Marylou Amendola v. Zoning Board of Appeals for the Town of West Haven (2013)

MEMORANDUM OF DECISION

I

STATEMENT OF APPEAL

The plaintiffs, Marylou Amendola, Barbara Benedict and Howard Benedict, appeal from a decision of the defendant, the zoning board of appeals for the city of West Haven (board), approving a variance application of the defendant, Robert Fischer, for the expansion of a single-family dwelling.   Amendola and the Benedicts have each filed separate administrative appeals from the underlying decision of the board.   Because the records in each appeal are nearly identical and both appeals involve the same counsel, the court will address both appeals simultaneously.

In support of their appeals, the plaintiffs argue, inter alia,¹ that:  (1) the record contains insufficient evidence of hardship to support the board's decision to grant the underlying variances;  (2) the variances substantially affect West Haven's comprehensive zoning plan;  (3) the claimed hardship is self-created;  and (4) Fischer's failure to request a variance from West Haven Zoning Regulations § 82.3 ² is fatal to his variance application.   For the reasons that follow, the plaintiffs' appeals are dismissed.

II

BACKGROUND

Fischer is the owner of real property located at 201 Ocean Avenue in West Haven (subject property).   Return of Record (ROR), Item 1. The subject property faces the Long Island Sound to the south (the “water side” of the subject property) and abuts a public highway, Ocean Avenue, to the north (street side).   ROR, Items 9–22.   The property is long and narrow—a fifty-foot-wide by 200–foot–long rectangle that stretches from the water towards Ocean Avenue—and is improved by a thirty-foot-wide by thirty-five-foot-long, two-story, residential dwelling.  Id. Along the water side of the property runs Old King's Highway, a so-called unimproved “paper” roadway, which is “basically a utility easement to allow for the maintenance of the sewer line underground.”   ROR, Item 34.   Because of the placement of Old King's Highway, the subject property has two front yards, located on both the water and street sides of the property, pursuant to the relevant zoning regulations.   ROR, Items 9 and 11.   Attached to the water side of the dwelling is a thirty-foot-wide by eighteen-foot-long deck, which partially encroaches upon Old King's Highway.   ROR, Items 9, 11, 12, 33 and 34.

The existing dwelling is located in an “R–2 single-family residential district” (R–2 district), and is nonconforming in four respects:  (1) the dwelling is located on a 10,400 square foot lot, where a 16,000 square foot lot is required;  (2) the front yard setback on the water side of the property is nonexistent, where a thirty-foot setback is required, as the attached deck encroaches on Old King's Highway;  (3) the side yard setbacks are each ten feet wide, where fifteen-foot setbacks are required;  and (4) the street frontage is fifty feet wide, where eighty feet is required.   West Haven Zoning Regulations § 11, Table 11.1;  ROR, Items 9 and 11.   Nevertheless, because the dwelling predates the existing regulations, and in light of a previous setback variance,³ the dwelling is a legally nonconforming structure and requires no modification.   See generally West Haven Zoning Regulations § 82.

By application dated March 13, 2009, Fischer applied for variances from West Haven's minimum setback requirements, lot coverage and building coverage requirements in order “[t]o enclose a two ․ story 7.6 x 30 ft section of [an] existing deck/porch and [to] build an addition containing a three ․ car garage with storage.”   ROR, Item 1. Thereafter, during an April 15, 2009 hearing before the board, Fischer clarified that he was requesting the following variances:  (1) a reduction of the side yard setback requirement from fifteen feet to ten feet for the construction of a 27.25 by thirty foot, two-story addition on the street side of the property;  (2) a reduction of the side yard setback requirement from fifteen feet to five feet for the construction of a forty by twenty-two foot, attached, three-car garage on the street side of the property;  (3) a reduction of the side yard set back requirement from fifteen feet to ten feet for the construction of a seven by thirty foot addition on the water side of the property, to be placed entirely within the footprint of the existing deck;  (4) a reduction of the side yard setback requirement from fifteen feet to ten feet for the construction of a second-floor, cantilevered, six by thirty foot deck on the water side of the property, which would also be located entirely within the footprint of the existing deck;  (5) an increase in the permitted lot coverage from thirty-five percent to forty-eight percent;  and (6) an increase in the permitted building coverage from twenty percent to thirty-eight percent.⁴  ROR, Items 8 and 45.   On August 19, 2009, the board issued a certificate of decision ⁵ approving the requested variances.⁶  ROR, Item 47.

