Thomas H. Eyles et al. v. Zoning Board of Appeals of the Borough of Stonington et al. (2010)

MEMORANDUM OF DECISION

This is an appeal by the plaintiffs from the action of the Zoning Board of Appeals of the Borough of Stonington, Connecticut (“the board”) in granting an application for a variance filed by the defendant, Anton Saddler, for property owned by him at 39-41 Orchard Street in said Borough (“the property”).

General Statutes § 8-8(b) governs appeals from decisions of zoning boards of appeal to the Superior Court.

The evidence at the court hearing and in the record reflects, and the defendants do not contest, that the plaintiffs are abutting owners of the property and are therefore statutorily aggrieved.  General Statutes § 8-8(a)(1).

No claims have been made by the defendants relating to the timeliness or service of process of the appeal.

Statements of the law with respect to the granting of variances have been abundant.  General Statutes § 8-6 grants authority to a zoning board of appeals to “vary the application of the ․ regulations ․ 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 ․ regulations would result in exceptional difficulty or unusual hardship ․” “A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of [a] town ․ [T]he 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 ․ [The Supreme Court has] interpreted General Statutes ․ § 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.”  (Citations omitted;  internal quotation marks omitted.)  Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206-07, 658 A.2d 559 (1995).  Horn v. Zoning Board of Appeals, 18 Conn.App. 674, 676 (1989).   The authority of the court is limited by § 8-8 to a review of the proceedings before the Board.   The function of the court in such a review is to determine whether the Board acted fairly or on valid reasons with the proper motives.  Willard v. Zoning Board of Appeals, 152 Conn. 247, 248-49 (1964).   The court is limited to determining whether the record reasonably supports the conclusions reached by the Board.  Burnham v. Planning and Zoning Commission, 189 Conn. 261, 265 (1983).   The court cannot substitute its discretion for the liberal discretion conferred by the legislature on the Board.   The court is limited to granting relief only when it can be shown that the Board acted arbitrarily or illegally and consequently has abused its authority.  Gordon v. Zoning Board, 145 Conn. 597, 604 (1958).   The burden rests with the plaintiffs to prove the impropriety of the Board's actions.   Burnham, supra, 266.

It is not the function of the court to rehear the matter or question the wisdom of the defendant Board in taking the action which it did.   The court is limited to determining whether or not the Board's action can be supported under the law.

In deciding such appeals concerning the interpretation of the zoning regulations as applied to a particular piece of property, the Board acts in a quasi-judicial capacity.   The Board has the authority to interpret the Town's zoning regulations and decide whether they apply in a given situation.   Stern v. Zoning Board of Appeals, 140 Conn. 241, 245 (1953).   On appeal, the court is required to decide whether the Board properly interpreted the regulations and applied them to the facts of the case.  Danseyar v. Zoning Board of Appeals, 164 Conn. 325, 327 (1973).   In reviewing the Board's decision, the credibility of witnesses and the determination of factual issues are matters within the province of the agency.  Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547 (1996).

The plaintiffs have the burden of proving that the defendant Board acted improperly.  Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988).

Plaintiffs have appealed from the action of the Board in granting defendants' application for a variance.   A variance constitutes permission for a party to use their property in a manner otherwise prohibited by the zoning regulations.   For this reason, the granting of a variance is generally reserved for unusual or exceptional circumstances.  Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206-07 (1995).

The Board derives its authority to vary the application of the zoning regulations from the provision of General Statutes § 8-6(a)(3).

An applicant for a variance must show that, because of some peculiar characteristic of its property, the strict application of the zoning regulation produces an unusual hardship as opposed to the general import which the regulations has on other properties in the zone.  Dolan v. Zoning Board of Appeals, 156 Conn. 426, 430 (1968).

When a disadvantageous situation arises from a voluntary act on the part of the applicant, it cannot be considered a hardship and the Board does not have authority to grant a variance.  Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39 (1982).   The Board is under no duty to extricate an applicant from a self-created hardship.  Pollard v. Zoning Board of Appeals, supra, 44.   Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship.  Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662 (1965).

The pleadings and the record provide considerable factual background leading up to the application for and the granting of the variance in question.   They need not all be repeated here.   The record does set out the following facts relevant to this decision.

Saddler acquired the property in 2002.   It is located in a Residence Preservation District where the Zoning Regulations require a minimum Front Yard set back of 5 feet.   There was an existing house on the property.   Since that time, after obtaining various site plan approvals and building permits, he has been improving or expanding the property with additions and a garage and site work.   The addition and the garage are built such that the front of the existing and new buildings are facing the road and aligned in a straight line.   They were shown on the approved site plan as being in a straight line.   After completion of the work the plaintiffs obtained their own compilation map of the area which determined that the new construction encroached about six-tenths of a foot into the five-foot setback requirement of the zoning regulations.   Saddler's own initial survey completed in 2002 by Dempsey (which doesn't show the new construction) does in fact show that a portion of the existing building in the northwest corner is slightly over into the 5-foot set back.

