Elaine A. Bombero, Trustee v. Zoning Board of Appeals of the Town of Trumbull et al. (2009)

MEMORANDUM OF DECISION

Administrative Appeal from two decisions of the Zoning Board of Appeals of the Town of Trumbull concerning a parcel of real property known as 97 Booth Hill Road, Trumbull.   In the first decision which is the subject of the first count, the zoning board of appeals (ZBA) denied the plaintiff's appeal from the cancellation by the Trumbull building official of a building permit which had been issued to the plaintiff to construct a single-family residence on the property.   In the second decision, which is the subject of the second count, the ZBA denied the plaintiff's application for variances which the plaintiff had applied for simultaneously with the appeal from the decision of the building official.

FACTUAL & PROCEDURAL BACKGROUND

The property consists of a lot with an area of 18,077 square feet or .414 acres.   The property is located in an AA-Zoning district.   The property does not conform to the AA-zoning requirements in that it does not have the required minimum area of 1 acre or the minimum required road frontage of 150 feet.   Trumbull Zoning Regulations, Article 1, Section 1. It is undisputed that the property has no frontage whatsoever on a public street.   Access to the property is over two rights of way which lead out to Booth Hill Road (ROR 1B).

The property was the subject of a prior application for a variance which was submitted to the ZBA on December 18, 2002.  (ROR 12.)   The plaintiff at that time sought a variance from certain side yard set back requirements in order allow the removal of a summer cottage on the property and the construction of a new single-family residence in its place.   The variance was granted by the ZBA on January 13, 2003.   The granting of that variance was appealed to the superior court by the intervening defendant here, Dennis Miko. That appeal was sustained on January 6, 2005.   Dennis Miko et al. v. Zoning Board of Appeals of the Town of Trumbull et al., Superior Court, docket no.   CV-03-0399959 S, judicial district of Fairfield (January 6, 2005, Dewey, J.).   The plaintiff herein took no appeal from that decision.

Rather than taking an appeal from the superior court decision, in March 2005, the plaintiff revised her plans for the single-family residence to be constructed on the property so as not to require the previously requested variance.   On May 31, 2007, a building permit was issued for the construction of a two-story, eight-room residence on the property (ROR 1E).  Thereafter, on June 6, 2007 the building official in a letter to the plaintiff cancelled the building permit say it had been “issued in error.   You have not submitted valid signoffs from the required town departments.”  (ROR 1D.)

In cancelling the building permit, the building official was following a letter from Trumbull Associate Town Attorney, James A. Cordone, dated May 10, 2007.   In the letter Attorney Cordone opined that the property “is non-conforming in several areas.”   Attorney Cordone referenced the 2003 application for variances and the appeal to the superior court.   Cordone stated that the town attorney's office “is not now able to issue an opinion in contrary to the findings of the court.”  (ROR 1G.) On June 6, 2007, the building official issued a letter to the plaintiff cancelling the building permit, indicating it had been “issued in error.”   On July 6, 2007, the plaintiff appealed the action of the building official to the ZBA. On September 5, 2007, the ZBA denied the plaintiff's appeal, having concluded that the building official was following the results of the superior court decision which overturned previous approvals.

In addition to filing her appeal from the cancellation of the building permit on July 6, 2007, the plaintiff also applied to the ZBA for variances of Article III, Section 9, Paragraphs (A), (D), (E), (G) and (H) of the Trumbull Zoning Regulations governing interior lots.   Paragraph (A) concerns minimum road frontage and Paragraph (E) concerns minimum acreage, the two areas which had been recognized and determined to be non-conforming in the prior opinion.   Although the plaintiff's July 2007 application sought variances from different zoning regulations than the application in 2002, the claimed hardship was identical, an inability to use the property as a new single-family residence as opposed to an existing summer cottage.   On September 5, 2007, the ZBA denied the plaintiff's variance application.

Here, the plaintiff appeals from both ZBA's denial of her underlying appeal from the decision of the Trumbull building official to cancel the building permit (first count) and the ZBA's denial of her variance application (second count).

STANDARD OF REVIEW-FIRST COUNT

“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.   The credibility of the witnesses and the determination of issues of facts are matters solely within the province of the [board] ․ The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached.”   (Internal quotation marks omitted.)  Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294 (2008).

FIRST COUNT

The plaintiff claims that the reason stated by the ZBA for its denial of her appeal is not supported by substantial evidence.   The reason stated by the ZBA for the denial of the appeal was:  “No evidence was presented to indicate that the building official acted improperly in cancelling the building permit.   The Board determined that he was following the results of the Superior Court decision which overturned previous approvals.”   The plaintiff claims that Judge Dewey's decision in Miko v. Zoning Board of Appeals concerned only the required side yard setback and not a variance for the required lot frontage.   Plaintiff argues that since she had revised her plans and the house for which the building permit was issued in May of 2007 did not require a side yard variance, the prior decision had no bearing on the building permit and could not have provided a rational basis for cancelling it.   The plaintiff claims that because her revised plan did not require a side yard variance, her application for a building permit based on that revised plan should have been judged on its own merits.   The plaintiff argues therefore that the ZBA in denying the plaintiff's appeal based on the fact that the building official was following that superior court decision is simply not supported by substantial evidence.

