Opinion
No. CV 04-0490740
March 13, 2006
MEMORANDUM OF DECISION
This is a zoning appeal that arose from, first, the denial by the Madison Zoning Board of Appeals of the plaintiffs' application for a variance; and, second the denial by the Madison Zoning Enforcement Officer's of the plaintiffs' application for a Building Permit. The pertinent facts in this matter are basically undisputed. The dispute is over first, whether the Madison Zoning Board of Appeals properly denied the plaintiffs' request for a variance; and second, whether the plaintiffs did, in fact, require a variance from the Madison Zoning Board of Appeals in order to perform their proposed renovations.
The plaintiffs made application for a variance on March 29, 2004. The Zoning Board denied the variance on May 12, 2004. The file with the docket number CV 04 0490740 addresses the application for a variance and the Zoning Board's denial of it.
The plaintiffs made application for Plan Examination and Building Permit on June 22, 2004. The Madison Zoning Enforcement Officer denied the application on July 30, 2004. The file with the docket number CV 04 4004407. The decision of the Zoning Enforcement Officer was upheld by the Madison Zoning Board of Appeals.
Both parties briefed and argued these two legal issues in dispute. The court has carefully examination of the facts and given due consideration to the legal arguments and positions of the parties. The court finds, for reasons which are more fully set forth below, that the Madison Zoning Board of Appeals properly denied the plaintiffs' request for a variance, and that a variance is required pursuant to the Madison Zoning Regulations to permit the renovations proposed by the plaintiffs.
Factual Findings
1. The plaintiffs, Larry Moon and Sherry Moon, are resident and owner of 26 Woodlawn Avenue, Madison, Connecticut, respectively.
2. The property is located in an RU-2 zone which has front setback and coverage requirements.
3. The property located at 26 Woodlawn fails to meet the requirements of the Madison Zoning Regulations.
CT Page 4449
4. The Madison Zoning Regulations require a 40-foot set-back, while the plaintiffs' house is only setback 18.8 feet.
5. The plaintiffs' house is a non-conforming building.
6. Section 12 of the Madison Zoning Regulations directly addresses non-conforming buildings and uses.
7. The Moons' proposed renovations would increase the height of the house, by adding a second story, but would not exceed the original footprint of the house.
8. The proposed renovations would increase the square footage in the house from 2,105 square feet to 3,026.
9. The Moons claim that the lot is undersized with only a small strip of buildable land.
10. The Moons originally, on March 29, 2004, sought to obtain a variance from the Zoning Board of Appeals in order to perform their renovations.
11. On May 12, 2004, the Madison Zoning Board of Appeals denied the application for a variance on the basis that the proposed expansion would not be harmony with the surrounding neighborhood.
12. The Madison Zoning Board of Appeals further found, when deciding the plaintiffs' application for a variance, that the plaintiffs failed to establish exceptional difficulty or unusual hardship.
13. Subsequent to the denial of the application for a variance, the Moons requested a Building Permit from the Madison Zoning Enforcement Officer.
14. The Madison Zoning Enforcement Officer denied the Moons' request for a Building Permit, applying the Madison Zoning Board's long-standing interpretation that the zoning regulations prohibit vertical expansions to non-conforming structures within the setback area.
CT Page 4450
Aggrievement
The plaintiffs are the owner and resident of the property in question. Section 8-8(1) of the General Statutes defines an aggrieved person as a "person aggrieved by a decision of a board . . . "An" `aggrieved person' — includes any person owning land that abuts or is within the radius of one hundred feet of any portion of the land involved in the decision of the board." The common law provides for a two-part test to establish classic aggrievement. A person claiming aggrievement must demonstrate a specific, personal and legal interest in the subject matter of the decision; and must establish that this specific personal and legal interest has been specifically and injuriously affected by the decision. Walls v. Planning Zoning Commission, 176 Conn. 475, 477-78, 408 A.2d 252 (1979). The court has jurisdiction to entertain cases brought by those who are statutorily or classically aggrieved. Based upon the evidence adduced during the hearing, this court finds that the plaintiffs have both established the requisite aggrievement.Section 12 of the Madison Zoning Regulations
Legally, there is no dispute that the relevant zoning provision is Section 12 of the Madison Zoning Regulations which provides in pertinent part the following.
