80 FAIR STREET, LLC v. ZONING BOARD OF APPEALS OF THE CITY OF NORWALK.

2011 Ct. Sup. 17415
No. FST CV 09-5012848 SConnecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
August 11, 2011

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Memorandum of Decision
DAVID R. TOBIN, J.

The plaintiff, 80 Fair Street, LLC., filed an administrative appeal, pursuant to General Statutes § 8-8, from the decision of the Zoning Board of Appeals (the “Board”) of the City of Norwalk which rejected by unanimous vote the plaintiff’s application for a variance of Section 118-1294(B) the Zoning Regulations of the City of Norwalk to permit the installation of a wall sign at a greater height than permitted under the regulations. As an owner and the unsuccessful applicant, the plaintiff was found by the court to be aggrieved by the Board decision and to have standing to bring this appeal. Gladysz v. Planning and Zoning Commission, 256 Conn. 249, 258 (2001).

The record establishes the following undisputed facts: The plaintiff is the owner of property located at 80 Fair Street in Norwalk which is located in Business Zone #1 The property is improved with two buildings, one which is used as multifamily residential housing and the other for self storage units. The property is located in close proximity to the Route 7 Expressway which, in the vicinity of the plaintiff’s property, is elevated above the level of the surrounding neighborhood. Section 118-1294(B) the Zoning Regulations of the City of Norwalk requires, in relevant part, that wall signs “shall not exceed a height of twenty (20) feet from the ground to the top of the sign . . . and shall be below the sills of second story windows.”

The plaintiff claims that a wall sign, advertising the location of its self-storage business, placed in compliance with the requirements of the regulations will be too low to be visible from the Route 7 Expressway. The plaintiff claims that this situation constitutes a topographical hardship entitling it to a variance permitting a wall sign to be placed at a height of 50 feet above the ground.

The plaintiff’s application was heard by the Board on September 3, 2009. After the hearing the Board voted on a motion to approve CT Page 17416 plaintiff’s application. The motion was defeated by a unanimous vote. (ROR, Ex. 2.) Following publication of the Board’s decision the plaintiff brought this appeal claiming that the Board acted illegally, arbitrarily and in abuse of its discretion.

DISCUSSION
An appeal from a decision by a zoning board of appeals is statutory in nature and the standard of review by the Superior Court is well established. The Superior Court’s scope of review is limited to determining only whether the board’s actions were unreasonable, arbitrary or illegal. R R Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 470 (2001). “It is well settled that a court in reviewing the actions of an administrative agency, is not permitted to substitute its judgment for that of the agency or to make factual determinations on its own.” (Internal quotation marks omitted.) Id. “Moreover, the plaintiffs bear the burden of establishing that the board acted improperly.” Wood v. Zoning Board of Appeals, 258 Conn. 691, 698 (2001).

In Osborne v. Zoning Board of Appeals, 41 Conn.App. 351, 354
(1996), the court stated: “Ordinarily, the decision of local boards will not be disturbed as long as . . . [the] judgment [of the Board] has been reasonably and fairly made after a full hearing . . . as the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency.”

“In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [a zoning board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board] . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached . . . if a trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot substitute its judgment for that of the board . . . If there is conflicting evidence in support of the zoning [board]’s stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the [board] . . . The [board]’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.” (Citations omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004); Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547-48, 684 A.2d 735
(1996). CT Page 17417

“[A zoning] board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal.” (Internal quotation marked omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791
(1994).

General Statutes § 8-7 requires that “Whenever a zoning board of appeals grants or denies a special exception or variance in the zoning regulations applicable to any property or sustains or reverses wholly or in part any order, requirement or decision appealed from, it shall state upon its records the reason for its decision . . .”

When a zoning agency has issued “a formal, official, collective statement of reasons for [its] action[s],” the scope of judicial review is limited to determining “whether the assigned grounds are reasonably supported by the record and whether they are pertinent to the considerations which the authority was required to apply under the zoning regulations.” Harris v. Zoning Commission, 259 Conn. 402, 420 (2002).

In this case the minutes of the Board state the following: “Mr. Strubinger made a motion to deny without prejudice, because the applicant failed to show a hardship. Mr. Tully seconded. Motion passed unanimously.” (ROR, Ex. #2).[1] Under Harris v. Zoning Commission, supra, this court is required to determine: 1) whether the lack of hardship is pertinent to the considerations the Board was required to apply under the zoning regulations; and 2) whether the finding that there was no hardship was reasonably supported by the record.

The presence or the absence of a hardship is fundamental to the granting or denial of a variance. The question of the existence of a hardship is the threshold issue for any zoning board of appeals considering an application for a variance. Moon v. Zoning Board of Appeals, 291 Conn. 16, 24 (2009). Accordingly, the court finds that the absence of hardship was pertinent to the board’s consideration of the plaintiff’s application and therefore afforded an appropriate reason for denial.

The record reveals that nothing prevented the plaintiff from erecting a sign on its building at the permitted height of twenty feet. The plaintiff’s application to allow a sign to be placed more than fifty feet above the ground was motivated by the plaintiff’s desire to have its wall sign advertising the location of its self storage business to be clearly visible from the Route 7 Expressway.

