III v. Town of Westbrook Zoning Board of Appeals et al. (2012)

MEMORANDUM OF DECISION RE ZONING APPEAL

I

STATEMENT OF CASE

This is an appeal from a decision of a zoning board of appeals granting a second application for a variance from the zoning regulations and a Coastal Area Management (CAM) application.

The parties are as follows:  The plaintiffs are Juan D. Reyes III and Meaghan Reyes;  the defendants are the applicants, Raymond Behr (applicant) and Janet Behr (collectively, applicants),¹ and the town of Westbrook zoning board of appeals (ZBA).   The matter was heard on April 27, 2012.

The applicants applied for a variance from the zoning regulations to allow for a setback from the tidal wetlands of ten feet rather than the required fifty feet (second application).   The applicants also submitted a CAM application.   The plaintiffs appeal from the decision of the ZBA granting the second application and approving the CAM application.   The plaintiffs are allegedly aggrieved because the decision rendered by the ZBA is illegal, arbitrary, capricious and is an abuse of its discretion.   The applicant counters that the second application is significantly different from the first application, the ZBA carefully considered the second application, and there is substantial evidence to support the approval of the second application.   The ZBA contends that it did not abuse its discretion in considering the second application and that there is substantial evidence in the record to support its decision.

The court has fully considered the criteria set forth in the relevant General Statutes, as well as the evidence, applicable case law, demeanor and credibility of the witnesses and arguments of the parties in reaching the decisions reflected in the orders that issue in this memorandum.   After due consideration, the court dismisses the zoning appeal.

II

STATEMENT OF FACTS

The applicants are the record owners of certain property known as Lot # 17, Pointina Road, Westbrook, Connecticut (subject property).  (ROR, Item 29.)   The subject property is a parcel of land that is 4874 square feet in area and has a street frontage on Pointina Road of 49.95 feet.   Approximately 30 percent of the lot area in the rear of the property is tidal wetlands.  (ROR, Item 29.)

The ZBA is empowered under the zoning regulations of the town of Westbrook (zoning regulations) to grant variances for property within its jurisdiction.   The ZBA has the authority to grant variances pursuant to General Statues § 8–6 and to perform coastal site plan review pursuant to General Statutes §§ 22a–105 and 22a–106.  “The zoning board of appeals shall have the following powers and duties:  ․ (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their 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 exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured ․” General Statutes § 8–6(a).

“The board ․ reviewing the coastal site plan shall, in addition to the discretion granted in any other sections of the general statutes or in any special act, approve, modify, condition or deny the activity proposed in a coastal site plan on the basis of the criteria listed in section 22a–106 to ensure that the potential adverse impacts of the proposed activity on both coastal resources and future water-dependent development activities are acceptable ․” General Statutes § 22a–105(e).  “In determining the acceptability of potential adverse impacts of the proposed activity described in the coastal site plan on both coastal resources and future water-dependent development opportunities a municipal board ․ shall:  (1) Consider the characteristics of the site, including the location and condition of any of the coastal resources defined in section 22a–93;  (2) consider the potential effects, both beneficial and adverse, of the proposed activity on coastal resources and future water-dependent development opportunities;  and (3) follow all applicable goals and policies stated in section 22a–92 and identify conflicts between the proposed activity and any goal or policy.”  General Statutes § 22a–106(b).

The plaintiffs are the record owners of certain property known as 14 Pointina Road, Westbrook, Connecticut, which consists of a lot and single-family dwelling adjoining the subject property on the westerly line.  (ROR, Abutting Property Owner Information.)

On or about February 3, 2010, the applicants applied to the ZBA for a single variance of the provisions of § 4.33.07 of the zoning regulations to allow the construction of a single-family dwelling on the subject property (first application).

Section 4.33.07 of the zoning regulations provides:  “Buffer from Tidal Wetlands:  No building, structure, paved parking areas or septic systems shall be erected or placed within fifty (50) feet of any tidal wetlands, except as may be reduced or waived, see Section 11.00.05.”   Section 11.00.05 of the zoning regulations provides:  “Reduction or Waiver of Setback Requirement—No building or structure shall hereafter be erected or placed within fifty (50) feet of a regulated tidal wetland as shown on maps prepared by the Connecticut Department of Environmental Protection, except this requirement may be reduced or waived for a marine facility or other water dependent use if it is determined that no adverse impacts to the tidal wetlands would result.”   This exception for marine facility or other water dependent use is not applicable to this case.

The subject property is a nonconforming lot under the zoning regulations.   It does not meet the minimum area requirements of the HDR (High Density Residential) district of 15,000 square feet, the minimum frontage requirements of eighty feet, and the minimum setback requirement from tidal wetlands of fifty feet.   The applicant claims that the subject property is a pre-existing nonconforming building lot which is not required to conform to the minimum area requirements.   The applicants requested only a single variance in the minimum setback requirement from tidal wetlands of fifty feet.   The applicants also filed a CAM application as part of the first application.

The first application was the subject of a public hearing/regular meeting on February 24, 2010, March 24, 2010, April 28, 2010, and May 26, 2010.   In the first application, the plan for the proposed dwelling included a 6.1–foot setback from the tidal wetlands.

At the public hearing, the applicants' expert engineer, Gregg Fedus, testified that the proposed dwelling could be erected on the subject property in accordance with the plans submitted as part of the variance application without impairing any coastal resources.   Fedus also testified that the septic system for the proposed dwelling could be erected without impairing any coastal resources.

At the public hearing, several abutting landowners, including the plaintiffs, opposed the first application and the CAM application and expressed concerns regarding the impact of the proposed dwelling and septic system and its construction on the local neighborhood and environment.