Any non-conforming use or building lawfully existing at the time of the adoption of these regulations or of any pertinent amendment thereto, may be continued and any building so existing which was designed, arranged, intended for or devoted to a non-conforming use may be re-constructed and structurally altered, and the non-conforming use therein changed subject to the following regulations . . . No building which does not conform to the requirements of these regulations regarding building height limit, area and width of lot, percentage of lot coverage, and required yards and parking facilities shall be enlarged unless such enlarged portion conforms to the regulations applying to the district in which it is located. (Emphasis added.)
Section 12 of the Zoning Regulations Requires the Issuance of a Variance The precise wording of this regulation is extremely important because the exact terms require this court to dismiss the plaintiffs' appeal, notwithstanding the court's sympathy for their position. "The words [employed] in zoning ordinances are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms." Coppola v. Zoning Board of Appeals, 23 Conn.App. 636, 641, 583 A.2d 650 (1990). Further, "[a] court must interpret a statute as written . . . and it is to be considered as a whole, with a view toward reconciling its separate parts in order to render a reasonable overall interpretation . . . A zoning ordinance is a local legislative enactment, and in its interpretation the question is the intention of the legislative body as found from the words employed in the ordinance." (Citation omitted; internal quotation marks omitted.) Connecticut Resources Recovery Authority v. Planning Zoning Commission, 46 Conn.App. 566, 571, 700 A.2d 67 cert. denied 243 Conn. 935, 702 A.2d 640 (1997).
The court interprets the Madison Zoning Regulations to permit a non-conforming building to be expanded or enlarged only if the new and enlarged portion of the building meets the zoning requirements. As stated earlier, the zoning regulations require buildings within the plaintiffs' zone to be set back at least 40 feet. By adding a second story to their house, which is only set back 18 feet, the plaintiffs would be adding a new and enlarged portion of the building which does not conform to the zoning regulations. Given this fact, the renovation could only be permitted if the Zoning Board of Appeals granted a variance.
Madison Zoning Board of Appeals Properly Denied the Variance
Turning to the plaintiffs' claim that the Madison Zoning Board improperly denied their request for a variance, this court finds that position unsupported. "In order to justify the granting of a variance, a zoning board of appeals must find that two conditions have been satisfied: 1) the variance must be shown not to affect substantially the comprehensive 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. Francini v. Zoning Board of Appeals, 228 Conn. 785, 790 (1994); Smith v. Zoning Board of Appeals, 174 Conn. 323, 326 (1978)." Bertini v. New Haven Zoning Board of Appeals, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 020468557 (Radcliffe, J., February 19, 2003) ( 34 Conn. L. Rptr. 153). The comprehensive plan consists of the zoning regulations. Burnham v. Planning Zoning Commission, 189 Conn. 261, 267 (1983). The record reveals that the Board found that the proposed renovations by the plaintiffs are not in conformity with the comprehensive plan of Madison and that they were not in harmony with the surrounding neighborhood. The plaintiff attacks the Boards' finding that the proposed renovated house would be "too bulky." However, this factual determination by the Board that the heft and size of the renovated home would not be in line or in keeping with the comprehensive plan — the zoning regulations — is within the proper province of the Board to make.
The plaintiffs have failed to establish a legal hardship — though they certainly established inconvenience and a certain amount of hostility towards them on the part of the some Zoning Board of Appeals members.
Because the Madison Zoning Regulations require that the plaintiffs obtain a variance; and because the record supports the denial of the variance by the Madison Zoning Board of Appeals the court must dismiss the appeal.
