Opinion
LNDCV176080201S LNDCV176080494S LNDCV176080778S
07-12-2018
LAURIDSEN FAMILY LIMITED PARTNERSHIP v. ZONING BOARD OF APPEALS OF the TOWN OF GREENWICH et al. Lauridsen Family Limited Partnership v. Planning and Zoning Commission of the Town of Greenwich et al., David J. Nelson et al. v. Planning and Zoning Board of Appeals of the Town of Greenwich et al.
UNPUBLISHED OPINION
Berger, J.T.R.
I
In two of these three appeals, Lauridsen Family Limited Partnership v. Zoning Board of Appeals of the Town of Greenwich, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-17-6080201-S, and Nelson v. Planning & Zoning Board of Appeals of the Town of Greenwich, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-17-6080778-S, for several variances in order to raze and rebuild a cottage destroyed by Hurricane Sandy on or around October 29, 2012, at 68 Binney Lane in Old Greenwich. (Return of Record [ROR], Item 1. ) Situated on Long Island Sound at Tomac Harbor, the property is located in a residential district (R-12) that requires a minimum lot size of 12,000 square feet. (ROR, Item 1.) The lot at 68 Binney Lane is irregularly shaped and quite small at approximately 5,300 square feet with the current 2,564-square-foot single-family dwelling and the driveway occupying most of the lot. (ROR, Item 1; Items 1D-1F; Item 4; Item 93, p. 44.) The lot also sits in the coastal overlay zone, flood hazard overlay zone and the VE-16 flood hazard zone. (ROR, Item 4.) The proposed 1,826-square-foot single-family dwelling would be a modern, cube shaped design made of stone, concrete and glass. (ROR, Item 5; Items 67-70.)
The third appeal addressed in section V of this memorandum of decision is Lauridsen Family Limited Partnership v. Planning & Zoning Commission of the Town of Greenwich, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-17-6080494-S. The plaintiff, the Lauridsen Family Limited Partnership, challenges the granting of the coastal site management plan for the proposed house of the defendant, Binney Point, LLC. The individual plaintiffs, David J. Nelson and Patricia M. Nelson, are not parties to this appeal.
According to Greenwich’s plan of conservation and development, 2009, "Old Greenwich is the original village of Greenwich. It dates back to 1640. It was developed as a summer cottages community where visitors came to enjoy the fresh air and waterfront." (ROR, Item 105, p. 32.)
The return of record in Lauridsen Family Limited Partnership v. Planning & Zoning Commission of the Town of Greenwich, supra, Superior Court, Docket No. LND CV-17-6080494-S, is distinguished as "PZC ROR" where appropriate.
Section 139.1(d)(2) of Greenwich’s Building Zone Regulations (regulations), also referred to as the Greenwich Municipal Code, identifies "VE" as a special flood hazard area and more specifically as a "Coastal High Hazard Area." (ROR, Item 103, p. 10-13.)
The defendant originally proposed a 2203 square foot structure, but reduced the size after discussions with neighbors. (ROR, Items 4-5; Item 93, p. 36.)
On December 22, 2016, the defendant applied to the board seeking variances of the floor area ratio (FAR) and the front yard, rear yard and side yard setbacks. (ROR, Item 1; Item 5.) The board both held a public hearing and conditionally granted the application on April 26, 2017. (ROR, Items 93.) It allegedly published notice in the Greenwich Times on May 8, 2017.
Section 6-5(a)(23) of the regulations, in relevant part, defines floor area ratio as "the Gross Floor Area of all buildings on a lot ... to the total area of the lot ... excluding that land over which a right-of-way for a private road exists." (ROR, Item 103, p. 2-6.)
The published notice is not part of the record.
These appeals were commenced when the plaintiffs caused the board to be served on May 19, 2017, and the agent for service for the defendant to be served on May 24, 2017. The plaintiffs allege that the board’s decision was illegal, arbitrary and an abuse of its discretion. The defendant filed its answer to Lauridsen’s complaint on August 31, 2017, and to the Nelsons’ complaint on September 11, 2017. The board filed the return of record on October 19, 2017. Lauridsen filed its brief on November 17, 2017, the Nelsons filed their brief on November 21, 2017, the defendant filed its brief on December 15, 2017, which the board joined, and Lauridsen filed an amended complaint on December 20, 2017. At the court’s request, the defendant filed a supplemental brief on February 7, 2018, which the board joined on February 14, 2018, Lauridsen filed its supplemental brief on March 12, 2018, and the Nelsons filed their supplemental brief on March 13, 2018. The court heard the appeals on May 7, 2018.
II
General Statutes § 8-8(b)(1), in relevant part, provides that "any person aggrieved by any decision of a board, including a decision to approve or deny a site plan pursuant to subsection (g) of section 8-3 or a special permit or special exception pursuant to section 8-3c, may take an appeal to the superior court for the judicial district in which the municipality is located ..." General Statutes § 8-8(a)(1), in relevant part, defines "aggrieved person" as "any person owning land in this state that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
Section 6.139.1(h)(3) of regulations similarly provides: "Any person aggrieved by the decision of the Planning and Zoning Board of Appeals or any person owning land which abuts or is within a radius of (100) one hundred feet of the land in question may appeal within 15 days after such decision to the State of Connecticut Superior Court as provided in Section 8-8 of the General Statutes." (ROR, Item 139, pp. 10-21-10-22.)
In the present case, Lauridsen owns property at 64 Ford Lane and the Nelsons own property at 25 Ford Lane. Lauridsen introduced evidence that its property is within a radius of one hundred feet of the defendant’s property. (Exhibit [exh.] 1.) Before this court on May 7, 2018, the parties stipulated that the Nelsons’ property is similarly within a radius of one hundred feet of the defendant’s property. Additionally, counsel stipulated that the parties owned the properties during the application process and that they currently own the abutting properties. Accordingly, this court finds that Lauridsen and the Nelsons are aggrieved under § 8-8(a)(1) and (b)(1).
