JACOBSON v. WASHINGTON ZBA

Full title: JOANNE JACOBSON v. ZONING BOARD OF APPEALS OF THE TOWN OF WASHINGTON

Court: Connecticut Superior Court Judicial District of Litchfield at Litchfield

Date published: May 21, 2010

2010 Ct. Sup. 11072 (Conn. Super. Ct. 2010)

Opinion

No. CV08-4007857S

May 21, 2010

MEMORANDUM OF DECISION

GALLAGHER, J.

This is an appeal from the decision of the Zoning Board of Appeals of the Town of Washington to grant a variance to the defendant property owner, Zemma White, allowing her to construct a garage on her property. The plaintiff, Joanne Jacobson, is an abutting owner.

Facts

In 1988, the Whites were granted a variance to construct a garage on their property conditioned upon their neighbor's approval. The Board did not expressly comment on whether they found a hardship. The neighbor (plaintiff's predecessor-in-title) wrote a letter indicating no opposition, and the variance was granted. The Whites did not build the garage at that time.

In 2006, Zemma White again applied for a variance in order to build a garage. Jacobson voiced her opposition at the public hearing. The Board granted the application by a unanimous vote. Jacobson appealed.

The court remanded the case to the ZBA with direction to consider the 2006 application without regard to the action of the Board in granting a variance in 1988 and to consider the issue of self-created hardship. Based on the review of the record, the court found that, although the Board was unclear as to whether it based its decision of the 1988 decision or on a separate finding of hardship, the record did in fact contain evidence that would support a finding of hardship without regard to the 1988 decision. The court indicated also that facts should be before the ZBA to consider whether the hardship was self-created.

The notice of the public hearing was published in Voices Weekender, a local newspaper on Sunday, October 12, 2008 and again on October 19, 2008. The notice informed the general public that a hearing would be held in the Land Use Room at 2 Bryan Plaza, Washington, Connecticut, to consider White's application for variances regarding lot coverage and increasing nonconformity of a nonconforming structure to build a garage granted by variance on September 29, 1988.

The attorneys for Jacobson and White argued their clients' respective positions at the public hearing on October 30, 2008. Jacobson argued that there was no hardship that was not self-created by virtue of the prior owner's conversion of a then-existing garage. ZBA member Brad Sedito commented that, at the 2006 meeting, the evidence before the ZBA was that the Whites' lot was one of the smallest lots in the area. He said that the lot was unique because of the small size. Jacobson's argument was that the hardship was the lack of a garage and, therefore, the hardship was self-created.

Following the hearing, the members discussed the points made by Jacobson's attorney regarding the issue of hardship and whether the hardship was self-created by reason of the conversion of a garage into studio space many years before the Whites purchased the property. Ms. Roberts recalled that the hardship issue was discussed at length in 2006. She was comfortable with the decision to grant a variance. She also stated that she had a difficult time accepting Jacobson's attorney's argument that the hardship was self-created. It was agreed by the members that the tininess of the lot which was in the heart of Washington's historic district gave rise to the hardship. Mr. Catlin mentioned that the use of that part of the house that had once been a garage had evolved over time into living space. The members agreed that it is not unreasonable to seek a variance for a garage under these circumstances. Mr. Sedito commented that a house by contemporary standards needs a garage and that the garage which had been converted would not be adequate as a garage to house motor vehicles built today. Mr. Caitlin pointed out that one of the most important functions of the ZBA is to make a town functional and usable in this day and age, and he stated his belief that the zoning regulations needed to be varied in White's case. They agreed that, in 2006, they had found the hardship without regard to the 1988 variance. That hardship was based on the special characteristics of the lot. They voted to affirm the 2006 decision, finding that there was a hardship that was not self-created. The ZBA then granted the application by a 5-0 vote. Jacobson appeals.

Standard of Review

The scope of judicial review of a decision of an administrative commission is limited. The standard to be applied by a Superior Court in reviewing the actions of a zoning board is whether the board's action was arbitrary, illegal or an abuse of discretion. Bloom v. Zoning Board of Appeals, 233 Conn. 198 (1995). The burden of proof that a zoning board of appeals acted improperly is on the party seeking to overturn the board's decision. Francini v. Zoning Board of Appeals, 228 Conn. 785 (1994). "It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own." Farrington v. Zoning Board of Appeals, 177 Conn. 186, 190 (1979). "In discharging [its] responsibility, a board 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." Molic v. Zoning Board of Appeals, 18 Conn.App. 159, 165 (1989). [T]he determination of factual issues are matters within the province of the administrative agency . . . The court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings . . . Evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . ." Conetta v. Zoning Board of Appeals, 42 Conn.App. 133, 137-38 (1996). On appeal, a reviewing court reviews the record of the administrative proceedings to determine whether the board "has acted fairly or with proper motives or upon valid reasons." Schwartz v. Planning Zoning Commission, 208 Conn. 146, 152 (1988). "When a zoning authority has stated the reasons for its action, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision. Goldberg v. Zoning Commission, 173 Conn. 23, 25-26, 376 A.2d 385 (1977).