At the regular meeting immediately following the public hearing on May 26, 2010, the ZBA denied the first application and CAM application because the setback variance from the tidal wetlands was excessive and was detrimental to the tidal wetlands.   Legal notice of the decision was published on June 2, 2010.

On or about July 6, 2010, the applicants filed a second application with the ZBA, again requesting a variance in the provisions of § 4.33.07 of the zoning regulations to allow the construction of a single-family dwelling on the subject property.   In the second application, the setback of the proposed structure from the tidal wetlands was increased from 6.1 feet to 10 feet, and there was a reduction of the footprint of the proposed dwelling from 849 square feet to 807 square feet.   In the portion of the application where the applicants were required to state the specific hardship claimed, the applicants stated:  “The hardships that apply that are unique to this parcel are the lot is vacant and the tidal wetlands dip in closer than adjacent properties.   Also, the proximity of the wetlands to the northern property line is unique in the district.”  (ROR, Item 28.)

The record reflects that given the size of the subject property, the distance from the tidal wetlands to the proposed dwelling could not be further increased without triggering the need for a second variance for front setback purposes.   The second application also addressed concerns raised by the Connecticut department of environmental protection (DEP) regarding the proposed on-site stormwater management system and included a CAM application.

The second application was subject to public hearing on July 28, 2010, August 25, 2010, September 22, 2010, and October 27, 2010.   On September 22, 2010, the second application was discussed in detail.  (ROR, Item 13.)

During the public hearing process, several abutting landowners, including the plaintiffs, opposed the second application and the CAM application and expressed concerns regarding the impact of the proposed dwelling and septic system and its construction on the local neighborhood and environment.   The plaintiffs also requested that the full record of the first application before the ZBA be included as part of the second application.   The ZBA granted this request on the record on September 22, 2010.  (ROR, Item 26, p. 12.)   The ZBA conducted a site visit on September 27, 2010.  (ROR, Item 17.)

At the regular meeting immediately following the public hearing on October 27, 2010, the ZBA granted, by a vote of four to one, the second variance application and the CAM application.  (ROR, Items 20–22.)

The court will provide additional relevant facts and procedural history as needed.

III

DISCUSSIONAZoning Administrative Appeals

“In reviewing the actions of a zoning board of appeals we note that such a board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal ․ The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision ․ In an appeal from the decision of a zoning board, we therefore review the record to determine whether there is factual support for the board's decision, not for the contentions of the applicant.”  (Internal quotation marks omitted.)  Giarrantano v. Zoning Board of Appeals, 60 Conn.App. 446, 451–52, 760 A.2d 132 (2000).

“[Z]oning regulations and ordinances, being in derogation of common law, must be strictly construed and not extended by implication ․ These regulations must be interpreted in accordance with the ordinary rule of statutory construction that, where the language of the statute is clear and unambiguous, courts cannot by construction read into the statutes provisions which are not clearly stated ․ In addition, words employed in zoning ordinances are to be interpreted in accord with their natural and usual meaning.”  (Citations omitted.)  Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 153, 543 A.2d 1339 (1988).

General Statutes § 8–8(b) governs appeals from decisions of zoning boards of appeal to the Superior Court.  “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).

(1)

Aggrievement

“[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of a plaintiff's appeal ․ [I]n order to have standing to bring an administrative appeal, a person must be aggrieved.”   (Citation omitted;  internal quotation marks omitted.)  Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006).   “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538–39, 833 A.2d 883 (2003).   A plaintiff may prove aggrievement by testimony at the time of trial (testimonial evidence);  Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991);  or “by the production of the original documents or certified copies from the record” (documentary evidence).  (Internal quotation marks omitted.)  Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).  “Aggrievement is a jurisdictional fact, and the parties cannot confer subject matter on the court by agreement”;  however, “[t]he parties can stipulate to facts which allow the court to make a finding of aggrievement.”   R. Fuller, 9A Connecticut Practice Series:  Land Use Law and Practice (3d Ed.2007) § 32:3, p. 138–39.

“Two broad yet distinct categories of aggrievement exist, classical and statutory ․ Classical aggrievement requires a two part showing.   First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share ․ Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest ․ Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest ․

“Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case.   In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.”  (Internal quotation marks omitted.)  Moutinho v. Planning & Zoning Commission, supra, 278 Conn. 665.   Statutory aggrievement in a zoning appeal arises under General Statutes § 8–8(a)(1), which provides in relevant part:  “In the case of a decision by a ․ zoning board of appeals, ‘aggrieved person’ includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.”

In the complaint, the plaintiffs allege that they are aggrieved by the decision of the ZBA granting the second application and CAM application.   The plaintiffs further allege that they are the record owners of certain property known as 14 Pointina Road, Westbrook, Connecticut, which consists of a lot and single-family dwelling adjoining the subject property on the westerly line.   At the hearing, the plaintiffs proved aggrievement based on a stipulation of facts.   The parties stipulated that the plaintiffs own land that abuts or is within a radius of one hundred feet of any portion of the subject property.   From these stipulated facts, the court finds that the plaintiffs have standing based on statutory aggrievement.

(2)

Timeliness and Service of Process

Pursuant to General Statutes § 8–8(b), “any person aggrieved by any decision of a board ․ may take an appeal to the superior court for the judicial district in which the municipality is located ․ The appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes.   The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court.”

