Francis Erica Lane, Inc. v. Board of Zoning Appeals of the Town of Stratford (2012)

FACTS

The plaintiff, Frances Erica Lane, Inc., appeals from a decision of the defendant, the board of zoning appeals of the town of Stratford.   In its decision, the defendant denied the plaintiff's petition for a variance to reduce the minimum setback requirement from the wetlands from the required fifty feet to zero feet in order to construct a road and driveway in order to build a four-lot subdivision of single-family homes.

The plaintiff filed its variance petition with the defendant on April 6, 2010.   The defendant held a public hearing on May 4, 2010 and heard the plaintiff's variance petition.   The board members visited the site.   The defendant held a hearing on July 6, 2010, in which it considered and denied the plaintiff's variance petition.   The defendant published its decision to deny the plaintiff's variance petition in the Connecticut Post on July 13, 2010.

The plaintiff commenced this appeal by completing service of process on the defendant on July 27, 2010.   The defendant filed the return of record on November 18, 2010.   The plaintiff filed the operative complaint on December 9, 2010.

In its operative complaint, the plaintiff alleges the following.   The defendant denied the plaintiff's variance petition despite the plaintiff's presentation of evidence at the hearing that a valid hardship existed and that the variance was necessary to gain access to portions of the site.   The defendant denied the petition despite the fact that the plaintiff was granted a waiver of the inland wetland setback by the town of Stratford inland wetland and watercourses commission on March 18, 2009.   The plaintiff alleges that the defendant's decision to deny the variance petition constituted a usurpation of the jurisdiction of the inland wetland and watercourses commission and an illegal act in contravention of General Statutes § 22a–42a, § 1.5 of the town of Stratford inland wetland & watercourses regulations, and § 217–4 of the Stratford town charter.   The plaintiff further alleges that the defendant failed to state a valid reason for its decision on the record and that the defendant relied upon and based its decision on facts and information not contained in the record or improperly, erroneously or incorrectly presented at the hearing on July 26, 2010.

The plaintiff filed its brief in support of the appeal on March 4, 2011.   The defendant filed its brief and exhibits on April 26, 2011.   The court heard oral argument on this matter on April 5, 2012.

DISCUSSION

“[A]ppellate jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute.”   Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992).  General Statutes § 8–8 governs an appeal taken form a decision of a zoning board of appeals.  “A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.”  (Internal quotation marks omitted.)  Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).  “Generally, it is the function of a zoning board or commission to decide within its prescribed limits and consistent with the exercise of [its] legal discretion whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply.”  (Internal quotation marks omitted.)  Raymond v. Zoning Board of Appeals, 76 Conn.App. 222, 228, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003).

“Trial courts defer to zoning boards and should not disturb their decisions so long as honest judgment has been reasonably and fairly exercised after a full hearing ․ The trial court should reverse the zoning board's actions only if they are unreasonable, arbitrary or illegal ․ The burden of proof is on the plaintiffs to demonstrate that the zoning board acted improperly.”  (Internal quotation marks omitted.)  Malone v. Zoning Board of Appeals, 134 Conn.App. 716, 722, 39 A.3d 1233 (2012).

The Supreme court has stated that “[c]onclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record ․ 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 ․ The action of the commission should be sustained if even one of the stated reasons is sufficient to support it ․ The evidence, however, to support any such reason must be substantial ․ This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred ․ When the zoning body fails to state reasons for its decision on the record, the reviewing court has a duty to search the entire record before it to find a basis for the board's decision.   (Citations omitted;  internal quotation marks omitted.)  Hescock v. Zoning Board of Appeals, 112 Conn.App. 239, 248–49, 962 A.2d 177 (2009).

JURISDICTION

“It is well settled that pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ․ It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved.”  Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537–38, 833 A.2d 883 (2003).   The plaintiff's uncontested status as owner of the subject property and applicant for the variance petition is sufficient to demonstrate the plaintiff's aggrievement.   See Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991).

The plaintiff argues that the defendant usurped the jurisdiction of the Stratford inland wetland and watercourses commission by enforcing § 3.14 of the Stratford zoning regulations because § 217.4 of the Stratford town charter provides that the inland wetland and watercourses commission will be the only body with the authority to regulate activity in proximity to inland wetland areas.   Specifically, the plaintiff claims that the defendant acted beyond the scope of its authority when it attempted to regulate activity in proximity to inland wetland areas by denying the variance petition to reduce the setback from fifty feet to zero feet in order to construct a road and driveway.   The defendant claims that it did not usurp the jurisdiction of the inland wetland and watercourses commission.   Specifically, the defendant argues that it has the authority to regulate the location of roads and driveways that are located within fifty feet of wetlands, which is different from the authority of the inland wetlands and watercourses commission to license regulated activity impacting inland wetlands and that this variance allows the two regulatory bodies to coexist without usurping the jurisdiction of the other.¹

Item sixteen in the return of record is a copy of the zoning regulations in effect at the time the plaintiff filed its variance petition.   Therein is the language of § 3.14 of the zoning regulations.   Section 3.14 reads as follows, in relevant part:  “No new building construction increasing building area including minor additions to existing buildings or detached accessory buildings, such as garages and sheds and no pools, tennis courts, driveways, parking areas, terraces, other impervious surfaces or alterations of existing contours shall be permitted within 50 feet of the mean high water line of any waterbody or watercourse or within 50 feet of any freshwater inland wetland ․ Any activity within 50 ft. of an inland wetland or inland watercourse, for the purposes of environmental impact mitigation or restoration activities including but not limited to, storm water treatment, habitat management, riparian zone restoration or wetland restorations, shall not be required to obtain a variance from the Board of Zoning Appeals.”  Id.

