Town Board Grants Variance for Construction within Set Back

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SandBar 8:1, April, 2009 Town Board Grants Variance for Construction within Set Back Hescock v. Zoning Bd. of Appeals, 962 A.2d 177 (Conn. App. Ct. 2009). *Terra Bowling, J.D.* A Connecticut court upheld the Stonington Zoning Board of Appeal’s approval of a coastal site plan review application and its grant of a variance allowing construction within a regulatory set back of 100 feet from the reach of mean high tide. Despite opposition from adjacent landowners, the court found that the Board’s decision was supported by evidence in the record, that the Board complied with local flood zone regulations in making its decision, and that although an unusual hardship was not established, the reduction of the existing house’s nonconformances was an independent basis on which the Board could grant the variance. Background Coastal landowners, Carol Holt and Thompson Wyper, filed a variance application and a coastal site plan review with the Board that would allow them to construct within a regulatory set back of 100 feet from the reach of mean high tide. The landowners planned to raze their house, which was forty-four feet from the mean high tide, and construct a new house forty-seven feet from the mean high tide. The Board approved both the variance and the site plan review. Adjacent landowners, William and Regina Hescock, brought suit against the Board challenging the approvals. A lower court dismissed the Hescocks’ challenge. Coastal Site Plan Review On appeal, the Hescocks first claimed that approval of the coastal site plan was not supported by substantial evidence. The court noted that its review of the Board’s approval was limited to whether there was substantial evidence in the record to support the Board’s decision, and it would not consider whether it would have reached the same conclusion. The court found substantial support for the approval of the coastal site plan review application. For instance, the application “evaluated land and water resources, stated that there were no adverse impacts on those resources and even proposed mitigating measures, such as the decreased coverage of impervious surfaces and best storm water management practices.”1 At the hearing, an employee of the Department of Environmental Protection had submitted a letter concluding that the application was incomplete for the purposes of determining whether the grant of the variance would be consistent with the Act. Despite this, the court found that other testimony supplied the missing information on the day of the hearing. Furthermore, in the hearings, no one offered evidence of potential adverse impacts from the construction. The court concluded that the Board’s decision was supported by substantial evidence. Zoning Requirements The court next addressed the Hescocks’ contention that the Board did not comply with zoning regulations, which required the Board to consider the effects of the construction in the flood plains, in making its decision. The Board had concluded that the new construction would actually address and improve flood zone issues. In the hearings, the Board acknowledged that “the new construction would be the only house standing when the next hurricane hits the area.”2 The court found that by finding that flood zone issues would be improved by the new construction, the Board had considered the standards set forth in the zoning regulations. The court noted that its role is “to determine whether the board acted arbitrarily, illegally, or in abuse of its discretion and not to indulge in a hypertechnical examination of whether the board complied with all the minute requirements of its regulations.”3 In this instance, the court concluded that the record indicated that the board carefully considered the zoning requirements in making its decision. Interestingly, with regard to the Board’s consideration of one of the zoning requirements, the court noted that “[t]he board’s failure to specifically state, orally or in writing, that it had made these findings does not amount to an exercise of discretion that is arbitrary, illegal, or an abuse of discretion.” The court cited testimony heard by the board as evidence that the board evaluated the zoning requirements under the flood zone regulations. Legal Hardship The Hescocks’ final claim was that the Board upheld the variance without substantial evidence of legal hardship. The existing house had been damaged by a hurricane and was uninhabitable. The new construction would eliminate existing nonconformities and would be farther away from the water than any other house on the street. One of the Board members commented that the development would be on the “cutting edge” of development in the years to come. Although there was no evidence of unusual hardship, the court found that the Board could grant a variance based on the reduction of nonconformance by the replacement of the existing house with new construction. Conclusion The appellate court affirmed the trial court’s judgment. Barring a successful appeal by the Hescocks, the landowners may proceed with their new construction. Endnotes 1. Hescock v. Zoning Bd. of Appeals, 962 A.2d 177, 185 (Conn. App. Ct. 2009). 2. Id. at 186. 3. Id. at 187.
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SandBar 8:1, April, 2009

Hescock v. Zoning Bd. of Appeals, 962 A.2d 177 (Conn. App. Ct. 2009).