General Statutes § 8–8(f) provides in relevant part:  “Service of legal process for an appeal under this section shall be directed to a proper officer and shall be made as follows:  ․ (2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52–57 ․” General Statutes § 52–57(b) provides that “[p]rocess in civil actions against the following-described classes of defendants shall be served as follows:  ․ (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency ․”

In this case, notice of the ZBA's decision on the second application was published in the Hartford Courant on November 3, 2010.  (ROR, Item 22.)   The plaintiffs' return of service indicates that the assistant town clerk was served in hand on November 16, 2010, and the applicants were served at their usual place of abode on November 17, 2010.  (Return of Service, filed December 2, 2010.)   Accordingly, the court finds that this appeal was commenced by proper and timely service of process in compliance with the applicable statutes.

(3)

Scope of Review

“In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record.   The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] ․ The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached ․ If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board ․ If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court ․ cannot substitute its judgment as to the weight of the evidence for that of the commission ․ The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.”  (Internal quotation marks omitted.)   Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294, 947 A.2d 944 (2008).

“It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own.”  (Internal quotation marks omitted.)  R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).  “In appeals from administrative zoning decisions, the commission's conclusions will be invalidated only if they are not supported by substantial evidence in the record ․ [E]vidence 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.”  (Internal quotation marks omitted.)  Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 221, 779 A.2d 750 (2001).

(4)

Reasons Stated on the Record

“[W]hen a zoning board has given a formal, official collective statement of reasons for its actions, the scope of our review is limited to determining 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.”  (Internal quotation marks omitted.)   Rural Water Co. v. Zoning Board of Appeals, supra, 287 Conn. 294–95.

In this case, the ZBA rendered a formal, official, collective statement of reasons for its action.   The minutes for the October 27, 2010 regular meeting indicate the following:  “A motion was made by Bonnie Hall, seconded by Richard White, to grant the variance and accompanying CAM Application, with the Board finding the following:  1. the variance requested is the minimum variance necessary for the development of the lot and construction of the proposed residence, consistent with other residences in the subdivision;  2. the applicant has demonstrated sufficient hardship;  3. the lot has been determined a preexisting lot;  4. there are no other practical uses for the property, and to not allow a residence to be constructed would be tantamount to confiscation;  5. the property is unique in that there are no other undeveloped lots in the subdivision;  and, 6. the application as proposed, will have minimum impact on the tidal wetlands in that the storm water management plan will result in decreased flow of water into the tidal marsh from what currently exists at the undeveloped lot due to its downward slope, these findings concurred with by Westbrook's consulting engineers who approved the revised plan.   On the motion:  For:  Mark Damiani, Bonnie Hall, Eve Barakos, Richard White;  Opposed:  John Boehme;  The motion carried.”  (ROR, Item 21, pp. 2–4;  see also ROR, Item 27, pp. 38–41.)

(5)

Whether the ZBA Was Permitted to Hear and Grant the Relief Requested in the Second Variance Application Given its Denial of the First Application

On or about February 3, 2010, the applicants filed the first application seeking a variance in the tidal setback requirement.   At the regular meeting on May 26, 2010, the ZBA denied the first application because the setback variance from the tidal wetlands was excessive and was detrimental to the tidal wetlands.

On or about July 6, 2010, the applicants filed the second application.   At the regular meeting immediately following the public hearing on October 27, 2010, the ZBA granted the second variance application.

The plaintiffs argue that the ZBA should not have heard the second application and contend that “[a] review of the two applications considered by the Defendant ZBA reveals that the only change in this application is to increase the setback from the tidal wetlands from 6.1' to 10.'   This is merely a 3.9' reduction.   The basic footprint of the structure and the northwesterly and northeasterly corners of the structure remain in exactly the same position as in the first application.   It is only the center portion of the structure facing the marsh which is pulled back the 3.9.'   This has resulted in a reduction in the square foot coverage of the footprint of the structure a mere 42 square feet (849 square feet to 807 square feet).   There were changes in the treatment of water runoff on the lot with the proposed new structure that were not present in the earlier application.”   Plaintiffs' Brief, dated June 17, 2011, p. 11.

The court must determine whether the ZBA was permitted to hear the second application and whether it had the authority to grant the relief requested, given its denial of the first application.

General Statutes § 8–6(a) provides in relevant part:  “No [zoning board of appeals] shall be required to hear any application for the same variance or substantially the same variance for a period of six months after a decision by the board or by a court on an earlier such application.”

“When a party files successive applications for the same property, a court makes up to two inquiries.   The first is to determine whether the two applications seek the same relief.   The zoning board determines that question in the first instance, and its decision may be overturned only if it has abused its discretion ․ If the applications are essentially the same, the second inquiry is whether there has been a change of conditions or other considerations have intervened which materially affect the merits of the matter decided.”  (Internal quotation marks omitted.)  Vine v. Zoning Board of Appeals, 102 Conn.App. 863, 869–70, 927 A.2d 958 (2007).

“It is a salutary principle of law that at least one of the two contingencies just stated must ordinarily exist in order to justify an administrative agency in reversing itself ․ Otherwise, there would be no finality to the proceeding, and the first decision would be capable of change at the whim of the agency or, worse still, through improper influence exerted on its members ․ The principle applies, however, only when the subsequent application seeks substantially the same relief as that sought in the former.   And it is for the administrative agency, in the first instance, to decide whether the requested relief in both applications is substantially the same.   Its determination will be disturbed only if its discretion was abused.”   (Citations omitted.)  Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 278–79, 129 A.2d 619 (1957).

“The board can reverse a prior decision if there has been (1) a material change of circumstances, or (2) other considerations have intervened affecting the merits and no vested rights have arisen.”   R. Fuller, 9 Connecticut Practice Series:  Land Use Law and Practice (3d Ed.2007) § 9:6, p. 260.

