2006 Ct. Sup. 20029
No. CV 03 0197756 SConnecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
October 27, 2006
MEMORANDUM OF DECISION
JACK L. GROGINS, JUDGE TRIAL REFEREE.
I STATEMENT OF APPEAL
The plaintiff in this administrative appeal, Delmo Zanette, appeals from a September 24, 2003 decision of the defendant, the Greenwich planning and zoning board of appeals (PZBA), in which the PZBA denied Zanette’s appeal from the cease and desist order of the Greenwich zoning enforcement officer (ZEO) and denied Zanette’s request for special exceptions and a variance.
II BACKGROUND
Zanette alleges that he is the owner of a 2.05-acre lot located on 1353 King Street in Greenwich. (Appeal ¶ 1, ¶ 2.) The parcel is known as Purdy’s Farm. (Return of Record [ROR], Exhibit 2.) Zanette purchased the lot which is located in an RA-4 residential zone, as a farm in 1966.[1] (Appeal, ¶ 2.) The lot consists of several buildings including a cider mill/farm stand, a greenhouse, a chicken coop, sheds, and a barn[2] with employee quarters. (ROR, Exh. 6, p. 97, 99, 101, 103; Exh. 2.) The barn houses a landscaping firm and a masonry contracting firm (ROR, Exh. 6, p. 110-11.) Both the landscaping and masonry firms have fenced areas on the lot to store supplies, equipment and vehicles. (ROR, Exh. 6, p. 110-11.) The barn also includes four apartments rather than a single-employee quarters. (ROR, Exh. 6, p. 125.) The farm sells farm products and also operates a food service business, which sells coffee, sandwiches, and hot food to the public. (ROR, Exh. 6, p. 106, 119-20.)
On February 18, 2003, the ZEO issued a cease and desist order. CT Page 20030 (Appeal, Exit A.) The order stated in pertinent part: “An investigation of the subject premises by this office [the Zoning Enforcement Office] disclosed that the following conditions presently exist: Buildings have been erected without permits or zoning approvals. There are unauthorized commercial uses and illegal dwelling units as well. These conditions violated section(s) 6-11(a),[3] 6-13(a),[4] 6-20(e),[5]
6-93,[6] 6-96(2),[7] and 6-141(b)(1)[8] of the Greenwich zoning regulations.” (Appeal, Exh. A.)
On July 9, 2003, Zanette filed an appeal from the ZEO order to the PZBA claiming that the commercial, agricultural, and nursery uses have existed on the site for years. (ROR, Exh. 1.) He also requested special exceptions to permit the continued operation of the landscaping and masonry contracting firms and the food service business. (ROR, Exh. 1; Exh. 6, p. 93, 96.) In addition, he requested a variance of use for the commercial uses.[9] (ROR, Exh. 10.)
On September 24, 2003, the PZBA held a public hearing and denied Zanette’s appeal. (ROR, Exh. 6, p. 93.) The PZBA denied the appeal on three grounds. (ROR, Exh. 10.) First, it found that the ZEO did not erroneously order Zanette to cease and desist the commercial uses because the uses were not in accord with the uses allowed in an RA-4 residential zone and were not excepted by prior special exceptions. (ROR, Exh. 10.) Second, the PZBA denied the request for special exceptions to allow the commercial uses because: (1) the uses were outside of the special standards stated in §§ 6-19,[10] 6-20,[11] and 6-94(a)(3)[12] of the Greenwich zoning regulations; (2) the uses would be detrimental to the neighborhood and its residents; and (3) the uses would alter the residential character of the neighborhood. (ROR, Exh. 10.) Third, the PZBA denied the requests for any variance of use for the commercial uses, including a multifamily use of the barn, because: (1) Zanette was without the requisite zoning hardship; (2) the uses conflicted with the standards set forth in the Greenwich zoning regulations and plan of development; and (3) the uses were detrimental to the public welfare and the surrounding neighborhood because they failed to meet the standards delineated in § 6-19 of the Greenwich zoning regulations.[13] (ROR, Exh. 10.)
