Francini v. Zoning Board of Appeals

639 A.2d 519, 228 Conn. 785, 1994 Conn. LEXIS 76
Supreme Court of Connecticut·Decided March 29, 1994·No. 14685·Published·Cited by 134 cases

Opinion

Palmer, J.

This is a landowner’s appeal challenging the validity of the denial of his application for a variance. The plaintiff, William R. Francini, applied to the defendant, the zoning board of appeals of the town of Old Lyme, for a variance from the zoning regulations governing minimum lot area. After a hearing, the board [787] denied the plaintiff’s application, and he appealed the board’s decision to the Superior Court pursuant to General Statutes § 8-8 (b).1 The trial court dismissed the plaintiff’s appeal, thus upholding the board’s denial of the variance. Upon the granting of certification by the Appellate Court, we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the trial court’s judgment.

The plaintiff is the owner of an 8000 square foot vacant lot at 28 Prospect Street, Old Lyme. The lot is located in an R-10 residential zone, where building lots must be a minimum of 10,000 square feet. On April 9,1991, the plaintiff submitted an application to the board seeking a variance from the zoning regulations in order to construct a year round single family dwelling on his lot. Following a hearing on May 21, 1991, the board denied the plaintiff’s application on the grounds that: (1) there are other uses for the property; (2) the claimed hardship is not unique; (3) the plaintiff created the hardship; (4) the plaintiff did not demonstrate a sufficient hardship; and (5) the requested variance would not be within the plan of zoning.

On appeal to the trial court, the plaintiff claimed, inter alia, that: (1) a variance is not required because his plan to build a year round dwelling on the property constitutes a valid nonconforming use; (2) the board improperly determined that the hardship was not unusual or unique; and (3) the denial of the variance amounted to a taking of his property without just com[788] pensation in violation of article first, § 11, of the Connecticut constitution.2 The trial court concluded that the plaintiff’s plan to construct a year round dwelling on the property did not constitute a nonconforming use, and upheld the board’s denial of the variance on the ground that the record of the proceedings before the board supported its conclusion that the hardship was not unusual or unique.3 The trial court also concluded that the denial of the application did not constitute a taking under article first, § 11, of the state constitution because the plaintiff had purchased the property at a “minimal price”4 with the knowledge that the town’s zoning regulations prohibited construction of a year round dwelling on the property.

On appeal to this court, the plaintiff claims that the trial court improperly concluded that: (1) the plaintiff’s plan to build a year round dwelling on the property does not constitute a nonconforming use; (2) the plaintiff’s hardship is not unusual or unique; and (3) the board’s denial of the variance did not result in an unconstitutional taking. We disagree.

I

The plaintiff first claims that his plan to construct a year round dwelling on the property constitutes a non[789] conforming use, for which a variance is not required, because such a dwelling could have been constructed on the property prior to the enactment of the zoning regulations.5 This claim is without merit.

“A non-conforming use is merely an ‘existing use’ the continuance of which is authorized by the zoning regulations.” Melody v. Zoning Board of Appeals, 158 Conn. 516, 519, 264 A.2d 572 (1969); Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 272, 588 A.2d 1372 (1991). Such a use is permitted because its existence predates the adoption of the zoning regulations. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 710, 535 A.2d 799 (1988). It is well established that “[t]o be a nonconforming use the use must be actual. It is not enough that it be a contemplated use [or] that the property was bought for the particular use. The property must be so utilized as to be irrevocably committed to that use.” (Internal quotation marks omitted.) Lebanon v. Woods, 153 Conn. 182, 197, 215 A.2d 112 (1965); see also Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 713, 519 A.2d 49 (1986); Corsino v. Grover, 148 Conn. 299, 308, 170 A.2d 267 (1961). The plaintiff bears the burden of proving the existence of a nonconforming use. Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, supra, 218 Conn. 272.

It is conceded that the property has been maintained not as a year round dwelling, but, rather, as a vacant lot. Neither the fact that a year round dwelling might lawfully have been built on the property prior to the enactment of the town’s zoning regulations, nor the fact that the plaintiff may have purchased the lot with the intent to construct a year round home, makes the use of the property nonconforming. Because the use of the property as a year round dwelling was contem[790] plated rather than actual, the trial court properly concluded that the plaintiff failed to demonstrate the existence of a nonconforming use.

II

The plaintiff next contends that the trial court improperly upheld the board’s determination that the hardship resulting from the application of the zoning regulations to his property was not unusual or unique. We disagree.

The authority of a zoning board of appeals to grant a variance under General Statutes § 8-6 (3)6 “requires the fulfillment of 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.’ Smith v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542 (1978).” Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368, 537 A.2d 1030 (1988). “It is well settled that the hardship must be different in kind from that generally affecting properties in the same zoning district . . . .” Smith v. Zoning Board of Appeals, supra, 327; Grillo v. Zoning Board of Appeals, supra, 373.

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Francini v. Zoning Board of Appeals, 639 A.2d 519, 228 Conn. 785, 1994 Conn. LEXIS 76 (Colo. 1994).

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