Benedict v. Zoning Board of Appeals ( 2015 )

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MARYLOU C. AMENDOLA v. ZONING BOARD OF
APPEALS OF THE CITY OF WEST HAVEN
(AC 36811)
HOWARD WARREN BENEDICT ET AL. v. ZONING
BOARD OF APPEALS OF THE CITY
OF WEST HAVEN
(AC 36813)
DiPentima, C. J., and Beach and Lavery, Js.
Argued September 16—officially released December 15, 2015
(Appeal from Superior Court, judicial district of New
Haven, Frechette, J.)
Timothy B. Yolen, for the appellants in both
appeals (plaintiffs).
Charles R. Andres, for the appellee both appeals
(named defendant).
Michael A. Leone, with whom, on the brief, was Brian
G. Enright, for the appellee in both appeals (defendant
Robert Fischer).
Opinion
LAVERY, J. These two appeals raise the common
question of whether the size and shape of the subject
property constituted a legally recognized hardship.1 In
2009, the defendant Zoning Board of Appeals of the city
of West Haven (board), granted six variances sought
by the applicant, the defendant Robert F. Fischer,2 to
expand his already nonconforming dwelling. Fischer’s
immediate neighbors, the plaintiff in AC 36811, Marylou
C. Amendola and her husband, Vincent Amendola, to
the west of Fischer, and the plaintiffs in AC 36813,
Howard Warren Benedict and Barbara Spencer Bene-
dict, to the east, appealed from the board’s decision
to the Superior Court. The court heard together and
dismissed both appeals, concluding, inter alia, that the
administrative record supported the board’s finding of
a legally recognized hardship necessary for the granting
of a variance. These certified appeals followed, with
the dispositive issue in both cases being whether a
legally recognized hardship exists. We conclude, for the
reasons that follow, that the finding of hardship was
improper and, accordingly, reverse the judgments of
the Superior Court.
I
The property at issue (property) in this appeal is
located at 201 Ocean Avenue in West Haven. It resem-
bles a long and narrow rectangle, measuring approxi-
mately 50 feet wide by 200 feet long and stretches from
Ocean Avenue, to the north, to Long Island Sound, to
the south. Between the southern border of the property
and Long Island Sound, as is the case with many of the
other properties situated between Long Island Sound
and Ocean Avenue, runs an unimproved utility and
sewer easement known as Old King’s Highway. As a
result, the property has two front yards; one abuts the
street and the other the water. The two longer sides of
the property separate it from its Ocean Avenue neigh-
bors. The Amendolas share an approximately 219.1 foot
boundary with the property to the west, and the Bene-
dicts share an approximately 198.5 foot boundary with
the property to the east. Altogether, the property lot
measures approximately 10,400 square feet.
On the property stands Fischer’s two-story single-
family residential dwelling. The dwelling measures 30
feet wide by 35 feet long and is set back 10 feet on
both its east and west boundaries. Like most of the
surrounding homes, the dwelling is located closest to
the water side of the property. As a result, while it is
setback approximately 158.5 feet from its Ocean Ave-
nue border, the setback from Long Island Sound is
nonexistent because a deck, measuring 30 feet wide
(the width of the dwelling) extends 18 feet from the
dwelling toward the Sound and thus encroaches onto
the Old King’s Highway easement.
According to the city’s zoning map, the property is
located in an R-2 ‘‘single-family residential district.’’
West Haven Zoning Regs., § 11. Under the West Haven
zoning regulations, and as summarized by the Superior
Court, the property ‘‘is nonconforming in four respects:
(1) the dwelling is located on a 10,400 square foot lot,
where a 16,000 square foot lot is required; (2) the front
yard setback on the waterside of the property is nonex-
istent, where a thirty foot setback is required, as the
attached deck encroaches on Old King’s Highway; (3)
the side yard setbacks are each ten feet wide, where
fifteen foot setbacks are required; and (4) the street
frontage is fifty feet wide, where eighty feet is required.
. . . Nevertheless, because the dwelling predates the
existing regulations, and because of a previous setback
variance, the dwelling is a legally nonconforming struc-
ture and requires no modification. See generally West
Haven Zoning Regs., § 82.’’3 (Citation omitted; foot-
note omitted.)
