Opinion
FSTCV146022943S
11-12-2015
Street Retail, Inc. v. Zoning Board of Appeals of the Town of Greenwich et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
EDWARD R. KARAZIN, JR., JUDGE TRIAL REFEREE.
This appeal originates from a 1986 decision made by the Planning and Zoning Commission in the town of Greenwich (commission) to accommodate Carolee Designs, Inc. (Carolee) on 19 East Elm Street (the property). (ROR 1a; 5, p. 39; 6.) The manufacturing of the jewelry for Carolee was done offsite while the jewelry was sold on the property, but because Carolee needed onsite office space to be used for storage, light assembly, and office space, the commission approved a site plan that allowed Carolee to construct additions to the building to be used for these purposes. (ROR 5, p. 39; 6.) Consequently, while offices in the Central Greenwich Business Retail zone (CGBR zone) are required to provide parking spaces for the assembling of persons pursuant to Greenwich Zoning Regulation § 6-158, Carolee, as the sole tenant in the building, was exempt from this requirement, provided that the retail space on the first floor and office space on the second floor was " tangential and directly related, " meaning that there must be a business-related nexus between the two. (ROR 5, pp. 39-41; 6.)
Although sometimes described as the " back office space" and the " front retail space, " the issue at hand relates to the nexus between retail use on the first floor and office space on the second floor, and will be referred to by the floor or as the office and retail spaces. (ROR 6.)
Carolee occupied the premises until 2007, and the owner of the property Elm Place, LLC (Elm Place), later leased the property to Charles Schwab. (ROR 1a; 5, p. 40.) In 2009, Elm Place sought alterations to create a new entrance and lobby space for use by Charles Schwab. (ROR 6.) The commission found that Charles Schwab had a " retail type component, " and allowed it to use the building in the same way as Carolee, including both the exemption from to accommodate for onsite parking spaces, as well as the restriction that the retail and office use must be related. (ROR 5, p. 40; 6.) Currently, the first-floor retail space is leased, but the second floor is vacant. (ROR 6.)
As a result of difficulties in leasing the second floor of the property, Elm Place sought authorization from the commission seeking a special permit eliminating the restriction imposed on the site plan approved in 1986, to allow it to lease the second floor to a business unrelated to the retail operations, yet the commission declined to do so until the issue of parking was resolved by the Planning and Zoning Board of Appeals of the town of Greenwich (board). (ROR 5, p. 41; 6.) In April 2014, Elm Place appealed to the board seeking a variance exempting the property from the parking requirement. (ROR 6.)
The board of appeals gave notice to all potentially interested parties, and held a public hearing on June 18, 2014. (ROR 1a; 1b; 1c; 2; 3.) Following the hearing, the board of appeals sent a letter dated June 30, 2014, to Carolee Friedlander, the sole member of Elm Place, notifying her that the requested variance was granted and that the property was exempt from Section 6-158. (ROR 4.) The letter contained a condition, however, providing that the office space must be limited to " General Office Use" only. (ROR 4.) Adjoining property owner and the aggrieved plaintiff in this action, Street Retail, Inc. (Street), subsequently filed an appeal with this court pursuant to General Statutes § 8-8 contesting the board's approval of the variance. A trial was held on the matter on July 7, 2014.
DISCUSSION
" 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 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."
" 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 . . . Accordingly, [courts] have interpreted . . . § 8-6 to authorize a zoning board of appeals to grant a variance only when 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 . . . Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance." (Internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 678-79.
" 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.
" [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." (Internal quotation marks omitted.) Id., 677. 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); and " [t]he [decision] must be sustained if even one of the stated reasons is sufficient to support it." Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995).
