Opinion
No. CV 08 4008830
June 24, 2009
MEMORANDUM OF DECISION
This is an appeal by the plaintiff from the denial by the defendant, Town of Ledyard Zoning Board of Appeals (the Board), of the plaintiff's request for a variance of a front yard setback requirement from a 75 feet to 41 foot for a lot owned by the plaintiff at 83 Inchcliff Drive, Ledyard, Connecticut (the property), upon which lot the plaintiff wished to build a house. The appeal was filed on May 12, 2006. Subsequently, on June 12, 2008, the plaintiff modified his request for a front yard variance from 41 feet to 40 feet.
On January 7, 2007, the plaintiff had filed a prior request for a variance for the property, modifying the front yard setback from 75 feet to 41 feet. The Board conducted a public hearing on the plaintiff's prior application on February 21, 2007. Prior to the commencement of the public hearing, the Board's chairman informed the plaintiff and other applicants present that four members of the Board would hear the appeals scheduled to take place that night. Prior to the vote on the plaintiff's application, the Board's vice-chairman advised the plaintiff that three of the four members of the Board hearing his appeal would have to vote in the affirmative for his variance to be approved and offered the plaintiff the opportunity to have the vote on his application postponed to a subsequent meeting. The plaintiff rejected the offer, a vote was taken and three votes were cast in the affirmative. Consistent with the announcement made by the Board's chairman, the plaintiff's variance was considered approved.
On February 22, 2007, the secretary of the Board wrote to the plaintiff and confirmed the approval of the prior application. On February 26, 2007, notice of the Board's decision granting the plaintiff's variance was published and was recorded in the Ledyard Land Records.
On March 1, 2007, the Board's attorney wrote to the plaintiff and informed him that four affirmative votes were needed to approve his application and, as a consequence, the effect of the vote taken by the Board was to deny his application. A corrected notice of decision was thereafter published.
The plaintiff claimed on appeal to this court that the Board was estopped from reversing its decision, the Board's chairman was without authority to correct the decision and the Board was precluded from reversing the decision. By memorandum of decision of even date, Coen v. Town of Ledyard Zoning Board of Appeals, Superior Court, judicial district of New London at New London, Docket No. 07-4006952, this court rejected the plaintiff's claims and dismissed his appeal.
Together with the present application for a variance, the plaintiff submitted maps of the property, plans detailing the proposed building location and its set backs, photographs of the property and the area, site plans, drawings of the proposed home, an appraisal of the property, title information on the property, street cards and assessor's reports.
The Board held a public hearing on the present application on June 18, 2008, which was continued to July 16, 2008. The plaintiff's counsel argued that the new information submitted with the present application constituted a material change in conditions which justified the Board's consideration of the present application.
Subsequent to the public hearing, the Board voted on three separate motions and in each case the vote was three to two. The first motion decided that the second application was similar to the first application. The second motion decided that there were no new conditions materially different from the first application. The third motion denied the second application for being too similar to the first application.
The plaintiff thereupon brought the present appeal. The plaintiff claims that the present application is not the same as the prior application and that the Board should have granted the variance on the basis of an unusual hardship.
The plaintiff is the owner of property which is situated at 83 Inchcliff Drive, Ledyard, Connecticut, and which is the subject of this appeal. As the owner of the property, the plaintiff is aggrieved by the action of the defendant.
The powers of a municipal zoning board of appeals are derived from § 8-6(a)(3) of the General Statutes, which provides board authority to:
(3) determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done, and public safety and welfare secured . . .
One seeking a variance from a municipal zoning board of appeals must satisfy two basic requirements: 1) the variance must be shown not to affect substantially the comprehensive zoning plan, and 2) adherence to the strict letter of the zoning ordinances must be shown to cause unusual hardship, unnecessary to the carrying out of the general purposes of the zoning plan. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368 (1988). Proof of exceptional difficulty or unusual hardship because of some peculiar characteristic of parcel of land is a condition precedent to the granting of a zoning variance. Reid v. Zoning Board of Appeals, 235 Conn. 850, 857 (1996). The granting of a variance, because it permits a property owner to use the property even though a violation of a zoning regulation will result, is reserved for an unusual or exceptional circumstances. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206-07 (1995).
