347 Humphrey Street, LLC v. Board of Zoning Appeals ( 2015 )

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347 HUMPHREY STREET, LLC, ET AL. v. BOARD
OF ZONING APPEALS OF THE CITY
OF NEW HAVEN ET AL.
(AC 36186)
Lavine, Mullins and Bishop, Js.
Argued February 20—officially released October 6, 2015
(Appeal from Superior Court, judicial district of New
Haven, Hon. William L. Hadden, Jr., judge trial referee.)
Roderick R. Williams, assistant corporation counsel,
for the appellant (named defendant).
Marjorie Shansky, for the appellant (defendant
P.T.R., LLC).
Kenneth A. Votre, with whom was Richard E. Fen-
nelly III, for the appellees (plaintiffs).
Opinion
BISHOP, J. In 2011, the named defendant, the Board
of Zoning Appeals of the City of New Haven (board),
granted an appeal for four variances and an application
for a special exception, with conditions, as requested
by the defendant applicant, P.T.R., LLC.1 The plaintiffs,
347 Humphrey Street, LLC, Rosemarie Morgan, and
Thomas Morgillo,2 thereafter appealed from that deci-
sion to the Superior Court. The trial court sustained the
appeal,3 concluding, inter alia, that the administrative
record did not substantiate the board’s finding of an
unreasonable hardship, and, therefore, the board had
no legal basis for having granted the requested vari-
ances. On appeal, the defendants claim that the court
improperly substituted its judgment for that of the
board when it determined that P.T.R., LLC, did not
demonstrate the existence of a legally cognizable hard-
ship and that the special exception was supported by
the record. We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. P.T.R., LLC, is the
owner of real property located at 601-603 Orange Street
in New Haven (property). The property has been used
for the operation of a grocery market since at least
1963. P.T.R., LLC, currently operates a grocery and deli
known as Nica’s Market on the property, which is situ-
ated on the east side of Orange Street in the middle
of the block between Humphrey and Bishop Streets.
Orange Street, from several blocks south of Nica’s Mar-
ket to several blocks north of the market, is located in
a RM-2, high middle density, residential zone.
On February 11, 2011, Joseph Sabino, a member of
P.T.R., LLC, filed an appeal for zoning variances with
the board seeking: (1) to permit lot coverage of 40
percent, where 40 percent already existed and 30 per-
cent is permitted; (2) to permit a first floor grocery net
floor area of 4366 square feet, where 2446 square feet
already existed and 1500 square feet is permitted; (3)
to permit the construction of a conforming building
addition to the nonconforming building; and (4) to per-
mit twenty-four outdoor seats where fifteen are permit-
ted. Also, on February 11, 2011, Rosanna Sabino,
another member of P.T.R., LLC, filed an application
for a special exception for use of the property as a
‘‘Neighborhood Convenience Use (grocery) with
existing take-out component and seasonal outdoor seat-
ing at six tables (24 seats)–continuation of long-stand-
ing use with conforming alterations to existing non-
conforming structure; served by existing parking lot
with 18 spaces.’’
The board held a public hearing on both pending
matters on March 15, 2011. At the outset, Marjorie Shan-
sky, counsel for P.T.R., LLC, provided an overview of
its request, stating that ‘‘by putting a conforming addi-
tion onto [the building] we are seeking to deal with
some very problematic code issues in the rear service
area of the building and to provide a better operational
experience both for the owners and for the neigh-
borhood.’’
Accompanying this presentation was a site plan pre-
pared by architect Gerald Kagan (plan) that detailed
the proposed expansion and changes to the existing
structure,4 and the proposal for shifting the parking lot
and increasing the lot size.5 Kagan provided a review
of the plan, which contained both ‘‘existing’’ and ‘‘pro-
posed’’ depictions of the property. He commented on
the requested changes for both the building and the lot
surrounding the building. He explained that the pro-
posal (1) added twenty feet to the driveway and moved
it over about twenty feet so that it would be in the
middle of the parking lot; (2) created a new loading
zone with a trash compactor in the rear; (3) provided
two handicapped parking spaces and a new bicycle
parking location; (4) increased the first floor area to
provide accessibility for people waiting in line to get
to the deli; (5) increased the size of the kitchen by
approximately twenty square feet; and (6) provided
more space on the second floor for, inter alia, a break
room for employees, two desks, a bathroom, and two
offices.
