LLC v. Zoning Board of Appeals of the Town of Fairfield et al. (2013)

CORRECTED MEMORANDUM OF DECISION

FACTS

These consolidated appeals concern property owned by the Defendant, Fourteen Hundred Sixty Post Road, LLC, known as 1460–1462 Post Road, Fairfield.   The parcel is located at the intersection of the Post Road (Rt.1), and Sanford Avenue, in an area of Fairfield known as Fairfield Center.

A single-story brick building is situated on the property.   The building, which was constructed prior to the adoption of zoning regulations by the Town of Fairfield, was built on the property line, and is therefore nonconforming as to the setback requirements applicable in a Commercial Designed Business District (CDBD).

On February 10, 2012, the Defendant, Fourteen Hundred Sixty Post Road, LLC, filed an application with the Fairfield Zoning Board of Appeals (ROR 1), seeking variances of two provisions of the Fairfield Zoning Regulations which concern setbacks.   A variance was requested concerning S. 12.7.6.1 ¹ the provision governing street setbacks, and S. 12.7.6.3 ² the provision controlling rear setbacks.

The variances were requested in anticipation of the construction of a second floor.   The new second story would consist of space for an office, and dry storage.   The owner desires to remodel the structure, in order to attract a boutique restaurant, rather than a coffee shop or similar establishment (ROR 5, p. 4).   A restaurant is a permitted use in a CDBD Zone.

During the March 1, 2012 public hearing, merchants who do business in the Fairfield Center area expressed support for the proposal (ROR 10).   Since many buildings in the area contain more than one story, it was argued that the proposed addition would blend into other buildings in the area, and would be an asset to the neighborhood.

The proposed second floor conforms to the height requirements of the Fairfield Zoning Regulations.   Therefore, no height variance was requested.

However, because the Fairfield Zoning Regulations treat any vertical extension of a building within a setback area as an expansion of an existing nonconformity,³ variances are required.   The regulations regard an addition as enlarging the nonconformity, because the new construction did not exist when the nonconformity was established.

Prior to submitting the application which was the subject of the March 1 public hearing (ROR 5), Fourteen Hundred Sixty Post Road, LLC had submitted a request for a parking variance, in order to construct an outdoor seasonal garden terrace (ROR 6, p. 7).   A prior variance of the parking requirements has reduced the number of parking spaces mandated for a restaurant from fifteen (15) to zero.   Since the restaurant area for patrons was not changed in the current proposal, no additional parking variance was sought.

The Zoning Board of Appeals approved both of the requested variances unanimously, at its meeting following the close of the public hearing (ROR 6, p. 9).   The Board did not state collective reasons for its decision, nor did it specify the hardship applicable to the property, as required pursuant to S. 8–7 4 of the General Statutes.

Notice of the decision was published (ROR 8) on March 7, and a timely appeal was filed with this court.

Following the approval of the setback variances, a special permit application was filed on April 15, 2012 (ROR 1).   The application sought to construct office and storage areas on the proposed second floor, in order to accommodate a boutique restaurant on the first floor.

During the May 8, 2012 public hearing, the applicant explained that the floor plan of the existing first floor would not be changed from its historic use (TR, p. 32).   The restaurant space would not be expanded beyond the existing 600 square feet.

The history of the parcel, including parking variances granted previously, was discussed (TR, p. 14–21;  p. 42).

On June 26, 2012, the Fairfield Plan and Zoning Commission unanimously approved the special permit application (ROR 9, p. 1), and, after timely publication (ROR 13), the Plaintiff, E & F Associates, LLC, brought an appeal.

AGGRIEVEMENT

The Plaintiff in both appeals, E & F Associates, LLC, is the owner of property known as 1474 Post Road, Fairfield, having acquired title via an instrument recorded in the land records of the town of Fairfield (Ex. 1).   E & F Associates, LLC has owned the property at all times, while these appeals have been pending.

Pleading and proof of aggrievement are a prerequisite to a trial court's jurisdiction over the subject matter of an appeal.  Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 307 (1991).   The party claiming to be aggrieved must sustain its interest in the property throughout the course of an appeal.  Craig v. Maher, 174 Conn. 8, 9 (1977).   The question of aggrievement is one of fact.  Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 508 (1968).

Aggrievement falls into two basic categories—statutory aggrievement, and classical aggrievement.

