Verrillo v. Zoning Board of Appeals ( 2015 )

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ANTHONY VERRILLO v. ZONING BOARD
OF APPEALS OF THE TOWN
OF BRANFORD ET AL.
(AC 36196)
Gruendel, Mullins and Bear, Js.
Argued November 19, 2014—officially released March 10, 2015
(Appeal from Superior Court, judicial district of New
Haven, Blue, J.)
Michael A. Zizka, for the appellant (named defen-
dant), with whom was David A. Gibson, for the appel-
lants (defendant Linda F. Lantsberger et al.).
Michael G. Tansley, with whom was Heather L. Dos-
taler, for the appellee (plaintiff).
Opinion
GRUENDEL, J. In 2012, the defendant Zoning Board
of Appeals (board) of the Town of Branford (town)
granted eight variances sought by the applicants, defen-
dants Linda F. Lantsberger, trustee, and David Laraia,
trustee (applicants), to expand an existing nonconform-
ing structure. The plaintiff, Anthony Verrillo, thereafter
commenced an appeal of that decision in the Superior
Court. The court sustained the appeal, concluding that
the administrative record did not substantiate the
board’s finding of unusual hardship. This appeal con-
cerns the propriety of that determination, and causes
us to consider (1) whether the board rendered a formal,
collective statement of reasons for its action, (2) the
nature of the variance power, (3) whether a legally
cognizable hardship exists, (4) whether such hardship
peculiarly affects the applicants’ property, (5) whether
the applicants’ proposal qualifies under the exception
to the hardship requirement set forth in Adolphson v.
Zoning Board of Appeals, 205 Conn. 703, 535 A.2d 799
(1988), and its progeny, and (6) whether the granting
of the requested variances substantially affects the com-
prehensive zoning plan. We affirm the judgment of the
Superior Court.1
This appeal concerns real property known as 112
Limewood Avenue (property). The property is located
in a coastal area of town ‘‘comprised mostly of small
cottage type homes on small parcels . . . .’’ Its title
originates in a deed recorded in 1908. The lot is approxi-
mately sixty feet long and twenty-six feet wide, and its
total area is 1605 square feet. In 1925, what the appli-
cants describe as a ‘‘summer residence’’ was con-
structed on the property. That two-story structure
contains four bedrooms and two bathrooms, with a
living area of approximately 1000 square feet.
The town first enacted zoning regulations (regula-
tions) in 1956. Branford Zoning Regs., § 6.1.C.3.2 Under
those regulations, the property is classified as part of
the ‘‘Residence R-2 District.’’ That district consists ‘‘of
residential areas that have been developed over a period
of years primarily with single-family houses for seasonal
as well as year-round occupancy on relatively small
lots.’’ Branford Zoning Regs., § 3.2.B.1. Section 3.2.F.1
of the regulations requires a minimum lot area of 4000
square feet in that district, with which the property
plainly does not comply. The existing structure likewise
does not comply with the requirements of the R-2 dis-
trict in several respects, as it significantly intrudes upon
the front, rear, and side setback requirements of the
property,3 as well as certain maximum coverage restric-
tions4 and the ‘‘[n]arrow [street]’’ setback requirement.
See Branford Zoning Regs., §§ 3.2.F and 6.2.E (4).
It nevertheless is undisputed that the lot and existing
structure antedate the enactment of the regulations in
1956. It further is undisputed that neither the lot nor
the existing structure has changed in size or shape since
that time. As such, they are legally existing nonconfor-
mities subject to the protections of General Statutes
§§ 8-2, 8-13a, and 8-26a.5 The continuance of those non-
conformities, therefore, ‘‘is a vested right which adheres
to the land itself.’’ (Internal quotation marks omitted.)
Johnny Cake, Inc. v. Zoning Board of Appeals, 180
Conn. 296, 300, 429 A.2d 883 (1980).
The applicants acquired the property in 1993. On Feb-
ruary 23, 2012, they filed an application with the board
requesting several variances from the regulations in
order to expand the existing structure.6 Specifically, the
applicants sought to (1) reduce the front setback from
15 feet to 0.2 feet; (2) reduce the westerly side setback
from 10 feet to 1.4 feet; (3) reduce the easterly side
setback from 10 feet to 7.2 feet; (4) reduce the rear
setback from 20 feet to 6.3 feet; (5) increase the maxi-
mum floor area ratio from 0.50 to 0.89; (6) increase the
maximum coverage ratio from 0.25 to 0.52; and (7)
obtain a waiver of the narrow street setback require-
ment contained in § 6.2.E (4) of the regulations. In addi-
tion, the applicants requested a variance to waive the
prohibition against the expansion of nonconforming
structures set forth in §§ 8.1.C.1 and 8.1.C.3 of the regu-
lations.7 With respect to the claim of hardship, the appli-
cation noted that the property ‘‘is a preexisting legal
nonconforming lot, upon which is located a legal preex-
isting nonconforming residence. The lot is substantially
undersized (1605 sq. ft. in a zone requiring 4000 sq. ft.),
leaving very little room for horizontal expansion and
thereby requiring vertical expansion to improve the
property by making it safer, more code compliant and
provide reasonable and adequate living and storage
space, parking and mechanical equipment.’’
The board held a public hearing on the application
on March 20, 2012. At its outset, David A. Gibson, coun-
sel for the applicants, provided an overview of their
request, stating that the existing structure ‘‘is in dire
need of renovation and upgrade.’’ Gibson explained that
under the applicants’ proposal, although there would
be some slight horizontal intrusions into the setback
area, the principal expansion of the nonconforming
structure would be vertical. In response to a question
from the board, Gibson explained that the application
did not propose demolishing the existing structure and
building anew on a vacant lot. Instead, the applicants
proposed expanding the existing nonconforming
structure.
Accompanying their presentation was a plan pre-
pared by architect Gerry Karpuska (plan) that detailed
the proposed expansion of the existing structure from
a two-story to three-story residence.8 Karpuska pro-
vided a review of the plan, which contained both
‘‘existing’’ and ‘‘proposed’’ depictions of the expansion
from various angles, as well as contrasting floor plans.
Gibson explained that the living area of the expanded
structure would be 1430 square feet. The proposed floor
area coverage would be 0.89, well beyond the 0.50 maxi-
mum permitted by the regulations. See Branford Zoning
Regs., § 3.2.F.9.
After the applicants concluded their presentation,
board Chairman Robert Harrington asked if anyone
from the public wanted to be heard. Maureen McLean
and Joanne Martinson, who owned an abutting parcel
to the east of the property, spoke in favor of the applica-
tion, stating that they ‘‘don’t have a problem with any
of . . . the changes [the applicants have] presented.’’
The board also accepted a letter in support of the appli-
cation from Fred Robinson and Grace Robinson, who
owned an abutting parcel to the north of the property.
Attorney Patrick McGrath then spoke on behalf of
the plaintiff, an abutting property owner, opining that
‘‘I don’t think enough has been submitted concerning
the hardship on this application [to] entitle the appli-
cants to the variances that are requested.’’ He reminded
the board that ‘‘[t]he regulations clearly indicate that
. . . the intent of the regulations is to permit noncon-
formities to continue until they’re removed, but not to
encourage their survival. It also says that nonconformit-
ies shall not be enlarged, expanded or extended, if such
change increases the nonconformity. . . . Clearly,
that’s exactly what the applicants are looking for here.’’