With regard to the driveway, Kagan explained that,
by adding twenty feet and moving the driveway over
about twenty feet, trailer trucks would now be able to
come into the parking lot more easily and would be able
to back into the loading zone. Kagan further clarified:
‘‘There is a truck loading zone for box trucks. They get
off the street and [its] a straight shot into the parking
lot. And there is a [sufficient] turning radius for those
trucks in the rear of the property to provide [for] loading
and unloading. We have also provided on the side right
here a space for the merchandise to go down into the
cellar. What we are proposing to do is to build a whole
new structure across the back of the building so that
we’re going to remove some of the physical impedi-
ments which are on the inside of the structure.’’ Kagan
stated: ‘‘[T]he truck loading is a really, really critical
part of this application and by being able to have acces-
sibility in the rear for these trucks to unload takes a
burden off the street.’’
With regard to the first floor of the building, Kagan
explained that the proposed alterations would provide
an access line for people waiting in line to get to the
deli and that the purpose of the plan was to ‘‘make the
front of the store, the existing store, totally accessible.’’
Next, he described the proposed changes to the kitchen.
Specifically, Kagan told the board that the plan called
for a complete removal of the existing kitchen on the
property and that the new kitchen would be more acces-
sible and have ‘‘the ability for people to work in an
efficient manner.’’ Finally, Kagan described the layout
for the second floor and explained that the plan would
provide ‘‘a break room for the employees, space for
two desks, a bathroom and [two] office[s] . . . .’’
Shansky then spoke again on behalf of P.T.R., LLC.
Shansky stressed that the granting of the variances
would bring the property more into compliance with
the zoning regulations and would therefore achieve one
of the goals of zoning administration, namely, reducing
and eliminating nonconformities. She further explained
to the board: ‘‘These operational alterations that will
be beneficial to the neighborhood indeed by their abil-
ity, and certainly the accessibility is a factor, but by
being able to have access to the market and to its deli
function unencumbered. It’s going to provide a better
flow for trucks to ease or ameliorate that traffic con-
cern. And certainly, from a code perspective, from a
building code perspective, it will eliminate this very
hazardous four level operational place in the back and
provide an accessible place potentially for employees
as well.’’
Later during the presentation, board chairperson
Cathy Weber asked whether the plan would provide
increased employment opportunities for the deli. In
response, Kagan stated: ‘‘The goal of [P.T.R., LLC] is
not to make the business any bigger. It’s to make it safer.
It’s to allow accessibility to handicapped individuals to
get through the store. It’s the ability to service the back
where they don’t go up and down stairs and employees
[will not] be in danger. It’s to make their lives easier,
not more difficult.’’
After Shansky and Kagan concluded their presenta-
tion, Weber asked if anyone from the public wished
to be heard. Charles Famularo and Barry Nellis, who
frequent Nica’s Market regularly, spoke in favor of the
application. Furthermore, Harold Roth, Bill Donahue,
Lloyd Parchman, and Donald Harvey, who live in the
neighborhood where the property is located, spoke in
favor of the application. Harvey specifically explained
to the board that the plan ‘‘addresses the needs of the
neighborhood with regard to traffic concerns and gar-
bage [as] well as Nica’s need to streamline operations
while maintaining the neighborhood, the character of
the neighborhood.’’
Attorney Gregory Gallo then spoke on behalf of 347
Humphrey Street, LLC, an abutting property owner.
Gallo argued: ‘‘A variance under the code would require
either a difficulty or an unreasonable hardship and a
strict enforcement of the code. Here we don’t have that.
. . . [T]he applicant doesn’t claim that there is a hard-
ship. Looking at section 7 of the appeal to the zoning
board there is no mention of a hardship.’’6 He later
explained that, ‘‘Ultimately, according to the zoning
[regulations], the application doesn’t meet the require-
ments of the [regulations] and it is an impermissible
enlargement of a nonconforming structure in which the
applicant is seeking, without any hardship, to justify it,
or any reason in which to circumvent these rules.’’ In
rebuttal, Shansky stated: ‘‘With respect to section 7 [of
the appeal to the board] the question is describe the
unreasonable difficulty or hardship. I don’t think there
is any grammatical or syntactical requirement that I
recite the word hardship in that paragraph. So I will
continue to stand on what I had written in the applica-
tion as being responsive to that question.’’ She further
explained: ‘‘It will be larger. But that does not, under
a zoning law, make it an expansion or an impermissible
expansion of the use. [That] is simply the distinction I
would make. And the real difference is that we’re adding
a safe one level kitchen so that we are removing the
obstacles, both for employment and accessibility, and
simply the safety issues, and bringing it up to code.’’
