Mary Jascha et al. v. Zoning Board of Appeals of the Town of Monroe (2010)

MEMORANDUM OF DECISION

The plaintiffs, Mary and Scott Jascha, appeal from a decision of the defendant zoning board of appeals of the town of Monroe (the board), granting the defendant John G. Rodrigues' (the defendant) application for a variance to build a detached garage eleven feet from the shared property line between the plaintiffs and the defendant.

The plaintiffs are the owners of property located at 228 Old Newtown Road in the town of Monroe.  (Return of Record [ROR] Exhibits [Exh.] 3, 17(a).)   The defendant owns property located at 15 Oakridge Road,¹ a 0.964-acre parcel in the town of Monroe adjacent to and immediately to the east of the plaintiffs' property.  (ROR, Exh. 3.) The defendant's property is in a Residential and Farming District D(RD).  (ROR, Exh. 1, 4.) Section 117-403(A) of Monroe zoning regulations stipulates that structures in RD cannot “extend ․ within thirty ․ feet of any property line.”  (ROR, Exh. 1.)

The defendant filed an application;  (ROR, Exh. 2);  dated July 13, 2009, to the board for a waiver of the zoning regulations.   The defendant requested a variance of nineteen feet for a proposed garage on his property, allowing the garage to come within eleven feet of the property line.  (ROR, Exh. 2.) The defendant described his hardship as follows:  “Because of narrowness of driveway garage would end up in back of house which would be impossible to enter.”  (ROR, Exh. 2.) In support of his application, the defendant submitted a survey and map of his property showing the proposed garage.  (ROR, Exh. 3.)

On August 4, 2009, a public hearing was held on the above described application.  (ROR, Exh. 17(a).)   The defendant and co-plaintiff Scott Jascha both spoke at the hearing.  (ROR, Exh. 17(a).)   The plaintiffs also submitted a letter at the hearing objecting to the waiver.  (ROR, Exh. 7.) The board deliberated on the application but did not take action during its August 4 meeting.  (ROR, Exh. 17(b).)

On September 1, 2009, the board deliberated over the defendant's application at its regular meeting.  (ROR, Exh. 17(c).)  Four of the five members of the board said that they visited the properties in question, while the fifth member said that he drove by the property.  (ROR, Exh. 17(c).)  At the meeting, the board approved the defendant's application subject to the garage restricted to a single-story structure as set forth in a letter to the defendant dated September 5, 2009.  (ROR, Exh. 15.)   Notice of the application's approval was published in the Connecticut Post on September 4, 2009.  (ROR, Exh. 14.)   The plaintiffs commenced the present appeal by service of process on September 18, 2009.

By complaint dated October 1, 2009, the plaintiffs appeal from the decision of the defendant board, alleging that “[c]onstruction of the garage within the required setback would cause irreparable harm to the [plaintiffs]” and that “[the board] acted illegally, arbitrarily, and in abuse of the discretion vested in it by law as an administrative agency” because “[t]he only alleged hardship was self-created” and “[t]he record demonstrates that there was sufficient space on the Rodrigues' [p]roperty so that a garage could be constructed in conformity with [z]oning [r]egulation[s].”  (Complaint.)   Furthermore, the plaintiffs allege that the defendant board “failed to assign a proper reason for approving the [a]pplication,” “exceeded its authority under [General Statutes] § 8-7 by approving the [a]pplication without, on the record, specifically describing the exceptional difficulty or unusual hardship on which the decision was based,” and “exceeded its authority under the General Statutes and the [z]oning [r]egulations by approving the [a]pplication which was not supported by substantial evidence on the record.”  (Complaint.)