On March 13, 2009, Fischer applied for six variances
from the West Haven zoning regulations to expand the
existing dwelling. Along with a building coverage vari-
ance and a lot coverage variance, Fischer requested
four setback variances to construct: (1) an addition on
the street side of the property allowing him to nearly
double his living space; (2) an attached three car garage
to be located on the street side of the newly constructed
addition; (3) an addition on the water side of the dwell-
ing, by enclosing a portion of the existing deck; and (4)
a second floor balcony on the water side, that would
extend from the second floor of the newly enclosed
addition to the end of the current deck.4 With respect
to the claim of hardship, Fischer stated that ‘‘[t]he lot
size limits the full enjoyment of th[e] property, [and
the] undersize lot and shape were developed prior to
the current zoning.’’
On April 15, 2009, the board held a public hearing
on Fischer’s application. At the hearing, Brian Enright,
counsel for Fischer, explained that the expansion was
necessary for ‘‘additional dwelling space,’’ and ‘‘to pro-
cure reasonable use of the lot.’’ Enright further stated
that the hardship underlying the requested variances
was due to the small size of the lot, its rectangular
shape, and the location of the unimproved Old King’s
Highway easement.
Enright further informed the board that not only was
the expansion plan influenced by the size and shape of
the lot, but the expansion plan also reflected the con-
cerns of Fischer’s neighbors. For example, Enright
stated that ‘‘in an effort to try and address some of
the concerns of the neighbors, [Fischer] shortened the
addition on the [Sound] side and moved it approxi-
mately 1.25 feet closer to Ocean Avenue.’’ He explained
that under the original plan, ‘‘the entire addition of the
house was going to go out approximately 8.25 feet on
the easterly boundary. . . . [The new plans] reduced
that portion of the addition on the beach side or ocean
side to a maximum of 7 feet.’’
Enright also argued that although the new expansion
plans resulted in an impermissible increase of a noncon-
forming structure; see West Haven Zoning Regs., § 82.3;5
the expansion was reasonable because it would not
increase the dwelling’s encroachment into the required
setback area. He explained that while the size of the
dwelling would increase, the degree of the dwelling’s
noncompliance with the setback requirements would
remain the same. For example, Enright described the
first floor expansion on the water side, to be con-
structed by enclosing the existing deck, as ‘‘being built
completely within the existing structure’s footprint.
There is an existing deck that you can see on the plan.
We are not exceeding the existing footprint in any fash-
ion.’’ Likewise, he described the construction of a new
second floor deck on the water side of the dwelling as
‘‘be[ing] flush up against the house here again running
along that same line. . . . So again because this is a
structure even though it’s on the second floor and not
on the ground floor, it does require a variance because
it does run flush with the building it would in fact be
10 feet from the side yard where 15 is required but
again consistent with the current lines of the building.’’
Finally, he described the street side addition as merely
maintaining the nonconforming dwelling by saying,
‘‘[t]his addition would require a variance because it
would be 10 feet from the side yard where 15 is required.
Again, the existing home is 10 feet from the side yard.
So it’s consistent with the current use.’’
In response to a question from the board, Enright
clarified that it was Fischer’s preference to construct
a nonconforming attached garage, instead of a detached
garage that would conform to the regulations. He
explained: ‘‘As you folks are aware, if this were a true
garage, if it were a detached structure and while we
understand that there are certain size limitations rele-
vant to that in an R-2 zone this building could actually
be placed as close as 4 feet to the neighboring side
yard. We believe for a lot of reasons that attached is
more appropriate. We think esthetically it works better
for the neighboring properties. We think that it clearly
makes more practical sense. . . . We think from the
standpoint of esthetics and overall property values of
everyone around us, it works better i[n] this fashion.
We understand that . . . reasonable men and women
that can differ and you may hear those opinions but
we think this is the most appropriate and most limited
variance to ask for this portion of the application.’’
Following Enright’s presentation, the board heard
from members of the public. Vincent Amendola,
Fischer’s neighbor to the west, argued that the proposed
plans would interfere with his water view, property
enjoyment, and expectation of privacy. Further, he
objected to the variance application on the grounds
that no hardship had been shown, stating that, ‘‘Mr.
