Peter Chometa et al. v. Town of East Haven Zoning Board of Appeals (2011)

MEMORANDUM OF DECISION

The plaintiffs are the owners of real property known as 93 Caroline Road, East Haven, Connecticut.   The defendant is the owner of property known as 97 Caroline Road, East Haven, Connecticut which abuts the property of the plaintiffs.

The court finds the plaintiffs are aggrieved by the decision of the defendant Board pursuant to Connecticut General Statutes Section 8–8(a), because they own property which abuts property involved in the decision of the defendant Zoning Board of Appeals.

The property of defendant Robert Deko is located in an R3 District, and it is a preexisting nonconforming lot established by a subdivision created in August 1944, and known as “Silver Sands” which contained 13 lots.   The lots each contained 7,500 square feet.   The current zoning regulations in that district require a minimum lot size of 20,000 square feet.

On August 20, 2008 the defendant filed an application to the defendant Zoning Board of Appeals for the following variances to permit construction of a single-family dwelling.

1. Reduction of minimum set backs from the street line from 40 to 32 feet.

2. Reduction of east side yard from 20 feet to 5 feet.

3. Reduction of west side yard from 20 feet to 7 feet.

4. Increase maximum lot coverage from 20 percent to 26 and one half percent.

5. Reduce maximum lot area from 20,000 square feet to 7,500 square feet.

6. Waiver of minimum frontage from 100 feet to 50 feet.

7. Waive narrow street 25.4.4”

On September 28, 2008 the application was heard by the defendant Board, and on October 14, 2008 this appeal was commenced when the Board stated no reasons for its actions in its decision to grant the variances.

The plaintiffs in this appeal claim the Board acted illegally, arbitrary and contrary to the evidence in granting the application.   They further claim defendant failed to establish any hardship, and the Board's actions were unreasonable and inconsistent with the intent of the Zoning Ordinance.

The record shows the defendant required title to the parcel of land on March 5, 2005 by a warranty deed which describes the property as follows:

FIRST PIECE:

Being Lot # 3 on a map of property of Anne Vanacore, Silver Sands, East Haven, Aug. 1944, 1 inch equals 40 feet, Chas. H. Miller, Registered Engineer, East Haven, Connecticut, said lot being bounded:

SOUTH:  by a 20–foot right of way known as Caroline Road, 50 feet, more or less;

WEST:  by Lot # 2 on said map, 153.42 feet, more or less;

NORTH:  by a 25–foot right of way, as shown on said map, 50 feet, more or less;  and

EAST:  by Lot # 4 on said map, 152.42 feet, more or less.

SECOND PIECE:

Being that portion of said 25–foot right of way as shown on said map, immediately north of the first piece, which lies between the direct continuations north of the east and west lines of said first piece.

Said Second Piece is subject to a right of way for all purposes whatsoever, in, through, over and upon each and every portion of the same.

Together with a right of way for all purposes whatsoever in, through, over and upon each every portion of said 25–foot right of way as shown on said map.

The property owned by the defendant is a nonconforming lot in the R3 Zoning district.   It was created in a 1944 subdivision which is composed of 13 lots of a similar size and shape.   In July 1945 the subdivision was accepted by the town.   Since that date four of the lots were developed with structures upon lots similar to that of the defendant.   The lots each contain approximately 7,500 square feet which are nonconforming because 20,000 square feet are required under the current regulations for the R3 District.   On the other side of Caroline Road there are eight homes not part of this subdivision.   Since 1944 the subdivision lots were accessible by a 20–foot right of way which is known as Caroline Road. This right of way has continued to the present time as an unimproved, unpaved area which has never been approved as a town road.

The subdivision map was prepared by Engineer C. Miller in August 1944, and it was filed in the towns July 20, 1945.   The parcels in the subdivision have continued to the present time and are subject to the provisions of Connecticut General Statutes 8–26a which governs the effect of changes to subdivision regulations.   Section (2)(A) states as follows:

(2)(A) Any construction on a vacant lot shown on a subdivision or resubdivision plan approved before, on or after June 1, 2004, shall not be required to conform to a change in the zoning regulations or boundaries of zoning districts in a town, city or borough adopted after the approval of the subdivision or resubdivision.

Connecticut General Statute 8–26a(a) and (b) as stated in Poirier v. Zoning Board of Appeals, 75 Conn.App. 289 (2003) states, “[The statute] forever prohibits the application of new subdivision or zoning regulations to all subdivisions once they are approved ․” By enacting the statute, “the legislature has clearly made a policy decision that once the division of the land and proposed lot layout has been reviewed by the municipality through its planning commission, the subdivision does not have to be reviewed again, and that the subdivision lots are not affected by subsequent enacted zoning regulations.”

In this case the Zoning Board of Appeals did not articulate its reasons in granting the variances and therefore, this court is to search the record to determine the basis of the decision Giarrantano v. Zoning Board of Appeals of the City of Norwich, 60 Conn.App. 446, 452 (2000).  Municipal Funding, LLC v. Zoning Board of Appeals, 210 Conn. 447, 454.

