Opinion
FSTCV166027735S
12-29-2016
Karl Mayer-Wittman, Executor v. Zoning Board of Appeals of the City of Stamford et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
EDWARD R. KARAZIN, JUDGE
This case comes to this court as an administrative appeal from a decision of the Stamford Zoning Board of Appeals.
The defendant, Paul Breunich, owns property at 106 Carter Drive in the city of Stamford. This 0.96 acre property is located within the R-10, Single Family District, Low Density Zone, and is also located within both the VE and AE Flood Zones. (Return of Record [ROR] 1, p. 2, ROR 13, p. 4.) On his property, the defendant has a primary residence and multiple ancillary structures, including a sea cottage. (ROR 1, p. 16; ROR 20, pp. 23-24.) The sea cottage is the ancillary structure at issue in this case. The Zoning Board of Appeals of the city of Stamford, hereinafter ZBA, granted the defendant two new variances for the sea cottage that allowed the structure to exceed the maximum height limitation for an ancillary structure and move three feet further north in violation of the rear yard setback requirement. (ROR 22.) The plaintiff, Karl Mayer-Wittmann, is the executor of the estate of Gerda Mayer-Wittmann and owner of the property adjoining the defendant's.
During his testimony, the plaintiff stated that his name is spelled Wittmann. The summons incorrectly lists his name as Wittman.
During Hurricane Sandy in 2012, the defendant's sea cottage was damaged and has been uninhabited since that time. (ROR 1; pp. 2-3.) The sea cottage was built in about 1920, which predates the adoption of the Stamford Zoning Regulations. (ROR 11; ROR 20, pp. 5-7.) The cottage currently stands at a height of eighteen feet ten inches, is four and one-half feet from the side yard setback, and twenty-three feet from the rear yard setback. (ROR 1; pp. 2-3.) The current city of Stamford zoning regulations only allow accessory structures to have a height of fifteen feet. In his application filed on December 1, 2015, the defendant requested two new variances regarding the sea cottage at issue in this case: (1) permit the cottage to be twenty-six feet from the rear yard setback instead of the required thirty, and (2) permit the raising of the nonconforming sea cottage to twenty-seven feet nine inches in lieu of the fifteen feet permitted. (ROR 1, p. 2.) The base of the sea cottage currently rests 8.7 feet above the ground. (ROR 13, p. 3.)
The Stamford Zoning Regulations were adopted on November 30, 1951.
Stamford Zoning Regulations, Article III, § § 6.A and 6.D.
The other requested variances were to maintain the already nonconforming aspects of the sea cottage. They include: (1) allow the sea cottage to remain at four feet five inches from the side yard setback, (2) allow the existing rear deck and stairs to remain 20 feet from the rear yard setback instead of the required thirty feet, (3) permit the continued existence of a nonconforming structure in a rear yard less than five feet from the side lot line, and (4) permit the continued existence of an accessory structure less than ten feet from the side lot line.
After hearing arguments from the plaintiff and defendant, the ZBA deliberated and issued a written certificate of decision granting the defendant's requests for variances on January 28, 2016. (ROR 22.) The certificate of decision stated that the board found that the strict application of the zoning regulations would deprive the applicant of reasonable use of his land or buildings. (ROR 22, p. 2.) The board further found that these are the minimum variances necessary to afford relief to the defendant and that the granting of these variances would not be injurious to the neighborhood. (ROR 22, pp. 2-3.) The plaintiff subsequently filed an appeal with this court pursuant to General Statutes § 8-8. A trial was held to this court on this matter on November 16, 2016.
" As our Supreme Court has explained, a variance constitutes authority extended to the owner to use his property in a manner forbidden by the zoning enactment." (Internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, 155 Conn.App. 657, 678, 111 A.3d 473 (2015). General Statutes § 8-6(a)(3) provides that a zoning board of appeals has the power " 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 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 . . ."
" 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." (Internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 678-79. " As a result, a zoning board may not exercise this authority unless two basic requirements are satisfied: (1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan." (Internal quotation marks omitted.) Amendola v. Zoning Board of Appeals, 161 Conn.App. 726, 737-38, 129 A.3d 743 (2015).
