E & F Associates, LLC v. Zoning Board of Appeals ( 2015 )

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E AND F ASSOCIATES, LLC v. ZONING BOARD OF
APPEALS OF THE TOWN OF FAIRFIELD ET AL.
(SC 19325)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued October 5—officially released December 22, 2015
Joel Z. Green, with whom was Linda Pesce Laske,
for the appellant (plaintiff).
Stanton H. Lesser, for the appellee (named
defendant).
Opinion
ROGERS, C. J. The issue that we must decide in
this appeal is whether the defendant Zoning Board of
Appeals of the Town of Fairfield (board) properly
granted an application for zoning variances to the defen-
dant 1460 Post Road, LLC (applicant), which allowed
the vertical expansion of a nonconforming building,
when there was no showing that the strict application
of the zoning regulations would destroy the property’s
value for any of the uses to which it could reasonably
be put. The plaintiff, E & F Associates, LLC, appealed
to the trial court from the board’s decision granting the
variances claiming that: (1) the board improperly had
concluded that the strict application of the zoning regu-
lations would produce an unusual hardship even though
the subject property would have economic value with-
out the variances; and (2) the board’s decision was
illegal and void because a member of the Fairfield Board
of Selectmen, who was an ex officio member of the
board, represented the applicant in the proceedings
before the board. The trial court rejected both claims
and dismissed the plaintiff’s appeal. The plaintiff then
filed this appeal,1 in which it contends that the trial
court improperly resolved both claims. We conclude
that the trial court improperly determined that the strict
application of the zoning regulations would produce an
undue hardship for the applicant, justifying the vari-
ances. Accordingly, we reverse the judgment of the trial
court on this ground, and we need not address the
plaintiff’s second claim.
The record reveals the following facts, which were
either found by the trial court or are undisputed, and
procedural history. The applicant owns property
located at 1460–1462 Post Road (property) in the town
of Fairfield (town). The property is situated at the cor-
ner of Post Road and Sanford Road and is in the center
designed business district zone,2 which consists of a
small area in the center of the town’s downtown. A
single story building is situated on the property and has
frontage on both Post Road and Sanford Road. The
building was constructed before the town adopted its
zoning regulations and is nonconforming with respect
to several of those regulations, including setback
requirements. Specifically, the town’s zoning regula-
tions require that buildings in the center designed busi-
ness district be set back at least ten feet from the street
line and ten feet from the rear property line. The build-
ing, however, extends to the street lines on both Post
Road and Sanford Street and is set back only six inches
from the rear property line.
In 2012, the applicant filed an application with the
board seeking variances of the street line and rear prop-
erty line setback requirements to add a second story
to the building.3 In its variance application, the applicant
represented that it wanted to lease the building to a
‘‘quality restaurant,’’ and the existing building lacked
sufficient storage and office space for that use. The
applicant also represented that it had received ‘‘numer-
ous offers [to lease the existing building] from a major
coffee/donut shop, several national fast food retailers
and other high turnover food establishments,’’ but that
it ‘‘[did] not believe that it would be in the best interests
of itself, the [town] and the Fairfield [c]enter merchants
to entertain such offers as they would provide a much
higher intensity in traffic in the already bustling Fair-
field [c]enter.’’
The board held a public hearing on the variance appli-
cation on March 1, 2012. Counsel for the plaintiff, which
owns property on Post Road abutting the applicant’s
property, appeared at the hearing and argued that the
applicant was not entitled to the variances because
the strict application of the zoning regulations did not
render the applicant’s property unusable or subject the
applicant to a unique hardship. The board voted to
approve the variance application, but did not explain
the reasons for its approval.
The plaintiff appealed from the board’s decision to
the trial court claiming, among other things, that the
board could not reasonably have found that the strict
application of the zoning regulations would produce
unusual hardship when the property had several uses
even without the variances, and the board had ‘‘relied
upon improper influences and upon considerations that
did not provide a valid basis [for its decision] as a matter
of law . . . .’’ Relying on the Appellate Court’s decision
in Stillman v. Zoning Board of Appeals, 25 Conn. App.
631, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d
365 (1991), the trial court concluded that, because the
configuration of the property and the building pre-
cluded the applicant from expanding the building verti-
cally without running afoul of the setback regulations,
the regulations produced a hardship justifying the
approval of the variance application. See id., 636–37
(zoning board of appeals properly granted variance
from setback requirements when placement of well and
septic system prevented applicant from building addi-
tion to house anywhere except in setback). Accordingly,
the trial court dismissed the appeal.
This appeal followed. The plaintiff claims that the
trial court improperly concluded that the board prop-
erly granted the variances when the applicant had failed
to demonstrate that the property would have no eco-
nomic value without the variances.4 We agree with
the plaintiff.
‘‘The standard of review on appeal from a zoning
board’s decision to grant or deny a variance [pursuant
to General Statutes § 8-6 (a)]5 is well established. We
must determine whether the trial court correctly con-
cluded that the board’s act was not arbitrary, illegal
or an abuse of discretion.’’ (Footnote added; internal
quotation marks omitted.) Moon v. Zoning Board of
Appeals, 291 Conn. 16, 23–24, 966 A.2d 722 (2009).
‘‘Because the plaintiffs’ appeal to the trial court is based
solely on the record, the scope of the trial court’s review
of the board’s decision and the scope of our review of
that decision are the same.’’ Hescock v. Zoning Board
of Appeals, 112 Conn. App. 239, 244, 962 A.2d 177 (2009).
In the present case, the question of whether the board
had authority to grant a variance pursuant to § 8-6 (a)
when the property would not lack economic value even
if the variance were denied is a question of law. Accord-
ingly, our review is plenary. Hasychak v. Zoning Board
of Appeals, 296 Conn. 434, 442, 994 A.2d 1270 (2010).
‘‘The burden of proof to demonstrate that the board
acted improperly is upon the plaintiffs.’’ (Internal quota-
tion marks omitted.) Moon v. Zoning Board of Appeals,
supra, 24.
‘‘A variance constitutes permission to act in a manner
that is otherwise prohibited under the zoning law of
the town. . . . It is well established, however, that the
granting of a variance must be reserved for unusual
or exceptional circumstances. . . . 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. . . . Accordingly, we
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 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. . . . Proof of exceptional
difficulty or unusual hardship is absolutely necessary
as a condition precedent to the granting of a zoning
variance.’’ (Internal quotation marks omitted.) Id.,
24–25.
‘‘Financial considerations are relevant [to the ques-
tion of whether a variance is justified] only if the appli-
cation of the regulation or ordinance practically
destroys the value of the property for any use to which
it may be put and the regulation or ordinance as applied
to the subject property bears little relationship to the
purposes of the zoning plan.’’ Bloom v. Zoning Board
of Appeals, 233 Conn. 198, 210, 658 A.2d 559 (1995);
see also Rural Water Co. v. Zoning Board of Appeals,
287 Conn. 282, 295, 947 A.2d 944 (2008) (‘‘considerations
of financial disadvantage—or, rather, the denial of a
financial advantage—do not constitute hardship, unless
the zoning restriction greatly decreases or practically
destroys [the property’s] value for any of the uses to
which it could reasonably be put’’ [internal quotation
marks omitted]); Vine v. Zoning Board of Appeals, 281
Conn. 553, 561, 916 A.2d 5 (2007) (‘‘[f]inancial considera-
tions are relevant only in those exceptional situations
where a board could reasonably find that the applica-
tion of the regulations to the property greatly decreases
or practically destroys its value for any of the uses
to which it could reasonably be put and where the
regulations, as applied, bear so little relationship to the
purposes of zoning that, as to particular premises, the
regulations have a confiscatory or arbitrary effect’’
[internal quotation marks omitted]). ‘‘A zoning regula-
tion that prevents land from being used for its greatest
economic potential . . . does not create the excep-
tional kind of financial hardship that we have deemed
to have a confiscatory or arbitrary effect.’’ (Internal
quotation marks omitted.) Grillo v. Zoning Board of
Appeals, 206 Conn. 362, 370, 537 A.2d 1030 (1988); see
also Dolan v. Zoning Board of Appeals, 156 Conn. 426,
430–31, 242 A.2d 713 (1968) (‘‘[i]t is not a proper func-
tion of a zoning board of appeals to vary the application
of zoning regulations merely because the regulations
hinder landowners and entrepreneurs from putting their
property to a more profitable use’’); Krejpcio v. Zoning
Board of Appeals, 152 Conn. 657, 662, 211 A.2d 687
(1965) (‘‘[d]isappointment in the use of property does
not constitute exceptional difficulty or unusual
hardship’’).