When board member Peter Berdon asked McGrath if
he would agree that variances ‘‘are designed [to] allow
people reasonable use of their property,’’ McGrath
stated that he did not agree. Instead, McGrath submitted
that variances are designed to provide relief to appli-
cants who can demonstrate ‘‘a hardship . . . owing to
the characteristics of the land, that’s unique to their
property and not present in the general zoning district.’’
Berdon later clarified that the buildable area within
the setback requirements on the property was approxi-
mately seven by twenty-two feet, and then asked
whether those dimensions ‘‘in and of itself . . . estab-
lish that there is at least a hardship to build on this
lot?’’ McGrath replied: ‘‘No, because there’s a house on
the lot. That’s one important consideration at this point.
There is a house on this lot. It’s not as though this
applicant can’t build [and] is being denied [the] use of
his property [and] is denied all reasonable benefit of
this property. There’s a house here. It’s a residential
district. There is a residence. It’s [been] used as a sum-
mer residence, it has been for a very long period of
time. There’s nothing about this . . . lot, this structure
and the application of the [regulations] to it, that denies
them the reasonable benefit of their property. They
have a house there. It’s their notion that they want to
build, they want to expand, they want to completely
gut the place as the architect indicated, they want to
put a master bedroom on and another bathroom . . .
they want to do all these things. It’s the construction
that creates the extensible hardship. . . . It’s their
desire to expand. It’s their desire to extend. Their desire
to have a better . . . living space than they have now
. . . that causes them to bring this application, and it
makes them try to find this as a hardship.’’ If the
requested variances were denied, McGrath argued, ‘‘the
applicant still has a perfectly useful residence.’’
As a final matter, McGrath alternatively argued that
the applicants ‘‘have not met their burden with respect
to showing . . . there’s . . . some unique difficulty
about this property. . . . [T]he courts have consis-
tently held that there is no hardship where an appli-
cant’s claimed hardship is no different than those
generally affecting other properties in the same district.
. . . [N]one of these lots are very large. All of those
lots seem to be less than a tenth of an acre. . . . As
you can see, there are lots all around the area [and]
there’s nothing terribly unique about this lot . . . .’’
McGrath concluded his remarks by stating that ‘‘the
applicant . . . I don’t believe has shown that there is a
unique condition or an exceptional difficulty, a hardship
owing to the size or configuration of this lot that war-
rants the granting of these variances. Any hardship
that’s purported here is solely self-created and self-
imposed, and it’s the construction here that necessitates
these variances and nothing else.’’
In his rebuttal, Gibson emphasized that ‘‘this is a very
small lot, it’s a preexisting nonconforming lot with a
preexisting nonconforming building on it. There is prac-
tically no room for improvement or expansion, other
than vertically.’’ He argued that the proposed expansion
was reasonable and that ‘‘[w]hat we want to do is
improve the property and expand it so we can get some
living space.’’ At that point, Berdon stated that ‘‘the
status of the property, as it currently sits, is to some
extent immaterial because [a property owner is] entitled
to get variances to a reasonable extent. To use the
property to a reasonable extent.’’ Harrington
responded, ‘‘I agree with that one hundred percent.’’
Harrington then indicated that ‘‘[w]hat I’m hearing is,
we have a structure that is old, it’s falling apart . . .
it’s in need of major renovations . . . regardless of
whether it gets expanded or not. But since we’re going
to go through all that, we might as well, rather [than]
to maintain the status quo, we’re going to ask for permis-
sion to improve it and enlarge it somewhat.’’
Harrington thereafter closed the public hearing and
immediately entertained a motion to grant the requested
variances. As the transcript of the March 20, 2012 meet-
ing reflects:
‘‘Harrington: Okay, I’m going to close the public hear-
ing on this item? Peter? You’re the most vocal person
on this application. I think I’ll let you make the
motion. . . .
‘‘Berdon: I would move that we approve the
requested variance.
‘‘Harrington: Okay. What’s the basis for the hardship?
As [Gibson] outlined.
‘‘Berdon: Yes, as [he] outlined, I think we have ample
evidence in the record that the actual . . . buildable
area on the lot is less than a single wide trailer. . . . I
don’t mean that in a derogatory sense; it’s the fact, that
even . . . a prefab mobile structure could not sit on
this particular lot without having side line and other
setback variances. The lot is skewed in shape, which
causes the base or orientation of the structure to be
somewhat of an angle to the street and to the rear line.
I think, in the context of the existing structure on the
property, that the . . . lack of space for mechanicals
as well as the overall undersized lack of living space on
that property demonstrates that what was constructed
there in the past is not a reasonable use of the property,
and I think what [has been] proposed is certainly within
reason. I think that they’re reasonable requests . . . .
I think that the requests are in keeping with the charac-
ter of the neighborhood, the requests do not extend to
such an extent that it would be a larger grant of permis-
sion than what was otherwise granted to other houses
in the neighborhood. . . . Have I left anything out?
. . . And that will be the reasons for my motion?
‘‘Harrington: I will second. Any discussion? Gen-
tlemen?
‘‘[Board member Anthony] Beccia: [inaudible] would
be redundant.
‘‘Harrington: I don’t disagree with that. Okay? So, no
one wants to make any comments or discuss it?
‘‘Beccia: Other than it’s a wordy description here, but
if you look at the changes in the measurements . . .
they’re miniscule or [de minimis].
‘‘Harrington: You can’t grant a variance on [de
minimis].
‘‘Beccia: But it’s not an aggressive application.
‘‘Harrington: I agree, okay, fine.
‘‘Berdon: And, just that goes on . . . in the context
of counsel’s representation that the . . . many of the
side line and front line variances were requested to
provide for tolerances in the context of lifting the house,
I think that is a reasonable request. I think it would be
unfair to the applicant to grant him the requests to, in
essence, to do his project and yet, if there was a shift
of the building, could put his project into jeopardy,
talking literally inches in terms of those requests for
tolerances. I think that, again, is reasonable and would
be reasonable even if they were requesting that it actu-
ally expand to those areas.
‘‘Harrington: Yes, because the contractor couldn’t
necessarily put it with that degree of tolerance.
‘‘Berdon: Right?
‘‘[Board member David] Laska: What we gain is a
FEMA compliant building . . . at the end of the day
we gain another few miles.
‘‘Harrington: Okay?’’
The board then unanimously voted to grant the eight
requested variances without further comment thereon.
The minutes of the board’s March 20, 2012 proceed-
ings are part of the administrative record before us.
They summarize the 112 Limewood Avenue application
as follows: ‘‘Granted, 5/0 on the motion of Peter Berdon
with a second by Bob Harrington, with Frank Kinney,
David Laska and Bud Beccia in agreement that the
hardship lay in the size and shape of the property where
there was no room to expand horizontally and had to be
vertical. The application was represented by [Gibson],
with [McGrath] representing [the plaintiff] in opposi-
tion, contending that there was no hardship. Members
felt that the planned renovations would allow the struc-
ture to remain in character with the neighborhood that
is comprised mostly of small cottage type homes on
small parcels, while the improvements to the structure
would bring it up to date to meet today’s needs with
minimal enlargement to the interior of the house. By
allowing mechanicals to be installed in the basement,
which is currently [in] a crawl space, it would allow
more living space for the upper stories. The slight
changes requested for the footprint were explained as
precautions in case the house shifted by an inch or so
in lifting it off the pillar foundation. Mechanicals could
be installed in the basement rather than in the living
space, allowing more comfortable surroundings.’’