Statutory aggrievement exists by virtue of legislative fiat, which grants standing to appeal by virtue of a particular statute, rather than through an analysis of the facts of a particular case.  Weill v. Lieberman, 185 Conn. 123, 124–25 (1986);  Pierce v. Zoning Board of Appeals, 7 Conn.App. 632, 635–36 (1986).

Classical aggrievement, on the other hand, requires a party to satisfy a well established two-fold test:  1) the party claiming to be aggrieved must demonstrate a specific personal and legal interest in the decision appealed from, as distinguished from a general interest such as the concern of all members of the community as a whole, and 2) the party must show that the specific personal and legal interest has been specifically and injuriously affected by the action which generated the appeal.  Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47 (1984).

Section 8–8(1) of the General Statutes defines “Aggrieved person” to include:  “․ 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.”   As the record owner (Ex. 1) of 1474 Post Road, Fairfield, which abuts 1460–1462 Post Road, Fairfield (ROR 14), E & F Associates, LLC, has met the test for statutory aggrievement.

It is therefore found, that the Plaintiff is aggrieved by the decisions of the Fairfield Zoning Board of Appeals and the Fairfield Plan and Zoning Commission, which have been consolidated in this appeal.

STANDARD OF REVIEW—ZONING BOARD OF APPEALS

The powers of a municipal zoning board of appeals, unless exercised pursuant to a Special Act, are derived from S. 8–6(3) of the General Statutes.   This section provides authority:

(3) To determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent, 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 preserved.”

A zoning board of appeals is endowed with liberal discretion, and its decisions are subject to review by a court only to determine whether the board acted arbitrarily, illegally or unreasonably.  Pleasant Farms Development, Inc. v. Zoning Board of Appeals, 217 Conn. 265, 269 (1991);  Torsiello v. Zoning Board of Appeals, 3 Conn.App. 47, 50 (1984).   The burden of demonstrating that the board acted improperly is on the party seeking to overturn the board's decision.  Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988);  Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654 (1980).

A court should not usurp the function and prerogatives of a zoning board of appeals by substituting its judgment for that of the board, where an honest judgment has been reasonably and fairly exercised, after full hearing.   Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995).   The question is not whether another decision maker, such as the trial court, would have reached a different decision, but whether the record before the agency supports the decision reached.  Calandro v. Zoning Commission, 176 Conn. 439, 440 (1979).

A decision must be upheld, if it is supported by substantial evidence in the record.   Substantial evidence is enough evidence to justify, if the trial were to a jury, a refusal to direct a verdict if the conclusion sought to be drawn is one of fact.  Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993).   The possibility of drawing two inconsistent conclusions does not prevent a decision from being supported by substantial evidence.  Property Group, Inc. v. Planning & Zoning Commission, 226 Conn. 684, 697 (1993).

Where a municipal zoning agency has stated collective reasons for its decision, a court should not go beyond the collective reasons of the agency, but should only decide whether any reason is supported by substantial evidence in the record.  Gibbons v. Historic District Commission, 285 Conn. 755, 770–71 (2008);  Vine v. Zoning Board of Appeals, 281 Conn. 553, 559–60 (2007).   Consistent with S. 8–7 5 of the General Statutes, where reasons have been stated by the board, the court must determine whether any reason given is supported by substantial evidence.

However, where a zoning board of appeals has failed to state collective reasons for its decision, that fact is not fatal to the board's action.   In that event, a court is required to search the record in an attempt to determine some basis for the action taken.  Moon v. Zoning Board of Appeals, 291 Conn. 16, 25 (2009);  Grillo v. Board of Appeals, 206 Conn. 362, 369 (1988);  Ward v. Zoning Board of Appeals, 153 Conn. 141, 144 (1965).

STANDARD OF REVIEW-—SPECIAL PERMIT

When passing upon a proposed special permit or special exception, a municipal planning and zoning commission sit in an administrative capacity.  Goldberg v. Zoning Commission.   173 Conn. 23, 29 (1977);  A.P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 184–85 (1974).   Its function is 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.  Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 217 (2001).

A zoning commission is empowered to determine, based upon the proposal before it, 1) whether the proposed use of the property is permitted under the zoning regulations, 2) whether the standards contained in the regulations are satisfied, and 3) whether conditions of approval or modifications are necessary in order to protect public health, safety, convenience and property values.   Housatonic Terminal Corp. v. Planning & Zoning Board, 168 Conn. 304, 307 (1975).   A commission has discretion to determine, within prescribed limits, whether a given regulation applies and the manner in which it applies.   Torrington v. Zoning Board Commission, 261 Conn. 759, 776 (2002).   However, the discretion exercised must be controlled by fixed standards, applying to all cases in a like manner.  Sonn v. Planning & Zoning Commission, 172 Conn. 156, 163 (1976).