Terra Bowling, J.D.

A Connecticut court upheld the Stonington Zoning Board of Appeal’s approval of a coastal site plan review application and its grant of a variance allowing construction within a regulatory set back of 100 feet from the reach of mean high tide. Despite opposition from adjacent landowners, the court found that the Board’s decision was supported by evidence in the record, that the Board complied with local flood zone regulations in making its decision, and that although an unusual hardship was not established, the reduction of the existing house’s nonconformances was an independent basis on which the Board could grant the variance.

Background
Coastal landowners, Carol Holt and Thompson Wyper, filed a variance application and a coastal site plan review with the Board that would allow them to construct within a regulatory set back of 100 feet from the reach of mean high tide. The landowners planned to raze their house, which was forty-four feet from the mean high tide, and construct a new house forty-seven feet from the mean high tide. The Board approved both the variance and the site plan review. Adjacent landowners, William and Regina Hescock, brought suit against the Board challenging the approvals. A lower court dismissed the Hescocks’ challenge.

Coastal Site Plan Review
On appeal, the Hescocks first claimed that approval of the coastal site plan was not supported by substantial evidence. The court noted that its review of the Board’s approval was limited to whether there was substantial evidence in the record to support the Board’s decision, and it would not consider whether it would have reached the same conclusion.
The court found substantial support for the approval of the coastal site plan review application. For instance, the application “evaluated land and water resources, stated that there were no adverse impacts on those resources and even proposed mitigating measures, such as the decreased coverage of impervious surfaces and best storm water management practices.”1
At the hearing, an employee of the Department of Environmental Protection had submitted a letter concluding that the application was incomplete for the purposes of determining whether the grant of the variance would be consistent with the Act. Despite this, the court found that other testimony supplied the missing information on the day of the hearing. Furthermore, in the hearings, no one offered evidence of potential adverse impacts from the construction. The court concluded that the Board’s decision was supported by substantial evidence.

Zoning Requirements
The court next addressed the Hescocks’ contention that the Board did not comply with zoning regulations, which required the Board to consider the effects of the construction in the flood plains, in making its decision. The Board had concluded that the new construction would actually address and improve flood zone issues. In the hearings, the Board acknowledged that “the new construction would be the only house standing when the next hurricane hits the area.”2 The court found that by finding that flood zone issues would be improved by the new construction, the Board had considered the standards set forth in the zoning regulations.
The court noted that its role is “to determine whether the board acted arbitrarily, illegally, or in abuse of its discretion and not to indulge in a hypertechnical examination of whether the board complied with all the minute requirements of its regulations.”3 In this instance, the court concluded that the record indicated that the board carefully considered the zoning requirements in making its decision.
Interestingly, with regard to the Board’s consideration of one of the zoning requirements, the court noted that “[t]he board’s failure to specifically state, orally or in writing, that it had made these findings does not amount to an exercise of discretion that is arbitrary, illegal, or an abuse of discretion.” The court cited testimony heard by the board as evidence that the board evaluated the zoning requirements under the flood zone regulations.

Legal Hardship
The Hescocks’ final claim was that the Board upheld the variance without substantial evidence of legal hardship. The existing house had been damaged by a hurricane and was uninhabitable. The new construction would eliminate existing nonconformities and would be farther away from the water than any other house on the street. One of the Board members commented that the development would be on the “cutting edge” of development in the years to come. Although there was no evidence of unusual hardship, the court found that the Board could grant a variance based on the reduction of nonconformance by the replacement of the existing house with new construction.

Conclusion
The appellate court affirmed the trial court’s judgment. Barring a successful appeal by the Hescocks, the landowners may proceed with their new construction.

Endnotes
1. Hescock v. Zoning Bd. of Appeals, 962 A.2d 177, 185 (Conn. App. Ct. 2009).
2. Id. at 186.
3. Id. at 187.