Enright talked about hardship being shape and configu-
ration. I respectfully disagree with that. This is a square
lot. It’s 50 feet wide by 198 feet on one boundary with
the Benedicts and 219 feet on the boundary that abuts
our property. If you look in West Haven, there must be
hundreds, maybe more than hundreds, maybe a thou-
sand, 50 by 100 square foot lots here. So to say that
this is a hardship because he’s got a 10,440 square foot
lot, I would respectfully disagree with that. . . . So
there is nothing exceptionally hard here. There’s noth-
ing unusual. There’s nothing peculiar to his lot. His lot
is no different really than mine or many of the lots that
border Ocean Avenue.’’ Furthermore, Vincent
Amendola pointed out that construction alternatives
requiring less intrusive variances were available to
Fischer, such as building an addition in a different loca-
tion. For example, he stated that ‘‘[i]f Mr. Fischer
wanted to put a 60 foot addition on his property going
back towards Ocean Avenue, he could do that. He would
still need a variance of course because of the maximum
lot coverage. But the point I am trying to make is there
is a tremendous amount of room back there that he
could take advantage of to have his addition. So he
would in no way shape or form be denied the reasonable
use of his property.’’
Likewise, Howard and Barbara Benedict, Fischer’s
neighbors to the east, opposed the variance application,
arguing that increasing the size of the dwelling would
result in a structure that is ‘‘overpowering for the size
of the lot and particularly overpowering in length. . . .
It’s so long and it’s so close and that is a 24 foot high
garage that is attached coming 5 feet from the property
line. So it’s really in your face. When that goes up, it’s
going to be enormous.’’ With respect to the garage, the
Benedicts echoed the concerns of Vincent Amendola,
arguing that Fischer could construct a detached garage
without the need for setback variances. Barbara Bene-
dict stated, ‘‘[t]here’s plenty of room on the property.
As [Vincent] Amendola said, we can’t have everything
we want. I’m willing to say if he wants a three car
garage if it’s separate. I wouldn’t even object to the
height if it was attractive and it looked like a nice
structure. . . . There’s plenty of space to do what he
wants.’’ After hearing from the plaintiffs and other mem-
bers of the public, the board continued the hearing until
August 19, 2009.
On August 19, 2009, the board, without giving a state-
ment of its reasons, granted Fischer’s application. On
September 4, 2009, the plaintiffs commenced two sepa-
rate appeals from the decision of the board in the Supe-
rior Court. In their complaints, which are nearly
identical, the plaintiffs alleged, inter alia, that the board,
in granting the requested variances, ‘‘acted illegally,
arbitrarily, and in abuse of the discretion vested in it
in that . . . [t]here was no substantial evidence upon
which the Board could have found the claimed hardship
to exist.’’
On January 25, 2013, the court held a hearing on both
appeals. On July 16, 2013, the court, in a memorandum
of decision, dismissed both appeals, concluding that
the board’s decision was not unreasonable, arbitrary,
or illegal. Specifically, the court determined that ‘‘the
unusually narrow shape of the subject property and the
presence of Old King’s Highway on the water side of
the property support the board’s finding of hardship.
The subject lot is merely 10,400 square feet, which is
approximately 60 percent of the minimum area for prop-
erties located within the R-2 district. West Haven Zoning
Regulations § 11, Table 11.1. . . . After accounting for
the side yard setbacks, the buildable area is merely
twenty feet wide. Id. Therefore, absent a variance, the
property could hardly be put to any conforming use.’’
Finally, relying on Smith v. Zoning Board of Appeals,
174 Conn. 323, 327, 387 A.2d 542 (1978), for the proposi-
tion that ‘‘the hardship must be different in kind from
that generally affecting properties in the same zoning
district,’’ the court concluded that ‘‘[a]lthough other
properties on Ocean Avenue are similarly undersized
and thus similarly impacted by the zoning regulations,
these particular conditions are unique to properties that
border this section of the Long Island Sound, and not
the remaining lots that occupy the sprawling R-2 dis-
trict.’’ Both plaintiffs then filed separate petitions for
certification to appeal pursuant to General Statutes § 8-
8 (o). This court granted the petitions, and these
appeals followed.
II
We begin by setting forth our standard of review
applicable to appeals from a decision of a zoning board.
‘‘In reviewing a decision of a zoning board, a reviewing
court is bound by the substantial evidence rule . . . .’’
(Internal quotation marks omitted.) Vine v. Zoning
Board of Appeals, 281 Conn. 553, 559, 916 A.2d 5 (2007).
‘‘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 sub-
stitute 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 exer-
cised 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.’’ (Internal quotation marks omitted.)
Durkin Village Plainville, LLC v. Zoning Board of
Appeals, 107 Conn. App. 861, 867, 946 A.2d 916 (2008).
‘‘When a zoning board states the reasons for its
action, the question for the court to pass on is simply
whether the reasons assigned are reasonably supported
by the record and whether they are pertinent to the
considerations which the [board] is required to apply
under the zoning regulations. . . . The court should
not go behind the official statement of the board.’’ (Cita-
tions omitted; internal quotation marks omitted.) Chev-
ron Oil Co. v. Zoning Board of Appeals, 170 Conn.
