Niki Whitehead v. East Haven Zoning Board of Appeals et al. (2013)

MEMORANDUM OF DECISION ON ADMINISTRATIVE APPEAL

The plaintiff Niki Whitehead appeals from a decision of the East Haven Zoning Board of Appeals (ZBA) as it relates to certain improvements on abutting property owned by Nancy Anderson on Brown Road in East Haven.   Anderson petitioned the ZBA for a variance to approve 1) a four-by-eight foot connecting structure (walkway) between the existing pier and the existing deck, on the south side of her property near the Whitehead property line, and 2) a garage that had been built some years earlier, the size of which caused the built area to exceed the percentage of lot coverage permitted in the zoning regulations for the zone of the Brown Road properties.   The ZBA held a hearing, after which it voted to approve the variances.   From that decision, the plaintiff has appealed to the Superior Court.  Conn. Gen.Stat. § 8–8.

JURISDICTION UNDER CONN. GEN. STAT. § 8–8

Based upon uncontroverted evidence presented to the court at a hearing held on October 17, 2013, the court finds that the plaintiff Niki Whitehead is the owner of property at 68 Brown Road, East Haven, Connecticut.   The subject property is located at 60 Brown Road. The two properties abut one another.   The court finds that the plaintiff has demonstrated statutory aggrievement, pursuant to Conn. Gen.Stat. § 8–8(a)(1), and has standing to maintain this appeal.   The appeal appears to be timely and no procedural objections have been raised by the defendants.   Accordingly this court finds that it has jurisdiction to consider this appeal.

THE CHARACTERISTICS OF THE PROPERTY

The Anderson lot at 60 Brown Road (the subject property) and the lot of the plaintiff are located on the Farm River, which runs generally on the east side of their properties.   The subject property abuts that of the plaintiff on the north side;  that is, the Whitehead property is south of the subject property.   The subject property has sixty-six feet of river frontage, some of which is protected by a masonry retaining wall and some of which consists of tidal wetlands.

The subject property is in an R–3 zone, which requires a minimum lot size of 20,000 square feet.   The subject lot has an area of 14,350 square feet.   This is so because the properties in that area of East Haven were subdivided into building lots in the 1950s, prior to the institution of town zoning.   Because the subject lot was subdivided and developed before the institution of zoning, it is considered a pre-existing, nonconforming lot.  Conn. Gen.Stat. § 8–2;  East Haven Zoning Regs. (hereinafter “Regs.”) § 44.

The lot has a wood frame house, with a porch and a wooden deck that look out on the river;  a garage;  and a wooden pier into the river.   The house is set right next to the river and spans nearly the entire sixty-six feet of river frontage.   Although the minimum setback requirement in the R–3 zone is 20 feet from adjoining lots, some portion of the house, porch, or wooden deck appear to encroach into this 20–foot setback on the south side.

The lot is long, narrow, and irregularly shaped, as are other such lots in the neighborhood.   There is a garage located between the house and Brown Road, toward the front of the lot.   The lot slopes at the location of the current garage (and a former, dismantled garage).   Also there is rock ledge located at the garage site.

RELEVANT STATUTES AND ZONING REGULATIONS

The subject property is located in an R–3 zone.   The minimum setback requirement for structures from side property lines in an R–3 zone is 20 feet;  and the maximum lot coverage for structures as a percentage of lot area in an R–3 zone is 20%.   Regs. Schedule B.

The intent of the Regulations as to pre-existing nonconformities is “that [they] are not to be expanded, that they should be changed to conformity as quickly as the fair interest of the parties permit, and that the existence of any existing nonconformity shall not in itself be considered ground for the issuance of a variance for any other property.”   Regs. § 44.1.

The Zoning Board of Appeals is empowered to grant variances to the regulations upon proper application.   The Board is permitted to

determine and vary the application of [the zoning 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 [the zoning regulations] would result in exceptional difficulty or unusual hardship, so that substantial justice will be done and the public safety and welfare secured ․

Conn. Gen.Stat. § 8–6(a)(3);  Regs. § 51.2.3.

