George C. Mead v. Zoning Board of Appeals of the City of Stamford et al. (2010)

MEMORANDUM OF DECISION

I. Background

George Mead appeals to the court from a decision of the Stamford Zoning Board of Appeals (ZBA) approving an application by Lindley Rawlins for a variance from setback requirements to allow construction of an addition to the residence on her premises known as 114 June Road in Stamford, Connecticut.

The Rawlins application sought to allow the construction of a new wing to the house replacing the prior wing, and some remodeling of a nonconforming residence in the RA-3 district.   The residence was apparently built in the 1920's.   ROR, Item 18, 9.¹ The lot is a legally nonconforming lot for three reasons.   Its 2.1 acres is less than required for a RA 3 zone;  it contains two residential dwellings, and a portion of the main residence is located in the sixty-foot setback area required in a RA-3 district.   The present residence comes as close as 32.4 feet to Guinea Road. The proposed construction would largely conform with the footprint of the existing wing;  however, the closest portion of the new wing would be 37.2 feet from Guinea Road, almost five feet further away, while it appears that a slightly larger portion of the residence would encroach within the sixty-foot setback area.   ROR, Items 1 and 6.

II. Jurisdiction

At the trial of this appeal, Mead testified he was the owner of real property located at 107 June Road. A map of the area, Ex. 2, shows that the Mead and Rawlins properties are directly across the road from each other at the intersection of June and Guinea Roads, north of the Merritt Parkway.   The court finds the properties are within one hundred feet of each other, and the court has jurisdiction to hear and decide this appeal.  General Statutes §§ 8-8(a)(1) and 8-8(b).

III. Standard of Review

The standard of review to be employed by a Superior Court in an appeal of a zoning board's decision to grant or deny an application for a variance is well established.   The trial court must determine whether the zoning board decision was “arbitrary, illegal or an abuse of discretion ․ ‘courts are not to substitute their judgment for that of the board ․ and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing ․’ “ Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205 (1995) (quoting Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654 (1980)).

The responsibility of the trial court is to ascertain whether there is substantial evidence in the record to support the zoning board decision.   Evidence is substantial if it affords a substantial basis of fact from which a fact in issue can be inferred.  “Substantial evidence” is a less demanding standard than preponderance or weight of the evidence.  Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993).   It is similar to the sufficiency of the evidence standard applied in determining whether to uphold a jury verdict.  River Sound Development, LLC v. Inland Wetlands and Watercourses Commission, 122 Conn.App. 644, 656 (2010);  When a zoning board has articulated a reason for its actions on the record, the court goes no further than the reason or reasons stated.   Where such articulation has not taken place the court must search the entire record to ascertain the basis for the board's decision.  Gibbons v. Historic District, 285 Conn. 755, 770 (2008).   In this case, no clear statement of reasons was articulated by the ZBA. While individual members stated reasons (see ROR, Item, 18, 10) the Certificate of Decision speaks in generalities and legal conclusions.   ROR Item, 17.   Therefore, the court will search and consider the full record.

If there is substantial evidence in the record to uphold the board, the court may not substitute its own judgment.  Vine v. Zoning Board of Appeals, 281 Conn. 553, 560 (2009).

IV. Discussion

The major thrust of Mead's appeal is that the Rawlins application did not meet the requirements for granting a variance.  General Statutes § 8-6(a)(3) authorizes a zoning board of appeals to “vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent ․ where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, literal enforcement ․ would result in exceptional difficulty or unusual hardship.”   The Connecticut Supreme Court has said the authority to grant a variance “requires the fulfillment of two conditions:  (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).

Mead argues that the Rawlins application cannot meet the hardship requirement.   In addition, he asserts that the minor increase in distance from the road is not a basis for granting the variance because the record shows that a larger portion of the residence will still be located in the prohibited setback area.

More recently, the Connecticut Supreme Court has stated:

In cases in which an extreme hardship has not been established, the reduction of a nonconforming use to a less offensive prohibited use may constitute an independent ground for granting a variance.

