David Ferace et al. v. Town of Waterford Zoning Board of Appeals et al. (2013)

MEMORANDUM OF DECISION

I.

Statement of the Appeal

This is an appeal by David Ferace and Paul Smyth (“hereinafter plaintiffs”) from a decision of the Zoning Board of Appeals of the Town of Waterford (“hereinafter Board”) to deny a request for a variance from the strict application of the zoning regulations of the Town of Waterford.   Plaintiffs have also alleged that the denial of the variance constituted an unjust confiscatory taking of the property of plaintiff, David Ferace.   Thirty Strand, LLC, Ann Crampton Cottage Trust, Judith B. Durbois and Francis Pavetti filed verified petitions to intervene under the provisions of Connecticut General Statutes § 22a–19(a) and have been joined as defendants in this action.

II.

Jurisdiction

General Statutes § 8–8(b) governs appeals from the decision of zoning boards of appeals to the Superior Court.  “The statutory right of appeal may be taken advantage of only by strict compliance of the statutory provisions by which it is created.”  (Internal quotation marks omitted) Cardoza v. Zoning Commission, 211 Conn. 78, 82 (1989).

a.

Timeliness and Service of Process

Pursuant to General Statutes § 8–8(b) “an appeal shall be commenced by service of process in accordance with subsections (f) and (g) and § 52–57(b)(5) within 15 days of the date that notice of the decision was published as required by the General Statutes ․” Notice of the decision of the Board was published in the New London Day on July 21, 2011.   This appeal was commenced by service of process on the required parties on July 26, 2011.

It is found that service of process was properly commenced within the time allowed by statute.

b.

“[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of a plaintiff's appeal ․ [I]n order to have standing to bring an administrative appeal, a person must be aggrieved.”   (Citation omitted;  internal quotation marks omitted.)  Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 664, 899 A.2d 26 (2006).   “Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it.”  Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 538–39, 833 A.2d 883 (2003).   A plaintiff may prove aggrievement by testimony at the time of trial;  Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991);  or “by the production of the original documents or certified copies from the record.”  (Internal quotation marks omitted.)  Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 703, 780 A.2d 1 (2001).

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

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

Evidence indicates that the plaintiff David Ferace is now and, at all times relevant to these proceedings, has been the owner of the property which is the subject of this appeal and the plaintiff Paul Smyth was the applicant for variance which is the subject of this appeal.   It is, therefore, found that both plaintiffs are aggrieved and have standing to prosecute this appeal.

III

Scope of Review

In considering the issues raised in this appeal, the scope of judicial review is limited.  Horn v. Zoning Board of Appeals, 18 Conn.App. 674, 676 (1989).   The authority of the court is limited by § 8–8 to a review of the proceedings before the Board.   The function of the court in such a review is to determine whether the Board acted fairly or on valid reasons with the proper motives.  Willard v. Zoning Board of Appeals, 152 Conn. 247, 248–49 (1964).   The court is limited to determining whether the record reasonably supports the decisions resulting from the Board's action.  Burnham v. Planning and Zoning Commission, 189 Conn. 261, 265 (1983).   The court cannot substitute its discretion for the liberal discretion confirmed by the legislature on the Board.   The court is limited to granting relief only when it can be shown that the Board acted arbitrarily or illegally and consequently has abused its authority.  Gordon v. Zoning Board, 145 Conn. 597, 604 (1958).   The burden rests with the plaintiffs to prove the impropriety of the Board's actions.   Burnham, supra, 189 Conn. 266.

It is not the function of the court to rehear the matter.   The court is limited to determining whether or not the Board's action can be supported under the law.

The plaintiffs have the burden of proving that the defendant Board acted improperly.  Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1998).

Plaintiffs have appealed from the action of the Board in denying plaintiffs' application for a variance.   A variance constitutes permission for a party to use their property in a manner otherwise prohibited by the zoning regulations.   For this reason, the granting of a variance is generally reserved for unusual or exceptional circumstances.  Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995).

The Board derives its authority to vary the application of the zoning regulations from the provisions of General Statutes §§ 8–6(a)(3) and 27.2.3 of the Waterford Zoning Regulations.

Variances are, in a sense, the “antitheses of zoning.”   Zoning is regulation by the municipality of the use of land within the community, and the buildings and structures which may be located thereon, in accordance with a general plan.   The General Statutes authorize such regulation of land and the use of buildings.   Such regulations, however, must be applied uniformly throughout each district.   A variance disrupts the conformity and constitutes permission to act in a manner that is otherwise prohibited by the zoning regulations.   Simko v. Ervin, 234 Conn. 498, 505–06 (1995).

