Opinion
No. CV 05 4003551 S
March 5, 2007
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiff, the town of Cromwell Planning and Zoning Commission, appeals from the decision of one of the defendants, the town of Cromwell Zoning Board of Appeals (ZBA), which had granted a use variance to Salvatore Petrella, who is also named as a defendant. The plaintiff appeals pursuant to General Statutes § 8-8.
GeneralStatutes § 8-8(b) provides in relevant part that "any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located . . ."
II BACKGROUND
On June 6, 2006, Petrella applied for a use variance from the ZBA in order to construct a professional office building on a residentially zoned vacant lot at 560 Main Street in Cromwell. (Return of Record [ROR], Exhibit 1.) The proposed property would consist of a law office on a residentially zoned lot which would be prohibited by § 4.2.85.B of the Cromwell zoning regulations.
In its variance application, the applicant requested a variance from "Article 4.2-84B" of the zoning regulations. Subsection 843 of § 4.2 of the Cromwell zoning regulations is the portion of the use table pertaining to nurseries and, therefore, is not relevant to the applicant's proposed use, which is a professional office. The applicable section of the use table is § 4.2.85.B, which notes the zones in which a professional office may be the principal use of a parcel of land. This section does not permit the principal use of land zoned residential for a professional office.
On June 28, 2005, the ZBA held a public hearing in connection with Petrella's application for a use Variance. (ROR, Exhs. 8 and 10.) After the public hearing and the ZBA's deliberations, the ZBA granted Petrella's application for a use variance and published its decision on July 12, 2005. (ROR, Exh. 6.) The commission filed this appeal on July 21, 2005, seeking to have the ZBA's decision overturned and Petrella's application for a use variance denied.
III JURISDICTION CT Page 9646
General Statutes § 8-8 governs an appeal from a decision of a zoning board of appeals. "Appeals to the courts from administrative [agencies] exist only under statutory authority . . . Appellate jurisdiction is derived from the . . . statutory provisions by which it is created . . . and can be acquired and exercised only in the manner prescribed." (Internal quotation marks omitted.) Fedus v. Planning Zoning Commission, 278 Conn. 751, 756, 900 A.2d 1 (2006).A AGGRIEVEMENT
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006). "Aggrievement presents a question of fact for the trial court." (Internal quotation marks omitted.) Id., 665.
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest . . .
"Statutory aggrievement exists by legislative fiat not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Id.
The commission alleges that it "is aggrieved by the decision of the Defendant ZBA." (Complaint, ¶ 12.) In its brief, it argues that it is statutorily aggrieved pursuant to General Statutes § 8-8. Section 8-8(a)(1) provides in relevant part that "`[a]ggrieved person' means a person aggrieved by a decision of a board and includes any . . . board . . . of the municipality charged with enforcement of any order, requirement or decision of the . . ." The definition of "board" in § 8-8(a)(2) includes, inter alia, "a . . . combined planning and zoning commission . . ." See Planning Zoning Commission v. Zoning Board of Appeals, Superior Court, judicial district of New London at Norwich, Docket No. 118275 (June 19, 2000, Purtill, J.T.R.) (27 Conn. L. Rptr. 474) (planning and zoning commission, which was charged with enactment and enforcement of zoning regulations pursuant to General Statutes §§ 8-2 and 8-3, was aggrieved and therefore had standing to appeal decision of zoning board of appeals). Accordingly, the court finds that the commission is statutorily aggrieved.
B TIMELINESS AND SERVICE OF PROCESS
General Statutes § 8-8(b) provides 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 notice of the decision was published as required by the general statutes." Section 8-8(f)(2) further provides that "[f]or any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57." Section 52-57(b) states that "[p]rocess . . . shall be served as follows . . . (5) against a board . . . provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board . . ."
The ZBA published notice of its decision on July 12, 2005. (ROR, Exh. 6.) On July 22, 2005, the appeal was commenced by serving two copies of process upon the town clerk. (Marshal's Return.) Accordingly, the court finds that service complied with the statutory requirements.
