Opinion
No. CV 02-0395979 S
February 4, 2004
MEMORANDUM OF DECISION
The sole issues in this case are whether or not the alleged hardship of the Defendant, Fairfield Avenue Investors, LLC ("Fairfield Avenue") was self-created and legally sufficient as a basis for granting the variances and departing from the zoning regulations of the City of Bridgeport.
This is a zoning appeal taken pursuant to Section 8-8, Connecticut General Statutes from the decision of the Bridgeport Zoning Board of Appeals ("ZBA") granting variances of the minimum setback requirements under Section 6-4-3 of the Bridgeport Zoning Regulations in an OR-S and R-B zone proposed to be changed to an OR-G zone in order to permit the construction of a Super Stop Shop with associated site improvements in the west end of the city. Fairfield Avenue is a limited liability corporation, lessor of a portion of the property that is the subject of this appeal (the "Property"), and owner of the remaining portion of the property. The property is situated at 2135-2145 Fairfield Avenue in Bridgeport. It consists of almost an entire city block, bounded by Spruce Street, Wordin Avenue, Albion Street, Astor Street and Fairfield Avenue. Fairfield Avenue's request was for four (4) variances in that the applicant requested "a variance of the 30 foot setback line on all four sides [of the project site]" (Transcript, August 13, 2002, Page 3). Fairfield Avenue maintains that the Zoning Board of Appeals ("ZBA") acted reasonably and within its broad discretion in granting its application for these variances. Fairfield Avenue also argues that the Court should not reach the merits of Plaintiff's claim because the Plaintiff failed to raise these claims at a hearing held before the ZBA. Plaintiff appeals claiming that Fairfield Avenue failed to establish a legal hardship as a basis for such variance approval.
On August 13, 2002, the ZBA held a public hearing to hear this matter. Immediately thereafter, the ZBA voted to grant the variances. The record fails to reflect any discussion by the Board as to the application. The ZBA cited the following reasons for its decision: (1) Hardship exists based on the unique configuration of the Property which is bounded by five streets; (2) No adverse effect will result from the granting of the Application; (3) The granting of the Application will serve to upgrade and improve the area; and (4) The granting of the Application will serve to benefit the residents of the City of Bridgeport. (R.O.R. 1.) During the presentation by Fairfield Avenue, it failed to provide any substantial evidence or proof of legal hardship. The applicant's only attempt at presenting evidence of a hardship was to indicate that "the 30 foot setback from each street line which applied to such an extent the regulations require would make the planned use impossible." (Transcript, August 13, 2002, Page 5.) The only evidence to support the project was based on the claim in the application and some neighbors who testified that such a Stop Shop was "a badly needed service in our community." (Transcript, August 13, 2002, Page 8.)
The basic issue presented to this Court is whether Fairfield Avenue established a legal hardship as a basis for variance approval. During its presentation Fairfield Avenue conceded that the hardship goes far beyond what one would usually characterize as a hardship on a site. Counsel further argues that the variances were trying to bring back some life and stimulation of activity in a part of the city that badly needs it. (Transcript, August 13, 2002, Page 12.)
Section 8-8(b) of the Connecticut General Statutes provides that any aggrieved person may appeal a decision by the Zoning Board. There are two types of aggrievement. The first is statutory aggrievement, the second is classical aggrievement. Cole v. Planning and Zoning Commission, 30 Conn. App. 511, 515 (1993). In this case the Court finds the Plaintiff is statutorily aggrieved as it is the owner of property located within 100 feet of the property that is the subject of this appeal. A stipulation of aggrievement was filed and granted.
Fairfield Avenue's claim that the Plaintiff failed to raise any claim at the hearing before the ZBA on August 13, 2002 is of no avail. Plaintiff was not required to attend the hearing and raise a claim in order to appeal a decision of the ZBA. At the time of the hearing it was not aggrieved and did not become aggrieved until the ZBA ruled. Section 8-8(b) of Connecticut General Statutes provides in pertinent part, "any person aggrieved by any decision of a board may take an appeal to the superior court for the judicial district in which the municipality is located." Section 8-8, titled, "Appeal from the board to court, Review by Appellate Court" supplies no requirement that the plaintiff be present and object at the public hearing in order to appeal the decision.
In its petition (R.O.R.) requesting various setbacks for the construction of a Stop Shop supermarket of about 50,000 square feet and adjacent parking lots Fairfield Avenue claims a hardship and its attached Schedule C (R.O.R.) sets out compelling and plausible reasons for its claims. Parking in front of the supermarket is mandated according to industry standards for large supermarkets.
When deciding appeals, "[t]he court is not at liberty to substitute its judgment for that of the administrative tribunal." Scott v. Town of North Stonington Zoning Board of Appeals, 2003 WL 22962452, *2 (Conn.Super.). Furthermore, "The court may only determine whether the Board acted arbitrarily or in abuse of its discretion." Id. "The decision of the defendant Board may be reversed only if it is found that the Board's action was illegal, arbitrary or in abuse of its discretion." Id.
For the Zoning Board to grant a variance, two conditions must be met: "(1) the variance must be shown not to substantially affect 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." Smith v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542 (1978), citing Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 280, 129 A.2d 619. 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. See Bloom v. Zoning Board of Appeals, 233 Conn. 198 (1995). Moreover, granting a variance is "an exceptional power which should be sparingly exercised and can be validly used only where a situation falls fully within the specified conditions." Devaney v. Zoning Board of Appeals for the City of New Haven, 132 Conn. 537, 540 CT Page 1869 49 A.2d 828, 829 (1946). "[W]hen a property owner's situation is self-created, that is not a sufficient reason to depart from the zoning regulations." Dupont v. Zoning Board of Appeals of the Town of Manchester, 80 Conn. App. 327, 834 A.2d 801 (2003).
At the hearing before the Zoning Board of Appeals held on August 13, 2002, counsel for Fairfield Avenue maintained that the hardship is found in a unique culmination of circumstances because the existing property is bounded by five streets and a 30-foot setback from each street line would make the planned use impossible.
When presenting to the Zoning Board, Fairfield cited the need for a Stop Shop in the area because it would create economic revitalization in an area of the City that badly needs it. (R.O.R., Page 123.) Fairfield Avenue states the 30-foot setback requirement made the "proposed use impossible." (R.O.R., Page 5.) This is not evidence of a hardship. The record established that there is noting unique or peculiar about the property. It is simply a large block surrounded by five streets. Any claimed hardship is self-created. It does not constitute a legal hardship.
The decision by the Zoning Board of Appeals granting Fairfield Avenue a variance is reversed.
OWENS, J.