Posted by: Patricia Salkin | February 19, 2011

CT Appeals Court Holds Error By Architect and/or Contractor Necessitating Height Variance is a Self-Created Hardship

Homeowners were granted a variance allowing the roof on their dwelling to exceed the town’s 35-foot building height restriction by over 2 feet.  Plaintiff neighbors appealed the decision, which the trial court sustained.  Defendant Zoning Board appealed and argued that the court improperly sustained plaintiffs’ appeal because the hardship was not self-created and because the Board had the authority to grant a variance without proof of unusual hardship.

Defendant Board stated multiple reasons for granting the variance but did not include the reason of a mistake by the architect and/or the contractor. The lower court, however, found that even if the board had granted the variance on this ground, “a hardship created by those employed by the owner is a self-created hardship” and therefore cannot support the board’s decision to grant the variance. Defendants disagreed and argued that they had discretionary authority to grant a variance if it determines the violation is de minimis.

The Court disagreed with defendants, particularly with regard to defendants’ interpretation of hardship.  The Court determined that the errors made by the architect and/or contractor that resulted in the roof exceeding the 35-foot height requirement must be attributed to the homeowners because the architect and/or contractor’s actions were on behalf of the ones who would be benefit from the variance. The hardship claimed in this instance, is self-created. As such, defendants were not permitted to grant the zoning ordinance.

Morikawa v. Zoning Bd. of Appeals of Town of Weston, 126 Conn.App., 2011 WL 341683 (Conn.App.2011)

The opinion can be accessed at: http://caselaw.findlaw.com/ct-court-of-appeals/1554812.html


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