The board filed its return of record on March 19, 2010.   On April 27, 2010, the plaintiffs moved to supplement the record by filing a survey of their property, which they purport shows that the defendant's survey is incorrect and that the defendant's driveway is on the plaintiffs' property.   The court (Stodolink, J.T.R.) granted the motion to supplement the record on May 10, 2010.   The plaintiffs and the defendant filed their respective appeal briefs on May 19, 2010 and August 10, 2010.   On August 10, 2010, the parties appeared before this court for argument.   The plaintiffs filed a reply brief on August 20, 2010.

“[T]here is no absolute right of appeal to the courts from a decision of an administrative agency ․ Appeals to the courts from administrative [agencies] exist only under statutory authority ․ Appellate jurisdiction is derived from the ․ statutory provisions by which it is created ․ and can be acquired and exercised only in the manner prescribed.”  (Internal quotation marks omitted.)  Fedus v. Planning & Zoning Commission, 278 Conn. 751, 756, 900 A.2d 1 (2006).  General Statutes § 8-8 governs an appeal from a decision of a zoning board of appeals.

A

Aggrievement

“It is well settled that [p]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ․ It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved.”   (Internal quotation marks omitted.)  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007).  “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  (Internal quotation marks omitted.)  Id., 400.   General Statutes § 8-8(a)(1) provides in relevant part:  “In the case of a decision by a ․ zoning board of appeals, ‘aggrieved person’ includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.”

In the present case, the plaintiffs allege aggrievement as the owners of the property known as 228 Old Newtown Road, Monroe, Connecticut.   The file contains a warranty deed with rights of survivorship, marked plaintiffs' exhibit one, evincing the plaintiffs' ownership interest in 228 Old Newtown Road. (Plaintiffs' Exh. 1.) Two-hundred twenty eight Old Newtown Road directly abuts 15 Oakridge Road, the subject property.  (ROR, Exh. 3.) Thus, the plaintiffs are aggrieved within the meaning of § 8-8(a)(1).

B

Timeliness and Service of Process

General Statutes § 8-8(b) provides in relevant part that an appeal from a zoning board of appeals to a superior court “shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published ․” General Statutes § 8-8(f)(2) provides in relevant part:  “For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57.”  General Statutes § 52-57(b)(5), in turn, provides in relevant part that process against a town board shall be served “notwithstanding any provision of law, upon the clerk of the town ․ provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board ․”

Notice of the board's approval was published in the September 4, 2009 edition of the Connecticut Post. (ROR, Exh. 14.)   As evidenced by the return of service, the plaintiffs commenced this appeal on September 18, 2009 by service of two copies of their citation and complaint on the Monroe assistant town clerk and one copy of the same citation and complaint within the hands of Rodrigues at his usual place of abode at 15 Oakridge Road, Monroe, Connecticut.   Accordingly, the court finds that the plaintiffs' appeal was timely and that service of process was proper.

A zoning board of appeals has the power “to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values 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 bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured ․” General Statutes § 8-6(a)(3).  “The standard of review on appeal from a zoning board's decision to grant or deny a variance is well established.”  (Internal quotation marks omitted.)  Moon v. Zoning Board of Appeals, 291 Conn. 16, 23, 966 A.2d 722 (2009).  “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 ․ Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons ․ The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs.”   (Internal quotation marks omitted.)  Id., 24.

“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 ․ If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court ․ cannot substitute its judgment as to the weight of the evidence for that of the commission ․ The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.”  (Internal quotation marks omitted.)   Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294, 947 A.2d 944 (2008).  “Where a zoning board of appeals does not formally state the reasons for its decision ․ the trial court must search the record for a basis for the board's decision.”  Moon v. Zoning Board of Appeals, supra, 291 Conn. 25.

“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 ․ 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 ․ Accordingly, [the Supreme Court has] interpreted [General Statutes § 8-6(a)(3) ] 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 ․ Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance.

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 for granting a variance ․” (Internal quotation marks omitted.)  Moon v. Zoning Board of Appeals, supra, 291 Conn. 24-25.

