Summary
affirming the denial of a variance because a smaller building could have been built on the lot
Summary of this case from Batista v. Town of N. KingstownOpinion
No. CV-07-4008582
October 28, 2010
MEMORANDUM OF DECISION
Statement of the Appeal
This is an appeal by Green Falls Associates, LLC (Green Falls) from a decision of the Zoning Board of Appeals of the Town of Montville (the Board) in denying a request for a variance from the strict application of the zoning regulations. Paul E. Chase filed a verified pleading for intervention in the proceedings before the Zoning Board of Appeals pursuant to Connecticut General Statutes § 22a-19 and has been joined as a defendant in this action.
II.
Jurisdiction
General Statutes § 8-8(b) governs appeals from, the decision of zoning boards of appeals to the Superior Court. "The statutory right of appeal may be taken advantage of only by strict compliance of the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82 (1989).
a.
Timeliness and Service of Process
Pursuant to General Statutes § 8-8(b) "an appeal shall be commenced by service of process in accordance with subsections (f) and (g) and § 52-57(b)(5) within 15 days of the date that notice of the decision was published as required by the General Statutes . . ." Notice of the decision of the Board was published in the New London Day on September 20, 2007. This appeal was commenced by service of process on the required parties on October 1, 2007.
It is found that service of process was properly commenced within the time allowed by statute.
b.
"[P]leading and proof of aggrievement are prerequisites to a 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 and the party alleging aggrievement bears the burden of proving it." Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538-39, 833 A.2d 883 (2003). A plaintiff may prove aggrievement by testimony at the time of trial; Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991); or "by the production of the original documents or certified copies from the record." (Internal quotation marks omitted.) Quarry Knoll II Corp. v. Planning Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).
"Two broad yet distinct categories of aggrievement exists, 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.) Moutinho v. Planning Zoning Commission, supra, 278 Conn. 665. The standard for statutory aggrievement in zoning appeals is set forth in General Statutes § 8-8(a)(1), which provides in relevant part: "In the case of a decision by a Zoning 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."
Green Falls has set forth its claim of aggrievement in paragraph 19 of the complaint. Subparagraph a of paragraph 19 alleges that:
a. At the time of filing of the variance application with the ZBA and throughout the public hearing held by the ZBA, the plaintiff had entered into a contract with Arthur W. DeGezelle to purchase the property. Since the date of the public hearing held before the ZBA on the variance application, the plaintiff, Green Falls Associates, LLC has acquired title to the property and is therefore the owner of the same.
Subparagraphs b through d of paragraph 19 allege, in effect, that Green Falls' specific and legal interest in the property which is the subject of this appeal has been specially and injuriously affected by the Board's decision.
By its allegations of paragraph 19, Green Falls has alleged that it is both statutorily and classically aggrieved and has standing to prosecute this appeal.
The Board disputes Green Falls' claims of aggrievement. The burden of proof is on Green Falls to establish aggrievement and unless this is proven, it has no standing to appeal the action of the Board. Beckish v. Manafort, 175 Conn. 415 (1978).
"It is quite clear that in order to retain standing as an aggrieved person, a party must have and must maintain a specific, personal and legal interest in the subject matter of the appeal throughout the course of the appeal." (Citation omitted.) Primerica v. Planning Zoning Commission, 211 Conn. 85, 94, 558 (1989). Similarly, it is not enough for a party to acquire such an interest only after the appeal is commenced, since General Statutes § 8-8 requires the plaintiff to establish that it was an aggrieved person at the time its appeal was taken. Foran v. Zoning Board of Appeals, 158 Conn. 331, 335-36, 260 (1969).