Thereafter, the plaintiffs commenced two separate appeals from the board's decision to the Superior Court.   The plaintiffs and Fischer each submitted briefs on May 28, 2010 and July 7, 2010, respectively.   On July 12, 2010, the board submitted a memorandum adopting the arguments set forth in the Fischer brief.   On January 25, 2013, both appeals were argued before the court.   At the hearing, the court requested supplemental briefs from the parties, which were received on March 25, 2013.   On April 15, 2013, the parties each submitted reply briefs.

III

JURISDICTION

General Statutes § 8–8 sets forth the jurisdictional requirements governing appeals to the Superior Court from the decisions of local zoning boards.   As a preliminary matter, the court must examine whether each requirement has been met, as “[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).

A

Aggrievement

“It is well settled that pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal ․ It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved.”  (Citation omitted;  internal quotation marks omitted.)  Bongiorno Supermarkets, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537–38, 833 A.2d 883 (2003).

In the present case, the plaintiffs each allege that they are statutorily aggrieved under § 8–8.   Subsection (b) of § 8–8 provides that “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 ․” Subsection (a) of § 8–8 defines an “aggrieved person” as “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.”

A review of the documents submitted in the return of record confirms that the plaintiffs each own property that abuts the subject property.   More particularly, Amendola owns 197 Ocean Avenue, which abuts the western border of the subject property.   See, e.g., ROR, Item 45, pp. 10–11.   The Benedicts own 205 Ocean Avenue, which abuts the eastern border of the subject property.   Id., p. 14.   Accordingly, the court finds that the plaintiffs are each statutorily aggrieved and therefore have standing to pursue this appeal under § 8–8.

B

Timeliness and Service of Process

Subsection (b) of § 8–8 further provides that “[t]he 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 ․” Subsection (f) of § 8–8 pertains to service upon local zoning boards and provides that “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 ․”

Subsection (g) of § 8–8 pertains to service of process on parties other than the board and provides that the “failure to make service within fifteen days on parties other than the board shall not deprive the court of jurisdiction over the appeal.   If service is not made within fifteen days on a party in the proceeding before the board, the court, on motion of the party or the appellant, shall make such orders of notice of the appeal as are reasonably calculated to notify the party not yet served.”

In the present case, legal notice of the board's decision was published in the New Haven Register on August 24, 2009.   ROR, Item 42.   Thereafter, on September 4, 2009, the plaintiffs commenced two separate appeals as to the board by service of process upon the city clerk, Deborah Collins.   On November 5, 2009, the court, Corradino, J., granted the plaintiffs' motions to cite Fischer as an additional party in each appeal.   On November 16, 2009, the plaintiffs served process upon Fischer.   Although Fischer was served more than fifteen days following the publication of the board's decision, as stated in the preceding paragraph, failure to serve parties other than the board within the statutory time frame does not deprive the court of jurisdiction over an appeal from the decision of a local zoning board.   Accordingly, the court finds that the proper parties were each served in a timely fashion.

IV

LEGAL STANDARD OF REVIEW

In reviewing a decision of a local zoning board, “[t]he Superior Court's scope of review is limited to determining only whether the board's actions were unreasonable, arbitrary or illegal.”  R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).   To be clear, “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).

“[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.)   Id., 294–95.   On the other hand, “[a] commission's failure to state on the record the reasons for its actions ․ renders appellate review more cumbersome, in that the trial court must search the entire record to find a basis for the commission's decision ․” (Internal quotation marks omitted.)   Graff v. Zoning Board of Appeals, 277 Conn. 645, 670, 894 A.2d 285 (2006).

