DocketNumber: No. CV00 0180129 S
Citation Numbers: 2001 Conn. Super. Ct. 11436
Judges: KARAZIN, JUDGE.
Filed Date: 8/23/2001
Status: Non-Precedential
Modified Date: 4/18/2021
The record reveals the following facts. The Abramowitzes filed an application for a variance from the setback requirements in § 60-14.2 of the New Canaan zoning regulations. (Return of Record [ROR], Item 2, p. 1.) Section 60-14.2 requires a side yard setback of 50 feet for a home located in a four acre zone. (ROR, Item 12, Schedule of Residential Zoning.) According to the record, the Abramowitzes' home is located on a 4.027 acre lot. (ROR, Item 6, Zoning Location Survey.) One corner of the new addition will encroach 3.2 feet into the side yard setback area. CT Page 11437 (ROR, Item 6, Zoning Location Survey.) In their application, the Abramowitzes seek a four foot variance for 14.5 feet of the 43 foot length of wall that will encroach into the side yard setback. (ROR, Item 3.)
The ZBA conducted a public hearing on August 7, 2000. After hearing all of the testimony and reviewing the evidence, the ZBA unanimously approved the variance. The plaintiffs now appeal the decision of the ZBA.
General Statutes §
"[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff's appeal."Jolly, Inc. v. Zoning Board of Appeals,
General Statutes §
"The standard of review on appeal from a zoning board's decision to grant or deny a variance is well established." Bloom v. Zoning Board ofAppeals,
"In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or CT Page 11438 illegal." Irwin v. Planning Zoning Commission,
The plaintiffs allege that the ZBA acted illegally, arbitrarily, and in abuse of its discretion because the Abramowitzes failed to prove any legal hardship. The plaintiffs argue that the Abramowitzes' hardship is self created because they based their plans on an incorrect map. The plaintiffs also argue that the Abramowitzes could have corrected their original plans but their personal desires prevented them from moving the addition elsewhere.
The Abramowitzes argue that the ZBA's decision is supported by the record. The Abramowitzes argue that the unique characteristics of the property, including the location of the house on the property, the presence of wetlands, location of ledge rock, and the severe slope of the property, support the ZBA's decision to grant the variance. The Abramowitzes argue that sufficient evidence was presented showing that the hardship was unique to the land itself, rather than personal or self-created.
In the statement of hardship attached to the application for a variance, the Abramowitzes claim that the location of the addition is based upon the topography of the land, location of the extensive ledge rock and wetlands common to the property. (ROR, Item 2, p. 1.) The Abramowitzes state that there are no available alternatives because of the topography and the location of the steep ledge rock on the property. (ROR, Item 2, p. 3.) The Abramowitzes also state that the wetlands and the required setbacks prevent them from constructing the addition in a different location on the property. (ROR, Item 2, p. 3.)
The Abramowitzes based the decision to purchase the property on their ability to build an addition. (ROR, Item 2, p. 2.) Although the Abramowitzes do not claim that the hardship is based on an incorrect survey conducted by Moody O'Brien in 1979, they do state that the incorrect survey caused them to believe that the addition would be possible without the need for a variance. (ROR, Item 2, pp. 1-2.) After purchasing the property, the Abramowitzes hired RKW to complete a new survey of the property. (ROR, Item 2, p. 2.) The new survey indicated that a corner of the planned addition would encroach into the required side yard setback area. (ROR, Item 2, p. 3.) As stated previously, the CT Page 11439 Abramowitzes do not have an alternative available due to the location of ledge rock, the topography of the land and the existence of wetlands. (ROR, Item 2, p. 3.)
The Abramowitzes submitted several photographs of the property to the ZBA. (ROR, Exhibit 10, pp. 1-6.) The photographs demonstrate that there is extensive ledge rock surrounding the existing house. (ROR, Exhibit 10.) The photographs also show that the proposed building site on the northwest corner of the lot is flat and that there is no ledge rock. (ROR, Exhibit 10, p. 1.) The existing foundation is pinned to deep ledge rock, which prevents the Abramowitzes from blasting the rock. (ROR, Exhibit 10, p. 2.) Speaking on behalf of the Abramowitzes, John Masterra, the architect that designed the proposed addition, stated in response to the ZBA's question that the need for a variance is attributable to the terrain, the trees and the ledge rock. (ROR, Exhibit 11, p. 27.)
Mark Grenier, attorney for Tatjana Pogacnik (a plaintiff), spoke in opposition to the application, stating that there was no legal hardship. (ROR, Item 11, pp. 29-34.) The Abramowitzes' neighbors, Patrick Burke (a plaintiff) and Terry Cungal also spoke in opposition to the application. Burke stated that the variance should not be granted because the addition could be redesigned, there are several ways to remove ledge rock, and an incorrect map is not a legitimate reason for granting a variance. (ROR, Item 11, pp. 36-37.) Burke expressed concern over the location of the driveway upon completion of the addition and the ZBA informed them that this issue was not before the board. (ROR, Item 11, pp. 37-38.) Cungal suggested tabling the discussion of the variance until the issue regarding the location of the driveway is resolved. (ROR, Item 11, p. 41.) Upon completion of the public hearing the ZBA voted unanimously to grant the variance. (Supplemental Return of Record [SROR], p. 2.)
"It is well established . . . that the granting of a variance must be reserved for unusual or exceptional circumstances." Bloom v. Zoning Boardof Appeals, supra,
"Where a zoning agency has stated its reasons for its actions, the court should determine only whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning CT Page 11440 regulations. . . . The [decision] must be sustained if even one of its stated reasons is sufficient to support it. . . . [This] applies where the agency has rendered a formal, official, collective statement of reasons for its action." Bloom v. Zoning Board of Appeals, supra,
Although the ZBA did not state a reason for its decision to grant the variance, a review of the record reveals a basis for the ZBA's decision. The Abramowitzes submitted a statement of hardship with their application in which they stated that the hardship is due to the topography of the land, the location of ledge rock, the wetlands on the property and the location of the home on the property. The record demonstrates that the topography of the land and the presence of wetlands prevent the Abramowitzes from constructing the addition elsewhere on the property. The location of the house on the Abramowitzes' property also prevents the Abramowitzes from building the addition on another portion of the property. The photographs of the property submitted by the Abramowitzes supports their testimony regarding the existence of a hardship. These photographs demonstrate that there is a considerable amount of ledge rock on the property, especially surrounding the house and underneath the house. The photographs also show that the proposed site is relatively flat as compared to the rest of the property.
"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." (Internal quotation marks omitted.) Reid v. Zoning Board of Appeals,
In Stillman v. Zoning Board of Appeals,
Despite the ZBA's failure to state a formal reason for its decision to grant the variance, it is clear from the record that the decision was not arbitrary, capricious, illegal or an abuse of discretion. The evidence in the record supports the ZBA's decision to grant the variance.
Based on the foregoing analysis, the plaintiffs' appeal is dismissed. The ZBA's decision to grant the Abramowitzes a variance from the zoning regulations is supported by substantial evidence in the record. The ZBA did not act arbitrarily, or in abuse of its discretion.
KARAZIN, J.