Opinion
LNDCV166065011S
06-02-2017
Milton Gregory Grew v. Zoning Board of Appeals of the Town of East Hartford et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Marshall K. Berger, J.
I
The plaintiff, Milton Gregory Grew, the zoning enforcement officer of East Hartford, appeals the decision of the defendant, the zoning board of East Hartford (board), granting a variance for property at 42 John Street in East Hartford. Owned by the defendants, Sophie Dziadosz and Marian Dziadosz (defendants), the property is a 0.11-acre vacant lot located in a B-3 zone, which does not allow residential uses. (Return of Record [ROR], Items 1-3.) On or around November 10, 2015, the codefendant, Anna Dziadosz, applied for a variance so that the defendants could build a two-family house on the lot. (ROR, Item 1.) The board held a public hearing on December 3, 2015, and granted the variance the same night. (ROR, Item 8.) Notice of the decision was published on December 10, 2015, in the Journal Inquirer . (ROR, Item 10.)
This appeal was commenced on December 23, 2015. The plaintiff asserts that the board's decision was illegal, arbitrary and an abuse of discretion because the proposed dwelling would substantially affect the town's comprehensive development plan (POCD) and because no hardship was established. On June 13, 2016, the town filed the return of record, which was supplemented on August 16, 2016. The plaintiff filed his brief on August 10, 2016, the board filed its brief on December 2, 2016, and the defendants filed their brief on December 5, 2016. The court heard the appeal on February 21, 2017.
II
General Statutes § 8-8(b), in relevant part, provides 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 . . ." General Statutes § 8-8(a)(1) defines " aggrieved person" as " 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 present case, it is stipulated that the plaintiff is the zoning enforcement officer of East Hartford and has the authority to enforce the decisions of the board. Therefore, the court finds that he is aggrieved. See General Statutes § 8-8(a)(1) and (b); see also Barton v. Zoning Board of Appeals, 87 Conn.App. 533, 536, 866 A.2d 608 (2005) (" [i]n her official capacity as zoning enforcement officer, the plaintiff falls within one of the categories of aggrieved persons listed in § 8-8(a)(1) and has standing to appeal from the board's approval of the variance").
III
General Statutes § 8-6 authorizes a zoning board of appeals to " 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."
" [Z]oning is concerned with the use of property and not primarily with its ownership . . . The object of zoning is to adopt measures to regulate property uses in conformance with a comprehensive plan in a manner to advance the public welfare . . . This process embodies a clash between the common-law right of man to use his property as he pleases, so long as he does not create a nuisance, and the exercise of the police power to regulate that use in the interest of the public health, safety, morals and general welfare . . . The variance power in a general sense is the antithesis of zoning, and variance law is best understood as a reflection of the unresolved tension between attempting to maintain a comprehensive plan of uniformly regulated districts, and the need to provide relief from the general rules in individual circumstances . . . For that reason, variances should be granted sparingly and narrowly tailored to alleviate the hardship complained of." (Citations omitted; internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, 155 Conn.App. 657, 680-81, 111 A.3d 473 (2015).
" A zoning board of appeals is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal . . . A reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the 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 . . . The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given . . .
" A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town . . . A zoning board of appeals is statutorily authorized to grant a variance if two requirements are met: (1) the variance will not affect substantially the comprehensive zoning plan; and (2) the application of the regulation causes unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan." (Citation omitted; internal quotation marks omitted.) Caruso v. Zoning Board of Appeals, 320 Conn. 315, 321, 130 A.3d 241 (2016). " The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Internal quotation marks omitted.) E& F Associates, LLC v. Zoning Board of Appeals, 320 Conn. 9, 15, 127 A.3d 986 (2015).
IV
" 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 board of appeals does not formally state the reasons for its decision . . . the [reviewing] court must search the record for a basis for the board's decision." (Internal quotation marks omitted.) Id., 16-17. The minutes of the board's meeting on December 3, 2015, reflect that the variance was approved by a vote of four to one and gave the reason that " [r]elief can be granted without impairment to the integrity of the zoning regulations." (ROR, Item 8, p. ZV-14.) As this reason is overly broad, the court must search the record for the basis of the board's decision.