Weber thereafter closed the public hearing.
Following the hearing, in accordance with Section
63 (d) (6) of the New Haven Zoning Ordinance,7 the
board referred the application for a special exception
and all exhibits to the New Haven City Plan Commission
(commission). The commission then submitted an advi-
sory report to the board recommending approval of the
application for a special exception, with conditions.
On April 12, 2011, the board conducted a ‘‘voting
session.’’ During this voting session, the board evalu-
ated the merits of P.T.R., LLC’s application for variances
and a special exception, and discussed the commis-
sion’s advisory report. Thereafter, the board voted to
approve the application for variances as requested, and
the application for the special exception with several
conditions.8 Notice of the board’s decision was pub-
lished in the New Haven Register on April 21, 2011.
On May 18, 2011, the plaintiffs filed an appeal of the
board’s decision in the Superior Court. On April 8, 2013,
the trial court issued a memorandum of decision in
which it reversed the board’s approval of the variances
and the special exception. With regard to the variances,
the court concluded that the board had acted illegally
in approving the variances because there was no evi-
dence in the record to establish proof of difficulty or
unreasonable hardship. With regard to the special
exception, the court concluded that (1) the board was
not entitled to accept, as its own finding, the commis-
sion’s conclusion that the application for the special
exception was in accord with the public convenience;
and (2) the commission did not make the necessary
findings pursuant to § 31 (d) of the New Haven Zoning
Ordinance, and the board did not make the necessary
finding pursuant to § 63 (d) (3) of the New Haven Zoning
Ordinance. Accordingly, the court sustained the plain-
tiffs’ appeal. The defendants filed the present appeal
after this court granted their joint petition for certifi-
cation.
The defendants claim that the court improperly sub-
stituted its judgment for that of the board when it
reversed the board’s decision approving the variances
and the special exception. Because the board failed to
issue any formal, collective statement of the reasons
for its approval, the defendants argue that the court
was required to consider the record as a whole and
that substantial evidence in the record supported the
board’s decision to grant the variances and special
exception.9 In response, the plaintiffs claim that the
court correctly concluded that the record did not con-
tain any evidence showing an exceptional difficulty or
unusual hardship that would support the granting of
the variances. Furthermore, the plaintiffs claim that the
court correctly concluded that the board failed to make
the necessary finding that the special exception request
was in accord with the public convenience and welfare.
We agree with the plaintiffs that the defendants failed
to demonstrate the requisite hardship, and, therefore,
we need not reach the issue of whether the trial court
correctly concluded that the special exception applica-
tion should have been denied.10
At the outset, we review the well established standard
of review applicable to zoning appeals. ‘‘[C]ourts are
not to substitute their judgment for that of the board,
and . . . the decisions of local boards will not be dis-
turbed as long as honest judgment has been reasonably
and fairly made after a full hearing . . . . The trial
court’s function is to determine on the basis of the
record whether substantial evidence has been pre-
sented to the board to support [the board’s] findings.
. . . [E]vidence is sufficient to sustain an agency find-
ing if it affords a substantial basis of fact from which
the fact in issue can be reasonably inferred. . . . Where
the board states its reasons on the record we look no
further. . . . Where, however, the board has not articu-
lated the reasons for its actions, the court must search
the entire record to find a basis for the board’s decision.
. . . More specifically, the trial court must determine
whether the board has acted fairly or with proper
motives or upon valid reasons. . . . We, in turn, must
determine whether the court properly concluded that
the board’s decision to grant the variance was arbitrary,
illegal or an abuse of discretion.’’ (Citation omitted;
internal quotation marks omitted.) Schulhof v. Zoning
Board of Appeals, 144 Conn. App. 446, 451, 74 A.3d
442 (2013).
Section 63 (c) (1) of the New Haven Zoning Ordinance
provides in relevant part: ‘‘Where there is difficulty or
unreasonable hardship in the way of carrying out the
strict letter of the zoning ordinance, the Board of Zoning
Appeals shall have power in a specific case to vary the
application of any provision of the ordinance, if such
variance will be in harmony with the general purpose
and intent of the ordinance and if the public health,
safety and general welfare will be served and substantial
justice done.’’