" In order to determine whether the board properly granted the subject variance, [courts] must first consider whether the board gave reasons for its action." (Internal quotation marks omitted.) Moon v. Zoning Board of Appeals, 291 Conn. 16, 25, 966 A.2d 722 (2009). " [W]hen a zoning board states the reasons for its action, the question for the court to pass on is simply whether the reasons assigned are reasonably supported by the record and whether they are pertinent to the considerations which the commission is required to apply under the zoning regulations." (Internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 672-73. " In reviewing a decision of a zoning board of appeals, [i]t is well settled that courts are not to substitute their judgment for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . Upon appeal, the [Superior Court] reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . . The critical inquiry is whether the board's decision is supported by the evidence contained in the administrative record. In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record." (Citations omitted; internal quotation marks omitted.) Id., 677-78. The court " must review the entire record to ascertain whether the evidence reveals any proper basis for the board's decision to grant the variances . . ." (Internal quotation marks omitted.) Amendola v. Zoning Board of Appeals, supra, 161 Conn.App. 736. Put simply, " [t]he Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal." R& R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).
" The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). Further, " [t]he scope of review requires the appealing aggrieved party to marshal the evidence in the record, and to establish that the decision was not reasonably supported by the record." (Internal quotation marks omitted.) JPI Partners, LLC v. Planning & Zoning Board, 259 Conn. 675, 688, 791 A.2d 552 (2002).
The plaintiff argues that the ZBA acted in abuse of its discretion because the defendant failed to prove a unique and sufficient hardship to the property that required a variance. In addition, the plaintiff argues that the variance is the result of personal preference and financial concerns, not necessity. Finally, the plaintiff argues that the defendant failed to prove that the variance requested was the minimal relief necessary.
The defendant argues that substantial evidence of unusual hardship on the record supports the ZBA's decision. Further, the defendant argues that the zoning regulation did not affect the comprehensive zoning plan already in effect for the neighborhood in question. In addition, the defendant argues that the granting of the variance in this particular case eliminates and reduces some existing nonconformities by bringing the sea cottage into compliance with FEMA and city of Stamford regulations regarding flood control. Finally, the defendant argues that the plaintiff failed to sustain its burden to show that the ZBA acted improperly.
General Statutes § 8-8(b) provides in relevant part: " any person aggrieved by any decision of a [zoning] board . . . may take an appeal to the superior court for the judicial district in which the municipality is located . . ." Pursuant to General Statutes § 8-8(a)(1), " [i]n the case of a decision by a . . . zoning board of appeals, 'aggrieved person' includes 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." " Those persons who come within § 8-8(a)(1) are statutorily aggrieved and are not required to plead and to prove the elements of classical aggrievement. Lucas v. Zoning Commission, 130 Conn.App. 587, 591, 23 A.3d 1261 (2011). In the present case, the plaintiff testified that he owns the property adjoining 106 Carter Drive, and the defendant did not submit evidence to the contrary. Therefore, the plaintiff established aggrievement under § 8-8.
The plaintiff argues that the defendant failed to establish a unique hardship that distinguishes his property from others similarly situated. " 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." (Internal quotation marks omitted.) Amendola v. Zoning Board of Appeals, supra, 161 Conn.App. 738-39. " [T]he requirement that a claimed hardship must be unusual and unique to the property is a fundamental one in zoning law . . . As [our Supreme Court] explained, [o]ne seeking a variance must show that his property is peculiarly disadvantaged by the operation of the zoning ordinance and not merely that a general hardship, equally applicable to other properties in the neighborhood, results from a strict enforcement of the code." (Internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 718.