Cases Relied Upon by Plaintiffs All Distinguishable in Pertinent Ways
Briefly, the court will address certain specific arguments enumerated by the plaintiffs, relying on various other holdings of the Superior and Appellate courts. Doyen v. Zoning Board of Appeals, 67 Conn.App. 597, 789 A.2d 478 (2002); Vivian v. Zoning Board of Appeals, 77 Conn.App. 340, 823 A.2d 374 (2003); Raymond v. Zoning Board of Appeals of Norwalk, 76 Conn.App. 222, 820 A.2d 275, cert. denied 264 Conn. 906, 826 A.2d 177 (2003); Munroe v. Zoning Board of Appeals of Branford, 75 Conn.App. 796, 818 A.2d 72 (2003); Bertini v. New Haven Board of Zoning Appeals, Superior Court, Judicial District of New Haven at New Haven, Docket No. CV 020468557 (Radcliffe, J., February 19, 2003); Pinchbeck v. Guilford Zoning Board of Appeals, Superior Court, Judicial District of New Haven at New Haven, Docket No. CV980412007 (Radcliffe, J. November 12, 2002).
There is great appeal in the plaintiff's argument that because their second story addition stays within the "footprint" of the existing house; and because there are many cases which find this sufficient, then the decisions of the Madison Board of Zoning Appeals and the Madison Zoning Enforcement Officer are wrong. After all, the Moon's proposed addition will not increase the nonconforming use; it will not increase the non-conformity; it will not increase the non-conforming characteristic of the house. These are all factors which other courts have found relevant in determining that a landowner is legally permitted to expand a non-conforming building without the necessity of a variance. However, all of those holdings are readily distinguishable from the instant matter because of the specific language used in each of the various zoning regulations; and because of the different positions taken by the zoning officials interpreting and applying their own regulations.
It is relevant and important to note that, with one exception, in each of the cases cited by the plaintiffs the zoning officials interpreted their own regulations to obviate the need for a variance. In order words, with the exception of one case, each of the zoning officials believed that the landowner did not need a variance to renovate or add on to a non-conforming building. These officials interpreted their regulations liberally, to allow for additions to non-conforming structures, because of the specific wording of their zoning regulations.
For instance, in Doyen v. Zoning Board of Appeals, 67 Conn.App. 597 (2002), the Zoning Board of Appeals held that there was no need for a variance because the homeowners wanted to merely vertically add to their home and Essex zoning regulations did not prohibit this vertical expansion. The Essex regulations provided that: "[n]o nonconforming use or characteristic of any land or improvement shall be enlarged, extended, or expanded." (Emphasis added.) Essex Zoning Regulations, section 50D. Neither the zoning officials, nor the Connecticut Appellate Court considered vertical expansion to be an increase in a nonconforming use or characteristic.
In Raymond v. Zoning Board of Appeals, 76 Conn.App. 222 (2003) the Connecticut Appellate Court held that the trial court improperly substituted its judgment for that of the board when it found that a landowner's deck enclosure required a variance. The Norwalk Zoning Regulations allowed enlargement of a nonconforming structure as long as " the result would not be an increase in the extent to which the structure does not conform to these regulations." (Emphasis added.) Norwalk Zoning Regulations, section 118-800(D). The zoning officials interpreted this to mean that the vertical expansion of the deck, within the existing footprint of the building, did not "increase the extent to which the structure does not conform to [the] regulations." The Appellate Court agreed and reversed the trial court to the extent that the trial court found otherwise.
One of the precise questions that the Appellate Court considered in Raymond, in light of the specific language of the Norwalk regulations, was "whether the deck, which is attached to and part of the building, properly can be expanded vertically where that expansion does not involve any further extension beyond the existing building footprint." Id. at 242. Because the court found the Norwalk zoning regulations to be more permissive and because the specific language of the Norwalk zoning regulations did not prohibit vertical expansion, the appellate court answered the question affirmatively.