“The burden of proof to demonstrate that the board acted improperly is on the plaintiffs.”  (Internal quotation marks omitted.)  Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995).

In the present case, although individual members of the board opined as to both the relevant characteristics of the subject property and the nature of the proposed variances, the board never rendered a formal, official, collective statement articulating the rationale for its decision.   ROR, Items 46 and 47.   Accordingly, the court must review the entire record to determine whether the board's actions were unreasonable, arbitrary or illegal.

V

DISCUSSION

As previously stated, the plaintiffs have raised the following arguments in support of their appeals:  (1) the record contains insufficient evidence of hardship to support the board's decision to grant the underlying variances;  (2) the variances substantially affect West Haven's comprehensive zoning plan;  (3) the claimed hardship is self-created;  and (4) Fischer's failure to request a variance from § 82.3 is fatal to his variance application.

A

Hardship

The court will first examine whether the record contains sufficient evidence of hardship to support the board's decision to grant the underlying variances.   The plaintiffs argue that hardship was not shown, since the proposed additions may be placed elsewhere on the subject property to comply with the relevant zoning regulations.   In response, the defendants argue that the narrow shape of the subject property, as well as the presence of a utility easement on the water side of the property, reasonably support the board's finding of hardship.

“A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town.”  Bloom v. Zoning Board of Appeals, supra, 233 Conn. 206.  General Statutes § 8–6(a) empowers local zoning board of appeals “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 ․”

“Accordingly, our Supreme Court has interpreted [§ 8–6(a) ] 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.)  Morikawa v. Zoning Board of Appeals, 126 Conn.App. 400, 408, 11 A.3d 735 (2011).

“It is well established that [p]roof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance ․ Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship ․ Additionally, [our Appellate Court has] stated that [p]ersonal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance ․ [T]he basic zoning principle that zoning regulations must directly affect land, not the owners of land ․ limits the ability of zoning boards to act for personal rather than principled reasons, particularly in the context of variances ․ [T]he hardship must be different in kind from that generally affecting properties in the same zoning district, and must arise from circumstances or conditions beyond the control of the property owner.”  (Citations omitted;  internal quotation marks omitted.)  Durkin Village Plainville, LLC v. Zoning Board of Appeals, 107 Conn.App. 861, 869–70, 946 A.2d 916 (2008).

In reviewing the actions of local zoning boards, our courts have held that hardship may arise from the unique size and configuration of a lot.   For instance, in Stillman v. Zoning Board of Appeals, 25 Conn.App. 631, 632–33, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991), the applicant sought a variance from both the coverage and setback requirements to make renovations to her house, including the addition of both a bathroom and laundry room to the first floor.   The court held that hardship arose from the location of several legally nonconforming improvements on the property, including a well and septic system, which prevented the applicant from building an addition anywhere except within the setback.  Id., 636–37.   The court further observed that the claimed hardship was not personal to the applicant, since the unique conditions on the subject property would exist no matter who owned the lot.  Id., 637.

More recently, in Ross v. Zoning Board of Appeals, Superior Court, judicial district of Danbury, Docket No. CV 04 4000655 (May 20, 2005, Bellis, J.), the applicants were granted a variance to construct a second story addition to their home within a side yard setback.   As in Stillman, the court held that the unique shape of the subject lot and the location of an existing well and septic tank supported the board's finding of hardship because the proposed addition could only be placed within the setback.  Id. The court further observed that the location of the well and septic tank did not constitute a personal hardship, because the claimed hardship would exist no matter who owned the property.  Id.