III
General Statutes § 8-6(a)(3), in relevant part, authorizes a zoning board of appeals "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 ..."
"[T]he nature and functions of a board of appeals or adjustment ... [are] 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).
"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." (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).
"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, supra, 320 Conn. 321.
"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, 233 Conn. 198, 207-08, 658 A.2d 559 (1995). "[General Statutes § 8-6] clearly directs the board to consider only conditions, difficulty or unusual hardship peculiar to the parcel of land which is the subject of the application for a variance." Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 382, 311 A.2d 77 (1972).
IV
"[W]here a zoning commission has formally stated the reasons for its decision the court should not go behind that official collective statement of the commission. It should not attempt to search out and speculate upon other reasons which might have influenced some or all of the members of the commission to reach the commission’s final collective decision." DeMaria v. Enfield Planning & Zoning Commission, 159 Conn. 534, 541, 271 A.2d 105 (1970).
In the present case, the board gave a reason for its decision. Specifically, the board’s stated that there was "hardship due to the lot’s shape, size and location of the property within a flood zone combined with a reduction of nonconformities." (ROR, Item 96.) Therefore, this court will not search or speculate on other reasons that may have influenced the board.
A
In 2014, the defendant purchased the small lot which extends to Long Island Sound and is accessed by a private way that, according to the defendant, is an easement for pedestrian access to the Sound. (Exh. 2; ROR, Item 82.) Located in the VE-16 flood zone, the parcel is relatively flat with a grade change from six feet to nine feet. (ROR, Item 4.) A cottage, known as "Sea Boulders," which was built in 1910, sits on the lot, but the dwelling is now vacant and uninhabitable. (ROR, Item 1; Item 4; Item 34; Items 37-47.)
The defendant states in its brief that the lot is in the middle of the family compound in a private community.
Testimony at the public hearing indicates that the right of way benefits the Kallmans, the Lauridsen family and one other family. (ROR, Item 93, p. 38.) The present building encroaches on the right of way by nine feet; the proposed building would significantly decrease that encroachment. (ROR, Item 93, pp. 38-39.)
According to the defendant’s application of December 16, 2016, as modified on April 19, 2017, raising the existing structure over eight feet to comply with flood hazard regulations is not possible as the foundation was built into the rocky shore. (ROR, Item 1; Item 93, pp. 40-42.) To build a new structure, the defendant sought a variance from the FAR contained in § 6-205(a) of Greenwich’s Building Zone Regulations (regulations), also referred to as the Greenwich Municipal Code. (ROR, Item 1; Item 5.) Specifically, § 6-205(a) allows for a maximum FAR of .315. (ROR, Item 103, p. 21-3.) The existing cottage is approximately 2,560-square-foot with a FAR of 0.516. (ROR, Item 1D; Item 82.) With the proposed 1,826-square-foot structure on the net land area of 4,970 square feet, the FAR will be .367-260 square feet more than allowed. (ROR, Item 5; Item 103, p. 21-3.) This will be approximately a 30 percent reduction in FAR. (ROR, Item 82; Item 93, p. 44.)
Section 6.139.1(f)(12), in relevant part, provides: "Coastal High Hazard Areas (VE Zone). Located within the areas of special flood hazard established in Sec. (d)(2) are areas designated as Coastal High Hazard Areas (Zone VE). Since these areas have special flood hazards associated with high velocity waters, including hurricane wave wash, the following provisions shall apply: (6/18/2010)
Some square footage related to the right of way is subtracted from the 5300 total square feet for purposes of this calculation. See footnote 7 of this memorandum of decision.
Additionally, the defendant sought variances from § § 6-205(a) and 6-128(a), (b) and (c), requiring twenty-five-foot setbacks for the front and rear yards and five-foot setbacks on the side yards. (ROR, Item 103, p. 21-3.) The current front yard setback is 7 feet while the proposed structure would have a setback of 6.9 feet; the current rear yard setback is 10.9 feet while the proposed cottage would be 14 feet; and the current structure extends to the property side lines while the proposed dwelling would have setbacks of 14.6 feet on the east side and 6.5 feet on the west side. (ROR, Item 5, p. 3; Item 82; Item 85.)
Section 6-128, in relevant part, provides:
According to § 6.9, the structure must comply with the R-7 zone setbacks and not the R-12 setbacks. (ROR, Item 93, p. 35; Item 103, pp. 2-2 and 2-16.)
Under the regulations, the allowable building height is thirty-five feet. (ROR, Item 5, p. 3.) Both the existing cottage at 16 feet and 8 and one-half inches and the proposed structure at 28 feet and 11 and one-half inches comply with this height limitation. (ROR, Item 5, p. 3.) The structure will be raised from grade level at nine feet to an elevation of at least seventeen feet for the first habitable floor to comply with the flood hazard regulations. (ROR, Item 93, pp. 33-34.) Additionally, the current decks are at grade level and would be raised accordingly and extend to the property line on the east side. (ROR, Item 5, p. 3; Item 50, p. 2.) Further, the proposed dwelling would increase the amount of green area from 55 percent to 61.4 percent with its smaller footprint. (ROR, Item 5, p. 3; Item 82; Item 93, p. 45.) Also the home would encroach much less on the right of way to the water. (ROR, Item 93, pp. 37-39.) Perhaps most importantly, the house would be built to meet or exceed the requirement of the regulations and Federal Emergency Management Agency (FEMA) standards. (ROR, Item 49.)
Two and a half stories are allowed and the existing cottage is one and half stories while the proposed cottage would be two stories. (ROR, Item 5, p. 3; Item 103, p. 21-3.)
