Pike v. Zoning Bd. of Appeals of Town of Hampton

• Decision Date: 11 May 1993
• Docket Number: No. 11489,11489
• Citation: 31 Conn.App. 270,624 A.2d 909
• Court: Connecticut Court of Appeals
• Parties: Clarence PIKE v. ZONING BOARD OF APPEALS OF the TOWN OF HAMPTON et al.

Page 909

624 A.2d 909

31 Conn.App. 270

Clarence PIKE v. ZONING BOARD OF APPEALS OF the TOWN OF HAMPTON et al.

No. 11489.

Appellate Court of Connecticut.

Argued Feb. 16, 1993.

Decided May 11, 1993.

Daniel K. Lamont, Willimantic, for appellant (plaintiff).

Noah H. Starkey, Willimantic, for appellees (defendants).

Before DALY, EDWARD Y. O'CONNELL and FREDERICK A. FREEDMAN, JJ.

EDWARD Y. O'CONNELL, Judge.

The plaintiff appeals from the judgment of the trial court dismissing his appeal challenging the defendants' ¹ denial of his application for a zoning variance. The plaintiff claims that the trial court improperly concluded that he had failed to demonstrate a hardship sufficient to support the granting of a variance. We reverse the judgment of the trial court.

In 1984, the plaintiff purchased an approved subdivision lot in the town of Hampton for $1000. The lot measures slightly more than one acre and is one of five approved building lots in the subdivision. ² The zone in which the lot is located is designated as a "residence-agricultural district" and provides for fourteen permitted uses: (1) residential housing; (2) home occupations secondary to a residential use; (3) banks (80,000 square foot minimum lot); (4) shop and storage for tradesmen secondary to a residential use; (5) garden centers, greenhouses, nurseries or landscape services (three acre minimum lot); (6) farms; (7) seasonal roadside stands selling farm produce predominantly grown on the premises; (8) cemeteries; (9) public utilities; (10) municipal, state, or federal government buildings; (11) kennels, stables, riding schools or commercial chicken houses (three acre minimum lot); (12) outdoor recreational uses; (13) educational, instructional, religious, philanthropic and charitable institutions; and (14) residential trailers (two acre minimum lot).

On April 20, 1990, in response to the plaintiff's request for a permit to build a single-family residence, the northeast district department of health conducted an inspection of the lot. Although the lot was part of an approved subdivision, the department of health determined that it was unsuitable for residential use because the soil would not support an adequate on-site sewage disposal system. In addition, the department of health informed the plaintiff that it would not approve any commercial development of the site without an engineer's analysis. ³ As a result, the plaintiff filed an application with the defendant zoning board of appeals (board) seeking variances of two regulations permitting nonresidential uses. ⁴

First, because the lot was approximately one acre, he asked the board for a variance of the three acre requirement of the regulation permitting a nursery or garden center. Second, because, as asserted by the plaintiff, the soil was too poor to grow significant amounts of produce, he sought a variance of the onsite growing requirement of the regulation permitting the operation of a seasonal roadside produce stand. The board denied the requested variances, citing as the reason the plaintiff's failure to demonstrate a hardship. The plaintiff appealed and the trial court dismissed the appeal, determining that the plaintiff had not demonstrated (1) the existence of an unusual hardship or (2) that a variance would not substantially affect the comprehensive plan.

In reviewing this claim, our ultimate determination is whether the trial court properly concluded that the board's denial of the variance was not arbitrary, illegal and an abuse of its discretion. Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988); Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980); Haines v. Zoning Board of Appeals, 26 Conn.App. 187, 190, 599 A.2d 399 (1991). The plaintiff bears the burden of demonstrating that the board acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988). We test the trial court's conclusion by reviewing the facts in the record. Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 149, 365 A.2d 387 (1976). A reviewing court does not substitute its judgment for the judgment of the board; Whittaker v. Zoning Board of Appeals, supra; Haines v. Zoning Board of Appeals, supra; but rather, it examines the board's reasons to see if they find reasonable support in the record and provide a relevant basis for the action taken on the application. Chevron Oil Co. v. Zoning Board of Appeals, supra, 170 Conn. at 152-53, 365 A.2d 387; Green v. Zoning Board of Appeals, 4 Conn.App. 500, 502, 495 A.2d 290 (1985).

