Amendola v. Zoning Bd. of Appeals of W. Haven

• Decision Date: 15 December 2015
• Docket Number: 36813.,Nos. 36811,s. 36811
• Citation: 161 Conn.App. 726,129 A.3d 743
• Court: Connecticut Court of Appeals
• Parties: Marylou C. AMENDOLA v. ZONING BOARD OF APPEALS OF the CITY OF WEST HAVEN. Howard Warren Benedict et al. v. Zoning Board of Appeals of the City of West Haven.

161 Conn.App. 726

129 A.3d 743

Marylou C. AMENDOLA

v.ZONING BOARD OF APPEALS OF the CITY OF WEST HAVEN.

Howard Warren Benedict et al.

v.Zoning Board of Appeals of the City of West Haven.

Nos. 36811

36813.

Appellate Court of Connecticut.

Argued Sept. 16, 2015.

Decided Dec. 15, 2015.

Timothy B. Folen, for the appellants in both appeals (plaintiffs).

Charles R. Andres, New Haven, for the appellee both appeals (named defendant).

Michael A. Leone, with whom, on the brief, was Brian G. Enright, New Haven, for the appellee in both appeals (defendant Robert Fischer).

DiPENTIMA, C.J., and BEACH and LAVERY, Js.

LAVERY, J.

These two appeals raise the common question of whether the size and shape of the subject property constituted a legally recognized hardship.¹ In 2009, the defendant Zoning Board of Appeals of the city of West Haven (board), granted six variances sought by the applicant, the defendant Robert F. Fischer,² to expand his already nonconforming dwelling. Fischer's immediate neighbors, the plaintiff in AC 36811, Marylou C. Amendola and her husband, Vincent Amendola, to the west of Fischer, and the plaintiffs in AC 36813, Howard Warren Benedict and Barbara Spencer Benedict, to the east, appealed from the board's decision to the Superior Court. The court heard together and dismissed both appeals, concluding, inter alia, that the administrative record supported the board's finding of a legally recognized hardship necessary for the granting of a variance. These certified appeals followed, with the dispositive issue in both cases being whether a legally recognized hardship exists. We conclude, for the reasons that follow, that the finding of hardship was improper and, accordingly, reverse the judgments of the Superior Court.

I

The property at issue (property) in this appeal is located at 201 Ocean Avenue in West Haven. It resembles a long and narrow rectangle, measuring approximately 50 feet wide by 200 feet long and stretches from Ocean Avenue, to the north, to Long Island Sound, to the south. Between the southern border of the property and Long Island Sound, as is the case with many of the other properties situated between Long Island Sound and Ocean Avenue, runs an unimproved utility and sewer easement known as Old King's Highway. As a result, the property has two front yards; one abuts the street and the other the water. The two longer sides of the property separate it from its Ocean Avenue neighbors. The Amendolas share an approximately 219.1 foot boundary with the property to the west, and the Benedicts share an approximately 198.5 foot boundary with the property to the east. Altogether, the property lot measures approximately 10,400 square feet.

On the property stands Fischer's two-story single-family residential dwelling. The dwelling measures 30 feet wide by 35 feet long and is set back 10 feet on both its east and west boundaries. Like most of the surrounding homes, the dwelling is located closest to the water side of the property. As a result, while it is setback approximately 158.5 feet from its Ocean Avenue border, the setback from Long Island Sound is nonexistent because a deck, measuring 30 feet wide (the width of the dwelling) extends 18 feet from the dwelling toward the Sound and thus encroaches onto the Old King's Highway easement.

According to the city's zoning map, the property is located in an R–2 "single-family residential district." West Haven Zoning Regs., § 11. Under the West Haven zoning regulations, and as summarized by the Superior Court, the property "is nonconforming in four respects: (1) the dwelling is located on a 10,400 square foot lot, where a 16,000 square foot lot is required; (2) the front yard setback on the waterside of the property is nonexistent, where a thirty foot setback is required, as the attached deck encroaches on Old King's Highway; (3) the side yard setbacks are each ten feet wide, where fifteen foot setbacks are required; and (4) the street frontage is fifty feet wide, where eighty feet is required.... Nevertheless, because the dwelling predates the existing regulations, and because of a previous setback variance, the dwelling is a legally nonconforming structure and requires no modification. See generally West Haven Zoning Regs., § 82."³ (Citation omitted; footnote omitted.)

