Robert Benedict v. Town of Bethany Zoning Board of Appeals (2013)

MEMORANDUM OF DECISION

The plaintiff, Robert Benedict, appeals from the decision of the defendant, the town of Bethany zoning board of appeals (board), denying the plaintiff's application for a variance.   On March 24, 2006, the plaintiff submitted an application for a variance requesting relief from § 4.4.H.9 of the Bethany zoning regulations concerning the number of rear lots allowed in a subdivision.  (Return of Record [ROR], Exhibit [Exh.] E.) On June 12, 2006, the board held a public hearing on the plaintiff's application.  (ROR, Exh. B.) After taking evidence, the board denied the plaintiff's application.   The sole basis of the denial was the board's determination that the hardship claimed by the plaintiff was self-created.  (ROR, Exh. B, p.3;  Exh. D.)

The sole issue to be determined on this appeal is whether the board's determination in denying the variance because of a self-created hardship by plaintiff was valid and supported by substantial evidence in the record.   Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294–95, 947 A.2d 944 (2008).

A review of the record in this appeal reveals the following relevant facts, which are not in dispute.   The plaintiff is the owner of an undeveloped parcel of land in Bethany approximately 24.67 acres in size and known as 810 Litchfield Turnpike.  (ROR, Exh. E.) The property is located entirely in a residential zoning district.  (ROR, Exh. E.) The property is considered a rear lot and has access from the northeast extremity from North Humiston Drive and at the southwest end of the property by Old Litchfield Turnpike.  (ROR, Exh. B, p. 2;  ROR, Exhs. L, S, T and U.) This property was approved for a resubdivision by the Bethany planning and zoning commission on June 1, 1983.   (ROR, Exh. S.) On July 6, 1988, the subject property was again approved for resubdivision by the Bethany planning and zoning commission.  (ROR, Exhs. T and V.) Thereafter, in August and September 2000, by way of a series of quit claim deeds, a parcel, known as lot five, was conveyed by the plaintiff to Joan Benedict.  (ROR, Exhs. P, Q and R.) It is this conveyance that the board cites as the reason for denying the plaintiff's application.  (ROR, Exh. B, p. 3.)

The record also shows that on April 15, 2002, the town of Bethany amended its zoning regulations, specifically by adopting § 4.4.H.9, which concerns the number of rear lots permitted in a subdivision.  (Exh. C to “Timeline” filed by the board on June 5, 2013.)   This regulations provides in relevant part:  “Maximum Number of Rear Lots. For the purposes of this section, a ‘Subject Parcel’ shall be any parcel legally existing as of the enactment of this regulation amendment on April 15, 2002.   The number of rear lots created from a Subject Parcel shall comply with the following schedule ․” The schedule consists of a table, which provides for one rear lot for every one to four front lots created from the parcel.  (Exh. C to “Timeline” filed by the board on June 5, 2013.)

For this court to have subject matter jurisdiction over this appeal, the plaintiff must plead and prove aggrievement.  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 399, 920 A.2d 1000 (2007).  “The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination:  [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole.   Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] ․ Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ․ has been adversely affected.”  (Internal quotation marks omitted.)  Id., 400.   In this case, the plaintiff alleges in the complaint that he “is aggrieved by the Board's decision in that he is the owner of the Property involved in the denial.”  (Complaint, ¶ 8.)   At the appeal hearing, the parties stipulated that the plaintiff owns the property that is the subject of this appeal.   The plaintiff also submitted a copy of a deed demonstrating the plaintiff's ownership of the property.   Based on the stipulation and evidence submitted at the hearing, the court finds that the plaintiff is classically aggrieved.

The plaintiff has also satisfied the requirements of General Statutes § 8–8(b) regarding timeliness of the commencement of this appeal.  Section 8–8(b) requires the appeal to be commenced by service of process within fifteen days of the publication of the board's decision.   The evidence in the record indicates that notice of the board's decision was published in the New Haven Register on June 20, 2006.  (ROR, Exh. C.) The marshal's return attached to the complaint indicates that the appeal was commenced by service of two copies of process upon the Bethany town clerk on July 5, 2006.   Accordingly, as this appeal was commenced within fifteen days of the publication of the board's denial of the plaintiff's application, the appeal is timely.

Because this case requires the court to review the findings of the board, a review of the applicable standard of review is appropriate.  “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 ․ [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.”  (Citation omitted;  internal quotation marks omitted.)  Rural Water Co. v. Zoning Board of Appeals, supra, 287 Conn. 294.