In the present case, the board of appeals issued a formal decision granting Elm Place's request for a variance, with a condition, stating: " After due consideration, the Board finds there is a hardship due to the distinctive restriction that the office be related to the 1st floor retail use and between the building lines the CGBR zone. Therefore, the requested variance of parking requirements from section 6-158 for the office use on the 2nd floor, is granted with the condition that the office space be limited to General Office Use only and in accordance with the plans prepared by Ridberg & Associates dated April 4, 2014." (ROR 4.) The court's scope of review is therefore limited to determining whether the board acted unreasonably, arbitrarily, or in abuse of its discretion in reaching this decision to grant the conditional variance.
Street argues that the board did act unreasonably, arbitrarily, and in abuse of discretion in granting the variance, and consequently that the decision should be reversed. It first contends that there is insubstantial evidence that the alleged hardship differs from similarly situated property in the area to warrant the variance. Rather, as Street next argues, any hardship that may exist is self-created or economic, both of which are not recognized in this state, and additionally the variance is unnecessary to avoid a confiscatory effect. Street then sets forth the argument that the variance is inconsistent with the integrity of the CGBR zone's comprehensive plan. Finally, Street contends that the condition that the office space is limited for " general office use" is integral to the board's decision, but unenforceable because there is no clear definition of this term.
In response, Elm Place argues that the hardship is different from similarly situated properties because it arises from the 1986 restriction that the commission placed exclusively on the property. In other words, the hardship is neither self-created nor economic, but a result from a regulatory decision made nearly thirty years ago. Elm Place next argues that the variance did not substantially affect the comprehensive plan of the CGBR zone, and is consistent with public safety and welfare. Finally, Elm Place states that the " general office use" condition can be readily understood.
The court will address each of these arguments and counter-arguments in greater depth below.
I. SUBSTANTIAL EVIDENCE OF AN UNUSUAL HARDSHIP
Street's first argument is that there is insufficient evidence to show that Elm Street's hardship was unusual relative to other properties in the CGBR zone. " 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." (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-60, 916 A.2d 5 (2007). " [S]ubstantial . . . evidence is that which carries conviction. It is such evidence as a reasonable mind might accept as adequate to support a conclusion. It means something more than a mere scintilla and must do more than create a suspicion of the existence of the fact to be established." (Internal quotation marks omitted.) Martland v. Zoning Commission, 114 Conn.App. 655, 666, 971 A.2d 53 (2009).
Applying this to the necessity of demonstrating a hardship, " [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 has] 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.
According to Street, every office user in the zone has the same obligation to provide parking pursuant to § 6-158, and when the commission first approved the exemption for Carolee, it was a benefit that cannot now be considered a hardship. Street specifically relies on an Appellate Court decision where the court states: " It is of particular significance to our analysis that, during the defendant's oral presentation to the board, he cited a personal hardship, namely, difficulty in marketing the property for sale, and disappointment in the use of the subject property, namely, the inability to build a larger structure, as the main impetuses for seeking a variance. Moreover, the board failed to cite any hardship that differs in kind from the hardship imposed generally on similar properties by the Greenwich zoning regulations, or any condition that is 'peculiarly oppressive' to the subject property." (Emphasis in original.) Michler v. Planning & Zoning Board of Appeals, 123 Conn.App. 182, 187, 1 A.3d 1116 (2010).
The case at hand is readily distinguishable. To begin, in Michler, the applicant only set forth only economic reasons for the hardship, and, as will be described in detail in the next section, a purely economic hardship is not recognized in this state. Next, the board found the hardship warranting a variance to be the difficultly of imposing the regulation due to the unusual shape of the property owner's lot. Although not explicitly stated by the court, all lots are shaped in some form or another, and it would appear difficult to ascertain where the line is drawn as to how irregularly shaped a lot must be in order to warrant a variance. In the case of Elm Place, however, the board's decision specifically emphasized that the hardship is a result from a restriction specifically placed upon the Elm Place property. This restriction is not generally applicable, but rather only applies to Elm Place, thereby making it clear where the line is drawn.
More specifically, " limitations imposed by the shape of the lot do not in themselves create a hardship . . ." (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 210, 658 A.2d 559 (1995).