At the public hearing on September 22, 2010, the successive application issue was addressed.  (ROR, Item 26, pp. 2–24.)   The applicants were then allowed to present the merits of the second application.  (ROR, Item 26, p. 24.)

(a)

Whether the Two Applications Seek the Same Relief

The applicant concedes that the second application seeks the same qualitative relief sought in the first application.   Reply Brief of the Defendant, Raymond Behr, dated July 13, 2011, p. 7. Notwithstanding, the applicant argues that, under Fiorilla, the second application seeks relief from the setback requirement that is quantitatively different from the first application.   In the second application, the setback of the proposed structure from the tidal wetlands was increased from 6.1 feet to 10 feet.   The applicant argues that the change represented an increase of 63.9 percent and was the maximum difference possible, given the dimensions of the subject property, without requiring any additional variance.

At the public hearing on October 27, 2010, the ZBA discussed the differences between the two applications.  (ROR, Item 27, pp. 21–30.)   The ZBA considered the increase in the setback and the decrease in the size of the footprint of the proposed dwelling.   The changes to the storm management system and septic system were also considered.   The ZBA found that the second application “requested essentially the same relief as denied [in the first application], but [found] that the [second] application has been substantially revised.”   (ROR, Item 21, p. 2.) The record demonstrates that the ZBA's determination that the second application seeks the same relief was reasonable.   As in Vine, this court concludes that the ZBA implicitly, if not explicitly, determined that the two variance requests sought essentially the same relief, namely, permission not to comply with the fifty-foot tidal wetlands setback requirement contained in the zoning regulations.   See Vine v. Zoning Board of Appeals, supra, 102 Conn.App. 870.

(b)

Whether There Has Been a Change of Conditions or Other Considerations Have Intervened Which Materially Affect the Merits of the Matter Decided

When discussing the second application, the ZBA focused on reduction of the setback variance required, the modification of the proposed dwelling size, and town engineer's input regarding the storm water management system.   The transcript for the public hearing and regular meeting on October 27, 2010, reflect the change of conditions or other considerations in the second application.  (ROR, Item 27, p. 27.)   The ZBA discussed the decrease in the footprint of the proposed dwelling from 849 square feet to 807 square feet and the increase in the setback from 6.1 feet to 10 feet.  (ROR, Item 27, p. 27–28.)   Later in the discussions, Chairman Damiani stated:  “That's the difference.   Anybody else have further questions?   No? I think it sounds like what, I don't want to speak for everybody, but it sort of sounds like what I'm hearing right now is ah, although they may be seeking the same relief, there's been info that's been presented on this new application which makes this application, has significant changes.   That's sort of what I've heard so far.”  (ROR, Item 27, p. 28.)

The record shows that, during the October 27, 2010 public hearing, the ZBA discussed several factors to support its decision to hear and consider the second application.   The ZBA found that the second application had been substantially revised.  (ROR, Item 21, p. 2;  see also ROR, Item 27, pp. 28–32.)   The evidence demonstrates that there has been a change of conditions or other considerations have intervened which materially affect the merits of the matter decided.   As in Vine, the record reveals that the applicants at the hearing on the second application submitted information to the ZBA that it did not have at the time of the first application including the reduction of the setback variance, the modification of the proposed dwelling size and town engineer's input regarding the storm water management system, which lowered the impact to the wetlands.   See Vine v. Zoning Board of Appeals, supra, 102 Conn.App. 873.

The record shows that the ZBA's determination that the second application had been substantially revised was reasonable.   The court finds that at least one of the two contingencies existed to justify the ZBA hearing and considering the second application.

(6)

Pre–Existing, Nonconforming Lot

The applicant contends that the subject property is a pre-existing nonconforming lot that has existed in its present configuration since before the adoption of the zoning regulations.   The subject property is the only lot on Pointina Road that has not yet been improved by the erection of a residential dwelling on it.

General Statutes § 8–2(a) provides in relevant part:  “[Zoning] regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations ․” “The statute protects pre-existing nonconforming lots and buildings from restrictions and prohibitions in the zoning regulations ․” R. Fuller, 9B Connecticut Practice Series:  Land Use Law and Practice (3d Ed.2007) § 52:2, p. 203.

The evidence shows that the lot was created in 1948, which was before the town of Westbrook had adopted subdivision or zoning regulations.  (ROR, Item 59.)   The zoning regulations for the town of Westbrook were originally adopted on August 28, 1956.  (ROR, Item 82.)   The evidence shows that the lot is significantly undersized.   As noted in the record, “as an existing nonconforming lot, it only needs the variance being sought, furthering that it was created prior to zoning, therefore grandfathered in.”  (ROR, Item 21, p. 2.) The ZBA made a finding that “3. the lot has been determined a pre-existing lot ․” (ROR, Item 21, p. 3.)

The record supports the ZBA's determination that the subject property is a pre-existing nonconforming lot.

(7)

Second Application

The second application requests a variance of § 4.33.07 of the zoning regulations to allow the construction of a single-family dwelling on the subject property.   The setback of the proposed structure from the tidal wetlands is 10 feet.

“A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town ․ [T]he authority of a zoning board of appeals to grant a variance under General Statutes § 8–6(3) requires the fulfillment of two conditions:  (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 ․ The hardship complained of must arise directly out of the application of the ordinance to circumstances or conditions beyond the control of the party involved ․ Where 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 ․ Where ․ the hardship arises as the result of a voluntary act by one other than the one whom the variance will benefit, the board may, in the sound exercise of its liberal discretion, grant the variance ․ While hardship will vary from case to case, we repeatedly have held that considerations of financial disadvantage—or, rather, the denial of a financial advantage—do not constitute hardship, unless the zoning restriction greatly decreases or practically destroys [the property's] value for any of the uses to which it could reasonably be put ․” (Citations omitted;  internal quotation marks omitted.)  Rural Water Co. v. Zoning Board of Appeals, supra, 287 Conn. 295–96.