From the testimony and documents in evidence, it is found that on December 1, 2006, Green Falls and Arthur W. DeGezelle entered into an agreement entitled "Land Purchase and Sale Agreement" whereby Mr. DeGezelle agreed to sell and Green Falls agreed to buy real property in the Town of Montville which is the subject of this appeal. The purchase price was $45,000 and a deposit of $500.00 to be applied to the purchase price was specified. The agreement was on a printed form used by the Eastern Connecticut Association of Realtors with many nonapplicable paragraphs. On page 3 the following paragraph appears:
B. Obtaining at the BUYER'S sole cost and expense, a building permit for the construction of a single family and/or three bedroom structure. In the event that the BUYER is unable to obtain a building permit, the BUYER shall notify the SELLER in writing on/or before 1 April 2007, and this Agreement shall become null and void, and all payments made hereunder shall be refunded and all obligations to each other shall cease.
Handwritten additional provisions on page 4 of the Agreement are difficult to decipher but, indicate that the Agreement is subject to obtaining the building permit for a three-bedroom house at buyer's expense and that the seller would support pursuit of any permits required including, but not limited to, zoning board of appeals.
After the execution of the December 1, 2009 Agreement, the following events occurred in chronological order.
April 1, 2007, the Agreement, by its terms, expired although Green Falls points out that the contract did not provide, time was of the essence.
June 1, 2007, by application dated May 29, 2007, Green Falls applied for the variance listing Arthur W. Degezelle as the owner.
September 5, 2007, the application for variance was denied.
September 12, 2007, there was writing on the December 1, 2006 Agreement, which indicates that portions of the document were amended reducing the purchase price from $45,000 to 20,000, and that the closing date was changed to the "25th of September." However, the deed conveying the property to Green Falls on September 28, 2007, indicates that the consideration paid was $45,000.
September 28, 2007, Green Falls acquired title to the property from Mr. DeGrezelle.
October 1, 2007, this appeal was commenced. Green Falls continues to hold title through the time of trial.
"[I]n order to retain standing as an aggrieved person, a party must have and must maintain a specific, personal and legal interest in the subject matter of the appeal throughout the course of the appeal . . ." Primerica v. Planning Zoning Commission, supra, 211 Conn. 85.
Since Green Falls did not own the property at the time the application was filed, or at the time of the decision, it cannot be found to be statutorily aggrieved. The issue us whether or not it had sufficient interest in the property to establish classical aggrievement.
A contract purchaser of real property may be found to be an aggrieved party with standing to prosecute a zoning appeal which affects the contract property. Avalon Bay Communities, Inc. v. Planning Zoning Commission, 26 Conn. L. Rptr. No. 6, 203 (March 6, 2000).
In their argument that Green Falls cannot establish aggrievement, the Board cites JZ, Inc., Dunkin Donuts v. Planning Zoning Commission, 119 Conn.App. 243 (2010), in which the plaintiff applied for zoning approval after the agreement had expired under its terms. This is similar to the situation here where the application was filed well after the performance date of April 1, 2007. As in the Agreement now before the court, the contract in the Dunkin Donuts case, did not state that time was of the essence. Nevertheless, the Appellate Court determined that the contract had expired and that plaintiff was not aggrieved. The compelling reason for the court's decision appears to have been a provision of the contract that the Agreement would not remain in effect for more than one year. There is no such limitation in the contract between Green Falls and DeGrezelle.
A case with more direct application to the case at bar is Bethlehem Christian Fellowship, Inc. v. Planning Zoning Commission, 58 Conn.App. 441 (2000).
In that case, as in the present case, the appellate court dealt with a contract to purchase land as opposed to an option contract. The court pointed out that in an option contract, once the time limit for acceptance has expired, the authority to accept the offer no longer exists and the offeree has no legally protected interest in the property. Id., 445. "[A] buyer and seller in a contract to purchase land undertake mutual promises for the purchase and sale of the property. Those obligations are not necessarily extinguished after the specified closing date passes. The law is that a day fixed in a contract for closing title, without more, is merely formal; but if it is stipulated that time is of the essence, or the circumstances are persuasive that that is the case, prompt performance is essential, and it is also the law that where the time fixed is regarded as a formality only, and the period has gone by, or where time is of the essence and there is a waiver, that time may nevertheless be made of the essence of formal demand that the title be closed by a given day; but the time must be reasonable . . . Of course, [t]he transaction does not of itself make time of the essence of the contract . . ." (Citations omitted; internal quotation marks omitted.) Id., 445-46.
