Verrillo v. Zoning Bd. of Appeals of the Town of Branford

• Decision Date: 10 March 2015
• Docket Number: AC 36196
• Court: Connecticut Court of Appeals
• Parties: ANTHONY VERRILLO v. ZONING BOARD OF APPEALS OF THE TOWN OF BRANFORD ET AL.

ANTHONY VERRILLO v. ZONING BOARD OF APPEALS OF THE TOWN OF BRANFORD ET AL.

AC 36196

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued November 19, 2014

March 10, 2015

Gmendel, Mullins and Bear, Js.

(Appeal from Superior Court, judicial district of New Haven, Blue, J.)

Michael A. Zizka, for the appellant (named defendant), with whom was David A. Gibson, for the appellants (defendant Linda F. Lantsberger et al.).

Michael G. Tansley, with whom was Heather L. Dostaler, for the appellee (plaintiff).

Opinion

GRUENDEL, J. In 2012, the defendant Zoning Board of Appeals (board) of the Town of Branford (town) granted eight variances sought by the applicants, defendants Linda F. Lantsberger, trustee, and David Laraia, trustee (applicants), to expand an existing nonconforming structure. The plaintiff, Anthony Verrillo, thereafter commenced an appeal of that decision in the Superior Court. The court sustained the appeal, concluding that the administrative record did not substantiate the board's finding of unusual hardship. This appeal concerns the propriety of that determination, and causes us to consider (1) whether the board rendered a formal, collective statement of reasons for its action, (2) the nature of the variance power, (3) whether a legally cognizable hardship exists, (4) whether such hardship peculiarly affects the applicants' property, (5) whether the applicants' proposal qualifies under the exception to the hardship requirement set forth in Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 535 A.2d 799 (1988), and its progeny, and (6) whether the granting of the requested variances substantially affects the comprehensive zoning plan. We affirm the judgment of the Superior Court.¹

This appeal concerns real property known as 112 Limewood Avenue (property). The property is located in a coastal area of town "comprised mostly of small cottage type homes on small parcels . . . ." Its title originates in a deed recorded in 1908. The lot is approximately sixty feet long and twenty-six feet wide, and its total area is 1605 square feet. In 1925, what the applicants describe as a "summer residence" was constructed on the property. That two-story structure contains four bedrooms and two bathrooms, with a living area of approximately 1000 square feet.

The town first enacted zoning regulations (regulations) in 1956. Branford Zoning Regs., § 6.1.C.3.² Under those regulations, the property is classified as part of the "Residence R-2 District." That district consists "of residential areas that have been developed over a period of years primarily with single-family houses for seasonal as well as year-round occupancy on relatively small lots." Branford Zoning Regs., § 3.2.B.1. Section 3.2.F.1 of the regulations requires a minimum lot area of 4000 square feet in that district, with which the property plainly does not comply. The existing structure likewise does not comply with the requirements of the R-2 district in several respects, as it significantly intrudes upon the front, rear, and side setback requirements of the property,³ as well as certain maximum coverage restrictions⁴ and the "[n]arrow [street]" setback requirement. See Branford Zoning Regs., §§ 3.2.F and 6.2.E (4).

It nevertheless is undisputed that the lot and existing structure antedate the enactment of the regulations in1956. It further is undisputed that neither the lot nor the existing structure has changed in size or shape since that time. As such, they are legally existing nonconformities subject to the protections of General Statutes §§ 8-2, 8-13a, and 8-26a.⁵ The continuance of those nonconformities, therefore, "is a vested right which adheres to the land itself." (Internal quotation marks omitted.) Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 300, 429 A.2d 883 (1980).