‘‘In order to determine whether the board properly
granted the subject variance, we must first consider
whether the board gave reasons for its action. . . .
Where a zoning board of appeals does not formally state
the reasons for its decision . . . the [reviewing] court
must search the record for a basis for the board’s deci-
sion.’’ (Internal quotation marks omitted.) Moon v. Zon-
ing Board of Appeals, supra, 291 Conn. 25.
In the present case, our search of the record has
revealed no basis for the board’s decision granting the
applicant’s variance application under the foregoing
legal standards. With respect to economic hardship, the
applicant conceded in its variance application and at the
hearing before the board that it had received numerous
offers from a variety of sources to lease the existing
building. Accordingly, there is no evidence that the
strict application of the zoning regulations would have
a confiscatory effect. Indeed, the board makes no claim
that the applicant was entitled to the variances because
a denial would cause economic hardship. Rather, the
board claims that, because most of the properties in
the central design business district have two stories
and the building on the applicant’s property has only
one story, and because the building is on a corner lot
subject to two separate street setbacks, the property
has peculiar characteristics that render the strict appli-
cation of the zoning regulations unduly harsh because
it would prevent the construction of a second story.
Even if we were to assume that the placement of the
building on a corner lot and the fact that it has only
one story are characteristics that are not shared by
other properties in the central designed business dis-
trict, however, this court previously has held that proof
that a property has a ‘‘peculiar characteristic’’; id., 24;
that has made it difficult for a particular use to comply
with the zoning regulations does not justify the granting
of a variance when the owner has ‘‘made no showing
that [the property] could not reasonably be developed
for some other use permitted in the [zoning district] or
that the effect of limiting the parcel to the permitted
uses only would be confiscatory or arbitrary.’’ Miclon
v. Zoning Board of Appeals, 173 Conn. 420, 423, 378
A.2d 531 (1977); id. (difficulties created by difficulties
of access and topography of property did not justify
variance in absence of proof that application of zoning
regulations would be confiscatory or arbitrary); see also
Bloom v. Zoning Board of Appeals, supra, 233 Conn. 210
(zoning board of appeals improperly granted variance
because ‘‘limitations imposed by the shape of the lot
do not in themselves create a hardship,’’ and there was
no evidence that property would be worthless if vari-
ance were denied [internal quotation marks omitted]);
Dolan v. Zoning Board of Appeals, supra, 156 Conn.
431 (no evidence in record demonstrating diminishing
effect regulation had on value of property); Krejpcio v.
Zoning Board of Appeals, supra, 152 Conn. 662 (that
it would be to applicant’s financial advantage to secure
variance did not warrant relaxation of zoning regula-
tions). Accordingly, the fact that the peculiar character-
istics of the applicant’s property made it difficult to
construct a second story on the building that would
comply with setback requirements did not justify the
granting of the variance when the evidence established
that the property would have economic value if the
variance were denied.
As we previously have indicated, in support of its
conclusion to the contrary, the trial court in the present
case relied on the Appellate Court’s decision in Stillman
v. Zoning Board of Appeals, supra, 25 Conn. App. 631.