“Disadvantage in property value or income, or both, to a single owner of property, resulting from application of zoning restrictions, does not, ordinarily, warrant relaxation in his favor on the ground of ․ unnecessary hardship ․ Financial considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations to the property greatly decreases or practically destroys its value for any of the uses to which it could reasonably be put and where the regulations, as applied, bear so little relationship to the purposes of zoning that, as to particular premises, the regulations have a confiscatory or arbitrary effect ․ Zoning regulations have such an effect in the extreme situation where the application of the regulations renders the property in question practically worthless.”  (Citation omitted;  internal quotation marks omitted.)  Vine v. Zoning Board of Appeals, 281 Conn. 553, 561–62, 916 A.2d 5 (2007).

“Zoning regulations that reasonably promote public health, safety and welfare are constitutional, even when they impinge on the rights of property owners ․ Nevertheless, an ordinance which permanently restricts the use of property for any reasonable purpose goes beyond permissible regulation and amounts to a taking ․ A practical confiscation occurs when an ordinance so limits the use of land that it cannot be utilized for any permitted purpose without a variance ․ In determining whether a zoning regulation is unreasonable and confiscatory as to a piece of property, the court must consider the facts and circumstances of each individual case ․ Namely, the court should examine the diminution in the value of the land, the nature and degree of public harm to be prevented, and the alternatives available to the landowner.”  (Citations omitted;  internal quotation marks omitted.)  Archambault v. Wadlow, 25 Conn.App. 375, 382–83, 594 A.2d 1015 (1991).

“[I]t is clear that when a regulation has a confiscatory effect, namely where the regulation practically destroys or greatly decreases the value of a specific piece of property, that this is a sufficient hardship to grant a variance, provided the variance does not materially affect the effectiveness of the zoning regulations as a whole and promotes substantial justice.”   9B R. Fuller, supra, § 54:8, p. 301.

As noted above, the ZBA rendered a formal, official, collective statement of reasons for its action on October 27, 2010.  (ROR, Item 21, p. 3.) The court must examine “the assigned grounds to determine whether they are reasonably supported by the record and pertinent to the considerations the authority was required to apply pursuant to the zoning regulations.”  (Internal quotation marks omitted.)  Giarrantano v. Zoning Board of Appeals, supra, 60 Conn.App. 451–52.

First, substantial evidence in the record demonstrates that the requested variance is the minimum variance necessary for the development of the subject property and construction of the proposed dwelling, consistent with other residences in the subdivision.   The subject property has virtually zero buildable area if the required setbacks are fully honored.   The footprint of the proposed dwelling has been reduced to 807 square feet and allows for a 10–foot buffer from the tidal wetlands.   The proposed dwelling is smaller than many of the neighboring houses, some of which are even in closer proximity to the tidal wetlands.   The record reflects that “[t]here appear[s] to be evidence of teardowns and rebuilds in the neighborhood within 2 feet of the tidal marsh.”  (ROR, Item 21, p. 2;  see also ROR, Item 53.)   The evidence supports the ZBA's findings that the variance requested is the minimum variance necessary for the development of the lot and construction of the proposed residence, consistent with other residences in the subdivision.

Second, substantial evidence in the record supports the ZBA's finding that the subject property was a pre-existing nonconforming lot.  (ROR, Item 21, p. 3.) The lot was created in 1948, which was before the town of Westbrook had adopted subdivision or zoning regulations.  (ROR, Item 59.)   Zoning regulations for the town of Westbrook did not go into effect until August 28, 1956.  (ROR, Item 82.)   The lot is significantly undersized.  (ROR, Item 29.)   Accordingly, the ZBA's determination that the subject property is a pre-existing nonconforming lot is supported by substantial evidence in the record.

Third, substantial evidence in the record demonstrates that there are no other practical uses for the property, and to not allow a residence to be constructed would be tantamount to confiscation.   Due to the size and shape of the subject property, a variance from the setback requirement is necessary to build on the property.   The town of Westbrook has consistently assessed and taxed the subject property at a land value comparable to other dwelling lots in the subdivision.  (ROR, Item 67, 68, 69, and 70.)   The subject property is assessed at a value of $226,660.  (ROR, Item 70.)   The evidence shows that there is no real legal use to which the subject property could be put if it is not used for residential purposes.  (ROR, Item 26, pp. 21–24.)   Parking is not a practical use for the subject property.   There are no other practical uses for the property other than as a vacant lot unless a variance is granted.   The ZBA expressed concern that the denial of the variance could be tantamount to confiscation.  (ROR, Item 21, pp. 2–3.)   In this case, “the effect of applying the [zoning] regulations to the [subject] property is so severe as to amount to practical confiscation, [and] that is sufficient hardship to allow and even require the [ZBA] to grant a variance.”   9 R. Fuller, supra, § 9:3, p. 243–44.   As the court found in Pike v. Zoning Board of Appeals, 31 Conn.App. 270, 624 A.2d 909 (1993), “the record discloses that without a variance the value of the plaintiff's lot will be greatly decreased, if not totally destroyed.   Because there is nothing in the record demonstrating any reasonable alternative uses for the plaintiff's property, we conclude that an unusual hardship existed.”   Id., 276.   Like in Archambault, “the record does not indicate any reasonable use for the land other than for the construction of a single-family home.   Thus, without a variance from the setback requirements enabling the plaintiffs to build the dwelling, the value of the plaintiffs' land is significantly diminished.”  Archambault v. Wadlow, supra, 25 Conn. 383.

