Opinion
No. CV06 401 76 25
January 4, 2008
MEMORANDUM OF DECISION
Whether the board abused its discretion in denying a variance on the ground that two adjoining parcels had merged and were no longer nonconforming. The variance was properly denied and the decision is sustained.
The plaintiff, Sabrina Charles, commenced this action on July 29, 2007, when service of process was made on the defendant, the zoning board of appeals of the town of Stratford ("board"). The plaintiff is a resident of Stratford, Connecticut and the owner of two adjacent lots, entitled 11 and 12. The lots were created in 1916 by a common development scheme named "Raymond Heights." (Return of Record [ROR], Exhibit 22.) Both lots 11 and 12 were created at that time and a single-family home was built shortly thereafter on lot 12. (ROR, Exhibit 22.) These lots came into common ownership in 1937. (ROR, Exhibit 21.) The lots are in a RS-4 zoning district and require a minimum lot area of 7,500 square feet. (ROR, Exhibit 2, 3 and 4.) The required lot width is 60 feet. (ROR, Exhibit 4.) Lot 11, the lot at issue in this appeal, is 5,000 square feet and is 50 feet wide. (ROR, Exhibit 4.) As such, the lot is nonconforming.
The plaintiff, seeking to make improvements to the lot, applied for three variances. After a 3-1 vote in favor of the variances, the board denied the application, as four concurring votes are needed for granting a variance. (ROR, Exhibit 25.) Notice of the board's decision was published in the Connecticut Post on June 23, 2006. (ROR, Exhibit 27.)
The plaintiff appeals on the basis that the board acted illegally, arbitrarily and in abuse of its discretion in that: (1) it denied the plaintiff a complete hearing on the application; (2) the denial was not supported by the evidence; (3) its decision was based on evidence outside the hearing process; and (4) was inconsistent with the comprehensive zoning plan.
"The Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal." RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001). "It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." (Internal quotation marks omitted.) Connecticut Resources Recovery Auth. v. Planning Zoning Commission, 225 Conn. 731, 744, 626 A.2d 705 (1993). "In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, `[c]onclusions reached by [a zoning board] must be upheld by the trial court if they are reasonably supported by the record. The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached.'" (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004).
"An applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 207, 658 A.2d 559 (1995). Proof of existence of practical difficulty or unusual hardship is a condition precedent to the granting of a variance. "To support the granting of a variance, a hardship must arise from a condition different in kind from that generally affecting properties in the same zoning district and must be imposed by conditions outside of the property owner's control." Stillman v. Zoning Board of Appeals, 25 Conn.App. 631, 636, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991). In other words, the hardship must originate in the zoning ordinance.
At issue in this case is whether the record supports a finding that the plaintiff sufficiently demonstrated the requisite hardship for acquiring a variance. The board has explained that no hardship exists when two lots have merged and are therefore no longer nonconforming. The plaintiff, however, argues that she was not given a fair hearing, citing in her brief that the board's conclusion that the lots had merged was erroneous.
Before reaching the issue of merger, this court will address statutory protections for nonconforming lots when regulations are adopted after the creation of the lots or lot. The parties refer to two relevant sections of the General Statutes, §§ 8.2 and 8.26a(b). First, § 8.2 discusses what is meant by nonconforming use. A nonconforming use is one which was lawful and in existence on the date that the regulations were passed. See Campion v. Board of Aldermen, 85 Conn.App. 820, 842-43, 859 A.2d 586 (2004), cert. granted on other grounds, 272 Conn. 920, 867 A.2d 837 (2005). Furthermore, according to the defendant, the use must be actual and not merely anticipated. See Defelice v. Zoning Board of Appeals, 130 Conn. 156, 161, 32 A.2d 635 (1943). If the "use" meets the criteria of lawful and in existence, § 8.2 protects that use from restrictions applied by the subsequent adoption of regulations. There is no dispute in the present case about the use of the land, and neither side contends that the land has consistently been used in a nonconforming way. Consequently, an analysis of the protections included in § 8.2 is unnecessary.
General Statutes § 8.2 provides, in relevant part: "Such regulations shall not prohibit the continuance of any nonconforming use, building or structure, existing at the time of the adoption of such regulations."
Furthermore, § 8.26a(b) provides a similar defense against regulations adopted after the creation of the subdivision. The applicability of this regulation hinges on whether the record evidence demonstrates that the subdivision was properly approved. "If the plaintiff's property was part of a valid subdivision approved prior to adoption of the lot shape requirement, the plaintiff's property would be exempt from [that restriction]." Miller v. Zoning Board of Appeals, 36 Conn.App. 98, 105, 647 A.2d 1050 (1994). According to the defendant, there is no evidence in the record that the "Raymond Heights" subdivision was approved by an appropriate municipal authority. The plaintiff did not address this provision. Consequently, where there is no record evidence to provide support for the protections of § 8.26a(b), this court cannot review its applicability.
General Statutes § 8.26a(b) provides: "Notwithstanding the provisions of any general or special act or local ordinance, when a change is adopted in the zoning regulations or boundaries of zoning districts of any town, city or borough, no lot or lots shown on a subdivision plan for residential property which has been approved, prior to the effective date of such change, by the planning commission of such town, city or borough, or other body exercising the powers of such commission, and filed or recorded with the town clerk, shall be required to conform to such change."
This contention is found in defendant's post-trial memorandum of December 23, 2007, paragraph IV.
In Miller v. Zoning Board of Appeals, supra, 36 Conn.App. 98, the court engaged in a similar analysis. The Miller court found that the property was not a part of a subdivision, and therefore § 8.26a(b) did not apply. Consequently, the plaintiff needed a variance. The petition was denied because the board determined that the lots had merged. In the present case, like Miller, no statutory protections are applicable, and the plaintiff resorted to applying for variances. The denial of those variances rested on whether the lots had merged, which is the critical issue for this appeal. Laurel Beach Ass'n. v. Zoning Board of Appeals, 66 Conn.App. 640, 785 A.2d 1169 (2001) provides a relevant definition of merger. "Merger occurs in two situations. In the absence of a change in the zoning provisions, merger is determined by a party's intent to treat multiple lots as a single property . . . Additionally . . . merger may be found to exist by operation of law, where a town changes zoning ordinances to implicitly or explicitly merge nonconforming lots with contiguous land owned by the same owner . . . Once merged, the lots form one lot that meets or more closely approximates the zoning requirements and the separate lots lose their exception for nonconformance." (Citations omitted; internal quotation marks omitted.) Id., 653.
When determining whether a merger has occurred, an owner's intent is a controlling indicator. "The owner's intent under the common law to merge lots is inferred from his or her conduct with respect to the land and the use made of it." Laurel Beach Ass'n. v. Zoning Board of Appeals, supra, 66 Conn.App. 654. Consequently, both the plaintiff and the defendant rely on the characteristics of the properties to show the requisite intent to support their position regarding merger. To this end, the defendant looks to the outward appearance of the land, its history, and the town's treatment of the two lots in determining that the lots have merged. In its brief in opposition, the board describes the land as follows. Both lots are surrounded by one contiguous hedge. (ROR, Exhibits 11-21.) The property is taxed together as one property. (ROR, Exhibits 11-21.) The plaintiff uses lot 11 to access lot 12 and treats lot 11 as a parking area. (ROR, Exhibit 4.) The home located on lot 12 actually crosses into lot 11, crossing into the setbacks of that lot. (ROR, Exhibits 11-21.) The land has historically been treated as one large lot, with one serving the other. (ROR, Exhibits 11-21.) To support its conclusion about merger and its denial of the variances, the defendant cites Neumann v. Zoning Board of Appeals, 14 Conn.App. 55, 539 A.2d 614, cert. denied, 208 Conn. 806, 545 A.2d 1103 (1988), a case involving a wharf lot and an adjacent homestead lot held by a common owner. In that case, the lots were deeded separately and taxed separately, but because the owner used one property as an accessory to the other, among other things, the court found that the lots had merged. The court stated in its decision that "[the plaintiff] owned both parcels, and her use of them at that time demonstrated that they were then and were in the future `to be used . . . as a unit.'" Neumann v. Zoning Board of Appeals, supra, 14 Conn.App. 60.