In the present case, the board provided a formal, collective statement of the reason for its decision, specifically that the “hardship claimed by the applicant is a self-created hardship because Mr. Benedict (resubdivided/subdivided) the parcel into Lots 4 and 5, approved July 6, 1988 by the Planning and Zoning Commission, and subsequently gave away/sold Lot 5 on August 16, 2000, which he gave away road frontage which would have allowed him to develop a rear lot.”  (ROR, Exh. B, p. 3.) Accordingly, the court must review the record to determine whether this reason is proper and supported by substantial evidence.

In Rural Water Co. v. Zoning Board of Appeals, supra, 287 Conn. 282, the Supreme Court discussed the principles relating to the granting or denial of an application for a variance.  “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.)  Id., 295.

As noted above, the record evidence supports the board's factual determinations that the plaintiff had resubdivided his land in 1988 into lots 4 and 5 (ROR, Exh. 5), and then transferred lot 5 to another party in 2000 (ROR, Exh. Q).  The remaining issue to be resolved, therefore, is whether the board properly determined that these actions, which occurred prior to the adoption of the regulation at issue, render the plaintiff's hardship self-created.

Kulak v. Zoning Board of Appeals, 184 Conn. 479, 440 A.2d 183 (1981), provides useful guidance with regard to this issue.   In Kulak, the applicant's property was part of a subdivision map that was filed in Stamford in 1916, prior to the adoption of the city's first zoning ordinance in 1926.   Id., 480.   The subdivision consisted of 150 building lots, each measuring 50 feet by 120 feet.   Most the lots were subsequently sold and developed.   Later, in 1951, the city adopted a new zoning ordinance requiring 60 feet of frontage and 7500 feet of lot area.   The applicants purchased two of the 50–by–120–foot lots in 1973, one of which already had a house on it.   The applicants sold the lot with the house, and then applied for a variance to build a house on the empty lot.   The board granted the variance, but neighbors appealed to the Superior Court, which reversed the approval.  Id. The court reasoned that the hardship was self-created because the applicants had voluntarily purchased the property on the hope that they could obtain a variance.  Id., 480–81.   The applicants then appealed to the Supreme Court, which reversed the trial court and upheld the board's decision to approve the variance.  Id., 482.

In reversing the trial court's decision, the Supreme Court distinguished an earlier case, Abel v. Zoning Board of Appeals, 172 Conn. 286, 374 A.2d 227 (1977).   In Abel, the applicant had applied for a variance from the zoning ordinance's one-acre requirement in order to build on a 0.704–acre lot.   Id., 287.   At the time the lot was created as part of a subdivision, however, the recorded subdivision map that was approved by the Norwalk planning and zoning commission designated the subject parcel as a park reserve for Sisters of Saint Thomas of Villanova and stated “[t]his area is not to be constituted as a building lot ․” Id. In reversing the trial court's decision, which had upheld the granting of the variance, the Supreme Court held that the hardship had been voluntarily assumed.  Id., 289.

In Kulak the Supreme Court distinguished Abel as follows:  “The present subdivision map was filed in 1916.   The zoning ordinance requiring sixty-foot frontage was adopted in 1951.   The hardship created for the owners of the lot was imposed by the 1951 ordinance.   The defendants are not barred by the self-created hardship rule from obtaining a variance.   Where the applicant or his predecessor creates a nonconformity, the board lacks power to grant a variance.   Where, however, the hardship is created by the enactment of the zoning ordinance and the owner of the parcel could have sought a variance, a subsequent purchaser has the same right to seek a variance and, if his request is supported in law, to obtain the variance.”  Kulak v. Zoning Board of Appeals, supra, 184 Conn. 482.

Similarly, in the instant case, the amendment of the zoning regulations by the Bethany planning and zoning commission, adding section 4.4.H.9, occurred in 2002, after the property was resubdivided in 1988 and after the conveyance of Lot 5 by quitclaim deed in 2000.   The hardship confronted by the plaintiff was not created by the conveyance of Lot 5, but rather the amendment to the zoning regulations in 2002.   Prior to the amendment, the plaintiff had an approved subdivision.   The conveyance of lot 5 did not alter the status of the subdivision.   What changed was the amendment to the zoning regulations over which plaintiff had no control.   Therefore, the board erred in denying the plaintiff's application for a variance on the basis of a self-created hardship.   The record is devoid of any evidence that the hardship was self-created.   Accordingly, the appeal is sustained.

Michael P. Kamp, Judge

Kamp, Michael P., J.