Opinion
No. CV-04-0485320S
March 17, 2005
MEMORANDUM OF DECISION
This is an appeal from a decision of the North Branford Zoning Board of Appeals (ZBA), denying the plaintiff's application for a variance to install a canopy over gasoline pumps at 1645 Foxon Road. It is the decision of this court that the board's ruling was legally proper.
FACTUAL BACKGROUND
In 1996 the previous owner of 1645 Foxon Road obtained a variance for a reduction of the street line setback from fifty feet to two feet on the Foxon Road side and from fifty feet to fifteen feet on the Notch Hill Road side for the installation of two pump island canopies. (Emphasis added.) The property was used as a Shell gas station, with gasoline pumps and an automobile repair garage. Upon the plaintiff's purchase of the property in 2003, the plaintiff sought a variance allowing replacement of the two separate canopies to one canopy measuring 101 feet by 24 feet wide with a total area of 2,122 square feet of which 1,833 sq. feet would be inside the original fifty feet setback line. The plaintiff, in a three to two vote in favor of the variance, was denied the variance by the ZBA. This appeal follows.
The overall square footage of the proposed new canopy differs throughout the record. (R. Tab 9 states 2,122 sq. ft. whereas R. Tab 9 at p. 6 states 2,136 sq. feet). There is also an offer by the plaintiff to reduce the square footage of the new canopy. In the absence of hardship, any discrepancy or proposal to reduce the size of the new canopy is of no moment to this appeal analysis.
AGGRIEVEMENT
Pursuant to C.G.S. § 8-8(a)(1) an "aggrieved person" "includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board." The plaintiff's representative, Mr. Jayanti Patel, testified that he was a managing member of North Branford Gas Associates, L.L.C. North Branford Gas Associates purchased 1645 Foxon Rd. in December of 2003. The plaintiff, as owner of the property, is aggrieved.
REVIEW ON APPEAL
The trial court's scope of review on appeal is limited.
[C]ourts are not to substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . ." (internal quotation marks omitted.) Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547 (1996). The trial court's function is `to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board's] findings . . . [E]vidence 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 . . .
Stancuma v. Zoning Board of Appeals of the Town of Wallingford et al., 66 Conn.App. 565, 568 (2001).
In the present case each of the five voting members of the board offered hardship as their reason for voting for or against plaintiff's request for a variance. "Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance . . . A mere economic hardship or a hardship that was self-created, however, is insufficient to justify a variance . . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance. (Citations omitted; internal quotation marks omitted.) Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, 570 (2001)." Dupont v. Zoning Board of Appeals of Manchester, 80 Conn.App. 327 (2003). After a careful review of the record and arguments of counsel this court finds there is no hardship. In the absence of hardship, the board's denial of the variance was proper.
The vote was three to two in favor of the plaintiff. C.G.S. § 8-7 states: "The concurring vote of four members of the zoning board of appeals shall be necessary . . . to decide in favor of applicant . . . to vary the application of the of the zoning bylaw, ordinance, rule or regulation . . ."
The transcript does not reflect a notation of "61.3" et seq. (a reference to the North Branford zoning regulations specifically referring to hardship) in Member Katon's negative vote, (Record, tab 17). A reading of the entire transcript, however, indicates that Mr. Katon did not believe there was a hardship and voted accordingly. "Where a zoning board of appeals does not formally state the reasons for its decision, however, the trial court must search the record for the board's decision." Stancuma v. Zoning Board of Appeals, 66 Conn.App. 565, 571 (2001).
Keeping patrons of the gasoline pumps and of the proposed convenience store covered from the elements and making customers more visible to the cashier from the inside do not constitute hardship. The record reflects there was concern regarding the installation of a fire suppression system. It was determined that a fire suppression system can and must be installed with or without a canopy.
The plaintiff cites Dotson v. Boatyard, L.L.C. v. Planning and Zoning Board, 77 Conn.App. 334, (2003) cert denied 365 Conn. 908 (2003) in support of his claim. In Dotson, a 1983 variance had reduced the setback from fifty feet to six feet on one of several tracts of land. Subsequently, the plaintiff unsuccessfully applied to have modified a special use permit that would allow for the presence of storage containers. The board in Dotson argued that the variance "was granted so that the plaintiff's predecessor in title could erect one building only and never was intended to reduce the entire rear yard setback for lot nine." Dotson at 338. In affirming the trial court's ruling, reversing the board's decision, the appellate court noted that the variance was granted "to permit a reduction in rear yard setback to 6 feet and increase the floor area ration to 0.41 and that no limitations were imposed." Id. at 339 (internal quotations omitted) (emphasis added).
The 1983 variance in Dotson is specific only to the setback and the floor area ration. In contrast the 1996 variance in the present case is specific as to the setback "for the installation of two pump island canopies." The specificity of the variance in this case is in direct contrast to the generality of the Dotson variance.
The plaintiff also argues that the granting of the variance would "at worst constitute a lawful intensification of a nonconforming use which also requires no variance." (Plaintiff's Brief, p. 10.) The property in question has historically been a gasoline station. The plaintiff's intent is to continue to operate a gasoline station. There is nothing nonconforming about the property being used as a gasoline station. The location and size of canopies over gasoline pumps are not nonconforming uses of the property.
The plaintiff also argues he did not need to apply for a new variance because the 1996 variance allowed him to make the requested canopy changes. It was only in an over abundance of caution did he apply for a new variance in 2003. The plaintiff argues that this court should rule that the 1996 variance is controlling and the language of the variance allows him to make the canopy changes. The court does not agree. The 1996 variance stated ". . . for the installation of two pump island canopies." The plaintiff, by wanting to convert to one larger canopy, required approval of a new variance. The plaintiff's decision to seek a new variance was a legally correct decision.
Defendant's Oral Motion to Dismiss
At trial, the defendant orally moved to have the appeal dismissed, arguing that the plaintiff's claims had become moot because the property in question was in fact presently operating as a gasoline station. The plaintiff declined to comment on the defendant's assertion and indicated to the court that he wished to pursue this appeal and if he were to prevail he would install the requested canopy.
Mootness implicates [the] court's subject matter jurisdiction and is thus a threshold matter . . . It is well-settled general rule that the existence of an actual controversy is an essential requisite to [appeal] . . . Sweeney v. Sweeney, 27 Conn. 193, 201 (2004).
Avalonbay Communities, Inc. v. Zoning Commission, 87 Conn. 537, 542 (2005).
There is little question that an actual controversy still exists. Connecticut Automobile Coverage, Inc. v. American International Group, Inc., 87 Conn.App. 820, 823 (2005). If successful on appeal, the plaintiff would opt for the one larger canopy even, if as alleged by the defendant, the business is presently being operated without it. The relief sought by the plaintiff from the zoning board is the same relief being sought on appeal. The issue is not moot.
Conclusion
The requisite hardship is absent. Therefore, the defendant board's ruling on the plaintiff's 2003 request for a variance was legally proper.
Bernadette Conway, Judge