In applying the law to the facts of the case, a commission is endowed with liberal discretion, and its action is subject to review by a court only to determine whether it acted arbitrarily, illegally, or unreasonably.  Irwin v. Planning & Zoning Commission, 244 Conn. 619, 627–28 (1998);  Raczkowski v. Zoning Commission, 53 Conn.App. 636, 639 (1999).

The commission's conclusions will only be invalidated if they are not supported by substantial evidence in the record.   The burden is on the party challenging the action to prove that the commission acted arbitrarily, illegally, or in abuse of its discretion.  Whittaker v. Zoning Board of Appeals, supra, 654;  Raczkowski v. Zoning Commission, supra, 639.

A REVIEW OF THE RECORD SUPPORTS THE DECISION OF THE ZONING BOARD OF APPEALS TO APPROVE THE VARIANCES

In order to grant a variance, a zoning board of appeals must find that two conditions have been satisfied:  1) the variance must be shown not to affect substantially the municipal comprehensive 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.   Moon v. Zoning Board of Appeals, supra, 24;  Francini v. Zoning Board of Appeals, 227 Conn. 785, 790 (1994).   The comprehensive plan consists of the zoning regulations, and the zoning map.  Burnham v. Planning & Zoning Commission, 189 Conn. 261, 267 (1983).

Because the granting of a variance permits a property owner to use his property, even though a violation of the zoning regulations will result, it is reserved for unusual or exceptional circumstances.   Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance.  Tine v. Zoning Board of Appeals, 308 Conn. 300, 310 (2013);  Bloom v. Zoning Board of Appeals, supra, 206–08.

A variance runs with the land;  Reid v. Zoning Board of Appeals, 235 Conn. 850, 858 (1996);  S. 8–6(b), C.G.S.;   and must be based on property conditions.  Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239 (1972).   The identity of the applicant is irrelevant.  Dinan v. Board of Zoning Appeals, 220 Conn. 61, 66–67 (1991).

In order to support a variance, a hardship must arise from a condition different in kind from one generally affecting properties in the same zoning district, and must be imposed by conditions outside the property owner's control.  Norwood v. Zoning Board of Appeals, 62 Conn.App. 528 533 (2001).   Hardships which are personal to the applicant, however compelling from a human standpoint, do not provide sufficient grounds for the granting of a variance.   Garibaldi v. Zoning Board of Appeals, supra, 230–40;  Gangemi v. Zoning Board of Appeals, 54 Conn.App. 559, 564 (1999).

Hardships arising out of the voluntary act of an applicant are considered to be self inflicted, and cannot provide the basis for the granting of a variance.  Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39 (1982);  Archambault v. Wallow, 25 Conn.App. 375, 381 (1991).   Disappointment in the use of property does not constitute an exceptional difficulty or unusual hardship.  Green Falls Associates, LLC v. Zoning Board of Appeals, 135 Conn.App. 481, 494 (2012).   Potential financial losses, or the potential for financial gain or advantages to the applicant, cannot serve as the basis for a variance.  Carlson v. Zoning Board of Appeals, 158 Conn. 86, 89 (1969).   Nor can a general hardship to the neighborhood, or to the community as a whole, support the approval of a zoning variance.  Malstrom v. Zoning Board of Appeals, 152 Conn. 385, 390 (1965);  Finch v. Montanari, 143 Conn. 542, 546 (1956).

Because the Fairfield Zoning Board of Appeals did not supply collective reasons for the granting of the variances, the court must search the record, to determine whether the board's decision is supported by substantial evidence.

The record reveals support for a finding that the variances which were granted, and the use of the property, are consistent with the municipal comprehensive plan.   Restaurants are permitted uses in the CDBD Zone, and other buildings in the area are multi-storied structures.   The board was therefore justified in determining that the proposal was in accord with the municipal comprehensive plan.

As to the claim of hardship, the Plaintiff correctly argues that the desire of Fourteen Hundred Sixty Post Road, LLC to locate a boutique restaurant on the site, or the support for the concept by other merchants in the area, cannot justify a finding of hardship.   Nor can vague and undefined aesthetic considerations, standing alone, support the invocation of police powers, which is the source of zoning authority.  DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 541 (1970).   Permitting aesthetic considerations to control zoning decisions would give unlimited discretion to land use agencies, and would allow those agencies to arbitrarily decide issues based upon personal favoritism or preference.   Robert A. Fuller, Land Use Law and Practice (3rd ed.), S. 4.48, p. 174 (2006).

