DocketNumber: No. 559549
Citation Numbers: 2002 Conn. Super. Ct. 3529
Judges: PURTILL, JUDGE TRIAL REFEREE.
Filed Date: 3/20/2002
Status: Non-Precedential
Modified Date: 4/18/2021
For reasons hereinafter stated, the decision of the Board is affirmed.
Plaintiffs have appealed under the provisions of General Statutes §
To establish the aggrievement required by statute, so as to be entitled to appeal, a zoning board's decision, a party must allege facts which, if proven, would constitute aggrievement as a matter of law and prove the truth of those factual allegations. Jolly, Inc. v. Zoning Board ofAppeals,
No questions have been raised concerning any jurisdictional issues. All notices appear to have been published properly and no jurisdictional defects have been noted.
The record indicates that plaintiffs are the owners of residential property at 76 Old Colchester Road in the Town of Waterford. The property was acquired by the plaintiffs on July 2, 1970 and consists of approximately 5.431 acres of land located in an R-40 zone.
On May 9, 2001, petitioners applied to the Board for a variance of § 5.4.1 of the Waterford Zoning Regulations. Section 5.4.1 requires CT Page 3530 that in the R-40 zone the minimum front yard set back should be 50 feet. At the time of the application, the property was a valid preexisting nonconforming use with a front set back approximately 49 feet from the highway. The variance would allow a further reduction of the front yard set back line of 7.5 feet.
In their application, plaintiffs expressed their claim of hardship as follows: "The placing of the existing improvements on the property prevented the applicant from building an addition except as where proposed. The installation of the present improvements predates the current zoning regulations."
It was also noted on the application that on September 24, 2000, plaintiffs applied for an identical variance. This application was considered at a public hearing of the Board held October 5, 2000. This application was denied. The reason stated by the Board for denial of the variance was "failure to demonstrate hardship." Plaintiffs claim there has been a change of circumstances since the last hearing.
Plaintiffs' second application was scheduled for a public hearing to be held July 12, 2001. Plaintiffs appeared at the hearing and, with their attorney and were heard by the Board. It was explained that the purpose of the variance was to extend the front of the house towards the street by an addition. This addition would allow plaintiff, Sue Ann Dipollina's mother, to reside with petitioner in the home.
There was no opposition to the application from the public and the variance was supported by neighbors and others.
The town planner, in his report to the Board, questioned as to whether the board could find a legal hardship.
After the public hearing had been adjourned, the Board considered the application and, by a vote of four to one, denied plaintiffs' application for a variance stating as its reason "no hardship. "
Notice of the Board's decision was properly published and, within the time allowed by statute, this appeal was filed.
In deciding appeals such as we have here, the court operates under certain restrictions. The court is not at liberty to substitute its judgment for that of the administrative tribunal. Hall v. Planning Zoning Board,
Where, as here, the Board has stated the reason for its action on the record the court is limited to determining whether the reason assigned is reasonably supported by the record and whether it is pertinent to the considerations which the Board is required to apply under the zoning regulations. Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission,
The plaintiff has the burden of proving that defendant Board acted improperly. Adolphson v. Zoning Board of Appeals,
Plaintiffs have appealed the action of the Board in denying the application for a variance. A variance constitutes permission for a party to use their property in a manner otherwise prohibited by the zoning regulations. For this reason, the granting of a variance is generally reserved for unusual or exceptional circumstances. Bloom v. Zoning Boardof Appeals,
The Board derives its authority to vary the application of the zoning regulations from the provisions of General Statutes §
Variances are, in a sense, the "antitheses of zoning." Zoning is regulation by the municipality of the use of land within the community, and the buildings and structures which may be located thereon, in accordance with a general plan. The General Statutes authorize such regulation of land and the use of buildings. Such regulations, however, must be applied uniformly throughout each district. A variance disrupts the conformity and constitutes permission to act in a manner that is otherwise prohibited by the zoning regulations. Simko v. Ervin,
The two basic conditions which must be met for the granting of a variance are (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. Grillo v.Zoning Board of Appeals,
An applicant for a variance must show that, because of some peculiar characteristic of its property, the strict application of the zoning regulation produces an unusual hardship as opposed to the general import which the regulations has on other properties in the zone. Dolan v.Zoning Board of Appeals,
Where a disadvantageous situation arises from a voluntary act on the part of the applicant, it cannot be considered a hardship and the Board does not have authority to grant a variance Pollard v. Zoning Board ofAppeals,
The Board denied the variance on the grounds that no hardship had been proven. Plaintiffs claim that there is substantial evidence of hardship in the record and that the Board's decision was arbitrary.
