St. Luke's Development Corp. et al v. Board of Zoning Appeals et al (2010)

MEMORANDUM OF DECISION

The plaintiffs St. Luke's Development Corporation and the Parish of St. Luke's Protestant Episcopal Church have appealed the granting of a use variance and a rear yard variance by the defendant Board of Zoning Appeals of the city of New Haven to the defendant Gennaro Zito for the property at 101 Whalley Avenue, New Haven, Connecticut.

Zito operates a furniture store at the property which he owns located at 101 Whalley Avenue, New Haven, Connecticut.   Zito was issued a building permit by the city of New Haven to construct a two-story addition on the side of his existing furniture store.   The first floor of the addition was to be used as a garage and the second floor for storage.   Zito constructed the addition after receiving the permit.   Zito subsequently applied to the Board of Zoning Appeals for two variances related to the constructed addition.   He sought a use variance to permit the expansion of the existing furniture store in a BB zone and a rear yard variance to permit a rear yard of five feet ten inches where ten feet is required.   On May 13, 2008, the Board of Zoning Appeals approved the request and granted the variances.   This appeal followed.

The parties stipulated at the court hearing that the plaintiffs are abutting owners of the subject property.   The plaintiffs are therefore statutorily aggrieved pursuant to General Statutes § 8-8(a)(1).

“The 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 v. Zoning Board of Appeals, 257 Conn. 456, 470 (2001).  “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 fact 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 ․ If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board.”  (Internal quotation marks omitted.)  Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-60 (2007).  “The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision.”  (Internal quotation marks omitted.)  Francini v. Zoning Board of Appeals, 228 Conn. 785, 791 (1994).

In this case, the Zoning Board of Appeals failed to articulate any reasons for its decision granting the variances.   Accordingly, the court is obligated to search the entire record to find a basis for the board's decision.  Norwood v. Zoning Board of Appeals, 62 Conn.App. 528, 532 (2001).

The plaintiffs assert, inter alia, that the Zoning Board of Appeals illegally granted the variances because Zito failed to demonstrate any legally recognized hardship justifying a variance.   I agree.

Section 63C of the zoning ordinance of the city of New Haven governs the granting of variances by the Zoning Board of Appeals.   It provides that “Where there is difficulty or unreasonable hardship in the way of carrying out the strict letter of the zoning ordinance, the Board of Zoning Appeals shall have power in a specific case to vary the application of any provision of the ordinance, if such variance will be in harmony with the general purpose and intent of the ordinance and if the public health, safety and general welfare will be served and substantial justice done.”

A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town.  Burlington v. Jencik, 168 Conn. 506, 508 (1975).   It is well established that the granting of a variance must be reserved for unusual or exceptional circumstances.  Dolan v. Zoning Board of Appeals, 156 Conn. 426, 429 (1968).  “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.”  Id., 430.   Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance.  Point O'Woods Ass'n., Inc. v. Zoning Board of Appeals, 178 Conn. 364, 368 (1979).   A mere economic hardship or a hardship that was self-created, however, is insufficient to justify a variance;  Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662 (1965);  and neither financial loss nor the potential for financial gain is the proper basis for granting a variance.   Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239 (1972).

The record before the Zoning Board of Appeals indicates the following.   The subject lot is located in a BB zone which is a business district intended to have a concentration of establishments selling new and used vehicles.   See Section 41 of the Zoning Ordinance of the city of New Haven.   It is a very small lot consisting of 1,950 square feet and is the only small parcel in the area.   The principal building on the lot houses a furniture store and consists of two stories containing showrooms with storage limited to the basement.   The addition for which the variances were sought is one and one-half stories high.   The addition contains a garage on the first floor with the second floor limited to storage use.   Zito testified at the hearing before the Zoning Board of Appeals that his automobile had recently been vandalized so he built the garage to store his automobile and protect it from vandalism.   He also testified that the second floor of the addition was used to store merchandise from his furniture store.

A search of the record reveals four possible bases for a finding of hardship:  (1) the construction of the addition by Zito in reliance on the city's issuance of a building permit;  (2) Zito's expressed need to garage his car to prevent further vandalism;  (3) the need for additional storage space for the furniture store;  and (4) the inability to construct any addition without violating the rear yard requirements due to the small size of the lot.   None of these facts, however, constitute the type of hardship required for the granting of a variance.

While Zito's reliance on the issuance of a building permit was unfortunate, it fails to constitute a hardship for purposes of issuing a variance.   See Bloom v. Zoning Board of Appeals, 233 Conn. 198, 210-11 (1995).   The need to garage one's car to prevent vandalism is a personal need not related to the peculiar characteristics of the property.   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.  Curran v. Zoning Board of Appeals, 117 Conn.App. 458, 464 (2009).   The need for increased storage space is also not a legally recognizable hardship.   The fact that the addition to the furniture store may allow Zito to operate his business more efficiently is insufficient to justify the issuance of a variance.   See Horace v. Zoning, 85 Conn.App. 162, 171-72 (2004).   It is well-established that financial considerations do not constitute a cognizable legal hardship unless the zoning restrictions greatly decrease or destroy the value of the property.  Id., 171.

Zito contends that the size limitations of the subject lot constitute a legally recognizable hardship.   He asserts that the exceedingly small size of the lot especially in relation to the significant larger parcels in the area together with the fact that he located his addition in the only available space on his lot justify the issuance of the variances.   Zito further argues that the Appellate Court decision in Stillman v. Zoning Board of Appeals, 25 Conn.App. 631 (1991), cert. den., 220 Conn. 923 (1981), supports his position.   I am not persuaded.

The first problem with Zito's claim is a factual one.   There is no evidence in the record that Zito was prevented from building a smaller addition which would not require a variance in the zoning requirement that the rear yard consist of ten feet.   For this reason, Stillman v. Zoning Board of Appeals is not applicable.   In Stillman, there were permanent structures on an undersized lot that prevented the defendant from constructing the proposed addition at any location other than within the setback.   The record in this case does not reflect whether an addition could be constructed without infringing on the rear yard requirements.   See Bloom v. Zoning Board of Appeals, 233 Conn. 198, 210 n.13 (1995).

Second, assuming that the lot is so small that any addition which was built would require a rear yard variance, the mere existence of an exceedingly small lot with no additional buildable space does not constitute a legally recognizable hardship.  “[T]he fact that an owner is prohibited from adding new structures to the property does not constitute a legally cognizable hardship.”  Bloom v. Zoning Board of Appeals, 233 Conn. 198, 210 n.13 (1995).   A recognition of the defendant's claim would in effect exempt small lots from the setback requirements of zoning ordinances.  “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).

For the aforementioned reasons, the plaintiffs' appeal is sustained.

BY THE COURT

Judge Jon M. Alander

Alander, Jon M., J.