The plaintiffs appeal on the ground that the board improperly granted the defendant's application for a variance of the zoning regulations despite the fact that “there was no hardship warranting a variance” and “any alleged hardship was self-created.”  (Plaintiffs' Brief, p. 1.) In their memorandum, the plaintiffs claim that the board “failed to give any reasons for the issuance of a variance” and that the “[board's] decision was not supported by substantial evidence.”  (Plaintiffs' Brief, p. 1.) Furthermore, the plaintiffs claim that their “recent survey of the property in question demonstrates that the approved variance is inadequate for the proposed location of the garage that was the subject of the ․ variance application ․ (Plaintiffs' Brief, p. 1.)

The defendant, in response, argues that the board had a sufficient basis on which to grant his application.   Specifically, the defendant claims that he “demonstrated, and the [board] correctly found, that the unique topography of the [p]roperty resulted in an unusual hardship” and that “the [board's] decision to grant the variance was supported by substantial evidence in the record.”  (Defendant's Brief, p. 1.) The defendant further claims that the plaintiffs' survey is immaterial and irrelevant to the board's decision.   (Defendant's Brief, p. 8.)

The record establishes that the defendant, in his application for a variance, sought approval to build a garage eleven feet from the property line between his property and the plaintiffs' property, requiring a nineteen-foot variance from the zoning regulations.  (ROR, Exh. 2, 3.) In the “description of hardship” section of the application, the defendant wrote:  “Because of narrowness of driveway garage would end up in back of house which would be impossible to enter.”  (ROR, Exh. 2.) On August 4, 2009, the plaintiffs submitted a letter to the board in objection of the proposed variance.  (ROR, Exh. 7.) In their letter, the plaintiffs gave four reasons for objecting to the variance.  (ROR, Exh. 7.) The first reason was:  “Our family room currently looks out at the area where the garage would be located and its placement will significantly change our view which is currently a wooded area.   We believe this could have a negative effect on our property value.”  (ROR, Exh. 7.) The second reason was:  “Over the past two years, the majority of the [defendant's] house has been torn down and replaced.   Extensive excavation work has also been completed.   Had the garage been planned in advance, a conforming structure could have been incorporated into the plans.   The property [is] large and several options still exist for a conforming structure.”  (ROR, Exh. 7.) The third and fourth reasons stated in the August 4, 2009 letter do not address the proposed garage.²  (ROR, Exh. 7.)

At the August 4, 2009 meeting of the board, the defendant explained that the driveway has been present since the house was built but the property never had a garage.  (ROR, Exh. 17(a).)   He explained that he had been remodeling his house and that he needed the variance “because if I have to start it at 30 feet I'm gonna end up with my garage behind my deck in the middle of the house in the back.   Seems to be a lot more easier just to come straight in the path of the driveway.”  (ROR, Exh. 17(a).)   He further explained that “I would have liked to have had an attached garage, but there's ․ just ․ no way to do it with the space right here, so I figured if I can get into the house a little bit right in here and try to get this variance, it would kind of give me ․ easy access into the garage ․ and out of the garage, or else I'd have to start the garage at the corner of ․ this variance and end up in the middle of my house, which doesn't seem to be a whole lot of sense.”  (ROR, Exh. 17(a).)

Co-plaintiff Scott Jascha also spoke at the August 4, 2009 meeting of the board.  (ROR, Exh. 17(a).)   Scott Jascha said that “if this garage is put there it will be like a big monolith out our back window.”  (ROR, Exh. 17(a).)   He also said:  “If it had been planned in advance, there could have been many ways of getting a conforming garage as part of the construction.   There was one there when it started, it conformed, and now the way the house has been remodeled it's kind of limiting.   But there is still a significant amount of property behind the house where a garage could easily be placed.   And ․ construction of this will really impact the view from ․ several rooms in our house, the rooms that we use most and potentially have an impact on the value of our house.   Whereas before it was a very pleasant view, now we'll be looking at two big walls.”  (ROR, Exh. 17(a).)   At board deliberations following the public hearing, board members decided not to take action on the defendant's application that day.  (ROR, Exh. 17(b).)

