Jersey v. Zoning Bd. of Appeals of Derby

• Decision Date: 22 May 2007
• Docket Number: No. 27438.,27438.
• Citation: 101 Conn.App. 350,921 A.2d 683
• Parties: Lewis JERSEY et al. v. ZONING BOARD OF APPEALS OF the CITY OF DERBY.
• Court: Connecticut Court of Appeals

921 A.2d 683

101 Conn.App. 350

Lewis JERSEY et al. v. ZONING BOARD OF APPEALS OF the CITY OF DERBY.

No. 27438.

Appellate Court of Connecticut.

Argued February 5, 2007.

Decided May 22, 2007.

Ian Angus Cole, Derby, for the appellants (plaintiffs).

Brian A. Lema, Milford, for the appellee (defendant).

SCHALLER, HARPER and ROGERS, Js.

SCHALLER, J.

The plaintiffs, Lewis Jersey and Susan Jersey, appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant, the zoning board of appeals of the city of Derby, denying their application for a variance. On appeal, the plaintiffs claim that § 25.25(I)(2), formerly § 195-80 B, of the Derby zoning regulations,¹ is illegal and void, and (2) that the defendant's denial of the application was unreasonable, arbitrary or illegal. We agree with the plaintiffs' first claim and, accordingly, reverse the judgment of the trial court.²

The following factual and procedural history is pertinent to the resolution of the plaintiffs' appeal. The subject property is located at 13 Stephen Street, Derby, in the R-3 residential zoning district. The plaintiffs, by way of an application dated February 1, 2005, requested a variance of the fifty foot rear yard setback requirement. They had sought to construct a two car garage, with additional living space, on their property. The application indicated that the unique shape of the plaintiffs' lot, with a concave rear boundary, permitted them to build only an odd shaped addition that would not be in harmony with the surrounding properties. In order to build the garage in the shape of a rectangle, the plaintiffs needed the variance to reduce the rear setback to thirty-six feet.

On February 17, 2005, the defendant held a public hearing on the plaintiffs' application. During their presentation, the plaintiffs conceded that they were making a reasonable use of the property. No one voiced any public opposition to the variance. The chairman, Samuel M. Rizzitelli, Jr., stated that in order to grant the variance, the defendant needed to make the following findings: (1) if the plaintiffs complied with the zoning regulations, they would not be able to make any reasonable use of the property; (2) the difficulties or hardship are particular to the property in question, in contrast with those of others in the same district; (3) the hardship was not the result of the plaintiffs' action; and (4) the hardship was not merely financial or pecuniary.³ Rizzitelli then noted that the plaintiffs had acknowledged that they presently were making a reasonable use of the property. Another member of the board, Beverly Moran, indicated that, in her view, three of the conditions were satisfied. After additional discussion, the board unanimously denied the application. Rizzitelli stated that "according to the code we can only approve variances when the record shows that you cannot make a reasonable use of the property."

On March 11, 2005, the plaintiffs appealed from the decision of the defendant to the Superior Court. The court determined that the defendant acted within its discretion to deny the application for a variance. The court also rejected the plaintiffs' claim that the regulation's requirement that the owner of property not have any reasonable use before a variance could be granted was not illegal or void. Specifically, the court stated that "the regulation instructs [the defendant] to consider the effect that the issuance or denial of a variance request has upon the property owner's reasonable use of the property in order to determine whether an unusual difficulty or hardship exists to allow the granting of a variance." Following our grant of certification, this appeal followed.⁴

The plaintiffs claim that § 25.25(I)(2) of the Derby regulations is illegal and void. We begin our analysis by setting forth our standard of review. We generally review the actions of a zoning board under a deferential standard.⁵ Benson v. Zoning Board of Appeals, 89 Conn App. 324, 329, 873 A.2d 1017 (2005). In the present case, however, the issue presented requires us to determine whether the Derby regulation is valid. "Resolution [of the validity of a regulation] requires us to review the applicable statutory provisions and the relevant town regulations. Because the interpretation of . . . [statutes and] regulations presents a question of law, our review is plenary." (Internal quotation marks omitted.) Jewett City Savings Bank v. Franklin, 280 Conn. 274, 278, 907 A.2d 67 (2006); Andrews v. Planning & Zoning Commission, 97 Conn.App. 316, 319, 904 A.2d 275 (2006). We therefore must decide "whether [the court's] conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Pinchbeck v. Planning & Zoning Commission, 69 Conn.App. 796, 801, 796 A.2d 1208, cert. denied, 261 Conn. 928, 806 A.2d 1065 (2002).

A brief review of our law with respect to variances will be helpful for our discussion. "A variance has been defined as the authority granted to [an] owner to use his property in a manner forbidden by zoning regulations. . . . Our Supreme Court has cautioned that the power to grant variances from the strict application of zoning ordinances should be carefully and sparingly exercised. . . . The power to authorize a variance is only granted for relief in specific and exceptional instances." (Citation omitted; internal quotation marks omitted.) Horace v. Zoning Board of Appeals, 85 Conn.App. 162, 165-66, 855 A.2d 1044 (2004). "[A] board may grant variances with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured. . . . To support a variance, therefore, a hardship must arise from a condition different in kind from that generally affecting properties in the same zoning district and must be imposed by conditions outside the property owner's control." (Internal quotation marks omitted.) Hoffer v. Zoning Board of Appeals, 64 Conn.App. 39, 42, 779 A.2d 214 (2001); see also Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, 570, 785 A.2d 601 (2001) ("[p]roof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance" [internal quotation marks omitted]).

The essence of the plaintiffs' claim is that the regulation in question contains an additional element that is not required by our statutes. General Statutes § 8-6(a) provides in relevant part: "The zoning board of appeals shall have the following powers and duties . . . (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. . . ."

Our case law establishes that "[f]or a variance to be granted under General Statutes § 8-6(3) [now § 8-6(a)(3)], two conditions must be fulfilled: (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." (Internal quotation marks omitted.) Dupont v. Zoning Board of Appeals, 80 Conn.App. 327, 330, 834 A.2d 801 (2003); see also Francini v. Zoning Board of Appeals, 228 Conn. 785, 790, 639 A.2d 519 (1994); Kalimian v. Zoning Board of Appeals, 65 Conn.App. 628, 631, 783 A.2d 506, cert. denied, 258 Conn. 936, 785 A.2d 231 (2001).

In the present case, the regulation in question incorporates an additional requirement for applicants seeking a variance. In order for the defendant to grant a variance, applicants must demonstrate that they are unable to make any reasonable use of the property. We acknowledge that the concept of "reasonable use" exists in our variance jurisprudence. As a general rule, "[d]isadvantage in property value or income, or both, to a single owner of property, resulting from application of zoning restrictions, does not, ordinarily, warrant relaxation in his favor on the ground of practical difficulty or unnecessary hardship." (Internal quotation marks omitted.) Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988). Such considerations "are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations to the property greatly decreases or practically destroys its value for any of the uses to which it could reasonably be put and where the regulations, as applied, bear so little relationship to the purposes of zoning that, as to particular premises, the regulations have a confiscatory or arbitrary effect." (Emphasis added; internal quotation marks omitted.) Id.; see also Horace v. Zoning Board of Appeals, supra, 85 Conn.App. at 171, 855 A.2d 1044; Hoffer v. Zoning Board of Appeals, supra, 64 Conn. App. at 44, 779 A.2d 214. In other words, whether a property retains any reasonable use can be a test for determining a hardship in some circumstances, but is not a prerequisite in all cases.

Our ...