146, 152–53, 365 A.2d 387 (1976). ‘‘In the absence of a
statement of purpose by the zoning [board] for its
actions, it [is] the obligation of the trial court, and of
this court upon review of the trial court’s decision, to
search the entire record to find a basis for the [board’s]
decision.’’ (Internal quotation marks omitted.) Harris
v. Zoning Commission, 259 Conn. 402, 423, 788 A.2d
1239 (2002).
In this case, although board members discussed the
characteristics of the property and conditions for grant-
ing the proposed variances, the record does not contain
a collective statement of the board’s reasons for grant-
ing the variances. See Bloom v. Zoning Board of
Appeals, 233 Conn. 198, 208–209, 658 A.2d 559 (1995)
(‘‘although individual members of the board discussed
reasons for granting the owners a variance, the board
did not state a collective, official reason for its action’’);
Protect Hamden/North Haven from Excessive Traf-
fic & Pollution, Inc. v. Planning & Zoning Commis-
sion, 220 Conn. 527, 546 n.15, 600 A.2d 757 (1991) (‘‘[i]t
[is not] appropriate for a reviewing court to attempt
to glean such a formal, collective statement from the
minutes of the discussion by commission members
prior to the commission’s vote’’). As a result, we must
review the entire record to ascertain whether ‘‘the evi-
dence reveals any proper basis for the board’s decision
to grant the variances in the present case.’’ Verrillo v.
Zoning Board of Appeals, 155 Conn. App. 657, 676, 111
A.3d 473 (2015).
III
Before considering the specific claim advanced in
this appeal, we first review the standard in our state
for granting a variance. General Statutes § 8-6 provides
a municipal zoning board of appeals with the power to
grant a variance from compliance with local zoning
regulations to a specific piece of property.6 Although a
zoning board of appeals has such power, the variance
power should be used sparingly for ‘‘[t]he granting of
a variance is no insignificant matter, as it runs with the
land in perpetuity’’; id., 679; see also Garibaldi v. Zon-
ing Board of Appeals, 163 Conn. 235, 239, 303 A.2d
743 (1972) (‘‘a variance is granted with respect to a
particular piece of property; it can be enjoyed not only
by the present owner but by all subsequent owners’’);
and ‘‘constitutes permission to act in a manner that is
otherwise prohibited under the zoning law of [a] town.’’
Bloom v. Zoning Board of Appeals, supra, 233 Conn.
206. As a result, a zoning board may not exercise this
authority unless ‘‘two basic requirements are satisfied:
(1) the variance must be shown not to affect substan-
tially 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.) Id., 207. Moreover,
a zoning board may grant a variance ‘‘only where a
situation falls fully within the specified requirements.’’
Allen v. Zoning Board of Appeals, 155 Conn. 506, 510,
235 A.2d 654 (1967). ‘‘[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 pur-
pose in protecting the property values and securing the
orderly development of the community is completely
thwarted.’’ Gregorio v. Zoning Board of Appeals, 155
Conn. 422, 427, 232 A.2d 330 (1967). Therefore, without
such a showing of hardship, one does not simply get a
zoning variance.
The first part of the test, that the use requested by
the variance application is in accord with the compre-
hensive zoning plan, is usually met when the use to be
allowed by the variance is consistent with other uses
in the area. See Eagan v. Zoning Board of Appeals, 20
Conn. App. 561, 564–65, 568 A.2d 811 (1990) (concluding
variance application to construct single family home in
violation of lot area and setback regulations complied
with comprehensive zoning plan in residential zoning
district where many single family homes in immediate
area were built on small lots and enjoyed similar set-
backs). The trial court concluded that this part of the
test was met and we agree. See id.The second part of the test, that the zoning regulation
cause unusual hardship to the land unnecessary to car-
rying out the zoning plan, is generally more difficult to
satisfy, but remains an absolute necessary as a condi-
tion precedent to the granting of a zoning variance. See
R. Fuller, 9 Connecticut Practice Series: Land Use Law
and Practice (3d Ed. 2007) § 9:3, pp. 240–42. The appli-
cant has the burden of proving hardship and ‘‘must
establish both the existence of a sufficient hardship
and that the claimed hardship is . . . unique . . . .’’
(Internal quotation marks omitted.) Verrillo v. Zoning
Board of Appeals, supra, 155 Conn. App. 682. The
claimed hardship must originate in the zoning ordi-
nance; Pollard v. Zoning Board of Appeals, 186 Conn.
