LLC v. Woodbridge Zoning Board of Appeals (2011)

MEMORANDUM OF DECISION

FACTS

Northrop Road Properties, LLC, the plaintiff, appeals from the decision of the Zoning Board of Appeals of the Town of Woodbridge (the board) denying its requests for variances.   The record of this appeal discloses the following facts and procedural background.   The plaintiff is the owner of an 11.55–acre parcel of land in the town of Woodbridge, Connecticut, known as 54 Northrop Road (the property) since his purchase in July of 2007.   The plaintiff proposed a subdivision with four building lots, but the third lot has some small wetlands over in the back, and as a result, instead of the required two contiguous acres of buildable area, it only has 1.84 acres.   The fourth lot has 1.68 acres, or eighty-four percent of what is required.   The plaintiff alleges that the particular characteristics of the property, such as, its topography, locations of watercourse and its wetlands are different from any other property in the area, so that the strict application of the zoning regulations as they exist in the town, creates an unusual, legal hardship.

At the zoning board meeting on October 14, 2008, the board unanimously denied the plaintiff's application for variances “having found that no evidence of hardship on which to grant the requested variances was made.   The Board's decision was based on the lack of sufficient information supplied to support the variances, that the property was purchased years after the 2001 Zoning Regulation Amendment was adopted that established the ‘buildable square’ and ‘buildable lot area’ requirements and that the requested variances are not consistent with the Town Plan of Conservation and Development adopted in April of 2005.”

The plaintiff filed its appeal of the board's decision with the return date of December 2, 2008, arguing that the board acted illegally, arbitrarily and abused its discretion because legally sufficient evidence was presented to demonstrate the plaintiff's unusual hardship, the requested variances were consistent with the Town Plan of Conservation and Development adopted in April 2005 and the board ignored the evidence at the hearings demonstrating conformity with the neighborhood, among other reasons.   On August 30, 2010, the plaintiff filed a memorandum of law in support of the appeal, in which it argued that the fourth lot does not require a variance, that it suffers unusual hardship based on the unique physical characteristics of the property and that the requested variances are consistent with the comprehensive plan and will have no negative effect on the neighborhood.¹

In its memorandum in opposition to the plaintiff's appeal filed on November 15, 2010, the town argued that the plaintiff was required to obtain a variance with respect to the fourth lot, and what the plaintiff asks the court to determine in this appeal was not presented before the zoning board, and thus, is improper for the court to decide.   It also argued that the plaintiff failed to establish hardship, and the record supports the board's finding that the requested variances are not consistent with the comprehensive plan.   The matter was heard on August 3, 2011, at which time, the parties agreed that if the court upholds the zoning board's decision, then the plaintiff's appeal regarding a permit from the Woodbridge Inland and Wetlands Agency will be moot.

DISCUSSION

As a preliminary matter, in any appeal from the decision of a planning and zoning commission “the plaintiffs have the burden of proof on aggrievement before the court will decide the claims in appeal.”   R. Fuller, 9A Connecticut Practice Series:  Land Use Law and Practice (3d Ed.2007) § 34:4, p. 296;  see also Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996) (“pleading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal”).   In the present case, the plaintiff's standing or aggrievement is not disputed.

“In challenging an administrative agency action, the plaintiff has the burden of proof ․ [T]he plaintiff must establish that substantial evidence does not exist in the record as a whole to support the agency's decision.”  (Internal quotation marks omitted.)  Finley v. Inland Wetlands Commission, 289 Conn. 12, 37–38, 959 A.2d 569 (2008).   In the event that “the commission has not articulated its reasons [in support of its decision], the court must search the entire record to find a basis for the [commission's] decision.”  (Internal quotation marks omitted.)  Azzarito v. Planning & Zoning Commission, 79 Conn.App. 614, 618, 830 A.2d 827, cert. denied, 266 Conn. 924, 835 A.2d 471 (2003).

“[W]hen [an] ․ agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission's decision ․ Rather, 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 ․ regulations ․ The principle that a court should confine its review to the reasons given by [an] ․ agency ․ applies [only] where the agency has rendered a formal, official, collective statement of reasons for its actions ․ It does not apply to mere utterances of individual members of the agency.”  (Internal quotation marks omitted.)   Clifford v. Planning & Zoning Commission, 280 Conn. 434, 439–40 n.6, 908 A.2d 1049 (2006).  “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 ․ The [decision] must be sustained if even one of the stated reasons is sufficient to support it.”  (Emphasis added;  internal quotation marks omitted.)  Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, 570–71, 785 A.2d 601 (2001).

