Peter Kores et al. v. The Zoning Board of Appeals of the Town of Winchester (2012)

MEMORANDUM OF DECSION

This is an administrative appeal from the denial of a variance by the defendant, the Zoning Board of Appeals of the Town of Winchester (“ZBA”).   The matter was fully briefed and then argued on December 1, 2011.   For the reasons stated, the appeal must be dismissed.

The plaintiff, Edinburgh Properties, LLC (“Edinburgh”) is the owner of three small lots totaling approximately .20 acres on the shore of Highland Lake in Winchester.   The defendant, Peter Kores, as agent for Edinburgh, filed an application for a variance to treat the three lots as one, to build a two-story house which would violate the minimum lot area, the minimum width, front yard, side yard, and rear yard.   The ZBA held a hearing at which it heard evidence that a neighbor's house bisects one of the lots and crosses into another.   The neighbor opposed the application.

I. Aggrievement

Edinburgh was the owner of the property which is the subject to the application for a variance.   It continues to remain the owner.   It is aggrieved by the decision to deny the variance.

II. Standard of Judicial Review

The court must review the record to determine whether the action of the Board was “arbitrary, illegal or in abuse of discretion ․ 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.”  Garlasco v. Zoning Board of Appeals, 101 Conn.App. 451, 455–56 (2007).

“A variance is an authorization obtained from the zoning board of appeals to use property in a manner otherwise forbidden by the zoning regulations ․ For a variance to be granted under General Statutes § 8–6(3), two conditions must be fulfilled:  (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 carrying out of the general purpose of the zoning district ․ It is well settled that the granting of a variance must be reserved for unusual or exceptional circumstances.   Proof of hardship is a condition precedent to granting a variance ․ The hardship must arise from circumstances or conditions beyond the control of the property owner.”  Id., at 451.

III. Discussion

The ZBA did not give reasons for its decision other than a statement by the chairman that it was an “Unreasonable request.”   This is not fatal because “[W]hen a [board] gives no reason for its decision, the [reviewing] court must search the record to find a basis for the [board's] decision.”  (Citation omitted.)  Rapoport v. Zoning Board of Appeals, 301 Conn. 22, 34 (2011).

The court has searched the record in this case and has found fair and valid reasons for the ZBA's decision.   First, Edinburgh's proposal would adversely affect the comprehensive zoning plan found within the scheme of the actual zoning regulations and maps.  Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 713 (1998).   The second reason is that Edinburgh demonstrated no undue hardship.

The adverse affect on the comprehensive zoning plan occurs in many ways, only the most important of which will be discussed.  Section 4a.1.1 of the Regulations allows only one single family dwelling per lot in the Highland Lake District;  the proposal would permit two houses, the other being the neighbor's house.   Edinburgh had attempted to work out a settlement with the neighbor which would establish mutually agreeable boundary lines.   But, no agreement was reached and the ZBA was left trying to determine lot line variances based upon lot lines which did not exist.   Attempting to grant variances under these circumstances would have violated all of the provisions of the Regulations which provide that the purpose of the Regulations is to regulate density, prevent overcrowding, and protect property values.

Of importance are the provisions of the Regulations which permit a house as small as 950 square feet in this district and a seasonal cottage of 500 square feet.   The Record reveals that most of the houses in the neighborhood are small (500–700 square feet) one-story buildings.   Edinburgh proposed to build a two-story house of 1800 square feet.   This not only adversely affects the comprehensive plan but demonstrates the lack of a hardship if Edinburgh could substantially reduce the size of the home.

“The hardship [necessary to permit a variance] must be different in kind from that generally affecting properties in the same zoning district and must arise from circumstances or conditions beyond the control of a property owner.”   Smith v. Zoning Board of Appeals, 174 Conn. 323, 327 (1978).   Here, Edinburgh failed to show how its lot was any different from other lots in the general area.   The proposed house is bigger than any other house in the area;  the lots on the area are generally even smaller than Edinburgh's;  many of the homes in the area are not winterized.   The supposed hardship claimed by Edinburgh is even less than those affecting other properties in the area.

Any hardship claimed by Edinburgh is self-created because it is proposing a year-round home which is much larger than necessary to make reasonable use of the property.   Hardship cannot be shown where the plaintiff could build a much smaller house which would conform with the setback requirements.   “Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship.”  (Citation omitted.)  Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 548 (1996).

The plaintiff also claims that the ZBA's action resulted in a confiscation or taking of property without payment of compensation in violation of Article I, Section 11 of the Connecticut Constitution and the Fifth Amendment to the U.S. Constitution.   Under Federal case law, regulatory action amounts to a taking where the regulation denies all economically beneficial use of the land.  Lucas v. South Carolina Coastal Council, 505 U.S., 1003 (1992).   In order to establish a taking the owner does not have to show the property is useless, but rather that it is unfit for an economically feasible use.   Cumberland Farms Inc. v. Town of Groton, 247 Conn. 196 (1998).

Edinburgh did not make a showing that the ZBA's failure to grant the variance denied it all economically beneficial use of the land.   There was no showing that a much smaller building would not comply with all of the setbacks or, at the least, would require fewer and smaller variances.   It was Edinburgh's burden to prove that there was a final authoritative decision, that the expectation for development was reasonable, and that the property cannot be used for any reasonable purpose or that the denial of a permit caused the owner great economic deprivation without significant public benefit.  Hoffman v. Inland Wetlands Commission, 28 Conn.App. 262, 268 (1992).   Edinburgh failed to make these showings.   There is no indication in the Record that the ZBA would not accept a dwelling of no more than 950 square feet or a summer cottage of no more than 500 square feet.

For all of these reasons the plaintiff's appeal is dismissed.

BY THE COURT,

John W. Pickard

Pickard, John W., J.