The plaintiff filed a timely appeal of that decision
with the Superior Court.9 In his April 17, 2012 complaint,
he alleged, inter alia, that the board, in granting the
requested variances, ‘‘acted illegally, arbitrarily, and in
abuse of the discretion vested in it’’ because (1) ‘‘there
was no showing of exceptional difficulty or unusual
hardship by the applicants justifying said variances’’; (2)
the board ‘‘considered conditions affecting the district
generally and not those especially affecting the prop-
erty’’; (3) ‘‘the variances granted were not in harmony
with the general purpose and intent of the [regula-
tions]’’; (4) the board ‘‘failed to set forth proper and
substantial reasons for its decision to grant said applica-
tion’’; and (5) the board ‘‘granted said application based
upon factors not contained in the [regulations].’’
After permitting the parties to submit written briefs,
the court held a hearing on the matter on March 21,
2013. In its March 22, 2013 memorandum of decision,
the court first found that the record did not contain a
formal collective statement of the basis of the board’s
decision. As a result, the court scrutinized the adminis-
trative record before ultimately concluding that ‘‘[a]
careful search of the record fails to find a basis for
the [board’s] decision that is consistent with the law
governing the granting of hardship variances.’’ In partic-
ular, the court noted that the ‘‘small size of the property’’
was not unique to the area. The maps and other docu-
mentation in the record demonstrated that ‘‘[m]any
properties in the neighborhood are as small as, or even
smaller, than the property. . . . As a result of the prop-
erty’s size and shape, only a very small house can be
built on it. Again, however, the record fails to establish
that these attributes of the property are unusual in the
neighborhood.’’
The court further relied on this court’s decision in
Michler v. Planning & Zoning Board of Appeals, 123
Conn. App. 182, 187, 1 A.3d 1116 (2010), for the proposi-
tion that ‘‘disappointment in the use of the subject prop-
erty, namely, the inability to build a larger structure’’;
(emphasis omitted); did not constitute the requisite
hardship under Connecticut law. Last, the court
rejected the board’s contention that the denial of the
requested variances would be confiscatory, noting that
the record contained evidence that the property’s
assessed value at the time of the public hearing was
$221,000. For those reasons, the court sustained the
plaintiff’s appeal.
The defendants thereafter filed a petition for certifica-
tion to appeal pursuant to General Statutes § 8-8 (o).
This court granted the petition and this appeal followed.
I
At the outset, we address a threshold question regard-
ing the proper scope of our review.10 It is well settled
that ‘‘[w]hen a zoning board states the reasons for its
action, the question for the court to pass on is simply
whether the reasons assigned are reasonably supported
by the record and whether they are pertinent to the
considerations which the commission is required to
apply under the zoning regulations. . . . The court
should not go behind the official statement of the
board.’’11 (Citations omitted; internal quotation marks
omitted.) Chevron Oil Co. v. Zoning Board of Appeals,
170 Conn. 146, 152–53, 365 A.2d 387 (1976). ‘‘In the
absence of a statement of purpose by the zoning
[agency] for its actions, it [is] the obligation of the trial
court, and of this court upon review of the trial court’s
decision, to search the entire record to find a basis
for the [agency’s] decision.’’ (Emphasis added; internal
quotation marks omitted.) Harris v. Zoning Commis-
sion, 259 Conn. 402, 423, 788 A.2d 1239 (2002). Our
inquiry begins, therefore, with the question of whether
the board ‘‘rendered a formal, official, collective state-
ment of reasons for its action.’’ Protect Hamden/North
Haven from Excessive Traffic & Pollution, Inc. v. Plan-
ning & Zoning Commission, 220 Conn. 527, 544, 600
A.2d 757 (1991).
That analysis is guided by certain established pre-
cepts. First, ‘‘individual reasons given by certain mem-
bers of the [zoning agency do] not amount to a formal,
collective, official statement of the [agency] . . . and
are not available to show the reason[s] for, or the
ground[s] of, the [zoning agency’s] decision.’’ (Citation
omitted; internal quotation marks omitted.) West Hart-
ford Interfaith Coalition, Inc. v. Town Council, 228
Conn. 498, 514, 636 A.2d 1342 (1994); see also Bloom
v. Zoning Board of Appeals, 233 Conn. 198, 208–209,
658 A.2d 559 (1995) (‘‘although individual members of
the board discussed reasons for granting the owners a
variance, the board did not state a collective, official
reason for its action’’); Beit Havurah v. Zoning Board
of Appeals, 177 Conn. 440, 455, 418 A.2d 82 (1979) (Shea,
J., dissenting) (‘‘[t]he explanation of the various consid-
erations which induced each of the three majority mem-
bers of the board to vote as they did ought not to be
treated as the equivalent of a formal statement of the
reasons for the action of the board’’). Second, the
remarks of a board member in moving to grant a vari-
ance do not constitute a collective statement of the
basis for the board’s action. Bloom v. Zoning Board of
Appeals, supra, 209–209 and 209 n.12. Third, it is not
‘‘appropriate for a reviewing court to attempt to glean
such a formal, collective statement from the minutes
of the discussion by . . . members prior to the [zoning
agency’s] vote.’’ (Emphasis added.) Protect Hamden/
North Haven from Excessive Traffic & Pollution, Inc.
v. Planning & Zoning Commission, supra, 220 Conn.
546 n.15; accord Welch v. Zoning Board of Appeals, 158
Conn. 208, 214, 257 A.2d 795 (1969) (‘‘individual views’’
of board members set forth in minutes of board’s pro-
ceeding ‘‘are not available to show the reason for, or
the ground of, the board’s decision’’).
Fourth, our Supreme Court has explained that the
‘‘cases in which [it] held that the agency rendered a
formal, official, collective statement involve circum-
stances wherein the agency couples its communication
of its ultimate decision with express reasons behind
that decision. See, e.g., Caserta v. Zoning Board of
Appeals, 226 Conn. 80, 86, 91 n.9, 626 A.2d 744 (1993)
(letter from board to plaintiff’s attorney upholding revo-
cation of plaintiff’s zoning permit and listing reasons
for decision constituted statement of basis for deci-
sion); First Hartford Realty Corp. v. Plan & Zoning
Commission, 165 Conn. 533, 537, 338 A.2d 490 (1973)
(assigned reasons accompanying decision to change
zoning classification constituted statement of basis for
decision); DeMaria v. Planning & Zoning Commis-
sion, [159 Conn. 534, 540, 271 A.2d 105 (1970)] (commis-
sion’s records disclosing denial of plaintiff’s application
and two ‘reasons for den[ial]’ constituted statement of
basis for decision) . . . .’’ (Citations omitted; emphasis
added.) Harris v. Zoning Commission, supra, 259
Conn. 420–21.
The record before us contains little discussion among
board members on the merits of the applicants’ variance
requests after the public hearing concluded. Berdon,
who made the motion to approve the eight variances,
made brief remarks summarizing his view that the
buildable area within the setbacks was minimal and
that the applicants’ proposal was a reasonable one.
Beccia opined that the requested variances were de
minimis in scope and that ‘‘it’s not an aggressive applica-
tion.’’ Laska stated simply, ‘‘[w]hat we gain is a FEMA
compliant building . . . at the end of the day we gain
another few miles.’’ The board then voted unanimously
to approve the requested variances and provided no
further comment thereon. The minutes of that March 20,
2012 proceeding state, with respect to the application at
issue, that ‘‘[m]embers felt that the planned renovations
would allow the structure to remain in character with
the neighborhood that is comprised mostly of small
cottage type homes on small parcels, while the improve-
ments to the structure would bring it up to date to meet
today’s needs with minimal enlargement to the interior
of the house. By allowing mechanicals to be installed
in the basement, which is currently [in] a crawl space,
it would allow more living space for the upper stories.