In a similar case, the Appellate Court upheld the trial court in Vivian v. Zoning Board of Appeals, 77 Conn.App. 340 (2003) because the trial court properly concluded that the Clinton Zoning regulations "do not explicitly safeguard vertical setbacks insofar as additions to structures are concerned." Id. at 349. In Clinton, the regulations prohibited any "non-conforming . . . building . . . [from being] enlarged . . . to include any land . . . which is not subject to such non-conformity . . ." (Emphasis added.) Clinton Zoning Regulations, section 13.1.1. By adding a dormer within the footprint of the house, the addition remained within the footprint of the existing building and did not add on to non-conforming land. Id. at 352. Therefore, the appellate court upheld the trial court's conclusion that the Clinton regulations permitted the proposed expansion.
In only one of the appellate court cases listed above did the court find that the zoning officials mis-interpreted their own zoning regulations. See Munroe v. Zoning Board of Appeals of Branford, supra. Ironically, this is the one case in which the local zoning board and the trial court reached conclusions most favorable to the plaintiffs. The Zoning Board of Appeals of Branford upheld the determination of the Zoning Enforcement official that no variance was required when the landowner was merely adding a second story to a non-conforming building. The Branford zoning regulations required that ". . . [no] building . . . devoted to a nonconforming use shall be enlarged, reconstructed or structurally altered, except where the result of such changes is to reduce or eliminate the nonconformity . . . No nonconforming building or structure shall be enlarged, extended, reconstructed or structurally altered, if the result would be an increase in nonconformity." (Emphasis added.) Zoning Regulations, section 5.7
The relevant question the Appellate Court asked and answered was, in light of the language of the Branford Zoning Regulations, "whether the addition of a second story to the . . . garage, which does not enlarge the existing ground level footprint, would be an extension, enlargement, reconstruction or structural alteration that increases the nonconformity." Id. at 805. Examining the zoning regulations as a whole, and considering legal principles relevant to "nonconforming use" the court answered "yes." The court concluded that "[t]he addition of a second story is not a negligible or cosmetic change . . . [And] the certificate should not have issued to the defendant . . . without a variance." Id. at 810-11. The appellate court in Munroe concluded that Branford regulations looked to the result, and were more strict in seeking to have all structures conform to the regulations.
There is, without a doubt, some tension between the outcome and holding reached in Munroe and the one reached in Doyen. The difference in outcome turns exclusively on the distinct language in the specific zoning regulations at issue and on the different legislative intent embodied in the regulations, as a whole. While this court would have certainly understood if the Munroe Appellate Court had reached a different conclusion, given the specific language of Branford's zoning regulations, the appellate court conclusion is reasonable.
In the instant matter, the Madison Zoning Board has interpreted its zoning regulations strictly. The board found that the zoning regulations did restrict a landowner's ability to add to non-conforming property, whether vertically or otherwise. The board also concluded that the regulations require any new portion on a non-conforming building to comply with the zoning regulations, including the set-back provisions. This interpretation is supported by the Appellate Court holding in Munroe v. Zoning Board of Appeals. And, it is not challenged by the court decisions in Doyen v. Zoning Board of Appeals, Vivian v. Zoning Board of Appeals, or Raymond v. Zoning Board of Appeals because the regulations in those cases are clearly distinguishable from Madison's. Similarly, the New Haven and Guilford zoning regulations at issue in Bertini v. New Haven Zoning Board of Appeals, and Pinchbeck v. Guilford Zoning Board of Appeals are distinguishable from the pertinent provisions in this case.
While this court is empathetic to the plaintiffs' plight, the Madison zoning officials exercised their discretion properly in denying the plaintiff's request, first for a variance and then for a building permit. Notwithstanding the seemingly encouraging and supportive language in various cases, the Madison legislative body has made quite clear that it intends to limit and monitor any additions to non-conforming buildings so that they comply with the town's regulations.
For the foregoing reasons, the court dismisses the plaintiffs' appeal.