General Statutes § 8-6(3) empowers zoning boards of appeals to vary the application of zoning regulations if (1) the variance is shown not to affect substantially the comprehensive plan and (2) adherence to the strict letter of the zoning regulation is shown to cause unusual hardship unnecessary to carrying out the general purpose of the plan. Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368, 537 A.2d 1030 (1988). The statute provides that the 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.' " Haines v. Zoning Board of Appeals, supra, 26 Conn.App. at 190-91, 599 A.2d 399. 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.' " Id., at 191, 599 A.2d 399. The applicant bears the burden of demonstrating the existence of a hardship. Bogue v. Zoning Board of Appeals, 165 Conn. 749, 754, 345 A.2d 9 (1974); Kelly v. Zoning Board of Appeals, 21 Conn.App. 594, 599, 575 A.2d 249 (1990).

The plaintiff claims that without a variance his property has no reasonable use and is, therefore, of little or no value. ⁵ A variance for a nonresidential use may be appropriate where the location of the property, unusual soil conditions, topography or drainage problems make a lot unsuitable for residential use. R. Fuller, 9 Connecticut Practice, Land Use Law and Practice § 9.3. A mere decrease in property value or other financial loss, however, will not ordinarily constitute a hardship sufficient to mandate the issuance of a variance. Grillo v. Zoning Board of Appeals, supra, 206 Conn. at 369, 537 A.2d 1030; see also Miclon v. Zoning Board of Appeals, 173 Conn. 420, 378 A.2d 531 (1977) (no hardship although applicant's property was not being used at its maximum financial potential); Laurel Beach Assn. v. Zoning Board of Appeals, 166 Conn. 385, 349 A.2d 834 (1974) (proof of financial loss is not proof of legal hardship); Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 303 A.2d 743 (1972) (neither financial loss nor inability to reap financial gain necessarily constitutes a hardship); see, e.g., Berlani v. Zoning Board of Appeals, 160 Conn. 166, 276 A.2d 780 (1970) (no hardship although applicant's business would suffer due to inability to use modern methods); Shell Oil Co. v. Zoning Board of Appeals, 156 Conn. 66, 238 A.2d 426 (1968) (no hardship although applicant could not add an additional service bay at his gasoline station).

The financial impact must be such that the " '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.' " Grillo v. Zoning Board of Appeals, supra; see also Archambault v. Wadlow, 25 Conn.App. 375, 382, 594 A.2d 1015 (1991); Stankiewicz v. Zoning Board of Appeals, 15 Conn.App. 729, 733, 546 A.2d 919 (1988), aff'd, 211 Conn. 76, 556 A.2d 1024 (1989).

In the present case, the trial court recognized that of the fourteen possible uses permitted in the zone, the lot had potential use solely for the two purposes suggested by the plaintiff and as a side yard for adjoining property. The court relied on Grillo v. Zoning Board of Appeals, supra, in reasoning that the lot's potential use as a side yard imbued it with some unspecified marketable value. In Grillo, our Supreme Court held that the applicant's undersized lot would not be rendered of minimal value in the absence of a variance permitting residential construction because the lot had value as a side yard. Unlike the lot in the present case, however, the lot in Grillo abutted a house and another lot owned by the applicant and was being used by the applicant as a side yard. The court reasoned, therefore, that the lot had value as a side yard because it would enhance the price of the applicant's house. Moreover, the Grillo court also noted that an abutting neighbor had offered to purchase the lot for use as a side yard for a price well in excess of the lot's...