LLC v. Madison Zoning Board of Appeals (2011)

MEMORANDUM OF DECISION

Long Shore, LLC appeals a decision of the Madison Zoning Board of Appeals (hereinafter Madison ZBA) granting two variances to 107 Longshore Lane, LLC. The Madison ZBA, based on a vote of four to one, approved two variances:  a variance of Madison Zoning Regulation 2.17 and a variance of Madison Zoning Regulation 2.9/3.6(f).  Regulation 2.17 required a minimum setback of fifty (50) feet from a critical coastal resource area.   The codefendant, 107 Longshore Lane, LLC, through its building contractors, located the newly constructed house 48.7 feet from the critical coastal resource.  Regulation 2.9/3.6(f) mandates minimum side yard requirements, measuring the distance from the side of the building to the edge of the property line—as modified for large house setbacks—required a fifty-four (54)-foot side yard when in fact the as built survey showed 48.7 feet.

The subject property, 107 Longshore Lane, contains 6.22 acres and is bounded on the south by the Long Island Sound.   The house constructed thereon has a footprint of 6,396 square feet and a total square footage in excess of 10,000 feet.

In May 2002, a prior coastal site plan application was approved which included a proposed house and a variance, See Exhibit 7b of the record from the Madison ZBA. Thereafter an existing house was apparently razed and a new house constructed in accordance with the approved site plan.

In 2008, 107 Longshore Lane, LLC, acting through its agent, Gregg Fedus, filed an application with the Madison Zoning Board of Appeals seeking, inter alia, a variance of the above-mentioned regulations.   There were additional variances simultaneously sought for the relocation of an existing swimming pool, pool house and a hot tub—and attendant landscaping changes—that were subsequently withdrawn by the applicant and are not discussed herein.

The parties agreed that the plaintiff is an aggrieved party as defined by both statute and case law and therefore is properly prosecuting this case.

The Madison ZBA record reflects that though the subject property is approximately 6.22 acres in size, approximately 3 of those acres are classified as tidal wetlands.

The plaintiff's property abuts the 107 Longshore Lane, LLC property on the north and for a short distance on the west.   The subject variances sought are on the southerly portion of the applicant's property.   The Court is unable to discern any direct effect that the variances might have on the plaintiff's property.   Counsel recited that the parties are not only abutting neighbors, but also litigants in a separate action wherein the current plaintiff's attempts at developing its twenty-six acre parcel into multiple building lots were frustrated by the Town of Madison employees and the Board's denial of the plaintiff's permits to develop the property.   The defendant, 107 Longshore Lane, LLC, advocated against the issuance of permits to allow Long Shore, LLC to develop its twenty-six acre parcel as it desired.   In short, there is a contentious and litigious history between the principals of Long Shore, LLC and 107 Longshore Lane, LLC.

On May 6, 2008, a Public Hearing was held by the Madison Zoning Board of Appeals in connection with the subject variance requests by 107 Longshore Lane, LLC. The applicant sought multiple variances concerning a pool house, swimming pool and hot tub, which were withdrawn sometime after the Board made a decision to bifurcate those issues from the setback variances described above.

The application for the setback variances was prosecuted by agents of 107 Longshore Lane, LLC, Michael Simmons, the contractor who built the newly constructed house, Return of Record Page 1 of 50, Line 15, and Gregg Fedus, engineer, Return of Record Page 7 of 50, Lines 15 and 16.

Mr. Simmons and Mr. Fedus described that they had constructed the new house on exactly the spot described in the site plan approved by the Town of Madison in 2002.   This fact was echoed by Marilyn Ozols, Zoning Enforcement Officer of the Town of Madison, Return of Record Page 6, Line 21.   The applicant's agents described that the demolition of the old 5,000+ square foot house and the construction of the new 10,000 square foot house took some time.   During the course of that construction, the landowner decided to relocate the previously existing pool house, swimming pool and hot tub.   In the course of resurveying the property so as to submit an application for approval of the relocation of the pool, pool house and hot tub structures, the landowner discovered that the new house as constructed was “encroaching” on the above-described setback requirements.   Consequently, the landowner sought variances of the above-described setback requirements to allow the house to exist as built.

The information presented to the Zoning Board of Appeals was that “the house is exactly where it was shown on the existing plan, or on the original site plan, ․ and we don't really know what happened.   But we think, you know, in the process of digitizing, someone could have easily had an engineer's scale instead of an architect scale in there or something.   I—we don't know.   It was all before our time.”   ROR, Page 6 of 50.

Marilyn Ozols, ZEO of Madison, noted, “In the original application it wasn't noticed that I think it was the high tide line and one section was a little bit closer than the tidal wetland line.   The measurements were all taken from the tidal wetland line, and you really need to go from the closer of those two, but it was difficult to discern the high tide line in the original survey.”   ROR, Page 6–7, Lines 21 through 22.