"Where a time for performance is stated in an agreement, a parties' tender performance within a reasonable time thereafter, may be considered substantial performance unless the parties intended that the time for performance be of the essence . . . where the agreement does not specifically state that time is of the essence, it is presumed not to be unless the parties have expressed a contrary intent." (Citations omitted.) Mihalyak v. Mihalyak, 11 Conn.App. 610, 616 (1987).
Here the parties expressed no such contrary intent. The evidence indicates that Green Falls and Mr. DeGrezelle intended that the contract to purchase remain in effect. After the expiration date, Mr. DeGrezelle authorized Green Falls to proceed with the variance request. After the expiration date, Green Falls did so proceed and presented evidence at two public hearings. In connection with the variance request, Green Falls expended funds for maps and reports with the obvious intent of purchasing the property under the contract. The parties completed the contract with the conveyance of title to Green Falls on September 28, 2007.
It must be found that Green Falls has successfully demonstrated a specific personal and legal interest in the subject property as distinguished from a general interest such as would be the concern of all members of the community and that this interest has been specially and injuriously affected by the denial of the variance. It is, therefore, found that Green Falls has sustained its burden of proof and established that it is aggrieved and has standing to prosecute this appeal.
III
Scope of Review
In considering the issues raised in this appeal, the scope of judicial review is limited. Horn v. Zoning Board of Appeals, 18 Conn.App. 674, 676 (1989). The authority of the court is limited by § 8-8 to a review of the proceedings before the Board. The function of the court in such a review is to determine whether the Board acted fairly or on valid reasons with the proper motives. Willard v. Zoning Board of Appeals, 152 Conn. 247, 248-49 (1964). The court is limited to determining whether the record reasonably supports the decisions resulting from the Board's action. Burnham v. Planning and Zoning Commission, 189 Conn. 261, 265 (1983). The court cannot substitute its discretion for the liberal discretion confirmed by the legislature on the Board. The court is limited to granting relief only when it can be shown that the Board acted arbitrarily or illegally and consequently has abused its authority. Gordon v. Zoning Board, 145 Conn. 597, 604 (1958). The burden rests with the plaintiffs to prove the impropriety of the Board's actions. Burnham, supra, 189 Conn. 266.
It is not the function of the court to rehear the matter. The court is limited to determining whether or not the Board's action can be supported under the law.
The plaintiffs have the burden of proving that the defendant Board acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1998).
Plaintiffs have appealed from the action of the Board in denying Green Falls' application for a variance. A variance constitutes permission for a party to use their property in a manner otherwise prohibited by the zoning regulations. For this reason, the granting of a variance is generally reserved for unusual or exceptional circumstances. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995).
The Board derives its authority to vary the application of the zoning regulations from the provisions of General Statutes §§ 8-6(a)(3) and 22.2 of the Montville Zoning Regulations.
Variances are, in a sense, the "antitheses of zoning." Zoning is regulation by the municipality of the use of land within the community, and the buildings and structures which may be located thereon, in accordance with a general plan. The General Statutes authorize such regulation of land and the use of buildings. Such regulations, however, must be applied uniformly throughout each district. A variance disrupts the conformity and constitutes permission to act in a manner that is otherwise prohibited by the zoning regulations. Simko v. Ervin, 234 Conn. 498, 505-06 (1995).
The two basic conditions which must be met for the granting of a variance are (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. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368 (1988).
An applicant for a variance must show that, because of some peculiar characteristic of its property, the strict application of the zoning regulation produces an unusual hardship as opposed to the general import which the regulations has on other properties in the zone. Dolan v. Zoning Board of Appeals, 156 Conn. 426, 430 (1968).