Any hardship, therefore, may only be justified through a consideration of the setback nonconformity, which predated the adoption of zoning, by the Town of Fairfield.

The Defendant, Fourteen Hundred Sixty Post Road, LLC, argues that the configuration of the property, coupled with the applicable setback requirements, constitutes a hardship, in that any vertical expansion must, of necessity, occur within the setback area.

In Stillman v. Zoning Board of Appeals, 25 Conn.App. 631 (1991), the Appellate Court reversed a trial court decision, and determined that a legally cognizable hardship was present.

The Stillman scenario concerned a homeowner, who sought to expand an existing structure, in order to add a bathroom and a laundry room to the first floor.   The expansion was designed to occur within the setback area.

The homeowner maintained that the location of a well and septic system, coupled with the size of the lot, rendered any expansion in an area not covered by the setback regulation “extremely burdensome.   The Appellate Court agreed.   Stillman v. Zoning Board Appeals, supra, 636–37.⁶

The Appellate Court found that the hardship, based upon the location of artificial improvements and the configuration of the lot, was not personal to the homeowner.   Furthermore, even though the well and septic system were installed by the applicant, because that installation occurred prior to the adoption of zoning regulations, the hardship was not self created.  Stillman v. Zoning Board of Appeals, supra, 637.

Here, the one-story structure was built directly on the property line, before the adoption of zoning regulations.   Therefore, the structure cannot be expanded horizontally.   Although the zoning regulations would permit a vertical extension of the building without violating any height restrictions in the zone,⁷ Section 2.8.1.1 of the regulations prohibits any increase in the height of the building within the area covered by the setback regulations.

The Fairfield Zoning Board of Appeals, based upon substantial evidence in the record, could find that the second-floor addition is not possible without encroaching on the portion of the building impacted by the setback requirements.

Just as the Stillman court did not find that the desire of the homeowner to add a new bathroom and a new laundry room constituted a hardship justifying relief, the desire of Fourteen Hundred Sixty Post Road, LLC to operate an upscale restaurant on the property, is unavailing.

However, the Redding Zoning Board of Appeals in Stillman found a hardship, based upon the presence of artificial improvements (a well and a septic system) which precluded expansion of the dwelling without encroaching upon the setback area.

Here, the record supports a finding by the Fairfield Zoning Board of Appeals, that the location of the one-story building on the property line, coupled with the size and shape of the parcel, and its status as a corner lot, precludes a vertical extension of the structure, without running afoul of the setback regulations which were the subject of the requested variances.

Since substantial evidence in the record supports the decision of the Zoning Board of Appeals in granting the two variances, the appeal in Docket # CV–12–6026129 S must be dismissed.

APPROVAL OF THE SPECIAL PERMIT BY THE PLAN AND ZONING COMMISSION SUPPORTED BY THE RECORD

The validity of the special permit issued by the Fairfield Town Plan and Zoning Commission is directly dependent upon the two setback variances approved by the Zoning Board of Appeals.   Because the appeal from the granting of those variances has been dismissed, the appeal from the approval of the special permit must be considered.

The proposal submitted by Fourteen Hundred Sixty Post Road, LLC, involves construction of an office and storage area within a new second floor.   The design for the addition calls for two sets of interior stairs.

The floor plan of the existing first floor is not being changed from its historic use, and the area dedicated to use as a restaurant or eating facility, a permitted use, will remain at 600 square feet.

The Plaintiff, E & F Associates, LLC, argues that the special permit application is defective, because it did not contain a parking study, as required by Sections 12.10 and 12.10.3 of the Fairfield Zoning Regulations.   It also maintains that an additional parking variance is required, because a portion of the premises continues to be utilized as a retail use.

These claims are not well taken.

A previous variance had reduced the number of off-street parking spaces required from fifteen (15) spaces to zero.   No additional variance is necessary, in light of the fact that the new construction space is not being utilized as a restaurant, but is committed to office and storage purposes.

The record reveals that the retail use of the building did not require a parking variance, in that the use is preexisting and nonconforming (ROR 7, p. 40).

Since the parcel has no onsite parking available, and the issue had been addressed in a prior variance application, the commission was justified in dispensing with the “parking study” requirement.

