means a person aggrieved by a decision of a board and includes any officer, department, board or bureau of the municipality charged with enforcement of any order, requirement, or decision of the board. In the case of a decision by a zoning commission, planning commission, combined planning and zoning commission or board of appeals, `aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."

Plaintiffs' trial exhibit 1 contains the deeds of the plaintiffs Dorothy Rice, Michael Rice, Leigh Bonney, Larry Ritzhaupt, Kathryn Melanson, Thomas Melanson, Gerald Wilson, and Maryann Wilson. (Plaintiffs' Trial Exhibit 1.) The court finds that the plaintiffs are statutorily aggrieved pursuant to § 8-8(a)(1).

Timeliness and Service of Process

General Statutes § 8-8(b) provides, in relevant part, that an "appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that the notice of the decision was published as required by the general statutes." Subsection (f)(1) further provides that service "shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality."

The commission published its decision in the Hartford Courant on January 23, 2004. (ROR, Item 15.) On January 30, 2004, the appeal was commenced by serving "the within named defendant, OLD SAYBROOK ZONING BOARD OF APPEALS by leaving two true and attested copies of the original citation, recognizance, and complaint with and in the hands of SARAH BECKER, Town Clerk for the Town of Old Saybrook, accepting service for the within named defendant per C.G.S. 52-57 at said 302 Main Street, Old Saybrook, CT.

And afterwards on the 30th day of January 2004, (the marshal) made due and legal service upon the within named defendant JOHN WHITTIER ANDERSON by leaving a true and attested copy of the original citation, recognizance, and complaint with and in the hands of WILLIAM A. CHILDRESS, Esquire, accepting service for the within named defendant at 210 Main Street, Old Saybrook, CT." (Marshal's Return.)

Accordingly, the appeal was commenced timely by service on the CT Page 3847 proper parties.

SCOPE OF REVIEW

"The standard of review on appeal from a zoning board's decision to grant or deny a variance is well established . . . Courts 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 . . . The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Citations omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205-06, 658 A.2d 559 (1995). "[T]he scope of review requires the appealing aggrieved party to marshal the evidence in the record, and to establish that the decision was not reasonably supported by the record." (Internal quotation marks omitted.) JPI Partners, LLC v. Planning Zoning Board, 259 Conn. 675, 688, 791 A.2d 552 (2002).

"When a zoning agency has stated its reasons for its actions a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision . . . Rather, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations . . . The principle that a court should confine its review to the reasons given by a zoning agency . . . applies [only] where the agency has rendered a formal, official, collective statement of reasons for its action . . . It does not apply to mere utterances of individual members of the agency." (Citations omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239. As will be discussed, infra, the board did state reasons for its decision.

DISCUSSION

"[General Statutes] section 8-6(a)(3) provides in relevant part that a zoning board of appeals may determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, CT Page 3848 convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship." (Emphasis in original, internal quotation marks omitted.) Reid v. Zoning Board of Appeals, 235 Conn. 850, 856-57, 670 A.2d 1271 (1996). "Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance." Bloom v. Zoning Board of Appeals, supra, 233 Conn. 207-08. "A variance has been defined as the authority granted to [an] owner to use his property in a manner forbidden by zoning regulations. Our Supreme Court has cautioned that the power to grant variances from the strict application of zoning ordinances should be carefully and sparingly exercised . . . The power to authorize a variance is only granted for relief in specific and exceptional instances." (Citation omitted, internal quotation marks omitted.) Horace v. Zoning Board of Appeals, 85 Conn.App. 162, 165-66, 855 A.2d 1044 (2004).

"Variances cannot be personal in nature, and may be based only upon property conditions . . . Thus, the identity of a particular user of the land is irrelevant to zoning. In fact . . . [p]ersonal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance . . . [T]he basic zoning principle that zoning regulations must directly affect land, not the owners of land." (Citations omitted; internal quotation marks omitted.) Reid v. Zoning Board of Appeals, supra, 235 Conn. 857.

In his application for a variance, Anderson claimed that a hardship existed in that "literal enforcement of Regulations would render entire parcel (approx. 3 acres in a 20,000 s.f zone) indivisible; and would render unbuildable land which is suitable for building under FEMA regulations and our legal Flood Plain Ordinance. Application of regulation to undeveloped portion of parcel would be confiscatory as no building could occur on that portion." (ROR, Item 1, p. 2.)

At the public hearing, counsel for the applicant corrected the actual dimensions of the subject property and stated it is actually comprised of 2.5 acres. (ROR, Item 16, p. 2.)