In Stillman, the defendant landowner sought a variance
of the town of Redding’s coverage and setback regula-
tions in order to build an addition to her house, which
the Zoning Board of Appeals of the Town of Redding
granted. Id., 632. The defendant landowner had claimed
that a hardship existed because the location of a well
and septic system on her property prevented her from
building the addition anywhere except on an area where
it was prohibited by the setback requirement. Id., 636.
The plaintiff, an abutting landowner, appealed to the
trial court, which reversed the decision of the Zoning
Board of Appeals of the Town of Redding on the ground
that the defendant landowner had failed to establish a
hardship because the record was ‘‘devoid of evidence
that the property has little or no value because of the
setback regulations . . . .’’ Id., 635–36. The defendant
landowner then appealed to the Appellate Court, which
concluded that the trial court had applied an improper
test. Id., 636. Specifically, the Appellate Court con-
cluded that, although the ‘‘[economic hardship] test is
a valid means of establishing a hardship, it is not exclu-
sive.’’ Id. Rather, even in the absence of a showing that
the denial of the variance will cause economic hardship,
‘‘[a] variance may be granted if the literal enforcement
of a regulation causes exceptional difficulty or hardship
because of some unusual characteristic of the prop-
erty.’’6 Id. The Appellate Court further concluded that
this test was met in Stillman because of the location
of the well and septic system on the defendant landown-
er’s property. Id., 636–37. Accordingly, the court con-
cluded that the board properly had granted the variance.
Id.; see also Jersey v. Zoning Board of Appeals, 101
Conn. App. 350, 360, 921 A.2d 683 (2007) (variance may
be granted when hardship has been established even
if property would have economic value if zoning regula-
tions were strictly applied); Giarrantano v. Zoning
Board of Appeals, 60 Conn. App. 446, 453, 760 A.2d 132
(2000) (variance may be granted when strict application
of zoning regulations would deprive landowner of par-
ticular use of property that is allowed in zoning district
even when property would have economic value with-
out variance).7
This court, however, has criticized the Appellate
Court’s decision in Stillman. In Bloom v. Zoning Board
of Appeals, supra, 233 Conn. 210–11 n.13, this court
stated that, contrary to the holding in Stillman, ‘‘the
fact that an owner is prohibited from adding new struc-
tures to the property does not constitute a legally cogni-
zable hardship. If it is a hardship to not be able to
use one’s property as one wishes, then most setback
variance applications would have to be granted. . . .
Although we distinguish Stillman from this case, we do
not necessarily endorse its holding.’’ (Citation omitted;
internal quotation marks omitted.)
Moreover, Stillman is inconsistent with our cases
holding that, when a property would have economic
value even if the zoning regulations were strictly
enforced, the fact that a peculiar characteristic of the
property would make compliance with the zoning regu-
lations exceptionally difficult if the property were put
to a more valuable or desirable use does not constitute
either an ‘‘exceptional difficulty’’ or an unusual hardship
for purposes of § 8-6 (a). Krejpcio v. Zoning Board of
Appeals, supra, 152 Conn. 662 (‘‘[d]isappointment in
the use of property does not constitute exceptional
difficulty or unusual hardship’’); see also Rural Water
Co. v. Zoning Board of Appeals, supra, 287 Conn. 295
(denial of financial advantage generally does not consti-
tute hardship); Grillo v. Zoning Board of Appeals,
supra, 206 Conn. 370 (regulation preventing land from
use for greatest economic potential does not create
exceptional financial hardship); Miclon v. Zoning
Board of Appeals, supra, 173 Conn. 423 (no hardship
when landowner made no showing that property could
not reasonably be developed for some other use permit-
ted in zone); Dolan v. Zoning Board of Appeals, supra,
156 Conn. 430–31 (application of zoning regulations not
varied merely because they hinder landowners from
putting property to more profitable use). We continue
to find the reasoning of these cases persuasive. ‘‘This
court has many times held that the power to grant
variances must be exercised sparingly . . . .’’ Krejpcio
v. Zoning Board of Appeals, supra, 661. If the fact that
a peculiar characteristic of a property prevented a land-
owner from putting the property to a particular use that
is allowed in the zoning district justified the granting
of a variance in and of itself, even when the property
would have economic value if the variance were denied,
‘‘the whole fabric of town- and city-wide zoning [would]
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
[would be] 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). Accordingly, we conclude that
Stillman and its progeny must be overruled. Because
Stillman provided the sole basis for the trial court’s
ruling in the present case and denial of the variances
will cause no unusual hardship, we conclude that the
board improperly granted the applicant’s application
for variances and the trial court improperly dismissed
the plaintiff’s appeal.
