60-64 HUNTINGTON STREET, LLC v. ZONING BOARD O F APPEALS, CITY OF SHELTON.

2010 Ct. Sup. 18248
No. CV09-4011623SConnecticut Superior Court Judicial District of Ansonia-Milford at Milford
September 22, 2010

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
RADCLIFFE, J.

FACTS
The Plaintiff, 60-64 Huntington Street, LLC, brings this appeal following a decision by the Defendant Zoning Board of Appeals of the City of Shelton, denying a requested setback variance.

The property which was the subject of the variance application (ROR 1) is known as 60-64 Huntington Street, Shelton. The parcel consists of 10,535 square feet, and is located in a CA-2 zone. Although the minimum lot area permitted in a CA-2 zone is 15,000 square feet, 60-64 Huntington Street is legally nonconforming as to lot area.

In its application for a variance (ROR 1), the Plaintiff proposes replacing two existing commercial structures on the property, [1]
to permit the construction of a new two-story commercial office building. Business and professional offices are permitted uses in a CA-2 zone, subject to site plan approval (Shelton Zoning Regulations, Section 23, Schedule A).

The property, which is adjacent to Huntington Green, was dedicated to residential use prior to the early 1970s. Since that time, both buildings have been used for commercial purposes, as permitted in a CA-2 zone.

The setback requirements applicable to a CA-2 zone, are 40 feet to the front and rear, and 12 feet for the side yards. (Shelton Zoning Regulations, Section 24, Schedule B.) Both of the existing footprints are nonconforming as to location.

60 Huntington Street is less than 10 feet from Huntington Street, and also encroaches upon the side yard CT Page 18249 setback. 64 Huntington Street is within the rear yard setback, and is built on the adjacent property line (ROR 23).

The Plaintiff proposes to eliminate both of the smaller buildings, and to replace them with a single larger two-story building, consisting of 4,776 square feet (ROR 24). The only variance required, based on the plan submitted to the Defendant Zoning Board of Appeals, is a frontage waiver of the 40-foot setback to 10 feet, running along the portion of the parcel adjacent to Huntington Street (ROR 24).

The Zoning Board of Appeals held hearings on January 20, 2009 (ROR 28) and February 17, 2009 (ROR 29), concerning the requested variance.

The Plaintiff’s attorney maintained during the public hearing that the two existing buildings are nonconforming in multiple ways, whereas the new two-story edifice would be nonconforming only as to the front setback waiver, 40 feet to 10 feet (ROR 28, p. 13). The hardship, he maintained, was based upon the size of the lot, which required a variance in order to construct an otherwise conforming building (ROR 28, p. 21).

The Intervening Defendant, Dan Beard Associates, LLC, whose property abuts 60-64 Huntington Street, opposed the variance, arguing that the proposed structure constitutes an expansion of any existing nonconformity on Huntington Street, and that public health and safety concerns were impacted. Locating the two-story building 10 feet from Huntington Street, it was argued, with a sidewalk in front of the building, raised questions concerning snow removal, site lines, public safety and convenience (ROR 28, p. 17-18).

The opponents further claimed that the variance application was substantially the same proposal considered on an earlier occasion, and rejected by the Zoning Board of Appeals (ROR 28, p. 16).

The Shelton Zoning Board of Appeals voted unanimously to deny the Plaintiff’s requested variance. The reason given by the board was “. . . since no hardship within the purpose and intent of the zoning regulations was demonstrated as the board felt the proposed structure was too intense for the size of the property.” (ROR 31.)

Notice of the decision was published (ROR 11), and this appeal followed. CT Page 18250

The Intervening Defendant, Dan Beard Associates, LLC, was permitted to intervene as a party defendant, given its status as an abutting property owner.

AGGRIEVEMENT
The Plaintiff, 60-64 Huntington Street, LLC, is the owner of the property for which the setback variance was requested. The entity acquired title to the property via a quitclaim deed, recorded on August 5, 2008 (Ex. 1 Ex. 2). It claims to be aggrieved by the decision of the Shelton Zoning Board of Appeals, which generated this appeal.

Pleading and proof of aggrievement are prerequisites to a trial court’s jurisdiction over the subject matter of an appeal Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192 (1996). The question of aggrievement is one of fact. Hughes v. Planning Zoning Commission, 156 Conn. 505, 508 (1968).