Prior to the board's vote, the members' comments were stated as the following:
Timothy Siggia read the memo from Mr. Milton Greg Grew, Department Supervisor of Inspections and Permits. Mr. Grew's arguments were well taken but he felt the residential dwelling will not impair the spirit of the area. Eddie Camejo stated that this variance would change a commercial zone to a residential zone. Richard DeCrescenzo stated the lot would not support a business and was previously residential. There are two residences on either side of the lot, and feels a business would have to wedge itself between the two residences. Gary Zalucki stated that the lot is legally non-conforming and a business could be placed there. Using it as a 2-family residence will require 4 or more parking spaces. The lot is a very small piece of property. Chairman Torpey stated he is opposed to spot-zoning. Zoning laws do not fit in various areas of the town. B-3 Zones can put residential properties on one side of the street and business on the opposite side of the street. He agreed it is a difficult situation. Timothy Siggia understood the argument of spot-zoning, but what type of business could be placed on a small lot with 2 residences on either side. If none, then the town has another empty lot.(ROR, Item 8, p. ZV-14.)It is noted, however, that " individual reasons given by certain members of the [zoning agency do] not amount to a formal, collective, official statement of the [agency] . . . and are not available to show the reason[s] for, or the ground[s] of, the [zoning agency's] decision . . . [T]he remarks of a board member in moving to grant a variance do not constitute a collective statement of the basis for the board's action . . . [I]t is not appropriate for a reviewing court to attempt to glean such a formal, collective statement from the minutes of the discussion by . . . members prior to the [ zoning agency's ] vote ." (Citations omitted; emphasis in original; internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 673.
A
The first requirement for the granting of a variance is that it must be shown not to affect substantially the comprehensive zoning plan. Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 678-79. The plaintiff argues that the board's decision substantially impairs the comprehensive zoning plan, especially the POCD, because the board's decision to allow a residential use in a commercial zone runs counter to the town's stated goal to increase commercial, office and retail uses. While the board does not address the POCD argument in its brief, the defendants note that some of the " overarching goals" the POCD are to " [p]reserve the Town's sound housing stock and stable neighborhoods, " " [r]egulate infill development in keeping with the character and scale of surrounding neighborhoods and development, " " [p]romote economic development to attract and retain business, " " [p]romote future development efforts which provide new housing, recreation, business and employment opportunities." (ROR, Item 12, p. ZV-74.) Additionally, the POCD states that the land use and zoning goals are to " [p]romote balanced use of land to enhance fiscal benefit and protect quality of life" and to " [e]nsure that zoning regulations support the desired use of land and appropriately control development while allowing for creativity and flexibility to achieve planning objectives." (ROR, Item 12, p. ZV-94.)
" The comprehensive plan is found in the zoning regulations themselves." Pike v. Zoning Board of Appeals, 31 Conn.App. 270, 277, 624 A.2d 909 (1993). The POCD has long been held to be " merely advisory so far as zoning is concerned." First Hartford Realty Corporation v. Plan & Zoning Commission, 165 Conn. 533, 542, 338 A.2d 490 (1973); see also Levinsky v. Zoning Commission, 144 Conn. 117, 123, 127 A.2d 822 (1956) (" Under the general law it does not control the zoning commission on its enactment of zoning regulations. When the zoning commission acts under the general law, the master plan is merely advisory"). Thus, the POCD is not controlling. General Statutes § 8-2(a), in relevant part, provides that " in adopting [zoning] regulations the commission shall consider the plan of conservation and development prepared under section 8-23 . . ." General Statutes § 8-23(e)(1), in relevant part, provides: " Such plan of conservation and development shall (A) be a statement of policies, goals and standards for the physical and economic development of the municipality, (B) provide for a system of principal thoroughfares, parkways, bridges, streets, sidewalks, multipurpose trails and other public ways as appropriate, (C) be designed to promote, with the greatest efficiency and economy, the coordinated development of the municipality and the general welfare and prosperity of its people and identify areas where it is feasible and prudent (i) to have compact, transit accessible, pedestrian-oriented mixed use development patterns and land reuse, and (ii) to promote such development patterns and land reuse, (D) recommend the most desirable use of land within the municipality for residential, recreational, commercial, industrial, conservation, agricultural and other purposes and include a map showing such proposed land uses, (E) recommend the most desirable density of population in the several parts of the municipality, (F) note any inconsistencies with the following growth management principles: (i) Redevelopment and revitalization of commercial centers and areas of mixed land uses with existing or planned physical infrastructure; (ii) expansion of housing opportunities and design choices to accommodate a variety of household types and needs . . ."
The board argues that in stating that " [r]elief can be granted without impairment to the integrity of the zoning regulations, " it implicitly found that the variance will not substantially affect the comprehensive zoning plan. The record contains evidence that the subject .11-acre lot is bounded on both sides by two-family homes and is across the street from other homes in a residentially zoned area. (ROR, Items 1-4; Items 7-8.) Additionally, the subject area was once zoned as residential and the lot is simply too small to meet parking standards for any currently allowed business use. (ROR, Item 1; Item 8.)