Mr. Fedus indicated that he would restate the hardship that constituted the basis for the requested variances as follows:  “It is a unique parcel.   I mean, although it is six acres, more than half of it is tidal wetland and it's basically a peninsula, allowing limited depth for setbacks.   Yes, granted, there was a mistake, but it is—it is minimal.   It's really the, you know, the couple of feet in front of the—the front of the house.   I mean they are bump outs.   It is—it is very minimal.   And again, it is basically an existing location of an existing house.”   ROR, Page 36, Lines 14 through 23.

The Zoning Board of Appeals granted the variances on a four to one vote.   The Chairman indicated that with respect to the claim of hardship, that “clearly the owner is responsible for the mistakes of the agent.”   ROR, Page 24 of 50, to which the current plaintiff's counsel rejoined “exactly, and that does not equal a hardship as well.”   ROR, Page 24 of 50, to which the Chairman responded, “No, and and however this—I will just point out that this Board has sometimes taken a look at this and, depending on the nature of the mistake and how much it over exceeds, we sometimes use a minimal impact depending on where it is ․” ROR, Page 24 of 50, Lines 1 through 7.

Later in the Public Hearing, the Board articulated their respective thoughts with the Chairman indicating “I—I think I have said it many times, and I'll say it again, I abhor people who come in after the fact and then ask for a variance afterwards.   I think to be consistent, we have told people who have made mistakes, whether they be honest mistakes or not, and we even have a Board member who had that very same thing, and not to pick on the Board member, just so the public is that we are very fair with everybody and people have been made to move things.   So I am not saying that I am not inclined to make people either move things or change things.   However, there was another property in which there was a mistake that was made by a surveyor, which is just a tiny 6 inch section of the house over the line, and the Board said, “It's terrible.   Please, never do it again, but we're going to think that it's a minimal impact.”   Now to me this one falls in a very close, fine line.   It's only two small sections of the house.   I don't think that if they were to come before us and they had asked for that, I don't think the land dictates crossing over for those couple of feet.   I don't think you would get it there.   Is it a minimal impact?   Could I go either way? ․ sure, I probably could.   Could I also live with its not so egregious and it appears to have been a legitimate mistake, and while that doesn't, on its own, qualify and that's why they have hired professionals.   So that's where I stand.”   ROR, Pages 39–40 of 50, Lines 18 through 11.

A second Board member voiced his opinion that he would be in “in agreement that the request for the side yard and the front could go either way.   But I think in this case, I think I would try to be a little reasonable.”   ROR, Page 40, Lines 13 through 17.

Another Board member indicated, “Can we flip a coin?   Since they built it in accordance with the site plan, I guess I might be in—if it was coming in with something that was a variation off the original proposed approved plan, I'd probably deny it.”   ROR, Page 40 of 50, Lines 21 through 23.

A fourth Board member indicated, “Yeah, I would probably be inclined to approve that as a de minimis issue.   Although yeah, you know, it is—it's not inches, it's feet.   But in the macro, I probably would say ․” and he was interrupted by the Board Chairman who said, “You would live with this?”   And he responded, “Yeah, yeah.”   ROR, Page 41 of 50, Lines 6 through 10.

The fifth Board member, who voted against the approval of the variances, indicated that she was “surprised that people who were building on this piece of property didn't make sure that the survey was done, was really, legally done properly.”  ․”This is obviously a very expensive piece of land, and I would think that saying “well, you know, somebody kind of goofed and did a pencil line,” would not be acceptable if I were making a decision.”   She went on to indicate that “But my personal opinion, is that in view of the fact that, yes somebody did make a mistake, honest mistake, ․ I would think that the owners ․ want to make some attempt to, if it's just a bow window, pull it back to a flat window.”   ROR, Page 42–43, Lines 23 through 5. The Board discussed the matter generally, the Board Chairman concluding, “Well, I think that's the de minimis impact that we'll hang our hat on.”   To which a second Board member replied, “Right, and that's the exercise we are engaging in right now.”   A third Board member replied, “Yeah, the encroachment notwithstanding, I would say, I would fall on the side of approving that variance.”   The Chairman concluded, “To me, it's just two little corners.   Yeah, it's a couple of feet here and there.   I am almost really leaning a little more towards Lar's side in that this one, I think, I could probably live with a little more on the other side, and just let everyone else know that, you know, this is going to be something that is a little give and take here and, you know, it's not like we're going to make you pay back on the other but, but, you know, we're looking at this entire parcel, and this is one of the pieces that is sort of going in this equation ․ “I would make a motion that we approve these two variances, based on the minimal impact that they are going to have on the property and it's still in the nature and conformity with the neighborhood.   Do I have a second?”   ROR, Page 45 of 50, Lines 7 through 19.