When a disadvantageous situation arises from a voluntary act on the part of the applicant, it cannot be considered a hardship and the board does not have authority to grant a variance. Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39 (1982). The board is under no duty to extricate an applicant from a self-created hardship. Pollard v. Zoning Board of Appeals, supra, 44. Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship. Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662 (1965).
In this case, the Board failed to state upon the record the reasons for its decision. Where the Board fails to state the reasons for its action on the record as required by statute, the court must search the record to attempt to find some basis for the action taken. Grillo v. Zoning Board of Appeals, supra, CT Page 20958 206 Conn. 369.
IV.
Factual Background
From the record, and as previously noted, on December 1, 2006, Green Falls and DeGrezelle entered into a purchase and sale agreement for real property in the Town of Montville. The property had been acquired by Mr. DeGrezelle and his wife on March 21, 1961.
On June 1, 2007, Green Falls filed with the Board an application for a variance from the strict application of: "Section 5.6.2 Side Yard Setback and Section 5.6.3 Rear Yard Setback." Mr. DeGrezelle was listed as the owner of the property on the application.
The property is located in the WRP-160 Zoning District which requires 160,000 square feet of lot area for a residential building. The lot in question was 13,683 square feet in area. Zoning was first enacted in Montville on December 6, 1996.
The Board held a public hearing on Green Falls' application on July 11, 2007, with five members present. The chairman of the Board recused himself from the proceedings stating that he was a close neighbor and had considered purchasing the property at some time in the past. An alternate member was present.
Attorney William McCoy, representing Green Falls, spoke in favor of the application. An abutting owner, Michael Levine, spoke against the application and presented a letter from an engineer. Attorney Jon Chase, representing another abutter, spoke against granting the variance and filed a verified intervention under the provisions of Connecticut General Statutes § 22a-19. The abutter himself also spoke against the granting of the variance.
The meeting was continued and reconvened on September 7, 2007. At that time, the five regular members of the Board were present, but the alternate was not present. Again, the chairman recused himself. A quorum being present, the hearing proceeded. The zoning enforcement officer, Thomas Sanders, responded to questions raised by the Board. Attorney Harry Heller, representing Green Falls, presented a memorandum of law and the testimony of soil scientist, Ian Cole, civil engineer, Pat Lafayette and Peter Gardner, a surveyor. Attorney Chase requested the Board to continue the hearing to allow him to respond to Attorney Heller's presentation. Attorney Heller opposed the continuance. The Board denied the request to continue the hearing. Attorney Chase then proceeded with his presentation.
At the conclusion of the evidence, the public hearing was closed. After discussion, a motion was made and seconded to approve the application for a variance stating the reasons for the decision. A roll call vote was then held with members Adams, Fawcett and MacFadyn voting in favor of the motion. Member Lakowsky abstained.
The motion not having four votes in favor, it was decided that the motion did not pass in effect denying the variance application.
Notice of the decision was published on September 20, 2007. This appeal followed. Additional facts will be stated as required.
V.
Analysis
All parties have filed briefs setting forth their positions on the issues and claims of law. Any issue not properly briefed will be considered abandoned. Cybulski v. Planning Zoning Commission, 43 Conn.App. 105, 9 n. 3 (1996).
The following issues have been presented and must be considered by the court.
1. Under the law, was the vote of the Board with three in favor of granting the variance and one abstention an approval or a denial?
2. If the vote constituted a denial of the variance application, has Green Falls satisfied the legal requirements for the granting of a variance?
3. Is there substantial evidence in the record that the granting of the variance would not be reasonably likely to have, the effect of unreasonably polluting, impairing or destroying the public trust in the air, water and other natural resources of the state?
1.