On September 1, 2009, the board held final deliberations on the defendant's application.  (ROR, Exh. 17(c).)  The board members agreed that the proposed garage would not constitute a visual obstruction to the plaintiffs if it was limited to a single story in height.  (ROR, Exh. 17(c).)  Among other comments, Chairman James Wendt queried:  “Would it be, could (the defendant) move the thing over 19 feet to achieve the 30 feet?   He probably could.   But that kind of creates, this, this yard has some topographic challenges to it.   I mean, it starts dropping off.   He's got these terraced walls here.   It would be sitting in the middle of the backyard.   Could he ․ physically do it?   Perhaps.  Would it make a difference in terms of what the other neighbor's going to see?   I don't think so.   If I thought it did, if I think it would have more of an impact, or less of an impact by moving it over, I would be inclined to deny it, which I was, my gut feeling.   But having looked at it I don't think you're going to be able to tell the difference one way or the other.”  (ROR, Exh. 17(c).)  Board member Paul Johnson said that the plaintiffs “would have to stand on their ․ toes in the ․ bedroom of the highest level of that home to probably see the top of the garage at best” and that “they're so low it's not likely that it's gonna disturb anything as far as I can see.”  (ROR, Exh. 17(c).)  The board approved the waiver in a unanimous voice vote.  (ROR, Exh. 17(c).)

The defendant argues that the board members' comments related to his property's topography affirm the existence of a hardship and support the denial of this appeal.³  A review of the record shows that the board thought that building the garage eleven feet away from the property line would not create a visual obstruction for the plaintiffs compared with building the garage thirty feet from the property line to comply with zoning regulations.   The board members made some references to the topography of the site, but these references appear to address the differences in elevation between the plaintiffs' and defendant's properties ⁴ and do not address any topographical feature in the defendant's property that makes it difficult to build a garage at least thirty feet from the property line.   The board members did not explain how the topography created a hardship but merely expressed their opinion that because of the differences in elevation, there would not be a hardship to the plaintiffs.   In order for a variance to be granted, the applicant must prove that following the zoning regulations would create “exceptional difficulty or unusual hardship.”  (Internal quotation marks omitted.)  Moon v. Zoning Board of Appeals, supra, 291 Conn. 24;  see also Lavoie v. Voluntown Zoning Board of Appeals, Superior Court, judicial district of New London, Docket No. CV 08 4008472 (January 13, 2010, Purtill, J.) [49 Conn. L. Rptr. 153] (reversing the granting of a variance because “[a]lthough there were other mentions of topography ․ in the record and it had been established that a steep slope existed on [the property] there was no direct evidence as to how the slope prevented defendant from complying with ․ the regulations”).

The defendant's testimony before the board indicates that his intent in seeking the variance was to make it easier for him to access his garage and to avoid building a structure in his backyard behind the deck.  (ROR, Exh. 17(a).)  “Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship ․” Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662, 211 A.2d 687 (1965).   The position of the defendant's house on his property is more properly characterized as an inconvenience rather than a hardship.   See, e.g., Moon v. Zoning Board of Appeals, supra, 291 Conn. 26 n.9 (“the fact that the internal layout of the house was poorly designed to meet the needs of modern living” is “an inconvenience [that] does not rise to the level of hardship necessary for the approval of a variance”).   Accordingly, there is a lack of substantial evidence to support the granting of the variance.

The plaintiffs also submit that any hardship that was alleged by the defendant was self-created.   Specifically, the plaintiffs argue that because the defendant had been remodeling his house prior to seeking a variance, he could have arranged to construct a garage that is consistent with the regulations.   At the August 4, 2009 public hearing, the defendant told the board that he had “been remodeling the house for the last ten months or so.”  (ROR, Exh. 17(a).)   In their letter to the board, the plaintiffs claimed that “[over] the past two years, the majority of the house has been torn down and replaced.”  (ROR, Exh. 7.)

