Whittaker v. Zoning Bd. of Appeals of Town of Trumbull

• Decision Date: 19 February 1980
• Court: Connecticut Supreme Court
• Parties: Patricia WHITTAKER et al. v. ZONING BOARD OF APPEALS OF the TOWN OF TRUMBULL et al.

Page 1346

427 A.2d 1346

179 Conn. 650

Patricia WHITTAKER et al. v. ZONING BOARD OF APPEALS OF the TOWN OF TRUMBULL et al.

Supreme Court of Connecticut.

Argued Nov. 13, 1979.

Decided Feb. 19, 1980.

Hugh J. Lavery, Bridgeport, for appellants (plaintiffs).

Burton S. Yaffie and Laurence V. Parnoff, Bridgeport, for appellees (defendants).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ.

ARTHUR H. HEALEY, Associate Justice.

The plaintiffs appealed to the Court of Common Pleas from the decision of the defendant Trumbull zoning board of appeals (hereinafter the board) granting a variance to the defendant Ronald L. Esposito allowing him to subdivide into two lots a parcel of land zoned Residence AA and owned by Guido Gismondi. ¹ That court dismissed the appeal and the plaintiffs ² have appealed to this court upon the granting of certification.

The record discloses that on March 23, 1977 the Trumbull planning and zoning commission (hereinafter the commission) approved an application made by the defendant Esposito to subdivide the 1.79 acre parcel into two lots and to extend an existing road known as "Quail Trail" through the parcel. See General Statutes § 8-25. This subdivision would result in two approximately three-quarter acre lots in between which Quail Trail would extend. See appendix. The subdivision approval was contingent upon several factors, including the defendant board's grant of a variance of § I, article III of the Trumbull zoning regulations, which sets a minimum lot size of one acre in the residence AA zone in which the parcel in question is located. The commission's approval also required Esposito, as the developer, to construct the extension of Quail Trail through the divided parcel. Quail Trail is presently a dead end street and the 1.79 acre parcel lies between Quail Trail in the so-called Lagana subdivision and Foster Avenue, an existing street. The record discloses that it has been the intention of the planning and zoning commission to extend this section of Quail Trail to connect with Foster Avenue when it originally approved the Lagana subdivision in 1969. Therefore, the Lagana subdivision was not finally approved by the commission ³ in 1969; see General Statutes § 8-25; until the subdivision map provided for the future extension of Quail Trail to Foster Avenue. The approved subdivision map, which includes the lots of the plaintiffs and was recorded in the Trumbull land records, shows a turnaround at the end of Quail Trail, where the lot in question is located, with the following notation: "Temp(orary) turnaround, to be discontinued on extension of road." The warranty deed to the Whittakers recites that their premises are subject to this turnaround as shown on the recorded Lagana subdivision map.

The defendant board granted Esposito's application for a variance of the one acre lot size requirement in order to permit the construction of dwellings on each of the two lots, and gave nine reasons for its decision. ⁴ Thereafter, Patricia Whittaker, an abutting property owner, and Alexander and Sally Ann Nestor, other property owners, commenced this action. ⁵ See General Statutes, § 8-8. The trial court found the plaintiffs' appeal to be without merit. We agree.

The question before us essentially is whether the court erred in ruling that the board properly granted the lot size variance the defendant Esposito sought. The plaintiffs argue basically that Esposito demonstrated no true hardship because the undivided lot conformed to the lot size regulation for that zone; and that, because the town did not take the property by its power of eminent domain to construct the road, no hardship has been shown to exist. This argument, of course, implicates the reasons the board gave to support its decision to grant the variance.

The ultimate issue raised by this appeal is whether the trial court correctly concluded that the action of the defendant board was not arbitrary, illegal or an abuse of its discretion. Bogue v. Zoning Board of Appeals, 165 Conn. 749, 752, 345 A.2d 9 (1974); see also Jenkins v. Zoning Board of Appeals, 162 Conn. 621, 623, 295 A.2d 556 (1972). Courts are not to substitute their judgment for that of the board; Koproski v. Zoning Board of Appeals, 162 Conn. 635, 636, 295 A.2d 564 (1972); Wil-Nor Corporation v. Zoning Board of Appeals, 146 Conn. 27, 30, 147 A.2d 197 (1958); and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing. See Young v. Town Planning & Zoning Commission, 151 Conn. 235, 245, 196 A.2d 427 (1963). "Upon 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, 111 (1964). See Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662, 211 A.2d 687 (1965). 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).