‘‘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. . . . The applicant bears the burden of demon-
strating the existence of a hardship. . . . Proof of
exceptional difficulty or unusual hardship is absolutely
necessary as a condition precedent to the granting of
a zoning variance. . . . A mere economic hardship or
a hardship that was self-created, however, is insufficient
to justify a variance . . . and neither financial loss nor
the potential for financial gain is the proper basis for
granting a variance.’’ (Citation omitted; internal quota-
tions omitted.) Schulhof v. Zoning Board of Appeals,
supra, 144 Conn. App. 453. Moreover, an applicant’s
desire to modernize an existing nonconformity does
not ‘‘constitute a cognizable legal hardship that would
warrant a variance.’’ Horace v. Zoning Board of
Appeals, 85 Conn. App. 162, 171, 855 A.2d 1044 (2004).
This court held in Horace that improving the appear-
ance of a building, ‘‘even if beneficial, [does not] consti-
tute a cognizable legal hardship . . . .’’ Id.
Furthermore, in rejecting a claim of ‘‘unusual hardship
from the fact that the internal layout of the [existing
nonconforming structure] was poorly designed to meet
the needs of modern living,’’ our Supreme Court
observed that ‘‘inconvenience . . . does not rise to the
level of hardship necessary for the approval of a vari-
ance.’’ Moon v. Zoning Board of Appeals, 291 Conn. 16,
26 n.9, 966 A.2d 722 (2009).
From our careful review of the record, we agree with
the court that there is nothing in the record to support
a finding of a hardship. At the public hearing before
the board, Kagan stated that the purpose of the vari-
ances was to make the store accessible to customers
and help employees in the kitchen work more effi-
ciently. Furthermore, Shansky told the board that the
variances would give Nica’s Market an opportunity to
deal with problematic code issues, provide a better
operational experience for the owners and for the neigh-
borhood, and eliminate nonconformities on the prop-
erty. On several occasions, she stressed the importance
of eliminating the hazardous condition that is currently
present in the existing kitchen. At oral argument before
this court, Shansky further argued that the hardship for
Nica’s Market was being ‘‘penned in’’ by the preexisting
nonconformities and in having an unsafe kitchen.
Although the variances might allow P.T.R., LLC, to oper-
ate Nica’s Market with more accessibility and more
efficiency, it is well established that financial considera-
tions, unless they greatly decrease or destroy the value
of the property, do not constitute a cognizable legal
hardship that would warrant a variance. See Norwood
v. Zoning Board of Appeals, 62 Conn. App. 528, 534–35,
772 A.2d 624 (2001); see also Grillo v. Zoning Board
of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988).
The court properly determined that the board illegally
granted the variances filed on behalf of P.T.R., LLC,
because the record did not support the existence of a
legally cognizable hardship. Accordingly, we conclude
that the court properly sustained the plaintiffs’ adminis-
trative appeal.
The judgment is affirmed.
In this opinion the other judges concurred.
1
For purposes of clarity, we refer to the board and P.T.R., LLC, collectively
as the defendants, and individually by name.
2
Each plaintiff is the owner of property located within 100 feet of the
property that is the subject of this appeal. The trial court found that each
of the three named plaintiffs was statutorily aggrieved by the board’s deci-
sions; see General Statutes § 8-8 (a) (1); and that finding has not been
challenged on appeal. For purposes of clarity, we refer to them collectively
as the plaintiffs, and individually by name.
3
‘‘In hearing the [plaintiffs’] appeal from the decision of the zoning board
of appeals, the Superior Court acts as an appellate body.’’ Megin v. Zoning
Board of Appeals, 106 Conn. App. 602, 603 n.1, 942 A.2d 511, cert. denied,
289 Conn. 901, 957 A.2d 871 (2008).
4
The record indicates that the existing structure consists of a first floor,
a second floor, and a basement. The first floor consists of grocery aisles,
a deli counter, and a kitchen. The kitchen currently operates on four separate
levels. The second floor contains employee offices and is accessible by a
staircase. Finally, the basement is used as a storage area and is also accessi-
ble by a staircase. The proposed plan for the first floor includes a new
kitchen on one level, a second front entrance to the building, and a separated
corridor that runs along the northern edge of the new structure back to a
deli counter. The proposed plan for the second floor increases the floor
area from 396 square feet to 928 square feet and adds office space and a
break room for employees. Moreover, the plan enables the construction of
a conforming staircase to both the second floor and the basement.