On October 21, 2003, Zanette appealed the denial to the Superior Court. (Marshal’s return.) On appeal, he requests that the court vacate the ZEO cease and desist order and order the CT Page 20031 PZBA to approve the application for a special exception permit and the variance. On July 18, 2006 the appeal was tried to court, and this court found Zanette to be aggrieved. (Docket Item #120.)
III JURISDICTION
General Statutes § 8-8 governs an appeal from a decision of a zoning board of appeals. “Appeals to the courts from administrative [agencies] exist only under statutory authority . . . Appellate jurisdiction is derived from the . . . statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed.” (Internal quotation marks omitted.) Nine State Street, LLC v. Planning Zoning Commission, 270 Conn. 42, 46, 850 A.2d 1032 (2004).
A Aggrievement
“[P]leading and proof of aggrievement are prerequisites to the trial court’s jurisdiction over the subject matter of a plaintiff’s appeal . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved.” (Citation omitted; internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 664-65, 899 A.2d 26 (2006). “Aggrievement presents a question of fact for the trial court.” (Internal quotation marks omitted.) Id., 665.
Here, Zanette alleges aggrievement as the owner of a parcel of land that is the subject of the application. (Appeal, ¶ 1.) Evidence of ownership of property that is the subject matter of an application may constitute aggrievement. Winchester Woods Associates v. Planning Zoning Commission, 219 Conn. 303, 308, 592 A.2d 953 (1991). By order dated July 18, 2006, this court found Zanette to be aggrieved. (Docket Item #120.)
B Timeliness and Service of Process
General Statutes § 8-8(b) provides in pertinent part: “[an] appeal shall be commenced by service of process in accordance with subsections (f) and (g) of this section within fifteen days CT Page 20032 from the date that notice of the decision was published as required by the general statutes.”
General Statutes § 8-8(f)(1) provides in relevant part: “[f]or any appeal taken before October 1, 2004, process shall be served by leaving a true and attested copy of the process with, or at the usual place of abode of, the chairman or clerk of the board, and by leaving a true and attested copy with the clerk of the municipality.”
The return of record contains a copy of the PZBA’s published decision, dated October 6, 2003. (ROR, Exh. 4.) On October 21, 2003, the appeal was commenced by service of process upon the Greenwich town clerk and upon the chairman of the PZBA. (Marshal’s return.) Accordingly, the service of process in this appeal properly comports with the statutory requirements.
IV SCOPE OF REVIEW
“An adverse decision by the board may be appealed to the Superior Court under General Statutes § 8-8(b) The Superior Court’s scope of review is limited to determining only whether the board’s actions were unreasonable, arbitrary or illegal . . . 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.” (Citations omitted; internal quotation marks omitted.) RR Pool Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 469-70, 778 A.2d 61 (2001). “When a zoning agency has stated its reasons for its actions, a court should not reach beyond those stated purposes to search the record for other reasons supporting the commission’s decision . . . Rather, the court should determine only 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.” (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 420, 788 A.2d 1239 (2002). “The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.” (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453, 853 A.2d 511 (2004). CT Page 20033V DISCUSSION
Zanette appeals on the following grounds. The PZBA failed to follow the applicable regulations: (1) “The board failed to grant a variance to allow the continued use of several small farm sheds on the ground they were [an] unauthorized use”; and (2) “The board failed to grant the special exception for the commercial nursery use and storage of landscaping materials, and also failed to grant the special exception requested for food services, on the stated ground that such would be detrimental to the neighborhood and its residents and alter the residential neighborhood’s essential characteristics.” (Appeal, ¶ 7.) Further, the PZBA acted illegally, arbitrarily and in abuse of its discretion in the following ways: (1) “[it] acted without due deliberation”; (2) “[it] failed to make an actual on-site examination or to consider the record when making the determination of the neighborhood’s essential character, and arrived at an erroneous conclusion that it was essentially residential”; (3) “[t]he defendant failed to assign a proper reason for its denial”; (4) “[it] denied an application that met the board’s standards and procedures for evaluating such application”; and (5) “the board had granted a special exception to conduct a commercial nursery business on several [sites] in the King Street area in a more restrictive zone where there were actual residences, in truly residential neighborhoods.” (Appeal, ¶ 8.)
