Marc T. Edwards v. Zoning Board of Appeals, Town of West Hartford (2014)

MEMORANDUM OF DECISION

The plaintiff, Marc T. Edwards, is the owner of a home located at 111 Hunter Drive in West Hartford, Connecticut.   He appeals from a decision of the Zoning Board of Appeals of West Hartford (ZBA), denying his second application for a variance.   The first application was filed in the fall of 2010.   The present application was filed in June 2011.   Both applications sought a nine-foot variance to the forty-foot rear yard setback required by the West Hartford Code of Ordinances § 177–20(E) (West Hartford Code § _).

The plaintiff's home is located on a 0.5–acre lot with a slope from front to back of approximately twenty-seven vertical feet.   The home was built in a non-conforming orientation in 1966 due to the allowance of a ten-foot variance to the fifty-foot front setback requirement, leaving the lot with a depth of 115 feet instead of the standard minimum of 140 feet.   The plaintiff applied for the variance, subject of this appeal, in order to construct a new deck sixteen feet wide and eight feet deep on the east side of his home (the rear of the house), which would leave the property with a thirty-one-foot rear yard setback.¹

In his application for a variance, the plaintiff argues that the combination of the topography of his lot and the orientation of his home on the lot creates a situation whereby enforcement of the forty-foot rear setback requirement “would perpetuate a hardship that limits reasonable use of the property in a manner available to most homeowners in the area.”   In a letter accompanying the application, the plaintiff focuses on the lack of outside living space at the main level of the home due to the current layout of the house and backyard and the configuration of the existing deck, which he asserts is difficult for elderly guests and small children to access.   As currently situated, a person must exit the home, descend thirteen steps, and then climb up three steps to access the deck, making entertaining guests outside challenging.   The plaintiff states that the proposed location for a new deck is ideal for the reasons that the site is screened from view by shrubs and trees in the backyard, would be oriented toward the driveway as opposed to the outdoor living area of the closest neighboring property, and that the east side of the home is the best fit given the home's floor plan and architecture as the proposed new deck would be easily accessible from the kitchen.

The plaintiff addressed his application in a public hearing before the ZBA on July 20, 2011.   Following the hearing, the ZBA voted to deny the plaintiff's application by a vote of three to two.   The decision was published in The Hartford Courant, July 26, 2011, and the plaintiff received a letter dated July 27, 2011, detailing the reasons for its denial.   The stated reasons for denial of the application were as follows:

1) The application did not meet the criteria for a legal hardship;

2) Based on the testimony at the public hearing, the hardship presented was personal in nature;

3) The application was not able to demonstrate the proposed location, which necessitated the variance, was the only viable location for a second story deck;

4) The variance request was not necessary for the reasonable use of the property.

The stated grounds for the present appeal are that the defendant acted illegally, arbitrarily and abused its discretion in that it failed to approve an application that conforms to its governing regulations;  it improperly interpreted its regulations;  and, it allowed a conflict of interest of one of the members of the ZBA to influence the deliberations and decision.   The plaintiff seeks to have the court declare the decision null and void and order the ZBA to grant the variance as requested.

Although a transcript of the hearing held on July 20, 2011 is available, a complete transcript of recording of the Board's discussion and deliberations is not available as the transcriptionist had been dismissed prior to the beginning of the discussion and deliberations and the recording equipment malfunctioned, causing intermittent gaps in the record.²  On February 16, 2012, the court (Woods, J.), determined that the proper way to supplement the record pursuant to General Statutes § 8–8(k), was for the parties to introduce evidence of the material missing from the recording and transcript at the administrative appeal hearing, rather than to remand the matter to the ZBA for another hearing as urged by the defendant [53 Conn. L. Rptr. 472].

Pursuant to General Statutes § 8–8(k) ³ and the February 16, 2012 order of Judge Woods,⁴ a hearing was held before this court on November 20, 2012.   Following that hearing, on March 19, 2013, the undersigned issued an order requiring the parties to submit, no later than April 5, 2013, a detailed description of the portions of July 20, 2011 Zoning Board of Appeals hearing omitted from the audio recording and transcript;  2) a listing of supplemental evidence, including testimony, that may be required to complete the hearing record;  or 3) a statement that no further evidence is required for a complete determination by of court of the issues raised on appeal.