In its brief in opposition, the board discusses the requirements that the premises be considered a single lot according to Stratford Regulations §§ 1.24 and 3.10. The language of those regulations is not included in the brief, but the board makes references to those regulations to support its position.
In rebuttal, the plaintiff cites Laurel Beach to undermine the weight of these facts. For instance, "[T]here is no merger simply because the tracts [of land] are taxed as one or even because the owner fails to take any actions physically to demonstrate that he desires to keep them separate." Laurel Beach Assn. v. Zoning Board of Appeals, supra, 66 Conn.App. 654. Moreover, the plaintiff argues that the lots, while under common ownership, have consistently been described individually. Specifically, the plaintiff asserts that conveying lots together, in a common deed, does not amount to merger. Nevertheless, Laurel Beach ruled out merger because the land had not been under common ownership, as the owners of the two properties had put separate names on the deeds of the contiguous lots, thereby showing intent to keep them separate. That was not the situation in the present case, therefore the cases cited by the plaintiff do little to support the plaintiff's position. Laurel Beach does, however, note that there is no clear indication of when merger has taken place. "Whether a property's identity as a separate lot has ceased and it has merged with the adjacent property is a factual determination to be made on a case by case basis upon the facts and circumstances of each individual application. Therefore no fixed set of criteria can be said to establish such a merger for all cases." (Intemal quotation marks omitted.) Laurel Beach Ass'n. v. Zoning Board of Appeals, supra, 66 Conn.App. 653.
The plaintiff also cites Iannucci v. Zoning Board of Appeals, 25 Conn.App. 85, 592 A.2d 970 (1991), which actually supported the board's finding of merger. The plaintiff cites this case because Iannucci found that the placement of the house, encroaching on the side setbacks of the other lot, did not contribute to a finding of merger. The home's placement in the present case is merely one of a number of contributing factors to the board's decision.
As such, having reviewed the facts relating to the property, and especially those controlling the board's decision, the facts of this individual case support a conclusion that the plaintiff intended to merge the lots. Therefore, the board's decision was reasonably supported by the record. Moreover, with supporting evidence and rationale, it is clear that the board was not abusing its discretion in denying the variance.
Aside from the general standard of review in an administrative appeal, referenced above, this court must give deference to a rational conclusion reached by the board, particularly in a matter such as this. "Once a local zoning authority has found or could have found, from the record before it, that there was a merger of lots, the trial court is restricted to a determination of whether the board's finding of merger was reasonably supported by the record and whether this was a pertinent basis on which to deny the plaintiff's application . . . A trial court cannot disturb a zoning board's factual finding of merger as long as that finding is the product of an honest judgment reasonably exercised. To do so would be an improper substitution of the trial court's judgment for that of the board." (Citation omitted; internal quotation marks omitted.) Marino v. Zoning Board of Appeals, 22 Conn.App. 606, 608, 578 A.2d 165, cert. denied, 216 Conn. 817, 580 A.2d 58 (1990). "At the municipality level only the board of appeals has the authority to determine whether merger has occurred." Laurel Beach Ass'n. v. Zoning Board of Appeals, supra, 66 Conn.App. 655. The board in the present case identified a number of facts, all relevant and undisputed, to support a finding of merger. Furthermore, because merger eliminates the hardship of owning nonconforming lots, it is within reason to deny the variance.
The board's decision is sustained.
CT Page 283