Beyond this, during the oral presentation at the public hearing, which the court in Michler considered in depth and to which it gave great weight, Elm Place's representatives described the restriction in detail, and how the commission came to its original decision to approve the exemption with the unique restriction in 1986. (ROR 5, pp. 44-45.) Elm Place further described how the restriction affects the property, rather than merely the owners. For example, it explained that the floors are disjointed, and there is no access from the first floor to the second floor, and the second floor is located two flights of stairs above the first floor retail, essentially making their uses physically disjointed, even though the restriction imposes that the business between the two be connected. (ROR 5, p. 45; 6.) Elm Place additionally described the changes that have occurred since 1986, to explain that while the restriction might have been reasonable at the time, the restriction now creates a hardship as a result of current factors. (ROR 6.)
In sum, the record thus supports the unique nature of the property, which the board recognized when it pointed out in its decision that the hardship " is due to the distinctive restriction that the office be related to the 1st Floor retail use and between the building lines in the CGBR zone." (ROR 4.) As Elm Place asserts, and Street has failed to show, there exists no other property with a similar restriction. The court will therefore not overturn the board's decision on the basis that the hardship is not unique.
II. THE COMMISSION'S 1986 RESTRICTION AS A COGNIZABLE HARDSHIP
The crux of Street's argument is that even if the board's decision stated that the " distinctive restriction" is an unusual hardship, this hardship is either self-created or financial, both of which are not legally cognizable hardships in this state. Street further argues that it was not necessary for the board to grant the variance to avoid a confiscatory effect on the property.
A. Self-Created Hardship
" [S]elf-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." (Internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 691-92. " Where the condition which results in the hardship is due to one's own voluntary act, the zoning board is without the power to grant a variance . . . Where . . . the hardship arises as the result of a voluntary act by one other than the one whom the variance will benefit, the board may, in the sound exercise of its liberal discretion, grant the variance." (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, supra, 281 Conn. 561.
In its reply brief, Street asserts that the 1986 condition restricting the use of the second-floor office space is self-created because it stems from original Elm Place's site plan proposal, which it made on its own volition. In other words, although Elm Place asserts that it did not ask that the commission create the restriction limiting the use of the second-floor office, the restriction " arose from Elm Place's own actions, in an effort to conform Elm Place's personal needs, preferences and circumstances." The imposition of the condition was consequently within Elm Place's control.
In a similar appeal contesting the granting of a variance, abutting landowners argued that the predecessor landowner manipulated the subject property in order to obtain subdivision approval from the town's planning and zoning commission, and therefore " was in control of the conditions and circumstances that created the nonconforming lot, " because the landowner did not seek alternative ways to avoid invoking the commission's intervention. Walker v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. 30-62-82 (January 27, 1995, Mihalakos, J.) Instead, it compelled the commission to make the decision that ultimately led to the variance. The court disagreed, however, finding " that the actions of the planning and zoning commission were circumstances or conditions beyond the control of the property owner." Id. Whereas at least one court has found that a prior planning and zoning commission decision is not within the landowner's control, Street cites to no authority to the contrary.
On one hand, there is a specific type of voluntarily assumed hardship embodied in what has been termed the " purchase with knowledge rule, " where a purchaser is barred from obtaining a variance if he purchases property with a known restriction and later attempts to use that property in a manner proscribed by the regulations. E.g., Kalimian v. Zoning Board of Appeals, 65 Conn.App. 628, 632, 783 A.2d 506 (2001). On the other hand, " the nonconformity must be attributable to the purchaser or his predecessor in interest in order for the hardship to be considered self-created, " meaning that the property owner was directly responsible for the need to apply for a variance. Sydoriak v. Zoning Board of Appeals, 90 Conn.App. 649, 660, 879 A.2d 494 (2005). While Street would appear to desire that the 1986 condition parallels the purchase with knowledge rule, this would mean that Elm Place had direct control over whether the condition was imposed.