In response to this order, the plaintiff indicated that there were gaps of sixteen minutes and thirty seconds in the last thirty-two minutes of the discussion and deliberations portion of the ZBA hearing.   He identified three gaps that he claimed were sufficiently material “to warrant further consideration.”   See Plaintiff's Filing Pursuant to Judicial Order # 128 (docket entry # 131).⁵  The defendant responded that no supplemental evidence was required and that all of the evidence presented to the ZBA, including a transcript, was contained in the record

For reasons more specifically stated in a memorandum of decision issued on August 2, 2013 (# 132), this court found that pursuant to General Statutes § 8–7a, the gaps in the record rendered the record on appeal incomplete, thus depriving the court of its ability to review the conduct of the hearing and the deliberations to determine if the ZBA's actions were illegal, arbitrary and in abuse of its discretion as claimed by the plaintiff.⁶  However, because the court also found that the grounds for the plaintiff's appeal focused solely upon the discussion and deliberations portion of the ZBA hearing and the only defect in the record was due to the audio recording of that portion of the proceedings, the court remanded the case as follows:

“[T]his matter is remanded to the ZBA with instructions to the commissioners to review the entire record of the public hearing concerning the plaintiff's application, which was held on July 20, 2011.   The commissioners may not substitute a summary of either the exhibits or the public hearing transcript, but are hereby directed to review all the materials of record firsthand including all the exhibits and the hearing transcript in their original form.   Upon so doing, they are further ordered to hold a discussion and conduct deliberations on the record, with proper notice to the public, and that a record of the deliberations then be submitted as a part of a supplemental return of record in this appeal.   Such return shall be made to the court within forty-five (45) days of the conclusion of the deliberations.”   On October 16, 2013, the ZBA re-deliberated in accordance with the foregoing order, and, by unanimous decision, voted 5–0 to deny the plaintiff's application.⁷  The transcript reveals that the crux of ZBA's decision was that because the plaintiff is able to build a deck on the entry level of his home without a variance, he had not demonstrated the requisite hardship.   Rather, the hardship was deemed to be of a personal nature, was not necessary for the reasonable use of the property and that no circumstance was presented such as would warrant a result different than ZBA's denial of the plaintiff's previous application.   See Third Amended Return of Record (# 135).⁸

I

SCOPE OF REVIEW

The trial court's scope of review in appeals from zoning board decisions is limited.   It “reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons.”  Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662, 211 A.2d 687 (1965).  “In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its decisions are subject to review by the courts only to determine whether it was unreasonable, arbitrary, or illegal.”  Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560–61, 236 A.2d 96 (1967).

“Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the [board] was required to apply under the zoning regulations.   It is well settled that a court, in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own.”  (Citation omitted;  internal quotation marks omitted.)  R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470, 778 A.2d 61 (2001).

“First, we note the scope of review of a decision by a zoning board of appeals.  [Zoning] boards of appeal are necessarily entrusted with the function of deciding, within prescribed limits and consistent with the exercise of a legal discretion, whether a regulation applies to a given situation, and the manner of its application ․ When evaluating the validity of a decision of a zoning board, we have also stated that [t]he trial court [has] to decide whether the board correctly interpreted the [regulations] and applied it with reasonable discretion to the facts.   In applying the law to the facts of a particular case, the board is endowed with ․ liberal discretion, and its action is subject to review, only to determine whether it was unreasonable, arbitrary or illegal ․ Moreover, the plaintiffs bear the burden of establishing that the board acted improperly ․” (Citation omitted;  internal quotation marks omitted.)  Graff v. Zoning Board of Appeals, 277 Conn. 645, 668–69, 894 A.2d 285 (2006).

“Because the zoning board of appeals acts as a special agent of the state in issuing certificates of approval, the trial court's scope of review of the zoning board of appeals' decision is governed by the Uniform Administrative Procedure Act, General Statutes § 4–183(j)(5) ․ General Statutes § 4–183(j)(5) mandates that the trial court ‘shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.   The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.’   An administrative agency can find that substantial evidence exists if the administrative record affords a substantial basis of fact for which the fact in issue can be reasonably inferred ․ Substantial evidence exists when the evidence is sufficient for a trial court to deny a directed verdict if the trial had been brought before a jury to decide a question of fact.”  (Citations omitted, internal quotation marks omitted.)  Vicino v. Zoning Bd. of Appeals, 28 Conn.App. 500, 505–06, 611 A.2d 444 (1992).

