A landowner filed an application for a zoning variance in regard to certain real property he controlled in his capacity as the executor of the estate of his mother. The defendant claimed in his application that the irregular shape of the lot along with the strict application of the regulations deprived him of the right to develop the property in keeping with similar neighborhood development and further made it difficult for him to market the property. The zoning board granted the variance and which time the plaintiffs’, adjacent landowners, alleged that in granting the defendant’s request for a variance, the board acted in a manner that was arbitrary and capricious and that there was insufficient evidence in the record to support the board’s decision.
The trial court noted that a unique hardship, imposed by conditions outside the property owner’s control, is a condition precedent to the issuance of a zoning variance and that because the board’s decision regarding hardship was based entirely on a finding that the regulation at issue reduced the lot size of the subject property, the court determined that there was no finding of unique hardship that would justify the issuance of a variance. Ultimately the trial court concluded that the board failed to articulate a sufficient ground for hardship at which point the defendant landowner appealed.
On appeal, the court examined CT General Statutes § 8-6(a) which provides that zoning boards of appeal have the power “to 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…” The court cited to case law where it has been held that proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance and that disappointment in the use of property does not constitute exceptional difficulty or unusual hardship. Further, personal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance. The court held that the board failed to cite any hardship that differs in kind from the hardship imposed generally on similar properties by the town’s zoning regulations, or any condition that is peculiarly oppressive to the subject property.
Michler v. Planning and Zoning Board of Appeals of the Town of Greenwich, 2010 WL (CT App. 8/3/2010)
The opinion can be accessed at: http://www.jud.state.ct.us/external/supapp/Cases/AROap/AP123/123ap444.pdf
Thanks to Dwight Merriam, Esq. of Robinson & Cole for forwarding this case.
