MAB v. Zoning Board of Appeals of the City of Bridgeport (2013)

MEMORANDUM OF DECISION

I. INTRODUCTION AND FACTS

The plaintiff MAB Partners (“MAB”) appeals from a decision of the defendant City of Bridgeport Zoning Board of Appeals (“ZBA”) denying its application for a variance on property located at 40 Hillside Avenue in Bridgeport, Connecticut.   This matter was tried to the court on June 11, 2013.   Thereafter, the defendant filed the record with the court on September 2013.   Due to the filing date of the record, the parties agreed to a sixty day extension for the court to render its decision.

II. FACTUAL BACKGROUND

The record reflects that MAB owns property at 40 Hillside Avenue in the city of Bridgeport, Connecticut.   Frederick Divinzenzo and Mike Petrucci operate MAB Partners which purchases and rehabilitates residential property.   At the time MAB purchased the property at 40 Hillside Avenue it was improved with two buildings, a three-family residence (“A Principal Building”) and a one bedroom, handicap accessible dwelling unit located in an accessory building located at the rear of the Property.   A portion of this accessory building was formerly utilized as a garage.   The exterior walls of the accessory building extend almost all the way to the rear and side property boundaries.   The main structure has been used as a three-family residence for over forty years (ROR 20 p. 5).   In November 12, 2003, the ZBA granted a variance to permit a third dwelling unit in the basement of the existing two-family dwelling.   At some point after 2003, the rear building was converted from a garage to a one-bedroom dwelling unit.   The resulting four units exceeded the allowable number of dwelling units authorized by the 2003 variance.   MAB Partners sought a variance which would eliminate the use of the basement apartment in the Principal Building and modify the unit in the accessory building to accommodate handicap access.

During the course of the public hearing MAB presented evidence to support the requested variances.   Plaintiff first stated that it intended to renovate the property including bringing it into compliance with fire and safety codes.   The neighborhood in question consists of a mix of one, two and three family dwellings.   The plaintiff's primary position was that it was not increasing the permitted three residential units on the Property because it was converting the three-family dwelling to a two-family dwelling and utilizing the existing one-bedroom, handicap-accessible unit in the rear building.   Thus, it argued, the requested variance would not cause any adverse impact to the neighborhood.   Plaintiff further argued that a hardship continues to exist with respect to the imposition of the Regulations on the Property as it did in 2003 when the ZBA granted a variance for a third dwelling unit.   Finally, plaintiff submits that the improvements to the Property conform to the Comprehensive Plan of the City of Bridgeport are fully supported by Bridgeport's Master Plan of Conservation and Development and satisfy a need for handicap accessible residences in the City of Bridgeport.

The original use of the residential structure located at the front of the Property as a two-family dwelling was permitted by a variance granted in 1942 (ROR 2).   In 2003, the then owner legalized a three-family use by obtaining a variance to permit a third dwelling unit in the basement of the Principal Building.   Therefore, in 2003, as a result of the 1942 and 2003 variances, there were three legally existing dwelling units on the Property.   In addition, the rear accessory structure which had periodically been used for a commercial business until sometime before 2010, had been converted by a prior owner into a one-bedroom, handicap-accessible, dwelling unit.  (ROR 20 p. 5, 12.)

MAB purchased the Property in 2010 (ROR 20 p. 2).   As set forth above, at the time of the purchase, there were four dwelling units on the Property (ROR 12 § copy attachedŒ and ROR 20 p. 5).   See also, ROR 2, copies attached.   Subsequent to the purchase of the Property, MAB found out that four dwelling units were not permitted on the Property (ROR 20 p. 7).   As a result, on August 1, 2012, MAB filed an application for a variance to legalize the handicap accessible dwelling unit in the former garage and to convert the Principal Building back into a two-family dwelling, as originally approved in 1942.

A public hearing was held on October 9, 2012.   Thereafter, the ZBA denied the application on October 16, 2012.   The ZBA's denial stated that the granting of the petition would result in an overuse of the property and that MAB failed to demonstrate an unusual hardship related to the property (ROR 17).

The plaintiff MAB has filed the subject appeal from the ZBA's denial asserting that the denial of the variance was illegal, improper and an abuse of the discretion vested in the ZBA. Plaintiff submits that the proposed variance maintains the permitted density of the property with the use of the rear building as a handicap accessible dwelling unit.   In further support of its petition, plaintiff argues that the city's Master Plan supports the proposed variance because one of the plan's stated goals is to increase the quality and value of Bridgeport's housing and that the proposed one-bedroom accessible apartment will achieve this goal without having an adverse impact on the immediate area.