IV SCOPE OF REVIEW
"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] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [commission] supports the decision reached . . . If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board." (Citation omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004).
"In reviewing the actions of a zoning board of appeals [the court] note[s] that such a board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal . . . The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision . . . In an appeal from the decision of a zoning board, [the court] therefore review[s] the record to determine whether there is factual support for the board's decision, not for the contentions of the applicant." (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994).
"In order to determine whether the board properly granted the subject variance, we must first consider whether the board gave reasons for its action . . . Where a zoning agency has stated its reasons for its actions, 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 [decision] must be sustained if even one of the stated reasons is sufficient to support it . . . [This] applies where the agency has rendered a formal, official, collective statement of reasons for its action." (Citations omitted; internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995). "Where a zoning board of appeals does not formally state the reasons for its decision . . . the trial court must search the record for a basis for the board's decision." (Internal quotation marks omitted.) Municipal Funding LLC v. Zoning Board of Appeals, supra, 270 Conn. 454. Accordingly, as the ZBA has not stated its reasons for granting the variance, the court must search the record for a basis for its decision.
V DISCUSSION
The commission makes two arguments. First, it argues that the variance fails to meet the necessary requirements generally needed to grant a variance: "the condition for which the applicant seeks the variance must be unique to his property that makes development under the applicable zoning regulation draconian and unfair. It cannot be a condition that affects the zone or area as a whole, and it cannot be merely a financial hardship of the applicant." It contends that Petrella failed to meet these requirements because his hardship claim rested on financial considerations concerning the difficulty that would be encountered in trying to sell the property if he built a residence on it. It maintains that the only evidence presented before the ZBA at the public hearing in regard to the hardship was that the "character of the zone" had changed making a "professional building more appropriate for the location." It asserts that nothing peculiar about the property would justify the ZBA's decision to grant the use variance.
Second, it argues that the ZBA acted outside its regulatory authority in granting a use variance because §§ 4.1.b.2 and 21.1.a.3 of the Cromwell zoning regulations specifically prohibit the ZBA from granting a use variance. It contends that it has the exclusive authority to enact zoning regulations to regulate the permissible uses of land in the town of Cromwell and that, although the ZBA has the power to vary those regulations, that power is not unlimited. It maintains that use variances are expressly prohibited by the unambiguous language of §§ 4.1.b.2 and 21.1.a.3 of the zoning regulations. Accordingly, it argues, the ZBA acted arbitrarily, capriciously and not in accordance with the law in granting the variance.
Section 4.1.b.2 of the zoning regulations provides in relevant part: "The Planning and Zoning Commission shall make the final administrative determination as to the type use applied for. This determination is not subject to variance or special exception by the Zoning Board of Appeals."
Section 21.1.a.3 of the zoning regulations provides in relevant part: "Establishment of a use otherwise prohibited shall not be allowed by variance, nor shall a variance be granted because of the presence of non-conforming uses in the zoning district or uses in an adjoining district."
The ZBA counters that it had the authority to grant the use variance based on the "nature and character of the neighborhood in which the subject property was located based upon the recent actions" of the commission in approving an expansion of a truck repair facility located across the street from the subject property. It maintains that the proximity of this facility renders the subject property unsuitable for a residential use. It also notes that other uses in the neighborhood are commercial in nature, some of which are legal nonconforming uses. It contends that the residential A-15 zone where the subject property is located lacks harmony and that use of the property in accordance with the variance would not disturb the zone.
The ZBA further argues that it had the authority to grant the use variance under the Cromwell zoning regulations, the General Statutes and Connecticut case law. It argues that §§ 21.1.a.4 and 21.1.b.3 of the Cromwell zoning regulations are unambiguous and contemplate the granting of a use variance and that variances are not limited to regulations pertaining to height, yard and bulk requirements. It maintains that the commission's reliance on § 21.1.a.3 of the zoning regulations, which states in relevant part that "[e]stablishment of a use otherwise prohibited shall not be allowed by variance, nor shall a variance be granted because of the presence of non-conforming uses in the zoning district or uses in an adjoining district," is misplaced because, as other judges of the Superior Court have held, such regulatory language is invalid as it would be a complete divestment of the ZBA's statutory power to grant variances, rather than place a permissible restriction on that power. It further argues that § 4.1(b) of the zoning regulations, which explains that the "purpose of the use table is to serve as a guide in the development of land" and that the enumerated uses "are not exhaustive nor are they meant to cover all possible uses," supports its assertion that professional office uses are permitted in the residential zone. It maintains that professional offices are permitted in a residential zone as a home occupation and that the ZBA's decision simply eliminated the need for residential occupation as part of that use.