Vine v. Zoning Board of Appeals, supra, 281 Conn. 562 [citing Adolphson v. Zoning Board of Appeals, 205 Conn. 703 (1988), and Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565 (2001) ].

Rawlins contends, as does the Stamford ZBA, that the ZBA's approval of the application was fully justified by the fact that the project would reduce the nonconformance of the lot because the residence would be set back farther from Guinea Road. There is merit to this argument.   As pointed out in Vine v. Zoning Board of Appeals, supra, a reduction of a nonconforming condition is a recognized basis for granting a variance.  Vine relied on Adolphson v. Zoning Board of Appeals, supra, which held that a variance could be granted to permit a landowner to change the use of property from an aluminum casting foundry (a nonconforming use) to an automobile repair shop (a prohibited use).   The local board and trial court had found that the proposed prohibited use would be “far less offensive” than the former use.  Adolphson, supra, 205 Conn. 710.

The court determines there is substantial evidence in the record to support the ZBA's approval of the variance request.   There was unequivocal evidence in the record that the proposed addition would encroach less toward Guinea Road. This was stated, without contradiction, by Ms. Rawlins at the hearing [ROR, Item 18 at 2-3, 8] and shown clearly on the plot plan submitted and approved by the ZBA. ROR, Item 6. This reduction of the nonconformance was also noted during the Board's deliberations and approval following the hearing.   ROR, Item 18, 10.

Mead cites to Curran v. Zoning Board of Appeals, 117 Conn. 458 (2009), in support of his position.   Curran is not controlling because there was no finding by the local board or the trial court of a reduction in nonconformance.   Therefore, Curran does not discuss or deal with the issue of a reduction in nonconformance as a basis for granting a variance.

Mead argues that, while conceding that the proposed addition does not encroach as far toward the road as the existing building, the proposed addition encroaches on more of the setback area than before.   The evidence of this, according to Mead, is found on the plot plan, Item 6 in the Return of Record.   The plot plan shows the existing structure and the proposed addition.   After viewing the plot plan one could reasonably conclude that the addition will cover more of the setback area than the present structure.   But to what extent, i.e. how much more, cannot be determined.   The plot plan shows a fairly substantial portion of the existing structure which now encroaches will be removed, including that portion closest to the road.   To the untrained eye, a slightly larger area of the addition will encroach, but not as close to the road.   Mead has presented no facts, and there are none in the record, calculating, or even estimating, what the size of the encroached area will be as compared to the present.

Under these circumstances the court finds it was well within the ZBA's discretion and purview to conclude that moving the closest portion of the residence to Guinea Road back from the road outweighed the uncalculated increased coverage in the setback area, and that the proposed addition was less offensive, or a reduction of the nonconforming use.   This is precisely the type of determination that our law says should be left in the hands of locally elected land use boards, and Mead has not met his burden of proving that the ZBA acted improperly.  Adolphson, supra, 205 Conn. 707.

Mead also contends that since there are two residences on the lot, expanding the main residence at all is an expansion of a nonconforming use.   According to the record, the so-called second residence is a small guest cottage built before zoning laws were enacted and was a legally nonconforming use.   ROR, Item 18, 7. There was no proposal to expand the guest cottage, which by any reasonable analysis, was the nonconforming building.  Id. The zoning enforcement officer on reviewing the application found no zoning violations.   ROR, Item 1, and this indicated to the ZBA that no other variances need be applied for, contrary to Mead's argument.   ROR, Item 18, 10.   In its deliberations one member of the ZBA stated that the issue of the guest house did not involve any expansion of the nonconformity.   The court finds substantial evidence in the record to support this view.

V. Conclusion

Based on the foregoing discussion, the appeal is denied.

TAGGART D.ADAMS

SUPERIOR COURT JUDGE

FOOTNOTES

FN1. References to “ROR” are to the Return of Record on file with the court.   Item 18 is the transcript of the public hearing on the application..  FN1. References to “ROR” are to the Return of Record on file with the court.   Item 18 is the transcript of the public hearing on the application.

Adams, Taggart D., J.