“In order to justify a variance, the hardship must differ from the conditions that generally affect the property owners in the same area and it must arise from circumstances beyond the control of the property owner seeking the variance.”  Bloom v. Zoning Board of Appeals, 233 Conn. 198, 209, 658 A.2d 559 (1995).  “Where the claimed hardship arises from the applicant's voluntary act ․ a zoning board lacks the power to grant a variance.”  (Internal quotation marks omitted.)  Kaeser v. Zoning Board of Appeals, 218 Conn. 438, 445, 589 A.2d 1229 (1991).   Given that the defendant has the opportunity to build a conforming garage and is only seeking to build a nonconforming garage because of convenience, any alleged hardship is self-inflicted.

The plaintiffs also argue that the defendant submitted an incorrect survey to the board in support of his application for a variance and that the plaintiffs' correct survey establishes that the defendant's driveway and retaining wall encroaches on their property.   The defendant responds that the boundary dispute is irrelevant to the board's decision to grant his variance.   Because the court has determined that the board's decision is not supported by substantial evidence, it is not necessary to reach the issue of competing surveys.

The court concludes that because the substantial record evidence does not support a finding of “exceptional difficulty or unusual hardship” and because any alleged hardship was self-inflicted, the board improperly granted the defendant's application for a variance.   Accordingly, the plaintiffs' appeal is sustained.

OWENS, J.T.R.

FOOTNOTES

FN1. The name of this street is referred to as Oakridge Road (one word) in official documents filed by the board as part of the record of review.   (ROR, Exh. 4.) The parties' pleadings and property surveys refer to the road as Oak Ridge Road (two words)..  FN1. The name of this street is referred to as Oakridge Road (one word) in official documents filed by the board as part of the record of review.   (ROR, Exh. 4.) The parties' pleadings and property surveys refer to the road as Oak Ridge Road (two words).

FN2. The third reason alleges that the defendant caused “trees and large evergreens” and brush to be removed during his excavation work without the plaintiffs' knowledge or consent.   The plaintiffs allege that this removal affected the view out of their house and that the removal happened without their knowledge or consent.   The fourth reason alleges that the plaintiffs asked the defendant to “return our property to its original state” including “planting new trees to obstruct our view of his home.”.  FN2. The third reason alleges that the defendant caused “trees and large evergreens” and brush to be removed during his excavation work without the plaintiffs' knowledge or consent.   The plaintiffs allege that this removal affected the view out of their house and that the removal happened without their knowledge or consent.   The fourth reason alleges that the plaintiffs asked the defendant to “return our property to its original state” including “planting new trees to obstruct our view of his home.”