Section 21.1.a.4 of the Cromwell zoning regulations provides in relevant part: "Any variance or exceptions in the use of buildings or land which are granted by the Board of Appeals shall be placed upon the land records of the Town by recording a copy of the variances or exceptions with the Town Clerk . . ." Section 21.1.b.3 of the regulations provides: "Every application for variance from the Use District Requirements shall, on receipt thereof by the Zoning Administrator, be transmitted to the Zoning and Planning Commission and to the Board of Appeals."
Section 4.1(b) of the zoning regulations provides in relevant part: "The purpose of the use table is to serve as a guide in the development of land. The uses enumerated are not exhaustive nor are they meant to cover all possible uses, acting as a restrictive table to prevent the development of non-listed activities. They are to establish a pattern of developments for the various use districts thus providing for a homogeneous composition of the district."
The ZBA further contends that General Statutes § 8-6(a)(3), which enumerates the powers and duties of a zoning board of appeals, authorizes it to consider factors affecting a parcel of property in deciding whether to grant a variance. It maintains that the hardship requirement for variances does not prevent it from considering such factors and that it is not restricted to consideration of conditions on the parcel itself in determining whether a hardship exists.
General Statutes § 8-6 provides in relevant part: "(a) The zoning board of appeals shall have the following powers and duties: . . . (3) to 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 the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. No such board shall be required to hear any application for the same variance or substantially the same variance for a period of six months after a decision by the board or by a court on an earlier such application."
General Statutes § 8-6 provides a zoning board of appeals with the power to grant variances from local zoning regulations. "A variance is authority granted to the owner to use his property in a manner forbidden by the zoning regulations." (Internal quotation marks omitted.) Reid v. Zoning Board of Appeals, 235 Conn. 850, 857, 670 A.2d 1271 (1996). The Supreme Court has "interpreted General Statutes (Rev. to 1993) § 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." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 207. For the reasons discussed below, substantial evidence in the record does not support the ZBA's decision to grant the variance as no hardship has been established. Accordingly, it is not necessary for the court to address whether the ZBA lacked the power to grant use variances under the zoning regulations, whether § 21.1.a.3 of the regulations is an invalid restriction on the ZBA's authority to grant variances or whether the variance is in harmony with the general purpose and intent of the regulations.
"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. "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.) Reid v. Zoning Board of Appeals, supra, 235 Conn. 857. The Supreme Court has held that "[d]isappointment in the use of property does not constitute exceptional difficulty or unusual hardship." Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662, 211 A.2d 687 (1965).
"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 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] hardship that justifies a zoning board's decision to grant a variance must arise from the ordinance itself, rather than from the subjective choices of the applicant." Kalimian v. Zoning Board of Appeals, 65 Conn.App. 628, 633, 783 A.2d 506, cert. denied, 258 Conn. 936, 785 A.2d 231 (2001), citing Kaeser v. Zoning Board of Appeals, 218 Conn. 438, 445, 589 A.2d 1229 (1991).
"It is well settled that [s]elf-inflicted or self-created hardship . . . is never considered proper grounds for a variance . . . Accordingly . . . where the claimed hardship arises from the applicant's voluntary act, a zoning board lacks power to grant a variance . . . Where, however, the hardship is created by the enactment of a zoning ordinance and the owner of the parcel could have sought a variance, a subsequent purchaser has the same right to seek a variance and, if his request is supported in law, to obtain the variance . . . This right is not lost merely because the subsequent purchaser takes with the knowledge that the current zoning regulations would prohibit the use . . . Rather, the nonconformity must be attributable to the purchaser or his predecessor in interest in order for the hardship to be considered self-created." (Citations omitted; internal quotation marks omitted.) CT Page 9652 Sydoriak v. Zoning Board of Appeals, 90 Conn.App. 649, 659-60, 879 A.2d 494 (2005).