According to the defendant’s engineer, RACE COASTAL ENGINEERING, "The site is exposed to coastal flooding during storm events, i.e., hurricanes and nor’easters, which impact the region. The Federal Emergency Management Agency’s (FEMA) Flood Insurance Study (FIS) No. 09001CV001C date October 16, 2013 shows the 100-yr stillwater elevation (1% chance of occurrence in any given year) to be El. +10.8’ and total water level at +11.8’ (NAVD 88). The site is mapped on the FEMA’s Flood Insurance Rate Map (FIRM) No. 09001C0518G and dated July 8, 2013 as a Zone VE with a Base Flood Elevation (BFE) of El. +16’ (NAVD 88). The BFE is the computed elevation to which flood water is anticipated to rise during the base flood (100-yr flood recurrence), and includes the effects of stillwater level (SWL), wave heights, wave runup, and wave setup ...
Not all of the defendant’s neighbors support the application. Indeed, some thought that its modern design would be a glaring eyesore which would block views and devalue existing homes. (ROR, Items 6-8; Item 18; Items 20-29; Item 31; Item 54; Item 93, pp. 62-63, 70-94.) Some supported the proposal. (ROR, Items 10-17; Item 19.) The defendant’s architect gave the board a presentation on the diverse architectural styles of homes in the area. (ROR, Item 93, pp. 44-50.) On April 26, 2017, the board granted the application with the condition "that the proposed deck on the northeast side of the dwelling, be reduced by 5 feet in the direction of the dwelling." (ROR, Item 94; Item 96.)
The board’s chairperson, David Weisbrod, stated, "The aesthetics of this is really a minor consideration, as you know, before this Board. It really is. However, the impact on the community’s aesthetics is an element of that. I’m not dismissing it but it is not one that we typically pay that much attention to." (ROR, Item 93, pp. 63-64.) Aesthetic protections may be a valid exercise of the police power. Welch v. Swasey, 214 U.S. 91, 108, 29 S.Ct. 567, 53 L.Ed. 923 (1909); Landmark Land Company, Inc. v. City and County of Denver, 728 P.2d 1281, 1285 (Colo. 1986). Such considerations are not, however, without limits and depend on enabling legislation. Weisbrod’s statement appears to be consistent with our Supreme Court’s statement that "vague and undefined aesthetic considerations alone are insufficient to support the invocation of the police power, which is the source of all zoning authority." DeMaria v. Planning & Zoning Commission, supra, 159 Conn. 541.
Specifically, the board found: "It was RESOLVED that said appeal be granted with conditions .
B
The first requirement for the granting of a variance is that it must be shown not to affect substantially the comprehensive zoning plan. Caruso v. Zoning Board of Appeals, supra, 320 Conn. 321. "The comprehensive plan is to be found in the scheme of the zoning regulations themselves." Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 656, 427 A.2d 1346 (1980). "The first part of the test, that the use requested by the variance application is in accord with the comprehensive zoning plan, is usually met when the use to be allowed by the variance is consistent with other uses in the area." Amendola v. Zoning Board of Appeals, 161 Conn.App. 726, 738, 129 A.3d 743 (2015). In the present case, the single-family home use is consistent with the other uses in the area. (ROR, Item 84; Item 104; Item 105, p. 33.)
Additionally, the scheme of the zoning regulations addresses sea level rise. Specifically, § 6-139.1 pertains to the flood hazard overlay (FHO) zone. As its purpose, subsection (a), in relevant, provides: "The FHO zone is intended to add additional safeguards to those areas of Greenwich subject to riverine and coastal flooding as shown on the Flood Insurance Rate Maps and Flood Insurance Study of the Town of Greenwich ... The zone is not intended to remove existing permitted uses as stated in these Regulations. It is the purpose of this section to: (6/18/2010, 7/4/2013)
"(1) Promote the public health, safety and general welfare and to minimize public and private losses due to flood conditions in specific areas.
"(2) Restrict or prohibit uses which are dangerous to health, safety and property due to water or erosion hazards, or which result in damaging increases in erosion or in flood heights or velocities.
"(3) Require that uses and structures vulnerable to floods, including facilities which serve such uses, be protected against flood damage at the time of initial construction ..." (ROR, Item 103, pp. 10-7-10-8.)
This regulatory response to flood hazard and sea level rise is consistent with Connecticut land use jurisprudence. See Murphy, Inc. v. Westport, 131 Conn. 292, 299-300, 40 A.2d 177 (1944) ("[t]he purposes of zoning as they are generally recognized go far beyond the protection of public health, safety or morality; yet, under the broad scope of the police power referred to above, and in recognition of the fact that it cannot remain static but must change with the changing needs of the times, zoning regulations have generally been held to be valid"). Connecticut municipalities, where appropriate, must consider "sea level change scenarios published by the National Oceanic and Atmospheric Administration in Technical Report OAR CPO-1" in the municipal plan of conservation and development. General Statutes § 8-23(d)(11). Indeed, Greenwich’s Plan of Conservation and Development, 2009, recognizes sea level rise and the need to elevate homes. Specifically, the plan states: "Coastal flooding is also an increasingly important issue, as concerns about global warming and sea level rise draw additional attention to this topic. Areas within the Old Greenwich coastal zone are particularly affected." (ROR, Item 105, p. 2.) In fact, § 4.16 recommends that "[w]hen redevelopment of residences occurs in the flood and coastal zones they should be required to meet all Federal Emergency Management Agency (FEMA) flood standards without obtaining a variance ." (Emphasis added.) (ROR, Item 105, p. 32. )
General Statutes § 22a-93(19) defines "rise in sea level" as "the arithmetic mean of the most recent equivalent per decade rise in the surface level of the tidal and coastal waters of the state, as documented in National Oceanic and Atmospheric Administration online or printed publications for said agency’s Bridgeport and New London tide gauges."