In response, the PZBA counters that it properly upheld the ZEO order because the evidence at the hearing demonstrated that Zanette’s commercial activities, other than the sale of cider and farm products, violated the regulations. Further, the PZBA properly exercised its discretion to deny Zanette’s request for special exceptions, and the evidence in the record supports the denial. In addition, pursuant to the Greenwich zoning regulations § 6-19, the PZBA properly exercised its discretion to deny a variance for the multifamily use of the barn. Finally, the PZBA argues that Zanette does not meet his burden of proof that the multifamily use of the garage is a prior nonconforming use. The record evidence, the PZBA argues, shows otherwise.
A Whether Substantial Evidence Exists in the Record to Demonstrate
CT Page 20034 that the Commercial Uses Are Prior Nonconforming Uses.
The first issue the court will address is whether the multifamily use of the barn, the tree service use, and the food service use are prior nonconforming uses. A review of the record reveals that the PZBA did not make any express findings as to the existence of the nonconforming uses. The record, nonetheless, does contain evidence with respect to this claim. Zanette argues that the evidence in the record indicates that the multifamily use of the barn, the tree service use, and the food service use qualify as prior nonconforming uses. With respect to the barn, Zanette claims that the barn was converted from a large barn to four apartments prior to the 1947 adoption of the Greenwich zoning regulations. (Plaintiff’s brief, p. 2.) As proof, he offers eight pages of letters from individuals with personal knowledge that the barn contained multifamily housing prior to 1947.[14] (ROR, Exh. 2f; Exh. 6, p. 99-100.) He also claims that in the more than fifty-seven years that the apartments have openly existed, no other town officer has ordered their multifamily use to be discontinued. (Plaintiff’s brief, p. 3.) Overall, Zanette argues, this proof is not overcome by the PZBA’s insufficient evidence — testimony of a witness who testified that as a child she passed the farm and did not see any multiple dwellings, a blueprint dated 1956 accompanied by a prior owner’s application to renovate the employee housing, and two applications to the PZBA as proof that the property and the uses had come to the attention of the town authorities. (Plaintiff’s brief, p. 3-4.) With respect to the tree service use and food service use, Zanette claims that both uses predate the 1947 regulations and therefore qualify as prior nonconforming uses. (Plaintiff’s brief, p. 8-10.)
In response, the PZBA argues that Zanette has not sustained his burden of proof as to the multifamily use of the barn. (Defendant’s brief, p. 12.) The PZBA claims that it is apparent, based on the record evidence, that the barn has not been continuously used as a multifamily structure since 1947. (Defendant’s brief, p. 12.) The PZBA does not address Zanette’s claims that the tree service use and food service use are nonconforming uses.
“[T]he rule concerning the continuance of a nonconforming use protects the right of a user to continue the same use of the property as it existed before the date of the adoption of the zoning regulations.” (Internal quotation marks omitted.) Helbig CT Page 20035 v. Zoning Commission, 185 Conn. 294, 306, 440 A.2d 940 (1981). “A nonconformity has been defined as a use or structure [that is] prohibited by the zoning regulations but is permitted because of its existence at the time that the regulations [were] adopted . . . For a use to be considered nonconforming . . . that use must possess two characteristics. First, it must be lawful and second, it must be in existence at the time that the zoning regulation making the use nonconforming was enacted.” (Emphasis in original; internal quotation marks omitted.) Horace v. Zoning Board of Appeals, 85 Conn.Ap. 162, 165 n. 5, 855 A.2d 1044
(2004). “For there to be an existing use, [the] premises must be so utilized as to be known in the neighborhood as employed for a given purpose.” Wallingford v. Roberts, 145 Conn. 682, 684, 146 A.2d 588 (1958).