Despite the plaintiff's claim to the contrary, the ZBA has rendered “a formal, official, collective statement of the reasons for its actions;” thus, the court must confine its review to those reasons and whether they are supported by the record and applicable to the zoning regulations.   See Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002).

II

VARIANCE/HARDSHIP

“A variance has been defined as the authority granted to [an] owner to use his property in a manner forbidden by zoning regulations ․ Our Supreme Court has cautioned that the power to grant variances from the strict application of zoning ordinances should be carefully and sparingly exercised ․ The power to authorize a variance is only granted for relief in specific and exceptional instances ․ 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 property owner's control ․ [p]roof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance ․” (Citations omitted;  internal quotation marks omitted.)  Jersey v. Zoning Board of Appeals, 101 Conn.App. 350, 355–56, 921 A.2d 683 (2007).  “[A] variance is authority extended to the owner to use his property in a manner forbidden by the zoning enactment ․” Anatra v. Zoning Board of Appeals, 307 Conn. 728, 740–41, 59 A.3d 772, 779 (2013).  “Our case law establishes that [f]or a variance to be granted under General Statutes § 8–6(3)[now § 8–6(a)(3), two conditions must be fulfilled:  (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.)  Jersey v. Zoning Board of Appeal, 101 Conn.App. 356–57.

Proof of hardship is a “condition precedent to granting a variance.”  Kelly v. Zoning Board of Appeals, 21 Conn.App. 594, 598, 575 A.2d 249 (1990).   General Statutes § 8–6(a)(3) provides that zoning authorities may grant variances solely where strict regulatory enforcement would result in “exceptional difficulty or unusual hardship.”   In furtherance of § 8–6(a)(3), the charter for the town of West Hartford, in pertinent part, grants the ZBA the power and duty:  “To determine and vary the application of the zoning 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 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.”   Charter, Town of West Hartford, Chapter XII, § 10(c).

In pertinent part, the West Hartford zoning ordinance states that no variance will be granted unless:  “(a) There are conditions especially affecting the land or structure for which the variance is sought which conditions are peculiar to such land or structure and not to the personal or financial circumstances of the appellant and which conditions are not affecting generally the area in which such land or structure is situated and have not resulted from any act of the appellant subsequent to the enactment of the requirement appealed from ․ (b) The aforesaid conditions are such that the strict application of the requirements of this chapter would deprive the appellant of the reasonable use of such land or structure and the granting of the variance is necessary for the reasonable use of the land or structure, and that the variance, as granted by the Board, is the minimum variance that will accomplish this purpose. (c) The granting of the variance would not permit the property to be used for a purpose that is denied to the occupants of other properties in the same zoning district. (d) The granting of the variance is in harmony with the general purpose and intent of this chapter and will not be detrimental to public health, safety, convenience, welfare and property values.”   West Hartford Code § 177–49(B)(1).   While the ZBA relied on the “Standards To Grant A Variance” (DR 13), to guide its discussion, those standards are derived from § 177–49(B)(1) of the West Hartford zoning ordinance, which in turn conforms to state law.⁹

Pursuant to the foregoing provisions, in order to find a hardship, the zoning authority must determine that the conditions creating the hardship are not specific to the owner applying for the variance and would exist regardless of who owned the property.  Stillman v. Zoning Board of Appeals, 25 Conn.App. 631, 637, 596 A.2d 1 (1991).   The variance requested “cannot be personal in nature, and may be based only upon property conditions ․ Thus, the identity of a particular user of the land is irrelevant as to zoning.”  (Citations omitted;  internal quotation marks omitted.)  Reid v. Zoning Board of Appeals, 235 Conn. 850, 857, 670 A.2d 1271 (1996).   As it is a fact-based inquiry, no exact definition of what constitutes an unusual hardship exists, but courts have established that the “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.”   Smith v. Zoning Board of Appeals, 174 Conn. 323, 327, 387 A.2d 542 (1978).