Though 107 Longshore Lane, LLC has advocated in its brief and argument that the applicant's variance request was based on “the unique nature of their tidal property and the shifting tidal lines as the basis for their hardship,” May 27, 2009 Brief of defendant 107 Longshore Lane, LLC, the Court could not find substantiation for that assertion in the record before the Madison Zoning Board of Appeals.   The Court was unable to find any evidence suggesting that there was a change in the tidal wetland line or the high tide line between the original survey drawings presented in 2002 and the March 5, 2008 application for variances.

There was testimony from engineer Gregg Fedus about the unique nature of the subject parcel.   The Chairman clearly rejected the argument that the topographical features of the property constituted a hardship or was the basis for the claimed hardship, See Chairman's Comments “I don't think the land dictates crossing over for those couple of feet.”   ROR, Page 40 of 50, Lines 5 through 7.

The Court concludes that the basis for the variances was a hardship based upon de minimis impact on the Town of Madison zoning regulations.

Applicable legal standards:

Connecticut General Statutes § 8–6(a)(3) authorizes the ZBA to grant a variance ․ where, owing to conditions especially affecting such parcel, but not affecting generally the district in which it is situated, a literal enforcement of a [regulation] would result in exceptional difficulty or unusual hardship ․

The standard to be applied by a Superior Court in reviewing the grant of a variance by a Zoning Board is whether the Board's action is arbitrary, illegal or an abuse of discretion.  Bloom v. Zoning Board of Appeals, 233 Conn. 198 (1995).   The Court is not to substitute its own judgment for that of the ZBA, and the local Board decisions should not be disturbed as long as the Board's honest judgment has reasonably and fairly been exercised after a full hearing of the facts and issues.  Id. The burden of proof that a Zoning Board of Appeals acted improperly is on the party seeking to overturn the Board's decision.  Francini v. Zoning Board of Appeals, 228 Conn. 785 (1994).

The accepted formulation for allowance of a variance is:  (1) the variance does not substantially affect the comprehensive plan of zoning, and (2) adherence to the strict letter of the zoning regulation is shown to cause an unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.  Smith v. Zoning Board of Appeals, 174 Conn. 373 (1978).

In Bloom v. Zoning Board of Appeals, supra, the Supreme Court described a hardship as follows:  “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 the circumstances beyond the control of the property owners seeking the variance, citation omitted.   The hardship must originate in the regulation or ordinance and arise from the application of the regulation or ordinance to the subject property, citations omitted.   Financial considerations are relevant only if the application of the regulation or ordinance practically destroys the value of the property for any use to which it may be put and the regulation or ordinance as applied to the subject property bears little relationship to the purposes of the zoning plan.”  Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369.   A variance cannot be granted for a self-created hardship, that is, one caused by the owner or the owner's agents.  Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 548.  Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39, 40.   And see, Highland Park, Inc. v. Zoning Board of Appeals, 155 Conn. 40, 41, where an alleged error either by the surveyor or foundation contractor was deemed a self-created hardship legally insufficient to justify a variance of the zoning regulations.

In the instant matter, regardless of whether the zoning regulation setback violations were the result of error by the surveyor or contractor or a combination thereof is irrelevant.   The Zoning Board of Appeals clearly rejected the argument that such an error, if committed by the agents of the landowner, constituted a hardship.   Instead, the decision-making process was, as noted above, clearly that the variance was being granted because the zoning regulation violations were minimal.   The Board referred to their practice of permitting de minimis variations from the regulation, see quotations from the Board members noted above.

When an administrative agency specifically states its reasons, the Court should go no further because it could reasonably infer that this was the extent of its findings.  “To go beyond those stated reasons invades the fact-finding mission of the agency by allowing the Court to cull out reasons that the agency may not have found to be credible or proven.”  Gibbons v. History District Commission, 285 Conn. 755.

Neither counsel nor the Court have been made aware of any Connecticut appellate decision that permits a Zoning Board of Appeals to grant a variance based upon a “de minimis” deviation from the zoning regulations.   In fact, in Morikawa v. Zoning Board of Appeals of Weston, 126 Conn.App. 400, 413 (2011), the Appellate Court declined the invitation to recognize a de minimis deviation exception that would obviate the need for homeowners to prove a hardship.

Holding:

The plaintiff has established that the Zoning Board of Appeals so abused its discretion by granting a variance in this case that it acted illegally, arbitrarily and in an abuse of its discretion by granting a variance for the setback distances from the existing critical coastal resources and property sideline.   The Madison Zoning Board of Appeals granted the requested variances because in fact the deviations from the zoning regulations were minimal and did not affect the plaintiff in any fashion and that the subject property was still in the nature and conformity with the neighborhood.

However, the Board's reason for granting a variance of the subject setback zoning regulations was limited to their conclusion that the deviations from the zoning regulations were minimal or de minimis.   That finding is legally insufficient to substantiate a finding of hardship.   Without the finding of a hardship, there can be no legal variance granted from the application of the Madison zoning regulations.

WHEREFORE, judgment enters in favor of the plaintiff.

Zemetis, J.

Zemetis, Terence A., J.