Based upon a plain reading the text of § 3.14, it is clear that the defendant's authority does not extend to the regulation of wetlands.   The defendant's authority is limited to the location of driveways or other impervious surfaces or alterations of existing contours.   Thus, § 3.14 enables the defendant to regulate the distance that one can erect a road or driveway from the mean high water line of any waterbody or watercourse or within 50 feet of any freshwater inland wetland.   There is no language in § 3.14 supporting the claim that the subject matter controlled by the defendant is under the purview of the inland wetlands and watercourses commission nor is there language in § 3.14 that grants the defendant the authority to regulate wetlands.   The plaintiff's argument that the defendant usurped the inland wetlands and watercourses commission's authority by regulating activity in proximity to wetlands areas has no basis.   Furthermore, the argument that no other regulatory body can regulate activity in proximity to wetlands areas is flawed because activity in proximity to wetlands areas often raises concerns beyond the scope of those just affecting wetlands which requires that agencies cooperate to ensure that all environmental concerns for a particular site are addressed.   Therefore, the plaintiff's argument that the defendant usurped the jurisdiction of the inland wetlands and watercourses commission is without merit.   The court has subject matter jurisdiction over this matter.

HARDSHIP

General Statutes § 8–6(a)(3) grants the zoning board of appeals the power:  “to determine and vary the application of the bylaws, ordinances or regulations in harmony with the general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in the exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed.”  “A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town ․ It is well established, however, that the granting of a variance must be reserved for unusual or exceptional circumstances ․ An applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regulations produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone.”  (Internal quotation marks omitted.)  Morikawa v. Zoning Board of Appeals, 126 Conn.App. 400, 407–08, 11 A.3d 735 (2011).

“Accordingly, our Supreme Court has interpreted [General Statutes § 8–6(a)(3) ] to authorize a zoning board of appeals to grant a variance only when 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 ․ Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance ․ A mere economic hardship or a hardship that was self-created, however, is insufficient to justify a variance ․ and neither financial loss nor the potential for financial gain is the proper basis for granting a variance ․ [W]here the condition which results in the hardship is due to one's own voluntary act, the zoning board is without the power to grant a variance.”  (Citation omitted;  internal quotation marks omitted.)  Morikawa v. Zoning Board of Appeals, supra, 126 Conn.App. 408–09.

The plaintiff claims that the record contains extensive evidence demonstrating that a valid hardship exists which makes the variance necessary and that the defendant acted arbitrarily, illegally and/or in the abuse of discretion by denying the plaintiff's petition.   The defendant claims that the plaintiff cannot satisfy the burden necessary to grant a variance because a financial hardship is not a sufficient ground upon which to base a variance.   The defendant also argues that the alleged hardship by the plaintiff is a self-created hardship which does not constitute a valid hardship for purposes of granting a variance petition.   In support of its position, the defendant submitted the return of record from the public hearing held on the variance petition.

The first item in the return of record is the plaintiff's variance petition in which the plaintiff states the basis for the variance and describes the claimed hardship.   The plaintiff stated that the variance is necessary to accommodate access to inaccessible upland area due to the size and shape of the property and the presence of inland wetlands on site.   The second item in the return of record consisted of a 11” x 17” map of the proposed resubdivision prepared on July 1, 2008.   The third item in the return of record is a 24” x 36” map identical to the map in ROR, Ex.2. The fourth item consists of a letter from Gary Lorentson to Attorney Barry C. Knott dated April 19, 2010, notifying the applicant of the May 4, 2010 hearing date.   The fifth item in the return of record consists of a letter from Attorney Knott notifying ten neighboring property owners of the public hearing with attached certificates of mailing.   The sixth item in the return of record consists of four separate documents.   The first document is a duplicate of the map that is ROR, Ex. 2, except the map in item five has highlighted markings.   The second document is a copy of § 3.14 of the zoning regulations of the town of Stratford in effect when the plaintiff filed its variance petition.   The third document is a copy of § 3.3.1 of the zoning regulations of the town of Stratford.   The fourth document is a letter from the town of Stratford wetlands officer, John Rutasky, approving an application to develop a four-lot subdivision on the subject property.   The seventh item in the return of record consists of a letter from John Casey, town engineer, to David Killeen, town planner, providing comments and suggestions regarding the plaintiff's proposed resubdivision of the subject property.   The eighth item in the return of record consists of staff comments from the defendant, specifically from Gary Lorentson.   The ninth item in the return of record consists of the letter from Lorentson to Attorney Knott notifying him that the plaintiff's variance petition was denied.   The tenth item in the return of record consists of a letter by Jeffrey Dreyer opposing the plaintiff's variance petition.   The eleventh item in the return or record consists of the minutes from the May 4, 2010 meeting of the defendant.   The twelfth item in the return of record consists of the minutes from the July 6, 2010 meeting of the defendant.   The thirteenth item in the return of record consists of a copy of the transcript from the May 4, 2010 public hearing.   The fourteenth item in the return of record consists of the notice of publication for the May 4, 2010 hearing and that the plaintiff's variance petition would be heard on that date.   The fifteenth item in the return of record consists of the notice of publication of the defendant's decision on the plaintiff's variance petition published on July 13, 2010.   The last item in the return of record consists of a copy of the zoning regulations of the town of Stratford.