FN3. In their reply memorandum, the plaintiffs argue that the board should not have considered any evidence gathered from the board members' visit to the site because those visits occurred after the public hearing was closed and thus the plaintiffs were denied an opportunity to respond.   The Connecticut Supreme Court has stated that a “board [cannot] properly consider correspondence submitted after the public hearing without providing the necessary safeguards guaranteed to the applicants and the public,” that is, “a fair opportunity to cross-examine witnesses, to inspect documents presented and to offer evidence in explanation or rebuttal.”  Parish of St. Andrew's Church v. Zoning Board of Appeals, 155 Conn. 350, 358, 232 A.2d 916 (1967).   In Parish of St. Andrew's, the plaintiffs argued that the board should have considered “five letters containing statements and opinions which were sent to the board some weeks after the public hearing.”  Id. In contrast, in the present case, board members visited the site upon their own initiative.  “[T]he commission is not required to provide an opportunity for rebuttal when it relies on the knowledge and experience of one of its members on nontechnical issues” such as a “chairman's report [that is] merely a summary of his personal observations of the area and of what had transpired at the public hearing ․” Brookfield Plaza Limited Partnership v. Zoning Commission, 21 Conn.App. 489, 494, 574 A.2d 825 (1990).   Observations of a site's elevation and the relative position of buildings are nontechnical issues.   See, e.g., Napolitano v. Zoning Board of Appeals, Superior Court, judicial district of New London at Norwich, Docket No. 0536421 (May 14, 1997, Shortall, J.) (holding that the observations of a board member who visited the site after the public hearing “do not rise to the level of a technical issue”).   Therefore, the board did not act improperly in considering members' ex parte site visits in granting the defendant's application..  FN3. In their reply memorandum, the plaintiffs argue that the board should not have considered any evidence gathered from the board members' visit to the site because those visits occurred after the public hearing was closed and thus the plaintiffs were denied an opportunity to respond.   The Connecticut Supreme Court has stated that a “board [cannot] properly consider correspondence submitted after the public hearing without providing the necessary safeguards guaranteed to the applicants and the public,” that is, “a fair opportunity to cross-examine witnesses, to inspect documents presented and to offer evidence in explanation or rebuttal.”  Parish of St. Andrew's Church v. Zoning Board of Appeals, 155 Conn. 350, 358, 232 A.2d 916 (1967).   In Parish of St. Andrew's, the plaintiffs argued that the board should have considered “five letters containing statements and opinions which were sent to the board some weeks after the public hearing.”  Id. In contrast, in the present case, board members visited the site upon their own initiative.  “[T]he commission is not required to provide an opportunity for rebuttal when it relies on the knowledge and experience of one of its members on nontechnical issues” such as a “chairman's report [that is] merely a summary of his personal observations of the area and of what had transpired at the public hearing ․” Brookfield Plaza Limited Partnership v. Zoning Commission, 21 Conn.App. 489, 494, 574 A.2d 825 (1990).   Observations of a site's elevation and the relative position of buildings are nontechnical issues.   See, e.g., Napolitano v. Zoning Board of Appeals, Superior Court, judicial district of New London at Norwich, Docket No. 0536421 (May 14, 1997, Shortall, J.) (holding that the observations of a board member who visited the site after the public hearing “do not rise to the level of a technical issue”).   Therefore, the board did not act improperly in considering members' ex parte site visits in granting the defendant's application.

FN4. At the September 1, 2009 deliberations, Paul Johnson said in relevant part:  “I looked to see where the [the plaintiffs'] house was, how high up it was, compared to where this garage was ․ proposed and I saw no problem whatsoever.”  (ROR, Exh. 17(c).)  George King said in relevant part:  “I went up into the woods and that's obviously the highest part of that area, is up in that woods that, that separates the two properties, so the neighbor's property that ․ addressed us last time, he's set down below.   I don't think he's going to have a sight line to that garage.   Maybe the roof, but that's about it.”  (ROR, Exh. 17(c).)  James Wendt said in relevant part:  “You know, you can see ․ the gable end of the house from Old Newtown Road if you look between the trees, but there is a significant topographic difference.”  (ROR, Exh. 17(c).).  FN4. At the September 1, 2009 deliberations, Paul Johnson said in relevant part:  “I looked to see where the [the plaintiffs'] house was, how high up it was, compared to where this garage was ․ proposed and I saw no problem whatsoever.”  (ROR, Exh. 17(c).)  George King said in relevant part:  “I went up into the woods and that's obviously the highest part of that area, is up in that woods that, that separates the two properties, so the neighbor's property that ․ addressed us last time, he's set down below.   I don't think he's going to have a sight line to that garage.   Maybe the roof, but that's about it.”  (ROR, Exh. 17(c).)  James Wendt said in relevant part:  “You know, you can see ․ the gable end of the house from Old Newtown Road if you look between the trees, but there is a significant topographic difference.”  (ROR, Exh. 17(c).)

Owens, Howard T., J.T.R.