“An agency's factual determination must be sustained if it is reasonably supported by substantial evidence in the record taken as a whole ․ Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.”   (Citations omitted;  internal quotation marks omitted.)  New England Cable Television Assn., Inc. v. DPUC, 247 Conn. 95, 118, 717 A.2d 1276 (1998).   Substantial evidence has also been described as “evidence ․ a reasonable mind might accept as adequate to support a conclusion.”  Corey v. Avco–Lycoming Division, 163 Conn. 309, 322, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S.Ct. 903, 34 L.Ed.2d 699 (1973).  “This ‘substantial evidence’ standard is highly deferential and permits less judicial scrutiny than a ‘clearly erroneous' or ‘weight of the evidence’ standard of review.”  New England Cable Television Assn., Inc. v. DPUC, supra, 247 Conn. 118.  “The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached.”   (Internal quotation marks omitted.)  DeBeradinis v. Zoning Commission, 228 Conn. 187, 198, 635 A.2d 1220 (1994).

The zoning boards of appeals are authorized to grant a variance where 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.”   Smith v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542 (1978).   “Where the claimed hardship arises from the applicant's voluntary act, however, a zoning board lacks the power to grant a variance.”  Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39, 438 A.2d 1186 (1982).  “Ordinarily, mere financial loss does not constitute a hardship warranting the granting of a variance.”  Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662, 211 A.2d 687 (1965).

The record in the present case includes a memorandum dated July 14, 2008 to the Zoning Board of Appeals members from Kristine Sullivan regarding the July 14, 2008 meeting, which provides in relevant part:  “[the plaintiff's] application seeks variances relative to the creation of a new four lot subdivision of property located at 54 Northrop Road. In 2001, the Town Plan and Zoning Commission amended the Zoning Regulations to require the following:  1) All new lots proposed in Residence A District created after the effective date of this amendment, whether or not in a subdivision shall be of such shape that a square with 150 feet on each side will fit on the lot within the set back-boundaries.   2) All new lots proposed in Residence A District that are (1) created after the effective date of this amendment, and (2) located fifty percent (50%) or more within a drinking water supply watershed mapped or designated by the South Central Connecticut Regional Water Authority or Birmingham Utilities, Inc, shall contain a minimum of two acres of Buildable Lot Area. Buildable Lot Area is defined as that contiguous portion of a lot exclusive of and undivided by any areas of wetland soils and watercourse as defined in Section 22a–38 of the Connecticut General Statutes.   All new lots must comply with this requirement whether or not they are part of a subdivision The variances being requested are to allow less than the required “Buildable Lot Area” for proposed lots 3 and 4, and a buildable square less than 150 square feet in area on proposed lot # 4.   In its current undivided state the 11+ acre property is compliant with the foregoing requirements.”

It is evident from the record that the plaintiff purchased this property in July of 2007, and that the Town Plan and Zoning Commission's amendment to its zoning regulations that requires a minimum of two acres of buildable lot area, was adopted in 2001.   The record reflects that the plaintiff acknowledged that the amended requirements in the regulations were in effect for some time before the plaintiff purchased the property in 2007.   Additionally, it is undisputed that the plaintiff's proposal plan of four lots leaves the third lot with 1.84 contiguous acres and the fourth lot with 1.68 contiguous acres.   The other two lots do not present any issues.   At the board meeting on July 14, 2008, after the plaintiff presented his case before the board, the chairman of the board stated that “the basic problem is that ․ if the builder does three properties, instead of four all those same things are true, except that he's not selling four houses, he's selling three.”   He then concluded that the issue presented before the board presented only an economic hardship, for which a variance cannot be granted.

Therefore, the record reflects that despite the plaintiff's effort in pointing out the allegedly unique characteristics and topography of the lots at issue, he has failed to substantiate his claim of unusual hardship as mere financial loss does not constitute a hardship warranting a variance.   Thus, the court upholds the board's decision in denying the variances because at least one of its stated reasons for the denial—the plaintiff failed to demonstrate evidence of hardship—is supported by the record, and the board's decision must be sustained if even one of the stated reasons is sufficient to support it.

CONCLUSION

For the foregoing reasons, the court upholds the zoning board's decision in denying the plaintiff's requests for variances.

Woods, J.

FOOTNOTES

FN1. The plaintiff is represented by different counsel as of November 20, 2009..  FN1. The plaintiff is represented by different counsel as of November 20, 2009.

Woods, Glenn A., J.