The two basic conditions which must be met for the granting of a variance are (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.  Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368 (1988).

An applicant for a variance must show that, because of some peculiar characteristic of its property, the strict application of the zoning regulation produces an unusual hardship as opposed to the general import which the regulations has on other properties in the zone.  Dolan v. Zoning Board of Appeals, 156 Conn. 426, 430 (1968).

When a disadvantageous situation arises from a voluntary act on the part of the applicant, it cannot be considered a hardship and the board does not have authority to grant a variance.  Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39 (1982).   The board is under no duty to extricate an applicant from a self-created hardship.  Pollard v. Zoning Board of Appeals, supra, 44.   Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship.  Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662 (1965).

“When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting (the Board's) decision ․ Rather, the court should determine only whether the assigned grounds are originally 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.)  Harris v. Zoning Commission, 259 Conn. 402, 420 (2002).

IV.

Factual Background

On February 4, 2011, plaintiff Paul Smyth filed with the Board an application for a variance for property owned by plaintiff David Ferace.   The property was located at 29 Strand Road and was in the R–40 zone.   The R–40 zone requires 40,000 square feet of lot area.   The application sought to reduce the requirements of § 5.4, minimum setback, 5.41 front yard and 5.4.2 side yard.

The hardship stated on the application was:  “the property is a pre-existing nonconforming use and requires a variance to comply with current regulations to permit a reasonable buildable area.   See Section 10 of the Regulations.”

The property was a legally nonconforming lot 12.585 square feet in area and was bounded on the north by Strand Road, on the west by a pedestrian walkway, on the south by the waters of Long Island Sound and on the east by residential property.

The property was within the Coastal Area Management (CAM) boundary and a CAM application and report were submitted with the variance application.

The CAM application stated that the applicants proposed to construct a two-floor single-family house, 864 square feet in area, with municipal water and on-site sewage disposal on the property.

The Board officially received the application at its meeting of March 3, 2011 and scheduled the matter for a public hearing on April 7, 2011.

Based upon a recommendation of the State Department of Environmental Protection that the proposed structure be located as far landward as possible, plaintiffs filed a revised application on March 11, 2012.   The revised application sought a variance of § 5.4 for a front yard variance of 45 feet.   The application as presented, requested a variance of the minimum setback requirement of 50 feet to 5 feet and a variance of the minimum side yard requirement from 25 feet to 10.5 feet.

The public hearing was opened on April 7, 2011.   The public hearing was continued to May 7, 2011 and to June 9, 2011.   At the public hearings, plaintiff, David Ferace, and members of his family spoke.   Plaintiff's attorney and the attorney representing the intervenors spoke.   Expert witnesses testified and other witnesses and interested parties spoke.   Exhibits were entered into evidence with the Board.

At a special meeting of the Board held June 9, 2011, plaintiffs' application was discussed.   After the discussion, the Board voted to deny the application without prejudice.   The Board stated as reasons for the action as follow:

SECTION 25.2.1:

REASON:  The Board is not convinced that the applicant's proposal meets with the requirements 25.2.1 more specifically the septic is within 50 feet of the Waterbody.   The proposed conduct is reasonably likely to pollute, impair and destroy to whatever degree the natural resources which would require us to the denial of the application without prejudice.

VARIANCE REQUESTED

REASON:  The plan does not comply as filed with regulation 25.2.1 and does not completely address the amount of relief requested and the proposal is not the minimum necessary to allow a reasonable use of the property.

COASTAL AREA MANAGEMENT

REASON:  The Coastal Area Management application is denied as incomplete as it does not fully address the statutory criteria to allow the Board to make its statutory determination that the potential impacts to the coastal resources on the site have been adequately mitigated.

Plaintiff were duly notified and this appeal followed.

Additional facts will be stated as necessary.

V.

Analysis

The parties, including the intervenors, have filed briefs.   Supplemental briefs concerning compliance with § 25.2.1 of the regulations were filed.   Any issue not properly briefed will be considered abandoned.  Cybulski v. Planning & Zoning Commission, 43 Conn.App. 105, 9 n.3 (1996).

The following issues are presented and must be considered by the court.

1. Did the Board deny the variance application after plaintiffs demonstrated an existing legal hardship?

2. Is the plaintiffs' application in compliance with § 25.2.1 of the regulations?

3. Did the denial of the plaintiff's application for a variance constitute a taking of the land?

4. Can it be found that the Board abused its discretion in denying the plaintiffs' Coastal Area Management application?

5. Did the Board fail to make an adequate finding of unreasonable impact under the Connecticut Environmental Protection Act and fail to consider reasonable and prudent alternatives to a denial once it made its improper finding?