Although the record contains some letters indicating the existence of a pre-1947 multifamily use; (ROR, Exh. 2f; Exh. 6, p. 99-100); there is substantial evidence in the record that the multifamily use of the barn did not exist prior to 1947. The transcript of the September 24 public hearing, indicates that in 1956 the barn was a single-family structure or designated as such. (ROR Exh. 6, p. 101-02.) At the hearing, Donald Kiefer, chairman of the Greenwich PZBA, and Sandy, Zanette’s agent, engaged in a colloquy regarding whether the barn has been continuously used as multifamily housing from 1947 to the present. Sandy stated: “My understanding, it’s been used right along. They did some renovations of those apartments without permits and that was a violation and that needed to be addressed.” (ROR, Exh. 6, p. 101.) Kiefer responded: “This is 1956. The application particularly pertinent is permit C-7478 for alterations to a barn, employee quarters on April 2, 1956 which lists one dwelling unit.” (ROR, Exh. 6, p. 101.) Sandy confirmed the structure he was referring to was the structure in the permit, and Kiefer stated: “In ’56 it was a single family structure or designated as such.” (ROR, Exh. 6, p. 102.) Sandy replied: “I wasn’t aware of that. It was occupied by more than one family in the 30s and 40s, and I’m not sure when that 1956 situation came about.” (ROR, Exh. 6, p. 102.)
The record includes a copy of the 1956 application for a building permit for alterations to the barn and a copy of the building permit. (ROR, Exh. 2d.) The application, signed by Arthur M. Purdy, builder of the farm, listed the number of family units as “one.” (ROR, Exh. 2d.) The building permit also indicates the family units as the number “1.” (ROR, Exh. 2d.) In CT Page 20036 addition, Exhibit 2a, a decision letter, application and minutes for Zanette’s October 17, 1973 PZBA appeal,[15] indicates that in 1973 the barn was a single-family structure. (ROR, Exh. 2a.) “[T]estimony given during this [the 1973] appeal never indicated any residential use of the existing facilities, including employee housing.” (ROR, Exh. 2.) In addition, there is other public hearing testimony in the record indicating that the multifamily use is not a prior nonconforming use. During the September 24 public hearing, Greenwich resident Madeleine Thompsen testified that as a child she passed the farm and did not see multiple dwellings in the barn. (ROR, Exh. 6, p. 137-38.) Therefore, this court finds that substantial evidence does exist in the record to demonstrate that the multifamily use of the barn is not a prior nonconforming use.
With respect to the tree service use, there is an absence of evidence in the record that the tree service use is a prior nonconforming use. In his memorandum of law, Zanette contends that, beginning in 1941, a portion of the land was rented to Davey Trees, a nursery and landscape servicing company, and when Davey Trees moved, Zanette secured another tenant who engaged in a similar service. (Plaintiff’s brief, p. 6.) While Exhibit 2a, the October 1973 PZBA appeal #5362, and exhibit 2b, the April 1974 PZBA appeal #5435, indicate that Davey Trees was a lessee of the property in 1973 and Eddy B. Jenner was a lessee of the property in 1974, there is no evidence to indicate that Davey Trees had leased the land since 1941. Therefore, the record lacks substantial evidence that the tree service use was a prior nonconforming use.
With respect to the food service use, there is no evidence in the record to indicate that Zanette has sold food besides cider and farm products continuously since 1947. At the public hearing, Zanette stated: “As far as the food service operation, when I purchased that property back in 1965, there was a food service license in existence. There’s a class two license. A class two license, we can sell jam, jellies, preserves, honey, homemade fudges. I wasn’t aware that it couldn’t be manufactured on the premises.” (ROR, Exh. 6, p. 129-30.) As of 2003, however, the signs on the farm advertise the availability of coffee, breakfast, lunch, and ice cream. (ROR, Exh. 5g.) In addition, Sandy stated at the public hearing that the food was prepared off the premises and brought in and the food consisted of “[s]andwiches or hamburgers or they have a barbecue they stoke up. You can order whatever . . .” (ROR, Exh. 6, p. 106.) Sandy CT Page 20037 further claimed that “Mrs. Purdy used to prepare items in the building and serve it, fudge being one of her favorites, as I understand it, fudge being one of her favorite foods to sell from the property.” (ROR, Exh. 6, p. 106.) Therefore, the record does not support a finding that Zanette has sold food besides cider and farm products continuously since 1947.