Green Falls claims that the vote of the Board with three members in favor of granting the variance constituted an approval of the application. In its brief, Green Falls asserts that Board member Lakowsky in abstaining from the vote on the variance application "violated the principles of natural justice, fundamental fairness and administrative due process by creating the impossibility of approval of plaintiff's variance application." Strong words indeed, but what was the effect of Lakowsky's abstention.
In support of its position, Green Falls relies principally on the case of Somers v. City of Bridgeport, 60 Conn. 521 (1891), in which, under the particular circumstances of that case, it was held that the affirmative vote of two members of the Board of Police Commissioners with two abstentions constituted a tie allowing the mayor to vote an approval. U-Haul of Connecticut v. Planning Zoning Commission, ( 12 Conn. L. Rptr. 367) 1994 is also cited in support of its claim. Green Falls attempts also to distinguish its claim from contrary Superior Court decisions and R. Fuller, 9 Connecticut Series: Land Use Law and Practice, 3rd Ed. 2007 Sec. 21.3 p. 600 which states "since four affirmative votes are required by Sec. 8-7 to grant a variance, abstentions are not counted."
The Somers case relied upon by Green Falls is distinguishable by the case at bar by its facts. In Somers, if the abstaining members had voted against the resolution, a tie would have resulted allowing the mayor to vote and break the tie. By abstaining, the two members of the Board sought to obstruct the action of the Board and prevent the appointment of police officers. The Supreme Court stated that the refusal to vote was a neglect of duty and that "sound policy requires that the public interests should not suffer by their inaction." Id., 526.
Connecticut General Statutes § 8-7 governs votes by the Zoning Board of Appeals on variances. This statute provides in pertinent part:
The concurring vote of four members of the zoning board of appeals shall be necessary . . . to vary the application of the zoning law . . .
The wording of § 8-7 is plain and unambiguous. The dictionary definition of "concur" is "to agree; to consent." Black's Law Dictionary (9th Ed. 2009.) The word "vote" is defined as "the expression of one's preference or opinion in a meeting or election by ballot, show of hands, or other type of communication . . ." Id. The definition of the word "abstain" is "to voluntarily refrain from doing something such as voting in a deliberative assembly." Considering the requirements of § 8-7 that the "concurring vote of four members" is required to grant a variance, the definition of "vote" indicates that an expression of preferences required from each member. Thus an abstention, which is to refrain from voting cannot be counted as a concurring vote. Unlike the decision in Somers, by which the abstention could have resulted in no action, the abstention here, leaving only three concurring affirmative votes, resulted in a decision. That decision was the denial of the variance.
See also Huck v. Inland Wetlands and Watercourses Agency, 203 Conn. 525, in which the vote of the agency was three in favor of the application, three opposed and one abstention. This was considered a denial of the application. Id., 526.
2.
Green Falls claims that it has satisfied the legal requirements for the granting of a variance. The two basic conditions which must be met for the granting of a variance are (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. Grillo v. Zoning Board of Appeals, supra, 206 Conn. 368. The hardship which justifies the granting of a variance must be one that originates in the zoning ordinance itself, and arises directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved. Archambeault v. Wadlow, 25 Conn.App. 375, 381 (1991).
The lot for which the variance was sought was acquired by Mr. DeGrezelle in its present configuration on March 21, 1961. This was prior to the enactment of Montville zoning regulations on December 6, 1996. The lot is 13,683 square feet in area and has 100 square feet of frontage on Cherry Lane and narrows to a rear lot line of 30 feet. It is in the WRP-160 zoning district which requires lots to be 160,000 square feet in area. WRP-160 is a zoning district which permits single-family residences.
Since it existed prior to the enactment of zoning, the property is a valid pre-existing nonconforming lot as defined by § 4.13.5 of the Zoning Regulations. It is subject to the requirements of § 4.13.6 which provides that lots for single-family detached residence which meet the definition of nonconforming lot under § 4.13.5 which have a total area or frontage less than the minimum required in the zoning district may be so used "provided such lots shall conform to the . . . applicable setback requirements of the district . . ."