STANDARD OF REVIEW

Section 8–7 of the General Statutes requires a zoning board of appeals to state reasons for its decision.  Section 8–7 of the General Statutes requires a zoning board of appeals to state reasons for its decision.   The review by the court is restricted to the reasons given by the board.   A search of the record must be undertaken, to determine whether the record supports the board's decision.   In order to grant a variance, a zoning board of appeals must find that two conditions have been satisfied:  1) the variance must be shown not to affect substantially the municipal comprehensive 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 powers of the zoning plan.  Francini v. Zoning Board of Appeals, 228 Conn. 785, 790 (1994);  Smith v. Zoning Board of Appeals, 174 Conn. 323, 326 (1978).

“Land use regulation embodies a clash of conflicting forces:  the common law right of a property owner to use his land as he pleases, as long as that use does not create a nuisance, and the police power of the state to regulate the use in the interest of public health, safety, morals and the general welfare of the community.”   R. Fuller 9 Connecticut Practice Series:  Land Use Law and Practice (1993) Section 1.2 citing Steiner v. Town Planning & Zoning Commission, 149 Conn. 74, 76, 175 A.2d 559 (1961), and Service Realty Corp. v. Planning & Zoning Board of Appeals, 141 Conn. 632, 635, 109 A.2d 256 (1954).   Variances play an important role in land use regulation.   The existence of the variance power recognizes that zoning regulations which permit some uses of land and prohibit others will adversely affect individual property rights in some cases, and variances furnish elasticity in the application of the regulations so they do not operate in an arbitrary or confiscatory, and therefore, unconstitutional manner.   Without authorization to a board of appeals or some similar agency to grant variances, it would be difficult, if not impossible, to keep the law ‘running on an even keel’ and to prevent attacks on the constitutionality of the zoning ordinance.”   R. Fuller, supra, section 9.1.   A variance runs with the land;  Reid v. Zoning Board of Appeals, 235 Conn. 850, 858 (1996);  § C.G.S. 8–6(b), and must be based upon property conditions.  Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239 (1972).

Our law governing variances is well settled.  Section 8–6(a)(3) provides in relevant part that the zoning board of appeals may “determine and vary the application of the zoning bylaws, ordinances and 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 but not affecting the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship .. .” (Emphasis added.)  “A variance is authority granted to the owner to use his property in a manner forbidden by the zoning regulations ․ The power of the board to grant a variance should be used only where a situation falls fully within the specified requirements ․ Thus, the power to grant a variance should be sparingly exercised ․ An applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an usual hardship, as opposed to the general impact which the regulation has on the other properties in the zone.  (Internal quotation marks omitted.)  Kaeser v. Zoning Board of Appeals, 218 Conn. 438, 445, 589 A.2d 1229 (1991).   A variance can be granted under proper conditions even if it extends a nonconforming use.  Fiorilla v. Zoning Board of Appeals of the City of Stamford, 144 Conn. 275, 281 (1957).   However, the applicant must still establish that the hardship which it claims is the result of property conditions and not due to actions or a particular desired use by the owner.   Garibaldi v. Zoning Board of Appeals, supra, 239;  see Tondro, Connecticut Land Use Regulation (2d Ed.1992) p. 124.  “Zoning power may only be used to regulate the use, not the user of the land.”  Tondro, supra, p. 88.

Because the granting of a variance permits a property owner to use his property, even though a violation of the zoning regulations will result, it is reserved for unusual or exceptional circumstances.  Bloom v. Zoning Board of Appeals, supra, 206–07.  “An applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an unusual hardship as opposed to the general impact which the regulation has on the other properties in the zone” Laurel Beach Ass'n v. Zoning Board of Appeals, 166 Conn. 385, 388 (1974);  citing, Berlani v. Zoning Board of Appeals, 160 Conn. 166, 170, 276 A.2d 780 (1970).

It is also well established that, “A zoning board of appeals is endowed with liberal discretion, and its decisions are subject to review by a court only to determine whether the board acted arbitrarily, illegally or unreasonably.   Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269 (1991);  Torsiello v. Zoning Board of Appeals, 3 Conn.App. 47, 50 (1984).   The burden of demonstrating that the board acted improperly is upon the party seeking to overturn the board's decision.  Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707 (1988);  Whittaker v. Zoning Board of Appeals, 79 Conn. 650, 654 (1980).

A court should not usurp the function and prerogatives of a municipal zoning board of appeals, by substituting its judgment for that of the board, where an honest judgment has been reasonably and fairly arrived at after full hearing.   Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206 (1995).   The question is not whether another decision maker, such as the trial court, would have reached the same decision, but whether the record compiled before the zoning agency supports the decision reached.  Calandro v. Zoning Commission, 176 Conn. 439, 440 (1979).   As stated above, the court must conduct a review of the record and is limited to the record before it in determining whether the board acted properly.   In this case, significant portions of the record, particularly of the board's deliberations, are inaudible.   The audible portions of the record indicate that certain board members referred to their recollection or understanding of the of approval of the earlier variance granted in 2003 which allowed a third residential unit in the basement of the building on the condition that the existing accessory structure provide parking for it.