In the present case, the unusually narrow shape of the subject property and the presence of Old King's Highway on the water side of the property support the board's finding of hardship.   The subject lot is merely 10,400 square feet, which is approximately sixty percent of the minimum area for properties located within the R–2 district.   West Haven Zoning Regulations § 11, Table 11.1;  ROR, Item 9. After accounting for side yard setbacks, the buildable area is merely twenty feet wide.  Id. Therefore, absent a variance, the property could hardly be put to any conforming use.   This conclusion is further buttressed by the April 15, 2009 hearing before the board, where Fischer's counsel repeatedly represented that hardship arose from “[b]oth the shape of the lot, the size of the lot and its configuration relevant to things like the now infamous King's Highway, the paper road that runs along the water ․” ROR, Item 45, p. 1;  see also id., p. 10.   Although other properties on Ocean Avenue are similarly undersized and thus similarly impacted by the zoning regulations, these particular conditions are unique to properties that border this section of the Long Island Sound, and not the remaining lots that occupy the sprawling R–2 district.   See, e.g., Smith v. Zoning Board of Appeals, 174 Conn. 323, 327, 387 A.2d 542 (1978) (observing that “the hardship must be different in kind from that generally affecting properties in the same zoning district” [emphasis added] ).   Accordingly, the record substantially supports the board's finding of hardship.

B

Comprehensive Zoning Plan

Having determined that the record supports the board's finding of hardship, the court will now examine whether the variances substantially effect West Haven's comprehensive zoning plan.

On this issue, the plaintiffs argue that the proposed structure is too large for the subject property and is out-of-character for the neighborhood.   In response, the defendants argue that Fischer's application merely seeks to make an appropriate use of his single-family residence by increasing the size of his living area and providing a structure to house his motor vehicles.

As previously stated, a variance must not substantially affect the comprehensive zoning plan.  Morikawa v. Zoning Board of Appeals, supra, 126 Conn.App. 408.  “The comprehensive plan is found in the zoning regulations themselves.”  Pike v. Zoning Board of Appeals, 31 Conn.App. 270, 277, 624 A.2d 909 (1993).

Article I, Section 1.2 of the West Haven Zoning Regulations provides that the regulations were adopted to:  promote the health, safety, morals and general welfare of the community;  lessen congestion in the streets;  prevent overcrowding of land and avoid undue concentration of population;  facilitate adequate provisions of transportation, water, sewerage, schools, parks and other public requirements;  conserve the value of buildings and encourage the most appropriate use of the land throughout the city;  provide for public health, comfort and general welfare in living and working conditions;  regulate and restrict the location of trades and industries and the location of buildings designed for specified uses;  regulate and limit the height and bulk of buildings hereafter erected;  provide aesthetic standards for new buildings and dwellings to be built in the city of West Haven;  regulate and determine the area of yards, courts and other open spaces;  regulate and restrict the locations of trades and industries;  regulate the location of buildings designed for specific uses within the city;  and divide the city into use categories commonly known as zoning districts or zones.

In furtherance of this general purpose, the regulations governing single-family residential districts were enacted “[t]o provide a traditional development form for developed areas of West Haven.”   West Haven Zoning Regulations § 11.1. The express intent of the relevant regulations is “[t]o protect single family areas and to maintain a balanced community of sound residential areas of diverse types [and to] develop density similar to surrounding areas in a form that encourages ownership and occupancy.”   West Haven Zoning Regulations § 11.2.

In the present case, the record does not support the plaintiffs' argument that the underlying variances will substantially impact the comprehensive zoning plan.   Both the proposed additional living area and attached garage are in accord with the residential use articulated in the regulations for properties located within the R–2 district, and are consistent with the surrounding properties on Ocean Avenue.   ROR, Items 9–22.   As stated during the April 19, 2009 hearing before the board, detached garages are permitted as of right within the R–2 district, and may be placed as close as four feet from the property line.   ROR Item 45, pp. 1–4.   In an attempt to minimize any effect by the variances on the comprehensive zoning plan, however, Fischer proposed an attached garage that would be five feet from the property line.  Id. Moreover, to further minimize any impact on the plan, the board placed conditions upon the variances, directing that:  the space above the garage shall be unlivable space and used for storage only or unused;  there shall be no further construction of the lower deck out any further than it is presently;  the proposed upper deck shall be no longer than six feet going towards the water;  and the proposed upper deck shall be cantilevered.   ROR, Item 47.   Accordingly, the underlying variances are consistent with the general purpose and intent of the zoning regulations, and will not substantially impact the comprehensive zoning plan.