The slight changes requested for the footprint were
explained as precautions in case the house shifted by
an inch or so in lifting it off the pillar foundation.
Mechanicals could be installed in the basement rather
than in the living space, allowing more comfortable sur-
roundings.’’
We conclude that the foregoing does not constitute
an official, collective statement of the basis for the
board’s decision. Although certain board members
offered their perspectives on the application prior to
voting thereon, the record does not contain a ‘‘commu-
nication of [the board’s] ultimate decision with express
reasons behind that decision.’’ Harris v. Zoning Com-
mission, supra, 259 Conn. 420–21. Conspicuously
absent from both the transcript of the March 20, 2012
proceeding and the minutes thereof is any stated basis
or rationale for the board’s implicit finding that the
hardship affecting this property was unusual, and not
one generally affecting the district in which it is located.
As a result, we are obligated to search the entire record
to ascertain whether the evidence reveals any proper
basis for the board’s decision to grant the variances in
the present case.12 See id., 423.
II
Before considering the specific claims advanced in
this appeal, we first review the applicable law governing
the granting of variances in this state. General Statutes
§ 8-6 empowers a municipal zoning board of appeals,
inter alia, to ‘‘vary the application of the zoning bylaws,
ordinances or regulations in harmony with their general
purpose and intent and with due consideration for con-
serving the public health, safety, convenience, welfare
and property values solely with respect to a parcel of
land where, owing to conditions especially affecting
such parcel but not affecting generally the district in
which it is situated, a literal enforcement of such
bylaws, ordinances or regulations would result in
exceptional difficulty or unusual hardship so that sub-
stantial justice will be done and the public safety and
welfare secured, provided that the zoning regulations
may specify the extent to which uses shall not be permit-
ted by variance in districts in which such uses are not
otherwise allowed. . . .’’13
In reviewing a decision of a zoning board of appeals,
‘‘[i]t is well settled that courts are not to substitute their
judgment for that of the board, and that the decisions
of local boards will not be disturbed as long as honest
judgment has been reasonably and fairly made after a
full hearing . . . . Upon appeal, the [Superior Court]
reviews the record before the board to determine
whether it has acted fairly or with proper motives or
upon valid reasons. . . . We, in turn, review the action
of the [Superior Court]. . . . In light of the existence
of a statutory right of appeal from the decisions of local
zoning authorities . . . a court cannot take the view
in every case that the discretion exercised by the local
zoning authority must not be disturbed, for if it did the
right of appeal would be empty . . . . Where the board
has made a decision to grant or deny a variance, we
review the [Superior Court’s] judgment reversing that
decision to determine whether the court properly con-
cluded that the board’s decision was arbitrary, illegal
or an abuse of discretion.’’ (Citation omitted; internal
quotation marks omitted.) Sydoriak v. Zoning Board
of Appeals, 90 Conn. App. 649, 658, 879 A.2d 494 (2005).
The critical inquiry is whether the board’s decision is
supported by the evidence contained in the administra-
tive record. ‘‘In reviewing a decision of a zoning board,
a reviewing court is bound by the substantial evidence
rule, according to which, [c]onclusions reached by [the
board] must be upheld by the trial court if they are
reasonably supported by the record.’’ (Internal quota-
tion marks omitted.) Vine v. Zoning Board of Appeals,
281 Conn. 553, 559–60, 916 A.2d 5 (2007).
As our Supreme Court has explained, a variance con-
stitutes ‘‘authority extended to the owner to use his
property in a manner forbidden by the zoning enact-
ment.’’ Burlington v. Jencik, 168 Conn. 506, 508, 362
A.2d 1338 (1975). ‘‘It is well established . . . that the
granting of a variance must be reserved for unusual
or exceptional circumstances. . . . An applicant for a
variance must show that, because of some peculiar
characteristic of his property, the strict application of
the zoning regulation produces an unusual hardship, as
opposed to the general impact which the regulation has
on other properties in the zone. . . . Accordingly, we
have interpreted . . . § 8-6 to authorize a zoning board
of appeals to grant a variance only when two basic
requirements are satisfied: (1) the variance must be
shown not to affect substantially the comprehensive
zoning plan, and (2) adherence to the strict letter of
the zoning ordinance must be shown to cause unusual
hardship unnecessary to the carrying out of the general
purpose of the zoning plan. . . . Proof of exceptional
difficulty or unusual hardship is absolutely necessary
as a condition precedent to the granting of a zoning
variance.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Bloom v. Zoning Board of
Appeals, supra, 233 Conn. 206–208. The granting of a
variance is no insignificant matter, as it runs with the
land in perpetuity. See General Statutes § 8-6 (b).14
A zoning board of appeals acts as a ‘‘quasi-judicial’’
body; Nielsen v. Zoning Board of Appeals, 152 Conn.
120, 123, 203 A.2d 606 (1964); in deciding whether to
grant ‘‘relief from the literal enforcement of a zoning
ordinance . . . .’’ (Internal quotation marks omitted.)
L & G Associates, Inc. v. Zoning Board of Appeals, 40
Conn. App. 784, 788, 673 A.2d 1146 (1996). Its ‘‘essential
purpose’’ is to furnish ‘‘elasticity in the application of
regulatory measures so that they do not operate in an
arbitrary or confiscatory, and consequently unconstitu-
tional, manner.’’ Florentine v. Darien, 142 Conn. 415,
425, 115 A.2d 328 (1955); accord 4 P. Salkin, American
Law of Zoning (5th Ed. 2008) § 39:7, p. 39-26 (zoning
board of appeals ‘‘created to interpret, to perfect, and
to insure the validity of zoning’’). At the same time, a
zoning board of appeals must adhere to the cardinal
principle that the variance power should be carefully
exercised in limited fashion.15 See, e.g., Reid v. Zoning
Board of Appeals, 235 Conn. 850, 857, 670 A.2d 1271
(1996) (power to grant variance should be sparingly
exercised); Pleasant View Farms Development, Inc. v.
Zoning Board of Appeals, 218 Conn. 265, 271, 588 A.2d
1372 (1991) (power to authorize variance only granted
for relief in specific and exceptional instances); Allen
v. Zoning Board of Appeals, 155 Conn. 506, 510, 235
A.2d 654 (1967) (variance power ‘‘should be used only
where a situation falls fully within the specified require-
ments’’); Baccante v. Zoning Board of Appeals, 153
Conn. 44, 47, 212 A.2d 411 (1965) (power to grant vari-
ance exercised ‘‘only to avoid an unnecessary hard-
ship’’). ‘‘[U]nless great caution is used and variances
are granted only in proper cases, the whole fabric of
town- and city-wide zoning will be worn through in
spots and raveled at the edges until its purpose in pro-
tecting the property values and securing the orderly
development of the community is completely
thwarted.’’ (Internal quotation marks omitted.) Pleas-
ant View Farms Development, Inc. v. Zoning Board of
Appeals, supra, 270–71.
‘‘[Z]oning is concerned with the use of property and
not primarily with its ownership.’’ (Internal quotation
marks omitted.) Builders Service Corp. v. Planning &
Zoning Commission, 208 Conn. 267, 285, 545 A.2d 530
(1988). ‘‘The object of zoning is to adopt measures to
regulate property uses in conformance with a compre-
hensive plan in a manner to advance the public welfare.