The defendant submitted several pieces of evidence to the ZBA establishing a unique hardship. First, the defendant's property is located within both the VE and AE flood zones, and the city of Stamford includes more stringent flood regulations. (ROR 1, p. 2; ROR 13, p. 4; ROR 20, p. 65.) The location of the defendant's sea cottage would require the structure to be raised an additional eight feet from the ground to comply with flood regulations. (ROR 20, p. 14.) Given the already nonconforming nature of the sea cottage, it would be impossible for the defendant to meet the more stringent flood zone restrictions without further increasing the height of the sea cottage. Second, the defendant argued during his presentation to the ZBA that the soil where the sea cottage currently stands is not sound enough to simply raise the structure, and in order to find stable soil for the pylons designed to raise the sea cottage, the structure must be moved three feet north. (ROR 20, pp. 11-12.) To support his claim, the defendant supplied a detailed topographical survey of the soil conditions on his property. (ROR 1, p. 14-19.) Finally, the record is sufficient to show that the board could have found that the uninhabitable condition of the sea cottage, coupled with the need to meet new regulations for flood control safety were sufficient to grant a variance in this case. The members of the ZBA in fact emphasize the unique nature of this circumstance despite several residential structures in the area being subject to the same flood restrictions. In relevant part: " The reason this is here is because it's an accessory building." (ROR 20, p. 63.) " [I]f this were a main house they wouldn't need these variances . . ." (ROR 20, p. 63.) " Dr. White: I think we are going to see a lot more of these because of the FEMA regs . . . Board Member: There is a difference here. I think we are not because the regulations have been rewritten on main houses, but this is an accessory structure." (ROR 20, p. 63.) Therefore, after considering all the information available in the record, the ZBA did not abuse its discretion when finding a unique hardship to this property.
The Stamford Flood Prone Area Regulations require that the minimum elevation of a structure be one foot higher than defined in the FEMA's Flood Insurance Rate Maps. The map for the property at issue in this case is contained in the record. (ROR 13.)
" [I]t is also well established that self-inflicted hardship which arises because of individual actions by the applicant will not provide a zoning board of appeals with sufficient reason to grant a variance . . . Hardships in such instances as these do not arise from the application of zoning regulations, per se, but from zoning requirements coupled with an individual's personal needs, preferences and circumstances. Personal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance." (Citation omitted.) Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239-40, 303 A.2d 743 (1972). Particularly, " neither the applicants' personal desire to expand their existing nonconforming structure to obtain additional, more comfortable space nor their desire to modernize that structure constitute legal hardship under our law." Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 695. With respect to nonconforming structures, " the existence of a legally existing nonconformity cannot, in itself, justify the granting of variances to expand that nonconformity." Id., 688.
In the present case, the increased nonconformity does not have the singular purpose of enhancing the defendant's personal use of the sea cottage, but instead has the purpose of bringing the sea cottage into compliance with the current FEMA and city of Stamford flood regulations. The only way for the defendant to comply with both of these regulations is to increase the height of the structure by elevating the lowest horizontal point of the home an additional eight feet. (ROR 20, p. 14.) The record shows that the usable space of the sea cottage is not increasing, but the existing structure is simply moving upward and three feet north to meet flood requirements. (ROR 1, p. 2; ROR 15; ROR 20, pp. 10-12.) In addition, the livable space within the sea cottage is not changed as a result of the variance. (ROR 20, pp. 36-37.) The ZBA not only discussed that the livable space within the sea cottage would remain the same, but also made this fact a condition in its final order granting the variance. (ROR 20, pp. 36-37; ROR 22, p. 3.) During its discussions, a member of the ZBA clearly states that the request looked favorable because it focused simply on eliminating the hardship of bringing the sea cottage into compliance with the applicable flood regulations.
" That's why I said what I like about this presentation is they honestly stayed within what I consider a reasonable request, a hardship. It's that FEMA requires X and the city requires one more foot, that's it. And I think that's reasonable." (ROR 20, p. 65.)
The plaintiff argues that the defendant did not show that the variance was the minimal relief necessary to accomplish his goals with the sea cottage. " [V]ariances should be granted sparingly and narrowly tailored to alleviate the hardship complained of." Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 681. " Because a variance affords relief from the literal enforcement of a zoning ordinance, it will be strictly construed to limit relief to the minimum variance which is sufficient to relieve the hardship." (Internal quotation marks omitted.) L& G Associates, Inc. v. Zoning Board of Appeals, 40 Conn.App. 784, 788, 673 A.2d 1146 (1996). In the present case, the ZBA granted the specific relief that the defendant requested, and also placed conditions to ensure that the variance did not exceed the specific scope of allowing for greater compliance with the new flood control regulations. (ROR 22, pp. 2-3.) See also note 5, supra .
