Thomas Demusis v. New Haven Zoning Board of Appeals et al. (2011)

MEMORANDUM OF DECISION APPEAL FROM DECISION OF THE BOARD OF ZONING APPEALS FOR THE CITY OF NEW HAVEN

The Plaintiff, Thomas DeMusis, appeals the decision of the Board of Zoning Appeals for the City of New Haven (“ZBA”) for granting the variance application of the defendant, Ronsal Limited Partnership (“Ronsal”).   The plaintiff brings this appeal claiming that in granting the application of Ronsal, the ZBA acted illegally, arbitrarily, and abused its discretion in its Complaint dated January 19, 2007.   The defendants argue that the decision of the ZBA was legal and reasonable.   The ZBA claims that the facts in the record supported a finding of exceptional difficulty or unusual hardship.   The court finds that an “unusual hardship” exists and that the decision of the ZBA must be sustained.

FACTS

The following facts were established from the return of record filed and from a hearing held before this court on January 21, 2011.   Thomas DeMusis is the owner of real property located at 155 Fulton Terrace, New Haven, Connecticut, which property abuts the property which is the subject of this appeal.   The property which is the subject of this appeal is known as 83–85 Kendall Street, New Haven, Connecticut (the “Property”) and is located in an IH Zone. On or about November 14, 2006, the owner of the property, Ronsal Limited Partnership, filed a variance application with the ZBA requesting the following Zoning Ordinance variances:  a variance of § 44.1(3)a to construct a billboard on 83–85 Kendall Street, which is within 1299 feet of another existing billboard at 161 Forbes Avenue, New Haven, Connecticut, when the ordinance requires 1500 feet between such billboards;  and a variance of § 44.1(3)a to allow Ronsal to construct a billboard at 83–85 Kendall Street, New Haven Connecticut, which is within 810 feet of another existing billboard at 383 Forbes Avenue, New Haven, Connecticut, when the ordinance requires 1500 feet between such billboards.   With regard to the second requested variance, the parties have stipulated that the property located at 383 Forbes Avenue does not require a variance to construct the billboard that is being requested and as such, the first variance that was requested by Ronsal is the only variance that is in issue for purposes of this appeal and decision.   The variance application of Ronsal was heard by the ZBA on December 5, 2006.   On January 9, 2007, the ZBA found that Ronsal had demonstrated an unreasonable hardship in carrying out the strict letter of the Zoning Ordinance and that the requested variances were in harmony with the general purpose and intent of the Ordinance and that the public health, safety and general welfare would be served and substantial justice done.   Notice of such decision was duly published in the New Haven Register on January 16, 2007.

LEGAL ANALYSIS

An appeal from a decision by a zoning board of appeals is statutory in nature and the standard of review is well established.   The scope of review is limited to determining only whether the ZBA's actions were unreasonable, arbitrary or illegal.   See R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470 (2001).  “It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own.”  Id. The plaintiff bears the burden of establishing that the ZBA acted improperly.   See Wood v. Zoning Board of Appeals, 258 Conn. 691, 698 (2001).   The court reviews the record before the ZBA to determine whether it has acted fairly or with proper motives or upon valid reasons.   See Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995) “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.”  Vine v. Zoning Board of Appeals, 281 Conn. 553, 559–60 (2007).   Thus, “[t]he question is not whether the trial court would have reached the same conclusion, but whether the record before the [ZBA] supports the decision reached.”  Id., at 560.

“Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations.”  (Internal quotation marks omitted.)  Bloom v. Zoning Board of Appeals, supra, at 208.   Under General Statutes § 8–6(a)(3) a zoning board of appeals may grant a variance of the zoning regulations when two conditions are met:  (1) the variance does not substantially affect the comprehensive zoning plan;  and, (2) the application of the local zoning regulations would cause an unusual hardship unnecessary to carrying out the general purpose of the zoning plan.

The plaintiff argues that in granting the variance application of Ronsal, the ZBA acted illegally, arbitrarily and in abuse of the discretion vested in it in that the variance granted is not in compliance with the comprehensive plan of the City of New Haven, and there is no unusual hardship as a matter of law or fact to justify granting of the variance.   The issues in this case, therefore, become whether the variance substantially affects the comprehensive zoning plan, whether an unusual hardship exists and if the record of the ZBA findings is sufficient to reasonably support the decision.   The Court finds that the plaintiffs are statutorily aggrieved for the purpose of making this appeal pursuant to General Statutes § 8–8(1).

In reviewing the decision of the ZBA, the court must first determine if the ZBA articulated its reasons on the record to support its decision.  Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369 (1998).   In determining if the ZBA has articulated its reasons, the reviewing court should consider the entire record before the local authority, and determine whether or not the local zoning authority acted upon valid reasoning, in a fair manner, and with proper motive.  Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662 (1965).