1.

The plaintiffs claim that the Board denied their request for a variance even though they had established the existence of an unusual hardship.   The existence of the unusual hardship unnecessary to carrying out the general purpose of the zoning plan is a prerequisite to the granting of a variance.   Grillo v. Zoning Board of Appeals, supra, 206 Conn. 368.

Where, as here, the Board has stated the reasons for its actions in denying the variance, the court should not reach beyond the stated reasons.   The court is limited to a consideration as to whether the stated reason is supported by the record and is pertinent to the issue.  Harris v. Zoning Commission, supra, 259 Conn. 420.   In the case at bar, the reasons given by the Board do not include a specific finding concerning hardship.   From the reasons cited, however, it may be implied that the Board did not find that the plaintiffs had proven a valid hardship.   The parties have addressed the issue in their briefs.   It must then be found that the hardship issue is properly before the court.

The plaintiffs' claim of hardship arises out of the situation where plaintiffs' property is a very small lot legally nonconforming in area.   The building contemplated by plaintiffs could not be erected without a variance because of the current setback and side yard requirements in the R–40 zone.

Unfortunately for plaintiffs, disappointment in the use of one's property does not constitute exceptional difficulty or unusual hardship.  Krejpcio v. Zoning Board of Appeals, supra, 152 Conn. 662.   Plaintiffs desire to construct a house with a 864 square footprint with a lower deck and a small upper deck.   The total living area for the two floors would be about 1,700 square feet.   The proposed two-story residential structure on the lot would require substantial variances from the setback and side yard requirements in the zone.   For example, the front yard setback requested would be from the required 50 feet to 5 feet.

There was ample evidence in the record that reasonable alternative proposals for the use of the property existed.   A smaller footprint would reduce the extent of the variance required.   The finding of the Board that “the proposal is not the minimum necessary to allow a reasonable use of the property” is supported by substantial evidence in the record.

Plaintiffs have failed to prove the existence of an unusual hardship.

2.

There is an issue as to whether or not plaintiffs' proposal complies with § 25.2.1 of the zoning regulations.   The reasons stated by the Board for not approving plaintiffs' application specifically address this issue.   The Board stated “the Board is not convinced that the applicants' proposal meets with the requirements of § 25.2.1, more specifically, the septic is within 50 feet of the Waterbody.”   In denying the variance request, the Board stated “the plan does not comply as filed with Regulation 25.2.1.”  Section 25.2.1 provides that “no part of any subsurface sewage disposal system shall be located within 50 feet of any waterbody, watercourse or wet land.”

Compliance with § 25.2.1 is essential to the plaintiffs' proposal.   If this section is not complied with, plaintiffs cannot proceed with the project although an additional variance could be requested.  Section 25.2.1 is a part of the zoning regulations which make up the comprehensive zoning plan.   One of the basic considerations for the granting of a variance is that the variance should not effect substantially the comprehensive zoning plan.   Grillo v. Zoning Board of Appeals, supra, 206 Conn. 368.   A reason stated by the Board for denying the variance application was noncompliance with this section.

It was the plaintiffs' position before the Board that the on site sewage disposal system, included as a part of plaintiffs' proposal, was in compliance with § 25.2.1 in that it was over 50 feet from any waterbody.   The waterbody here would be Long Island Sound.   Plaintiffs have relied on the assistance from the proposed disposal system to the high water mark based upon a nineteen-year cycle.

During the public hearing it was stated by the intervenors that wrack line, and not the mean high tide line, should be the boundary of the waterbody in determining compliance with § 25.2.1. A wrack line is “a line of debris indicating where the water level intersects with the land.”  Sams v. Department of Environmental Protection, 308 Conn. 359, 370 (2013).

Counsel for the Board submitted to the Board a memorandum dated July 14, 2011, concerning plaintiffs' compliance with § 25.2.1. The memorandum stated that the wrack line could be used by the Board to determine the location of the waterbody.   The attorney pointed out to the Board that testimony at the public hearing indicated that the proposed septic system would be less than 50 feet from the wrack line indicating the boundary of the waterbody, Long Island Sound.   It is obvious from the record, that the Board considered the wrack line to be the boundary line of the waterbody and that the Board concluded that plaintiffs' proposed septic system was not in compliance with § 25.2.1.