" Under General Statutes § 8-2(a), a local zoning commission has the authority to regulate certain characteristics of buildings including the location and use of buildings . . ." (Internal quotation marks omitted.) Collins Group, Inc. v. Zoning Board of Appeals, 78 Conn.App. 561, 563, 827 A.2d 764, cert. denied, 266 Conn. 911, 832 A.2d 68 (2003). Pursuant to this authority, under Greenwich Zoning Regulation § 6-13(a), the commission has the authority to modify any site plan. (ROR 11, p. 2-18.) The commission did impose such a regulation in 1986 upon approving Elm Place's site plan proposal, the commission specifically conditioned use of the back office space to be used in relation to the front retail. (ROR 6.)
The voluntary act in the present case is not Elm Place's decision to submit a site plan proposal, or accept the conditional approval. If the court were to decide that this is the voluntary act constituting the self-created hardship, it could also be argued that Elm Place's initial purchase of the building was another voluntary act, as well as its failure to contemplate when Carolee may no longer occupy the premises. The voluntary act was clearly a regulatory condition imposed by the commission, that created a restriction on the use of the property. This act was not made by Elm Place, and beyond its control. Accordingly, this is not a self-created hardship.
B. Economic Hardship and Confiscatory Effect
" Economic loss, in and of itself, is not the decisive factor in determining whether a variance should be granted in a given case." (Internal quotation marks omitted.) Longo v. Board of Zoning Appeals, 143 Conn. 395, 398, 122 A.2d 784 (1956). " Disadvantage in property value or income, or both, to a single owner of property, resulting from application of zoning restrictions, does not, ordinarily, warrant relaxation in his favor on the ground of . . . unnecessary hardship." (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, supra, 281 Conn. 561.
Street relies on several cases where an appellate court found that the hardship was economic and therefore not legally cognizable. Addressing these cases, in Horace v. Zoning Board of Appeals, 85 Conn.App. 162, 165, 855 A.2d 1044 (2004), the applicant " sought to obtain a variance to expand a building that housed a preexisting, nonconforming use, namely, a commercial use located in a residential zone." Our Appellate Court found that the applicant's attempt to modernize its business, even though it had continuous ownership prior to and subsequent to the enactment of the zoning regulation did not constitute a cognizable hardship. Id., 171. In Frances Erica Lane, Inc. v. Board of Zoning Appeals, 149 Conn.App. 115, 130, 88 A.3d 580, cert. denied, 311 Conn. 956, 97 A.3d 985 (2014), the court concluded that the applicant's desire to subdivide a lot to build certain structures did not warrant a variance, especially considering precedent holding that " a hardship was not shown because the [plaintiff] admitted that a house, even though not the type that [it] desired, could have been built on the lot while conforming to the [zoning regulation]." (Internal quotation marks omitted.)
Unlike Horace, Elm Place does not seek to expand or modernize its property, and unlike Frances Erica Lane, Inc ., Elm Place does not concede that the property could have the same or similar function if the variance was not granted. Rather, it seeks a continuing exemption from the parking requirement, only seeking permission for the first-floor retail to be a separate business from the second-floor office space. (ROR 5, pp. 39-41; 6.)
