Posted by: Patricia Salkin | December 30, 2015

CT Appeals Court Reverses Granting of Variance Due to Hardship

In 2009, the defendant Zoning Board of Appeals of the city of West Haven, granted six variances sought by the applicant, the defendant Robert F. Fischer, to expand his already nonconforming dwelling. Fischer’s immediate neighbors: the plaintiff Marylou C. Amendola and her husband, Vincent Amendola; and the plaintiffs Howard Warren Benedict and Barbara Spencer Benedict appealed from the board’s decision to the Superior Court. The court heard together and dismissed both appeals, concluding that the administrative record supported the board’s finding of a legally recognized hardship necessary for the granting of a variance. This appeal followed, with the dispositive issue in both cases being whether a legally recognized hardship exists.

On April 15, 2009, the board held a public hearing on Fischer’s application in which Brian Enright, counsel for Fischer, explained that the expansion was necessary for “additional dwelling space,” and “to procure reasonable use of the lot.” Enright further stated that the hardship underlying the requested variances was due to the small size of the lot, its rectangular shape, and the location of the unimproved Old King’s Highway easement. The West Haven Zoning regulations provide that “no enlargement of conversion may be made which would either create a new noncompliance or increase the degree of noncompliance of the building or other structure or any portion thereof. An enlargement is defined as creating additional units, rooms, or a greater degree of lot coverage.” Here, Enright had acknowledged that although Fischer could construct a detached garage without violating the regulations, it was Fischer’s personal preference to construct a nonconforming attached garage on the grounds that the nonconforming option was more reasonable based on esthetics and practicality. Thus, the court found Fischer’s inability to more than double the existing size of his already nonconforming dwelling for spatial and aesthetic reasons is not a hardship. Accordingly, the record did not support the conclusion by the Board that Fischer had established the legal hardship required for the granting of a variance. The court therefore reversed and remanded, holding that the Superior Court improperly dismissed the plaintiffs’ appeals.

Amendola v Zoning Board of Appeals of the City of West Haven, 2015 WL 8134019 (CT App. 12/15/2015)

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