On March 13, 2009, Fischer applied for six variances from the West Haven zoning regulations to expand the existing dwelling. Along with a building coverage variance and a lot coverage variance, Fischer requested four setback variances to construct: (1) an addition on the street side of the property allowing him to nearly double his living space; (2) an attached three car garage to be located on the street side of the newly constructed addition; (3) an addition on the water side of the dwelling, by enclosing a portion of the existing deck; and (4) a second floor balcony on the water side, that would extend from the second floor of the newly enclosed addition to the end of the current deck.⁴ With respect to the claim of hardship, Fischer stated that "[t]he lot size limits the full enjoyment of th[e] property, [and the] undersize lot and shape were developed prior to the current zoning."

On April 15, 2009, the board held a public hearing on Fischer's application. At the hearing, Brian Enright, counsel for Fischer, explained that the expansion was necessary for "additional dwelling space," and "to procure reasonable use of the lot." Enright further stated that the hardship underlying the requested variances was due to the small size of the lot, its rectangular shape, and the location of the unimproved Old King's Highway easement.

Enright further informed the board that not only was the expansion plan influenced by the size and shape of the lot, but the expansion plan also reflected the concerns of Fischer's neighbors. For example, Enright stated that "in an effort to try and address some of the concerns of the neighbors, [Fischer] shortened the addition on the [Sound] side and moved it approximately 1.25 feet closer to Ocean Avenue." He explained that under the original plan, "the entire addition of the house was going to go out approximately 8.25 feet on the easterly boundary.... [The new plans] reduced that portion of the addition on the beach side or ocean side to a maximum of 7 feet."

Enright also argued that although the new expansion plans resulted in an impermissible increase of a nonconforming structure; see West Haven Zoning Regs., § 82.3;⁵ the expansion was reasonable because it would not increase the dwelling's encroachment into the required setback area. He explained that while the size of the dwelling would increase, the degree of the dwelling's noncompliance with the setback requirements would remain the same. For example, Enright described the first floor expansion on the water side, to be constructed by enclosing the existing deck, as "being built completely within the existing structure's footprint. There is an existing deck that you can see on the plan.

We are not exceeding the existing footprint in any fashion." Likewise, he described the construction of a new second floor deck on the water side of the dwelling as "be[ing] flush up against the house here again running along that same line.... So again because this is a structure even though it's on the second floor and not on the ground floor, it does require a variance because it does run flush with the building it would in fact be 10 feet from the side yard where 15 is required but again consistent with the current lines of the building." Finally, he described the street side addition as merely maintaining the nonconforming dwelling by saying, "[t]his addition would require a variance because it would be 10 feet from the side yard where 15 is required. Again, the existing home is 10 feet from the side yard. So it's consistent with the current use."

In response to a question from the board, Enright clarified that it was Fischer's preference to construct a nonconforming attached garage, instead of a detached garage that would conform to the regulations. He explained: "As you folks are aware, if this were a true garage, if it were a detached structure and while we understand that there are certain size limitations relevant to that in an R–2 zone this building could actually be placed as close as 4 feet to the neighboring side yard. We believe for a lot of reasons that attached is more appropriate. We think esthetically it works better for the neighboring properties. We think that it clearly makes more practical sense.... We think from the standpoint of esthetics and overall property values of everyone around us, it works better i[n] this fashion. We understand that ... reasonable men and women that can differ and you may hear those opinions but we think this is the most appropriate and most limited variance to ask for this portion of the application."

Following Enright's presentation, the board heard from members of the public. Vincent Amendola, Fischer's neighbor to the west, argued that the proposed plans would interfere with his water view, property enjoyment, and expectation of privacy. Further, he objected to the variance application on the grounds that no hardship had been shown, stating that, "Mr. Enright talked about hardship being shape and configuration. I respectfully disagree with that. This is a square lot. It's 50 feet wide by 198 feet on one boundary with the Benedicts and 219 feet on the boundary that abuts our property. If you look in West Haven, there must be hundreds, maybe more than hundreds, maybe a thousand, 50 by 100 square foot lots here. So to say that this is a hardship because he's got a 10,440 square foot lot, I would respectfully disagree with that.... So there is nothing exceptionally hard here. There's nothing unusual. There's nothing peculiar to his lot. His lot is no different really than mine or many of the lots that border Ocean Avenue." Furthermore, Vincent Amendola pointed out that construction alternatives...