Schulhof v. Zoning Board of Appeals
Schulhof v. Zoning Board of Appeals
Opinion of the Court
Opinion
Following this court’s granting of their petition for certification to appeal, the plaintiffs Thomas B. Schulhof and Anne K. Schulhof
The following procedural history is relevant to our resolution of the plaintiffs’ appeal. In 2009, the owner filed an application for a zoning variance (2009 application) to replace an existing nonconforming structure with a boathouse on the island. The board denied the 2009 application. In 2010, after modifying its plans, the owner submitted another application again seeking a setback variance (2010 application), which the plaintiffs
The court found the following facts. The plaintiffs are residents of the Wilson Point area of Norwalk, which lies adjacent to Long Island Sound and overlooks the Norwalk Island Chain,
On appeal to the Superior Court, the plaintiffs challenged the board’s granting of the 2010 application permitting the owner to construct the boathouse because
Before addressing the plaintiffs’ claims, we review the well established standard of review applicable to zoning appeals. “[C]ourts are not to substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing . . . .” (Internal quotation marks omitted.) Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 547, 684 A.2d 735 (1996). “The trial court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board’s] findings. . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . Where the board states its reasons on the record we look no further. . . . Where, however, the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board’s decision. . . . More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons. . . . We, in turn, must determine whether the court properly concluded that the board’s decision to grant the variance was arbitrary, illegal or an abuse of discretion.” (Citations omitted; internal quotation
Because the court, in interpreting the regulations, made conclusions of law in its memorandum of decision, our review is plenary. See Raymond v. Zoning Board of Appeals, 76 Conn. App. 222, 229, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003). The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board’s decision in this case, the plaintiffs. See id.
General Statutes § 8-6 (a), which sets forth the powers and duties of a zoning board of appeals, provides in relevant part: “The zoning board of appeals shall . . . (3) . . . 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. . . .” See also Norwalk Zoning Regs., § 118-1410.
I
The plaintiffs claim that the court improperly sustained the board’s granting of the 2010 application for a setback variance on the basis of a hardship that is not unusual, unique or in harmony with Norwalk’s comprehensive zoning plan. We do not agree.
In its memorandum of decision, the court found that the plaintiffs grounded their appeal in § 18-800 D of the Norwalk Zoning Regulations,
The court then directed its attention to whether the board properly granted the 2010 application on the basis of hardship. The court found that § 118-300 C (4) of the Norwalk Zoning Regulations prescribes setbacks of fifty feet from the mean high water mark in the conservation zone. See footnote 8 of this opinion. None of the setbacks for the boathouse proposed in the 2010 application—23.55 feet from the north, 27.78 feet from the south, 25.81 feet from the east and 20.67 feet from the west—conform to the setback requirement. The court concluded that the setback from the mean high water mark was a hardship created in 1974 when the classification of the island changed from B residence zone to
The court concluded that the hardship derived from the 1974 zoning reclassification that adopted a fifty foot mean high water setback and that the size, shape, and topography of the island prevent any structure, other than a dock or boat landing, from being erected on the island. The court also found that granting the 2010 application for a setback variance would not substantially affect the Norwalk comprehensive zoning plan as the boathouse is designed to store three small boats, which is in harmony with the purpose of the conservation zone. See footnote 5 of this opinion.
On appeal here, the plaintiffs claim that the basis of the hardship is not the size of the island, but the personal preference of the owner to remove the existing structure and build a boathouse.
“A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town. . . . The Norwalk zoning regulations strictly limit the extent to which structural nonconformities may be expanded or altered. Norwalk Zoning Regs., § 118-800.” (Citation omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 206, 658 A.2d 559 (1995). “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.) Id., 207. Our Supreme Court has held that § 8-6 authorizes a zoning board of appeals to grant a variance only when (1) the variance will not substantially affect the comprehensive zoning plan and (2) adherence to the strict letter of the zoning ordinances causes unusual hardship unnecessary to carry out the general purposes of the zoning plan. Id.