32, 39, 438 A.2d 1186 (1982); meaning that ‘‘because of
some peculiar characteristic of [the] 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.’’ (Internal quotation marks omitted.) Bloom v.
Zoning Board of Appeals, supra, 233 Conn. 207. In other
words, a legal hardship must ‘‘[relate] to the property
for which the variance is sought and not to the personal
hardship of the owners thereof.’’ Garibaldi v. Zoning
Board of Appeals, supra, 163 Conn. 238. Thus, a prop-
erty owner’s ‘‘[d]isappointment in the use of property
does not constitute exceptional difficulty or unusual
hardship’’; Krejpcio v. Zoning Board of Appeals, 152
Conn. 657, 662, 211 A.2d 687 (1965); and principles of
equity, fairness to the applicant, and lack of adverse
consequences to surrounding properties do not meet
the test for a legally recognized hardship. 9 R. Fuller,
supra, § 9.1, pp. 237–38. Finally, the hardship ‘‘must be
different in kind from that generally affecting property
in the same zoning district . . . .’’ Smith v. Zoning
Board of Appeals, supra, 174 Conn. 327. As a result,
‘‘[t]he existence of similar lots . . . make[s] it difficult
or impossible to prove unusual or unique hardship.’’ 9
R. Fuller, supra, § 9.2, p. 240.
IV
We now address the claimed hardship. The city’s
regulations require a fifteen foot setback between
Fischer’s dwelling and the property line. See West
Haven Zoning Regs., § 11, Table 11.1. The regulations
also limit the lot coverage to 35 percent and building
coverage to 20 percent. Id. Fischer requested, and the
board granted, a variance from these requirements. The
claim of hardship advanced by Fischer, which the board
found and the Superior Court affirmed, is that the prop-
erty’s hardship arose from his inability to construct the
additions he desired owing to the size and shape of
the property. By contrast, the plaintiffs claim that the
hardship identified by Fischer is personal in nature and
amounts to disappointment rather than legal hardship.
We agree with the plaintiffs and hold that Fischer has
not established a legally recognized hardship.
We first note the significance that Fischer’s zoning
application sought to expand—and perpetuate—an
existing nonconforming structure, despite the general
rule that ‘‘a nonconforming structure cannot be
increased in size in violation of zoning ordinances
. . . .’’ Bauer v. Waste Management of Connecticut,
Inc., 234 Conn. 221, 243, 662 A.2d 1179 (1995). Although
a nonconforming property owner may ‘‘continue the
same use of the property as it existed before the date
of the adoption of the zoning regulations’’; Helbig v.
Zoning Commission, 185 Conn. 294, 306, 440 A.2d 940(1981); ‘‘it is the indisputable goal of zoning to reduce
nonconforming to conforming uses with all the speed
justice will tolerate’’; (internal quotation marks omit-
ted) id.; and ‘‘[i]n no case should [a nonconformance]
be allowed to increase.’’ (Internal quotation marks omit-
ted.) Adolphson v. Zoning Board of Appeals, 205 Conn.
703, 710, 535 A.2d 799 (1988). With that goal in mind,
‘‘[t]here exists a crucial distinction between maintaining
an existing nonconforming structure and improving, or
modernizing, it.’’ Verrillo v. Zoning Board of Appeals,
supra, 155 Conn. App. 693 n.23. ‘‘Zoning regulations that
deal with legal nonconforming uses of land or buildings
balance two competing interests, the protection of indi-
vidual property rights and the protection of the commu-
nity’s interest in a speedy elimination of the particular
nonconformity. . . . The landowner has an interest in
making reasonable renovations to prevent deteriora-
tion, but the community has an interest in not extending
the life of the nonconformity so that the nonconformity
gradually will be eliminated. . . . If a property owner
is allowed to make drastic changes in a building, that
interest would be favored over the interest of the com-
munity.’’ (Citations omitted.) Munroe v. Zoning Board
of Appeals, 75 Conn. App. 796, 810, 818 A.2d 72 (2003).