Fourth, substantial evidence in the record demonstrates that the property is unique in that the subject property is the only undeveloped lot in the subdivision.   As noted in the record, “the variance requested is the minimal variance in order to develop the lot and conform to the other residences in the area.”  (ROR, Item 21, p. 2.)

Fifth, substantial evidence in the record further demonstrates that the application, as proposed, will have minimal impact on the tidal wetlands in that the storm water management plan will result in decreased flow of water into the tidal marsh from what currently exists at the undeveloped lot due to its downward slope, these findings concurred with by Westbrook's consulting engineers who approved the revised plan.   The record reflects that “the volume of stormwater runoff flowing in the [tidal] wetland will be less post-development than it is predevelopment.”  (ROR, Item 49.)   Mere speculation by the plaintiffs and neighbors that the development of the subject property would adversely affect the tidal wetland is not a sufficient ground to deny the second application.   See Cornacchia v. Environmental Protection Commission, 109 Conn.App. 346, 351–52, 951 A.2d 704 (2008).   The variance requested in the second application is consistent with the DEP's letter, dated July 28, 2010, which states that “[v]ariances of the buffer width should only be allowed in those extremely limited cases where there is a strict statutory hardship as defined in the Connecticut General Statutes (CGS) Section 8–6(3), and should be the absolute minimum variance necessary to allow reasonable use of the site while maximizing protection of the resource.”  (ROR, Item 44.)   There is substantial evidence in the record demonstrating that the second application requests the absolute minimum variance necessary to allow reasonable use of the site while maximizing protection of the tidal wetlands.

Consequently, substantial evidence in the record supports the ZBA's finding that the denial of the variance would constitute an unusual and unnecessary hardship.   The subject property is a pre-existing nonconforming lot.   Due to its size and shape, the lot is not buildable unless at least one setback variance is granted.   The applicants have shown that their building is located on an irregularly shaped lot and that limitations imposed by the shape of the lot do in themselves create a hardship.   See T. Tondro, Connecticut Land Use Regulation (2d Ed.1992) p. 133.   Neither the applicants nor their predecessor created the nonconformity.   See Santos v. Zoning Board of Appeals, 100 Conn.App. 644, 652, 918 A.2d 303, cert. denied, 282 Conn. 930, 926 A.2d 669 (2007) (where applicant or his predecessor creates nonconformity, board lacks power to grant variance).   As the lot was not illegally created, the hardship was not self-created.   See id.   The subject property is the only undeveloped lot in the subdivision.  “[A] literal enforcement of the zoning regulations in this case would be impossible, rendering the lot useless.”  (ROR, Item 21, p. 2.) The record contains substantial evidence establishing that if the variance were denied the subject property would become worthless, as no alternative use would be available.   See Bloom v. Zoning Board of Appeals, 233 Conn. 198, 210, 658 A.2d 559 (1995).   Unlike in Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 548, 684 A.2d 735 (1996), a house cannot be built on the subject property without a variance.   The applicants do not have “an alternative route to accomplish their purpose without seeking a variance.”  Jaser v. Zoning Board of Appeals, supra, 43 Conn.App. 548.   The denial of the variance, therefore, would cause a legally cognizable hardship.   The assigned grounds are reasonably supported by the record and pertinent to the considerations the ZBA was required to apply pursuant to the zoning regulations.

The record also demonstrates that the variance would not affect substantially the comprehensive zoning plan.   The subject property is located in a residential zone.   The second application proposes the construction of a residential dwelling with a footprint of 807 square feet.   The proposed use is a permitted use in the zone and is not “inimical to the character of the zone.”  Pike v. Zoning Board of Appeals, supra, 31 Conn.App. 277.   The record demonstrated that the granting of the second variance application would not affect substantially the comprehensive zoning plan.

The ZBA correctly interpreted the zoning regulations and applied the regulations with reasonable discretion to the facts.   The subject property is a preexisting nonconforming lot.   The property is unique.   It is the only remaining undeveloped lot in the subdivision, which was created back in 1948.   There is no other practical use for the property other than a residential dwelling.   The variance requested is the minimum variance necessary.  (ROR, Item 21, p. 10.)   Adherence to the strict letter of the zoning regulations would cause unusual hardship unnecessary to the carrying out of the general purpose of the comprehensive zoning plan.

The record demonstrates that because of the unusual characteristics of the subject property, a literal enforcement of the zoning regulations would result in unusual and unnecessary hardship to the applicants.   The hardship would arise directly out of the application of the zoning regulations to circumstances or conditions that are beyond the applicants' control.   The strict application of the zoning regulations to the subject property would decrease or practically destroy its value for any of the uses to which it could reasonably be put.   The subject property would be rendered practically worthless.   In granting the second application, the ZBA's actions were not arbitrary, illegal or an abuse of discretion.

(8)

Town Sanitarian Approval

The plaintiffs contend that the ZBA acted illegally, arbitrarily and in abuse of its discretion in granting the second application without a report from the town sanitarian approving the proposed on-site disposal system for the proposed dwelling.  (Plaintiffs' Brief, dated June 17, 2011, pp. 17–21.)

