Opinion
No. FST CV 08 4013155 S
July 15, 2009
MEMORANDUM OF DECISION
This case comes to this court as an appeal from the actions of the planning and zoning board of appeals of the town of Greenwich (Board). The Board granted the appeal of Chester Miller and Nicole Standish, owners of 17 Nawthorne Road, Old Greenwich, Connecticut, for a variance of the required side yard to permit a portion of a dwelling to remain in the R-12 Zone. The plaintiffs Lorraine Slavin, Trustee, and Mann D. Levion are the record owner and beneficial owner of 7 Little Cove Place, Old Greenwich, which abuts the subject property.
The law on the standard of review for this court is clear. It is the application of the facts in this case to the standard of review that creates the dispute. The parties agree that a variance was granted by the Board to allow the garage to be 11 feet from the new lot line, whereas 14.3 feet is required. The court found at the hearing that the plaintiffs were legally aggrieved.
The plaintiffs allege that there was not sufficient legal hardship to sustain the decision of the Board, as stated in paragraph fourteen of the appeal. The burden of proof to show the Board acted improperly is on the plaintiffs. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988); Gevers v. Planning Zoning Commission, 94 Conn.App. 478, 483, 892 A.2d 979 (2006).
The defendants are the owners of a parcel of land in Greenwich. The zone they are in requires building lots to be 12,000 square feet. Accordingly, their parcel of land in excess of 46,000 square feet can be divided under the subdivision regulations into two lots. Each of the lots conform in all respect to the zoning regulations which apply to the neighborhood. Both lots exceed the required size and required no variances. The existing house, where the defendants live, has an attached garage. The garage is 31.2 feet from the property line of the next lot on the south. Note, this is not the plaintiffs' property.
Although the parcel is large, it is very narrow. Accordingly, only two lots could be developed. The rear lot (B) has a 20-foot wide access strip as shown on the subdivision map. (Return of Record [ROR], Item 8.) Under old regulations the rear lots could be accessed by easement. The rear lot did not have to own the access strip in fee simple. If this were still the case, no variance would have been required, because the side yard distance would have remained 31.2 feet from the plaintiffs' existing house to the adjacent property. It is the requirement that the access strip be owned in fee simple by the rear lot, lot B on the subdivision map which causes the side yard of the front lot to become nonconforming by 3.3 feet. This is true even though the actual distance between the adjacent lots, 31 feet, remains the same. From the standpoint of the neighborhood, nothing physically changed except that the 20-foot wide strip has changed in ownership. The distance from the defendants' property to the next lot has not changed, and is further than required. If the variance were not granted, the plaintiffs would have to remove 3 feet of their one-story attached garage in order to satisfy the side yard requirements. Not only would the garage need to be removed, but gas and electric lines that service the house would have to be relocated.
The plaintiffs own property which abuts the defendant's lot at the extreme northwest corner of the property. (ROR, Item 8.) Their address is on a different street. The plaintiffs cannot see the defendants' garage from their property. The impact on the plaintiffs is, at best, minimal. It is clear that the Board, in deciding this case and granting the variance, took that factor, among others, into consideration in deciding as follows: "The Board, after due consideration, finds there is practical difficulty to remove a portion of the existing residence and relocate public utilities which will be no closer to any structure on any parcel than the existing condition. The new access way provides adequate separation by effectively creating a side yard of 31.2 feet. Therefore, the requested variance of required side yard is granted from Sections 6-203 and 6-205 of the Building Zone Regulations.
The Board further finds that this relief is consistent with the Town's Plan of Conservation and Development and can be granted without detriment to the public welfare or impairment to the integrity of the Regulations." (ROR, Item 10.) This was signed by Robert Culson, the secretary, and dated December 10, 2007.