The judgment is reversed and the case is remanded
to the trial court with direction to sustain the plaintiff’s
appeal and to remand the case to the board with direc-
tion to deny the applicant’s application for the
variances.
In this opinion the other justices concurred.
1
The Appellate Court granted the plaintiff’s petition for certification to
appeal from the judgment of the trial court pursuant to General Statutes
§ 8-8 (o) and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
2
The trial court referred to the ‘‘[c]ommercial [d]esigned [b]usiness [d]is-
trict.’’ The zoning regulations, however, refer to the zone as the ‘‘[c]enter
[d]esigned [b]usiness [d]istrict.’’ Fairfield Zoning Regs., § 12.3.
3
Neither the applicant nor the board has ever disputed that the variances
were required because the vertical expansion of the building within the
applicable setbacks constituted a prohibited expansion of the nonconform-
ing use under the town’s zoning regulations.
4
The plaintiff also claims that the trial court improperly rejected its claim
that the board’s decision was illegal and void because the applicant had
been represented in the proceedings before the board by an attorney who
was an ex officio member of the board. Because we agree with the plaintiff’s
claim that the board should have rejected the application for variances when
the property would have economic value if the variances were denied, we
need not address this claim.
5
General Statutes § 8-6 (a) provides in relevant part: ‘‘The zoning board
of appeals shall have the following powers and duties . . . (3) to 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 so that
substantial justice will be done and the public safety and welfare secured,
provided that the zoning regulations may specify the extent to which uses
shall not be permitted by variance in districts in which such uses are not
otherwise allowed. . . .’’
6
The Appellate Court in Stillman v. Zoning Board of Appeals, supra, 25
Conn. App. 636, relied on this court’s decisions in Whittaker v. Zoning
Board of Appeals, 179 Conn. 650, 658, 427 A.2d 1346 (1980), and Garibaldi
v. Zoning Board of Appeals, 163 Conn. 235, 238, 303 A.2d 743 (1972). Neither
Whittaker nor Garibaldi, however, directly addressed the question of
whether a peculiar characteristic of a property that makes compliance with
zoning regulations difficult is sufficient to justify the granting of a variance
when the property would have economic value even if the zoning regulations
were strictly enforced.
7
But see Vine v. Zoning Board of Appeals, 93 Conn. App. 1, 9 n.14, 887
A.2d 442 (2006), rev’d on other grounds, 281 Conn. 553, 916 A.2d 5 (2007).
In Vine, the Appellate Court attempted to explain that its decision in Giar-
rantano did not stand for the proposition that a variance is justified when-
ever strict application of the zoning regulations would deprive the applicant
of a use of the property that was allowed in the zoning district. Id. The
peculiar characteristics of the property had created a hardship in Giarran-
tano, however, only because the landowner wanted to put the land to a
particular use. Giarrantano v. Zoning Board of Appeals, supra, 60 Conn.
App. 448–49. Those characteristics would not have prevented other uses of
the property that had economic value. Id. It is clear to us, therefore, that
the court in Giarrantano concluded that the landowner was entitled to a
variance because, otherwise, he would have been deprived of a use of the
property that was allowed in the zoning district.