A party claiming classical aggrievement must satisfy a well-established two-fold test: 1) the party must demonstrate a specific personal and legal interest in the decision appealed from, as distinct from a general interest such as a concern of all members of the community as a whole, and 2) the party must show that the specific personal interest has been specifically and injuriously affected by the actions of the board. Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47 (1984); Hall v. Planning Commission, 181 Conn. 442, 444 (1980). This interest must be maintained throughout the course of an appeal. Goldfield v. Planning Zoning Commission, 3 Conn.App. 172, 177 (1985).

The Plaintiff, 60-64 Huntington Street, LLC, is the owner of the property which is the subject of this appeal (Ex. 1 Ex. 2). It is therefore aggrieved by the decision of the Shelton Zoning Board of Appeals, denying its request for a front setback variance Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308 (1991); Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 530 (1957).

The Intervening Defendant, Dan Beard Associates, LLC, is in agreement with the decision appealed from. However, it claims to have standing in this matter, and to be statutorily aggrieved, in accordance with the provisions of § 8-8(l) of the General Statutes. CT Page 18251

The statute defines “aggrieved person” to mean “one owning land that abuts, or is within a radius of one hundred feet of any portion of land involved in the appeal.”

As the owner of property which abuts the parcel owned by 60-64 Huntington Street, LLC (Ex. A through E), Dan Beard Associates, LLC meets the definition of statutory aggrievement. As such, it has standing to appeal any decision of the Shelton Zoning Board of Appeals concerning 60-64 Huntington Street, without the necessity of demonstrating that its interests have been specifically and injuriously affected.

Furthermore, aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest has been adversely affected. Pomazi v. Conservation Commission, 220 Conn. 476, 483 (1991) O’Leary v. McGuinness, 140 Conn. 80, 83 (1953).

Dan Beard Associates, LLC’s claim of aggrievement is further supported by an examination of § 8-8(n) of the General Statutes, and cases which have interpreted that statute. Section 8-8(n) reads:

(n) No appeal taken under subsection (b) of this section shall be withdrawn, and no settlement between the parties to any such appeal shall be effective, unless and until a hearing has been held before the superior court and such court has approved such withdrawal or settlement.

Any settlement of this appeal between 60-64 Huntington Street, LLC and the Shelton Zoning Board of Appeals, requires a court hearing pursuant to the statute, and Practice Book § 14-7A.[2] The decision of the land use agency to settle a case is not appealable to the superior court Brookridge District Assn. v. Planning Zoning Commission, 259 Conn. 607, 618 (2002); and any appeal of a settlement to an appellate tribunal cannot be prosecuted by one who is not a party on the original appeal.

Unless Dan Beard Associates, LLC is a party to this appeal, it may not seek review by certification to the Appellate Court of any court approved settlement, notwithstanding its status as a statutorily aggrieved person, which could have appealed the court approved settlement, had the terms of the settlement been the CT Page 18252 initial decision of the zoning agency.

It is found that Dan Beard Associates, LLC meets the criteria for statutory aggrievement, and therefore may participate in, and has standing to be heard in this appeal.

STANDARD OF REVIEW — VARIANCES
The powers of a municipal zoning board of appeals are derived from § 8-6(3) of the General Statutes.

Acting pursuant to that statutory authority, a zoning board of appeals has the power:

(3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent, with due consideration concerning 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 . . .

In the discharge of its responsibilities, a zoning board of appeals is endowed with liberal discretion, and its decisions are subject to review by a court only to determine whether the board acted arbitrarily, illegally or unreasonably. Pleasant Farm Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269 (1991); Torsiello v. Zoning Board of Appeals, 3 Conn.App. 47, 50 (1984). The burden of demonstrating that the board acted improperly, is on the party seeking to overturn the board’s decision. A court should not usurp the functions and prerogatives of a zoning board of appeals, where honest judgment has been reasonably and fairly exercised, after full hearing Whitaker v. Zoning Board of Appeals, 179 Conn. 650, 654 (1980).

A variance, once granted, permits a property owner to act in a manner which is otherwise prohibited by the zoning ordinances Burlington v. Jencik, 168 Conn. 506, 508 (1978). Therefore, the CT Page 18253 granting of a variance is reserved for unusual or exceptional circumstances. Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206-07 (1995); Ward v. Zoning Board of Appeals, 153 Conn. 141, 145 (1965). Proof of exceptional difficulty or unusual hardship is a condition precedent to the granting of a zoning variance. Point O’Woods Assn., Inc. v. Zoning Board of Appeals, 178 Conn. 364, 368 (1979).

