Week of March 3

Attorneys who practice in the land-use arena know that there is often a divergence between how local Zoning Board of Appeals (“ZBAs”), comprised of lay members, view requests for variances and how long established Connecticut law requires that they be treated.  As a general rule the law is much harsher than most local boards.  Very often a local ZBA will first consider whether anyone is objecting.  Next they may look to see if the proposal is consistent with the neighborhood.  Lastly they may consider  whether the request is “reasonable.”  The law however suggests that variances should be treated much more harshly with a goal of avoiding or eliminating non-conformity.  This clash of ideals flood the courts with appeals over the denial and granting of variances.

With this decision, the Appellate Court seemed to be screaming ….ONE MORE TIME, TO  GET A VARIANCE, THE LAW REQUIRES YOU TO PROVE A LEGAL HARDSHIP!   The applicant in this case owned a small waterfront cottage in a neighborhood developed in the 1920s, before the town’s zoning laws were enacted.  The regulations took into account that this was an older, densely packed neighborhood, but the applicant’s parcel was small by even those standards.  As such it was a pre-existing non-conformity, both as to lot and house size.  The owner wanted to replace the tired old cottage with a shiny new home, and reasoned if they were to put all that effort in to it, they would want something bigger and better than was there now.  The ZBA obviously felt sympathetic with the owner’s plight and granted the owner eight variances, covering setbacks, coverage,  height, size, etc., so that the owner could build a new, larger, taller and less prone to floods, house.  The neighbor was none too happy and  appealed.  The Superior Court found that the owner had failed to  establish any legal hardship as there already was a house there, and   disappointment with the ability to build a bigger house has never been a legitimate basis for a hardship. 

The matter was then appealed to the Appellate Court which rendered this lengthy opinion.  The court started out explaining variances are to be granted sparingly because the whole fabric of a town’s zoning system can be unraveled if they are handed out willy nilly.  (Not a quote.)   Even though several board members explained why they thought the variance was justified, no explanation of the hardship found was stated in the Motion to Approve.  The court said such discussions cannot be deemed the collective wisdom of the zoning agency.  Thus the court concluded that at no time did the Commission as a whole make a finding of what the claimed hardship was. 

The court then search the record to see if there was any evidence of a hardship that would have justified the ZBA’s grant of a variance.  In concluding there was no evidence of a hardship, the court struck down the numerous arguments of the owner to the contrary.  It was if the court were saying  ….Look, we see these same arguments to justify a variance over and over again, so let us try to put them to rest once and for all.  The court went on to hold:

[1]    Being an existing non-conformity does not form the basis for a hardship.  You are already protected with a vested right to keep your existing use.

[2]    Since a house already exists, this is not an application to build on a vacant   non-conforming lot where the hardship argument might have been the inability to use the land for any purpose.  That argument won’t hold water here.

[3]    The desire to build a modern, new, and bigger house are all personal desires,  not a legal hardship peculiar to the land.  So we don’t want to hear arguments that newer is better, as a basis to claim a variance.

[4]   Claiming that the variances requested were “de-minimus” is not the basis for a hardship.  We hear that all the time. 

[5]   The court was also skeptical of the argument that a new building was required to comply with modern “codes”, but rather than throw that argument out entirely, the court decided to kick it down the road for another day when evidence of the actual code issues is put before a   court.

[6]   The court acknowledged that sometimes the position of an easement might form the basis for a hardship if it constricts development, but said no evidence was shown in this case as to how it would negatively impact the building  area.

[7]   The court agreed that a hardship might be based upon a “practical” or  “tantamount” confiscation caused by imposition of the regulations that makes it almost impossible to use the property, but reviewed that law extensively and noted that there is a high burden of proof to assert such a claim.   In any even such an argument could not work here where they can still use the existing house.  They just want a newer house. 

[8]   The court then turned to the statements of some of the commissioners that the owner was entitled to a reasonable use of their property.  Hinting this is an overused phrase when it comes to variances, the court held  that phrase is all about personal preferences of an owner, and not a true   hardship the law requires.  An owner is not entitled to a new modern and  more roomy house just because the old one is small and cramped by today’s  standards.  The existing house was a “reasonable use” which may continue for years.  Responding the owner’s suggestion that the law should be changed   to take into account the “reasonable use request” of an owner, the Appellate Court added that only the Supreme Court can change the standards for a  variance to import a consideration of current preferences of an owner.  The decision then goes on to comment why that would be a foolish change in the law.

[9]   Next the court addressed the claim that the parcel’s small size justified the variance.  The decision held that being a small property alone does not justify a hardship claim, especially here where there are many properties in the neighborhood which were equally undersized.

[10]   The court also rejected the argument that encouraging renovation of smaller   properties should be a consideration for upholding a variance.  With this argument the Court said the owner was confusing the role of the ZBA with the PZC…..and in any event…… this case was about expansion….not repair.

[11]    Finally, the Court held this case does not fit the rule that forgives the need to show a hardship where the new application will lessen the overall non-conformity of the site in accordance with the comprehensive plan.   Here they would be expanding the nonconformity in violation of the stated principals of the comprehensive plan of this town.

The decision of the Superior Court was affirmed.