The board gave the following reasons for its decision: (1) sufficient hardship has been shown; (2) the subject property has existed as a separate parcel of land for many years prior to the adoption of § 7.2.1 of the zoning regulations; (3) the property CT Page 3849 is entirely within the area designated as Flood Hazard Zone A V; (4) there is no way that the property can be subdivided in such manner as to allow any of it to qualify for the present MABL requirement; (5) the zoning regulation restricts the entire parcel as being ancillary to its present use as a site for a one single-family dwelling house, an area greatly in excess of the minimum area requirement for the zone being 20,000 square feet; (6) but for the exception of compliance with the MABL requirement with reference to being in the Flood Hazard Zone, the parcel meets every other requirement for subdivision development under the Old Saybrook land use regulations; (7) town engineer Nathan Jacobson Associates, Inc. who handles the flood plain ordinance and also makes recommendations to the board, has no objection to the granting of this variance because the subject property is not in the floodway; (8) the property contains no tidal wetland or inland wetlands areas, and is otherwise suitable for residential development; (9) the property is immediately adjacent to and has frontage upon Main Street, Old Saybrook, which is a well-maintained State highway which would provide immediate access for property owners to safely evacuate the area in the event of a flooding event; (10) the development of this property is completely in harmony with the development of the adjacent properties for single-family dwelling purposes, said adjacent properties also being within the same Flood Hazard Zone; and finally (11) the property is unique in that it is a relatively small parcel of land situated immediately adjacent to a State Highway. (ROR, Item 16, p. 24-25.)

As previously stated, "[the Supreme Court has] interpreted General Statutes . . . § 8-6 to authorize a zoning board of appeals to grant a variance only when two basic requirements are satisfied: (1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan." (Citation omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 207.

The board determined that sufficient hardship had been shown. The record shows that Anderson's stated hardship was that a literal enforcement of the regulations would render the entire parcel indivisible and would render land unbuildable which is otherwise suitable for building under FEMA regulations and under the flood plain ordinance. (ROR, Item 1.) CT Page 3850

At the public hearing on the application, counsel for Anderson stated; "[T]he hardship I think is quite clear, we're asking for a variance of that regulation to permit their parcel to be included in the MABL calculation so that it is then capable of subdivision. The hardship is not that just some portion of the lot is unbuildable . . . and or that its development is more difficult but that no part of the lot may be used to create any new lot . . . I lastly want to address economic hardship and of course it is an economic hardship if this land is not allowed to be further developed. And it can be stated that economic hardship is not a justification in and of itself for a variance I think there are other reasons for the variance . . . when the economic hardship is such that you leave the homeowner with no reasonable use of his land then it becomes . . . confiscatory in eliminating any practical use of it and a variance is justified to present that kind of confiscation." (ROR, Item 16, pp. 2-4.)

"Financial considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations to the property greatly decreases or practically destroys its value for any of the uses to which it could reasonably be put and where the regulations, as applied, bear so little relationship to the purposes of zoning that, as to particular premises, the regulations have a confiscatory or arbitrary effect." (Internal quotation marks omitted.) Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988). There is no evidence in the record that if the variance is not granted the property would become worthless. In fact, the subject property already contains a single-family residential dwelling. (ROR, Item 16, p. 1.) At the hearing, counsel for Anderson stated "if the variance isn't granted then the only use [Anderson] can make of those two plus acres is some accessory use to his existing home, a garage or barn or something like that." (ROR, Item 16, p. 4.)

It is well settled that "[t]he hardship must arise from circumstances or conditions beyond the control of the property owner . . . Where the claimed hardship arises from the applicant's voluntary act, however, a zoning board lacks the power to grant a variance . . . It is well established that a hardship that is self-created is never a proper [ground] for a variance." (Citations omitted; internal quotation marks omitted.) Aitken v. Zoning Board of Appeals, 18 Conn.App. 195, 205-06, 557 A.2d 1265 (1989). "A mere economic hardship or a hardship CT Page 3851 that was self-created, however, is insufficient to justify a variance . . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance." (Citation omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 208.

Anderson applied for the variance so that he will be able to subdivide the subject property and sell it as multiple lots rather than sell it as it exists presently as one lot with one single-family dwelling on it; (ROR, Item 16, pp. 2-3.) Without the variance, the lot will not meet the MABL requirement of § 7.2.1 and Anderson will have to sell the lot as one parcel. Anderson's situation is self-created because he seeks to divide his lot into multiple buildable lots.