B Whether Substantial Evidence in the Record Supports the PZBA Decision to Uphold the ZEO Order.
The court now considers whether there is substantial evidence in the record to support the PZBA decision to uphold the ZEO order to cease and desist. The PZBA upheld the cease and desist order on the following ground: “The Board, after due consideration, found there was no error in the order of the Zoning Enforcement Officer as Applicant’s commercial activities of contracting business and/or storage, and general food service business other than the sale of cider and farm products, for which it was cited, were not in accordance with the uses allowed in the subject residential zone nor excepted by prior special exceptions and were therefore properly subject to the Zoning Enforcement Officer’s enforcement action.” (ROR, Exh. 10.)
“[F]ollowing an appeal from the action of a zoning enforcement officer to a zoning board of appeals, a court reviewing the decision of the zoning board of appeals must focus, not on the decision of the zoning enforcement officer, but on the decision of the board and the record before the board.” Caserta v. Zoning Board of Appeals, 226 Conn. 80, 82, 626 A.2d 744 (1993).
Accordingly, the court will focus on whether evidence in the record supports the PZBA’s decision.
A review of the record reveals substantial evidence to support the PZBA’s decision. Exhibit eleven in the record is the Greenwich building zone regulations dated January 2003, amended through January 15, 2003. Section 6-93 of the regulations lists two principal uses for an RA-4 zone: “(1) Detached single family dwellings, one (1) per lot” and “(2) Streets, parks, playgrounds, public school grounds and Town buildings and uses.” (ROR, Exh. 11, p. 9-1.) Section 6-94 of the regulations enumerates other permitted uses by special exception or special permit. (ROR, Exh. 11, p. 9-1.) The permitted use most pertinent to this appeal is § CT Page 20038 6-94(a)(3): “Commercial agricultural uses including commercial nurseries and greenhouses, livestock and poultry raising, dairy farming, and kennels . . .” (ROR, Exh. 11, p. 9-1.) Based on the language of these two sections of the regulations, this court finds that the PZBA properly determined that the multifamily use, the tree service use, and the food service did not qualify as principal, permitted uses in a RA-4 zone.
C Whether Substantial Evidence in the Record Supports the PZBA Denial of the Request for Special Exceptions.
The court next considers Zanette’s appeal of the PZBA’s denial of the request for special exceptions to permit the continued operation of the landscaping and masonry contracting firms and the food service business. As stated in the October 6, 2003 decision letter, the PZBA denied the request for special exceptions on the following ground: “The Board, after due deliberation, denied Applicant’s request for special exceptions to allow the various uses sought, namely, applicant’s commercial activities (masonry contracting business and/or storage, landscape contracting business and/or storage) and general food service business other than cider and farm products, as enumerated above, as being outside of the special standards provided in Sections 6-19, 6-20 and 6-94(a)(3), and specifically found such uses would be detrimental to the neighborhood and its residents, and alter the residential neighborhood’s essential characteristics.” (ROR, Exh. 10.) On review, the court will consider whether there is substantial evidence in the record to support the PZBA’s decision.
Zanette argues that the character of the neighborhood is not residential. In addition, he argues that his commercial uses are not detrimental to the neighborhood and its residents. As proof, he offers sixteen pages of signatures from customers and neighbors who support the request. (ROR, Exh. 5f.) Finally, Zanette contends that the PZBA arbitrarily denied his request for special exceptions. He claims that the PZBA has recently granted special exceptions to neighboring nurseries who conduct larger nurseries and landscaping operations, which have a more detrimental impact on the neighborhood.
The PZBA argues that it properly exercised its discretion in denying the request. It cites § 6-20(c) of the zoning CT Page 20039 regulations, which sets forth the findings it must make in order to grant a special exception. The PZBA emphasizes that based on the record evidence, it could not have made a finding required by § 6-20(c)(6) that the uses were not detrimental to the neighborhood and world not alter the neighborhood’s essential characteristics.
