A shed built just six inches from a residential property line was improperly approved after the fact by the Southbury Zoning Board of Appeals, a Waterbury Superior Court judge ruled in a July 11 decision.
Cramer & Anderson Associate Graham Moller represented the plaintiffs, abutting property owners, in the appeal of the 2018 ZBA decision.
“Graham scored a significant victory by persuading the Superior Court that the Southbury ZBA abused its discretion in approving a variance application our client opposed,” said Cramer & Anderson Land Use, Planning & Zoning, and Municipal Law Partner Dan Casagrande.
Attorney Casagrande called the decision by Judge Robert D’Andrea “extremely thorough and well-reasoned.”
The defendants, who lived on an “extremely small” lot with steep terrain and other limitations, began building a shed only inches away from the property line when the zoning regulations establish a minimum setback of 15 feet.
The town’s Zoning Enforcement Officer saw the construction and issued a cease-and-desist order, as documented in the July 11 memorandum of decision. However, construction continued and another cease-and-desist order was issued.
Despite those orders, the shed was completed and, according to record cited in the judge’s decision, the defendants then filed a variance application with the ZBA that “alleged” a series of hardships including that the shed was already complete, and that without the shed the defendants would be “forced to store unsightly items in the open in the yard or driveway for all to see.”
Additionally, the variance application listed as hardships the effect of specific characteristics of the property, such as how “extreme topography” and the location of well and septic system prevented relocation of the existing shed.
The defendants also argued that the shed was “crucial” in order for them “to keep a neat & tidy property … .”
Cramer & Anderson’s clients had submitted a November 29, 2017, letter to the ZBA stating that they were “unhappy” with the location of the shed – and while that letter was read and discussed at a Jan. 2, 2018, public hearing on the variance application, the plaintiffs did not attend the meeting and the defendants “expressed shock” at the sentiments expressed in the letter, claiming they were “inconsistent” with what they had been told by the plaintiffs, according to the court record.
The variance was then approved.
While Judge D’Andrea cited the cease-and-desist orders, as well as the fact that the plaintiffs’ letter was essentially dismissed by the ZBA, neither of those issues actually had a legal bearing on whether the variance was properly approved.
Based on the body of case law cited by Judge D’Andrea, a municipal land-use regulatory body should analyze a claimed hardship based on two tests – sufficiency and uniqueness.
Regarding uniqueness, Judge D’Andrea cited case law in writing, “In an administrative appeal challenging the decision of the board to grant a variance, a reviewing court must examine the record to ascertain whether it contains substantial evidence that the claimed hardship did not apply to other properties in the area.”
“The Record demonstrates that the [defendants] failed to establish that their claimed hardships were unique to their property in correlation to the surrounding neighborhood,” Judge D’Andrea wrote. “The Record contains evidence that the claimed hardships are common to the surrounding neighborhood.”
In fact, Southbury’s Zoning Enforcement Official warned the ZBA at the January 2018 hearing that it should consider the fact “that several properties in the area have small lots … so as not to set a negative precedent,” according to the memorandum of decision.
On the issue of sufficiency, the decision in favor of Cramer & Anderson’s clients cited case law in explaining that “[A] variance is properly granted only where there is a showing before the zoning board of appeals that the hardship caused by the application of zoning regulations relates to the property for which the variance is sought and not to the personal hardship of the owners thereof … . [A] variance is not a personal exemption from the enforcement of zoning regulations. It is a legal status granted that self-inflicted hardship which arises because of individual actions by the applicant will not provide a zoning board of appeals with sufficient reason to grant a variance …. .”
“In other words, sufficient means it arises from the application of zoning regulations to property, not from a person’s desired use of the property,” Attorney Moller said. “The claim made in seeking the variance was that the shed was needed for additional storage space. This is not a sufficient hardship because it arises from the owner’s personal preferred use of the property. It was also claimed that a hardship existed because the shed had already been built at the time they applied for a variance, which is a textbook example of a self-inflicted hardship. Had the proper steps been taken, and a variance applied for and granted before construction, the hardship would have never existed. The central point I made to the judge is claiming a shed is needed for more storage is subjective; it stems from the current owner’s desired amount of storage and is a personal hardship and therefore not sufficient in this context.”
Judge D’Andrea agreed with Attorney Moller’s argument, writing “ … it is apparent that the hardships claimed by the [defendants] are personal in nature. The claimed hardship that would purportedly arise as a result of the shed already being complete is a classic example of a self-inflicted hardship. The [defendants] built the shed in violation of the required setbacks and maximum building coverage percentage, and further elected to complete construction of the shed despite two cease-and-desist orders from the Town. Under Garibaldi, such a self-inflicted hardship is not sufficient. Second, the claimed hardships are subjective and relate to the [defendants’] preferred use of the property to store outdoor equipment. They are not from the application of the Regulations to the … property.”
In conclusion, Judge D’Andrea said, “The ZBA’s decision to grant the application was unreasonable, improper, illegal and arbitrary, and constitutes an abuse of the discretion, responsibilities and duties vested in the ZBA.”
About Cramer & Anderson
Cramer & Anderson represents both municipal agencies and individual plaintiffs in land use and zoning matters. See our Planning and Zoning Land Use, Land Use & Environmental Law, and Municipal Law pages for details and to connect with our highly experienced attorneys.
The firm provides sophisticated legal services, close to home, with regional offices in New Milford, Washington Depot, Kent, Litchfield, Danbury, and Ridgefield. For more information, see the firm’s website or call the flagship office in New Milford at (860) 355-2631.