" [A variance] should not be used to accomplish what is in effect a substantial change in the uses permitted in a residence zone. That is a matter for the consideration of the zoning commission . . . The power to repeal, modify or amend a zoning ordinance rests in the municipal body which had the power to adopt the ordinance, and not in the zoning board of appeals." (Citation omitted; internal quotation marks omitted.) Kaeser v. Zoning Board of Appeals, 218 Conn. 438, 446, 589 A.2d 1229 (1991). " 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).
In adopting the new zoning regime, the zoning commission determined that it sought only commercial uses in the specific area. (ROR, Item 3, p. ZV-4.) The abutting lots are now nonconforming and while their residential use can continue, they can only be modified consistent with the new B-3 uses. (ROR, Item 2, p. ZV-3; Item 3, p. ZV-4.) The subject lot has no nonconforming use status as it is vacant.
" [Z]oning regulations . . . seek the elimination of nonconforming uses, not their creation or enlargement . . . [T]he accepted policy of zoning . . . is to prevent the extension of nonconforming uses . . . and that it is the indisputable goal of zoning to reduce nonconforming to conforming uses with all the speed justice will tolerate." (Internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 683. " [N]onconforming uses should be abolished or reduced to conformity as quickly as the fair interest of the parties will permit--[i]n no case should they be allowed to increase ." (Emphasis in original; internal quotation marks omitted.) Id., 687. " The variance power in a general sense is the antithesis of zoning, and variance law is best understood as a reflection of the unresolved tension between attempting to maintain a comprehensive plan of uniformly regulated districts, and the need to provide relief from the general rules in individual circumstances." (Internal quotation marks omitted.) Id., 681.
Notwithstanding the current zoning scheme and the town's preference for commercial development, the board had liberal discretion to find that the variance will not affect substantially the comprehensive zoning plan. See Caruso v. Zoning Board of Appeals, supra, 320 Conn. 321. Given the abutting, nonconforming residences, the residentially zoned district across the street and the small size of the lot, the court cannot hold that the board's decision was unreasonable.
Although not provided in the regulations by the board, the plaintiff and the defendants argue in their briefs that § 808.2 of the Town of East Hartford Zoning Regulations provides: " The Board may grant variances from the strict application of these regulations when, by reason of exceptional narrowness, shallowness, shape or substandard size of specific parcels of property, the strict application of these regulations or amendments thereto would result in unusual difficulty or unreasonable hardship upon the owner of said property, provided that such relief or variance can be granted without substantial impairment of the intent, purpose, and integrity of these regulations and of the Plan of Development for the Town of East Hartford. Before granting a variance on the basis of unusual difficulty or unreasonable hardship, there must be a finding by the Zoning Board of Appeals that all of the following conditions exist:
a. That if the owner complied with the provisions of these regulations, he/she would not be able to make any reasonable use of the property; b. That the difficulties or hardship are peculiar to the property in question, in contrast with those of other properties in the same district; c. That the hardship was not the result of the applicant's own action; and. That the hardship is not merely financial or pecuniary.
B
The plaintiff also argues that the board did not find that the variance was necessary to prevent an unusual hardship. In a letter to the board, the plaintiff indicated that no legal hardship justified the granting of the variance to build a two-family residence and that the defendants could seek a variance if the lot was too small to use for the allowed uses. (ROR, Item 5, p. ZV-6.) The twenty-six permitted uses in § 403.1.a of the Town of East Hartford Zoning Regulations (regulations) include: antique and second hand stores, boat marinas, bottling works, car washes, nonprofit clubs, bakeries, confectionary plants, contractors' storage, dairy plants, greenhouses, manufacturing operations, automobile and truck sales, newspaper operations, offices and financial institutions, printing shops, outdoor rental facilities, research laboratories, restaurants, service establishments, skilled artisan shops, retail stores, telecommunication sites, truck terminals and wholesale and public storage. (ROR, Item 11, pp. ZV-47-ZV-49.) The record indicates that the defendants' vacant lot is .11 acre, or approximately 4, 800 square feet, with fifty feet of frontage, a ninety-eight-foot depth, and fifty-foot width. (ROR, Item 2, p. ZV-3; Item 4, p. ZV-5.) It does not meet the current B-3 zone requirements set forth in § 403.3 which requires at least 10, 000 square feet with sixty feet of frontage and a one hundred-foot width.