After the question arose Saddler engaged another surveyor, Mr. Bernardo.   His report in the record, which confirms the Dempsey survey line for the road, is illuminating and reads in part:

However, it is very important to note that the front line of the new aligned with the historical existing front line of your adjacent much older house.   In addition, the new building is set 10 feet from the existing granite street curb line as is the original house (see the attached sketch).   This represents the historic, as established by use, street line distance and is in harmony with many of the preexisting set backs of other buildings on Orchard Street and throughout the Borough in general.   Of even more significance is the fact that the as built set back is the same as the set back shown on the engineering plans approved by the zoning official which reflected the historic, as established, set back distances and maintained the adjacent building set back characteristics.   As such, the new building, as built, is in alignment with the adjacent historic building and in harmony with the set backs of other buildings.   In my opinion, the minimal difference between the historically established street curb set back and that reflected in the referenced survey is not substantial.

The record does show that the structures on the Saddler property are set back 10 feet from the granite curb and pavement of Orchard Street.   Saddler claims that the variance is required because of the divergence between the actual (invisible) street line on the one hand, and the granite curbing and sidewalk and the alignment of the existing building on the other.   These lines which all run in the same direction are not parallel.   While the pavement of Orchard Street itself and the granite curbing are parallel with the face of the buildings on the property, the invisible property line of the road is not.   It flares in slightly at the northerly end of the property to create the twelve-inch deviation in set back.

In other words, the record shows that there were under consideration at the Board's hearing at least three separate lines:  1. the pavement of Orchard Street, the granite curbing along the road side, 2. the sidewalk in front of the property and, 3. the alignment of the buildings in a straight line.

These lines were not all parallel.   The lines which could be seen visually, that is the pavement, curbing, sidewalk and buildings are all parallel.   It is the invisible property line of the road shown on both the “Compilation Map” prepared by Dicesare Bentley for the plaintiffs and the Dempsey Survey which angles in slightly to cause the deviation from the set back for which a variance was sought and granted.   The site plan had not shown the street property line as angling in.   The buildings were built in conformity to the site plan approved by the Planning & Zoning Commission.

At its hearing on February 21, 2008, the Board discussed the various surveys and plans and their relationship to the front of the new buildings at great length.   Arguments were heard from the applicant and other persons.   Thereafter the board received the advice of its attorney.   On March 27, 2008, the variance was granted with the reason given as follows:  “Hardship of peculiar condition created by mismatch between actual street line and existing structures.”

This appeal followed.   Each party has submitted extensive briefs.   They do not disagree generally on the law applicable to the granting of a variance.   What they do vigorously disagree on is the application of that law to the facts of this case.

The plaintiffs essentially argue that by building the new construction where he did Saddler has a “self-created hardship” which is not an appropriate basis for the granting of a variance.   They also claimed in their brief that the hardship was “personal” and “economic.”   Saddler and the Board, on the other hand, claim that the basis for the application and the basis for the decision was not the mistake in the location of the buildings, was not “personal” or “economic,” but was the unusual way in which the lines of the sidewalk, granite curb and pavement “mismatch” in a small area in the northeast corner of the property because of a “skewed angle” of the invisible property line of the road.   Saddler also briefs his argument that the irregular shape of the lot and the area available for a garage also create a hardship which is shown by the plans and drawings in the record.   It is claimed by the defendants that the decision was based upon factors which were unique to the Saddler property and not common to other property in the zone.

Applying the law to the facts found in the record, the court concludes that the Board was justified in finding a hardship existed.   While it is true that there is some economic benefit from the granting of the variance as opposed to the demolition of the buildings, that fact was not the basis for the granting of the variance.   Nor was the hardship based upon any mistake made by the contractor or architect.   The discussions at the hearing and special meeting of the Board make clear that the unique skewing of the boundary line of the road as it went by the property was the basis for the decision.   The court finds this to be an unusual and exceptional circumstance.   A review of the transcript satisfies this court that an honest judgment was reasonably and honestly made.   The decision of the Board is supported by evidence in the record and appears to the court to be in harmony with the general purposes of zoning and such that the public welfare and safety are not adversely affected.

Accordingly, the decision of the Board is sustained and the appeal is dismissed.

Robert C. Leuba, J.T.R.

Leuba, Robert C., J.T.R.