PREVIOUS ZBA PROCEEDINGS INVOLVING THE SUBJECT PROPERTY 1

The current owner Nancy Anderson purchased the property in 1996.   At the time she purchased the property, the deck area encroached into the south sideline setback area.   Whitehead bought the property at 68 Brown Road in 2000.   In 2002 Anderson applied for a permit and a zoning variance to demolish and reconstruct the garage on the property.   The plan was to site the new garage structure at a slightly different angle on the approximate footprint of the former garage.   This plan required a frontline setback variance, because the new garage would be closer to the street (as had been the former garage) than permitted in an R–3 zone.

At that point Anderson discovered that the previously constructed encroaching deck was not part of a pre-zoning nonconformity but was part of later construction that had been the subject of a Notice of Zoning Violation before either Anderson or Whitehead acquired their properties.   Anderson applied to the ZBA for a variance regarding the south sideline setback on the ground of hardship, which the Board considered at the same time as the garage frontline setback.

The Board granted the sideline setback variance, and granted the frontline setback variance for the garage, though limiting the garage size to 24 feet by 18 feet, somewhat smaller than had been applied for.   Whitehead took an appeal to the Superior Court, addressing the sideline setback variance.

The Superior Court dismissed the appeal.   The court found that Anderson had no knowledge that her predecessor in title created a new or additional nonconformity.   Given that fact and the town's concession that the town had contributed in creating Anderson's hardship by not enforcing or even recording the earlier Notice of Zoning Violation, the court found that the Board acted within its discretion to grant the variance on the ground of hardship.   The court did not separately address the issue of the garage, as it appears that Whitehead did not separately challenge the grant of that variance.   No appeal was taken from the decision of the Superior Court.

THE CURRENT VARIANCE APPLICATION

On June 15, 2012, Anderson applied for a variance.   She requested a variance in the lot coverage requirement and in the side setback requirement to allow for two improvements:  1) the construction of a ramp or set of stairs (walkway) to connect the pier into the Farm River with the existing, non-conforming deck on the south side of the house;  and 2) to approve an already constructed 6–foot extension (platform) along the outside upper level of the garage to allow for access through a set of doors into the upper loft area of the garage structure.   The ZBA held hearings on July 19 and on August 16, 2012.   On August 16, 2012, the Board heard a presentation and received evidence on behalf of Anderson, and also heard and received evidence from Whitehead.

Thereafter, motions were made that the Board approve a variance for the walkway and a variance for the garage, both on the grounds of hardship.   The motions carried unanimously.   The Board did not issue a formal decision or a collective statement of reasons for its decision, only a unanimous vote to grant the variances.

STANDARD OF REVIEW FOR ZONING APPEALS

A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town.   An applicant for a variance must show that, because of some peculiar characteristic of the property, as opposed to the general impact which the regulation has on other properties in the zone, the strict application of the zoning regulation produces an unusual hardship related to the use of the property.  Conn. Gen.Stat. § 8–6(a)(3);  Moon v. Zoning Board of Appeals, 291 Conn. 16, 24, 966 A.2d 722 (2009).

Accordingly, Connecticut's appellate courts have interpreted § 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 substantially affect 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.   Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205–08, 658 A.2d 559 (1995).   Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance.   Id.

On appeal to the Superior Court, the court must consider whether the board gave reasons for its action.   If, as here, the zoning board of appeals does not formally state the reasons for its decision, the trial court must search the record in order to determine whether there is a basis for the board's decision.  Moon and Bloom, supra.

In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, conclusions reached by the Board must be upheld by the trial court if they are reasonably supported by the record.  Rural Water Co. v. Zoning Board of Appeals, 287 Conn. 282, 294–96, 947 A.2d 944 (2008).   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.  Id. If a trial court finds that there is substantial evidence to support a zoning board's findings, the court cannot substitute its judgment for that of the Board;  nor can the reviewing court substitute its judgment as to the weight of the evidence for that of the Board.  Id.

