Adolphson v. Zoning Bd. of Appeals of Town of Fairfield

• Decision Date: 05 January 1988
• Docket Number: No. 13131,13131
• Citation: 535 A.2d 799,205 Conn. 703
• Court: Connecticut Supreme Court
• Parties: Kenneth B. ADOLPHSON v. ZONING BOARD OF APPEALS OF the TOWN OF FAIRFIELD et al.

Page 799

535 A.2d 799

205 Conn. 703

Kenneth B. ADOLPHSON v. ZONING BOARD OF APPEALS OF the TOWN OF FAIRFIELD et al.

No. 13131.

Supreme Court of Connecticut.

Argued Oct. 6, 1987.

Decided Jan. 5, 1988.

Linda M. Guliuzza, East Haven, for appellant (plaintiff).

Lorraine W. Osborne, with whom, on brief, was Charles J. Willinger, Jr., Bridgeport, for appellees (defendants Michael A. Brunetto et al.).

Roy H. Ervin, with whom, on brief, was Roy H. Ervin, Jr., Fairfield, for appellee (named defendant).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and HULL, JJ.

GLASS, Associate Justice.

The plaintiff, Kenneth B. Adolphson, appealed to the Superior Court pursuant to General Statutes § 8-8 ¹ as an aggrieved owner of property located within one hundred feet of a parcel of land owned by the defendants, Michael A. and Lori A. Brunetto (Brunettos). The plaintiff claims that the zoning board of appeals of the town of Fairfield (board) erred in granting the application of the Brunettos for three variances and a special exception to the Fairfield zoning regulations (regulations). The state trial referee, exercising the powers of the Superior Court, dismissed the appeal from the board and the plaintiff appealed to the Appellate Court. Thereafter, this court transferred the appeal to itself, pursuant to Practice Book § 4023.

The following unchallenged facts presented below are relevant to our consideration of the plaintiff's claims: The plaintiff is the owner of a parcel of land on which an industrial building is located at 1455 Kings Highway in Fairfield. The Brunettos' property is located at 1475 Kings Highway in Fairfield. Both properties are located in an industrial district 1 zone. The prior owners of the Brunettos' property used it for the operation of an aluminum casting foundry, a nonconforming use in an industrial district 1 zone. The foundry had been operated from 1953 until it had become economically unfeasible. The Brunettos purchased the property in early April, 1985, with the intention of using it as an automobile repair shop. On April 8, 1985, the Brunettos filed an application with the board for three variances and a special exception. In granting the application, the board found that when the Brunettos purchased the property they did so with the knowledge that the operation of an automobile repair shop is prohibited by the regulations in an industrial district 1 zone. ² Relying on the board's findings, the trial court concluded that "the proposed use for the subject property operating under current regulations as to air pollution and the like would be far less offensive to the surrounding residents than a foundry."

The gravamen of the plaintiff's challenge is that the trial court erred in upholding the board's granting of the Brunettos' application for a variance to § 19.4.6 of the regulations. Specifically, the plaintiff claims that the trial court erred in: (1) upholding the board's decision granting a variance of § 19.4.6 of the regulations when the board clearly usurped the function of the planning and zoning commission; (2) upholding the board's decision in granting the three variances when the Brunettos failed to show unusual hardship; (3) upholding the board's decision in granting the variances when such variances will substantially affect the comprehensive zoning plan; (4) holding that a denial of the Brunettos' application for three variances would be confiscatory and legally impermissible; and (5) holding that adherence to the strict letter of the regulation would cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan. We find no error.

I

The plaintiff's first claim is that the trial court erred in upholding the board's decision granting a variance of § 19.4.6 of the regulations. The plaintiff argues that the board usurped the function of the planning and zoning commission by allowing the Brunettos to change the use of their property to a use specifically prohibited in an industrial district 1 zone. We disagree.

At the outset, we note that "[u]pon 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." Willard v. Zoning Board of Appeals, 152 Conn. 247, 248-49, 206 A.2d 110 (1964). "The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs. Horvath v. Zoning Board of Appeals, 163 Conn. 609, 316 A.2d 418 (1972); Thorne v. Zoning Board of Appeals, 156 Conn. 619, 621, 238 A.2d 400 (1968); Talmadge v. Zoning Board of Appeals, 141 Conn. 639, 642, 109 A.2d 253 (1954)." Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980).