The record shows that defendant acquired title after the Zoning Enforcement Officer provided a Zoning Compliance letter dated January 25, 2005 stating the lot at 97 Caroline Road was suitable for construction of a single-family dwelling.   The defendant now contends this parcel cannot be utilized without the granting of the variances under the current regulations, and therefore it creates an unusual hardship because of the unusual characteristics of the premises.

The plaintiffs in support of their claims that the Zoning Boards action and decision were arbitrary, illegal and in abuse of discretion contends the defendant did not establish a hardship, and also did not request all necessary variances under the Zoning Ordinances.   Plaintiff argues that all the lots in the area are substantially similar in size, and shape and the undersized lot is not unique and that does not justify the granting of any of the variances.   The plaintiff then concludes defendant Deko could construct a structure without variances and in compliance with existing zoning regulations.   The two-story dwelling proposed for this 50–foot–wide lot required the six requested variances for the construction of a larger dwelling on this small undersized parcel of property.

The defendant Robert Deko in response contends hardship is based on the physical characteristics of the site and he cannot adhere to the application of the current zoning regulations because of the size of the lot, the topography or condition of the lot, its narrow rectangle shape and area for construction of a dwelling in the R3 District.   He also claims the existing zoning regulations impose a unique hardship in that without the variances the property would be practically worthless.   Defendant Deko also contends the variances are consistent with the comprehensive plan for the zoning regulations in that area, and his construction would be in harmony with existing structures in that area.

The Variance Application filed by Robert J. Deko on August 20, 2008 sets forth six variance requests.   It also lists “Waiver Narrow Streets 25.44.”   The variances granted on the second page indicates the six variances granted.   The waiver of narrow streets waiver was not referred to as granted on September 18, 2008.

The plaintiff claims the variance granted for “Schedule B, line 7:  8 feet (required is 40 feet due to 25.4.4)” was improperly granted because a 25' building set back from the street line of a street having a width of less than 25 feet.   The record shows the road in front of the property has a width of 20 feet.   The calculation under Regulation Sec. 25.4.4 would require 20 feet for the road width plus 15 feet for a minimum set back of 40 feet.   The plaintiff claims the 8–foot set back variance was improper.   The record does establish the Caroline Road in front of the lot has a 20–foot width, and it abuts subject property as an unimproved road.

“Where a zoning board of appeals does not formally state the reasons for its decision, however, the [reviewing] court must search the record for a basis for the board's decision.”  Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 743, 626 A.2d 705 (1993);  Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995).

While a reviewing court is not to substitute its judgment for that of the Zoning Board of Appeals, the court must review the record and overturn a Board's determination that is not fair or that is not supported by valid reasons.  Pleasant View Farms Dev., Inc. v. Zoning Board of Appeals of Town of Wallingford, 218 Conn. 265, 269–70 (1991).

An applicant for a variance must show that because of some peculiar characteristic of his property, the strict application of the zoning regulation produce an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone.  Reid v. Zoning Board of Appeals, 235 Conn. 850, 670 A.2d 1271 (1996).   Proof of unusual hardship is upon the applicant.  Hoffer v. Zoning Board of Appeals of the Town of Oxford, 64 Conn.App. 42 ․ the hardship must be different in kind from that generally affecting properties in the same zoning district.  Francini v. Zoning Board of Appeals of the Town of Old Lyme, 228 Conn. 785, 790 (1994).

The 13 lots in the “Silver Sands” subdivision with very few exceptions are very similar, and the record does not disclose the subject property is unique to establish a basis for a hardship or grounds for variances.   The claim of defendant Robert Deko that the lot size is nonconforming to the existing zoning requirement of 20,000 square feet does not make it unique to constitute a hardship to justify the variances.   The inability of defendant to build a larger dwelling does not create a hardship, nor does it deprive defendant of the use of the property.   The subject property is a pre-existing nonconforming lot which is substantially similar to the thirteen lots in that subdivision and therefore it is not unique nor does it have an unusual hardship.

The record also discloses the Board did not express any decision regarding the adequacy of the Caroline Road in front of the subject property.   Section 44–11 of the East Haven Zoning Regulations does relate to the adequacy of that unimproved unpaved road which has a width of 20 feet.   Pursuant to Regulation Section 25.4.4 would require a 32–foot set back from the street line which indicates the set back granted a variance of only 8 feet from the street line was improper.

The Zoning Board in granting the six variances did act illegally and arbitrarily in circumventing the requirements for the issuance of a building permit pursuant to Section 6–27 of the East Haven Ordinances as it relates to the width of the public way in front of the subject property.   The width and character of the existing unimproved road could create difficulties for emergency vehicles for not only the existing homes on this area of Caroline Road, but also for additional homes that might be constructed on this narrow road in the future.

For the foregoing reasons the plaintiff's appeal is sustained, and the decision of the Zoning Board of Appeals is reversed.

Howard F. Zoarski

Judge Trial Referee

Zoarski, Howard F., J.T.R.