The express intent of the West Haven zoning regula-
tions is to ‘‘regulate the use of property in lots having
minimum sizes, dimensions and characteristics. It is
also the intent of these Regulations that the structures
located on said lots shall similarly comply with certain
dimensional requirements.’’ West Haven Zoning Regs.,
§ 82.1. Accordingly, the regulations provide that ‘‘no
enlargement of conversion may be made which would
either create a new noncompliance or increase the
degree of noncompliance of the building or other struc-
ture or any portion thereof. An enlargement is defined
as creating additional units, rooms, or a greater degree
of lot coverage.’’ (Emphasis omitted.) Id., § 82.2.3. Fur-
ther, the regulations set forth four requirements; see
footnote 5 of this opinion; that, if met, could remove a
residential construction project from classification as
‘‘an increase in the degree of noncompliance.’’ West
Haven Zoning Regs., § 82.3.1. A residential construction
project’s ‘‘[f]ailure to meet each section of [the] require-
ments shall be considered to be an increase in the
noncompliance and therefore shall not be permitted.’’
(Emphasis omitted.) Id. Those regulations therefore
reflect the principle of zoning that nonconforming struc-
tures not be allowed to increase.
Here, the property is nonconforming in four respects
and the prior owner of the property previously received
a variance from the front yard setback requirement on
the waterside of the property—one of the very variances
Fischer now seeks-—which was not contested or
appealed. See footnote 3 of this opinion. Nonetheless,
Fischer’s present application seeks six variances, each
of which would further increase the property’s degree
of nonconformity and one that would increase the prop-
erty’s degree of nonconformity in the very area where
the property already enjoys a variance. See Munroe v.
Zoning Board of Appeals, supra, 75 Conn. App. 810–11
(holding addition to nonconforming structure, even if
constructed within existing footprint, was ‘‘a substan-
tial increase in the nonconformity’’). With this backdrop
in mind, we turn to the controlling issue: whether sub-
stantial evidence supports the board’s finding that
Fischer demonstrated a legally recognized hardship
resulting from his inability under the regulations to
expand his nonconforming structure.
In his application for a variance, Fischer alleged that
exceptional hardship existed because ‘‘[t]he lot size
limit[ed] the full enjoyment of th[e] property . . . .’’
Specifically, the setback and coverage requirements
precluded Fischer from erecting the ‘‘additional dwell-
ing space’’ in accordance with his desired construction
plans. Additionally, Enright described the proposed
expansion as reflecting not only Fischer’s personal pref-
erence, but that of his neighbors as well, noting that
Fischer acquiesced to a reduction in the size of the
expansion at his neighbors’ behest. He also acknowl-
edged that although Fischer could construct a detached
garage without violating the regulations, it was
Fischer’s personal preference to construct a noncon-
forming attached garage on the grounds that the non-
conforming option was more reasonable based on
esthetics and practicality.
Accordingly, Fischer is at pains to characterize his
alleged hardship as anything other than personal prefer-
ence disappointed by the regulations. Our case law pre-
cludes the granting of a variance based upon a property
owner’s personal preference for constructing an addi-
tion that is frustrated by zoning regulations. See Berk-
man v. Board of Appeals, 135 Conn. 393, 399–400, 64
A.2d 875 (1949) (‘‘disappointment in the use of property
can hardly constitute practical difficulty or unnecessary
hardship within the meaning of a zoning law or regula-
tion’’). This principle is founded in the requirement that
‘‘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.’’ Garibaldi v. Zoning Board of Appeals,
supra, 163 Conn. 239. Thus, the hardship necessary for
the granting of a zoning variance must be unrelated to
the desire of any particular property owner. Hyatt v.
Zoning Board of Appeals, 163 Conn. 379, 382, 311 A.2d
77 (1972). So, ‘‘the fact that an owner is prohibited
from adding new structures to the property does not
constitute a legally cognizable hardship.’’ Bloom v. Zon-
ing Board of Appeals, supra, 233 Conn. 210–11 n.13.
Therefore, Fischer’s inability to more than double the
existing size of his already nonconforming dwelling for
spatial and aesthetic reasons is not a hardship. A prop-
erty owner’s desire to build a larger home does not run
with the land and is more appropriately characterized
as personal disappointment, which does not rise to the
legally recognized hardship necessary for a variance.
Michler v. Planning & Zoning Board of Appeals, 123
Conn. App. 182, 187, 1 A.3d 1116 (2010) (concluding
‘‘the inability to build a larger structure’’ to be personal
hardship). The record, therefore, does not support the
conclusion by the board that Fischer had established
the legal hardship required for the granting of a
variance.
