80 LOGAN, LLC v. ZONING BOARD OF APPEALS, CITY OF BRIDGEPORT ET AL.

2007 Ct. Sup. 11767
No. CV05 400 90 68Connecticut Superior Court Judicial District of Fairfield at Bridgeport
June 28, 2007

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
HOWARD T. OWENS, J.T.R.

The plaintiff, 80 Logan, LLC (Logan), appeals from the decision of the defendant, the Bridgeport Zoning Board of Appeals, granting five variances to the defendant, Robert J. Kovacs d/b/a Kovacs Garage. The variances permitted Kovacs to construct an addition to the nonconforming garage on his property.

Kovacs owns the property at 85-91 Davenport St., Bridgeport, where he operates an automotive repair business. (Return of Record [ROR], Item 1; Item 6, p. 1.) On January 28, 2005, he applied to the board for several variances in order to construct a sixteen by thirty-two-foot addition to the existing garage building on the property; specifically, Kovacs requested variances from §§ 3-10-4(a),[1] 7-3-3,[2] 11-7-22[3] and 11-7-23(a)[4] of the Bridgeport zoning regulations, and for an amended certificate of approval for the location of a general repairer’s license in a light industrial zone. (ROR, Item 1; Item 6, pp. 1-2.) The property is located in a light industrial (I-LI) zone and already accomodated a nonconforming use as a repair garage. (ROR, Item 6, p. 1.) A meeting was held on April 12, 2005, at which Kovacs’ petition was heard by the board. (ROR, Item 6.) Counsel for Logan, which is the owner of 80 Logan St., property adjacent to the subject property, argued in opposition. (Exh. 2; ROR, Item 6.) After the hearing, the board conditionally granted the requested variances. (ROR, Notification and Conditions of Approval; Appeal/Answer of the zoning board, ¶ 2.) Notice of the decision was published in the Connecticut Post on May 15, 2005. (ROR, Item 9.)

“[P]leading and proof of aggrievement are prerequisites to a trial court’s jurisdiction over the subject matter of an administrative appeal.” Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393 (2007). Appeal from the decision of a zoning board is governed by General Statutes § 8-8. Subsection (b) provides in relevant part: “[A]ny person aggrieved by any decision of a [zoning] board. . . may take an appeal to the [S]uperior [C]ourt for the judicial district in which the CT Page 11768 municipality is located.” An “aggrieved person” is defined as “a person aggrieved by a decision of a board. . . includ[ing] any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.” General Statutes § 8-8(a).

Logan has pleaded both statutory aggrievement because it owns land abutting Kovacs’; (Appeal, ¶ 3); and classical aggrievement because of the adverse effects of the board’s decision on its property value. (Appeal, ¶ 4.) Logan submitted a warranty deed indicating its ownership interest in property located at 80 Logan St., Bridgeport. (Exh. 2.) Since Logan owns property adjacent to the subject of the variance petition — which the board does not contest — it is statutorily aggrieved pursuant to § 8-8 (a)B.

Section 8-8(b) provides in relevant part that an “appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days from the date that notice of the decision was published as required by the general statutes.” Subsection (f)(2) provides in relevant part that “process shall be served in accordance with subdivision (5) of subsection (b) of [General Statutes §]52-57.” Section 52-57(b)(5) provides that process “against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, [shall be served] upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency. . .’ Subsection (g) of § 8-8 provides in relevant part that “[s]ervice of process shall also be made on each person who petitioned the board in the proceeding.”

Notice of the board’s decision was published in the Connecticut Post on May 15, 2005. (ROR, Item 9.) Logan commenced this action via service of process on both “Ann L. Murray, Asst. City Clerk,” “Richard Bepko, Chairman, Zoning Board of Appeals” and Kovacs on May 26, 2005. (Marshal’s Return.) Therefore, this action was properly commenced in a timely fashion, and this court has jurisdiction to hear Logan’s appeal.

“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 [the 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]. . . If a trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot CT Page 11769 substitute its judgment for that of the board.” Vine v. Zoning Board of Appeals, 281 Conn. 553, 559-60, 916 A.2d 5 (2007).

“[D]ecisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing. . . 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.” (Internal quotation marks omitted.) Santos v. Zoning Board of Appeals, 100 Conn.App. 644, 647, 918 A.2d 303 (2007). “Where a zoning board of appeals does not formally state the reasons for its decision. . . the trial court must search the record for a basis for the board’s decision. . . [and] determine whether the evidence supports the board’s decision to grant the variance.” (Citation omitted.)Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559
(1995). “The standard of review on appeal from a zoning board’s decision to grant or deny a variance is. . . whether. . . the board’s act was not arbitrary, illegal or an abuse of discretion.” Id., 205-06.

Logan appeals on the basis that the record is devoid of evidence that the application of the zoning regulations impose extreme difficulty or unusual hardship on Kovacs. Since, Logan argues, a showing of hardship is an absolute prerequisite to the grant of a variance pursuant to General Statutes § 8-6[5] and § 14-7-4[6] of the Bridgeport zoning regulations, the board exceeded its authority in granting the variances.[7] The board counters that “lack of testimony [as to hardship] does not automatically result in a reversal of the [board’s] decision. The [c]ommission may acquire evidence of hardship by a site visit or its own independent knowledge of the site.” (Defendant’s brief, p. 5.)