C

Self–Created Hardship

The court will next examine whether the claimed hardship is self-created.   On this issue, the plaintiffs argue that, because the existing dwelling was built within the front yard setback on the water side of the property by way of a previous variance,⁷ any hardship arising from an attempt to further expand into this setback is self-created.⁸  In response, the defendants argue that this is not a case of self-created hardship because none of the factors that establish hardship here were “created” by Fischer.

A hardship that is self-created is never a proper ground for a variance.   Sydoriak v. Zoning Board of Appeals, 90 Conn.App. 649, 659–60, 879 A.2d 494 (2005).  “In a typical self-created hardship case, the landowner unilaterally engages in activity that violates the zoning ordinances and then on his own, or when charged with a zoning violation, seeks a variance.”  (Internal quotation marks omitted.)   O'Neill v. Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. CV 417142 (March 11, 1999, Blue, J.) (24 Conn. L. Rptr. 176, 177) (collecting cases).   To illustrate, in Morikawa v. Zoning Board of Appeals, supra, 126 Conn.App. 402–03, the applicants were denied a variance after they accidentally constructed a house that exceeded the thirty-five-foot height limitation for single-family homes located within the relevant zoning district.   In holding that the claimed hardship was self-created, the court observed that the supposed hardship—the construction of a house that exceeds the height limitation—arose exclusively from the error of those employed by the applicant.  Id., 411–12.   Similarly, in Pollard v. Zoning Board of Appeals, 186 Conn. 32, 40–43, 438 A.2d 1186 (1982), the court held that the claimed hardship was self-created where a house was constructed too close to a property boundary because of an error by a surveyor hired for the benefit of the applicants.

The present case is readily distinguishable from cases like Morikawa and Pollard because Fischer properly applied for a variance prior to commencing construction on the subject property.   To be clear, since the board was not faced with a situation where the applicant previously violated the zoning ordinances prior to seeking a variance, the self-created hardship rule is not applicable.   As the defendants correctly assert, none of the characteristics that establish hardship here—including the narrow shape of the lot and the presence of a utility easement—were created by Fischer.   These irregularities would exist no matter who owned the property.   Moreover, the plaintiffs' contention that the existence of the previous variance is somehow equivalent to a self-created hardship is not supported by our case law.   Accordingly, the self-created hardship rule is simply not relevant to the present case.

D

West Haven Zoning Regulations § 82.3

Lastly, the court will briefly examine the relevance of § 82.3. On this issue, the plaintiffs argue that Fischer's failure to apply for a variance from § 82.3 is fatal to his variance application.⁹  In response, the defendants argue that the purpose of § 82.3 is not to restrict the variance powers, but to articulate the circumstances where a property owner does not need a variance in the first place.   The plaintiffs' argument is without merit for two reasons.

First, the plaintiffs have misinterpreted the purpose of § 82.3. Section 82.3, which pertains to pre-existing nonconforming uses, sets forth a method by which a property owner can use property in a manner not permitted under the zoning regulations, in addition to obtaining a variance.   Put differently, § 82.3 is completely unrelated to the variance power, which is an entirely separate vehicle by which a property owner may seek relief from the zoning regulations.   Plainly, “a nonconforming use is merely an existing use established prior to zoning regulations the continuance of which is authorized by statute or by the zoning regulations.   It is not the same as an illegal use or a use allowed by a variance.   A variance is authority granted to the owner to use his property in a manner forbidden by the zoning regulations.”   R. Fuller, 9B Connecticut Practice Series:  Land Use Law and Practice (2007) § 52.1, p. 202.   Accordingly, in the present case, Fischer was not required—and indeed would not be able—to obtain a variance from § 82.3.

Second, whether Fischer should have obtained additional variances is outside the scope of this court's review.  “In an administrative appeal from a municipal land use agency, generally the only relief that can be requested is for the appeal to be sustained ․ A request for a declaratory judgment or an injunction cannot be made part of an administrative appeal.”   R. Fuller, 9A Connecticut Practice Series:  Land Use Law and Practice (2007) § 35.1, p. 317.   Accordingly, as this is an appeal from a decision of the board, this court's review is limited to whether the record reasonably supports the actions taken by the board.   In that vein, whether Fischer should have applied for additional variances is not before the court.