A local zoning board has the power to grant a variance under General Statutes § 8-6(3) ⁶ where two basic conditions are satisfied: "(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." Smith v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542, 545 (1978). We must determine whether the trial court was correct in concluding that the zoning board of appeals was entitled to grant the variance under the terms of General Statutes § 8-6(3), which have been substantially incorporated in Article VI § 1B ⁷ of the zoning regulations of the town of Trumbull. Because the trial court made no finding, we have consulted the memorandum of decision to ascertain the basis for its judgment. Smith v Zoning Board of Appeals, supra, 325, 387 A.2d 542; Goldberg v. Zoning Commission, 173 Conn. 23, 26, 376 A.2d 385 (1977).

There was evidence before the board that supported its conclusion that the variance would be in harmony with the purpose and intent of the zoning regulations in this area. In reviewing the board's action, the trial court properly recognized that the board could not grant a variance for a use that would impair the integrity of the comprehensive plan. Miclon v. Zoning Board of Appeals, 173 Conn. 420, 424, 378 A.2d 531 (1977); Parsons v. Board of Zoning Appeals, 140 Conn. 290, 295, 99 A.2d 149 (1953).

The comprehensive plan is to be found in the scheme of the zoning regulations themselves; see Loh v. Town Plan & Zoning Commission, 161 Conn. 32, 35, 282 A.2d 894 (1971); Lebanon v. Woods, 153 Conn. 182, 188, 215 A.2d 112 (1965); see General Statutes § 8-2; as well as in the maps and plans, if there be any, filed pursuant to General Statutes §§ 8-25, 8-29. See Couch v. Zoning Commission, 141 Conn. 349, 355, 106 A.2d 173 (1954). The board found, and justifiably so, that the variance would be "in harmony with the general purpose and intent of the Zoning Regulations in carrying out the proper arrangement and development of streets in this area." See footnote 4, supra. If the 1.79 acre parcel had been developed as a single lot, as the plaintiffs suggest, the comprehensive plan would have been impaired because such development would have prevented the commission from improving traffic flow and thereby reduce congestion and facilitate the delivery of vital health and protective services. See General Statutes § 8-2; footnote 4, supra. Moreover, the zoning commission's approval of the extension of Quail Trail in 1969, when the development was laid out, and its recent approval of the subdivision plan submitted by Esposito, further support the board's conclusion that the variance would not conflict with the town's comprehensive plan but would, instead, implement it.

Thus, the first requirement of General Statutes § 8-6(3) having been satisfied, we take up the second requirement: demonstration that adherence to the strict letter of the zoning ordinance causes "unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan." Smith v. Zoning Board of Appeals, supra, 174 Conn. 326, 387 A.2d 545. The plaintiffs argue essentially that the hardship complained of by Esposito is self-created and, therefore, that the variance was improperly granted. We do not agree.

As we have pointed out in a prior decision, "(t)he meaning of 'exceptional difficulty or unusual hardship' as used in General Statutes § 8-6 has been extensively litigated." Smith v. Zoning Board of Appeals, supra, 327, 387 A.2d 545. In Smith we said that "(i)t is well-settled that the hardship must be different in kind from that generally affecting properties in the same zoning district, and must arise from circumstances or conditions beyond the control of the property owner." Ibid. Where the hardship involved "arises as the result of a voluntary act by one other than the one whom the variance will benefit, the board may, in the sound exercise of its liberal discretion, grant the variance." Belknap v. Zoning Board of Appeals, 155 Conn. 380, 384, 232 A.2d 922 (1967). Where the claimed hardship arises from the applicant's voluntary act, however, a zoning board lacks the power to grant a variance. Abel v. Zoning Board of Appeals, 172 Conn. 286, 289, 374 A.2d 227 (1977); Booe v. Zoning Board of Appeals, 151 Conn. 681, 683, 202 A.2d 245 (1964); Spalding v. Board of Zoning Appeals, 144 Conn. 719, 722, 137 A.2d 755 (1957); Devaney v. Board of Zoning Appeals, 132 Conn. 537, 544, 45 A.2d 828 (194...