“[The Supreme Court has] observed that [a] special exception allows a property owner to use his property in a manner expressly permitted by the local zoning regulations. Nevertheless, special exceptions, although expressly permitted by local regulations, must satisfy [certain conditions and] standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values [as required by General Statutes § 8-2].” (Emphasis in original; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, supra, 270 Conn. 453.
Section 6-20(c) of the Greenwich zoning regulations enumerates seven findings the PZBA must make in order to grant an application for a special exception. (ROR, Exh. 11, p. 2-23.) Section 6-20(c)(2) provides that the PZBA must find that the use “[w]ill not create a traffic hazard or congestion due to type or amount of vehicles required or hamper the town pattern of highway.” (ROR Exh. 11, p. 2-23.) Section 6-20(c)(6) provides that the PZBA must find that the proposed use of land “[w]ill not be detrimental to the neighborhood or its residents or alter the neighborhood’s essential characteristics.” (ROR, Exh. 11, p. 2-23.)
A review of the record reveals substantial evidence to support a finding that the commercial uses have caused increased traffic congestion in the area. A letter from Greenwich residents, Kenneth and Madeleine Thompsen, stated: “the trucks leaving this property from the landscaping and masonry businesses create serious traffic problems each morning.” (ROR, Exh. 2g; Exh. 6, p. 145.) Kenneth Thompsen testified at the public hearing: “taxpayers and people who live in the R-4 zone . . . don’t want construction vehicles coming in and out of said property every morning at seven o’clock in the morning. We have to stop and wait for the trucks to turn around the corners.” (ROR, Exh. 6, p. 134.) Greenwich residents Edward and Jacqueline O’Hara[16] who reside on 1414 King Street wrote in a letter to the PZBA: “Many vehicles are illegally parked along King Street all day long ruining the rural, residential aspect of the CT Page 20040 area.” (ROR, Exh. 2e; Exh. 6, p. 146.)
A review of the record also reveals that numerous Greenwich residents believe that the commercial uses are detrimental to the neighborhood and alter the neighborhood’s essential characteristics. (ROR, Exh. 2e; Exh. 2g; Exh. 6, p. 133-41.) In their letter to the PZBA, the Thompsens characterized the lot as “unsightly and architecturally not appealing.” (ROR, Ext. 2g.) Greenwich resident Alan Gamer characterized the lot as follows: “It is a mess and it’s getting worse, and I’m sorry to put it that way, but it’s an eyesore for the public. There are people that go by there and don’t understand how the town could permit this.” (ROR, Exh. 6, p. 139.) Joan Caldwell, director of the Northwest Greenwich association, testified in opposition to the tree service use, the masonry business, and the food service use.[17] (ROR, Exh. 6, p. 135.)
She stated the following about the effect of these uses on the neighborhood: “What happens is that you begin to see a breakdown of the environment around the neighborhoods and around the residential areas, and what we’re trying to do is to uphold and strengthen the zoning and residential codes of the town.” (ROR, Exh. 6, p. 136.)
This court finds there exists substantial evidence in the record to support the PZBA’s denial of Zanette’s request for special exceptions to allow the commercial uses.[18]
D Whether Substantial Evidence in the Record Supports the PZBA’S Denial of the Request for Variance of Use.
The final issue the court will address is Zanette’s appeal of the PZBA’s denial of the request for any variance of use for the commercial uses. The October 6, 2003 decision letter stated the following ground for the denial: “[T]he Board, after due deliberation, denied Applicant’s requests for any variance of use for the commercial uses enumerated herein, including a multifamily use of building(s) on the premises, as being without the requisite zoning hardship pursuant to Section 6-19(3), and as being in conflict with the standards set forth in the Greenwich Zoning Regulations, the Plan of Development and detrimental to the public welfare and the surrounding neighborhood in that such uses fail to meet the standards required by Section 6-19 of the CT Page 20041 Greenwich Zoning Regulations.” (ROR, Exh. 10.) On review, the court will consider whether substantial record evidence supports the PZBA’s decision.