The defendant argues that independent of any hardship, the ZBA could have granted a variance based upon the reduction of a nonconforming use. " In cases in which an extreme hardship has not been established, the reduction of a nonconforming use to a less offensive prohibited use may constitute an independent ground for a variance." Vine v. Zoning Board of Appeals, 281 Conn. 553, 562, 916 A.2d 5 (2007). In furtherance of this argument, the defendant presents Hescock v. Zoning Board of Appeals, 112 Conn.App. 239, 962 A.2d 177 (2009), which has a similar fact pattern to the case at issue. In Hescock, the defendant wanted to construct an entirely new home three feet further away from the high tide line on his property to better meet flood regulations. Hescock v. Zoning Board of Appeals, supra, 112 Conn.App. 242-43. The defendant explained the hardship as " [replacing] an existing home below the base flood elevation with new construction that will meet all flood regulations . . ." Id. The zoning board granted the variance, and after an appeal, the appellate court found that " the board's conclusion that the new construction will address and improve flood zone issues is not arbitrary, illegal or an abuse of discretion." Id., 254. " The board's failure to specifically state, orally or in writing, that it had made these findings does not amount to an exercise of discretion that is arbitrary, illegal or an abuse of discretion." Id., 255. In the present case, the ZBA did not specifically include in its decision the fact that flood control regulations were a factor in its decision. (ROR 22, pp. 2-3.) The members of the ZBA did however discuss this issue when deliberating the merits of granting the defendant's variance. (ROR 22, pp. 60-75.)
The plaintiff argues that Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 657, is controlling in this instance because it occurred later in time than Hescock . There is however an important distinction between Hescock and Verrillo. Hescock v. Zoning Board of Appeals, supra, 112 Conn.App. 245, involved the entirely new construction of a more flood compliant structure after the previous structure was rendered uninhabitable by a storm. Making the new structure compliant with flood regulations, but still being in violation of the zoning regulation regarding proximity to the high tide line, was a reduction in a nonconforming use and helped ensure safety. Id., 254-55. Verrillo, on the other hand, dealt with a situation where the defendant applied for a variance on the grounds that he needed more living space and wanted to modernize his residential dwelling. Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 664. Due to the nature of his property, the defendant in Verrillo could not expand his home horizontally in any direction without violating zoning ordinances, so he applied for multiple variances to increase the size of his home. Id. The zoning board approved the requested variances. Id., 670. The court found that the defendant purchased the home and property understanding the limitations inherent to them, and thus, the board's decision to grant these variances only on the grounds of personal hardship was insufficient. Id., 725. Thus, the court overturned the board's ruling as an abuse of discretion because it was allowing for a variance based upon convenience and personal hardship, not a hardship inherent in the property. Id.
The present case is more similar to Hescock . In the present case, the ZBA members discussed that the defendant was only asking for the minimum increase in height to meet the revised flood zone regulations of both the city of Stamford and FEMA. (ROR 20, pp. 14-16.) In addition, the livable space of the cottage did not increase as a condition of granting the variance. (ROR 20, pp. 36-37; ROR 22, p. 3.) Thus, the ZBA did not abuse its discretion when granting the defendant a variance after hearing all evidence before it and determining that greater compliance with flood control regulations was a sufficient reason to allow this variance. In a further attempt to reduce nonconformities on the defendant's property, the ZBA ordered the defendant to bring the other noncompliant accessory structures on his property into compliance as a condition precedent to any construction on the sea cottage. (ROR 20, p. 60; ROR 22, p. 3.)
" The plan is compliant with the flood, the flood regulations as they exist now and in order to bring that or do anything to restore the property which is an eyesore apparently now . . . I would vote to allow them to go forward with that plan that brings that place into conformity." (ROR 20, p.62.)
Accordingly, the court finds that the board did not act unreasonably, arbitrarily, or in abuse of its discretion in granting the variance, and the plaintiff's appeal is dismissed.
SO ORDERED.