THE WOODEN WALKWAY TO THE PIER

The record before the Board demonstrates that wooden boat piers from the residential lots extending into the Farm River were common since before the institution of zoning in East Haven.   A previous pier existed on the subject property at the time Anderson acquired it.   That pier had been constructed by a prior owner without the necessary state permits.   In 2007, Anderson applied to the Connecticut Department of Environmental Protection (now the DEEP) ² and was granted permission to remove the old wooden pier nearer to the north side of the property and construct and install a new wooden pier structure into the river.   Record, # 31.   Because of the existence of tidal wetlands, consisting of marsh and saltgrass, near the northern boundary of the subject property, the DEEP required that Anderson construct her new dock closer to the southern littoral line, that is, the border with the Whitehead property, to avoid passing over or further disturbing tidal wetlands,³ over which the DEEP has a statutory responsibility.   See Conn. Gen.Stat. § 22a–32, and the statement of legislative findings and intent contained in Conn. Gen.Stat. § 22a–36.

The problem was how to get from the land onto the pier, understanding that because of the existence of tidal wetlands, the DEEP required that the new pier be constructed only ten feet, plus or minus, from the Whitehead property line, thus encroaching on the 20–foot minimum setback.   The obvious, and indeed, the only practical solution was to construct a walkway, as an extension of the pier, onto the land itself to adjoin the existing deck structure.   It is clear from the record that, without such a walkway, there would be no safe or convenient way to gain access to the pier.

The plaintiff suggests that the alternative to a sideline/coverage variance for the walkway would have been for the homeowner to provide an alternate plan or else appeal from the DEEP determination about the location of the new pier.   She also suggests that there was no need for the ZBA to accept or defer to the findings of the DEEP about the location of the new pier so close to her property line.   The plaintiff offers no authority for the proposition that a homeowner must “exhaust” all other agency remedies in such a situation.   And it was not unreasonable for the Board to choose not to pick a fight with the DEEP about which body ought to control pier locations on the Farm River.   Moreover there is evidence in the record from which the ZBA could have reasonably concluded that the DEEP would not have permitted the new pier to be built in an alternate location.   See email in Docket Entry # 107, [Supplemental] Return of Record.

From the record as a whole, it was a reasonable conclusion of the Board that without the construction in the sideline setback of a walkway for access to the state-approved pier, a hardship would exist on the subject property.   Given the character of the neighborhood and the many lots in this R–3 zone that have historically had piers on the river, it was entirely in keeping with the general plan of zoning for the town, and of the R–3 zone in particular, that this variance be granted.

THE GARAGE PLATFORM

The detached garage was constructed pursuant to a frontline setback variance granted by the Board in 2003.⁴  The garage was 24 feet by 18 feet with a loft area.   The lot slopes somewhat steeply with a grade change of 9 feet at that site.

As the new garage was being constructed, the siting of the structure became more challenging because the builders encountered rock ledge where the new foundation was to be placed.   Whitehead indicated she would object to any blasting.   This left the builders with the issue of how to construct a safe exterior access to the upper loft area of the garage if they built the foundation on the approved footprint.   The solution was to construct a six-foot platform and roof overhang along the eastern exterior length of the building to safely permit access to the loft area of the garage through a set of secure doors.   It would appear from the photographs in the Record that, without the platform, the exterior doors from the loft would open onto sloping ground subject to erosion and weather issues.

It was not until some years after the new garage was completed that Anderson applied for a variance from the lot coverage requirement, as the construction of the platform had the effect of raising the lot coverage from 20% to 21.5%. The application for the variance for the garage platform was filed as part of the same application for variance as the walkway.

From the photos of the garage platform, pp. 1, 3, 4 and 5 of Record # 24, and the testimony and evidence from Wally Erickson, a co-resident on the subject property, the Board reasonably could conclude that the slope of the property created a hazard in gaining access to the loft area of the garage unless some kind of construction were in place to create safe footing over what appears otherwise to be a gap between the building and the surrounding grade.   Further the Board heard evidence that the existence of rock ledge made it difficult or impossible to re-site the structure.