The court acknowledges that Elm Place cites its inability to lease the second floor for retail use as a reason for its application. (ROR 6.) This in itself would not warrant a variance. E.g. Michler v. Planning & Zoning Board of Appeals, supra, 123 Conn.App. 187. The court further notes the appellate precedent stating that an applicant's disappointment in the use of their property cannot constitute a hardship. E.g., id.; Moon v. Zoning Board of Appeals, 291 Conn. 26 n.9; Verrillo v. Zoning Board of Appeals, 155 Conn.App. 657, 111 A.3d 473; Frances Erica Lane, Inc. v. Board of Zoning Appeals, supra, 149 Conn.App. 130. It is clear, however, that one seeking a variance may not rely exclusively on financial disappointment to demonstrate hardship. E.g., Longo v. Board of Zoning Appeals, supra, 143 Conn. 398; Libby v. Board of Zoning Appeals, 143 Conn. 46, 51, 118 A.2d 894 (1955); Connecticut River Getaway Commission v. Zoning Board of Appeals, Superior Court, judicial district of Middlesex, Docket No. CV-05-4003369-S (March 9, 2007, Dewey, J.); Quinn v. Zoning Board of Appeals, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-95-0142747-S (December 28, 1995, Nigro, J.). An applicant can also show hardship by demonstrating that, even if it implicates financial motives, an applicant cannot beneficially use their land, even though they do not have the right to use it in the most beneficial way possible. Quinn v. Zoning Board of Appeals, supra, Superior Court, Docket No. CV-95-0142747-S; Logozzo v. Zoning Board of Appeals, Superior Court, judicial district of Middlesex, Docket No. CV-01-0096256-S (May 29, 2003, Dyer, J.).
Relatedly, " [f]inancial considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations to the property greatly decreases or practically destroys its value for any of the uses to which it could reasonably be put and where the regulations, as applied, bear so little relationship to the purposes of zoning that, as to particular premises, the regulations have a confiscatory or arbitrary effect . . . Zoning regulations have such an effect in the extreme situation where the application of the regulations renders the property in question practically worthless." (Citation omitted; internal quotation marks omitted.) Vine v. Zoning Board of Appeals, supra, 281 Conn. 561-62.
Examining the record, Elm Place has been unable to lease the second floor of the property for " a number of years." (ROR 6.) It has attempted to lease for retail use and comply with the zoning regulations, but the distinctive restriction has made it more difficult than other properties in the CGBR because there is no access to the second floor through the first. (ROR 5, p. 45.) Additionally, as outlined in several Superior Court cases, such as Logozzo, Elm Place is not seeking the most beneficial use of its property possible, but rather filed its application to obtain some benefit from it. In other words, it was not seeking to exploit the maximum financial potential of the property. See Vine v. Zoning Board of Appeals, supra, 281 Conn. 558. While this would seemingly be a financial motive, the fact remains that it is impractical, if not impossible, to lease this second floor while complying with the zoning regulations, and has consequently agreed to adhere to the board's condition without argument. (ROR 5, p. 55.)
In other words, the record shows that Elm Place's hardship is not one of pure financial motives because it does not seek to expand or change the structure in any way, but rather seeks to be able to use the property. Elm Place has described how the current structure of the building has become impractical over time, and, additionally, that it could not be conceived in 1986 that this multi-story building would have more than one tenant, it now seeks to have multiple tenants. (ROR 6.) Beyond this, even if Elm Place's motives in applying for the variance were purely financial, there would remain a vacant floor on the second floor. This is not beneficial to the CGBR, the town, nor the economy in general. The court will not reverse the decision on this ground.
III. CENTRAL GREENWICH BUSINESS DISTRICT ZONE'S COMPREHENSIVE PLAN
" [Z]oning is concerned with the use of property and not primarily with its ownership . . . The object of zoning is to adopt measures to regulate property uses in conformance with a comprehensive plan in a manner to advance the public welfare . . . This process embodies a clash between the common-law right of man to use his property as he pleases, so long as he does not create a nuisance, and the exercise of the police power to regulate that use in the interest of the public health, safety, morals and general welfare . . . The variance power in a general sense is the antithesis of zoning, and variance law is best understood as a reflection of the unresolved tension between attempting to maintain a comprehensive plan of uniformly regulated districts, and the need to provide relief from the general rules in individual circumstances." (Citations omitted; internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 680-81. " The comprehensive plan . . . consists of the zoning regulations themselves and the zoning map which has been established pursuant to those regulations"; Burnham v. Planning & Zoning Commission, 189 Conn. 261, 267, 455 A.2d 339 (1983); and " [t]he requirement of a comprehensive plan is generally satisfied when the zoning authority acts with the intention of promoting the best interests of the entire community." (Internal quotation marks omitted.) First Hartford Realty Corporation v. Plan & Zoning Commission, 165 Conn. 533, 541, 338 A.2d 490 (1973).