In this case, the court properly found a hardship existed in that the small size, shape, and topography of the island, and the 1974 setback requirements rendered it impossible to build any permitted structure on the island because the setback lines from the mean high water mark overlap. See, e.g., Stancuna v. Zoning Board of Appeals, supra, 66 Conn. App. 565. The island is a legally nonconforming buildable lot. Section 118-300 C (1) (c) of the Norwalk Zoning Regulations permits
The plaintiffs’ argument that the variance constitutes an enlargement of a nonconforming structure overlooks the fact that the existing structure is to be demolished and the boathouse situated at a higher elevation on the island. In Stancuna v. Zoning Board of Appeals, supra, 66 Conn. App. 573, this court concluded that the board in that case “did not allow for a continuance and expansion of the nonconforming use, rather, it granted [the defendant’s] application for a variance under the [setback] regulations. The defendant is not increasing the size of the existing structure or building a larger one at the same location. Therefore, no expansion of the nonconforming use can occur. The existing house is to be razed and replaced with a new structure at a different location on the property. The variance application was submitted ... as if the lot were vacant.” The same reasoning applies in the present case where the existing nonconforming structure is to be taken down and a
We also agree that the hardship is unique to an island too small to accommodate the setback from the mean high water mark. The court found that the island is one of the smallest of the Norwalk Islands; some of the larger islands range in size from forty to fifty-nine acres and many of them are improved with one-family dwellings served by landings and docks. “Topographic conditions on the property involved in the application may be the basis for granting a variance, as long as other properties in the area do not have the same problem.” R. Fuller, 9 Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 9.3, p. 245. In this instance, the island is disadvantaged by its size when compared to the larger islands. If the setbacks were strictly applied to the island, no structure could be built on it. When strict adherence to zoning regulations effectively prohibit construction of a permitted use, a variance is proper. See Eagan v. Zoning Board of Appeals, supra, 20 Conn. App. 564.
The plaintiffs also claim that the court improperly concluded that the variance is in harmony with the comprehensive zoning plan. Although the plaintiffs concede that boathouses are a use permitted in the conservation zone, they contend that the analysis of whether the variance comports with the comprehensive zoning plan should go beyond “mere” compliance with one of the several permitted uses in the conservation zone. The substance of the plaintiffs’ argument is that the variance constitutes the expansion of a nonconformity, a claim we have rejected.
The Norwalk zoning regulation’s declaration of the necessity and purpose of the conservation zone identified the need to protect “the fragile environment of the Norwalk Islands while permitting their development for
The plaintiffs’ claims also fail to consider that the granting of the setback variance is only one step in the process to securing permission to construct the boathouse on the island. Before it may construct the boathouse, the owner must secure a special permit to
We therefore conclude that the plaintiffs have not carried their burden to demonstrate that the board acted improperly by granting the 2010 application for a setback variance. See Raymond v. Zoning Board of Appeals, supra, 76 Conn. App. 229.
II
The plaintiffs also claim that the court improperly dismissed their appeal by relying on (1) an independent ground not raised by the parties
The judgment is affirmed.
In this opinion the other judges concurred.
The following individuals were plaintiffs in the trial court but are not parties to this appeal: Richard L. Barovick, David R. Caxlucci, Debra H. Carlucci, Michael Jaharis, Linda Hicklin Morgens, John F. Megrue, Uzanne G. Megrue, William H. Miller, Jr., Robert D. Ready, Jane W. Ready, and Jill A. Hanau. In this opinion, we refer to Thomas B. Schulhof and Anne K. Schulhof as the plaintiffs.
More specifically, the plaintiffs claim that the hardship is not unusual, unique, or in harmony with Norwalk’s comprehensive zoning plan.
On appeal to the Superior Court, all of the plaintiffs alleged that the board acted improperly in granting the 2010 application because (1) it lacked jurisdiction to consider the 2010 application, (2) the 2010 application violated the prior application rule; see Grasso v. Zoning Board of Appeals, 69 Conn. App. 230, 244-46, 794 A.2d 1016 (2002) (rule explained); (3) the variance granted violates the nonconformity provisions of the zoning regulations of the city of Norwalk, (4) there was no proof of hardship, and (6) the variance granted is not in harmony with Norwalk’s comprehensive zoning plan. The court concluded that the board properly considered the 2010 application and that the application did not violate the prior application rule. On appeal to this court, the plaintiffs do not challenge the court’s determinations regarding jurisdiction and the prior application rule.
There are twenty-five islands in the Norwalk Island Chain ranging in size from fifty-nine acres to less than one acre.
Section 118-300 A of the Norwalk Zoning Regulations provides: “Declaration of necessity and purpose.
“(1) It is declared that a need has developed for the protection of the fragile environment of the Norwalk Islands while permitting their development for limited residential uses.
The lot requirement in the B residence zone is a minimum of 6250 square feet.
Section 118-800 D of the Norwalk Zoning Regulations provides in relevant part: “(1) A nonconforming structure shall not be enlarged or altered if the result would be an increase in the extent to which the structure does not conform to these regulations. A nonconforming structure may be enlarged or altered, provided that the enlargement or alteration conforms to these regulations. . . .