In order to grant a variance, the zoning board of appeals must find that two conditions have been satisfied: 1) the variance must be shown not to affect substantially the comprehensive plan, and 2) adherence to the strict letter of the zoning regulations must be shown to cause unusual hardship, unnecessary to the carrying out of the purposes of the zoning plan. Francini v. Zoning Board of Appeals, 228 Conn. 785, 790 (1994); Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368 (1988). The comprehensive plan consists of the zoning regulations, and the zoning map Burnham v. Planning and Zoning Commission, 189 Conn. 261, 267 (1983).

The credibility of witnesses, and the determination of issues of fact, are matters committed solely to the province of the administrative agency. Property Group, Inc. v. Planning and Zoning Commission, 226 Conn. 684, 693 (1993). The question is not whether the trial court would have reached the same conclusion, but whether the record before the agency supports the decision reached Calandro v. Zoning Commission, 176 Conn. 439, 440 (1979).

The decision of the agency must be supported by substantial evidence. Substantial evidence is enough evidence to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn is one of fact. Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588 (1993). The possibility of drawing two inconsistent conclusions from the evidence, does not prevent a decision from being supported by substantial evidence Property Group, Inc. v. Planning Zoning Commission supra, 697-98.

Where, as here, the zoning board of appeals has stated reasons for its actions, as required by statute, [3] a court should not go beyond the official collective statement, and attempt to search out and speculate on other reasons which might have influenced some or all of the members of the agency, to reach the final collective decision. Gibbons v. Historic District Commission, 285 Conn. 755, 770-71 (2008); Kaufman v. Zoning Commission, CT Page 18254 232 Conn. 122, 142 (1994); Bloom v. Zoning Board of Appeals supra, 208; DeMaria v. Planning Zoning Commission, 159 Conn. 534, 541 (1970).

DECISION TO DENY SETBACK VARIANCE FINDS SUPPORT IN THE RECORD
The Plaintiff, 60-64 Huntington Street, LLC, sought a front setback variance from the required 40 feet, to 10 feet, thus seeking an incursion into three-quarters of the mandated setback in a CA-2 zone. The variance sought was for the portion of the parcel which abuts Huntington PAGE 8] Street, and was requested in order to build a two-story office building, consisting of 4,776 square feet.

Business and professional offices are permitted in a CA-2 zone, as designated in the zoning regulations. Concerning the proposed use of the property, the designation of a particular use of property as a permitted use establishes a conclusive presumption that such use does not adversely affect the district, and precludes further inquiry into its effect on traffic, municipal services, property values, or the general harmony with the district Pansy Road, LLC v. Town Plan Zoning Commission, 283 Conn. 369, 376 (2007). Therefore, the use of the property as a commercial office building location is consistent with the comprehensive plan.

However, the issue of hardship, and the determination as to whether the extent of the variance requested was necessary given all of the circumstances, were both properly considered by the Shelton Zoning Board of Appeals.

Without foreclosing the possibility that a variance of some sort might be granted concerning a different proposal, the Zoning Board of Appeals determined that no hardship had been demonstrated within the purpose and intent of the zoning regulations, and that the proposed structure was too intense for the size of the property (ROR 12, ROR 30). This determination is amply supported by substantial evidence in the record.

Following its construction, the two-story office building would be a mere 10 feet from Huntington Street. With one exception, this new building would be substantially closer to the street than other buildings in the vicinity of Huntington Green. (ROR 28, p. 17.) The record reveals that the new building would contain more square CT Page 18255 footage than the two structures being replaced (ROR 29, p. 40), and that the proposed building’s proximity to Huntington Street, raised concerns involving traffic safety, snow removal, and related issues.

The existing building which has been reduced to a slab, showed 36 feet of frontage on Huntington Street. The proposed office building depicted a 68-foot frontage along Huntington Street, and additional frontage was possible, if the variance was secured, consistent with the zoning regulations.

The Zoning Board of Appeals was justified, based upon the record before it, in concluding that the intrusion into the front setback of 30 feet was excessive (ROR 31), and its determination that a building could be constructed on the parcel, without varying the front setback requirement to the degree requested by the Plaintiff.

In the alternative, the Plaintiff maintains that its proposal is less nonconforming than the existing situation at 60-64 Huntington Street, because three nonconformities are eliminated by the proposal. This claim is not well taken.

The extent of the proposed variance along Huntington Street represents an explanation of the existing nonconformity. Section 41.2 of the Shelton Zoning Regulations would apply, in the event that the Plaintiff sought to enlarge the existing building, which is now a slab. Section 41.2 provides:

Enlargement: No nonconforming use, building or structure shall be enlarged and no nonconforming use of land, buildings or other structures shall be extended to include any land, building or other structure or portion thereof, which is not subject to the nonconformity. Any nonconforming use of a building or other structure, or portion thereof, however, may be extended to include any portion of the building or structure manifestly designed for such use.