. . . This process embodies a clash between the com-
mon-law right of man to use his property as he pleases,
so long as he does not create a nuisance, and the exer-
cise of the police power to regulate that use in the
interest of the public health, safety, morals and general
welfare.’’ (Citations omitted.) Steiner, Inc. v. Town
Plan & Zoning Commission, 149 Conn. 74, 75–76, 175
A.2d 559 (1961). The variance power in a general sense
‘‘is the antithesis of zoning, and variance law is best
understood as a reflection of the unresolved tension
between attempting to maintain a comprehensive plan
of uniformly regulated districts, and the need to provide
relief from the general rules in individual circum-
stances.’’ T. Tondro, Connecticut Land Use Regulation
(2d Ed. 1992) p. 124. For that reason, variances should
be granted sparingly and narrowly tailored to alleviate
the hardship complained of. See, e.g., Kaeser v. Zoning
Board of Appeals, 218 Conn. 438, 445, 589 A.2d 1229
(1991) (variance power ‘‘should be sparingly exercised’’
and ‘‘only where a situation falls fully within the speci-
fied requirements’’ [internal quotation marks omitted]);
Heady v. Zoning Board of Appeals, 139 Conn. 463, 467,
94 A.2d 789 (1953) (‘‘[t]he power to grant a variance in
the application of established zoning regulations should
be exercised charily’’); L & G Associates, Inc. v. Zoning
Board of Appeals, supra, 40 Conn. App. 788 (variance
must be strictly construed to limit relief to minimum
variance sufficient to relieve hardship); see also 3 E.
Yokley, Zoning Law and Practice (4th Ed. MacGregor
2010) § 20-13, p. 20-64 (variance granted ‘‘must be the
minimum one sufficient to relieve the hardship com-
plained of’’); 101A C.J.S. 393, Zoning and Land Planning
§ 304 (2005) (‘‘granting a variance’’ is ‘‘exceptional
power [that] should be exercised sparingly’’).
Zoning boards of appeal possess a limited authority,
as circumscribed by statute, the scope of which cannot
be enlarged by either the board or the local zoning
regulations. See Carini v. Zoning Board of Appeals,
164 Conn. 169, 173, 319 A.2d 390 (1972) (‘‘[t]he board’s
power is restricted to that provided by the zoning ordi-
nance in accordance with legislative or statutory enact-
ments’’), cert. denied, 414 U.S. 831, 94 S. Ct. 64, 38 L.
Ed. 2d 66 (1973); Langer v. Planning & Zoning Com-
mission, 163 Conn. 453, 458, 313 A.2d 44 (1972) (board’s
powers ‘‘stem directly from the statute’’); Bora v. Zon-
ing Board of Appeals, 161 Conn. 297, 302, 288 A.2d 89
(1971) (holding that board acted illegally by exceeding
its power in granting variance); T. Tondro, supra, p.
124 (‘‘variance power is not broad and generalized’’
and zoning board ‘‘must act in the narrowest manner
possible’’); 101A C.J.S., supra, § 303, p. 391 (‘‘[s]ince the
zoning authorities derive their power to grant variances
from the enabling legislation, the local legislature is
without authority either to restrict or enlarge that
power’’); 2 P. Salkin, American Law of Zoning (5th Ed.
2011) § 13:27, p. 13-82.1 (zoning boards of appeal ‘‘are
constrained by the limitations of the power granted to
them by law’’). At its essence, this case is about whether
the board exceeded that authority.
The requirement that an applicant seeking a variance
must establish the existence of a hardship peculiarly
affecting its property ‘‘is a fundamental one in zoning
law . . . .’’ Ward v. Zoning Board of Appeals, 153
Conn. 141, 143, 215 A.2d 104 (1965); see also Hyatt v.
Zoning Board of Appeals, 163 Conn. 379, 382, 311 A.2d
77 (1972) (§ 8-6 ‘‘clearly directs the board to consider
only conditions, difficulty or unusual hardship peculiar
to the parcel of land which is the subject of the applica-
tion for a variance’’); Plumb v. Board of Zoning Appeals,
141 Conn. 595, 600, 108 A.2d 899 (1954) (‘‘[t]he hardship
must be one different in kind from that imposed upon
properties in general by the ordinance’’). An applicant’s
burden with respect to the hardship requirement, there-
fore, is twofold, as it must establish both the existence
of a ‘‘sufficient hardship’’ and that ‘‘the claimed hardship
is . . . unique . . . .’’ Francini v. Zoning Board of
Appeals, 228 Conn. 785, 787, 639 A.2d 519 (1994). We
consider each in turn.
III
We begin with the question of whether the applicants
at the public hearing demonstrated that ‘‘because of
some unusual characteristic of [the] property, a literal
enforcement of the zoning regulations would result in
unusual hardship to [them]. . . . The hardship com-
plained of must arise directly out of the application of
the ordinance to circumstances or conditions beyond
the control of the party involved.’’ (Internal quotation
marks omitted.) Vine v. Zoning Board of Appeals,
supra, 281 Conn. 561, citing Belknap v. Zoning Board
of Appeals, 155 Conn. 380, 383, 232 A.2d 922 (1967). The
record reveals a multifaceted allegation of hardship,
as several distinct bases were asserted at the public
hearing. None provide a proper basis under our law for
granting the requested variances to expand the noncon-
formity of the existing structure.
A
First and foremost is the claim, set forth in the appli-
cation submitted to the board and repeatedly articu-
lated by Gibson at the public hearing, that the lot and the
existing structure are legally existing nonconformities.
The significance of that undisputed fact requires addi-
tional amplification.
As a general matter, ‘‘[z]oning regulations . . . seek
the elimination of nonconforming uses, not their cre-
ation or enlargement. . . . [T]he accepted policy of
zoning . . . is to prevent the extension of nonconform-
ing uses . . . and that it is the indisputable goal of
zoning to reduce nonconforming to conforming uses
with all the speed justice will tolerate. . . . Neverthe-
less, the rule concerning the continuance of a noncon-
forming use protects the right of a user to continue the
same use of the property as it existed before the date
of the adoption of the zoning regulations.’’ (Citation
omitted; emphasis omitted; internal quotation marks
omitted.) Woodbury Donuts, LLC v. Zoning Board of
Appeals, 139 Conn. App. 748, 760–61, 57 A.3d 810 (2012).
Indeed, ‘‘[i]t is a fundamental zoning precept in Con-
necticut . . . that zoning regulations cannot bar uses
that existed when the regulations were adopted.’’ (Inter-
nal quotation marks omitted.) Taylor v. Zoning Board
of Appeals, 65 Conn. App. 687, 694, 783 A.2d 526 (2001).
‘‘Where [such] a nonconformity exists, it is a vested
right which adheres to the land itself. . . . A vested
right . . . to continue the nonconforming use is in the
land . . . . [T]he right to a nonconforming use is a
property right and . . . any provision of a statute or
ordinance which takes away that right in an unreason-
able manner, or in a manner not grounded on the public
welfare, is invalid.’’ (Citation omitted; internal quotation
marks omitted.) Petruzzi v. Zoning Board of Appeals,
176 Conn. 479, 483–84, 408 A.2d 243 (1979).
Our General Statutes recognize and protect this bed-
rock principle. Section 8-2 precludes a municipality
from amortizing or altogether eliminating such noncon-
formities through the enactment or amendment of its
zoning regulations. Section 8-26a reaffirms that statu-
tory imperative. Titled ‘‘Effect of change in subdivision
or zoning regulations or boundaries of districts after
approval of plan,’’ it provides in relevant part that ‘‘[t]his
subsection shall not alter or affect a nonconforming
use or structure as provided in section 8-2.’’ General
Statutes (Rev. to 2011) § 8-13a (a) extends this statutory
protection with particular respect to ‘‘buildings or other
structures’’ in what has been characterized as ‘‘a statute
of limitations for [certain] non-conforming buildings.’’16
(Internal quotation marks omitted.) Tine v. Zoning
Board of Appeals, 308 Conn. 300, 307, 63 A.3d 910
(2013).