From the transcript, it appears that the commission members recognized the mandate to raise our shoreline homes. For instance, Patricia Kirkpatrick stated, "I think that there’s, from my perspective, there’s a couple of different parts here. I see hardship, obviously, that the house has to be redone, moved up, whatever. The rules have changed. We all have to get our houses out of flood." (ROR, Item 93, p. 147.)
In a study by James O’Donnell for the Connecticut Institute for Resilience and Climate Adaptation and Department of Marine Sciences, University of Connecticut, he states that:
"• CT is special (location and oceanography, weather, geology). Consequently, "• We will get more [sea level rise] than other areas, and the predictions have prediction intervals. "• We should plan for [fifty centimeters] (almost [two feet] ) increase by 2050 and alert people that in the future higher thresholds may be required. "• The increase in the area impacted will not be very large because of the geology of [Connecticut]. "• We should institute a decadal review and update to ensure new science is incorporated in the planning to minimize costs and maximize safety. "• Since the coastal areas are flat small increases in [mean sea level] will cause a large increase in flood risk. The geometry and orientation of the Sound causes tides and surge to be larger in the west of [Connecticut] so the impact of [sea level rise] on the flood risk is higher in the east." J. O’Donnell, Connecticut Institute for Resilience and Climate Adaptation and Department of Marine Sciences, University of Connecticut, "Coastal Flood Risk in Connecticut," (2017), available at https://circa.uconn.edu/wp-content/uploads/sites/1618/2017/10/Coastal-Flood-Risk-in-CT-ODonnell.pdf (last visited July 11, 2018) (copy contained with exhibits).
See also ROR, Item 105, p. 67, § 1.5.
Finally, constructing and maintaining structures less vulnerable to floods and storms benefits homeowners, the owners of the neighboring properties and the community. It allows homeowners to qualify for the National Flood Insurance Program (NFIP) and has the added benefit of creating stronger, safer structures.
Section 6.139.1(h)(5), in relevant part, provides: "Consideration for Variances. In passing upon such applications the Planning and Zoning Board of Appeals shall consider all technical evaluations, all relevant factors, all standards specified in other sections of this regulation; and
(A) The danger that materials may be swept into other lands to the injury of others;
In the present case, the defendant is building a home that complies with important flood hazard and sea level rise regulations. Here, the defendant reduces nonconformities by building a house with a smaller FAR and maximizing certain setbacks and the green area. Importantly, the defendant also meets the flood hazard elevation requirements. Thus, the proposed dwelling would not substantially affect the comprehensive zoning plan. See Caruso v. Zoning Board of Appeals, supra, 320 Conn. 321.
C
The second requirement for the granting of a variance is a showing that "the application of the regulation causes unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan." (Internal quotation marks omitted.) Id. "The second part of the test, that the zoning regulation cause unusual hardship to the land unnecessary to carrying out the zoning plan, is generally more difficult to satisfy, but remains an absolute [necessity] as a condition precedent to the granting of a zoning variance ... The applicant has the burden of proving hardship and must establish both the existence of a sufficient hardship and that the claimed hardship is ... unique ... The claimed hardship must originate in the zoning ordinance ... meaning that because of some peculiar characteristic of [the] 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 ... In other words, a legal hardship must [relate] to the property for which the variance is sought and not to the personal hardship of the owners thereof ... Thus, a property owner’s [d]isappointment in the use of property does not constitute exceptional difficulty or unusual hardship ... and principles of equity, fairness to the applicant, and lack of adverse consequences to surrounding properties do not meet the test for a legally recognized hardship ... Finally, the hardship must be different in kind from that generally affecting property in the same zoning district." (Citations omitted; internal quotation marks omitted.) Amendola v. Zoning Board of Appeals, supra, 161 Conn.App. 738-39.
The plaintiffs argue that the defendant did not prove a sufficient hardship and that any hardship was not unique to this property. They further assert that any hardship is self-inflicted. This court disagrees based on the reasoning set forth in Turek v. Zoning Board of Appeals of Milford, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-15-6063404-S (Apr. 4, 2018) . In Turek, this court summarized cases similar to the one therein- and herein- and the exception to the hardship requirement under Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 708-10, 535 A.2d 799 (1988), and Vine v. Zoning Board of Appeals, 281 Conn. 553, 559, 916 A.2d 5 (2007). It ultimately held, "the hardship- or the exception to hardship- here is the total destruction of the previous home by Hurricane Sandy and the need to comply [with] applicable elevation requirements. Their hardship is thus not self-imposed." Turek v. Zoning Board of Appeals of Milford, supra, Superior Court, Docket No. LND CV-15-6063404-S.
The petition for certification was granted on June 20, 2018, and the appeal was filed June 29, 2018, Docket No. AC 41824.