“The power to vary the application of zoning regulations should be sparingly exercised.” Dolan v. Zoning Board of Appeals, 156 Conn. 426, 429, 242 A.2d 713 (1968). Our Supreme Court “[has] held that the authority of a zoning board of appeals to grant a variance under General Statutes § 8-6[(a)](3) requires the fulfillment of the two conditions: (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.” (Internal quotation marks omitted.) Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368, 537 A.2d 1030 (1988). The hardship must originate in the regulation or ordinance and arise from the application of the regulation or ordinance to the subject property.” (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 209-10. “The standard of review on appeal from a zoning board’s decision to CT Page 11770 grant or deny a variance is. . . whether. . . the board’s act was not arbitrary, illegal or an abuse of discretion.” Id., 205-06.

“An applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone. (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 207. “Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance. . . A mere economic hardship or a hardship that was self-created, however, 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; emphasis added.) Id., 207-08.

The board in the present case did not give reasons for its decision to grant the variances;[8] consequently, this court must look at the record to determine whether the evidence supports the grant of a variance. The record, however, lacks any evidence whatsoever regarding hardship. At the very most, the record could support a finding that the regulations impose some sort of economic hardship on Kovacs because he could perform more work with an extra garage bay. (ROR, Item 6, p. 3.) Economic hardship, however, is an insufficient ground for a variance Bloom v. Zoning Board of Appeals, supra, 233 Conn. 207-08. In response to Logan’s direct challenge regarding the lack of hardship, Kovacs stated, “Well, I don’t know what to say. I’ve been there for [thirty five] years and uh, I need more room to do our repair work. I’m basically retiring and my two sons are in there. . . are going to be taking over after me, and I’m trying to help them out.” (ROR, Item 6, p. 5.) The petition itself simply states that the hardship consists of “pre-existing conditions presently exists on site.”[9] (ROR, Item 1.)

The board argues that it may have obtained evidence of hardship not reflected in the hearing transcript; i.e., that it is evident from the hearing testimony that the board had independent knowledge of the site and had undertaken a site visit prior to the hearing. This is not supported by Connecticut law, which requires that the decision be supported by “substantial evidence” in the record. Vine v. Zoning Board of Appeals, supra, 281 Conn. 559-60. Based on the lack of any identifiable hardship supported by record evidence, this court concludes that the board’s decision to grant Kovacs’ variance petition was improper. Therefore, the court sustains Logan’s appeal.

[1] Section 3-10-4(a) provides in relevant part: “Expansion and Moving CT Page 11771 of Nonconforming Structures: No Nonconforming Structure may be expanded unless the expanded portion of the structure complies with all general development standards for the zone and the expansion would not create an additional nonconformity. . .”
[2] Table 7-3-3 provides that the “Landscaping in Setbacks Abutting an R Zoned Lot” shall be “10 feet at L4.” “L4” refers to the “high wall” requirement of § 11-4-1(d) of the Bridgeport zoning regulations.
[3] Section 11-7-22 provides: “Perimeter landscaping and screening: Surface parking facilities must conform to the minimum landscaping and screening requirements of Table 11-7-22.”

Table 11-7-22 provides that the “Lot line abutting an R-Zoned Lot” shall be “10 feet [at] L3.” “L3 refers to the “high screen” requirement of § 11-4-1(c) of the Bridgeport zoning regulations.

[4] “Section 11-7-23 provides in relevant part: “11-7-23 Surface parking minimum interior landscaping: All surface parking areas greater than 2,500 square feet or with more than 10 spaces must contain interior landscaping.

a. For parking areas of less than 20,000 square feet, one square foot of interior landscaping must be provided for every 15 square feet of parking or maneuvering surface. . .”

[5] General Statutes § 8-6(a) provides in relevant part: “The zoning board of appeals shall have the following powers and duties:. . . (3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving 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, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed.”
[6] Section 14-7-4 of the Bridgeport zoning regulations provides: “Pursuant to Section 8-6 of the General Statutes, a variance shall be granted only if the following standards are met:

CT Page 11772

(a) the literal enforcement of the provisions of these Regulations would result in exceptional difficulty or unusual hardship;

(b) the exceptional difficulty or unusual hardship claimed results from conditions especially affecting the subject parcel but not affecting other properties in the zone in which it is situated;

(c) the exceptional difficulty or unusual hardship sought to be avoided is not the result of any prior action by the applicant;

(d) the variance asked for is the minimal deviation from the provisions of the Regulations sufficient to remove the exceptional difficulty or unusual hardship to the applicant; and

(e) relief can be granted without detriment to the public welfare or impairment to the integrity of these Regulations.”

[7] Logan further contends that the proposed addition to the existing building essentially increases a nonconforming use, which is prohibited by law. The court need not address this argument, however, since it finds that the evidence does not support a finding of hardship.
[8] The board’s only stated reason is “[t]he Board in making its findings of suitability of location for a General Repairer License as required under [General Statutes § 14-55] determined the site to be acceptable.” (ROR, Item 8.) This appears to refer only to Kovacs’ request to amend his “Certificate of Approval of Location for a General Repairer’s License” and does not address the requests for zoning variances that would permit the construction of the garage. Therefore, this court concludes that the board did not issue a reason for its decision to grant the variances. The court further notes that the statute relied on by both Kovacs and the board in amending the certificate of approval, § 14-55, had been repealed prior to the filing of his petition by No. 03-184, § 10 of the 2003 Public Acts.
[9] In this vein, the board’s brief noted that “it is. . . possible that no variance was needed” because the conditions in conflict with the zoning requirements — that is, “regulations concerning landscaping, set backs and parking”; (Defendant’s Brief, p. 4); existed before the amendments to the zoning regulations that rendered them nonconforming. This argument is unpersuasive; even assuming, for the sake of argument, that a variance was not needed, and even without reaching the plaintiff’s argument with respect to the increase of a nonconforming use, the possibility that a variance was not required would not justify the board’s granting of a variance without a showing of hardship.

CT Page 11773

CT Page 11774