Section 403.3 provides: Each lot shall have an area of at least ten thousand (10, 000) square feet and a width of at least one hundred (100) feet. Furthermore, each lot shall have a minimum of sixty (60) feet of street frontage on a State of Connecticut or Town of East Hartford duly accepted street or approved subdivision street . The provisions of these regulations do not allow for lots without the required street frontage. (ROR, Item 11, p. ZV-58.)
In reviewing the list of allowed uses and noting the lot size and that it is currently vacant, common sense indicates there are perhaps few uses--such as an antiques shop, office or second hand store, if even those--for which the property could be lawfully used, but not without a variance. The record suggests that the board also implicitly found that such a limited use within the regulations creates a hardship for the defendants.
The court notes that the record does not contain specific financial evidence concerning the value of the property.
" Unusual hardship may be shown by demonstrating that the zoning regulation has deprived the property of all reasonable use and value, thereby practically confiscating the property. This contention sits at the intersection of two related, yet distinct, areas of law: land use regulation and constitutional takings jurisprudence . . . In Connecticut, a taking occurs when a landowner is prevented from making any beneficial use of its land as if the government had, in fact, confiscated it . . . Accordingly, a zoning regulation permanently restricting the enjoyment of property to such an extent that it cannot be utilized for any reasonable purpose goes beyond valid regulation and constitutes a taking without due process . . . The same analysis is used in the variance context because, when the regulation practically destroys or greatly decreases [the property's] value for any permitted use to which it can reasonably be put . . . the loss of value alone may rise to the level of a hardship." (Citations omitted; internal quotation marks omitted.) Caruso v. Zoning Board of Appeals, supra, 320 Conn. 322-23. The hardship must apply specifically to the subject parcel and not to other properties in the area. Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 719-20.
In the present case, the two abutting properties could abandon their nonconforming, residential use for a permitted use in a B-3 zone. The subject lot is, however, vacant and undersized with no nonconforming use to abandon. The limited permitted uses in the B-3 zone--arguably all requiring parking--and the bulk requirements have created this need for a variance.
" It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 266, 765 A.2d 505 (2001). " [T]he nature and functions of a board of appeals or adjustment, which is created to keep the law 'running on an even keel' by varying, within prescribed limits and consonant with the exercise of a legal discretion, the strict letter of the zoning law, in cases of claims having real merit which can be granted consistently with the spirit and purposes of the general plan. It has preserved the constitutionality and popularity of the zoning ordinance, and, more than that, it has made the law capable of being enforced . . . It may grant relief subject to conditions, and thereby obtain results not attainable in any other way . . . We must remember that the machinery of government would not work if it were not allowed a little play in its joints . . . Nowhere is this more applicable than to zoning ordinances; the saving elasticity is mainly afforded through boards of adjustment. Much depends upon the skill, sound judgment, and probity of the members. It is essential to their functions that they be invested with liberal discretion. They are accorded the benefit of a presumption that they act fairly, with proper motives, and upon valid reasons, and not arbitrarily." (Citations omitted; internal quotation marks omitted.) St. Patrick's Church Corporation v. Daniels, 113 Conn. 132, 139, 154 A. 343 (1931).
" [I]n Pike v. Zoning Board of Appeals, 31 Conn.App. 270, 275-76, 624 A.2d 909 (1993), the Appellate Court held that a lot had been practically confiscated because the property could only reasonably be used for two of the fourteen permitted uses in the zone because of soil problems, and a variance was required in order to use the property in those ways. The Appellate Court noted that there were no reasonable alternative uses for the property and that the value of the lot would be greatly decreased, if not totally destroyed without a variance." (Internal quotation marks omitted.) Caruso v. Zoning Board of Appeals, supra, 320 Conn. 324. " A practical confiscation occurs when an ordinance so limits the use of land that it cannot be utilized for any permitted purpose without a variance." Archambault v. Wadlow, 25 Conn.App. 375, 382, 594 A.2d 1015 (1991). Such is the case here. Even without specific financial evidence, the board could have reasonably concluded that failure to grant the variance would have practically destroyed or greatly decreased the value of the property. See Culinary Institute of America, Inc. v. Board of Zoning Appeals, 143 Conn. 257, 261-62, 121 A.2d 637 (1956) (" [w]hether the facts in any given case establish this exceptional set of circumstances presents a problem for the board, in the first instance, to determine"). Thus, the second requirement that " the application of the regulation causes unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan"; Caruso v. Zoning Board of Appeals, supra, 320 Conn. 321; has been satisfied.
Accordingly, the appeal is dismissed.