DocketNumber: No. CV 97 0156089
Citation Numbers: 1998 Conn. Super. Ct. 6326
Judges: LEWIS, JUDGE.
Filed Date: 5/26/1998
Status: Non-Precedential
Modified Date: 4/17/2021
The subject property, which is owned by the defendant Johnes, consists of approximately 4.6 acres, and is located in the Residence AAA zone. This zone requires a minimum of one acre and is limited to one single-family detached dwelling per lot. Regulations, § 118-300 B(1). This zone also permits rear lots provided that they are an acre in size exclusive of the area of the accessway. Also, the accessway to such lot "shall be a minimum of twenty-five feet in width." Regulations § 118-310C(1).
The ZBA first granted a special exception in order to validate the existence of the two rear lots belonging to the defendants because technically lot #82 had merged with lot #35. The result is one lot and one house on 4.6 acres in a one-acre zone. This merger resulted from the sale by the defendant Johnes of two acres to the plaintiffs on October 26, 1990. This rendered lot #35 nonconforming because it had only a nine feet accessway.
Regulations, § 118-800E(2) provides that if two or more adjoining parcels are held in single ownership and one does not conform to the regulations, such lots "shall be considered to be an undivided parcel . . . and no portion of said parcel shall be used or sold . . . except as may be granted by Special Exception by the Zoning Board of Appeals." Regulations, § 118-1410A(2)(e) provides that the ZBA may "Grant a Special Exception for the development of a nonconforming lot which is in the same ownership as an adjoining lot as per § 118-800E(2)."
The variance relates to the accessway to the rear lots. This accessway is 34 feet wide. The application shows one rear lot, #82, as having the requisite 25 feet, but the other adjoining rear lot, #35, would have 9 feet, instead of 25 feet. Lot #82 has 2.88 acres, and lot #35 has 1.9 acres, excluding the accessway. The plans show that the defendants intend to install one common 12 foot wide driveway for access to their two rear lots.
The ZBA held a public hearing on November 7, 1996. Following the hearing, the ZBA, by a unanimous vote, granted a special exception and a variance. The plaintiffs then appealed to this court, pursuant to General Statutes §
At a hearing held by this court on February 5, 1998, it was determined that the plaintiffs own property at 80 Comstock Avenue, Norwalk that is adjacent to and abuts the subject premises. Hence, they were found to be aggrieved pursuant to General Statutes §
The plaintiffs contend in their brief that: (1) the defendants applied only for a variance and therefore the ZBA had no right to grant a special exception; (2) the application, in effect, seeks a resubdivision and hence should have been addressed to the Planning Zoning Commission; and (3) the defendants had not proved the requisite hardship to warrant the granting of a variance.
The first contention by the plaintiffs, that the defendants did not apply to the ZBA for a special exception, is correct. The ZBA staff, however, recognized that because of a possible merger problem caused by two lots held in the same ownership, a special exception was needed in order to confirm the existence of two separate lots. The public notice for the November 7, 1996, ZBA public meeting, explicitly refers to a "special exception for nonconforming rear lot in same ownership as adjoining rear lot."
Special exceptions were discussed in detail in Irwin v.Planning Zoning Commission,
The record also reflects that these two lots existed prior to the enactment of zoning in Norwalk in 1929. Also, the lots are taxed separately. The chair woman of the agency, Anne Griesmer, remarked that: "while [the rear lot with the inadequate accessway] technically does not conform at this point it is strictly because of the fact that now they have only two lots whereas originally proposed it actually conformed as a roadway which is interesting in this case because I don't think the drainage — by that certainly would not have been in the best interest of the development of this lot and the effect on the neighbors."
Thus, there is adequate support in the record for the ZBA granting a special exception to the defendants. As noted in Irwinv. Planning Zoning Commission, supra,
The plaintiffs also contend that the defendants should have applied to the Planning and Zoning Commission for a resubdivision. They claim that the two rear lots merged into one lot and require a subdivision to reconfigure the two lots. The Norwalk regulations, however, as noted previously, expressly grant to the ZBA the authority to permit the use of rear lots that are nonconforming by way of a special exception. Thus, there is no need or requirement that the defendants apply to the Planning Zoning Commission for a subdivision or a resubdivision.
The third and final aspect of the plaintiffs' appeal involves the ZBA granting a variance to the defendants. Under General Statutes §
The Supreme Court in Reid v. Zoning Board of Appeals,
The standard of review to be employed by this court in reviewing the granting of a variance, is found in Jaser v. ZoningBoard of Appeals,
While not articulated in a formal written opinion, the ZBA and the defendants claim, and the court agrees, that the ZBA properly found the requisite hardship for a number of reasons, including: (1) the Zoning Inspector, J. Bradley, sent a memo to the ZBA indicating that the defendants' proposal was "sufficiently straightforward and of negligible impact to surrounding properties;" (2) the two lots would be served by a common 12 foot wide driveway already in existence so there would no change in appearance; (3) a wider accessway would impact on adjacent wetlands; (4) the lots could be developed with a 34 foot wide street that would give the two lots "frontage" on a street, rather than regarding them as rear lots; (5) the Conservation Commission had approved the defendants' proposal; (6) the statement by a member of the agency, Mr. Cooke, that: "I think this is a straightforward thing. Obviously the proposal of five, four, three basically down to two homes the issue of the 34 foot accessway as oppose[d] to 50 was clearly stated and I think it's a situation that was created — out of — 34 feet, we're talking about it serving only two parcels I think it's probably the development for a piece in that size."
There is substantial evidence in the record to support the claim of a hardship. The defendant Johnes, who owned 6.6 acres, conveyed two acres to the plaintiffs. The plaintiffs' argue that as a result of this sale the defendants are left with one lot of 4.6 acres in a one acre zone only because of this conveyance to them. The record indicates that this conveyance was done without CT Page 6332 any intent on the part of the defendant Johnes to render one of the two remaining lots unusable for any purpose. This would result in a virtual confiscation of one of the two lots.
It is axiomatic that, in an administrative appeal, a plaintiff has the burden of proving "that substantial evidence does not exist in the record as a whole to support the agency's decision." Samperi v. Inland Wetlands Agency,
So Ordered.
Dated at Stamford, Connecticut, this 26th day of May, 1998.
William B. Lewis, Judge