The regulations in the present case likewise protect
such legally existing nonconformities. Section 8.1.A.1
notes that ‘‘[w]ithin the districts established by these
[r]egulations, there exist lots, structures and uses of
land and structures that were lawful before these [r]egu-
lations were passed or amended, but which would be
prohibited, regulated, or restricted under the terms of
these [r]egulations of future development.’’ Consistent
with the aim of land use regulation generally, § 8.1.A.2
provides that ‘‘[i]t is the intent of this [s]ection to permit
these nonconformities to continue until they are
removed, but not to encourage their survival.’’ Section
8.1.B, titled ‘‘Nonconforming Uses and Structures,’’ sim-
ilarly provides that ‘‘[a]ny structure or use lawfully
existing, or for which a lawful permit was issued under
the provisions of the [z]oning [r]egulations previously
in effect, may be continued. . . .’’ Section 8.1.G pro-
vides that ‘‘[n]o change of title, possession or right of
possession shall, in itself, be deemed to affect the right
to continue a nonconforming use, building or other
structure.’’
The import of such protections is perhaps best illus-
trated in Lampasona v. Planning & Zoning Commis-
sion, 6 Conn. App. 237, 504 A.2d 554 (1986). That case
involved North Stonington zoning regulations that ‘‘pro-
hibited an owner of a mobile home from making more
than one replacement.’’ Id., 238. At the time that those
regulations were enacted, the plaintiff had an existing
mobile home on her lot. Id. She thereafter replaced
that mobile home. Id. The plaintiff later ‘‘applied for
permission to replace her mobile home for a second
time with a mobile home of equal size,’’ which was
denied. Id. The plaintiff appealed that decision before
the North Stonington Zoning Board of Appeals, which,
following a public hearing, denied her appeal. Id.
The plaintiff then commenced a civil action challeng-
ing the constitutionality of the regulations at issue.
Upon the stipulation of the parties, the Superior Court
reserved the following question for this court’s advice:
‘‘[W]hether Sections XI, I 3 e (2) (g) and (h) of the North
Stonington Zoning Regulations are unconstitutional on
their face and as applied to the plaintiff’s property in
that they constitute a taking of the plaintiff’s property
without due process in violation of the provisions of
the Constitution of Connecticut and the Constitution
of the United States.’’ (Internal quotation marks omit-
ted.) Id.
Before this court, the plaintiff argued that ‘‘by depriv-
ing her of the opportunity to replace her mobile home
for a second time, the town is depriving her of a vested
property right in a nonconforming use without just com-
pensation.’’ (Internal quotation marks omitted.) Id., 239.
We agreed, stating that ‘‘the mobile home use to which
[the plaintiff] has put her land is a valid nonconforming
use. Since her nonconforming use has been validly
established, she has a vested right under the protection
of our federal and state constitutions to continue that
use.’’ Id. We further reasoned that the plaintiff’s ‘‘non-
conforming use of the property will not change with
the second replacement of her mobile home. . . . The
use will remain unchanged in manner and scope. The
replacement, therefore, is constitutionally protected.’’17
(Emphasis omitted; footnote omitted.) Id. We thus held
that because the regulations ‘‘in issue seek . . . the
termination of a valid nonconforming use after a ‘grace
period’ of one mobile home replacement,’’ those regula-
tions were unconstitutional. Id., 240.
Lampasona, then, is a quintessential example of the
precept that ‘‘[a] lawfully established nonconforming
use is a vested right and is entitled to constitutional
protection.’’ (Internal quotation marks omitted.)
Petruzzi v. Zoning Board of Appeals, supra, 176 Conn.
484. That precept comports with the protections
afforded by our General Statutes.
It therefore is not insignificant that the property in the
present case contains legally existing nonconformities
with respect to the lot and the existing structure. To
the contrary, the presence of that vested right is crucial
to our consideration of whether the requested variances
properly were granted. The existence of such noncon-
formities, however, does not, a fortiori, entitle a prop-
erty owner to a variance to expand those
nonconformities. The defendants have provided us with
no authority so indicating. Such a proposition stands
in stark contrast to the fundamental principle in Con-
necticut that ‘‘nonconforming uses should be abolished
or reduced to conformity as quickly as the fair interest
of the parties will permit—[i]n no case should they be
allowed to increase.’’ (Emphasis added; internal quota-
tion marks omitted.) Adolphson v. Zoning Board of
Appeals, supra, 205 Conn. 710; see also Guilford v.
Landon, 146 Conn. 178, 182, 148 A.2d 551 (1959) (‘‘the
accepted policy of zoning . . . is to prevent the exten-
sion of non-conforming uses’’). As our Supreme Court
has recognized, ‘‘[t]he advantages which the owners of
nonconforming property acquire by the enactment of a
zoning ordinance are not to be subsequently augmented
except as permitted by the ordinance.’’ Kleinsmith v.
Planning & Zoning Commission, 157 Conn. 303, 314,
254 A.2d 486 (1968); see also Bauer v. Waste Manage-
ment of Connecticut, Inc., 234 Conn. 221, 243, 662 A.2d
1179 (1995) (‘‘a nonconforming structure cannot be
increased in size in violation of zoning ordinances’’);
Neumann v. Zoning Board of Appeals, 14 Conn. App.
55, 59, 539 A.2d 614 (‘‘[t]he plaintiff has not presented
us with any authority, nor are we aware of any, that
gives him a vested right to use a nonconforming lot by
enlarging a building thereon without regard to restric-
tions placed on such use by applicable zoning regula-
tions’’), cert. denied, 208 Conn. 806, 545 A.2d 1103
(1988); 101A C.J.S., supra, § 188, p. 269 (‘‘the area of a
nonconforming use may not be enlarged or extended,
except as permitted by applicable zoning statutes or
ordinances’’ [footnote omitted]). Put simply, the exis-
tence of a legally existing nonconformity cannot, in
itself, justify the granting of variances to expand that
nonconformity.
B
It bears repeating exactly what this case is—and is
not—about. This is not a case involving a proposal
seeking to construct a residence on a vacant noncon-
forming lot in a residential district.18 Contra Archam-
bault v. Wadlow, 25 Conn. App. 375, 382–83, 594 A.2d
1015 (1991) (variance properly granted to build resi-
dence on nonconforming lot when record revealed that
‘‘there are no alternative uses’’ for property other than
‘‘the construction of a single-family home’’). This also
is not a case involving a proposal to do ‘‘nothing more
than to alter the interior of an existing nonconforming
building for a permitted use’’ in a particular zoning
district. Petruzzi v. Zoning Board of Appeals, supra,
176 Conn. 484. Rather, this case involves the proposed
expansion of an existing nonconforming residential
structure in a residential district.
