Posted by: Patricia Salkin | October 12, 2015

CT Appeals Court Holds That Administrative Record Did Not Substantiate the Board’s Finding of an Unreasonable Hardship for Variance Request

On February 11, 2011, Joseph Sabino, a member of P.T.R., LLC, filed an appeal for zoning variances with the board seeking: to permit lot coverage of 40 percent, where 40 percent already existed and 30 percent was permitted; to permit a first floor grocery net floor area of 4366 square feet, where 2446 square feet already existed and 1500 square feet was permitted; to permit the construction of a conforming building addition to the nonconforming building; and to permit twenty-four outdoor seats where fifteen were permitted. Rosanna Sabino, another member of P.T.R., LLC, filed an application for a special exception for use of the property as a “Neighborhood Convenience Use (grocery) with existing take-out component and seasonal outdoor seating at six tables”. Defendant, the Board of Zoning Appeals of the City of New Haven, granted an appeal for four variances and an application for a special exception, with conditions, as requested by the defendant applicant, P.T.R., LLC. The plaintiffs, 347 Humphrey Street, LLC, Rosemarie Morgan, and Thomas Morgillo, thereafter appealed from that decision to the Superior Court. The trial court sustained the appeal, concluding that the administrative record did not substantiate the board’s finding of an unreasonable hardship, and, therefore, the board had no legal basis for having granted the requested variances.

On appeal, the defendants claimed that the court improperly substituted its judgment for that of the board when it determined that P.T.R., LLC, did not demonstrate the existence of a legally cognizable hardship and that the special exception was supported by the record. At the public hearing before the board, architect Gerald Kagan, who prepared the site plan, stated that the purpose of the variances was to make the store accessible to customers and help employees in the kitchen work more efficiently. Marjorie Shansky, counsel for P.T.R., LLC, told the board that the variances would give Nica’s Market an opportunity to deal with problematic code issues, provide a better operational experience for the owners and for the neighborhood, and eliminate nonconformities on the property. Shansky further argued that the hardship for Nica’s Market was being “penned in” by the preexisting nonconformities and in having an unsafe kitchen. The court found, however, that while the variances might allow P.T.R., LLC, to operate Nica’s Market with more accessibility and more efficiency, such financial considerations do not constitute a cognizable legal hardship that would warrant a variance unless they greatly decrease or destroy the value of the property. The court therefore affirmed, finding that the trial properly sustained the plaintiffs’ administrative appeal.

347 Humphrey Street, LLC v Board of Zoning Appeals of the City of New Haven, 2015 WL 5687733 (CT App. 10/6/2015)

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