It should be noted that this issue is on appeal in
The same is true in the present case. While not totally destroyed, the defendant’s dwelling was left a shell by storms, including Hurricane Sandy, and the structure "is not salvageable." (ROR, Items 37-47; Item 93, pp. 34-35, 39-40, 42-43.) Moreover, the proposed dwelling would reduce certain setback nonconformities. (ROR, Item 93, pp. 36-37.) It would increase the elevation of the dwelling to comply with flood hazard regulations and still be six feet below the height limitation. (ROR, Item 93, p. 37.) The combination of the near total destruction by the storm and the need to meet federal and state flood hazard regulations constitute an extreme hardship. Simply put, the existing home- and perhaps, other storm damaged waterfront homes- cannot realistically be rebuilt or elevated and comply with the new flood regulations without some elasticity in the application of the regulations. See Hescock v. Zoning Board of Appeals, 112 Conn.App. 239, 261, 962 A.2d 177 (2009) ("In the present case, there was substantial evidence that the new construction would reduce and eliminate existing nonconformities and present less of a hazard in case of a flood, and there was no evidence that replacing the existing house would result in even minimal harm to the neighborhood. It is important to also note that the board concluded that with time, all of the houses in the neighborhood would conform to the flood zone requirements and that the defendants were on the cutting edge of new development"). Further, varying the regulations in these circumstances comports with General Statutes § 8-6(a)(3), i.e., to do substantial justice and secure the public safety and welfare which the board appropriately weighed against aesthetic concerns. See Turek v. Zoning Board of Appeals of Milford, supra, Superior Court, Docket No. LND CV-15-6063404-S (weighing aesthetic height limit and public safety elevation requirement for homes in special flood hazard area); see also Lawrence v. Department of Energy & Environmental Protection, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-15-6066232-S (July 18, 2016, Berger, J.) (holding that aesthetic concerns must be weighed against an owner’s ability to exercise their property rights subject to certain regulations), aff’d, 178 Conn.App. 615, 176 A.3d 608 (December 12, 2017).
As demonstrated by the board herein, limitations inherent in land use law require "elastic" application of regulations under General Statutes § 8-6. See Florentine v. Darien, 142 Conn. 415, 425, 115 A.2d 328 (1955) ("[t]he essential purpose of a board of appeals is to deal with these cases by furnishing elasticity in the application of regulatory measures so that they do not operate in an arbitrary or confiscatory and, consequently unconstitutional, manner"). It could reasonably be argued that current land use law- especially in terms of standard variance law as enunciated in Verrillo v. Zoning Board of Appeals, 155 Conn.App. 657, 659-60, 111 A.3d 473 (2015)- is ill equipped (or outdated or perhaps even unfair) to deal with the interrelationship of those laws when catastrophe occurs and/or regulatory programs mandate significant changes to construction practices. First, the self-created hardship rule can and does produce disparate results. Second, rigid reliance on the phrase "but not affecting generally the district in which it is situated" in § 8-6 to preclude relief is problematic in these situations. The need and requirement to protect shoreline homes is not limited to a few individual parcels and they are almost always part of a larger area wherein homes may be nonconforming or the lots are small and nonconforming or only some homes are damaged or destroyed- or not- and so on. Zoning regulations and the rules concerning nonconforming use were not adopted with base flood elevations, catastrophe, climate change and sea level rise in mind. Towns have been slow and inconsistent in addressing these issues in their regulations. See footnote 23 in
The record reflects that the board in making its decision to grant the variances considered the destruction of the dwelling, the reduction in nonconformities of the proposed dwelling, the configuration of the lot and the benefit in building a safer structure. (ROR, Item 93, pp. 146-47, 153-54, 158-59.) In sum, substantial evidence supports the board’s determinations that compliance with the zoning, flood hazard and other regulations combined with the configuration of the lot caused an unusual hardship, that the nonconformities on the property would actually be decreased and that the proposed home would not affect substantially the comprehensive zoning plan. Thus, the plaintiffs have not sustained their burden to prove that the board acted improperly in conditionally approving the variances. See E & F Associates, LLC v. Zoning Board of Appeals, supra, 320 Conn. 15. Accordingly, the appeals are dismissed.
The Nelsons argue in their brief that the rear yard nonconformity will be increased. They assert that the existing deck "did not count as part of the house under the Regulations" as it is less than three feet above grade. See footnote 14 of this memorandum of decision. Therefore, they argue that "[t]he existing house itself establishes the existing non-conforming setback of 10.9 feet" and that the new deck, even with the condition imposed by the board, would increase the nonconformity by six feet. The defendant counters that the existing deck is more than three feet above grade and extends to the property line. Thus, the new deck will not be more nonconforming. The court does not consider this argument to be determinative, but the defendant’s list of citations to the record on page ten of its brief is persuasive as to whether the existing deck is more than three feet above grade.
V
The Coastal Site Plan Appeal
In the third appeal, Lauridsen Family Limited Partnership v. Planning and Zoning Commission of the Town of Greenwich, Superior Court, land use litigation docket at Hartford, Docket No. LND CV-17-6080494-S, the sole plaintiff, Lauridsen, appeals the granting of the defendant’s coastal site plan application with modifications by the planning and zoning commission of the town of Greenwich (commission). On December 21, 2016, Lauridsen filed the application to raze the existing home and construct a new one at 68 Binney Lane and make associated improvements at 63 and 66 Binney Lane. (PZC ROR, Item 1.) On May 16, 2017, the commission held a public hearing and granted the application with modifications. (PZC ROR, Item 117, p. 2; Item 119.) Notice of the decision was published on May 23, 2017. (PZC ROR, Item 118.)
The defendant indicates in its brief that the parties chose not to include the transcript of the public hearing as part of the return of record in light of the distinct issues in this appeal.
Lauridsen commenced this appeal by causing the commission to be served on June 7, 2017, and the agent for service for the defendant to be served on June 14, 2017. On August 31, 2017, the defendant filed an answer. The commission filed the return of record on October 20, 2017. Lauridsen filed its brief on November 17, 2017, and the defendant filed its brief on December 15, 2017, which the commission joined on the same day. The defendant filed a supplemental brief on February 7, 2018, which the commission joined on February 14, 2018. Lauridsen filed a supplemental brief on March 12, 2018. The court heard the appeal with the other two appeals on May 7, 2018. As in the previously appeals and given the factual agreements of the parties concerning ownership, the court finds that Lauridsen is aggrieved under General Statutes § 8-8(a)(1) and (b)(1).