Contrary to the plaintiffs' contention, the record shows that the town sanitarian's approval of the proposed septic system is not a prerequisite for the ZBA's approval of the second application.   The zoning regulations cited by the plaintiffs do not establish such a requirement.   The ZBA has the authority to approve variance applications, not the town sanitarian.   The ZBA does not have jurisdiction over septic matters.  (ROR, Item 27, p. 30.)   In Graff v. Zoning Board of Appeals, 277 Conn. 645, 894 A.2d 285 (2006), the court explained that “[t]he regulations must be interpreted so as to reconcile their provisions and make them operative so far as possible ․ When more than one construction is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results.”  (Internal quotation marks omitted.)  Id., 657.   Making the approval of the town sanitarian a prerequisite to granting a variance application would likely lead to unreasonable or bizarre results.   The evidence shows that the ZBA considered the septic system issues before granting the variance.   The ZBA did not act illegally, arbitrarily and in abuse of its discretion in granting the second application without a report from the town sanitarian approving the proposed on-site disposal system for the proposed dwelling.

(9)

Sections 2.10.01 (Nonconforming Lots) and 2.10.04 (Nonconforming Buildings, Lots or Uses May Be Continued) of the Zoning Regulations

The plaintiffs raise issues regarding the interrelationship of the zoning regulations §§ 2.10.01 and 2.10.04.   The plaintiffs argue that the ZBA, in granting the requested variance, illegally ignored § 2.10.01 in that while a lot lawfully existing at the time of the adoption of the zoning regulations could be continued, it could not be built upon unless it met the single exception requirement of § 2.10.01 or was a presently conforming lot.  (ROR, Item 26, pp. 52–56.)

Section 2.10.01 provides:  “NON–CONFORMING LOTS. Where the safe and adequate disposal of sewage and a safe water supply, as required by the Public Health Code, can be provided without endangering the health and safety of the Town and its residents, nothing in these Regulations shall prevent construction of a building in accordance with all other requirements of these Regulations or the establishment of a permitted use, on a lot containing less than the prescribed lot area or frontage which at the time of adoption hereof or any pertinent amendment hereto was:  a) shown on a valid subdivision plan as approved by the Planning Commission of the Town of Westbrook and filed in the Office of the Town Clerk of the Town of Westbrook.”

Section 2.10.04 provides:  “NON–CONFORMING BUILDINGS, LOTS OR USES MAY BE CONTINUED.   Any building or lot or use of land lawfully existing at the time of adoption of these Regulations or any amendments hereto may be continued.”

“The board is in the most advantageous position to interpret its own regulations and apply them to the situations before it ․ It is, therefore, entrusted with the function of interpreting and applying [its] own zoning regulations ․ Generally, it is the function of a zoning board ․ to decide within 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.”  (Citations omitted;  internal quotation marks omitted.)  Munroe v. Zoning Board of Appeals, 75 Conn.App. 796, 801, 818 A.2d 72 (2003).

As previously noted, zoning regulations “must be interpreted in accordance with the ordinary rule of statutory construction that, where the language of the statute is clear and unambiguous, courts cannot by construction read into the statutes provisions which are not clearly stated ․ In addition, words employed in zoning ordinances are to be interpreted in accord with their natural and usual meaning.”  (Citations omitted.)  Schwartz v. Planning & Zoning Commission, supra, 208 Conn. 153.

The plaintiffs' arguments on this issue are not persuasive.   See Plaintiffs' Brief, dated June 17, 2011, pp. 21–24.   The subject property is a pre-existing, nonconforming lot in a residential subdivision.   The record shows that the ZBA considered the arguments raised by the plaintiffs on this issue and properly interpreted and applied the zoning regulation in the case before it.   The ZBA did not illegally ignore the provisions of §§ 2.10.01 or 2.10.04 when it granted the second application.

(10)

Coastal Area Management Application

The plaintiffs raise several issues regarding the CAM application.   Plaintiffs' Brief, dated June 17, 2011, pp. 24–32.   First, the plaintiffs contend that a separate vote on the CAM application was required before the ZBA's approval of the second variance application.   Second, the plaintiffs argue that the CAM application was not discussed prior to the decision on the application.   Third, the plaintiffs claim that the ZBA could not have found the application to be in accordance with the standards set forth in §§ 22a–92(b)(2)(F) and (b)(2)(J), which allow exceptions for setback standards from the tidal wetlands only in cases of water-dependent uses and to accommodate existing residential uses.

The applicants filed the required CAM application, dated June 28, 2010, with the second application.  (ROR, Item 28.)  “The power of the commission to require that the plaintiff file a coastal site plan and impose conditions on its approval is derived from the Coastal Area Management Act (act), General Statutes §§ 22a–90 through 22a–112.   The act delegates the administration of the state-wide policy of planned coastal development to local agencies charged with responsibility for zoning and planning decisions.   See General Statutes §§ 22a–105, 22a–106.   The act envisages a single review process, during which proposals for development within the coastal boundary will simultaneously be reviewed for compliance with local zoning requirements and for consistency with the policies of planned coastal management ․

“Once an application for coastal site plan review is filed, the zoning commission is empowered to ‘approve, modify, condition or deny the activity proposed ․ to ensure that the potential adverse impacts of the proposed activity on both coastal resources and future water-dependent development activities are acceptable.’  General Statutes § 22a–105(e).   The scope of the conditions that may be imposed by the commission is limited by the requirement that they mitigate the adverse impacts of the proposed use.   General Statutes 22a–106(e).”  (Citations omitted;  internal quotation marks omitted.)  DeBeradinis v. Zoning Commission, 228 Conn. 187, 195–96, 635 A.2d 1220 (1994).

First, the plaintiffs provide no authority for the proposition that a separate vote on the CAM application by the ZBA is required, rather than a single review process.   The ZBA is empowered by statute to conduct a single review and approval process.   See DeBeradinis v. Zoning Commission, supra, 228 Conn. 196.   There is no statutory requirement for a separate vote on the CAM application.