Aggrievement

"Proof of aggrievement is . . . an essential, prerequisite to the court's jurisdiction of the subject matter of the appeal." (Internal citations omitted; internal quotation marks omitted.) Gladysz v. Planning Zoning Commission, 256 Conn. 249, 256, 773 A.2d 300 (2001). The plaintiff is aggrieved inasmuch as her property abuts that of the defendant. See C.G.S. § 8-8.

Discussion

Jacobson argues first that the ZBA took a too limited view of its role on remand from the court. The court disagrees. The reason for the remand was the fact that the ZBA had not been clear as to whether it granted the 2006 application based on a hardship or on the previous granting of a variance in 1988. By statute, the ZBA is permitted to vary the application of the zoning bylaws, ordinances or regulations where . . . a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship. See General Statutes § 8-6(a)(3). In interpreting C.G.S. § 8.6, our Supreme Court has stated: "It is well established . . . that the granting of a variance must be reserved for unusual or exceptional circumstances . . . 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 . . ." Moon v. Zoning Board of Appeals, 291 Conn. 16, 24, 966 A.2d 722 (2009).

The record of the 2006 hearing contained sufficient evidence of the size and configuration of the lot to support its decision, and ZBA made that clear in its decision after the hearing on October 30, 2008.

Jacobson next argues that the hardship was self-created. Specifically, the evidence was that there had at one time been a garage that was converted to a studio for additional living/working space by a predecessor in title. Jacobson argued that the Whites stand in the shoes of the prior owner. "The self-created hardship rule provides that "[w]here the applicant . . . creates a nonconformity, the board lacks power to grant a variance." (Citations omitted.) Osborne v. Zoning Board of Appeals, 41 Conn.App. 351, 354, 675 A.2d 917 (1996). "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." (Citation omitted; internal quotation marks omitted.) Abel v. Zoning Board of Appeals, 172 Conn. 286, 289, 374 A.2d 227 (1977).

The record in this case reveals that the plaintiff's small lot was created prior to the enactment of the zoning regulations. It is abundantly clear that the ZBA considered the existing structure that had been a garage and that, if it had remained a garage, it would not have been large enough to accommodate today's motor vehicles. Our appellate court has specifically held that "[a] variance may be granted if the literal enforcement of a regulation causes exceptional difficulty or hardship because of some unusual characteristic of the property." Stillman v. Zoning Board of Appeals, 25 Conn.App. 631, 636, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991). The ZBA's decision regarding this issue was not unreasonable and is supported by the evidence.

Jacobson next claims that the public hearing of October 30, 2008 is a nullity because Voices Weekender is not a newspaper having a general circulation in the Town of Washington as required by section 8-7d of the Connecticut General Statutes.¹ The Voices Weekender is a newspaper that is not available for purchase but is mailed to every residence in the Town of Washington. Jacobson's argument seems to be that, because the paper does not have paying subscribers, it is a "throw away newspaper," and there is no way to determine whether people are actually reading it.

1 C.G.S. § 8-d requires, in relevant part, that in all matters wherein a hearing is required [on an] application [to the Zoning Board of Appeals of a municipality], notice of the hearing shall be published in a newspaper having a general circulation in such municipality where the land that is the subject of the hearing is located at least twice, at intervals of not less than two days, the first not more than fifteen days or less than ten days and the last not less than two days before the date set for the hearing.

Because the "fundamental reason for the requirement of notice is to advise all affected parties of the opportunity to be heard . . . [,w]hat is required is not actual notice, but, rather, constructive notice." (Citations omitted.) Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 47, 301 A.2d 244 (1972). The issue in this instance is whether the residents of the Town of Washington received constructive notice.

The courts that have considered the issue in Connecticut generally agree that "[a] newspaper which contains news of general interest to the community and reaches a diverse readership is one of general circulation." Sorrow v. Zacchera, Superior Court, judicial district of Hartford, Docket No. CV 98 0580072 (December 23, 1998, Teller, J.) [ 24 Conn. L. Rptr. 19]; Oates v. East Haddam IWC, No. CV 08 4009226 (Dec. 19, 2008, Berdon, J.) [ 46 Conn. L. Rptr. 789].

Conclusion

Based on the reasons stated herein, the appeal is dismissed.