Posted by: Patricia Salkin | January 15, 2016

CT Supreme Court Holds Peculiar Characteristics of Property that Made It Difficult to Construct a Second Story Complying with Zoning Setback Requirements Did Not Justify Granting a Variance

This case involved whether the defendant Zoning Board of Appeals of the Town of Fairfield properly granted an application for zoning variances to the defendant 1460 Post Road, LLC (applicant), which allowed the vertical expansion of a nonconforming building, when there was no showing that the strict application of the zoning regulations would destroy the property’s value for any of the uses to which it could reasonably be put. The plaintiff, E & F Associates, LLC, appealed to the trial court from the Board’s decision granting the variances claiming that: the Board improperly had concluded that the strict application of the zoning regulations would produce an unusual hardship even though the subject property would have economic value without the variances; and the Board’s decision was illegal and void because a member of the Fairfield Board of Selectmen, who was an ex officio member of the Board, represented the applicant in the proceedings before the Board. The trial court rejected both claims and dismissed the plaintiff’s appeal.

The court first noted that the record revealed no basis for the Board’s decision granting the applicant’s variance application because, with respect to economic hardship, the applicant conceded in its variance application and at the hearing before the Board that it had received numerous offers from a variety of sources to lease the existing building. Here, the owner failed to make a showing that the property could not reasonably be developed for some other use permitted in the zoning district, or that the effect of limiting the parcel to the permitted uses only would be confiscatory or arbitrary. Thus, the fact that the peculiar characteristics of the applicant’s property made it difficult to construct a second story on the building that would comply with setback requirements did not justify the granting of the variance when the evidence established that the property would have economic value if the variance were denied. The court determined that if such variances were granted, “the whole fabric of town- and city-wide zoning would be worn through in spots and raveled at the edges until its purpose in protecting the property values and securing the orderly development of the community would be completely thwarted.”

Accordingly, the judgment was reversed and the case was remanded to the trial court with direction to sustain the plaintiff’s appeal, and to remand the case to the Board with direction to deny the applicant’s application for the variances.

E and F Associates, LLC v Zoning Board of Appeals of the Town of Fairfield, 2015 WL 8730002 (CT 12/22/2015)

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