The plaintiff asserts that variances "should not be used to accomplish what is, in effect, a substantial change in the uses permitted in the specified zone." Dooley v. Town Planning & Zoning Commission, 151 Conn. 304, 313, 197 A.2d 770 (1964). He claims further that "the establishment of and changes in general zoning regulations are a legislative function ... and when the board uses its variance power to change these general rules, it encroaches on this legislative area and thereby acts in abuse of its discretion." Ward v. Zoning Board of Appeals, 153 Conn. 141, 145, 215 A.2d 104 (1965). In support of this argument the plaintiff relies on Heady v. Zoning Board of Appeals, 139 Conn. 463, 94 A.2d 789 (1953), ³ and Bradley v. Zoning Board of Appeals, 165 Conn. 389, 334 A.2d 914 (1973). ⁴ Heady is clearly distinguishable from this case. In Heady, the applicant had a permissible accessory use that he attempted to change and expand by variance to a nonconforming use. The Brunettos, by contrast, have a nonconforming use that they seek to change to a "less offensive" nonconforming use. Neither Heady nor Bradley supports the argument of the plaintiff because in both of those cases the applicant sought to increase his land use by way of the variance power of the board, as contrasted to the Brunettos who have a nonconforming use of their property and, by way of a variance, applied for a change in the nonconforming use to a "less offensive" nonconforming use.

Under General Statutes § 8-6(3), ⁵ the board may grant a variance provided (1) the variance is shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning regulation is shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan. Whittaker v. Zoning Board of Appeals, supra, 179 Conn. at 655, 427 A.2d 1346; Smith v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542 (1978). The trial court concluded that the decision of the board satisfied these statutory variance requirements. As Professor Tondro states, "[t]he [zoning board of appeals] is best known for its power to alter the application of the zoning regulations to a particular property upon a proper showing by the applicant. No municipal agency other than the board of appeals may be given the power to vary the application of the zoning regulations in individual cases." T. Tondro, Connecticut Land Use Regulation (1979) § III-D(1), pp. 46-47. Here, the board granted a variance to the Brunettos for a single parcel of land which is a lot consisting of fifty by one hundred feet, occupied by a building of forty by eighty feet. In granting a variance to the Brunettos for this particular lot, the board has not, in our view, used its variance power to establish or change the general zoning regulations of Fairfield.

We recognize that "nonconforming uses should be abolished or reduced to conformity as quickly as the fair interest of the parties will permit--'[i]n no case should they be allowed to increase.' Salerni v. Scheuy, 140 Conn. 566, 570, 102 A.2d 528 [1954]; Stern v. Zoning Board of Appeals, 140 Conn. 241, 244, 99 A.2d 130 [1953]." Beerwort v. Zoning Board of Appeals, 144 Conn. 731, 734, 137 A.2d 756 (1958). "The accepted method of accomplishing the ultimate object is that, while the alien use is permitted to continue until some change is made or contemplated, thereupon, so far as is expedient, advantage is taken of this fact to compel a lessening or suppression of the nonconformity." Darien v. Webb, 115 Conn. 581, 585, 162 A. 690 (1932); Lathrop v. Norwich, 111 Conn. 616, 623, 151 A. 183 (1930). We reiterate the unchallenged finding of the trial court that "the proposed use for the subject property operating under current regulations as to air pollution and the like would be far less offensive to the surrounding residents than a Foundry."

"A property owner may legally engage in a prohibited use under either of two dispensations. He may obtain a variance, or his use may qualify as a nonconformity." T. Tondro, supra, § III-E(4), p. 70. A nonconformity is a use or structure prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations are adopted. Id. On the other hand, a variance is a prohibited use or structure that is permitted by the board, pursuant to its authority under the regulations. Id. The variance power exists to permit what is prohibited in a particular zone. Thus, the board's action in this case, granting the Brunettos permission to operate an automobile repair shop, a prohibited activity in an industrial district 1 zone, is consistent with the board's variance power; see General Statutes § 8-6(3); and does not constitute a usurpation of the function of the planning and zoning commission.

II

The unusual hardship requirement for a variance is challenged by the plaintiff in his second and fifth claims. Under General Statutes § 8-6(3) one of the requirements for a variance is evidence that adherence to the strict letter of the zoning regulation is shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan. Smith...