Vine v. Zon. Bd. of Appeals of N. Branford

887 A.2d 442

93 Conn.App. 1

Wanda VINE v. ZONING BOARD OF APPEALS OF THE TOWN OF NORTH BRANFORD et al.

No. 25837.

Appellate Court of Connecticut.

Argued September 14, 2005.

Decided January 3, 2006.

COPYRIGHT MATERIAL OMITTED

Pasquale Young, New Haven, with whom, on the brief, was Daniel C. Burns, for the appellant (plaintiff).

John M. Gesmonde, Hamden, for the appellee (named defendant).

Frank S. Marcucci, East Haven, for the appellee (defendant M & E Construction, Inc.).

SCHALLER, McLACHLAN and GRUENDEL, Js.

SCHALLER, J.

The plaintiff, Wanda Vine,¹ appeals from the judgment of the trial court dismissing her appeal from the decision by the defendant zoning board of appeals of the town of North Branford (board), granting the application of the defendant M & E Construction, Inc. (M & E),² for a variance. The plaintiff claims that the court improperly determined that (1) the hardship claimed by M & E was not self-created, (2) the claimed hardship was not merely financial, (3) the "purchaser with knowledge" rule did not apply, and (4) material differences existed between the application for the variance at issue in this appeal and the application M & E filed in 2001 that was denied, which permitted the board to reverse its 2001 decision.³ On the basis of the plaintiff's second claim, we reverse the judgment of the trial court.⁴

The following facts and procedural history are necessary for our resolution of the plaintiff's appeal. M & E acquired real properties located at 66, 72 and 76 Notch Hill Road in North Branford (town). Those properties, described in the land records as lots 26, 26A and 26B, were created by a subdivision approved in 1968 and are located in a zoning district designated as R-40. In 1977, the town amended its zoning regulations and included a requirement for a 150 foot buildable square on a lot for properties in the R-40 district. In 2001, M & E sought to combine the three lots into two proposed lots, designated A and B, and to build a residential home on each.⁵ A portion of proposed lot A was encumbered by an aboveground utility easement for electrical transmission lines that Connecticut Light and Power Company had obtained in 1981 after initiating condemnation proceedings.⁶

On October 15, 2001, the board denied M & E's first application for a variance. On November 15, 2002, M & E filed a second application for a variance with respect to two sections of the town's zoning regulations. First, § 24, schedule B,⁷ requires a minimum 150 foot square on each building lot. Second, § 6.25 provides that "[i]n determining compliance with minimum lot area and shape requirements of these Regulations, land subject to easements for drainage facilities and underground public utilities may be included, but not ... easement[s] for above-ground public utility transmission lines...."⁸ Because of the utility easement,⁹ the 150 foot square could not be located on the proposed lot A. A variance, therefore, was needed to build M & E's proposed residential dwelling.

On April 14, 2003, the board held a public hearing on M & E's application. Despite expressing some concerns about the project,¹⁰ the board granted the variance by a four to one vote.¹¹ M & E was notified of the approval by a letter from the board dated April 15, 2003. Notice of the approval was published in the New Haven Register on April 17, 2003.

On April 24, 2003, the plaintiff appealed from the board's actions to the trial court. On July 7, 2004, the court issued its memorandum of decision and dismissed the plaintiff's appeal.¹² The court concluded that the property was subject to an "uncommon" hardship as a result of the utility easement that resulted from the condemnation proceeding and that the comprehensive zoning plan would not be affected. The court, quoting one of the board members, stated: "The record reveals that `the variance is so nominal and the impact so minimal on neighbors and the lot in general that it is form over substance' to require M & E to comply with the minimum square lot requirements." This appeal followed.

As a preliminary matter, we state the appropriate standard of review and relevant legal principles that guide our resolution of the plaintiff's appeal. "Our standard of review when considering an appeal from ... the decision of a zoning board to grant or deny a variance is well established. We must determine whether the trial court correctly concluded that the board's act was not arbitrary, illegal or an abuse of discretion.... Courts are not to substitute their judgment for that of the board ... and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing.... Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons.... We, in turn, review the action of the trial court.... The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs." (Internal quotation marks omitted.) Horace v. Zoning Board of Appeals, 85 Conn.App. 162, 165, 855 A.2d 1044 (2004); see also Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205-206, 658 A.2d 559 (1995).

We now set forth our well settled law pertaining to variances. "[General Statutes §] 8-6(a)(3) provides in relevant part that a zoning board of appeals may determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship.... 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.... 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 other properties in the zone." (Emphasis in original; internal quotation marks omitted.) Reid v. Zoning Board of Appeals, 235 Conn. 850, 856, 670 A.2d 1271 (1996); see also Campion v. Board of Aldermen, 85 Conn.App. 820, 840-42, 859 A.2d 586 (2004), cert. granted on other grounds, 272 Conn. 920, 867 A.2d 837 (2005); R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (1993) § 9.3, pp. 150-55.¹³ With the foregoing principles in mind, we now address the specifics of the plaintiff's appeal.

The plaintiff argues that because any hardship incurred by M & E was purely financial in nature, the board lacked authority to grant the variance. After reviewing the record before us, we agree and conclude that the board's decision to approve M & E's request was contrary to established law pertaining to variances.

In its application for a variance, M & E claimed that due to the utility easement, it would be unable to meet the 150 foot square requirement. As a result, proposed lot A could not be used as an approved building lot for construction of a home. M & E sought, therefore, a variance from § 24, schedule B, line two, and § 6.25 of the town's zoning regulations in order to achieve its goal of building a home on each of the two proposed lots.

It is well established in our jurisprudence that "[t]he power to vary the application of zoning regulations should be sparingly exercised." Dolan v. Zoning Board of Appeals, 156 Conn. 426, 429, 242 A.2d 713 (1968); see also Reid v. Zoning Board of Appeals, supra, 235 Conn. at 857, 670 A.2d 1271. Our Supreme Court has explained the rationale for such a rule: "[U]nless great caution is used and variances are granted only in proper cases, the whole fabric of town- and city-wide zoning will be worn through in spots and raveled at the edges until its purpose in protecting the property values and securing the orderly development of the community is completely thwarted." (Internal quotation marks omitted.) Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 270-71, 588 A.2d 1372 (1991).

To limit the use of variances, "[p]roof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance.... A mere economic hardship ... is insufficient to justify a variance... and neither financial loss nor the potential for financial gain is the proper basis for granting a variance." (Emphasis added; internal quotation marks omitted.) Dupont v. Zoning Board of Appeals, 80 Conn.App. 327, 330, 834 A.2d 801 (2003); see also Bloom v. Zoning Board of Appeals, supra, 233 Conn. at 208, 658 A.2d 559; Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 382-83, 311 A.2d 77 (1972) (neither maximum possible enrichment of particular landowner nor highest and best use of land are controlling purpose of zoning); Cowles v. Zoning Board of Appeals, 153 Conn. 116, 117-18, 214 A.2d 361 (1965); Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, 570, 785 A.2d 601 (2001); Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 548, 684 A.2d 735. 43 Conn.App. 545, 684 A.2d 735 (1996) (disappointment in use of property does not meet standard of exceptional difficulty); Spencer v. Zoning Board of Appeals, 15 Conn.App. 387, 392, 544 A.2d 676 (1988). Although financial considerations are not always immaterial or extraneous to the question of whether a variance should be granted, "[f]inancial considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations...