Date: 10-05-2015

Case Style: Carriage House I-Enfield Assn., Inc. v. Johnston

Case Number: AC36997

Judge: Honorable Thomas A. Bishop

Court: Connecticut Appellate Court

Plaintiff's Attorney: Roderick R. Williams, Marjorie Shansky

Defendant's Attorney: Kenneth A. Votre, Richard Fennelly

Description: In 2011, the named defendant, the Board of Zoning Appeals of the City of New Haven (board), granted an appeal forfour variances and an application for a special exception, with conditions, as requested by the defendant applicant, P.T.R., LLC.1 The plaintiffs, 347 Humphrey Street, LLC, Rosemarie Morgan, and Thomas Morgillo,2 thereafter appealed from that decisiontotheSuperiorCourt.Thetrialcourtsustainedthe appeal,3 concluding, inter alia, 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 claim 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. We affirm the judgment of the trial court. The following facts and procedural history are relevant to our resolution of this appeal. P.T.R., LLC, is the ownerofrealpropertylocatedat601-603OrangeStreet in New Haven (property). The property has been used for the operation of a grocery market since at least 1963. P.T.R., LLC, currently operates a grocery and deli known as Nica’s Market on the property, which is situated on the east side of Orange Street in the middle of the block between Humphrey and Bishop Streets. OrangeStreet, fromseveralblocks southof Nica’sMarket to several blocks north of the market, is located in a RM-2, high middle density, residential zone. On February 11, 2011, Joseph Sabino, a member of P.T.R., LLC, filed an appeal for zoning variances with the board seeking: (1) to permit lot coverage of 40 percent, where 40 percent already existed and 30 percent is permitted; (2) to permit a first floor grocery net floor area of 4366 square feet, where 2446 square feet already existed and 1500 square feet is permitted; (3) to permit the construction of a conforming building addition to the nonconforming building; and (4) to permittwenty-fouroutdoorseats wherefifteenarepermitted. Also, on February 11, 2011, 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 existingtake-outcomponentandseasonaloutdoorseating at six tables (24 seats)–continuation of long-standing use with conforming alterations to existing nonconforming structure; served by existing parking lot with 18 spaces.’’ The board held a public hearing on both pending mattersonMarch15,2011.Attheoutset,MarjorieShansky, counsel for P.T.R., LLC, provided an overview of its request, stating that ‘‘by putting a conforming addi
tion onto [the building] we are seeking to deal with some very problematic code issues in the rear service area of the building and to provide a better operational experience both for the owners and for the neighborhood.’’ Accompanying this presentation was a site plan prepared by architect Gerald Kagan (plan) that detailed the proposed expansion and changes to the existing structure,4 and the proposal for shifting the parking lot and increasing the lot size.5 Kagan provided a review of the plan, which contained both ‘‘existing’’ and ‘‘proposed’’ depictions of the property. He commented on the requested changes for both the building and the lot surrounding the building. He explained that the proposal (1) added twenty feet to the driveway and moved it over about twenty feet so that it would be in the middle of the parking lot; (2) created a new loading zone with a trash compactor in the rear; (3) provided two handicapped parking spaces and a new bicycle parking location; (4) increased the first floor area to provide accessibility for people waiting in line to get to the deli; (5) increased the size of the kitchen by approximately twenty square feet; and (6) provided more space on the second floor for, inter alia, a break room for employees, two desks, a bathroom, and two offices. With regard to the driveway, Kagan explained that, by adding twenty feet and moving the driveway over about twenty feet, trailer trucks would now be able to comeintotheparkinglotmoreeasilyandwouldbeable to back into the loading zone. Kagan further clarified: ‘‘There is a truck loading zone for box trucks. They get off the street and [its] a straight shot into the parking lot. And there is a [sufficient] turning radius for those trucksintherearofthepropertytoprovide[for]loading and unloading. We have also provided on the side right here a space for the merchandise to go down into the cellar. What we are proposing to do is to build a whole new structure across the back of the building so that we’re going to remove some of the physical impediments which are on the inside of the structure.’’ Kagan stated: ‘‘[T]he truck loading is a really, really critical partofthisapplicationandbybeingabletohaveaccessibility in the rear for these trucks to unload takes a burden off the street.’’ With regard to the first floor of the building, Kagan explained that the proposed alterations would provide an access line for people waiting in line to get to the deli and that the purpose of the plan was to ‘‘make the frontofthestore,theexistingstore,totallyaccessible.’’ Next,hedescribedtheproposedchangestothekitchen. Specifically, Kagan told the board that the plan called for a complete removal of the existing kitchen on the propertyandthatthenewkitchenwouldbemoreaccessible and have ‘‘the ability for people to work in an
efficient manner.’’ Finally, Kagan described the layout for the second floor and explained that the plan would provide ‘‘a break room for the employees, space for two desks, a bathroom and [two] office[s] . . . .’’ Shansky then spoke again on behalf of P.T.R., LLC. Shansky stressed that the granting of the variances would bring the property more into compliance with thezoningregulationsandwouldthereforeachieveone of the goals of zoning administration, namely, reducing andeliminatingnonconformities.Shefurtherexplained to the board: ‘‘These operational alterations that will be beneficial to the neighborhood indeed by their ability, and certainly the accessibility is a factor, but by being able to have access to the market and to its deli function unencumbered. It’s going to provide a better flow for trucks to ease or ameliorate that traffic concern. And certainly, from a code perspective, from a building code perspective, it will eliminate this very hazardous four level operational place in the back and provide an accessible place potentially for employees as well.’’ Later during the presentation, board chairperson Cathy Weber asked whether the plan would provide increased employment opportunities for the deli. In response, Kagan stated: ‘‘The goal of [P.T.R., LLC] is nottomakethebusinessanybigger.It’stomakeitsafer. It’s to allow accessibility to handicapped individuals to get through the store. It’s the ability to service the back where they don’t go up and down stairs and employees [will not] be in danger. It’s to make their lives easier, not more difficult.’’ After Shansky and Kagan concluded their presentation, Weber asked if anyone from the public wished to be heard. Charles Famularo and Barry Nellis, who frequent Nica’s Market regularly, spoke in favor of the application. Furthermore, Harold Roth, Bill Donahue, Lloyd Parchman, and Donald Harvey, who live in the neighborhood where the property is located, spoke in favor of the application. Harvey specifically explained to the board that the plan ‘‘addresses the needs of the neighborhood with regard to traffic concerns and garbage [as] well as Nica’s need to streamline operations while maintaining the neighborhood, the character of the neighborhood.’’ Attorney Gregory Gallo then spoke on behalf of 347 Humphrey Street, LLC, an abutting property owner. Galloargued:‘‘Avarianceunderthecodewouldrequire either a difficulty or an unreasonable hardship and a strictenforcementofthecode.Herewedon’thavethat. . . . [T]he applicant doesn’t claim that there is a hardship. Looking at section 7 of the appeal to the zoning board there is no mention of a hardship.’’6 He later explained that, ‘‘Ultimately, according to the zoning [regulations], the application doesn’t meet the requirements of the [regulations] and it is an impermissible
enlargementofanonconformingstructureinwhichthe applicant is seeking, without any hardship, to justify it, or any reason in which to circumvent these rules.’’ In rebuttal, Shansky stated: ‘‘With respect to section 7 [of the appeal to the board] the question is describe the unreasonable difficulty or hardship. I don’t think there is any grammatical or syntactical requirement that I recite the word hardship in that paragraph. So I will continue to stand on what I had written in the application as being responsive to that question.’’ She further explained: ‘‘It will be larger. But that does not, under azoning law,makeit anexpansionor animpermissible expansion of the use. [That] is simply the distinction I wouldmake.Andtherealdifferenceisthatwe’readding a safe one level kitchen so that we are removing the obstacles, both for employment and accessibility, and simply the safety issues, and bringing it up to code.’’ Weber thereafter closed the public hearing. Following the hearing, in accordance with Section 63 (d) (6) of the New Haven Zoning Ordinance,7 the board referred the application for a special exception andallexhibitstotheNewHavenCityPlanCommission (commission).Thecommissionthensubmittedanadvisory report to theboard recommending approval of the application for a special exception, with conditions. On April 12, 2011, the board conducted a ‘‘voting session.’’ During this voting session, the board evaluatedthemeritsofP.T.R.,LLC’sapplicationforvariances and a special exception, and discussed the commission’s advisory report. Thereafter, the board voted to approve theapplication forvariances asrequested, and the application for the special exception with several conditions.8 Notice of the board’s decision was published in the New Haven Register on April 21, 2011. On May 18, 2011, the plaintiffs filed an appeal of the board’sdecisionintheSuperiorCourt.OnApril8,2013, the trial court issued a memorandum of decision in which it reversed the board’s approval of the variances andthespecialexception.Withregardtothevariances, the court concluded that the board had acted illegally in approving the variances because there was no evidence in the record to establish proof of difficulty or unreasonable hardship. With regard to the special exception, the court concluded that (1) the board was not entitled to accept, as its own finding, the commission’s conclusion that the application for the special exception was in accord with the public convenience; and (2) the commission did not make the necessary findings pursuant to § 31 (d) of the New Haven Zoning Ordinance, and the board did not make the necessary findingpursuantto§ 63(d)(3)oftheNewHavenZoning Ordinance. Accordingly, the court sustained the plaintiffs’ appeal. The defendants filed the present appeal after this court granted their joint petition for certification.
The defendants claim that the court improperly substituted its judgment for that of the board when it reversed the board’s decision approving the variances and the special exception. Because the board failed to issue any formal, collective statement of the reasons for its approval, the defendants argue that the court was required to consider the record as a whole and that substantial evidence in the record supported the board’s decision to grant the variances and special exception.9 In response, the plaintiffs claim that the court correctly concluded that the record did not contain any evidence showing an exceptional difficulty or unusual hardship that would support the granting of thevariances.Furthermore,theplaintiffsclaimthatthe courtcorrectlyconcludedthattheboardfailedtomake thenecessaryfindingthatthespecialexceptionrequest wasinaccordwiththepublicconvenienceandwelfare. We agree with the plaintiffs that the defendants failed to demonstrate the requisite hardship, and, therefore, we need not reach the issue of whether the trial court correctly concluded that the special exception application should have been denied.10 Attheoutset,wereviewthewellestablishedstandard of review applicable to zoning appeals. ‘‘[C]ourts are not to substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long ashonest judgment has been reasonably and fairly made after a full hearing . . . . The trial court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board’s] findings. . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . Where the board states its reasons on the record we look no further. . . . Where, however, the board has not articulated the reasons for its actions, the court must search theentirerecordtofindabasisfortheboard’sdecision. . . . More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons. . . . We, in turn, must determine whether the court properly concluded that theboard’sdecisiontograntthevariancewasarbitrary, illegal or an abuse of discretion.’’ (Citation omitted; internal quotation marks omitted.) Schulhof v. Zoning Board of Appeals, 144 Conn. App. 446, 451, 74 A.3d 442 (2013). Section63(c)(1)oftheNewHavenZoningOrdinance provides in relevant part: ‘‘Where there is difficulty or unreasonable hardship in the way of carrying out the strictletterofthezoningordinance,theBoardofZoning Appeals shall have power in a specific case to vary the application of any provision of the ordinance, if such variance will be in harmony with the general purpose and intent of the ordinance and if the public health,
safetyandgeneralwelfarewillbeservedandsubstantial justice done.’’ ‘‘To support a variance . . . a hardship must arise from a condition different in kind from that generally affectingpropertiesinthesamezoningdistrictandmust be imposed by conditions outside the property owner’s control. . . . The applicant bears the burden of demonstrating the existence of a hardship. . . . Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance. . . . A mere economic hardship or ahardshipthatwasself-created,however,isinsufficient to justify a variance . . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance.’’ (Citation omitted; internal quotations omitted.) Schulhof v. Zoning Board of Appeals, supra, 144 Conn. App. 453. Moreover, an applicant’s desire to modernize an existing nonconformity does not ‘‘constitute a cognizable legal hardship that would warrant a variance.’’ Horace v. Zoning Board of Appeals, 85 Conn. App. 162, 171, 855 A.2d 1044 (2004). This court held in Horace that improving the appearanceofabuilding,‘‘evenifbeneficial,[doesnot]constitute a cognizable legal hardship . . . .’’ Id. Furthermore, in rejecting a claim of ‘‘unusual hardship from the fact that the internal layout of the [existing nonconforming structure] was poorly designed to meet the needs of modern living,’’ our Supreme Court observed that ‘‘inconvenience . . . does not rise to the level of hardship necessary for the approval of a variance.’’ Moon v. Zoning Board of Appeals, 291 Conn. 16, 26 n.9, 966 A.2d 722 (2009). Fromour carefulreviewof therecord,we agreewith the court that there is nothing in the record to support a finding of a hardship. At the public hearing before the board, Kagan stated that the purpose of the variances was to make the store accessible to customers and help employees in the kitchen work more efficiently. Furthermore, Shansky told the board that the variances would give Nica’s Market an opportunity to deal with problematic code issues, provide a better operationalexperiencefortheownersandfortheneighborhood, and eliminate nonconformities on the property.Onseveraloccasions,shestressedtheimportance of eliminating the hazardous condition that is currently presentintheexistingkitchen.Atoralargumentbefore this court,Shansky furtherargued thatthe hardshipfor Nica’sMarketwasbeing‘‘penned in’’bythepreexisting nonconformities and in having an unsafe kitchen. AlthoughthevariancesmightallowP.T.R.,LLC,tooperate Nica’s Market with more accessibility and more efficiency,itiswellestablishedthatfinancialconsiderations, unless they greatly decrease or destroy the value of the property, do not constitute a cognizable legal hardship that would warrant a variance. See Norwood v. Zoning Board of Appeals, 62 Conn.App. 528, 534–35,
772 A.2d 624 (2001); see also Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988). Thecourtproperlydeterminedthattheboardillegally granted the variances filed on behalf of P.T.R., LLC, because the record did not support the existence of a legally cognizable hardship. Accordingly, we conclude thatthecourtproperlysustainedtheplaintiffs’administrative appeal.

Outcome: The judgment is affirmed.

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