The personal nature of Fischer’s alleged hardship
undermines his reliance on Grillo v. Zoning Board of
Appeals, 206 Conn. 362, 537 A.2d 1030 (1998); Fiorilla
v. Zoning Board of Appeals, 144 Conn. 275, 129 A.2d
619 (1957); Giarrantano v. Zoning Board of Appeals,
60 Conn. App. 446, 760 A.2d 132 (2000); and Stillman
v. Zoning Board of Appeals, 25 Conn. App. 631, 596
A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991).
First, in Grillo v. Zoning Board of Appeals, supra,
206 Conn. 371, our Supreme Court rejected a claim of
hardship premised on a property owner’s inability to
construct the building he desired to maximize the finan-
cial value of the property. In reversing the Superior
Court’s conclusion that hardship existed, the Supreme
Court noted that the undeveloped property already was
being used by the property owner, even though the
current use significantly reduced the property’s value.
Id., 370 (‘‘[a] zoning regulation that prevents land from
being used for its greatest economic potential, however,
d[id] not create the exceptional kind of financial hard-
ship that we have deemed to have a ‘confiscatory or
arbitrary’ effect’’). Because of Fischer’s desire to
expand his dwelling, it follows that he does not suffer
from legal hardship, but instead complains of personal
disappointment.
Likewise, Fiorilla v. Zoning Board of Appeals, supra,
144 Conn. 275, does not support the assertion in
Fischer’s brief that ‘‘[o]ur courts have upheld approvals
of variances premised on unique lot shapes, including
the narrowness of the lot in many instances.’’ Instead
of preventing a property owner’s preferred expansion
project, the hardship in Fiorilla was use specific.7 Fiori-
lla v. Zoning Board of Appeals, supra, 279–80. More
importantly, in upholding the variance in Fiorilla, the
court relied on the unique Norwalk zoning regulations,
which the court observed ‘‘not only include[d] the cus-
tomary authority to vary the regulations but extend[ed]
to nonconforming uses a greater liberality than has
previously come to our attention.’’ Id., 281. For example,
the court noted that ‘‘under § 17 [of the regulations]
the owner may obtain special exceptions from the board
to extend the area of nonconformity.’’ Id. As a result,
Fiorilla does not support Fischer’s claim that the legal
hardship results from his inability to increase his dwell-
ing size by constructing his preferred expansion
project.
By the same token, in Giarrantano v. Zoning Board
of Appeals, supra, 60 Conn. App. 454, this court consid-
ered whether regulations deprived an owner of com-
mercially zoned property of the ability to reasonably
use his land for its approved purpose. In Giarrantano,
the property was located in a commercially zoned area,
but was occupied by a nonconforming residence. Id.,447–48. The hardship in Giarrantano was that the size
and shape of the property deprived the owner of reason-
able commercial use of his property, notwithstanding
the fact that an alternative residential use was available.
Id. Accordingly, this court concluded that ‘‘although
[the property owner] conceivably may have the right
to use the land for residential purposes based on an
existing nonconforming use, he does have the right
under the [regulations] to use it for commercial pur-
poses.’’ Id., 454. In other words, the argument in Giar-
rantano was that if the setback regulations were
applied, the useable land was too small to support the
reasonable permitted use of the property. The case is
thus distinguishable. In the present case, Fischer does
not seek a variance to put a nonconforming property
to a conforming use, but desires to attach additional
nonconforming structures to his already nonconform-
ing dwelling. Fischer’s claim that his expansion is ‘‘rea-
sonable’’ does not include an argument that without
the variances the property could not be reasonably used
for its permitted purpose, as the property is already put
to residential use. Instead, Fischer characterizes his
expansion plans as more reasonable than alternative
construction plans, some of which do not run afoul
of the regulations. The precise construction plan that
Fischer desires, reasonable or not, is not permitted by
the regulations. Thus, what Fischer claims is legal hard-
ship is more properly characterized as personal disap-
pointment.
Finally, Stillman v. Zoning Board of Appeals, supra,
25 Conn. App. 636–37, is inapplicable to Fischer’s cir-
cumstances because the particular improvements in
Stillman could be constructed only on one section of
that property, due to the location of a well and a septic
tank. Dissimilarly, Fischer’s proposed additions reflect
personal preference, not hardship, and could be
achieved through alternative construction plans that
comply with the regulations. Indeed, the mere fact that
a conforming structure could be built without the need
for a setback variance transforms an alleged hardship
into personal disappointment.8 See Jaser v. Zoning
Board of Appeals, 43 Conn. App. 545, 547–49, 684 A.2d
735 (1996); see also id., 548 (‘‘a hardship was not shown
because the plaintiffs admitted that a house, even
though not the type that they desired, could have been
built on the lot while conforming to the setback
requirements’’).