VI

CONCLUSION

For the foregoing reasons, the board's decision to grant the underlying variances was not unreasonable, arbitrary or illegal.   Accordingly, the appeals are dismissed.

Frechette, J.

FOOTNOTES

FN1. Additional arguments raised by the plaintiffs are discussed below, as necessary..  FN1. Additional arguments raised by the plaintiffs are discussed below, as necessary.

FN2. West Haven Zoning Regulations § 82.3 provides, in relevant part:  “Residential.   For the purposes of this section, it shall not be considered an increase in the degree of noncompliance if construction is requested, herein above, within the required setbacks or yards, provided that each of the following is met:  [1.] New construction is no closer to the property line than the existing building line;  [2.] The existing yard is at least 50% of the required set-back;  [3.] Length of that part of the building which is within the yard is less than 30% of the length of the adjacent boundary line;  [and 4.] In the case where an addition is requested that would increase the height of a structure that is within a required yard setback, the height may only be increased in proportion of one foot in height to every foot in distance between the requested expansion and the existing structure on the adjacent lot or its required yard, whichever is closer.   Failure to meet each of these requirements shall be considered an increase in the noncompliance and therefore shall not be permitted.”.  FN2. West Haven Zoning Regulations § 82.3 provides, in relevant part:  “Residential.   For the purposes of this section, it shall not be considered an increase in the degree of noncompliance if construction is requested, herein above, within the required setbacks or yards, provided that each of the following is met:  [1.] New construction is no closer to the property line than the existing building line;  [2.] The existing yard is at least 50% of the required set-back;  [3.] Length of that part of the building which is within the yard is less than 30% of the length of the adjacent boundary line;  [and 4.] In the case where an addition is requested that would increase the height of a structure that is within a required yard setback, the height may only be increased in proportion of one foot in height to every foot in distance between the requested expansion and the existing structure on the adjacent lot or its required yard, whichever is closer.   Failure to meet each of these requirements shall be considered an increase in the noncompliance and therefore shall not be permitted.”

FN3. The dwelling and attached deck were both constructed within the then-existing front yard setback on the water side of the property.   However, both encroaching structures are legally nonconforming by way of a 1992 variance, which was granted to the prior owner of the subject property, Andrew Iadaresta..  FN3. The dwelling and attached deck were both constructed within the then-existing front yard setback on the water side of the property.   However, both encroaching structures are legally nonconforming by way of a 1992 variance, which was granted to the prior owner of the subject property, Andrew Iadaresta.

FN4. The plaintiffs argue that the March 13, 2009 variance application failed to identify the scope of the requested variances, and that therefore the board should have rejected Fischer's application.   This argument is without merit for two reasons.   First, the plaintiffs waived their claims as to the adequacy of the legal notice when they attended the April 15, 2009 hearing.   R. Fuller, 9 Connecticut Practice Series:  Land Use Law and Practice (2007) § 17.1, pp. 521–22.   Indeed, during the hearing, the plaintiffs were each represented by counsel and testified at great length regarding the requested variances.   ROR, Item 45.   Second, the text of the application reasonably describes the requested relief.   ROR, Item 1..  FN4. The plaintiffs argue that the March 13, 2009 variance application failed to identify the scope of the requested variances, and that therefore the board should have rejected Fischer's application.   This argument is without merit for two reasons.   First, the plaintiffs waived their claims as to the adequacy of the legal notice when they attended the April 15, 2009 hearing.   R. Fuller, 9 Connecticut Practice Series:  Land Use Law and Practice (2007) § 17.1, pp. 521–22.   Indeed, during the hearing, the plaintiffs were each represented by counsel and testified at great length regarding the requested variances.   ROR, Item 45.   Second, the text of the application reasonably describes the requested relief.   ROR, Item 1.