CT Page 17418 During the course of the hearing the counsel for the plaintiff and members of the defendant board discussed several other height variances which the board had granted for wall signs. At the hearing the plaintiff submitted a copy of a certificate of variance dated July 6, 1999, evidencing the approval of a variance of Section 118-1294(B) of the Zoning Regulations of the City of Norwalk to permit a sign to be erected at a height of 53.2 feet above ground rather than the 20 feet permitted by the regulation. (ROR, Ex. #8.) In the briefs that it submitted in support of its appeal, the plaintiff refers to the alleged inconsistency between the variance that was granted to Bildner Capital Corp in 1999 and the denial of its application for a variance in 2009. The Bildner application involved property located at 33 Fair Street which is adjacent to the plaintiff’s property. The certificate of variance states: “[T]he Applicant successfully demonstrated the hardship in this instance as a business allowed signage for identification purposes if posted on the particular side allowed faces a residential area. However, the side facing Route 7 meets the business identification test. Also, less offensive than if facing the residential side.”[2]

The record does not demonstrate that the plaintiff’s property, like that of Bilder Capital Corp., faced a residential zone. The plaintiff’s application to the defendant board for a variance does not claim that the alternative location for a wall sign would face a residential area. With respect to alternative locations, the plaintiff’s application merely states that “Because of the location of the building on the lot and the speed of traffic on New Canaan Avenue, placing a wall sign on that facade is impractical.” (ROR, Ex. 5.)

Even if the plaintiff’s application were identical to the one submitted by the Bilder Capital Corp. in 1999, the board would not be compelled to find the existence of a hardship sufficient to support the granting of a variance. The principle of law which prevents an administrative agency, acting in an adjudicatory capacity, from reversing a previous decision only applies to decisions involving the very same property involved in the prior application. Laurel Beach Assn. v. Zoning Board of Appeals, 166 Conn. 385, 387 (1974).

In its complaint the plaintiff claimed that as the result of the defendant board’s decision, it was being deprived of “the reasonable use and development of its property.” The plaintiff’s claim is that it cannot adequately identify its location to present and potential customers of its self-storage business unless it is allowed to erect a wall sign at a sufficient height to be easily visible to motorists on the Route 7 expressway.

CT Page 17419 “A mere economic hardship . . . is insufficient to justify a variance . . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance.” (Citations omitted; internal quotation marks omitted.) Dupont v. Zoning Board of Appeals of Manchester, supra, 80 Conn.App. 330. “[U]nless great caution is used and variances are granted only in proper cases, the whole fabric of town-and city-wide zoning will be worn through in spots and raveled at the edges until its purpose in protecting the property values and securing the orderly development of the community is completely thwarted.” (Citations omitted; internal quotation marks omitted.)Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 270-71 (1991).

This is not a case where the plaintiff is being deprived of all practical use of his property. When the plaintiff erected its self-storage facility, it was apparently aware of the provisions of the Norwalk regulations limiting the height of wall signs. In that sense, this is a self-created hardship of the kind referred to in Kulak v. Zoning Board of Appeals, 184 Conn. 479, 481, 440 A.2d 183 (1981) (“the hardship found by the board had been voluntarily assumed by the applicant and could not constitute grounds for the grant of a variance”). “[P]ersonal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance.” (Internal quotations omitted.) Reid v. Zoning Board of Appeals, 235 Conn. 850, 857 (1996).

As was noted in Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 548 (1996), “[d]isappointment in the use of property does not constitute exceptional difficulty or unusual hardship. It is well established that the power to grant a variance should be sparingly exercised.” (Citation omitted; internal quotation marks omitted.) “To establish a hardship under General Statutes § 8-6, an applicant must show not only that he is thwarted in a desired use of land, but also that he is being completely or almost completely deprived of the use of the value of that land.” Id., 546 n. 2.

This same axiom was reiterated by the Appellate Court in Kalimian v. Zoning Board of Appeals, 65 Conn.App. 628, cert. denied, 258 Conn. 936
(2001), when it discussed the doctrine of a “voluntarily assumed hardship.” Id., 632. The court held that the application for a variance in that case should have been denied because “any hardship [the applicant] suffered as a result of being unable to use that property as he had hoped arises not from the application of the ordinance to the property but, instead, from his own conscious decision to purchase the property despite the known prohibition.” Id., 633. CT Page 17420

The court finds that there is sufficient substantial evidence in the record to support the finding by the defendant board that the plaintiff had failed to demonstrate the existence of a hardship. The court concludes that the plaintiff has not sustained his burden of demonstrating that the denial of its application for a variance was arbitrary, illegal or in abuse of the discretion vested in the Board. The plaintiff’s appeal is, accordingly, dismissed.

[1] In its brief the plaintiff claims that the defendant failed to state a reason for its decision on the record and that accordingly, the court is required to search the entire record to determine whether there is substantial evidence to find support for the board’s decision. The court finds that the statement in the resolution adopted by the board constitutes an official collective reason for the board’s action. Consequently the court’s review of the record is limited to whether the board had substantial evidence for its determination that no hardship was demonstrated by the plaintiff. Bloom v. Zoning Board of Appeals of Norwalk, 233 Conn. 198 (1995).
[2] The record also includes two other certificates of variance previously granted by the defendant board. The first, dated September 23, 1996, granted a variance of the twenty-foot wall sign height limitation to permit a wall sign to be erected at a height of 45.5 feet. (ROR, Ex. 19.) The second, dated May 21, 2007, also granted a variance to permit two wall signs to be erected at a height of 45.5 feet. (ROR, Ex. 20.) Neither certificate of variance identified the hardship which justified the granting of the variance.

CT Page 17421