The courts have held that the "local board or commission is in the most advantageous position to interpret its own regulations and apply them to the situations before it." (Internal quotation marks omitted.) Trumbull Falls, LLC v. Planning Zoning Commission, 97 Conn.App. 17, 29, CT Page 12331 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006). It is well settled that the court should not substitute its judgment for that of the board, and that the "decisions of the 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.) Moon v. Zoning Board of Appeals, 291 Conn. 16, 24, 966 A.2d 722 (2009). "[T]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency." (Internal quotation marks omitted.) Finley v. Inland Wetlands Commission, 289 Conn. 12, 38, 959 A.2d 56 (2008).
When a commission gives no reason for its decision, the court must search the entire record to see if there is a basis for the decision. Gibbons v. Historic District Commission, 285 Conn. 755, 770, 941 A.2d 917 (2008); Moon v. Zoning Board of Appeals, supra, 291 Conn. 25. However, "[w]hen an administrative agency specifically states its reasons, the . . . court should go no further" and should review the record to see if there is evidence to support the agency's rationale. (Internal quotation marks omitted.) Gibbons v. Historic District Commission, supra, 285 Conn. 771.
To grant a variance, there are two basic requirements: "(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. Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance."
The Greenwich Zoning Regulations empower the Board to "authorize upon appeal in specific cases, variances from the terms of this article whereby reason of exceptional shape, size, or topography of the lot, or other exceptional situation or condition of the building or land, practical difficulty or unnecessary hardship would result to the owners of the property from a strict enforcement of this article." Building Zone Regulations § 6-19(a)(3). (ROR, Item 13.)
The plaintiffs make much of the Board's conclusion that the variance was granted because of practical difficulty. The review of the record and the transcript shows that the motion made by Mr. McKelvey referred to "practical hardship." The letter of approval uses the term "practical difficulty." The decision of the Board adequately supports the conclusion that a practical difficulty or unusual hardship exists.
The court finds there is evidence in the record to support the Board's determination that there is a legally recognizable hardship. In this case, the literal enforcement of the regulations causes the hardship, because the property has a unique and unusual characteristic. It is very narrow which when coupled with requirement of the fee simple ownership of the access strip, it imposes a side yard setback larger then required of other properties in the zone. An unusual circumstance affects the property and causes it to be regulated differently than other properties in the neighborhood. This is sufficient hardship under Connecticut law.
The plaintiffs, further, argue that any existing hardship is self-created, and, therefore, insufficient for purposes of granting a variance, citing for support to Eagan v. Zoning Board of Appeals, 20 Conn.App. 561, 568 A.2d 811 (1990), and Polland v. Zoning Board of Appeals, 186 Conn. 32, 438 A.2d 1186 (1982). The present case can, however, be differentiated from the factual scenarios in these cases, and particularly Dupont v. Zoning Board of Appeals, supra, 80 Conn.App. 327, which is factually similar to the present case, as it addresses a variance for the purpose of a subdivision.
In all three cases, the issues as to self-created hardship related to the actual acreage of the property, specifically insufficient square footage. In Dupont v. Zoning Board of Appeals, supra, 80 Conn.App. 327, the subdivision itself would not have been possible without the variance, as one of the subdivided lots would not have met the square footage requirements. In the present case, the subdivision does not hinge on the granting or denying of the variance, as the variance is not for acreage of the property itself, but rather for a zoning requirement that requires a certain distance between the property line and the building on the lot. Accordingly, the subdivision does not affect the property in the same way as it affects the property in those cases that have held that a voluntary subdivision precludes the granting of a variance, as the subdivision is still feasible, albeit subject to hardship, even without the variance.
The finding of the Board concerning the fact that this is consistent with the town plan of development, is consistent with evidence in the record to substantiate this finding. The variance which was granted, did not change the actual side yard distance which still exceeded the Town's requirement by 17 feet. The court agrees that an actual distance that exceeds the minimum by 17 feet cannot do harm to the plan of development. The lots exceed the minimum size and the plaintiffs cannot see the garage and are not impacted by it.
The plaintiffs have not proven the allegations of the appeal.
The conclusions of the board are supported by the evidence and the record, and accordingly, the appeal is dismissed.
SO ORDERED