Green Falls desires to erect a 38x26 foot Cape Cod style house on the lot. To facilitate this, Green Falls has requested a variance from the side yard and rear set back requirements required under the zoning regulations.
The lot is not served by public water or a sewer system. For a single-family dwelling to be erected on the lot, an on-site well and septic system would be required. The property slopes upward from the front of the lot. At the public hearing, Green Falls' engineer submitted evidence that due to the gradient and the minimum width required for a subsurface sewage disposal system, it would be necessary to locate the system in the front yard. The location of this septic system and required separation distance from the footing drains and the well require that the house be located 105 feet from the front line and, therefore, in the narrowest portion of the lot.
The location of the house in this narrow section of the lot and the required setback line from the front of the property prevent compliance with the side yard and rear set back requirements of the zoning regulations.
The difficulty with Green Falls' position, however, is that the placement of the house on the lot is dictated, not by the zoning regulations, but by the placement of the sewage disposal system. "The hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance and arises directly out of the application of the ordinance to the circumstances or conditions beyond the control of the party involved." (Citations omitted.) Archambeault v. Wadlow, 25 Conn.App. 375, 381 (1991).
Variances are in a sense the antitheses of zoning. A variance disrupts the conformity of the general plan that constitutes permission to act in a manner that is otherwise prohibited by the zoning regulations. Simko v. Ervin, supra, 234 Conn. 505. Only in unusual or exceptional circumstances may a variance be granted. Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206. Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship. Krejpcio v. Zoning Board of Appeals, supra, 152 Conn. 662.
Here Green Falls claimed hardship arising not only out of the placement of the sewage disposal system, but because of the size of the house which it desired to place on the lot. The variance of the side yard and setback requirements had been requested so that a 38x26 foot Cape Cod style house could be constructed on the lot. There is no doubt but that a smaller building could be placed on the lot which might comply with the regulations or at least reduce the amount of nonconformity.
Green Falls has failed to establish that because of some particular characteristic of the property or the strict application of the zoning regulations that it has suffered the unusual hardship which would support the granting of a variance. It is also the position of Green Falls that it is entitled to a variance even if the traditional requirements for a variance have not been met because the diminution in value imposed by the application of the zoning ordinance is so significant as to greatly or practically destroy the value of the lot. In this claim, Green Falls relies principally on language in Grillo v. Zoning Board of Appeals, supra, 369 where the court stated "financial considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulation 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 purpose of zoning that, as to a particular premises, the regulations have a confiscatory or arbitrary effect." Plaintiff also cites Giarrantano v. Zoning Board of Appeals of the City of Norwich, 60 Conn.App. 446 (2000).
It cannot be found from the record that because of the application of the zoning regulations the property in question has been greatly reduced in value or its value practically destroyed. The record does not contain any independent appraisal to establish the value of the property. The tax assessor's card in evidence indicates an appraised value of $6,750. The intervener, Jon Chase, submitted an offer to purchase for $1,500. Green Falls paid $45,000 for the property. Although Green Falls negotiated the purchase price with Mr. DeGrezelle, there is nothing else to establish that the purchase price was the fair market value of the lot. Of more importance, it cannot be found that the value of the lot has been practically destroyed or greatly reduced. A smaller house could be erected on the lot and perhaps a different septic system could be installed.
3.
The above decision with respect to the denial of the variance is dispositive of this appeal, therefore, it will be unnecessary to consider the third issue.
VI.
Conclusion
From an examination of the record, it must be concluded that the vote of the Board with three members voting in the affirmative and one member abstaining resulted in a denial of Green Falls' variance application.
As above found, Green Falls has not proven the unusual hardship required for the granting of a variance. It cannot be found that the application of the zoning regulations has greatly reduced to destroy the value of Green Falls' property as claimed.
Accordingly, the appeal is dismissed.