Second, contrary to the plaintiffs' argument, the record shows that the CAM application was reviewed by the ZBA on September 22, 2010.  (ROR, Item 26, pp. 44–49.)   The CAM application was also reviewed on October 27, 2010, including, “Richard White not[ing] that ․ the storm water management plan in the CAM actually reduced the runoff from the undeveloped lot into the marsh because of its downward slope, further noting DEP's letter of 4/28/10 contained concerns but no prohibitions, noting the use of the word ‘recommends.’  “ (ROR, Item 21, p. 2.)

Third, the record does not support the contention that the applicants were proposing or promoting a structural solution to flood and erosion problems.   Therefore, their proposal could not have violated the policy of § 22a–92(b)(2)(F), “to manage coastal hazard areas so as to insure that development proceeds in such a manner that hazards to life and property are minimized and to promote nonstructural solutions to flood and erosion problems” set forth in that subdivision of § 22a–92(b)(2).   With regard to § 22a–92(b)(2)(J), that subdivision provides in relevant part:  “Structural solutions are permissible when necessary and unavoidable for the protection of infrastructural facilities, water-dependent uses, or existing inhabited structures, and where there is no feasible, less environmentally damaging alternative and where all reasonable mitigation measures and techniques have been provided to minimize adverse environmental impacts.”   The evidence shows that the ZBA considered the second application with respect to minimizing adverse environmental impacts.   The record demonstrates that the second application and CAM application were simultaneously reviewed for compliance with local zoning requirements and for consistency with the policies of planned coastal management.   The ZBA acted to ensure that the potential adverse impacts of the proposed activity on both coastal resources and future water-dependent development activities were acceptable.   See General Statues § 22a–105.   The ZBA's actions were not contrary to the CAM requirements.   Accordingly, the plaintiffs' argument that the ZBA could not have found that the application was in accordance with the coastal area management standards is unavailing.

(11)

Connecticut Department of Environmental Protection (DEP) Concerns

The plaintiffs claim that the DEP considered the proposal to be unacceptable to it.   Plaintiffs' Brief, dated June 17, 2011, pp. 29–31.   At issue is the DEP's final letter, dated July 28, 2010.  (ROR, Item 44.)   The applicant argues that a review of the letter does not support the plaintiffs' claims.   Reply Brief of the Defendant, Raymond Behr, dated July 13, 2011, pp. 30–32.   The applicant points out that there is no use of the words “acceptable” or “unacceptable.”

A reasonable reading of the letter would not support a conclusion that the DEP viewed the proposal as per se unacceptable.   Rather, the letter recognizes the considerations inherent in the zoning variance approval process.   The letter definitely expresses the DEP's concerns regarding the second application, but also states that “[v]ariances of the buffer width should only be allowed in those extremely limited cases where there is a strict statutory hardship as defined in Connecticut General Statutes (CGS) Section 8–6(3) and should be the absolute minimum variance necessary to allow reasonable use of the site while maximizing protection of the resource.”  (ROR, Item 44.)   In addition, the record reflects:  “Eve Barakos brought up the differences in the second to last paragraph between the April letter and the July letter from DEP, noting inconsistencies.”  (ROR, ltem 21, p. 2.)

The record shows that the ZBA considered the concerns raised by the DEP in granting the absolute minimum variance necessary to allow reasonable use of the subject property.

(12)

General Statutes § 22a–106(d)(Criteria and Process for Action on Coastal Site Plans)

The plaintiffs claim that the ZBA violated § 22a–106(d) by failing to state in writing its findings and reasons and for failing to state in writing that the proposed activity is consistent with the goals and policies of § 22a–92.   Plaintiffs' Brief, dated June 17, 2011, pp. 25–32.

Section 22a–106(d) provides:  “A municipal board or commission approving, modifying, conditioning or denying a coastal site plan on the basis of the criteria listed in subsection (b) of this section shall state in writing the findings and reasons for its action.”

The plaintiffs' claims on this issue are not persuasive.   The record shows that the ZBA considered the post-development decrease in flow of stormwater into the tidal wetlands and acted in compliance with the applicable statutes.   In the minutes of the ZBA's regular meeting of October 27, 2010, the ZBA stated the reasons for its decision, including “6. the application as proposed, will have minimum impact on the tidal wetlands in that the storm water management plan will result in decreased flow of water into the tidal marsh from what currently exists at the undeveloped lot due to its downward slope, these findings concurred with by Westbrook's consulting engineers who approved the revised plan.”  (ROR, Item 21, pp. 3–4.)

IV

CONCLUSION AND ORDER

For the above-stated reasons, the court finds that the plaintiffs failed to meet the burden of proof to demonstrate that the ZBA acted illegally, arbitrarily, capriciously, or in abuse of its discretion in granting the second application.   There is substantial evidence in the record as a whole to support the ZBA's findings and decision granting the second application.   Therefore, the plaintiffs' appeal is dismissed.

BY THE COURT,

Bentivegna, J.

FOOTNOTES

FN1. Although Raymond Behr and Janet Behr are both defendants in this case and are represented by the same law firm, only Raymond Behr has filed a brief.   Accordingly, where both applicants are discussed collectively, they will be referred to as “the applicants.”   Where the arguments presented on behalf of Raymond Behr are discussed, he will be referred to individually as “the applicant.”.  FN1. Although Raymond Behr and Janet Behr are both defendants in this case and are represented by the same law firm, only Raymond Behr has filed a brief.   Accordingly, where both applicants are discussed collectively, they will be referred to as “the applicants.”   Where the arguments presented on behalf of Raymond Behr are discussed, he will be referred to individually as “the applicant.”

Bentivegna, James M., J.