On its face, the variance petition demonstrates that the plaintiff seeks a variance to construct a road and driveway on the subject property to accommodate the building of four single family homes.   Without the variance, the property does not provide access to portions of the land where three of the single family homes would be located.   The variance would allow the setback area to be decreased from fifty feet to zero feet to allow for the construction of this road and driveway.   There is currently access to the property, but this access point does not provide the plaintiff with sufficient access to build four single family homes.

In the variance petition, the plaintiff states that a valid hardship exists which makes the variance necessary for three reasons:  1) to accommodate access to significant upland area which otherwise would be inaccessible;  2) size and shape of the property;  and 3) existence of inland wetlands on site.²  Access to the upland area is necessary only to the extent that the plaintiff wishes to place four single family homes on the subject property.   The plaintiff provides no further explanation in the petition as to the necessity of developing the subject property in order to build four single family homes.   As to the second and third grounds for a hardship, the plaintiff makes no explanation as to how these items constitute or contribute to the existence of a valid hardship.

At the May 4, 2010 public hearing, the plaintiff argued that the variance is necessary to gain access to the upland area.   The plaintiff then argues that without the road and driveway, there can only be one home built on the subject property instead of a four home subdivision.   The plaintiff also argues that the topography and soil conditions represent the variance, but offers no further discussion or explanation as to the topography and soil conditions.   It is clear from the record, that the primary concern addressed by the plaintiff at the public hearing was the plaintiff's ability to build a four home subdivision on the subject property instead of one home.   The inability to develop the subject property so as to build a subdivision consisting of four single family homes is the claimed hardship in the present matter.   The law is clear that neither a mere economic hardship nor a hardship that was self-created is a proper ground upon which to grant a variance.  Morikawa v. Zoning Board of Appeals, supra, 126 Conn.App. 408–09.  “The desire to subdivide property into [multiple] lots is a voluntary hardship created by the applicant requiring denial of a variance.”   R. Fuller, 9 Connecticut Practice Series:  Land Use Law and Practice (2007) § 9:3, p. 247 (relying upon Aitken v. Zoning Board of Appeals, 18 Conn.App. 195, 206, 557 A.2d 1265 (1989)).   The plaintiff seeks the variance in order to construct a road and driveway to accommodate the construction of four single family homes, instead of one single family home, and to provide access to those homes.

The record in this case fails to support a finding that the plaintiff has demonstrated a legally sufficient hardship to support its position that the defendant's denial of the variance petition was unreasonable, arbitrary, illegal and/or an abuse of discretion.   The record reveals no evidence that the property contains any peculiar characteristics such that strict adherence to the zoning regulations would create any condition that would constitute a legal hardship.   Any hardship based on the plaintiff's desire to subdivide and develop the subject property to facilitate building four single family homes is self-created and, therefore, the board lacked the power to grant a variance on this ground.   Plaintiff's appeal is dismissed.

OWENS, J.T.R.

FOOTNOTES

FN1. The defendant also argues that an administrative appeal is not the proper procedural vehicle through which to challenge the constitutionality of a section of the zoning regulations.   The court need not address this issue as the reading of the relevant regulations demonstrates that the jurisdiction of the two bodies does not overlap..  FN1. The defendant also argues that an administrative appeal is not the proper procedural vehicle through which to challenge the constitutionality of a section of the zoning regulations.   The court need not address this issue as the reading of the relevant regulations demonstrates that the jurisdiction of the two bodies does not overlap.

FN2. The plaintiff also states that there is a hardship because the inland wetlands commission approved the development concept for the subject property on March 18, 2009.   The prior approval of another regulatory agency that regulates a separate subject matter does not set forth a ground sufficient to demonstrate a hardship.   The prior decision by another agency sets forth no evidence of the condition of the subject property that would demonstrate some peculiar characteristic of the property for which the strict application of the zoning regulations produces an unusual hardship..  FN2. The plaintiff also states that there is a hardship because the inland wetlands commission approved the development concept for the subject property on March 18, 2009.   The prior approval of another regulatory agency that regulates a separate subject matter does not set forth a ground sufficient to demonstrate a hardship.   The prior decision by another agency sets forth no evidence of the condition of the subject property that would demonstrate some peculiar characteristic of the property for which the strict application of the zoning regulations produces an unusual hardship.

Owens, Howard T., J.T.R.