The plaintiff attempts to avoid Judge Dewey's findings by contending that Judge Dewey made such findings as a result of a mistake or confusion.   Nonetheless, the plaintiff never sought to appeal Judge Dewey's decision nor did she ever seek to have Judge Dewey further articulate, clarify, modify, correct or alter any “mistaken” or “confused” findings.   Therefore, Judge Dewey's decision remains a full and final judgment of the Connecticut Superior Court and the Trumbull building official and the ZBA were entitled to rely upon it in determining whether to cancel a building permit that was issued for construction on the property.   The fact that the plaintiff was not seeking in her 2002 application a variance from the AA-Zoning Regulations regarding building lot size and the minimum road frontage does not alter the fact that Judge Dewey clearly articulated that the property violated those requirements.   There has been no argument that those facts are inaccurate.   The building official and the ZBA were entitled to rely on those judicial findings in cancelling the building permit.

There is simply no question that the building permit issued by the building official here was issued in error because of the lack of variances.   In fact, plaintiff's application for the variances filed simultaneously with the appeal of the decision here essentially conceded that the variances are required.

This court will find that the ZBA's reason for denying the plaintiff's appeal is supported by substantial evidence in the record.

STANDARD OF REVIEW-SECOND COUNT

In addition to the appeal from the cancellation of the building permit, on July 6, 2007, the plaintiff also applied to the ZBA for variances of Article III, Section 9, Paragraphs (A), (D), (E), (G), and (H) of the Trumbull Zoning Regulations governing interior lots.   Here the plaintiff appeals from the denial of her variance application by the ZBA on September 5, 2007.

“When the zoning board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board's decision.”  Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369 (1988).   “More specifically, the trial court must determine whether the board has ‘acted fairly or with proper motives or upon valid reasons.’  “ (Internal quotation marks omitted.)  Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995);  Norwood v. Zoning Board of Appeals, 62 Conn.App. 528, 532 (2001).

A variance constitutes permission for a party to use property in a manner otherwise prohibited by the zoning regulations.   The granting of a variance is generally reserved for unusual or exceptional circumstances.  Bloom v. Zoning Board of Appeals, supra at 206.

Connecticut General Statutes § 8-6 authorizes a zoning board of appeals to grant a variance from zoning regulations where literal enforcement of the zoning regulations would result in exceptional difficulty or unusual hardship.   For a variance to be granted, two basic conditions must be met:  (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.  Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368 (1988).

The hardship established by party seeking a variance must be a legally cognizable hardship.  Kelly v. Zoning Board of Appeals, 21 Conn.App. 594, 595 (1990).   The hardship may not be purely financial Libby v. Board of Zoning Appeals, 143 Conn. 46, 51 (1955).  “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 or granting a variance.”  (Citations omitted, internal quotation marks omitted.)  DuPont v. Zoning Board of Appeals of Manchester, 80 Conn.App. 327, 330 (2003).

In the present case, the intervening defendant argues that the doctrines of res judicata and collateral estoppel bar the plaintiff's second count.   The plaintiff counters that in the last appeal the issue was whether the property owner should have been granted a side yard variance, while here the plaintiff has applied for five different variances.   The plaintiff contends that the interior lot requirements are set forth in Article III Section 9, Paragraphs (A) through (H) of the Trumbull Zoning Regulations.   The plaintiff requested five variances of those provisions for the following reasons:  Paragraph (A) requires thirty feet of road frontage but this property has no road frontage;  Paragraph (D) sets a maximum driveway length of 400 feet, but the driveway leading to the property would need to be 762 feet in length;  Paragraph (E) requires a minimum size in the AA-Zone of 2 acres, but the property has an area of only .414 acres;  Paragraph (G) requires front, side and rear setbacks of 75 feet but the property is only 93 feet deep at its maximum;  and Paragraph (H) requires that a square of 250 feet on a side fit on an interior lot, but the property is only 93 deep at its maximum (ROR 2).

This court will find that the plaintiff was not precluded from raising the issues and claims in this case since the variances for which application was made here differ significantly from those in the prior case.   See Daw v. Zoning Board of Appeals, 63 Conn.App. 176 (2001).

Nonetheless, this court concurs with the prior opinion that the plaintiff has failed to satisfy the conditions for granting variances.   Noting that the plaintiff had owned the property as a summer cottage for 30 years, Judge Dewey found that “[t]he hardship the plaintiff claims is the inability to use the property in a more efficient manner.   This hardship is nothing more than a claim of financial hardship.   There is not confiscation of the property.”  (ROR 13, p. 8.)

Likewise, this court finds that based upon the record, the plaintiff failed to establish hardship such as would justify the requested variances.

Finally, plaintiff argues that the parcel which is the subject of this appeal was created prior to the adoption of subdivision regulations in Trumbull and therefore, not subject to those regulations.   Trumbull adopted subdivision regulations on July 25, 1938.   The owner of the entire parcel, which encompassed the property at issue, prior to that time was Joel F. Selleck (ROR 7A).  Between 1932 and 1940, Selleck conveyed various lots from the entire parcel.   No subdivision plan was ever filed or recorded detailing the subdivision.   While the deed which created this parcel was dated October 5, 1937, it was not recorded on the Trumbull Land Records until May 29, 1939-after the enactment of the subdivision regulations.  (Selleck to Laursen, ROR 7E.) Moreover, the property at issue was not conveyed as a separate parcel until March 18, 1940, also after the enactment of the subdivision regulations.  (ROR 2C-Selleck to Schuler.)   The court will find that the plaintiff and the property at issue are subject to the Trumbull regulations.

This court will find that the plaintiff has failed to satisfy the conditions for granting the variances and that the Trumbull ZBA acted appropriately in denying the plaintiff's requests.

For all the foregoing reasons the plaintiff's appeal from the decisions of the Trumbull Zoning Board of Appeals is denied.

HARTMERE, J.

Hartmere, Michael, J.