In arguing the existence of a hardship, the plaintiff focuses primarily on the inconveniences of the current layout of his home and backyard as previously described.   He claims that this is not a personal hardship because it bears no relationship to his personal circumstances, but that the issue is solely due to the home's floor plan in relation to the topography and orientation of the home on the lot.   He argues that the conclusion by the ZBA that his hardship is personal is not supported by the record.   Specifically, he points out that other lots in his neighborhood have decks at entry-level and that, at the hearing, several neighbors spoke about the importance of outdoor living space emphasizing the difficulties encountered by the plaintiff in his current situation.   He also argues that a deck on the south side of the home would lack privacy both for himself and his neighbors and would require the destruction of an existing deck and water garden, “improvements which created an attractive, private, useable sideyard on a property that previously had none.” ¹⁰

In response, the defendant maintains that plaintiff's claims of hardship do not justify a variance, that inconvenience resulting from the layout of a house does not rise to the required level of difficulty in use and that establishing hardship is not about entitlement to the best possible outcome.   The defendant further assert that although the plaintiff does not have access to outdoor living space exactly where he wants it, he does have it, and notes that “[d]isappointment in the use of property does not constitute exceptional difficulty or unusual hardship” required by applicable zoning law.   See Krejpcio v. Zoning Board of Appeals, supra, 152 Conn. 662.   The defendant further argues that the plaintiff's claim of difficulty because of the home's unusual layout and orientation made it incapable of meeting the demands of modern living is also insufficient.   As noted by our Supreme Court in connection with a similar claim of “unusual hardship” in connection with the internal layout of a house, “[s]uch an inconvenience does not rise to the level of hardship necessary for the approval of a variance.”  Moon v. Zoning Board of Appeals, 291 Conn. 16, 26, n.9, 966 A.2d 722 (2009).

Based on the limited scope of review of this court, the appeal must be dismissed.   The substantial evidence contained in the record on appeal, as amended, and the redeliberations by the ZBA on October 13, 2013, reflect that the plaintiff is not entitled to a variance for the reasons originally stated in the letter of July 20, 2011.   The plaintiff did not meet the criteria for a legal hardship, the evidence presented at the public hearing demonstrated that his claim of hardship is personal in nature, he has the ability to build a new deck on his house on the south side without the necessity of a variance, and, denying him the variance will not deprive him of the reasonable use of his property.   Therefore, under all the circumstances, as presented by the plaintiff, the governing law and regulations simply mandate that he is not entitled to a variance.   Although it was not stated as a reason for denial of the variance, the fact is that the plaintiff's circumstances have not changed since his first application for a variance.   Most importantly, the ZBA's reasons for denial both as originally stated (DR 7), and as confirmed by the reconstituted ZBA in its deliberations (DR 16), are reasonably supported by the record and the applicable law as correctly interpreted by the ZBA. See Krejpcio v. Zoning Board of Appeals, supra, 152 Conn. 662.

As previously noted, the ZBA reasonably concluded that the plaintiff's claim of hardship was based on personal preference and lifestyle choice and simply did not rise of the level of legal hardship.  “[A] variance is not a personal exemption from the enforcement of zoning regulations.   It is a legal status granted to a certain parcel of realty without regard to ownership ․ Personal 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 ․ Similarly, it is also well established that self-inflicted hardship which arises because of individual actions by the applicant will not provide a zoning board of appeals with sufficient reason to grant a variance.”  (Citations omitted.)  Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239–40, 303 A.2d 743 (1972).   Further, strict application of the setback requirement, which is the focus of the plaintiff's claim for a variance, will not deprive the plaintiff of the reasonable use of his home, and concomitantly, granting of the variance is not necessary for the reasonable use of the property as the plaintiff has an option that will not require a variance at all.   West Hartford Code § 177–49(B)(1)(b).  Significantly, in the course of its re-deliberations, in reaching their ultimate determination, the ZBA focused in on the latter provision as contained in the “Standards to Grant A Variance” (DR 13).¹¹  The concept of “reasonable use” is a matter to be determined within the discretion of the zoning board on a case by case basis.   See Jersey v. Zoning Board of Appeals, supra, 101 Conn.App. 360.¹²

CONCLUSION

Accordingly, for all the foregoing reasons, the plaintiff's appeal is hereby dismissed.