In light of the setback variances granted by the Zoning Board of Appeals, and the record compiled before the Town Plan and Zoning Commission, the record provides overwhelming and unambiguous support for the issuance of the special permit.

The appeal of the granting of the special permit, Docket # CV–12–6028919 S, should be dismissed.

PARTICIPATION OF ATTORNEY AS ADVOCATE WAS PROPER

The Plaintiff, E & F Associates, LLC, has raised in its brief the fact that counsel for the applicant, Fourteen Hundred Sixty Post Road, LLC, was a member of the Fairfield Board of Selectmen at the time of the public hearing.   As such, he was an ex-officio member, without vote, on all town boards, commissions and committees.⁸

E & F Associates, LLC, raised the issue in the context of S. 8–11 of the General Statutes, which reads in relevant part:

No member of any zoning commission or board and no member of any municipal agency exercising the powers of any zoning commission or board of appeals ․ shall appear for or represent any person, firm, corporation or other entity in any matter pending before the planning or zoning commission or board or said board of appeals ․ whether or not he is a member of the Defendant board or commission hearing such matter.   No member of any zoning commission or board and no member of any zoning board of appeals shall participate in the hearing or decision of the Defendant Board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense ․

The record compiled before the Fairfield Zoning Board of Appeals, and the Fairfield Town Plan and Zoning Commission, is silent on this issue.   Neither the attorney for any party, or the attorney for the zoning agency, or any individual member of either land use body, raised the issue of the attorney's membership on the Fairfield Board of Selectmen, at either hearing.

Nor has the Plaintiff sought to develop this issue through an effort to supplement the record of either appeal, pursuant to S. 8–8(k) 9 of the General Statutes.

In its reply, Fourteen Hundred Sixty Post Road, LLC denies any improper conduct under any provision of the General Statutes or the Fairfield Town Charter, and points out that counsel for the Plaintiff served for six years as an elected member of the Fairfield Representative Town Meeting (RTM), the town's legislative body.

Neither party to this appeal questioned the propriety of any member of the Fairfield Zoning Board of Appeals or the Town Plan and Zoning Commission hearing the applications which were submitted, or voting on the applications following the close of the public hearings.

There is a presumption that members of an administrative agency are not biased.  Judkowitz v. Department of Health Services, 220 Conn. 86, 100 (1991);  Rado v. Board of Education, 216 Conn. 541, 556 (1990).   In order to overcome this presumption, a showing of actual bias, not merely potential bias, must be made.  O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 429 (1995).

The record contains not a scintilla of evidence to suggest a claim of actual bias, and no such evidence was advanced at trial.

Furthermore, the court believes there is a distinction between an elected member of a zoning authority, or one appointed to act in the absence of a regular member, and one who is designated as ex-officio without vote.   The provisions of S. 8–11 do not extend to ex-officio members, because disqualification from a vote of the body is never an issue.   No authority has been cited for the proposition that one serving ex-officio is subject to any automatic statutory disqualification.

Our courts have consistently recognized that the appearance of impropriety created by a public official's participation in a matter in which he has a pecuniary or personal interest is sufficient to require disqualification.   Low v. Madision, 135 Conn. 1, 8 (1945);  Candlewood Hills Tax District v. Medina, 143 Conn.App. 230, 246 (2013);  Brunswick v. Inland Wetlands Commission, 29 Conn.App. 634, 639 (1992).   This “appearance of impropriety” standard creates a conundrum, when applied to practicing attorneys, who elect to serve their communities in volunteer elective office.

Efforts to formulate rigid standards have, unfortunately, created the potential for political mischief, without advancing the laudable objective of honest, open and transparent municipal governance.

The topic of attorneys who serve as municipal officials, and also represent clients before municipal agencies, was the subject of Connecticut Bar Association Formal Opinion 37, an opinion which was later modified by Formal Opinion 47.

Formal Opinion 37 proposes that disqualification is mandated, when one municipal body is “under the control of the other body.”   Employing this “test” the opinion declared:

․ a member of the governing body in a town (such as the town council or board of selectmen) would probably be disqualified from appearing before most nonceremonial boards in town other than the board of education because most boards would be considered subordinate to it ․

This guideline, if literally applied, would ensnare members of both the Fairfield Board of Selectmen and Fairfield's fifty-five (55) member Representative Town Meeting (RTM), based upon the false premise that land use bodies are somehow under the “control” of the Board of Selectmen or the RTM.