From this evidence in the Record—the combination of the narrow, irregular lot shape, the slope of the lot, and the existence of rock ledge—it was not unreasonable for the Board to find a hardship necessitating the construction of the garage platform.   Such a finding of fact based on substantial evidence in the record is within the province of the Board to make.  Rural Water Co. v. ZBA, supra, 294.   As with the walkway variance, the garage platform and overhang do not affect the comprehensive zoning plan or the character of this R–3 zone in any substantial way.⁵

CONCLUSION

The plaintiff has failed to meet her burden of proof to demonstrate that the ZBA acted improperly.   Accordingly the plaintiff's appeal is dismissed.

Patty Jenkins Pittman, J.

FOOTNOTES

FN1. These findings were made by the court (Sequino, J.) in deciding the appeal to Superior Court on the previous sideline and front line variances.   NNH CV13 0478470 Whitehead v. East Haven ZBA, 2004 WL 1462829.   Record, # 33 [37 Conn. L. Rptr. 177]..  FN1. These findings were made by the court (Sequino, J.) in deciding the appeal to Superior Court on the previous sideline and front line variances.   NNH CV13 0478470 Whitehead v. East Haven ZBA, 2004 WL 1462829.   Record, # 33 [37 Conn. L. Rptr. 177].

FN2. The DEEP and not the Town of East Haven regulates the erection of structures in navigable waters and tidal wetlands such as this section of the Farm River in East Haven.  Conn. Gen.Stat. § 22a–32 and § 22a–359..  FN2. The DEEP and not the Town of East Haven regulates the erection of structures in navigable waters and tidal wetlands such as this section of the Farm River in East Haven.  Conn. Gen.Stat. § 22a–32 and § 22a–359.

FN3. The DEEP was quite insistent in its permitting and enforcement process.   In July 2012, after the construction of the initial pier structures, the DEEP performed an inspection and determined that two of the floating structures were still too close to the wetlands area, in violation of the permit.   Record, # 15.   They required Anderson to reconstruct the area and improve a section of seawall, as previously permitted, away from the wetlands within thirty days, or face the potential for a series of rolling fines, a requirement with which Anderson complied in a timely fashion..  FN3. The DEEP was quite insistent in its permitting and enforcement process.   In July 2012, after the construction of the initial pier structures, the DEEP performed an inspection and determined that two of the floating structures were still too close to the wetlands area, in violation of the permit.   Record, # 15.   They required Anderson to reconstruct the area and improve a section of seawall, as previously permitted, away from the wetlands within thirty days, or face the potential for a series of rolling fines, a requirement with which Anderson complied in a timely fashion.

FN4. It appears from the maps submitted as part of the Record that the construction of the new garage had the effect of increasing the distance between the garage and the southerly property line to the required distance of 20 feet, thus decreasing a pre-existing nonconformity at the site of the earlier garage..  FN4. It appears from the maps submitted as part of the Record that the construction of the new garage had the effect of increasing the distance between the garage and the southerly property line to the required distance of 20 feet, thus decreasing a pre-existing nonconformity at the site of the earlier garage.

FN5. Counsel for the board suggests that, after the garage was constructed, in the absence of an intervening application for a lot coverage variance, and without negative action by the zoning enforcement authorities, the additional garage square footage caused by the construction of the platform would be deemed a prior non-conforming use, after more than three years in existence.  Conn. Gen.Stat. § 8–13a(a).   This might indeed be the case, but the court is unable to find any part of the Record that indicates the precise date of completion of the reconstructed garage.   While aware that the briefs of the defendants state that the garage was completed in 2004, these representations in the memoranda of law of counsel cannot substitute for the absence of actual evidence in the record..  FN5. Counsel for the board suggests that, after the garage was constructed, in the absence of an intervening application for a lot coverage variance, and without negative action by the zoning enforcement authorities, the additional garage square footage caused by the construction of the platform would be deemed a prior non-conforming use, after more than three years in existence.  Conn. Gen.Stat. § 8–13a(a).   This might indeed be the case, but the court is unable to find any part of the Record that indicates the precise date of completion of the reconstructed garage.   While aware that the briefs of the defendants state that the garage was completed in 2004, these representations in the memoranda of law of counsel cannot substitute for the absence of actual evidence in the record.

Pittman, Patty Jenkins, J.