“A variance is authority granted to the owner to use his property in a manner forbidden by the zoning regulations.” (Internal quotation marks omitted.) Kaeser v. Zoning Board of Appeals, 218 Conn. 438, 445, 589 A.2d 1229 (1991). “The power of the board to grant a variance should be used only where a situation falls fully within the specified requirements . . . Thus, the power to grant a variance should be sparingly exercised.” (Internal quotation marks omitted.) Reid v. Zoning Board of Appeals, 235 Conn 850, 857, 670 A.2d 1271 (1996).
Section 6-19(3) of the Greenwich zoning regulations authorizes the PZBA to grant a variance when due to the “exceptional shape, size, or topography of the lot or other exceptional situation or condition of the building or land, practical difficulty or unnecessary hardship would result to the owners of the property from strict enforcement of this Article. Before the variance is granted, the Board must make a written finding . . . A) That special circumstances, described in detail, attach to the property which do not generally apply to other property in the neighborhood and constitute the hardship; B) That relief can be granted without detriment to the public welfare or impairment of the integrity of these regulations.” (ROR, Exh. 11, p. 2-22.)
Zanette argues that the farm will not survive without the revenue from the commercial uses. He states in his brief: “The season is short and the farm is very small. This farm for a long time had relied upon income from the other uses . . . to keep it going. Filling this need for additional income [that is] necessary for survival of the farm were four apartments . . . (Plaintiff’s brief, p. 2.)
In opposition, the PZBA disputes that Zanette should be granted a variance with respect to the multifamily use of the barn.[19] According to the PZBA, the “[p]laintiff’s unauthorized conversion of the barn from a one-family residence to a multi-family use of four apartments is unrelated to the shape, size or topography of the land; the only issue is whether such a use presents such an exceptional situation or condition of the building or land as to constitute practical difficulty or unnecessary hardship.” (Defendant’s brief, p. 11.) Regarding hardship, the PZBA argues that Zanette’s hardship arises from his CT Page 20042 own voluntary acts. Zanette “illegally converted the structure from a single family dwelling to that of a multifamily dwelling with four apartments subsequent to the application for a building permit in 1956.” (Defendant’s brief, p. 11.)
The court finds substantial evidence in the record to support the denial of the request for variance of use. Substantial record evidence indicates that the variance for multifamily use does not comply with § 6-19 of the Greenwich zoning regulations. First, Zanette is without the requisite hardship. “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 . . . 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.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 207-08, 658 A.2d 559 (1995). Here, Zanette seems to rely on economic hardship. In any event, as the Connecticut Supreme Court stated in Bloom, this is not sufficient to justify a variance. Second, there is also substantial evidence in the record to indicate that granting a variance of use is detrimental to the public welfare. A review of the record discloses that this most recent zoning action against Zanette arises from a “no heat complaint for four apartments on December 2, 2002.” (ROR, Exh. 6, p. 109.) A review of the record also reveals numerous Greenwich residents who believed that the multifamily use of the barn is detrimental to the neighborhood. (ROR, Exh. 2e; Exh. 2g; Exh. 6, p. 133-41.) During the September 24 public hearing, for example, PZBA chairman Kiefer read a letter from Greenwich residents Edward and Jacqueline O’Hara, stating: “We and all of our neighbors, mainly families on Upper King Street, are greatly opposed to the dwelling units on this property. The dwellings appear to be extremely crowded with laborers employed by the landscaping and construction companies. The entire neighborhood, with several exceptions, are single family residences. There is concern about a large number of transient workers, perhaps undocumented, living in unhealthy, crowded conditions in a residential unit.” (ROR, Exh. 6, p. 146; Exh. 2e.)
VI CONCLUSION
For the foregoing reasons, the court dismisses Zanette’s appeal CT Page 20043 from the PZBA’s denial of Zanette’s appeal from the ZEO’s issuance of a cease and desist and the PZBA’s denial of Zanette’s request for special exceptions and a variance.
Judgment may enter in accordance with this decision.
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