The record does not contain substantial evidence to support the requisite finding of a hardship. The evidence in the record shows that the claimed hardship arises from Petrella's subjective desire to develop the parcel as a commercial property, rather than as a residential property, because such a use might enhance the marketability of the parcel. For the reasons discussed below, such a hardship is merely financial and self-created and would not, therefore, justify the granting of a variance. In addition, little to no evidence regarding a hardship was presented to the board.
Petrella's testimony at the public hearing pertaining to the hardship issue concerned only the unsuitability of the neighborhood and the subject property to the residential zone in which they are located and, therefore, would not support the finding of a hardship. At the public hearing, Petrella stated: "I just want to continue on with the transition zone, because it's my opinion that, as a lot owner, I would not want to build a house and live in a house where that lot is located. Now, is that a hardship? Well, I think that there's a lot of definitions of hardship. Financial hardship isn't always one that you look at. As a matter of fact, you very seldom look at financial hardship. That isn't the hardship here. The hardship is what is a good use for this property . . ." (ROR, Exh. 10, p. 5.) Petrella supported his argument by describing the particular area as being a "zone . . . in transition," in which "it more appropriately would be used as a professional office." (ROR, Exh. 10, p. 5.) Petrella continued describing the surrounding business, including a veterinary hospital, bath repair facility, hair salon, service garage, restaurant and various other businesses in the "irregularly shaped business zone." (ROR, Exh. 10, p. 4.) "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." Ward v. Zoning Board of Appeals, 153 Conn. 141, 145, 215 A.2d 104 (1965). Accordingly, Petrella's testimony in the record would not constitute substantial evidence of a hardship.
The weight of appellate authority in this jurisdiction would not support a finding of hardship based on conditions in the neighborhood. See, e.g., Ward v. Zoning Board of Appeals, supra, 153 Conn. 145. Nevertheless, in Willard v. Zoning Board of Appeals, 152 Conn. 247, 206 A.2d 110 (1964) the Supreme Court was presented with facts similar to those presented here and held otherwise. In that case, the plaintiff owned a single-family residential building in a residential zone of Hartford, adjacent to several other similar buildings, most of which had been adapted to other purposes, either as nonconforming uses or through variances. Id., 248. The plaintiff applied for a variance to allow use of her property for offices, claiming that "the property was unattractive for residence purposes and that she had sought unsuccessfully for one and a half years to secure a tenant." Id. The Superior Court upheld the board's denial of the plaintiff's application, and the Supreme Court reversed, stating that "the record of the board is barren of any justification for this denial, which seems to inflict unnecessary hardship on the plaintiff and benefits no one else. There is nothing in the record, considering the uses of neighboring property, which would be contrary to the general comprehensive plan." Id., 249. Although the court's decision in Willard would lend support to the ZBA's position in this case, it is anomalous and is in direct conflict with more recent Supreme Court authority. It is well established that "[t]he comprehensive plan is to be found in the scheme of the zoning regulations themselves." Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 713, 535 A.2d 799 (1988). The conditions in the vicinity of the subject property are irrelevant to the issue of whether the issuance of the variance would "affect substantially the comprehensive zoning plan." See Bloom v. Zoning Board of Appeals, supra, 233 Conn. 207; Ward v. Zoning Board of Appeals, supra, 153 Conn. 145.