ANALYSIS

The Principal Building on the property has three residential units.   The existing residential unit in the rear accessory structure was created by the plaintiff's predecessor without zoning approval.   Review of the plan submitted by the plaintiff to the zoning board of appeals demonstrates that the lot size does not accommodate more than the two parking spaces which are needed to provide parking for the original residential building.   As a result, a portion of the accessory structure must be used to provide parking for the third unit.   Regardless of where a third unit is located, the only space available for the required parking space is a portion of the rear accessory building.   Although this circumstance is arguably a hardship, it is not a hardship as defined by the zoning laws of this state.   Plaintiff's arguments in support of the requested variance rely at least partially on the fact that the proposed use will reduce the number of dwelling units on the property from four to the permitted number of three.   However, elimination of an illegal use does not provide a basis for the board to grant a variance.   Similarly, although the proposed use of the residential unit in the accessory building is for a handicapped accessible unit, this purpose, while laudable, does not meet the test for hardship required for a variance.

During their deliberations, the members of the zoning board discussed their recollections of the history of the property and the variances which were previously granted ․ One member stated that approval of the basement apartment in 2003 was conditioned on provision of a parking space in the accessory structure.   Another member stated that once the basement apartment was approved the owner was not supposed to keep the accessory structure but neither statement was supported by review of the record of the prior decision.   Although their statements are inconsistent with the acknowledged requirement that the accessory structure be maintained to provide a parking space for the basement apartment, this inconsistency does not necessarily render the decision invalid.   Despite this apparent inconsistency and failure to refer directly to the 2003 record, the board proceeded with its deliberations.   After brief discussion, the Bridgeport Zoning Board of Appeals denied the application for variance stating “Overuse” as its reason for denial.   There was no further statement or explanation of the board's conclusion that the application should be denied on the ground of overuse or what the board meant by this term.   Because the board did not adequately express the basis for its decision the court must review the record to determine whether as a whole the record supports the decision.

In order to grant a variance a zoning board of appeals must find, and correspondingly, an applicant must establish, that two conditions have been satisfied:  1) the variance must be shown not to affect substantially the municipal comprehensive plan and 2) adherence to the strict letter of the zoning ordinance must be shown to cause an unusual hardship, unnecessary to the carrying out of the general powers of the zoning plan.  Francini v. Zoning Board of Appeals, 228 Conn. 785, 790 (1994).   The subject property is located in a single family zone.   The existing variances allow three dwelling units on the property.   While the application does not increase the number of units beyond what is now permitted, it does require a modification of the use of the separate structure with the resulting reduction of parking on the site.   There is sufficient parking for three units if the basement level of the primary structure is used for a dwelling unit as approved and a portion of the accessory building provides the third space.   However, because the property is too small to accommodate a third parking space if the rear structure is used as depicted on the applicant's proposal, the result would be to burden the street with parking.   Thus, the claimed hardship is the result of the applicant's plan to provide a third unit at ground level rather than below ground.

A decision must be upheld, if it is supported by substantial evidence in the record.   Substantial evidence is enough evidence to justify, if the trial were to a jury, a refusal to direct a verdict, where the conclusion sought to be drawn is one of fact.  Sampieri v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993).   The possibility of drawing two inconsistent conclusions from the evidence does not prevent a decision from being supported by substantial evidence.  Property Group Inc. v. Planning & Zoning Commission, 226 Conn. 684, 697–98 (1993).   Although the plaintiff is entitled by virtue of the earlier variances to maintain three dwelling units on the property, it cannot do so while also complying with the parking requirement for the third unit.   Laudable as the plaintiff's plan to provide accessible housing on the property, the hardship is created, not by strict application of the city's zoning regulations, but by the plaintiff's decision to locate the third unit in the only space which is available for parking.   To support a variance a hardship must arise from a condition different in kind from that generally affecting properties in the same zoning district, and must be imposed by conditions outside the control of the property owner.  Norwood v. Zoning Board of Appeals, 62 Conn.App. 528, 533 (2001).   Hardships which are personal to the applicant, however compelling from a human standpoint, such as the one in this case, do not provide sufficient grounds for the granting of a variance.   Garibaldi, supra, 239–40.   Finally, although providing handicapped accessible residential dwelling units may well further the municipality's comprehensive plan as plaintiff argues, it cannot do so at the expense of reducing parking capacity.   The property having benefitted from increased density as a result of receiving two prior variances, the decision of the zoning board of appeals to deny the subject application was not unreasonable.

The record therefore supports the decision of the defendant zoning board of appeals.   For the reasons stated above, the court therefore, denies the appeal and orders judgment to enter in favor of the defendant.

SOMMER, J.

Sommer, Mary E., J.