"The power of the commission to require that the applicant file a coastal site plan and impose conditions on its approval is derived from the Coastal Management Act (act), General Statutes § § 22a-90 [et seq.] The act delegates the administration of the state-wide policy of planned coastal development to local agencies charged with responsibility for zoning and planning decisions. See General Statutes § § 22a-105, 22a-106. The act envisages a single review process, during which proposals for development within the coastal boundary will simultaneously be reviewed for compliance with local zoning requirements and for consistency with the policies of planned coastal management." (Internal quotation marks omitted.) DeBeradinis v. Zoning Commission, 228 Conn. 187, 195-96, 635 A.2d 1220 (1994).
Section 6-111(c)(A) of the regulations, in relevant part, provides: "Coastal Site Plan review and approval by the Planning and Zoning Commission and, as applicable, by the Planning and Zoning Board of Appeals shall be required for all projects and activities as defined in Section 22a-105(b) of the Connecticut Coastal Management Act fully or partially within the Coastal Overlay Zone. These activities shall include but not limited to all applications for building permits, subdivisions, rezoning, special permits, special exceptions, variances, and Municipal Improvements ..." (PZC ROR, Item 169, p. 9-42.)
"With respect to review of a coastal site plan, proceedings before planning and zoning commissions are classified as administrative ... Conclusions reached by the 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 agency. The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached ... The action of the commission should be sustained if even one of the stated reasons is sufficient to support it ... The evidence, however, to support any such reason must be substantial ... This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and 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 ... [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." (Citations omitted; internal quotation marks omitted.) DeBeradinis v. Zoning Commission, supra, 228 Conn. 198-99. "The plaintiffs have the burden of showing that the commission acted improperly." (Internal quotation marks omitted.) King’s Highway Associates v. Planning & Zoning Commission, 114 Conn.App. 509, 515, 969 A.2d 841 (2009).
Subject to the modifications stated in its decision, the commission approved the coastal site plan. (PZC ROR, Item 119.) The multiple reasons given in its decision reflect the analysis required by General Statutes § 22a-106 and § 6-111(c)(D) of the regulations. (PZC ROR, Item 119.)
General Statutes § 22a-106 provides:
(a) In addition to determining that the activity proposed in a coastal site plan satisfies other lawful criteria and conditions, a municipal board or commission reviewing a coastal site plan shall determine whether or not the potential adverse impacts of the proposed activity on both coastal resources and future water-dependent development activities are acceptable.
Section 6-111(c)(D), in relevant part, provides: "In addition to the standards of Sec. 6-15 of the ‘Building Zone Regulations’ the Planning and Zoning Commission, in reviewing coastal site plans, may take into consideration the recommendations of any Town agencies or outside specialists with which it consults, such as but not limited to the Conservation Commission, Inland Wetlands and Watercourses Agency, Department of Health and the Department of Parks and Recreation in determining whether the proposed activity:
"(1) Is in accordance with the Plan of Development/Land Use Plan. (1/1/87) "(2) Preserves important open space and other features of the natural environment. "(3) Does not materially obstruct significant waterfront views. "(4) Does not unreasonably adversely affect storm drainage, sewerage disposal or other municipal services. "(5) Is consistent with all the above purposes as authorized by the State Coastal Management Act ..." (PZC ROR, Item 169, p. 9-43.)
Before this court, Lauridsen focused its argument on what it deemed to be the defendant’s incomplete application. Lauridsen argues that the defendant improperly claimed that it had a legal interest in a part of the property known as "Lot B." Lauridsen maintains that § 6-14(a)(17) of the regulations requires authorization for the agent to act on the behalf of the certified owner of the property. Lauridsen further asserts that the defendant did not comply with the regulation because they did not own Lot B nor did they have the owner’s authorization. Lauridsen submitted testimony from a title searcher, George Blanks, as evidence that the defendant did not have a fee interest. Specifically, Blanks averred "that portion of the subject property shown on Exhibit A designated as tract ‘B’ on a map entitled ‘Property of Fred Hirschorn, Jr. Greenwich, Conn’ and recorded in the [Greenwich land records] as Map # 2822 (attached hereto as Exhibit B) conveyed to The Development Realty Company by virtue of a Quit Claim Deed recorded in Book 135 at Page 166 on December 21, 1911 (attached hereto as Exhibit C) remains in the separate ownership of The Development Realty Company, having never been subsequently conveyed to Binney Point, LLC or any other entity or individual." (PZC ROR, Item 100.) Lauridsen argues that the commission should either have required more information concerning ownership or should have denied the application as incomplete. Moreover, it claims that the defendant’s deed states only the right of way of "Lot B" was transferred through "the Grantor’s interest in the fee, if any, in and to and over [Lot B]" as shown on Map No. 2822. (PZC ROR, Item 104.) The 1952 deed conveyed to the defendant’s predecessor in title references the same map. (PZC ROR, Items 104-05.) The deed to the defendant in 2014 reflects similar language according to exhibit one attached to the defendant’s brief.
Lauridsen initially claimed that the commission violated § 6-141(b)(4) in granting the permit. The regulation requires that an application to rebuild a nonconforming use after an act of God be filed within one year. (PZC ROR, Item 169, p. 11-2.) Additionally, § 6-141(b)(5) requires the rebuild to occur within that one year or the nonconforming use will be forfeited. (PZC ROR, Item 169, p. 11-2.) The defendant argues that this appeal involves a nonconforming lot, a nonconforming building and a nonconforming location of the building, but not a nonconforming use as this a residential structure in a residential zone. Thus, it asserts that § 6-141(b)(4) and (5) do not apply because the regulations only pertain to uses. Regardless of the label, "[o]nce a nonconforming use is established, [however,] the only way it can be lost is through abandonment. The sale of the property will not destroy the right to continue in the nonconforming use ... General Statutes § 8-2 restricts the ability of a town to eliminate a nonconforming use through its zoning regulations." (Citation omitted; internal quotation marks omitted.) Taylor v. Zoning Board of Appeals, 65 Conn.App. 687, 695, 783 A.2d 526 (2001). Specifically, General Statutes § 8-2(a), in relevant part, provides that zoning regulations "shall not prohibit the continuance of any
The regulation, in relevant part, provides: "Applications for preliminary or final site plan approval shall be made on forms provided by the Planning Staff. In order to be submitted by the Planning Staff to the Commission, applications for preliminary or final site plan approval must be complete including ... [a]uthorization for the agent and contract purchasers to act on behalf of the certified property owner(s)." (PZC ROR, Item 169, p. 2-20.)