Proof of hardship is a condition precedent to the granting of a variance. Point o'Woods Assn., Inc. v. Zoning Board of Appeals,
Plaintiffs contend that the action of the Board should be overturned because it was capricious, unreasonable and inconsistent with the intent of the zoning regulations. As a part of this argument, plaintiffs state that they did establish a hardship sufficient to justify the granting of the variance. It is also plaintiffs argument that they are entitled to a variance as their property is a preexisting nonconforming use to the current zoning regulations.
Claims not briefed will be considered abandoned. Shaw v. PlanningCommission,
Because of the side line requirements, it would be impossible to build CT Page 3533 any extension to the side of the house under the zoning regulations.
There is ample room to the rear of the house for an addition. Plaintiffs claim that they cannot build to the rear of the house because of an existing patio, a covered exit, a power line, a well and a barn. All of these items were on the property at the time plaintiffs acquired it and predate the current zoning regulations.
Plaintiffs argue that the situation here is identical to that found inStillman v. Zoning Board of Appeals,
Although plaintiffs cannot extend their building to the front or to either side, the record is clear that they have ample room to expand to the rear. This might not be convenient because of the way the house has been laid out with the living room on the front and the kitchen at the rear. It could, however, be done under the regulations.
The principal reasons advanced by plaintiffs for their inability to extend a house to the rear is the location of "topographic conditions" existing on the property. Among these items is what has been called a barn. The plan showing plaintiffs property presented to the Board shows several out buildings on the property. The structure closest to the house labeled a "frame garage" is located about 60 feet to the rear of the house. It does not appear that this structure would prevent the modest addition proposed by plaintiffs being erected at the rear of the house in conformance with the regulations.
Plaintiffs also contend they cannot extend their building to the rear because of an existing well. The property is served by a municipal water supply so that the well is not essential to the enjoyment of the property. The well, however, is used for animals kept on the property. In their presentation before the Board, the exact location of the well was CT Page 3534 not specified, but was estimated to be 30 feet from the house. The construction of the addition itself would not extend to the well. It was expressed, however, that construction to the rear of the house could disturb the water supply and the vein could be hurt which would effect the water supply in the well.
It was also represented that placing the addition to the rear of the house would entail changes to the patio, the power line and the covered entrance. All of these things could be done but it would entail additional expense to plaintiffs. All of these claims advanced by plaintiffs were considered and discussed at the public hearing and the Board determined that they did not constitute the unusual hardship required by law before a variance could be granted. Grillo v. ZoningBoard of Appeals, supra,
There was no showing that plaintiffs would be deprived of the reasonable use of their property if the variance was denied. There was no showing that the existence of the barn would interfere with an addition to the rear of the property and evidence that the well would be injured was speculative at best. There was no showing that the cost of the relocation of the power line and changes to the covered entrance and patio would be excessive. Plaintiffs have not sustained their burden of proving that the Board abused its discretion in denying their application for a variance.
The Board derives its authority to grant variances from C.G.S. §
Here, it does not appear that there has been any material change in circumstances since the earlier decision and finding by the Board. The only change appears to be that at the second hearing an attempt was made to prove that the addition had to be constructed at the front of the house because of hardship. At the first hearing it was represented that the house could be expanded to the rear in compliance with the regulations and that the addition to the front was a matter of choice. It does not appear that there has been any real change in circumstances since the first hearing, only a change in the manner of presentation.
Joseph J. Purtill, Judge Trial Referee
Dolan v. Zoning Board of Appeals , 156 Conn. 426 ( 1968 )
Hall v. Planning & Zoning Board , 153 Conn. 574 ( 1966 )
Goldberg v. Zoning Commission , 173 Conn. 23 ( 1977 )
Cameo Park Homes, Inc. v. Planning & Zoning Commission , 150 Conn. 672 ( 1963 )
Point O'Woods Assn., Inc. v. Zoning Board of Appeals , 178 Conn. 364 ( 1979 )
Rogers v. Zoning Board of Appeals , 154 Conn. 484 ( 1967 )
Krejpcio v. Zoning Board of Appeals , 152 Conn. 657 ( 1965 )
Raybestos-Manhattan, Inc. v. Planning & Zoning Commission , 186 Conn. 466 ( 1982 )