Joseph Sullo v. Old Lyme Zoning Board of Appeals (2013)

MEMORANDUM OF DECISION

This is an appeal by the plaintiff, Joseph Sullo, from the decision of the defendant, the zoning board of appeals for the town of Old Lyme, denying the plaintiff's application for variances.   The plaintiff claims that the defendant acted illegally, arbitrarily and in abuse of its discretion by denying his application for a variance that would bring the plaintiff's property into compliance with flood level regulations.

The plaintiff is the owner of the property located at 9 Sea Lane, Old Lyme, Connecticut (property).   The property is the subject of the variances at issue in the present appeal.   Pursuant to General Statutes § 8–8, the plaintiff as the property owner is statutorily aggrieved by the decision of the defendant and, therefore, has standing to pursue this appeal.

After holding a public hearing, the defendant voted four to one in favor of denying the plaintiff's application for a variance.   The defendant gave as its reason:  “This worthwhile proposal to make it FEMA [Federal Emergency Management Agency] compliant could happen in a different location and not impact the neighborhood in a negative the way it will in its current location.   Also, the relocation would reduce the nonconformity of the street line and property line setbacks.”  (Return of Record [ROR] § 9, p. 11).

The powers of a municipal zoning board of appeals are derived from General Statutes § 8–6(a)(3), which provides, in relevant part, broad authority “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 ․

“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.   The trial court ha[s] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts ․ In applying the law to the facts of a particular case, the board is endowed with ․ liberal discretion, and its action is subject to review ․ only to determine whether it was unreasonable, arbitrary or illegal ․ Moreover, the plaintiffs bear the burden of establishing that the board acted improperly.”  (Internal quotation marks omitted.)  Anatra v. Zoning Board of Appeals, 307 Conn. 728, 737 (2013).

If a decision of the board is supported by substantial evidence, then it must be upheld.  “Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable ․ 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 ․ [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency ․ and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action ․ The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.”  (Internal quotation marks omitted.)  Prioleau v. Commission on Human Rights & Opportunities, 116 Conn.App. 776, 780–81 (2009).

“Courts are not to substitute their judgment for that of the board ․ and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing ․ Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons ․ The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs.

“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 regulation produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone ․ Accordingly, we have 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.”  (Internal quotation marks omitted.)  Moon v. Zoning Board of Appeals, 291 Conn. 16, 24 (2009).

The plaintiff claims that he requested a single change to his property through a variance that would bring the subject building into compliance with FEMA flood requirement regulations, which are incorporated into the Old Lyme zoning regulations, and, therefore, the defendant abused its discretion in denying the variance.   The record, however, does not support the plaintiff's claim.

There exists substantial evidence in the record for the defendant's decision.   Pursuant to the plaintiff's application for a variance, the plaintiff was seeking five variances, including variances of §§ 8.8.1 (minimum lot area), 8.8.3 (minimum dimension of square on the lot), 8.8.7 (minimum setback from street), 8.8.9 (minimum setback from other property lines) and 9.3 et al (non-conforming building and structures).   The defendant articulated its reason for denying the variance by stating that the proposal to make the subject structure compliant with the FEMA regulations could happen in a different location and not have a negative impact on the neighborhood in the way that the current proposal would have.  (See ROR, § 11, p. 11.)   During the discussion, Susanne Stutts, chairman of the defendant, indicated that there was “no hardship to warrant the granting of this many variances, as there are other remedies to achieve the use that would have less of a negative impact on the neighborhood.”  (ROR, § 11, p. 11.)   During the discussions before the defendant, Carrie Begin, a neighbor of the plaintiff, as well as an unknown individual, shared concerns for the neighborhood.   On page 18 of the transcript, which was submitted by the defendant in their April 12, 2012 amended supplemental return of record, an unknown individual and Begin discussed how the area floods on a regular basis and how any additional grading on the plaintiff's property would push more water into the area with an insufficient drain.  (ROR, § 10(a), p. 18.)   During the discussions of the open voting session, Kip Kotzan, a member of the defendant, stated (p. 5) that “I know it's a big project but I think you could probably more successfully (inaudible) it if you move it closer to the house and farther from the boundaries so you could slope toward (inaudible).   But I honestly think that the abutting property owner does lose something substantial here in the process of doing this and if that was the only way he could get that lifted up and make it FEMA compliant then I think I would be in a tough spot but I don't think it is the only way you can make it FEMA compliant.   I think you can lift it up and move it and if you twist it or slide it over more toward the current driveway, then the issues with the impact on the view disappear.”  (ROR, § 10(b), p. 5.) Kotzan also noted that “[g]oing up fourteen feet if it's moved further away from the street would not have nearly as much impact.”  (ROR, § 10(b), p. 13.)   Judy McQuade, another member of the defendant, also noted during the open voting session that the higher the building the more impact it would have on the street and the neighbors, and she stated “I mean it's got a, a very, it's a much larger visual impact.”  (ROR, § 10(b), p. 4.) Moreover, McQuade noted that if the plaintiff moved the location of the structure, he would be reducing the nonconformities and would be more in conformity with the FEMA regulations.   (ROR, § 10(b), pp. 11–12.)

The plaintiff relies on several cases supporting his claim, including particularly, Hescock v. Zoning Board of Appeals, 112 Conn.App. 239 (2009).   The present case is distinguishable from Hescock, however, for two material reasons.   First, in Hescock, the zoning board of appeals for the town of Stonington granted the application for a variance.   Second, the Appellate Court determined that “there was substantial evidence that the new construction would reduce and eliminate existing nonconformities and present less of a hazard in case of a flood, and there was no evidence that replacing the existing house would result in even minimal harm to the neighborhood.”  Id., 261.   In the present case, however, the defendant found that there would be harm to the neighborhood based on its own knowledge, expressed by several board members, and the testimony of a neighbor.

Based on the foregoing, the court finds that the defendant had before it sufficient evidence to find that there existed other available remedies and that the proposed change would harm the neighborhood.   The plaintiff did not establish a sufficient hardship to warrant the variances he requested.

Accordingly, since the plaintiff failed to sustain his burden of proof that the defendant acted illegally, arbitrarily and in abuse of its discretion, judgment may enter dismissing the plaintiff's appeal.

Seymour L. Hendel, J.T.R.

Hendel, Seymour L., J.T.R.