Under General Statutes § 47-33c, there is a presumption of ownership for the defendant. Regardless, it is not the task of the commission to resolve issues of title. See, e.g., Gagnon v. Municipal Planning Commission, 10 Conn.App. 54, 58, 521 A.2d 589 ("[t]he commission does not have authority to determine whether the claimed right of way was a legally protected and enforceable prescriptive easement, since that conclusion can only be made by judicial authority in a quiet title action"), cert. denied, 203 Conn. 807, 525 A.2d 521 (1987). Additionally, the commission modified the approved application to eliminate any encroachment into the right of way. Specifically, the commission, in relevant part, required the defendant to "[r]evise plans to show no encroachment into the [right of way] of the proposed house nor the subject property’s proposed beach access stairs" and to "[e]nsure improvements proposed on the property and [right of way] will not further impede access to the [right of way] nor across the [right of way] to the beach." (PZC ROR, Item 119, p. 4.) Further, in the commission’s approval, it made it clear that it had deducted "330 sq. ft. of [right of way], resulting in a Zoning Lot Area of 4,970 sq. ft." (PZC ROR, Item 119, pp. 1-2.) Hence, for all practical purposes, it either accepted the Lauridsen’s argument or rendered it moot. Consequently, Lauridsen has not met the burden to prove that the application was incomplete. See King’s Highway Associates v. Planning & Zoning Commission, supra, 114 Conn.App. 515.
Section 47-33c, in relevant part, provides that "[a]ny person having the legal capacity to own land in this state, who has an unbroken chain of title to any interest in land for forty years or more, shall be deemed to have a marketable record title to that interest ..." ---------
For the foregoing reasons, the three appeals are dismissed.
(A) All new construction or substantial improvement shall be located landward of the reach of the mean high tide;
(B) All new construction or substantial improvement shall be elevated so that the bottom of the lowest supporting horizontal member (excluding pilings or columns) is located no lower than one (1) foot above the base flood elevation level, with all space below the lowest supporting member so as not to impede the flow of water ..." (ROR, Item 103, p. 10-20.)
(a) Decks, and patios when located in a rear or side yard and constructed not more than three (3) feet above existing grades shall not be permitted within five (5) feet of any side or rear lot line in the R-6, R-7 and R-12 zones, within ten feet (10) feet of any side or rear lot line in the R-20 and RA-1 zones and within twenty-five (25) feet of any side or rear lot line in the RA-2 and RA-4 zones. Uncovered stairs may be erected in any required front or rear yard, but in the case of a side yard, uncovered stairs may not be erected within five (5) feet of the property line. (6/15/00) (Revised 7/19/2006.)
(b) Decks, and patios when located in the rear or side yard and constructed more than three (3) feet above existing grades shall be considered part of a principal structure and shall not be permitted in a required rear or side yard setback of a principal structure. (Revised 7/19/2006.)
(c) Decks, and patios built at or above existing grade, located in a front yard, shall not be permitted in the required front yard, or side yard setback of a principal structure. (7/19/2006) ... (ROR, Item 103, p. 10-3.)
"RACE determined the wave height and period to be 4.44’ and 3.74 seconds respectively, and the total water level to be elevation +11.8 feet during the 1% storm event. These conditions result in a site specific computed BFE of El. +16’ in the vicinity of the proposed work indicating no increase to the BFE on FEMA’s FIRM Panel No. 09001C0518G." (ROR, Item 49.)
Further, "[a]esthetics as a basis for regulating the use of land has always been suspect because of the obvious subjectivity of aesthetic judgments." T. Tondro, Connecticut Land Use Regulation (2d ed. 1992), p. 109. "Zoning regulations cannot be based on aesthetics, since the enabling statute, General Statutes § 8-2, does not refer to aesthetics as a proper consideration for zoning, unlike statutes in other states. Several cases indicate that aesthetic considerations alone are insufficient to regulate land under the police power." R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (4th Ed. 2015) § 4:48, p. 184. "[A]llowing aesthetic considerations to control zoning without concrete standards would give unlimited discretion to land use agencies to arbitrarily decide land use based on personal preferences of the agency members, or worse, favoritism not subject to any meaningful judicial control or review." Id., p. 185.
"After due consideration, the Board finds there is hardship due to the lot’s shape, size and the location of the property within a flood zone combined with the reduction of nonconformities. "Therefore, the requested variances of floor area ratio, side, rear and front yard setback as shown on zoning location survey titled, Binney Point, LLC, drawn by Rocco V. D’Andrea, dated April 19, 2017, and architectural plans drawn by Joel Moore Architects, titled ZBA Submission, are granted from sections 6-203, 6-205 and 6-128 with the condition that the proposed deck on the northeast side of the dwelling be reduced by 5 feet in the direction of the dwelling. "Mr. Larson made a motion to approve the appeal with conditions which was seconded by Mr. O’Connor, Messrs. Delmhorst, O’Connor, Larson and Weisbrod voted in favor of the motion. Ms. Kilpatrick voted against the motion. "The Board further finds that this relief can be granted without detriment to the public welfare or impairment to the integrity of the regulations." (ROR, Item 94; Item 96.)
