Haines v. Zoning Board of Appeals

599 A.2d 399, 26 Conn. App. 187, 1991 Conn. App. LEXIS 416
CourtConnecticut Appellate Court
DecidedDecember 3, 1991
Docket9596
StatusPublished
Cited by28 cases

This text of 599 A.2d 399 (Haines v. Zoning Board of Appeals) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Haines v. Zoning Board of Appeals, 599 A.2d 399, 26 Conn. App. 187, 1991 Conn. App. LEXIS 416 (Colo. Ct. App. 1991).

Opinion

Norcott, J.

The defendant zoning board of appeals of the town of Oxford appeals from the judgment of the trial court sustaining the plaintiffs’ appeal from the board’s denial of their variance application. On appeal, the defendant argues that the trial court (1) improperly based its decision on the defendant’s prior approval of a separate variance application filed by a different applicant pertaining to another parcel of land on the same road, (2) failed to review the entire record in order to find a basis for the board’s action, (3) ignored the issue of self-inflicted hardship, and (4) improperly placed upon the defendant the burden of proof.

The facts pertinent to this appeal are as follows. The property involved is a 3.36 acre lot (no. 81) located on Hemlock Trail, an unapproved private dirt road less than fifty feet wide in the town of Oxford. The plaintiffs had planned to build a residence on their lot and to use Hemlock Trail as the access road. The trial court noted in its memorandum of decision that “Hemlock Trail is a private right-of-way running northerly from Little Punkup Road, a public highway. Lot 81 is about 2000 feet north of the point where Hemlock Trail and Little Punkup Road meet. Hemlock Trail varies in width from 12 to 45 feet.” There are seven existing residences on the road, which is located in a one-half acre residential zone.

Article 6, section 4, of the Oxford zoning regulations1 requires that a private right-of-way be fifty feet or more [189]*189in width if the right-of-way is used as the only means of access to more than one lot. Hemlock Trail did not meet the requirement of the regulations that a private right-of-way be fifty feet wide where there are two lots. Thus, access became the plaintiffs’ basic problem. Accordingly, they filed an application for variance, seeking relief from the frontage and access requirements of the regulations.

The plaintiffs principally argued before the board that (1) seven residential lots already use Hemlock Trail for exclusive access, (2) they, with the support of some of these residents, were willing to pay for the improvement and maintenance of the road, and (3) in 1984 the defendant had granted the same variance as presently requested by the plaintiffs to Thomas Markovich after Markovich had been initially denied a certificate of approval to rebuild a residence on Hemlock Trail that had burned down nine years before he applied for a variance. 2

On May 8,1989, the board failed to obtain a quorum and the matter of the plaintiffs’ application was continued for a special meeting to be conducted May 15, 1989. At that meeting, five members were present, but only four acted on the application. A fifth member, John Passander, was present but abstained from participating in the matter. After a public hearing, the board initially voted to approve the application by a three to one vote, and then unanimously voted to deny the application without prejudice since the four affirmative votes, necessary for variance approval pursuant to General Statutes § 8-7 were lacking.3 The vote to deny the appli[190]*190cation without prejudice allowed the plaintiffs the opportunity to resubmit their application when five members could act on it without any abstentions. The plaintiffs appealed the denial of their variance to the trial court, which sustained the appeal. Thereafter, this appeal ensued.

In the present appeal, the defendant principally argues that the trial court improperly used the Markovich variance as the basis for its action sustaining the plaintiffs’ appeal, and that the court ignored the matter of the plaintiffs’ self-created hardship. We agree.

The ultimate issue in this appeal, of course, is whether the trial court correctly concluded that the defendant board’s denial of the variance was arbitrary, illegal and an abuse of its discretion. D&J Quarry Products, Inc. v. Planning & Zoning Commission, 217 Conn. 447, 453, 585 A.2d 1227 (1991); Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988); Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980). Courts must not substitute their judgment for that of the board. Whittaker v. Zoning Commission, supra; Koproski v. Zoning Board of Appeals, 162 Conn. 635, 636, 295 A.2d 564 (1972); Fernandes v. Zoning Board of Appeals, 24 Conn. App. 49, 53, 585 A.2d 703 (1991); Horn v. Zoning Board of Appeals, 18 Conn. App. 674, 676-77, 559 A.2d 1174 (1989); Molic v. Zoning Board of Appeals, 18 Conn. App. 159, 164, 556 A.2d 1049 (1989).

A zoning board of appeals derives its authority to grant variances from General Statutes § 8-6 (3), which [191]*191provides in pertinent part that the board may grant variances “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.” It is axiomatic that a variance is granted with respect to a particular piece of property; see Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972); and that the hardship peculiar to a particular piece of property must arise “from a condition different in kind from that generally affecting properties in the same zoning district and must be imposed by conditions outside the property owner’s control.” (Citations omitted.) Stillman v. Zoning Board of Appeals, 25 Conn. App. 631, 636, 596 A.2d 1 (1991); see also 3 R. Anderson, American Law of Zoning (3d Ed. 1986) § 20.26 (“[t]he fact that one or more variances have been granted to landowners near the site of a proposed variant use does not constitute proof of undue hardship”). Each case must be decided on its own merits, and it follows that “[a] variance may not be justified on the ground that other variances had previously been issued in the immediate area.” 3 E. Yokley, Zoning Law and Practice (4th Ed. 1979) § 21-11; see 3 R. Anderson, American Law of Zoning (3d Ed. 1986) § 20.26 (“[t]he granting of a variance to one landowner does not require the granting of a similar variance to a second owner in the same neighborhood”); see also Dlugos v. Zoning Board of Appeals, 36 Conn. Sup. 217, 222, 416 A.2d 180 (1980).

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Bluebook (online)
599 A.2d 399, 26 Conn. App. 187, 1991 Conn. App. LEXIS 416, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haines-v-zoning-board-of-appeals-connappct-1991.