Peck, J.

FOOTNOTES

FN1. The facts and procedural history recounted herein are taken from the defendant's return of record, as amended, numbered DR 1 through DR 16 (docket entries # 103, # 104, # 109, # 119 and # 135)..  FN1. The facts and procedural history recounted herein are taken from the defendant's return of record, as amended, numbered DR 1 through DR 16 (docket entries # 103, # 104, # 109, # 119 and # 135).

FN2. The evidence presented at the ZBA hearing including a transcript of the public hearing portion of the proceedings is contained in the return of record filed in court (docket entry # 103)..  FN2. The evidence presented at the ZBA hearing including a transcript of the public hearing portion of the proceedings is contained in the return of record filed in court (docket entry # 103).

FN3. General Statutes § 8–8(k) provides:  “(k) The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it, pursuant to section 8–7a, or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal.   The court may take the evidence or may appoint a referee or committee to take such evidence as it directs and report the same to the court, with any findings of facts and conclusions of law.   Any report of a referee, committee or mediator under subsection (f) of section 8–8a shall constitute a part of the proceedings on which the determination of the court shall be made.”.  FN3. General Statutes § 8–8(k) provides:  “(k) The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it, pursuant to section 8–7a, or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal.   The court may take the evidence or may appoint a referee or committee to take such evidence as it directs and report the same to the court, with any findings of facts and conclusions of law.   Any report of a referee, committee or mediator under subsection (f) of section 8–8a shall constitute a part of the proceedings on which the determination of the court shall be made.”

FN4. In his “Memorandum of Decision Re Motion to Supplement Record on Appeal (# 105),” Judge Woods granted the defendant's motion to supplement the record and ordered the parties “to submit evidence at the administrative appeal hearing.”   For reasons stated in the August 2, 2013, memorandum of decision (# 132), the undersigned concluded that the missing portions of the record had nothing to do with the evidence presented at the ZBA hearing but related exclusively to the discussion and deliberations..  FN4. In his “Memorandum of Decision Re Motion to Supplement Record on Appeal (# 105),” Judge Woods granted the defendant's motion to supplement the record and ordered the parties “to submit evidence at the administrative appeal hearing.”   For reasons stated in the August 2, 2013, memorandum of decision (# 132), the undersigned concluded that the missing portions of the record had nothing to do with the evidence presented at the ZBA hearing but related exclusively to the discussion and deliberations.

FN5. He identified the gaps as occurring as follows:  gap # 1 occurring from 1:33:05 to 1:35:28, gap # 2 occurring from 1:36:33 to 1:37:58 and gap # 5 occurring at 1:45:31 to 1:49:23..  FN5. He identified the gaps as occurring as follows:  gap # 1 occurring from 1:33:05 to 1:35:28, gap # 2 occurring from 1:36:33 to 1:37:58 and gap # 5 occurring at 1:45:31 to 1:49:23.

FN6. General Statutes § 8–7a states, in pertinent part:  “The ․ zoning board of appeals shall call in a competent stenographer to take the evidence, or shall cause the evidence to be recorded by a sound-recording device, in each hearing before such ․ board in which the right of appeal lies to the Superior Court and at each meeting in which ․ such board of appeals deliberates any formal petition, application, request or appeal.”.  FN6. General Statutes § 8–7a states, in pertinent part:  “The ․ zoning board of appeals shall call in a competent stenographer to take the evidence, or shall cause the evidence to be recorded by a sound-recording device, in each hearing before such ․ board in which the right of appeal lies to the Superior Court and at each meeting in which ․ such board of appeals deliberates any formal petition, application, request or appeal.”

FN7. Docket entry # 135, the third amended return of record, reveals that on October 9, 2013, in advance of the re-deliberation proceedings held on October 16, 2013, the members of the ZBA were given a memorandum by Deputy Corporation Counsel, Patrick G. Alair, summarizing the August 2, 2013 order of the court;  a complete copy of this court's memorandum of decision of that date, a copy of the return of record, as amended with exhibits (# 103, # 104, # 109, and # 119), which included a copy of the transcript of the prior hearing (DR 8);  and a copy of the incomplete audio portion of the prior deliberations..  FN7. Docket entry # 135, the third amended return of record, reveals that on October 9, 2013, in advance of the re-deliberation proceedings held on October 16, 2013, the members of the ZBA were given a memorandum by Deputy Corporation Counsel, Patrick G. Alair, summarizing the August 2, 2013 order of the court;  a complete copy of this court's memorandum of decision of that date, a copy of the return of record, as amended with exhibits (# 103, # 104, # 109, and # 119), which included a copy of the transcript of the prior hearing (DR 8);  and a copy of the incomplete audio portion of the prior deliberations.