For all of the foregoing reasons, we conclude that
Fischer failed to demonstrate a legally cognizable hard-
ship, and therefore, the board acted improperly in grant-
ing the variances. Accordingly, the Superior Court
improperly dismissed the plaintiffs’ appeals.
The judgments are reversed and the case is remanded
with direction to sustain the plaintiffs’ appeals.
In this opinion the other judges concurred.
1
These related cases were scheduled for oral argument before this court
on the same day and before the same panel. Although the plaintiffs in both
cases filed separate appeals from the decision of the Superior Court, both
appeals have nearly identical records and involve the same counsel, variance
application, and property. As a result, we will address both appeals simulta-
neously.
2
In both cases, Robert F. Fischer was added as an additional defendant
after the Superior Court granted the plaintiffs’ motions to add him as an
additional party.
3
In 1992, the property’s prior owner received a variance that allowed the
deck and dwelling to be constructed in violation of then existing front yard
setback requirements. As a result, the deck and dwelling are legally existing
nonconforming structures. See General Statutes § 8-2 (c) (2).
4
Specifically, Fischer sought: (1) a side yard setback variance on the
street side of the property to build a 27.25 foot by 30 foot addition onto the
dwelling 10 feet from the property lines where 15 feet is required; (2) a
side yard setback variance on the street side of the property to attach an
approximately 40 foot by 22 foot three car garage onto the expanded dwell-
ing, 5 feet from the property line where 15 feet is required; (3) a side
yard setback variance on the water side of the property, to enclose an
approximately 7 foot by 30 foot portion of the deck, 10 feet from the property
line where 15 feet is required; (4) a side yard setback variance on the water
side of the property to build an approximately 6 foot by 30 foot second
floor deck, over the enclosed portion of the original deck, 10 feet from the
property line where 15 feet is required; (5) a lot coverage variance to increase
the permitted lot coverage to 48 percent where 35 percent is allowed; and
(6) a building coverage variance to permit 38 percent of the lot to be covered
by buildings where 20 percent is allowed.
5
Section 82.3.1 of the West Haven zoning regulations provides in relevant
part: ‘‘For the purposes of this section, it shall not be considered an increase
in the degree of noncompliance if construction is requested, herein above,
within the required setbacks or yards, provided that each of the following
is met:
‘‘1. New construction is no closer to the property line than the existing
building line;
‘‘2. The existing yard is at least 50 [percent] of the required setback;
‘‘3. Length of that part of the building which is within the yard is less
than 30 [percent] of the length of the adjacent boundary line; [and]
‘‘4. In the case where an addition is requested that would increase the
height of a structure that is within a required yard setback, the height may
only be increased in proportion of one foot in height to every foot in distance
between the requested expansion and the existing structure on the adjacent
lot or its required yard, whichever is closer.
‘‘Failure to meet each of these requirements shall be considered an
increase in the noncompliance and therefore shall not be permitted.’’
(Emphasis omitted.)
6
General Statutes § 8-6 (a) (3) empowers the zoning board of appeals ‘‘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, ordi-
nances or regulations would result in exceptional difficulty or unusual hard-
ship 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. . . .’’
7
The property in Fiorilla v. Zoning Board of Appeals, supra, 144 Conn.
280, located in a residentially zoned area, was determined to be ‘‘ill adapted
to residential use’’ because it ‘‘lacked sufficient frontage on a highway to
afford an acceptable access to the interior land.’’
8
In Bloom v. Zoning Board of Appeals, supra, 233 Conn. 211 n.13, our
Supreme Court cautioned that ‘‘[a]lthough we distinguish Stillman from
this case, we do not necessarily endorse its holding.’’ In fact, ‘‘[i]n the nearly
quarter-century since Stillman was decided, the Supreme Court not once
has relied on that precedent in any manner, and the Supreme Court has
since stated that the inability to add new structures to the property does
not constitute a legally cognizable hardship . . . that personal inconve-
nience . . . does not rise to the level of hardship necessary for the approval
of a variance . . . and that an applicant cannot demonstrate unusual hard-
ship when it failed to prove that it could not continue to use the property
as it had been used for many years . . . . In light of the great weight of
authority of our Supreme Court, and Bloom’s treatment of Stillman in
particular, we thus view Stillman as best confined to its essential facts.’’
(Citations omitted; internal quotation marks omitted.) Verrillo v. Zoning
Board of Appeals, supra, 155 Conn. App. 712–13 n.38.