FN5. The board's certificate of decision provides, in relevant part:Subject:  Application for Variances of Article 2 Section 11 and Table 11.1 to reduce the side yard setback to 5.9 feet where 15 feet is required for the Easterly side, and to permit lot coverage of 48% where 35% is permitted to create an addition and an attached parking garage to an existing single family residence in an R–2 (Single Family Residence) zone.* * *Action:  Approved with the following conditions:1.  The space above the garage shall be unlivable space and used for storage only or unused.2. There shall be no further construction of the lower deck out any further than it is prFC22⌑3.  The upper deck shall be no larger than 6 feet going towards the water.4. The upper deck shall be cantilevered..  FN5. The board's certificate of decision provides, in relevant part:Subject:  Application for Variances of Article 2 Section 11 and Table 11.1 to reduce the side yard setback to 5.9 feet where 15 feet is required for the Easterly side, and to permit lot coverage of 48% where 35% is permitted to create an addition and an attached parking garage to an existing single family residence in an R–2 (Single Family Residence) zone.* * *Action:  Approved with the following conditions:1.  The space above the garage shall be unlivable space and used for storage only or unused.2. There shall be no further construction of the lower deck out any further than it is prFC22⌑3.  The upper deck shall be no larger than 6 feet going towards the water.4. The upper deck shall be cantilevered.

FN6. The plaintiffs argue that the certificate of decision “is incorrect in that it does not accurately reflect the relief provided” and that the certificate “is silent as to the [water side] variance and it is difficult to discern the board's conclusion ․” However, the plain text of the certificate of decision provides that the requested variances were “[a]pproved with the following conditions.”   ROR, Item 47.   Although the subject heading only refers to two components of the requested relief, after reviewing the deliberations of the board;  ROR, Item 46;  it is clear that this heading is for reference purposes only.   Moreover, limiting the board's decision to the two variances articulated in the subject heading would render three of the required conditions meaningless.   Accordingly, the only reasonable interpretation of the certificate of decision is that the board granted the six variances articulated at the April 15, 2009 hearing, subject to conditions..  FN6. The plaintiffs argue that the certificate of decision “is incorrect in that it does not accurately reflect the relief provided” and that the certificate “is silent as to the [water side] variance and it is difficult to discern the board's conclusion ․” However, the plain text of the certificate of decision provides that the requested variances were “[a]pproved with the following conditions.”   ROR, Item 47.   Although the subject heading only refers to two components of the requested relief, after reviewing the deliberations of the board;  ROR, Item 46;  it is clear that this heading is for reference purposes only.   Moreover, limiting the board's decision to the two variances articulated in the subject heading would render three of the required conditions meaningless.   Accordingly, the only reasonable interpretation of the certificate of decision is that the board granted the six variances articulated at the April 15, 2009 hearing, subject to conditions.

FN7. See footnote 3..  FN7. See footnote 3.

FN8. In a related argument, the plaintiffs contend that the board's finding of hardship was somehow improper because the board was supposedly unaware of the previous variance.   This argument merits little discussion, since evidence of the previous variance was included in the record.   ROR, Item 11.   Moreover, in reviewing the decisions of local zoning boards, factual and discretionary determinations made by a board are given considerable weight by our courts.   See, e.g., Rural Water Co. v. Zoning Board of Appeals, supra, 287 Conn. 294..  FN8. In a related argument, the plaintiffs contend that the board's finding of hardship was somehow improper because the board was supposedly unaware of the previous variance.   This argument merits little discussion, since evidence of the previous variance was included in the record.   ROR, Item 11.   Moreover, in reviewing the decisions of local zoning boards, factual and discretionary determinations made by a board are given considerable weight by our courts.   See, e.g., Rural Water Co. v. Zoning Board of Appeals, supra, 287 Conn. 294.

FN9. In addition, the plaintiffs previously argued that § 82.3 categorically precluded Fischer from obtaining the instant variances.   However, this argument was later withdrawn..  FN9. In addition, the plaintiffs previously argued that § 82.3 categorically precluded Fischer from obtaining the instant variances.   However, this argument was later withdrawn.

Frechette, Matthew E., J.