FN8. The plaintiff argued that the reconstituted ZBA generally agreed that the preferred location of a new deck would be in the rear of the house.   Even assuming this was so, the ZBA also generally agreed that personal preference is not a proper basis for a variance when there is a reasonable alternative that would not require one.   In this case, the ZBA concluded that the plaintiff had the option of creating a deck on the entry level of his property on the south side of the house, off of the media room.   While this may not be the optimal location and may disrupt some existing features of the house on the south side, it resolves the plaintiff's concerns about going up and down stairs to get to the deck..  FN8. The plaintiff argued that the reconstituted ZBA generally agreed that the preferred location of a new deck would be in the rear of the house.   Even assuming this was so, the ZBA also generally agreed that personal preference is not a proper basis for a variance when there is a reasonable alternative that would not require one.   In this case, the ZBA concluded that the plaintiff had the option of creating a deck on the entry level of his property on the south side of the house, off of the media room.   While this may not be the optimal location and may disrupt some existing features of the house on the south side, it resolves the plaintiff's concerns about going up and down stairs to get to the deck.

FN9. Without being specific, the plaintiff claims that the “Standards To Grant A Variance” is stricter than state law and cites to Jersey v. Zoning Board of Appeals, supra, 101 Conn.App. 350, 357, for the proposition that zoning ordinances cannot create standards for variances that are stricter than state law.   However, unlike the “reasonable use standard” struck down in that case, the standards in the West Hartford zoning ordinance, as well as the “Standards to Grant a Variance” do conform to § 8–6(a)(3).   See DR 10, DR 11 and DR 13..  FN9. Without being specific, the plaintiff claims that the “Standards To Grant A Variance” is stricter than state law and cites to Jersey v. Zoning Board of Appeals, supra, 101 Conn.App. 350, 357, for the proposition that zoning ordinances cannot create standards for variances that are stricter than state law.   However, unlike the “reasonable use standard” struck down in that case, the standards in the West Hartford zoning ordinance, as well as the “Standards to Grant a Variance” do conform to § 8–6(a)(3).   See DR 10, DR 11 and DR 13.

FN10. Plaintiff's Post–Redeliberation Brief, docket entry # 136, p. 5..  FN10. Plaintiff's Post–Redeliberation Brief, docket entry # 136, p. 5.

FN11. The “Standards to Grant A Variance” (DR 13) provides in pertinent part as follows:  Section 177–49B.(1)  ZBA shall find:(b) 6.   The special conditions and the strict application of the requirements of particular ordinance would deprive the person making the request of the reasonable use of the land or structure in questions.7. The granting of the variance is necessary to permit the reasonable use of the land or structure.8. The variance that the Board decides to grant is the minimum grant that is necessary to allow the reasonable rise of the land or structure.(Emphasis original.).  FN11. The “Standards to Grant A Variance” (DR 13) provides in pertinent part as follows:  Section 177–49B.(1)  ZBA shall find:(b) 6.   The special conditions and the strict application of the requirements of particular ordinance would deprive the person making the request of the reasonable use of the land or structure in questions.7. The granting of the variance is necessary to permit the reasonable use of the land or structure.8. The variance that the Board decides to grant is the minimum grant that is necessary to allow the reasonable rise of the land or structure.(Emphasis original.)

FN12. Since the plaintiff now concedes in his post-redeliberation brief, dated December 2, 2013 (# 136), that the issue he raised concerning a conflict of interest of former Commissioner Tucker is now moot, the court does not address it..  FN12. Since the plaintiff now concedes in his post-redeliberation brief, dated December 2, 2013 (# 136), that the issue he raised concerning a conflict of interest of former Commissioner Tucker is now moot, the court does not address it.

Peck, A. Susan, J.