"[T]he applicant's desire to subdivide property into [multiple] lots is a voluntary hardship created by the applicant requiring denial of a variance." DuPont v. Zoning Board of Appeals, 80 Conn.App. 327, 330, 834 A.2d 801 (2003); see also R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 9.3, p. 186. "This situation is self-created and, therefore, not a sufficient reason to depart from zoning regulations." Aitken v. Zoning Board of Appeals, supra, 206. Further, "if [the court was] to entertain the proposition that a property owner has a right to subdivide his property simply because he owns it, then we would be undermining the policy identified by our Supreme Court that variances are to be granted only in limited circumstances." DuPont v. Zoning Board of Appeals, supra, 80 Conn.App. 332. By choosing to subdivide the property, Anderson is creating his own hardship.

The board also granted the variance because "the subject parcel has existed as a separate parcel of land for many years prior to the adoption of provision 7.2.1 of the zoning regulations." (ROR, Item 16, p. 24.) The plaintiffs cite DuPont and Aitken for the proposition that the desire to subdivide property into multiple lots is a self-created situation and therefore not a sufficient reason to grant a variance. (Plaintiffs' Brief, pp. 6-7.) Anderson argues in response that DuPont and Aitken are distinguishable from the instant case because in those cases, the regulations which rendered the applicants' properties indivisible, and which they sought to vary, were in place at the time the applicants purchased their properties. (Anderson's Brief, p. 8.) Anderson argues that the regulation went into effect after Anderson had owned the property for 46 years. CT Page 3852 (Anderson's Brief, p. 8.) This argument is without merit. "[B]ecause the subject lot existed prior to the adoption of one of the sections of the Zoning Regulations sought to be varied does not create a hardship. The mere fact that a lot existed prior to the enactment of the zoning regulation does not require that such a regulation does not have to be adhered to." Connolly v. Stratford, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 03 0400861, (March 21, 2004, Owens, J.). Moreover, "it is well settled that variances run with the land and are not personal in nature." Reid v. Zoning Board of Appeals, supra, 235 Conn. 859. The fact that Anderson has owned the subject property for 46 years does not contribute to a hardship as the variance applies to the land. The lot does not meet the requirements of 7.2.1(c) of the regulations, and ownership of the subject property makes no difference. Further, at the time of the application there was no preexisting nonconformity: "The hardship the plaintiff claims is the inability to use the [subject] property as a separate lot. This hardship is nothing more than a claim of financial disadvantage. There is not confiscation of the property. The loss of the potential financial gain of creating an additional lot is not a proper basis for a variance. Therefore, this reason is insufficient to justify a variance." Holinko v. Zoning Board of Appeals, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 0360754 (September 22, 2004, Dewey, J.)

The reasons the board furnished for granting the variance are not supported by the record, or by applicable law. There is no evidence of hardship. Moreover, the reasons given are not "pertinent to the considerations with which the authority was required to apply under the zoning regulations." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 208. The fact that the zoning regulation restricts the subject parcel to a single-family dwelling house is not a sufficient reason for granting a hardship. Nor is the fact that the parcel meets every other requirement for subdivision development under the regulations.

Anderson also argues that it would be confiscatory and amount to a taking if the variance is not granted. (ROR, Item 16, p. 4.) "Disadvantage in property value or income, or both, to a single owner of property, resulting from application of zoning restrictions, does not, ordinarily, warrant relaxation in his favor on the ground of . . . unnecessary hardship . . . Financial CT Page 3853 considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations to the property greatly decreases or practically destroys its value for any of the uses to which it could reasonably be put and where the regulations, as applied, bear so little relationship to the purposes of zoning that, as to particular premises, the regulations have a confiscatory or arbitrary effect . . . Zoning regulations have such an effect in the extreme situation where the application of the regulations renders the property in question practically worthless." (Citation omitted; internal quotation marks omitted.) Norwood v. Zoning Board of Appeals, 62 Conn.App. 528, 534-35, 772 A.2d 624 (2001). "A zoning regulation that prevents land from being used for its greatest economic potential, however, does not create the exceptional kind of financial hardship that we have deemed to have a confiscatory or arbitrary effect . . . Proof 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." (Citations omitted; internal quotation marks omitted.) Grillo v. Zoning Board of Appeals, supra, 206 Conn. 370-71. Denying the variance is not confiscatory as the 2 1/2 acre parcel improved with a single-family residence is still valuable and marketable.

Because the board abused its discretion in granting Anderson's variance, it is not necessary to determine whether board's decision should be reversed on the basis that Anderson did not submit an application for a coastal site plan review.

CONCLUSION

The board acted illegally, arbitrarily and in abuse of its discretion in granting Anderson's application for a variance. The plaintiff's appeal is sustained.

ROBERT L. HOLZBERG, JUDGE