The applicants acquired the property in 1993. On February 23, 2012, they filed an application with the board requesting several variances from the regulations in order to expand the existing structure.⁶ Specifically, the applicants sought to (1) reduce the front setback from 15 feet to 0.2 feet; (2) reduce the westerly side setback from 10 feet to 1.4 feet; (3) reduce the easterly side setback from 10 feet to 7.2 feet; (4) reduce the rear setback from 20 feet to 6.3 feet; (5) increase the maximum floor area ratio from 0.50 to 0.89; (6) increase the maximum coverage ratio from 0.25 to 0.52; and (7) obtain a waiver of the narrow street setback requirement contained in § 6.2.E (4) of the regulations. In addition, the applicants requested a variance to waive the prohibition against the expansion of nonconforming structures set forth in §§ 8.1.C.1 and 8.1.C.3 of the regulations.⁷ With respect to the claim of hardship, the application noted that the property "is a preexisting legal nonconforming lot, upon which is located a legal preexisting nonconforming residence. The lot is substantially undersized (1605 sq. ft. in a zone requiring 4000 sq. ft.), leaving very little room for horizontal expansion and thereby requiring vertical expansion to improve the property by making it safer, more code compliant and provide reasonable and adequate living and storage space, parking and mechanical equipment."

The board held a public hearing on the application on March 20, 2012. At its outset, David A. Gibson, counsel for the applicants, provided an overview of their request, stating that the existing structure "is in dire need of renovation and upgrade." Gibson explained that under the applicants' proposal, although there would be some slight horizontal intrusions into the setback area, the principal expansion of the nonconforming structure would be vertical. In response to a question from the board, Gibson explained that the application did not propose demolishing the existing structure and building anew on a vacant lot. Instead, the applicants proposed expanding the existing nonconforming structure.

Accompanying their presentation was a plan prepared by architect Gerry Karpuska (plan) that detailed the proposed expansion of the existing structure from a two-story to three-story residence.⁸ Karpuska provided a review of the plan, which contained both "existing" and "proposed" depictions of the expansionfrom various angles, as well as contrasting floor plans. Gibson explained that the living area of the expanded structure would be 1430 square feet. The proposed floor area coverage would be 0.89, well beyond the 0.50 maximum permitted by the regulations. See Branford Zoning Regs., § 3.2.F.9.

After the applicants concluded their presentation, board Chairman Robert Harrington asked if anyone from the public wanted to be heard. Maureen McLean and Joanne Martinson, who owned an abutting parcel to the east of the property, spoke in favor of the application, stating that they "don't have a problem with any of . . . the changes [the applicants have] presented." The board also accepted a letter in support of the application from Fred Robinson and Grace Robinson, who owned an abutting parcel to the north of the property.

Attorney Patrick McGrath then spoke on behalf of the plaintiff, an abutting property owner, opining that "I don't think enough has been submitted concerning the hardship on this application [to] entitle the applicants to the variances that are requested." He reminded the board that "[t]he regulations clearly indicate that . . . the intent of the regulations is to permit nonconformities to continue until they're removed, but not to encourage their survival. It also says that nonconformities shall not be enlarged, expanded or extended, if such change increases the nonconformity. . . . Clearly, that's exactly what the applicants are looking for here." When board member Peter Berdon asked McGrath if he would agree that variances "are designed [to] allow people reasonable use of their property," McGrath stated that he did not agree. Instead, McGrath submitted that variances are designed to provide relief to applicants who can demonstrate "a hardship . . . owing to the characteristics of the land, that's unique to their property and not present in the general zoning district."

Berdon later clarified that the buildable area within the setback requirements on the property was approximately seven by twenty-two feet, and then asked whether those dimensions "in and of itself . . . establish that there is at least a hardship to build on this lot?" McGrath replied: "No, because there's a house on the lot. That's one important consideration at this point. There is a house on this lot. It's not as though this applicant can't build [and] is being denied [the] use of his property [and] is denied all reasonable benefit of this property. There's a house here. It's a residential district. There is a residence. It's [been] used as a summer residence, it has been for a very long period of time. There's nothing about this . . . lot, this structure and the application of the [regulations] to it, that denies them the reasonable benefit of their property. They have a house there. It's their notion that they want to build, they want to expand, they want to completely gut the place as the architect indicated, they want toput a master bedroom on and another bathroom . . . they want to do all these things. It's the construction that creates the extensible hardship. . . . It's their desire to expand. It's their desire to extend. Their desire to have a better . . . living space than they have now . . . that causes them to bring this application, and it makes them try to find this as a hardship." If the requested variances were denied, McGrath argued, "the applicant still has a perfectly useful residence."

As a final matter, McGrath alternatively argued that the applicants "have not met their burden with respect to showing . . . there's . . . some unique difficulty about this property. . . . [T]he courts have consistently held that there is no hardship where an applicant's claimed hardship is no different than those...