“(2) A nonconforming structure shall not be moved unless, as a result of the move, the structure is made to conform to these regulations.
“(3) Where a change of use would create new setbacks, any structure which lawfully existed before such change shall be rendered legally nonconforming, provided that the existing structure is effectively screened from adjacent properties, subject to the satisfaction of the Zoning Inspector.”
Section 118-300 C (4) of the Norwalk Zoning Regulations, entitled “Yards,” provides in relevant part: “NOTE: No main structure shall be located closer than fifty . . . feet from the mean high-water line, and all accessory structures, if located within fifty . . . feet of the mean high-water line, shall be constructed in such manner as to permit the free flow of pedestrians and tidal waters along the beach or shores.”
Section 118-1410 A of the Norwalk Zoning Regulations provides in relevant part: “The Board of Appeals may, in specific cases, after public hearing and subject to appropriate conditions and safeguards . . .
“(3) Vary any requirement of these regulations in harmony with their general purpose and intent, so that substantial justice may be done. This authority shall be exercised in a manner to secure the public health, safety and welfare solely in instances where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of these regulations. To grant a variance, the Zoning Board of Appeals shall adopt a resolution which shall stipulate the reasons for granting the variance.”
Section 118-800 of the Norwalk Zoning Regulations provides in relevant part: “A. Purpose and intent. There exists throughout Norwalk lawful lots, structures and uses of land and structures which are nonconforming because they do not comply with these regulations as originally adopted or subsequently amended. The purpose of this regulation is to permit nonconformities to continue, but to strictly limit the extent to which nonconformities may be established, continued, expanded or altered. This regulation is intended to bring nonconforming uses into conformity with the regulations as quickly as the fair interests of the parties will permit. . . .
“D. Nonconforming structures.
“(1) A nonconforming structure shall not be enlarged or altered if the result would be an increase in the extent to which the structure does not conform to these regulations. A nonconforming structure may be enlarged or altered, provided that the enlargement or alteration conforms to these regulations ....
“(3) Where a change of use would create new setbacks, any structure which lawfully existed before such change shall be rendered legally nonconforming, provided that the existing structure is effectively screened from adjacent properties, subject to the satisfaction of the Zoning Inspector.”
The record demonstrates that the existing structure does not comply with building, health, electrical and coastal flooding codes or Federal Emergency Management Agency and Coastal Area Management regulations. Those regulations preclude reconstruction and the location and height of the existing structure. The proposed boathouse will comply with building
In their brief to this court, the plaintiffs rely on Grillo v. Zoning Board of Appeals, 206 Conn. 362, 537 A.2d 1030 (1988), for the proposition that a claim of hardship will be denied where there are alternative uses for the land. Grillo is factually different from this case as the variance requested there was sought in order to sell the middle of two adjoining lots to the neighbor on the opposite side. Id., 363-64. Our Supreme Court determined that the middle lot could be used as a side yard. Id., 370-71.
The plaintiffs also rely on Norwood v. Zoning Board of Appeals, supra, 62 Conn. App. 528, in support of their argument that diminution in property value does not ordinarily constitute hardship. Id., 534. There is no claim of personal hardship due to diminution in property value at issue in this case. The basis of the hardship claimed is the size, shape and topography of the island.
In granting the 2010 application, the board imposed the following conditions: “no heavy equipment will be used on the island, no blasting be permitted during the construction, any tree removal be done only with prior approval of the Planning and Zoning, an approved Conservation Plan be put in place prior to start of construction that’s approved by Coastal Area Management, Planning and Zoning, that the existing construction of the house, the porch and the patio be completely demolished prior to start of construction and that any, arches necessary for the construction be taken away prior to the end of each day of construction.”
Section 118-300 D of the Norwalk Zoning Regulations provides in relevant part: “The construction of an attached or detached one-family dwelling in the Island Conservation Zone shall be permitted by Special Permit in accordance with the provisions of Article 140, § 118-1450. Additions of less than five hundred . . . square feet, modifications to existing structures and accessory uses and structures shall be exempt from a Special Permit.”
See Bloom v. Zoning Board of Appeals, supra, 233 Conn. 203-204, for a discussion of a trial court’s basing its decision on an independent ground.
See Raymond v. Zoning Board of Appeals, supra, 76 Conn. App. 239, for a discussion of the trial court’s use of its personal knowledge that is outside the record to decide a zoning appeal.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.