As we have noted, a variance ‘‘constitutes permission
to act in a manner that is otherwise prohibited under
the zoning law of [a] town.’’ Bloom v. Zoning Board of
Appeals, supra, 233 Conn. 206. The regulations in this
case proscribe the expansion of nonconforming struc-
tures in town.19 Section 8.1.A.3 specifically provides
that ‘‘[i]t is . . . . the intent of this Section [8.1, titled
‘Nonconformities’] that nonconformities shall not be
enlarged, expanded or extended if such a change
increases the nonconformity, nor shall they be used as
grounds for adding other structures or uses prohibited
elsewhere in the same district.’’ Section 8.1.C.1 similarly
provides that ‘‘[n]o nonconforming use of land shall be
enlarged, extended or altered, and no structure or part
thereof devoted to a nonconforming use shall be
enlarged, extended, reconstructed or structurally
altered, except where the result of such changes is to
reduce or eliminate the nonconformity.’’ Section 8.1.C.2
specifies in relevant part that ‘‘[n]o nonconforming use
of a structure shall be extended to occupy land outside
such structure . . . .’’ Section 8.1.C.3 provides that
‘‘[n]o building or other structure that does not conform
to the requirements of these regulations regarding the
building height limit, area and width of lot, percentage
of lot coverage, and required yards and parking facilities
shall be enlarged unless such enlarged portion con-
forms to the regulations applying to the district in which
it is located.’’ The applicants requested, and the board
granted, a variance waiving the requirements of
§§ 8.1.C.1 and 8.1.C.3 of the regulations.20 The issue,
then, is whether the applicants at the public hearing
demonstrated a hardship resulting from their inability
under the regulations to expand their existing noncon-
forming structure.
C
At the public hearing, the applicants indicated that
the principal impetus for their variance requests was
twofold. They desired more living and storage space,
and they wanted to modernize the existing structure.
The case law is replete with instances in which an
applicant predicated its claim of hardship on a desire
to expand an existing nonconforming structure for what
our appellate courts have characterized as personal
considerations, such as the desire to obtain more space
or to modernize an antiquated building. It long has been
held that ‘‘disappointment in the use of property can
hardly constitute practical difficulty or unnecessary
hardship within the meaning of a zoning law or regula-
tion.’’ Berkman v. Board of Appeals on Zoning, 135
Conn. 393, 399–400, 64 A.2d 875 (1949). In Garibaldi
v. Zoning Board of Appeals, 163 Conn. 235, 238, 303 A.2d
743 (1972), our Supreme Court held 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.’’ The court
further explained that ‘‘a variance is not a personal
exemption from the enforcement of zoning regulations.
It is a legal status granted to a certain parcel of realty
without regard to ownership. It is for this reason that
the rule is well established that the financial loss or the
potential of financial advantage to the applicant is not
the proper basis for a variance. . . . Similarly, it is also
well established 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. . . . Hardships in such instances
as these do not arise from the application of zoning
regulations, per se, but from zoning requirements cou-
pled with an individual’s personal needs, preferences
and circumstances. Personal hardships, regardless of
how compelling or how far beyond the control of the
individual applicant, do not provide sufficient grounds
for the granting of a variance.’’ (Citations omitted.) Id.,
239–40. For that reason, ‘‘[t]he situation of any particu-
lar owner is irrelevant’’ to the determination of whether
a hardship exists. Hyatt v. Zoning Board of Appeals,
supra, 163 Conn. 382.
Accordingly, ‘‘[t]he basic zoning principle that zoning
regulations must directly affect land, not the owners of
land . . . limits the ability of zoning boards to act for
personal rather than principled reasons, particularly in
the context of variances.’’ (Citation omitted; internal
quotation marks omitted.) Reid v. Zoning Board of
Appeals, supra, 235 Conn. 857–58. As this court has
recognized, an applicant’s ‘‘disappointment in the use
of the subject property, namely, the inability to build
a larger structure,’’ is personal in nature and not a
proper basis for a finding of hardship. (Emphasis
altered.) Michler v. Planning & Zoning Board of
Appeals, supra, 123 Conn. App. 187.21 Our Supreme
Court similarly has recognized that ‘‘the fact that an
owner is prohibited from adding new structures to the
property does not constitute a legally cognizable hard-
ship.’’ Bloom v. Zoning Board of Appeals, supra, 233
Conn. 210–11 n.13. Nor does an applicant’s desire ‘‘to
modernize’’ an existing nonconformity ‘‘constitute a
cognizable legal hardship that would warrant a vari-
ance.’’ Horace v. Zoning Board of Appeals, 85 Conn.
App. 162, 171, 855 A.2d 1044 (2004). Improving the utility
or the appearance of a building, ‘‘even if beneficial,
[does not] constitute a cognizable legal hardship
. . . .’’22 Id. As our Supreme Court observed in rejecting
a claim of ‘‘unusual hardship from the fact that the
internal layout of the [existing nonconforming struc-
ture] was poorly designed to meet the needs of modern
living,’’ that ‘‘inconvenience . . . does not rise to the
level of hardship necessary for the approval of a vari-
ance.’’23 Moon v. Zoning Board of Appeals, 291 Conn.
16, 26 n.9, 966 A.2d 722 (2009).
At the public hearing, Gibson explained that the appli-
cants were seeking to obtain ‘‘more space’’ inside the
existing nonconforming structure. He noted that the
existing structure was ‘‘an old building’’ that was ‘‘in
dire need of renovation and upgrade. . . . The basic
problem is, there’s practically no room to expand at
ground level.’’ In addition to providing a new space to
locate the furnace, which currently was located in the
crawl space, the applicants sought to obtain more ‘‘liv-
ing and storage space’’ on the proposed third story of
the structure. Gibson stated that ‘‘[w]hat [the appli-
cants] want to do is improve the property and expand
it so we can get some living space’’ and emphasized
that ‘‘since there is little or no room . . . for horizontal
expansion [under the regulations], what has to be done
in order to improve the property and modernize it . . .
is to go up.’’
Karpuska, the architect who prepared the plans sub-
mitted to the board depicting the proposed expansion,
testified that ‘‘[t]he washer and dryer is [currently] in
the dining room’’ and that ‘‘a water heater [is located]
in this back room on the first floor.’’ To ameliorate the
effects of an internal layout that was poorly designed
to meet the needs of modern living; Moon v. Zoning
Board of Appeals, supra, 291 Conn. 26 n.9; Karpuska
explained that ‘‘pretty much the place will be gutted to
make a better living standard.’’ Likewise, in summariz-
ing the board’s action, the minutes of the March 20,
2012 meeting state in relevant part that granting the
requested variances ‘‘would allow more living space
for the upper stories,’’ would allow ‘‘more comfortable
surroundings’’ by creating additional room for mechani-
cals, and that ‘‘the improvements to the structure would
bring it up to date to meet today’s needs . . . .’’ It
nevertheless remains that neither the applicants’ per-
sonal desire to expand their existing nonconforming
structure to obtain additional, more comfortable space
nor their desire to modernize that structure constitute
legal hardship under our law. Accordingly, those ratio-
nales do not furnish the requisite basis for a finding of
hardship by the board.
D
We turn next to the argument that the scope of the
variances sought is minimal. At the public hearing, Gib-
son described the requested setback variances as ‘‘very
slight’’ and submitted that ‘‘[t]he plan really is not to
change anything . . . .’’24 During the board’s delibera-
tions, Beccia opined that the requested variances were
‘‘miniscule or [de minimis].’’
As Harrington noted during the board’s deliberations,
the fact that a particular variance request appears de
minimis in scope is not a valid basis for granting a
variance. Neither the applicants nor the board argue
otherwise in this appeal. This court expressly has
declined ‘‘to recognize a ‘de minimis’ deviation excep-
tion that would obviate the need for [applicants] to
prove hardship.’’ Morikawa v. Zoning Board of
Appeals, 126 Conn. App. 400, 413, 11 A.3d 735 (2011);
see also R. Fuller, 9 Connecticut Practice Series: Land
Use Law and Practice (3d Ed. 2007) § 9.3, p. 256 (‘‘Con-
necticut does not recognize an exception to the hard-
ship rule allowing de minimus variances’’).