Moreover, although Petrella stated at the public hearing that his hardship is not financial; (ROR, Exh. 10, p. 5); the evidence in the record does not support this assertion. At the hearing, Petrella stated: "I currently have a home, an operating law practice there, but I want to expand into the adjoining lot and essentially build an office there and work out of that office." Petrella also stated: "If I was looking at this house to buy a house here, quite frankly, I wouldn't buy it. I think that zone is in transition and I think that it more appropriately would be used as a professional office." (ROR, Ext. 10, p. 5.) In regard to the surrounding properties, Petrella stated: "I think the veterinary hospital has been a benefit to the town, but I think as affecting this property I think it's been a detrimental use for residents . . . [a]gain, [the bath repair facility] has a noise impact and a visual impact on the things around it. So that's why I think this justifies a use as a professional office for this lot." (ROR, Ext. 10, p. 7.) This testimony is insufficient to justify the ZBA's decision to grant the variance. "A mere economic hardship or a hardship that was self-created . . . 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. Financial hardships 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." Grub v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988). Other than the applicant's unsupported assertion that he would not buy a house on the property, the record contains no evidence to suggest that the value of the subject property would be greatly decreased or practically destroyed if the variance were not granted. Accordingly, the plaintiff's claim that the commercial development in the area "had a deleterious effect on the nature and quality of the applicant's residential building lot"; (plaintiff's brief, p. 4); is unpersuasive as such an effect would be insufficient to justify the granting of a variance.
A review of the record further reveals that Petrella's hardship, if any, is self-created because he purchased the lot with knowledge that it was zoned residential and that commercial uses of the property, therefore, would be prohibited. "One specific type of voluntarily assumed hardship is embodied in what has been termed `the purchase with knowledge rule.' . . . Under that rule, if a purchaser acquires property with knowledge of the applicable zoning regulations and later attempts to use that property in a manner that is proscribed by the regulations, the purchaser is barred from obtaining a variance." (Citation omitted.) Kalimian v. Zoning Board of Appeals, supra, 65 Conn.App. 632. "Where . . . the hardship is created by the enactment of a zoning ordinance and the owner of the parcel could have sought a variance, a subsequent purchaser has the same right to seek a variance and, if his request is supported in law, to obtain the variance." Kulak v. Zoning Board of Appeals, 184 Conn. 479, 482, 440 A.2d 183 (1981). "This right is not lost merely because the subsequent purchaser takes with the knowledge that the current zoning regulations would prohibit the use . . . Rather, the nonconformity must be attributable to the purchaser or his predecessor in interest in order for the hardship to be considered self-created." (Citation omitted.) Sydoriak v. Zoning Board of Appeals, supra, 90 Conn.App. 660.
At the public hearing, Petrella testified that he bought the parcel of land with the knowledge and understanding that it was residentially zoned:
"MR. BOORMAN: And then you purchased also . . . this piece of property knowing that it was in a residential zone?"
"MR. PETRELLA: Yes." (ROR, Ext. 10, p. 15.)
Petrella's statements in the record demonstrate that he acquired the property with the knowledge that it was residentially zoned and is therefore barred from obtaining a variance by the purchase with knowledge rule. The Supreme Court has previously held that in circumstances similar to those of this case, the property owner is barred from obtaining a variance. It explained that "[w]hen [the applicant] bought the property he voluntarily took a chance that he would be permitted to use it for a purpose expressly prohibited by ordinance. When the board of zoning appeals granted him that permission, it acted without authority and in clear abuse of the powers vested in it." Devaney v. Board of Zoning Appeals, 132 Conn. 537, 544, 45 A.2d 828 (1946). In another case, the Appellate Court has similarly explained that "[the applicant] made a conscious choice to purchase the property knowing that he could not use it for manufacturing purposes. We are bound by precedent in holding that any hardship [the applicant] suffered as a result of being unable to use that property as he had hoped arises not from the application of the ordinance to the property but, instead, from his own conscious decision to purchase the property despite the known prohibition . . . Such voluntary conduct on the part of [the applicant] falls squarely within the purchase with knowledge rule and, therefore, does not constitute ground for a variance." Kalimian v. Zoning Board of Appeals, supra, 65 Conn.App. 633. Accordingly, this court cannot do otherwise than hold that the ZBA's issuance of the variance was unlawful. See Devaney v. Board of Zoning Appeals, supra, 132 Conn. 544.
VI CONCLUSION CT Page 9655
For the foregoing reasons, the commission's appeal is sustained.