Street directs the court to the portion of Greenwich Zoning Regulation § 6-103.1 that provides: " In addition to the purposes stated in Sec. 6-102, the goal of the Central Greenwich Business-Retail Zone is to serve as the prime retail and service area of the Town by accommodating shopping and business needs in a greater variety and concentration than neighborhood and local business zones. The CGBR zone serves several functions: it provides convenience goods and services to all residential areas of the Town, both the outlying sections and the close-in more densely built neighborhoods; it provides comparison shopping goods and services on a generalized or specialized basis to the town-wide and sub-regional market area; and it provides office uses to complement and support the business uses. The emphasis of the CGBR zone is upon protection of ground floor space for compatible retail uses, and avoidance of a break in storefront continuity. Consequently, businesses in the zone are generally dependent upon pedestrian traffic and storefront exposure." (ROR 11, p. 9-20.)
From this passage, Street asserts that the zoning regulations emphasizes retail use in the CGBR zone. Section 6-103.1 however continues that: " In addition to retail uses, a wide variety of services and community functions is included to suit the broad and longer term needs of residents and customers." (ROR 11, p. 9-20.) Furthermore, Greenwich Zoning Regulation § 6-102(e) provides that the regulations are intended to " support the viability of the retail function within shopping districts by assuring adequate ground floor storefront space for retail sales purpose." (ROR 11, p. 9-17.) While Street may be correct that these municipal regulations related to the CGBR encourage retail, the retail provisions appear specifically aimed toward first-floor use, rather than second-floor use, part of the issue at hand. Moreover, the regulations provide that uses other than retail are not discouraged.
More importantly, the well-settled standard is that " the variance must be shown not to affect substantially the comprehensive zoning plan . . ." (Emphasis added; internal quotation marks omitted.) Verrillo v. Zoning Board of Appeals, supra, 155 Conn.App. 678-79. The second floor of the property, which, as mentioned, does not seem to be a primary concern of the comprehensive plan, is currently vacant, and Elm Place has been unable to lease this space for retail purposes. (ROR 6.) The purpose of this variance is, in essence, to allow Elm Place to lease this second floor for an office use, and throughout the process, representatives from Elm Place worked with the board to ensure that the floor would not be leased to any business that would negatively impact the CGBR zone. (ROR 5, pp. 43, 51.) Beyond this, Elm Place assured the board that there would be no increase in the use of the office, and most relevant, that there would be no change in the parking demand. (ROR 5, p. 42.)
The record shows that the board was primarily concerned that once leased, the office would be used for certain high-traffic purposes, but once it was assured that it would not, the board approved the variance, specifically stating in its decision that it " finds that this relief can be granted without detriment to the public welfare or impairment to the integrity of the regulations." The record shows that the only change that comes from the board's action is that the second floor, which was already used as an office, is now not required to have a direct financial nexus to the business of the first-floor retail. It cannot be said that the board acted arbitrarily, unreasonably, or with improper motives in concluding that this variance did not substantially affect the comprehensive plan of the CGBR zone.
IV. " GENERAL OFFICE USE" CONDITION
Street's final contention is that because the board of appeals decision contains an integral condition that is not defined in the town's zoning regulations, the variance cannot be enforced. In other words, there is no way to determine the parameters imposed on the exemption with only the vague words " general office use" as the variance's guiding principle. In support of this, Street cites to our Appellate Court's statement in Martland v. Zoning Commission, supra, 114 Conn.App. 669: " Although the imposition of an unlawful condition does not necessarily render a zoning authority's entire decision illegal and inefficacious . . . where the void condition was an essential or integral component of the zoning authority's decision it cannot be upheld." (Internal quotation marks omitted.)