5
The defendants represent that the site itself is 40 feet by approximately
154 feet and currently has an eighteen space parking lot.
6
Section 7 of the form entitled, ‘‘Appeal to the Board of Zoning Appeals
for a Variance,’’ requires the applicant to: ‘‘Describe in detail the DIFFI-
CULTY and UNREASONABLE HARDSHIP asserted to be in the way of
carrying out the strict letter of the zoning ordinance.’’ (Emphasis in original.)
Joseph Sabino, on behalf of P.T.R., LLC, responded in writing: ‘‘The subject
property is a legally existing non-conforming structure with a use that is
permitted under the Zoning Ordinance by Special Exception, but whose
origins in the neighborhood predate 1963. As such, the existing profiles of
the property and use are non-conforming in virtually every respect. The
proposal before the [board] accomplishes several salutary goals under Con-
necticut and New Haven zoning law. By redefining the adjacent parcels’
property lines, the subject property is being brought closer to conformity,
indeed, eliminating non-conformity in certain respects (e.g., currently, the
subject lot width is 40’ 0’’ where 50’ 0’’ [is] required; the proposal before the
Board results in a lot width of 68’ 0’’ while preserving the zoning conformity of
the adjacent lot). The proposed alterations/additions to the existing structure
are designed to conform with existing RM-2 standards, including side and
rear [yard] setbacks as demonstrated on the submitted site plan. The outdoor
seating is located where automobiles formerly parked. Please see the
attached Zoning Chart for the Proposed Development attached hereto and
by reference incorporated herein.’’
7
Section 63 (d) (6) of the New Haven Zoning Ordinance requires the
board to refer the entire file to the New Haven City Plan Commission.
Section 63 (d) (6) provides in relevant part: ‘‘In the following types of special
exception cases, which involve more than conventional questions of use
and may have a significant impact on surrounding areas and a substantial
relationship to the comprehensive plan of the city, the Board of Zoning
Appeals shall, following its hearing, refer the case including all exhibits to
the City Plan Commission, which shall submit an advisory report, on such
factors as it may deem relevant, to the board within 30 days after receiving
all records and documents in the case. This report of the City Plan Commis-
sion shall be taken into account in the decision of the Board.’’ (Emphasis
in original.)
8
In making these conditions, the board stated: ‘‘Permission is hereby
granted with conditions: (1) A site plan application shall be submitted to
the City Plan Commission in accord with Section 64 (f) for detailed site
plan review and approval prior to issuance of a building permit. (2) The
number of seats on the exterior front patio will be 24, and shall not interfere
with the public sidewalk. (3) The existing street trees will be replaced with
a different species to be approved by the City’s landscape architect in the
City Plan Department before issuance of a Certificate of Occupancy. (4)
The bike rack will be removed to the location shown on the plans and shall
be located on the applicant’s property.’’
9
The defendants also claim that the decision of the trial court reversing
the board’s decision is contrary to Connecticut appellate decisional authority
because the trial court failed to recognize that the reduction and elimination
of nonconformities as an independent basis for the grant of variance relief.
The record reveals, however, that the court considered that claim and
addressed it in its memorandum of decision: ‘‘[P.T.R., LLC] claim[s] by way
of [its] brief that the record demonstrates that the proposed construction
will result in the elimination of certain nonconforming uses and that this
would constitute an independent basis for the granting of the variances.
See Vine v. Zoning Board of Appeals, 281 Conn. 553 [916 A.2d 5] (2007);
Hescock v. Zoning Board of Appeals, 112 Conn. App. 239 [962 A.2d 177]
(2009). The court does not agree with this claim. The court notes that the
board made no findings or conclusions which support this reasoning. The
record discloses that [P.T.R., LLC’s] proposed construction will eliminate or
reduce a few nonconformities but create substantially more nonconformities
than it will eliminate or reduce.’’ Thus, upon our review, the record fully
supports the trial court’s conclusion.
10
Because the need for the special exception was dependent upon the
granting of the variances, we need not reach the defendants’ claim that the
trial court improperly determined that the board’s granting of the special
exception violated certain provisions of the New Haven Zoning Ordinance.