Additionally, Weisbrod stated, "[T]here are floodplain rules that have come into play ... It’s a game changer and we have never, that I can think of, voted to deny somebody purely on the basis they’re trying to comply with the flood zone. They’re going to have to raise this property in order to comply with the flood zone. "So however rustic and however charming and however lovely that boathouse was, that’s something in the past. It doesn’t exist anymore in the light of the regulations that have been promulgated since for the floodplain." (ROR, Item 93, p. 154.) Indeed, he also commented that "[i]t’s not necessarily a beneficial thing for the town and so forth to circumvent the FEMA rules for all kinds of reasons." (ROR, Item 93, p. 60.) These comments demonstrate acknowledgment that public safety must ultimately be the foremost consideration over aesthetic considerations. See De Sena v. Board of Zoning Appeals of Incorporated Village of Hempstead, 45 N.Y.2d 105, 108-09, 379 N.E.2d 1144, 1146, 408 N.Y.S.2d 14 (1978). In De Sena, the court reversed the denial of a variance and stated: "Here, the public purpose purportedly served by denial of the variance was an aesthetic one. The board concluded that ‘a dwelling having a width of only 20 feet would not be aesthetically desirable, nor could it as a practical matter be a functional dwelling. This type of a home with a bowling alley appearance would tend to depreciate the value of the other dwellings in the area and would adversely affect the aesthetic character of the area. In its efforts to obtain the maximum financial return from this venture, the developer has created an aesthetic abomination. It is the opinion of this Board that such a practice should not be condoned.’ " Id., 108. In reversing the board’s denial, the court held that the board was not authorized to apply aesthetics as a criterion in considering applications for area variances. Id., 109. It held, "Aesthetic considerations do, of course, constitute a valid public purpose sufficient to justify certain regulation over the use of land ... But when denial of a variance is sought to be justified on aesthetic grounds, the public interest in regulation is not necessarily as strong as in those cases involving threats to the public safety." (Citations omitted.) Id.
(B) The danger to life and property due to flooding or erosion damage;
(C) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner ..." (ROR, Item 103, p. 10-22.)All counsel agree that this particular section does not apply since the defendant was not seeking a variance from the flood hazard regulations of § 6-139.1. Nevertheless, the concerns for danger to life and damage to property are an important part of the comprehensive plan and are reflected in § 6-139.1(h)(5).
Mayer-Wittman v. Zoning Board of Appeals of the Town of Stamford, judicial district of Stamford-Norwalk, Docket No. CV-16-6027735-S (Dec. 29, 2016, Karazin, J.T.R.) (63 Conn.L.Rptr. 599). The petition for certification was granted on February 22, 2017, and the appeal was transferred to the Supreme Court on October 4, 2017, Docket No. SC 19972. The parties in these appeals were given the option to wait for the Supreme Court’s decision in Mayer-Wittman, but chose to pursue the appeal.
Turek v. Zoning Board of Appeals of Milford, supra, Superior Court, Docket No. LND CV-15-6063404-S. The ability to rebuild or conform a waterfront home to comply with federal, state and local building requirements to prevent damage and to address rising waters should arguably not vary from town to town. It should also not depend on the destruction of a dwelling as an antecedent; raising and fortifying dwellings- damaged or not- should be the priority. The legislature should address these issues for Connecticut. See General Statutes § 22a-92(a)(5) and (9).
(b) In determining the acceptability of potential adverse impacts of the proposed activity described in the coastal site plan on both coastal resources and future water-dependent development opportunities a municipal board or commission shall: (1) Consider the characteristics of the site, including the location and condition of any of the coastal resources defined in section 22a-93; (2) consider the potential effects, both beneficial and adverse, of the proposed activity on coastal resources and future water-dependent development opportunities; and (3) follow all applicable goals and policies stated in section 22a-92 and identify conflicts between the proposed activity and any goal or policy.
(c) Any persons submitting a coastal site plan as defined in subsection (b) of section 22a-105 shall demonstrate that the adverse impacts of the proposed activity are acceptable and shall demonstrate that such activity is consistent with the goals and policies in section 22a-92.
(d) A municipal board or commission approving, modifying, conditioning or denying a coastal site plan on the basis of the criteria listed in subsection (b) of this section shall state in writing the findings and reasons for its action.
(e) In approving any activity proposed in a coastal site plan, the municipal board or commission shall make a written finding that the proposed activity with any conditions or modifications imposed by the board: (1) Is consistent with all applicable goals and policies in section 22a-92; (2) incorporates as conditions or modifications all reasonable measures which would mitigate the adverse impacts of the proposed activity on both coastal resources and future water-dependent development activities.
nonconforming use, building or structure existing at the time of the adoption of such regulations" and "shall not provide for the termination of any nonconforming use solely as a result of nonuse for a specified period of time without regard to the intent of the property owner to maintain that use ..." (Emphasis added.) Thus, insofar as the regulations would seek to end the legal, nonconforming use or structure of the defendant, the regulations may be invalid under § 8-2(a) if the owner’s intent to maintain or abandon it was not taken into account. See Taylor v. Zoning Board of Appeals, supra, 696 (holding that "trial court improperly concluded that, when the town enacted the regulation allowing sand and gravel operations in the plaintiffs’ zoning district subject to a special permit, it effectively destroyed the plaintiffs’ nonconforming use and converted it into a permitted use, subject to a special permit"); Cioffoletti v. Planning & Zoning Commission, 24 Conn.App. 5, 9, 584 A.2d 1200 (1991) (holding that trial court properly held that regulation was illegal as applied to plaintiffs’ property because it attempted to prohibit established nonconforming use).