As a preliminary matter, the condition imposed in Martland provided: " Upon completion of the excavation of the pond, the applicant shall restore all disturbed areas above the water level to a condition comparable to the conditions that existed prior to the excavation of the pond, " and required the applicants to submit a site plan to comply with this condition. Id., 658. In reviewing the record, the Appellate Court first determined that this condition was improper. Id., 667. The court then stated that it could not " conclude that the commission would have approved the special permit application if it had been aware that the restoration condition could not be enforced." Id., 670.
In this appeal, the condition that the second floor was to be used for " general office use" was contemplated well before the board of appeals issued its decision, it is evident that these words itself are not essential or integral to the plan. As evidence of this, the board of appeals already knew of plans prepared by Ridberg & Associates to adhere to the condition. (ROR 4.) Additionally, during the public hearing, certain board members addressed their concerns of having the second floor being used as a medical office or social service type office. (ROR 5, p. 43.) Elm Place's representative assured the board members that the second floor would not be used as a medical office, real estate office, or sales agency. (ROR 5, pp. 43, 51.) The board of appeals at one point during their deliberations decided that personal service businesses would not be permitted, such as nail salons, and came to the conclusion that general office use would be the " preferred position" for a condition. (ROR 5, p. 73.) In fact, delving deeper into the deliberations, board members questioned why a condition was even necessary. (ROR 5, pp. 76, 81-82.) While the board members undoubtedly sought to impose a condition to ensure that parking did not become too dense, it is clear from their deliberations that there was already an understanding between Elm Place regarding the types of businesses that would lease the second floor, and therefore the condition was not essential or integral, but a confirmation of an existing understanding.
Nor is the term " general office use" overly vague in this context. One board member asked: " Is there a particular meaning to the term general office use for zoning definition, " stating that it is broad, and that he was not really sure what it means. (ROR 5, pp. 74-75.) After the other board members expressed that " general office use" meant that the second floor could not be leased to a medical, personal services, or retail operation, the same board member who expressed his concern about the broad condition explained that while it may be best not to have a condition at all, if there was going to be one, general office use made the most sense for the purposes of parking density. (ROR 5, pp. 79-80.) The members additionally discussed the specific types of businesses that could be included or excluded, but elected to use this term rather than list each type of business. (ROR 5, p. 78.) It is clear that the board of appeals made a conscious and thoughtful decision to use the words " general office use" in their decision.
Finally, even if the court found it necessary to declare the " general office use" condition void, it could nonetheless modify the board of appeals decision pursuant to General Statutes § 8-8(l). " The imposition of a void condition . . . does not necessarily render the whole decision illegal and inefficacious. If the decision is otherwise supported by sufficient grounds as found by the board, a modification of the decision may be decreed with a view toward ending further litigation." (Internal quotation marks omitted.) Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 66, 574 A.2d 212 (1990). Considering that there was a lengthy discussion surrounding the term at the public hearing, and that the condition must be in accordance with the plans prepared by Ridberg & Associates, the court finds that the condition was not integral to the variance, and in this context, the term is sufficiently clear.
General Statutes § 8-8(l) provides in relevant part: " The court, after a hearing thereon, may reverse or affirm, wholly or partly, or may modify or revise the decision appealed from."
It is worth noting that the " general office use" appears in other Connecticut decisions without discussion, including appeals from a zoning board of appeals' decision. E.g., Connecticut Motor Club, Inc. v. Planning Commission, Superior Court, judicial district of Danbury, Docket No. CV-02-0347398-S(July 31, 2003, Fischer, J.) ;
CONCLUSION
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.
Collins Group, Inc. v. Board of Zoning Appeals, Superior Court, judicial district of New Haven, Docket No. CV-00-0442840-S (June 13, 2002, Downey, J.T.R.) [32 Conn. L. Rptr. 341 ]. From this, it would appear that the words " general office use" can be readily understood.