Although in the reasons cited for its decision, the Board stressed noncompliance with § 25.2.1 plaintiffs did not address this issue in their brief.   Supplemental briefs were filed, however, in response to issues raised by the recent case of Sams v. Department of Environmental Protection, supra, 308 Conn. 359.   In its supplemental briefs, plaintiffs argued that the Sams case does not hold that the wrack line establishes the shoreline.   Plaintiffs also state that if the Board is correct in using the wrack line as the shoreline, they could seek an additional variance from the provisions of § 25.1.2.1.

In their interpretation of the Sams case, plaintiffs are correct in that the court did not hold that the wrack line established the shoreline.   In the Sams case, the court decided that, unlike the case at bar, the exact location of the high tide line need not be established.   However, from the Sams case and Shanahan v. Department of Environmental Protection, 305 Conn. 681 (2012), it must be concluded that it would not be error for the Board to use the wrack line to establish the boundary of the waterbody in determining compliance with § 25.2.1.

It must then be found that the Board did not abuse its discretion in concluding that plaintiffs' application did not comply with the provisions of § 25.2.1.

3.

Plaintiffs contend that the Board's denial of their variance application constituted a taking of plaintiff, Ferace's, land.   They argue that if the decision of the variance application is upheld, the town must purchase the property.   Plaintiffs cite as authority for this claim Cumberland Farms, Inc. v. Town of Groton, 247 Conn. 196.   In this matter, after a variance had been denied, Cumberland Farms instituted an independent inverse condemnation action against the town alleging an unconstitutional taking of its property.   The action was dismissed by the trial court as premature.   The decision of the trial court was upheld by the Appellate Court but reversed by the Supreme Court.   The case was decided strictly on procedural grounds.   The issue as to whether or not the denial of the variance constituted an unconstitutional taking of the Cumberland Farms property was not considered either at the trial level or on appeal.   It is, however, well-established that a plaintiff who has been denied a variance may bring an inverse condemnation action in the Superior Court, where the court hears evidence, finds facts and determines whether the action of the Zoning Board of Appeals amounts to a practical confiscation.   Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 63 (2002).   Notwithstanding this, a “plaintiff is not entitled to judicial review of the merits of his regulatory taking claim until he has met the requirement establishing the finality of the agency determination.”  Francini v. Zoning Board of Appeals, 228 Conn. 785, 792 (1994).   Plaintiff must establish that the Board will not allow any reasonable use of the property.  Id.

Here, plaintiffs have failed to prove that the denial of the variance requested constituted a final action which permanently resulted in the denial of a reasonable use of plaintiffs' property.   A request was made to vary the application of the zoning regulations to enable plaintiffs to construct a particular size house at a particular location on the lot.   This variance was denied by the Board “without prejudice.”   There is nothing to indicate that the action of the Board has resulted in a final determination which permanently restricts the reasonable use of plaintiffs' lot.

4.

The property for which the variance was requested being within the coastal area management boundary, plaintiffs submitted a CAM Application together with the variance requirement.   The Board denied the CAM Application citing as its reasons:

The Coastal Area Management application is denied as incomplete as it does not fully address the statutory criteria to allow the Board to make its statutory determination that the potential impacts to the coastal resources on the site have been adequately mitigated.

Plaintiffs have not briefed this issue, therefore, it is concluded that they are not contesting the decision of the Board.  Cybulski v. Planning & Zoning Commission, 43 Conn.App. 105, 9 n.3 (1996).   See also, Bernhard–Thomas Bldg. v. Dunican, 100 Conn.App. 63, 69 n.6 (2007).

5.

Thirty Strand, LLC, Ann Crampton Cottage Trust, Judith B. Durbois and Francis Pavetti all filed verified petitions to intervene under the provisions of the Connecticut Environmental Protection Act. As a consequence of the filing of the petition, the Board was required to consider the factors set forth in Connecticut General Statutes § 22a–19(b).  In their brief the plaintiffs claim that the Board failed to make adequate findings of unreasonable impact as required by the statute and failed to consider reasonable and prudent alternatives to its denial once it made the improper findings.

In view of the decisions on the previous considered issues in this case, it would serve no useful purpose to further consider this claim.

VI.

Conclusion

The plaintiffs have failed to establish the unusual hardship required for the granting of a variance.   The finding by the Board that plaintiffs' proposal fails to meet requirements of § 25.2.1 of the regulations is supported by substantial evidence in the record.   The application is, therefore, not in compliance with the comprehensive zoning plan.

It is not been proven that the denial of plaintiffs' application for a variance constituted a taking of the land in question.

It has not been proven that the Board abused its discretion in denying the plaintiffs' CAM Application.

Accordingly, the appeal from the action of the Board is dismissed.

Joseph J. Purtill, JTR

Purtill, Joseph J., J.T.R.