Vine v. Zoning Bd. of Appeals

916 A.2d 5

281 Conn. 553

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

No. 17619.

No. 17620.

Supreme Court of Connecticut.

Argued November 27, 2006.

Decided March 6, 2007.

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

Michael J. Brandi, with whom were John A. Acampora, and, on the brief, Frank S. Marcucci, East Haven, for the appellant (defendant M & E Construction, Inc.).

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

BORDEN, PALMER, VERTEFEUILLE, ZARELLA and SULLIVAN, Js.

SULLIVAN, J.

These certified appeals arise from the decision of the named defendant, the zoning board of appeals of the town of North Branford (board), granting the variance application of the defendant M & E Construction, Inc. (M & E).¹ The plaintiff, Wanda Vine, appealed from the board's decision to the trial court and the trial court dismissed the appeal. The plaintiff then appealed to the Appellate Court, which reversed the judgment of the trial court in a divided opinion. See Vine v. Zoning Board of Appeals, 93 Conn.App. 1, 887 A.2d 442 (2006). We granted the defendants' separate petitions for certification to appeal limited to the following issue: "Did the Appellate Court properly conclude that the variance granted by the [board] was improper because the hardship was merely financial?" Vine v. Zoning Board of Appeals, 277 Conn. 918, 895 A.2d 794 (2006). We answer the certified question in the negative and reverse the judgment of the Appellate Court.

The record reveals the following facts and procedural history. M & E owns property consisting of three contiguous lots at 66, 72 and 76 Notch Hill Road in North Branford (town). The lots, which are located in an R40 residential zone, originally were part of a four lot subdivision that was approved by the town's planning and zoning commission in 1968.² In 1981, the Connecticut Light and Power Company (utility) acquired an easement by condemnation for purposes of installing electrical transmission lines. The easement was eighty feet wide and crossed the two lots located at 66 and 72 Notch Hill Road. The town's zoning regulations require a minimum 150 foot square of land on each building lot located in an R-40 zone; see North Branford Zoning Regs., § 24.2;³ and provide that land subject to an easement for above ground utility transmission lines cannot be included in determining compliance with minimum lot area and shape requirements. See North Branford Zoning Regs., § 6.25.⁴

In 2001, M & E prepared a site plan proposal in which it sought to convert the three lots into two lots—lot A and lot B. Lot A consisted of the lot at 66 Notch Hill Road plus a portion of the lot at 72 Notch Hill Road and lot B consisted of the remainder of the lot at 72 Notch Hill Road plus the lot at 76 Notch Hill Road. Because the utility easement precluded compliance with the 150 foot square requirement on lot A, M & E submitted to the board an application for a variance. The board denied that application. M & E then submitted a second application for a variance requesting essentially the same relief. In the portion of the application in which M & E was required to "[d]escribe the ground of this appeal, stating the hardship," M & E stated that "[t]he existing [lot located at 66 Notch Hill Road] and a portion of [the lot located at 72 Notch Hill Road] are encumbered by an [eighty foot] wide above ground [utility] easement. The utility easement impairs [the] 150 [foot] square ... requirement and there is no ability to place an unencumbered 150 [foot] square anywhere on the proposed Lot A without being compromised by the location of the utility easement .... The current property owner cannot utilize the proposed Lot A as an approved building lot unless a variance of the 150 [foot] square ... requirement is granted."

The board conducted a public hearing on the application at its regular meeting on April 14, 2003. The plaintiff, who owns land abutting M & E's property, previously had submitted a letter to the board in which she objected to the construction of a house on the lot located at 66 Notch Hill Road.⁵ The letter was read into the record at the hearing. After discussing the merits of the application, the board voted to grant it. Explaining his favorable vote, one of the board members, Thomas Katon, stated that "the variance is so nominal and the impact so minimal on the neighbors and the lot in general, that it is ... form over substance to insist upon this [150 foot] square [requirement] of the regulations .... [I]n terms of intensity of development, it appears that [before the taking of the utility easement] they envisioned three houses jammed in there." He reasoned that any concerns that granting the variance would contravene settled expectations about the density of the area were baseless because "it could have been three houses but for the fortuitous circumstance of the easement...." Board member Steven DeFrank also explained his favorable vote by stating that, "but for the easements, you would have a more crowded area."

Thereafter, the plaintiff appealed from the board's decision to the trial court. After a hearing, the trial court dismissed the appeal. In its memorandum of decision, the court took note of the plaintiff's argument that "M & E can still build one house on proposed lot B and that a hardship does not arise simply because the owner of the land cannot use the land to its maximum financial potential." It concluded, however, that the easement "rendered the property nonconforming because the configuration of the easement across the property prevents a 150 foot square from being placed anywhere on proposed lot A" and, therefore, had produced "an unusual hardship for M & E in the use of its property" that justified the granting of the variance. The court relied on this court's decision in Smith v. Zoning Board of Appeals, 174 Conn. 323, 328, 387 A.2d 542 (1978) ("there is a clear case of uncommon hardship beyond the control of a property owner when the state seeks to condemn a portion of his or her land and thereby render it nonconforming to a minimum lot area restriction"). The court further concluded that the variance would not substantially affect the town's comprehensive zoning plan because, under the subdivision as approved in 1968, M & E could have built houses on each of the three lots.

The plaintiff appealed from the judgment of the trial court to the Appellate Court. She claimed on appeal that "the [trial] 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." Vine v Zoning Board of Appeals, supra, 93 Conn.App. at 2-3, 887 A.2d 442. The majority of the Appellate Court panel concluded that, because only extreme financial hardship can justify the granting of a variance, and M & E had not presented any evidence that enforcement of the regulations would destroy the economic utility of the property, the trial court improperly had dismissed the plaintiff's appeal. Id., at 13-15, 887 A.2d 442. Accordingly, the Appellate Court majority reversed the judgment of the trial court without reaching the plaintiff's first, third and fourth claims. The Appellate Court majority also noted that the board had contended that the elimination of nonconformities may serve as an independent basis for granting a variance; see Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 708-10, 535 A.2d 799 (1988); Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, 572, 785 A.2d 601(2001); but declined to consider that claim because it "was raised neither before the board nor the trial court" and "the defendants have not raised that issue as an alternate ground for affirming the court's decision." Vine v. Zoning Board of Appeals, supra, at 3, n. 3, 887 A.2d 442.

These certified appeals followed. The defendants claim on appeal that the Appellate Court majority improperly reversed the judgment of the trial court on the ground that the enforcement of § 6.25 of the town's zoning regulations on lot A would, at most, reduce the value of the property and would not destroy its economic utility. They further claim that the Appellate Court majority improperly determined that the board failed to preserve for review the claim that it properly granted the variance under Adolphson and Stancuna because the variance reduced a nonconforming use to a less offensive use. We conclude that the board's decision should be affirmed under those cases.

At the outset, we set forth our standard of review. "In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board].... 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.... If a trial court finds that there is substantial evidence to support a zoning board's findings, it cannot substitute its judgment for that of the board.... If there is conflicting evidence in support of the zoning commission's stated rationale, the reviewing court ... cannot substitute its judgment as to the weight of the evidence for that of the commission.... The agency's decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Citations omitted; internal quotation marks omitted.) Municipal Funding,...