Sandra Ariyan, Trustee et al. v. Pine Orchard Association, Inc. et al. (2010)

MEMORANDUM OF DECISION

The Pine Orchard Association, which is located in Branford, Connecticut, was chartered by the State of Connecticut on June 18, 1903.   The Association was given, and still has, certain areas of jurisdiction separate from the Town of Branford, including planning, zoning, and zoning enforcement, within the boundaries of the Association.   The Association first adopted zoning regulations on June 26, 1945.

This litigation has its origins in the efforts of the plaintiff to construct a gazebo on her property known as 16 Yowago Drive located in the Pine Orchard section of Branford, Connecticut (property).   There are two pending appeals, both involving the same parties, the same property, and the same partially constructed gazebo.   They have been consolidated for trial and were both argued before this court on September 14, 2010.

Docket # CV08-4034207 concerns an appeal by the plaintiff from the denial by the defendant Pine Orchard Association Zoning Board of Appeals (ZBA) of the plaintiff's appeal from a cease and desist order of the Pine Orchard Association Zoning Enforcement Officer (ZEO) which was heard and decided by the ZBA on July 13, 2008.  (Cease and desist appeal.)   Docket # CV 09-4037838 is an appeal by the plaintiff from a denial by the ZBA of the plaintiff's application for a variance of the rear yard setback zoning regulation which was heard and decided by the ZBA on June 1, 2009 (variance appeal).   Since the issues in each appeal are different the court will file two memoranda.   This memorandum concerns Docket 09-4037838 dealing with the appeal from the ZBA's June 1, 2009 denial of the application for a variance.

The property is owned by the plaintiff Sandra Ann Ariyan Trust Agreement and this appeal has been brought by the plaintiff Sandra Ann Ariyan, Trustee.   The court finds that the plaintiffs have established that they are statutorily aggrieved.

The property consists of approximately one-half of an acre and is located in an A-2 zone.   The zoning regulations provide that property located in an A-2 zone shall have a 25-foot front yard setback and a 20-foot rear yard setback.   The property is rectangular in shape and has 217 feet frontage on Yowago Avenue to the east and 217 feet on an unimproved right of way owned by the Hotchkiss Grove Association and known as Dudley Avenue to the west.   The south and north lines are 121 and 125 feet long.   Located on the property is a one-family residence with an attached garage, a swimming pool, a small gazebo, and a partially constructed larger gazebo.   The location of the partially constructed large gazebo is the subject of this appeal.

In late 2007 or early 2008 the plaintiff began to construct a gazebo 10 feet wide and 38 feet long next to the pool.   It has wooden posts with foundation footings three and one-half feet deep, and when it is finished will have a plywood roof with asphalt shingles, and will be 10 feet high.   Construction was started by the plaintiff without obtaining a building permit.   On February 21, 2008 the plaintiff applied to the Pine Orchard Zoning Authority for a Certificate of Zoning Ordinance Conformity.   This application was denied on February 28, 2008 and a stop work order was issued by the ZEO. A second application was denied on April 21, 2008 and the plaintiff was advised that the partially constructed gazebo violated the rear yard setback zoning regulation.

On June 14, 2008 the plaintiff filed an application for a variance of the setback requirement before the ZBA, a public hearing was held on July 14, 2008, and the application was denied.   There was no appeal from the denial.   That application for a variance is not the application for a variance with which this memorandum is concerned.

On August 6, 2008 the ZEO issued a cease and desist order.   The basis of the order was that the partially constructed gazebo was a non-conforming structure which had been erected without zoning and building permits.   The plaintiff was ordered to remove the gazebo.   On August 29, 2008 the plaintiff appealed the ZEO's cease and desist order to the ZBA. The appeal set forth various reasons why the plaintiff thought the cease and desist order was wrongfully issued.   A duly noticed public hearing was held by the ZBA on the appeal on October 13, 2008.   The ZBA upheld the cease and desist order of the ZEO and denied the appeal.   On November 13, 2008 the plaintiff appealed the decision of the ZBA to this court.   That appeal is Docket 08-4034207 and is not the subject of this memorandum of decision.

On or about May 4, 2009 the plaintiff filed an application for a variance with the ZBA seeking a variance of the rear setback line on the property.   The application requested that the 20' rear yard setback requirement be reduced to 11.45' to accommodate the gazebo which was partially constructed.   The application referred to the prior variance application which was denied in 2008 and stated that “the applicant is filing this renewed variance application based upon a number of factors.”   The ZBA held a duly called public hearing on the application for a variance on June 1, 2009 and denied the application.

On June 16, 2009 the plaintiffs filed an appeal of the decision of the ZBA with this court.   The defendant in these consolidated cases has filed returns of record with respect to this variance appeal, the appeal in this cease and desist matter, and the notices and hearing transcript of the variance appeal denied on July 14, 2008, from which no court appeal was taken.   Appropriate briefs have been filed by the opposing parties and argument was heard on September 14, 2010.

This appeal claims, in substance, that the denial by the ZBA of the application for a variance was an abuse of discretion and in violation of its own regulations and applicable state law in that (a) the ZBA failed to find that the gazebo did not disrupt the views or encroach upon any adjacent property owners and was not a “structure” pursuant to the zoning regulations;  (b) the ZBA failed to find that the rear boundary line was unique in that it abutted a grassed over and wooded portion of Dudley Avenue, over which the plaintiffs have a right to pass and repass, which cannot be built upon, and which would have no material impact or impairment of the zoning regulations;  (c) the ZBA failed to find that the variance was not substantial and that existing structures located on the plaintiff's property are closer to the boundary line then the proposed gazebo;  and (d) that the decision of the ZBA is not supported by substantial evidence and does not find a basis in fact or law.   The defendants have filed an answer denying the essential allegations of the appeal and a special defense alleging that “on or about June 9, 2008 the plaintiffs filed an identical application for a variance which application was denied by the defendant on July 13, 2008.   There has been no substantial change in any conditions on the property which would warrant a revision of the defendant's previous decision.”   The plaintiff has denied the allegations of the special defense.  “A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town ․ It is well established, however, that the granting of a variance must be reserved for unusual or exceptional circumstances.  Dolan v. Zoning Board of Appeal, 156 Conn. 426, 429, 242 A.2d 713 (1968);  Ward v. Zoning Board of Appeals, 153 Conn. 141, 145, 215 A.2d 104 (1965);  Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 661-62, 211 A.2d 687 (1965);  Kelly v. Zoning Board of Appeals, 21 Conn.App. 594, 598, 575 A.2d 249 (1990).  “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.”  Dolan v. Zoning Board of Appeals, supra, 430.   Accordingly, we have interpreted General Statutes (Rev. to 1993) § 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.”   (Internal quotation marks omitted.)  Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368, 537 A.2d 1030 (1988);  Smith v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542 (1978).   Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance.”  Bloom v. Zoning Board of Appeals, 233 Conn. 198 (1995).

The plaintiff's brief states that the instant variance application was filed by the plaintiff “in an attempt to resolve the outstanding cease and desist order” issued by the ZEO. The cease and desist order is the subject of the companion case and involves entirely different issues than those involved in this appeal from the denial of an application for a variance.   That the plaintiff is making essentially the same factual claims in each appeal does not change her burden of proof in this variance appeal.

The plaintiff claims that her property has a “unique hardship because the original positioning of the house and pool on the lot was impacted by the fact that the rear boundary of her lot bordered an undeveloped 40' road over which the plaintiff has an easement.   The evidence disclosed that the undeveloped road is owned by the Hotchkiss Grove Association.   This claim and her other vague claims of hardship were before the ZBA for its consideration bearing on whether she had proven an unusual hardship caused by the rear yard setback requirement.

Claims that the gazebo was not a structure, that it did not obstruct the views of the neighbors, that existing structures on the property are closer to the boundary line than the proposed gazebo, that most of the neighbors supported the application for a variance, that the purpose of the gazebo was to protect people from the sun, and that a prior ZEO had approved the smaller existing gazebo are not relevant in deciding whether the plaintiff has proven an unusual hardship.

The plaintiff does not mention in her brief the special defense filed on behalf of the defendants.   The application for the variance denied by the ZBA on June 1, 2009 is identical to the one denied eleven months earlier on July 14, 2008, from which no appeal was taken, and there is no evidence of a change in circumstances which materially affects the merits of the application.   Our Supreme Court has held that under those circumstances an administrative tribunal, such as a Zoning board of appeals, should not reverse itself.   See Rocchi v. Zoning Board of Appeals, 157 Conn. 106, 111, 248 A.2d 922 (1988);  Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 278-79, 129 A.2d 619 (1957).

A review of the record in this case discloses that the members of the ZBA denied the application for a variance because they did not feel that the plaintiff had proven the existence of an unusual hardship caused by the rear yard setback requirement, and that there had been no change since the denial in July 2008.   These conclusions are fully supported by the record.

Courts are not to substitute their judgment for that of a board that has reached a decision based on the record and after a full hearing.   The decision by the ZBA was not arbitrary, illegal or an abuse of discretion.

The appeal is dismissed.

William L. Hadden, Jr.

Judge Trial Referee

Hadden, William L., J.T.R.