The Court's review of the record in the instant case establishes that the ZBA did articulate its reasons as to why defendant Ronsal's application was granted.   The record reflects little discussion by the ZBA members with regard to the necessary conditions that must be addressed in order to determine whether or not to grant a variance.   Furthermore, where there is discussion on these topics, it gives little insight into the ZBA's reasons in finding the lack of hardship.   The Court finds that the ZBA did not meet its duty in adequately articulating its reasons on the record to support its decision.   Failure to state reasons on the record, however, does not render the ZBA's decision void.   See West Hartford Interfaith Coalition v. Town Council, 228 Conn. 498, 515 (1994).  “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.”  Bloom v. Zoning Board of Appeals, supra, 233 Conn. at 208.   However, “[i]f [no such basis] is found, the action of the ZBA cannot be upheld.”  Ward v. Zoning Board of Appeals, 153 Conn. 141, 144 (1965).

The record reflects extensive discussion of the property, its layout, and why the variances may be needed.   Defendant Ronsal's counsel described the property and its drawbacks in a clear and understandable manner.   From these descriptions, the Court credits these explanations as to why the variance sought was needed in order to further develop the property.   The dispositive issue arises in the second requirement under C.G.S. § 8–6(a)(3):  namely, that an adherence to the zoning regulations would create an unusual hardship for the defendant.   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, supra at 208;  Point O'Woods Assn. v. Zoning Board of Appeals, 178 Conn. 364, 368 (1979).   However, mere economic hardship or a hardship that was self-created is insufficient to justify a variance.  Krejpico v. Zoning Board of Appeals, supra at 662.

The Court has searched the record to determine the existence of an unusual hardship.   An unusual hardship “must be different in kind from those generally affecting properties in the same zoning district, and must arise from circumstances or conditions beyond the control of the property owner.”   Smith v. Zoning Board of Appeals, 174 Conn. 323, 327 (1978).  “Where the claimed hardship arises from the applicant's voluntary act ․ a zoning board lacks the power to grant a variance.”  Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39 (1982).  “A hardship resulting from the peculiar topography or condition of the land or from a particular location which makes the land unsuitable for the use permitted in the zone in which it lies may well be such a hardship as is contemplated by the ordinance.”  Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 280 (1957).   The court in Stillman v. Zoning Board of Appeals, 25 Conn.App. 631, cert. denied, 220 Conn. 923 (1991), utilized a test to be used “in the extreme situation where the application of a regulation renders property practically worthless, and that loss of value alone amounts to a hardship ․ Although satisfying this test is a valid means of establishing a hardship, it is not exclusive.”  Id. at 636.   While the plaintiffs did not argue before the board that the application of the code would destroy the value of their property, they did indicate that the literal application of the code would deprive them of the reasonable use of their land.

“A variance may be granted if the literal enforcement of a regulation causes exceptional difficulty or hardship because of some unusual characteristic of the property.”  Id. In the instant case, there is evidence in the record that the lot has unusual topography.   Based upon the record, 83 and 85 Kendall Street is a unique parcel located on the inset of the curvature of Interstate 95 and it is separated from other signs.   Furthermore, because of the highway's curvature, there is a decrease in linear calculation.   From this evidence, the board was justified in finding that Ronsal would suffer unusual hardship that would deprive him of the reasonable commercial use of his property if the code were applied strictly.   The board's findings regarding hardship are, therefore, reasonable.   The other condition that must be met before a variance may be granted is that the applicant must demonstrate that the variance will not adversely affect the comprehensive zoning plan.  “The comprehensive plan is to be found in the scheme of the zoning regulations themselves ․” (Citations omitted.)  Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 656 (1980).   The plaintiff has not demonstrated that the requested variance will adversely affect the comprehensive zoning plan.   The record contains testimony that the requested distance variances would not detrimentally impact the comprehensive plan because the site is far removed from any coastal resources;  it sits on a heavily industrialized zone, which is far removed from residential use, and therefore poses no impact on the view sheds.   Moreover, the site is within an area where billboards are permitted.

Accordingly, this court finds that the subject application sought variances that would have not substantially impacted the comprehensive zoning plan of the City of New Haven and, therefore, the board properly granted the application.

CONCLUSION

For the foregoing reasons, the Board of Zoning Appeals for the City of New Haven did not act arbitrarily and in abuse of its discretion in granting the defendant's application for a variance.   The court therefore affirms the decision of the zoning board.

BY THE COURT

Alexander, J.

Alexander, Joan K., J.