To suggest that duly elected members of the Town Plan and Zoning Commission or the Zoning Board of Appeals are in any way “subordinate” to or “controlled” by the Fairfield Board of Selectmen or RTM would no doubt provoke a quizzical expression of disbelief from members of those land use bodies.   Any such suggestion would instantly prompt a declaration of independence.

No basis exists for imputing or alleging improper conduct by any attorney involved in this litigation.   All have represented their clients zealously, but within the bounds of propriety.

CONCLUSION

Both appeals are DISMISSED.

RADCLIFFE, J.

FOOTNOTES

FN1. Section 12.7.6.1—Street Line Setback —”No building or structure shall be closer to the street or property line, or any Residence District boundary, than the following:In a Center Designed Business District and Neighborhood–Designed Business District, ten (10) feet ․ and in a Designed Commercial District the setback shall be twenty-five (25) feet ․.  FN1. Section 12.7.6.1—Street Line Setback —”No building or structure shall be closer to the street or property line, or any Residence District boundary, than the following:In a Center Designed Business District and Neighborhood–Designed Business District, ten (10) feet ․ and in a Designed Commercial District the setback shall be twenty-five (25) feet ․

FN2. Section 12.7.6.3—Rear Property Line Setback —”No building or structure shall be closer to the ․ property lines ․ than ․ ten (10) feet.”.  FN2. Section 12.7.6.3—Rear Property Line Setback —”No building or structure shall be closer to the ․ property lines ․ than ․ ten (10) feet.”

FN3. Section 2.8.1.1—”No non conforming use of land, buildings or other structures, shall be enlarged to include any other building, and or other structure or part thereof, which is not subject to such nonconformity ․”.  FN3. Section 2.8.1.1—”No non conforming use of land, buildings or other structures, shall be enlarged to include any other building, and or other structure or part thereof, which is not subject to such nonconformity ․”

FN4. Section 8–7, C.G.S.—”․ When a board of appeals grants or denies any ․ variance in the zoning regulations applicable to any property ․ it shall state upon the record the reason for its decision ․ and where a variance has been granted, describe specifically the exceptional difficulty or unusual hardship on which its decision is based.”.  FN4. Section 8–7, C.G.S.—”․ When a board of appeals grants or denies any ․ variance in the zoning regulations applicable to any property ․ it shall state upon the record the reason for its decision ․ and where a variance has been granted, describe specifically the exceptional difficulty or unusual hardship on which its decision is based.”

FN5. Section 8–7, C.G.S.—”․ When a board of appeals grants or denies any ․ variance in the zoning regulations applicable to the decision ․ and where a variance is granted, describe specifically the exceptional difficulty or unusual hardship on which its decision is based ․”.  FN5. Section 8–7, C.G.S.—”․ When a board of appeals grants or denies any ․ variance in the zoning regulations applicable to the decision ․ and where a variance is granted, describe specifically the exceptional difficulty or unusual hardship on which its decision is based ․”

FN6. The court is aware of the decision in Bloom v. Zoning Board of Appeals, supra, in which the continued validity of Stillman was questioned.   In Bloom, the court stated:  “Although we distinguish Stillman, we do not necessarily endorse its holding.”  Bloom v. Zoning Board of Appeals, supra, 210–11 n.13. However, Stillman continues to be cited as authority, notwithstanding the footnote inserted into the Bloom decision (See Green Falls Associates, LLC v. Zoning Board of Appeals, supra;  Jersey v. Zoning Board of Appeals, 101 Conn.App. 350, 358 (2007))..  FN6. The court is aware of the decision in Bloom v. Zoning Board of Appeals, supra, in which the continued validity of Stillman was questioned.   In Bloom, the court stated:  “Although we distinguish Stillman, we do not necessarily endorse its holding.”  Bloom v. Zoning Board of Appeals, supra, 210–11 n.13. However, Stillman continues to be cited as authority, notwithstanding the footnote inserted into the Bloom decision (See Green Falls Associates, LLC v. Zoning Board of Appeals, supra;  Jersey v. Zoning Board of Appeals, 101 Conn.App. 350, 358 (2007)).

FN7. Fairfield Zoning Regulations, S. 2.7.4..  FN7. Fairfield Zoning Regulations, S. 2.7.4.

FN8. Fairfield Town Charter, S. 6.1.F..  FN8. Fairfield Town Charter, S. 6.1.F.

FN9. Section 8–8(k), C.G.S.—”The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if ․ (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal ․”.  FN9. Section 8–8(k), C.G.S.—”The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if ․ (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal ․”

Radcliffe, Dale W., J.