Therefore, any attempt to expand an existing building with a 36-foot frontage along Huntington Street, to encompass 68 feet along Huntington Street, would constitute an expansion of the nonconforming setback requirement, under the zoning regulations.

The Plaintiff also maintains that the elimination of the existing CT Page 18256 nonconformities represents a separate justification for the granting of the requested setback variance. This claim, while in accord with the principle that nonconforming uses should be abolished, or reduced to conformity as the fair interest of the parties will permit; Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 383 (1972); has no application on the record presented here.

The cases cited by the Plaintiff in support of his claim Stancuna v. Zoning Board of Appeals, 66 Conn.App. 575 (2001) Adolphson v. Zoning Board of Appeals, 205 Conn. 703 (1988), an Vine v. Zoning Board of Appeals, are distinguishable on the facts.

Stancuna involved the granting of a variance to permit the construction of a commercial building on raw land. Without the requested variances, the applicant would have been able to construct only a building with a width of 10 feet, in a commercial zone. The nonconformity which was eliminated involved use as a single family home, a use which was not permitted in a commercial zone Stancuna v. Zoning Board of Appeals, supra, 572.

Adolphson involved an industrial zone, in which an aluminum casting foundry constituted a nonconforming use in the zone. The trial court found that use of the property as a foundry was not economically feasible, and approved a variance which had been granted for the purpose of conducting an auto repair business. The auto repair business was also a nonconforming use, although the court determined that it was less offensive than the use of the property as a foundry.

A divided Supreme Court (3-2) upheld the granting of the variance, finding that the auto repair shop was not inconsistent with the comprehensive plan, although it was not a permitted use. It further noted that the trial court had found that the failure to grant the requested use variance might cause the subject property to be rendered useless, would be confiscatory, and, therefore, legally impermissible. Adolphson v. Zoning Board of Appeals supra, 714.

Finally, the Supreme Court in Vine was confronted with an approved three-lot subdivision, which predated the granting of a utility easement to the Connecticut Light and Power Company. The municipal zoning regulations required a 150-foot square of land on each building lot in an R-40 zone. The applicant sought a variance CT Page 18257 of the 150-foot square, in order to convert the three approved building lots into two building lots.

The court concluded that the variance should be granted, in that reducing the three approved building lots subject to development to two building lots reduced the density of the development, and would more nearly conform to the requirements of the town’s zoning regulations. Vine v. Zoning Board of Appeals, supra, 570.

Here, we are not faced with changing a nonconforming use of property to a conforming use. Nor is a variance sought to lessen the density of a development which predated the adoption of a zoning requirement.

The Plaintiff, 60-64 Huntington Street, LLC, seeks to eliminate two buildings, and replace them with a larger, nonconforming commercial office building. No use variance is sought.

The proposed building would increase the square footage in the two smaller buildings, and would increase in dramatic fashion, the nonconformity as to frontage setback.

TAKING ISSUE NOT PROPERLY RAISED
The Plaintiff seems to suggest that the failure to grant the requested variance has rendered 60-64 Huntington Street less valuable. Even if true, based on the record compiled during the public hearing, that claim is unavailing.

A party seeking to demonstrate that a taking has occurred may introduce evidence concerning the economic effect of the action, including the fact that the property in question is rendered valueless as a result of the decision. Cioffoletti v. Planning Zoning Commission, 209 Conn. 544. 549 (1989). Mere reduction in value, as a result of agency action, is not sufficient to support a claim of confiscation, or a taking. D’Addario v. Waste Management of Connecticut, Inc., 25 Conn.App. 137, 143 (1991).

CONCLUSION
The appeal of the Plaintiff, 60-64 Huntington Street, LLC, is DISMISSED.

CT Page 18258

[1] One of the buildings has been razed, and is now a slab, most of which is within the setback adjacent to Huntington Street.
[2] Practice Book Sec. 14-7A — “No appeal under General Statutes § 8-8 or 22a-43 shall be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the superior court and such court has approved such proposed withdrawal or settlement. No decision that is appealed under General Statutes § 8-8 or 22a-43 shall be modified by settlement or stipulated judgment unless the terms of the settlement or stipulated judgment have been approved at a public meeting of the municipal agency that issued the decision . . . No notice of the court proceeding other than normal publication of the calendar and notice to the parties is required unless otherwise ordered by the court.”
[3] Section 8-7. C.G.S. — “whenever a zoning board of appeals grants or denies any . . . variance . . . it shall state upon the record the reason for the decision . . .”

CT Page 18259