A zoning board of appeals is endowed with liberal discretion and its decisions are subject to review by the court only to determine whether the board acted arbitrarily, illegally or unreasonably. Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269 (1991). The burden of demonstrating that the board acted improperly is upon the party seeking to overturn the board's decision. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988).
A court should not usurp the function and prerogatives of a zoning board of appeals by substituting its judgment for that of the board where an honest judgment has been reasonably and fairly exercised after a full hearing. Bloom v. Zoning Board of Appeals, supra, 206. The question is not whether another decision maker, such as the trial court, would have reached the same decision, but whether the record complied before the agency supports the decision reached. Calandro v. Zoning Commission, 176 Conn. 439, 440 (1979).
A decision must be upheld if it is supported by substantial evidence. The substantial evidence rule has been defined as similar to and analogous to the standard to be applied in judicial review of jury verdicts. It must be enough to justify, if a trial were to a jury, a refusal to direct a verdict where the conclusion sought to be drawn is one of fact. Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993).
1. Similarity of Applications
The application in the present case seeks relief identical to the application in the prior case, except for a difference of one foot in the front yard variance sought by the plaintiff. Notwithstanding, the plaintiff claims that the present application is not the same as the prior application.
In Vine v. Zoning Board of Appeals, 102 Conn.App. 863, 869-70 (2007), the Appellate Court set forth the rule relating to the filing of successive applications for the same property, as follows:
When a party files successive applications for the same property, a court makes up to two inquiries. The first is to determine whether the two applications seek the same relief. The zoning board determines that question in the first instance, and its decision may be over-turned only if it has abused its discretion . . . If the applications are essentially the same, the second inquiry is whether there has been a change in conditions or other considerations have intervened which materially affect the merits of the matter decided . . . (Quotation marks omitted.)
The plaintiff relies principally on Laurel Beach Assoc. v. Zoning Board of Appeals, 66 Conn.App. 640 (2004), in support of his claim that the prior application is not the same as the present application. In Laurel Beach the defendant applied to the board for a special exception to build a house on one of two lots owned by her. The board denied the application. In December 1988, after a revision in the zoning regulations, the defendant submitted another application to build a house on her lot, which was granted. The plaintiff in Laurel Beach appealed the second decision, claiming among other matters, that the two applications sought the same relief. The Appellate Court found that the trial court's determination that the applications were not the same was proper based upon documents submitted in the second application relevant to a merger of the lot in issue and an adjoining lot owned by the defendant and the change in zoning regulations, which documents were not submitted in the first application.
In the present case, there is no merger issue or change in zoning regulations and the additional documents submitted in the submitted case, which are similar to the documents presented in Laurel Beach, are not relevant to the issues before the Board and do not constitute a change in conditions which materially affects the merits of this application.
Accordingly, the plaintiff's claim that the applications are not similar is denied.
2. Variance
The plaintiff claims that, due to the peculiar nature of the property, the strict application of the zoning regulations results in an unusual hardship and the Board should have granted a variance.
The property was acquired by the plaintiff on February 7, 2006. Under the Ledyard zoning regulations in effect at that time, the property was a nonconforming lot. When a person purchases a lot with knowledge that it does not comply with zoning regulations, the zoning board of appeals may not grant the person permission to use the lot contrary to those restrictions. Abel v. Zoning Board of Appeals, 172 Conn. 286, 289 (1977). The hardship is considered to be self-inflicted or self-created and is never considered proper grounds for a variance. Id.
Accordingly, the Board acted within its authority on denying the present variance.
3. Conclusion
For the reasons stated above, the plaintiff's appeal is dismissed.