On a more basic level, the administrative record
before us does not substantiate a finding that the
requested variances were de minimis in scope. The
applicants’ proposal entails adding a third story to the
existing two-story structure. As this court noted in
Munroe v. Zoning Board of Appeals, 75 Conn. App. 796,
810–11, 818 A.2d 72 (2003), a case involving vertical
expansion of a nonconforming structure in the same
municipality as the present case: ‘‘The addition of a
. . . story is not a negligible or cosmetic change from
the original nature of the nonconformity. The bulk of the
building has been increased in quantity and dimension,
thereby intensifying the nonconformity. The [addi-
tional] story provides a significant additional amount
of enclosed space within the confines of the noncon-
forming footprint, causing a substantial increase in the
nonconformity.’’ In addition, the applicants sought to
increase the maximum floor area ratio from 0.72 to
0.89—well beyond the .50 maximum set forth in
§ 3.2.F.9 of the regulations. The applicants also
requested absolute waivers from the requirements of
§ 6.2.E (4) regarding the narrow street setback require-
ments and §§ 8.1.C.1 and 8.1.C.3, which prohibit the
expansion of the nonconformity of an existing noncon-
forming structure. In short, the record belies any claim
that the applicants’ request was minimal in nature.
E
The administrative record likewise does not substan-
tiate a finding that the hardship arose from an inability
to comply with any fire or building codes. In their appli-
cation, the applicants alleged, inter alia, that the
requested variances would make the existing structure
‘‘more code compliant,’’ and would ‘‘contribute to the
health and safety of the [applicants] by providing com-
pliance with building and fire code requirements.’’25
Although the transcript of the public hearing contains
a few isolated and vague references to such require-
ments by the applicants’ counsel,26 the record lacks
any evidence regarding such requirements.27 As was the
case in Moon v. Zoning Board of Appeals, supra, 291
Conn. 26, the applicants here ‘‘submitted no evidence,
lay or expert, that they need a variance to correct any
code violation . . . .’’ The applicants also did not sub-
mit any evidence indicating that the proposed expan-
sion of the existing structure was a necessary, rather
than preferable, course to achieve compliance with any
fire or building code requirements, nor did they identify
a single regulation or code provision with which they
presently were in noncompliance. Rather, they merely
suggested that such expansion also would serve to help
‘‘bring it up to code.’’
Moreover, as McGrath argued at the public hearing,
‘‘[t]here are zoning laws which require and building
codes which this applicant is required to comply with.
If there is some condition about mechanicals or any-
thing else on the property that’s not in compliance,
they need to bring it into compliance, and a lack of
compliance with other laws is not a basis for a hardship
in this case.’’ Given the paucity of evidence regarding
this issue, we need not further consider McGrath’s con-
tention that such noncompliance with fire or building
code requirements cannot constitute a valid basis for
a finding of legal hardship. Understandably, neither the
applicants nor the board have raised such a claim in
this appeal.28
F
It is undisputed that a three foot wide easement runs
along the easterly property line.29 At the public hearing,
Gibson made two references to that easement, stating
that ‘‘you can see there is a right-of-way that takes up
three feet on the eastern side of the property and is
shared with the property to the east,’’ and that he
thought ‘‘the fact that [the property is] encumbered by
a right-of-way to the east makes it somewhat unique.’’
No further mention of that easement occurred in either
the public hearing or the board’s subsequent deliber-
ations.
We fail to see how the existence of that easement
gives rise to any claim of hardship. The easement origi-
nates at the easterly property line and is three feet in
width—well within the ten foot side setback specified
by § 3.2.F.6 of the regulations. As such, the easement
does not constrict the buildable area on the property.
Beyond acknowledging its existence, the defendants
have provided no analysis or legal authority regarding
the import of the easement with respect to their claim
of hardship. Under the facts of this case, we conclude
that the existence of that easement largely is immaterial
to their request for variances to expand the existing
nonconforming structure.
G
The defendants also contend that the application of
the regulations in the present case had a confiscatory
effect on the property.30 That contention sits at the
intersection of two related, yet distinct, areas of law:
land use regulation and constitutional takings jurispru-
dence. This is not a case where the applicants are alleg-
ing a taking of property without just compensation in
violation of the fifth amendment to the federal constitu-
tion and article first, § 11, of the Connecticut constitu-
tion. See Rural Water Co. v. Zoning Board of Appeals,
287 Conn. 282, 284–85, 947 A.2d 944 (2008). Rather, they
submit that the board could have found that the literal
enforcement of regulations at issue operated in a confis-
catory manner with respect to their property, thereby
justifying the exercise of the variance power.
Under Connecticut law, two distinct tests apply to
such claims in the variance context. The first is the
‘‘practical confiscation’’ test. As the Supreme Court
explained more than one-half century ago, a zoning
board of appeals ‘‘stands between the public and the
individual property owner to protect the latter from
unnecessary hardship—hardship, that is, which, owing
to some condition affecting his land peculiarly, he
would suffer when it is not necessary for him to do so
in order to effectuate the general plan of zoning adopted
for the community as a whole.’’ Goldreyer v. Board of
Zoning Appeals, 144 Conn. 641, 645, 136 A.2d 789
(1957). ‘‘A classification permanently restricting the
enjoyment of property to such an extent that it cannot
be used for any reasonable purpose goes beyond valid
regulation and constitutes a taking without due pro-
cess’’; id.; and ‘‘amounts to ‘practical confiscation.’ ’’
Chevron Oil Co. v. Zoning Board of Appeals, supra,
170 Conn. 151.
‘‘A practical confiscation occurs when a landowner
is prevented from making any beneficial use of its
land—as if the government had, in fact, confiscated
it.’’ (Emphasis added.) Bauer v. Waste Management of
Connecticut, Inc., supra, 234 Conn. 256. ‘‘[A] practical
confiscation requires a complete loss of any beneficial
use . . . .’’ (Emphasis in original; internal quotation
marks omitted.) Green Falls Associates, LLC v. Zoning
Board of Appeals, 138 Conn. App. 481, 495 n.9, 53 A.3d
273 (2012). Our Supreme Court ‘‘repeatedly [has] held
that considerations of financial disadvantage—or,
rather, the denial of a financial advantage—do not con-
stitute hardship, unless the zoning restriction greatly
decreases or practically destroys [the property’s] value
for any of the uses to which it could reasonably be put
. . . .’’ (Internal quotation marks omitted.) Rural Water
Co. v. Zoning Board of Appeals, supra, 287 Conn. 295.
Thus, to prevail under a claim of practical confiscation,
a party must demonstrate that a literal application of
the regulations at issue ‘‘will not allow any reasonable
use of its property.’’ (Emphasis added.) A & F Construc-
tion Co. v. Zoning Board of Appeals, 60 Conn. App.
273, 280, 759 A.2d 101 (2000).
Practical confiscation has been found where ‘‘there
are no alternative uses’’ for a vacant nonconforming
property in a residential zone other than ‘‘the construc-
tion of a single-family home.’’ Archambault v. Wadlow,
supra, 25 Conn. App. 383; accord Lessner v. Zoning
Board of Appeals, 151 Conn. 165, 168–70, 195 A.2d 437
(1963) (variance properly granted to permit construc-
tion of one-story house on vacant nonconforming lot
in residential zone because property ‘‘cannot be used
for any permitted purpose without a variance’’ and ‘‘the
application of the regulations to [the] property practi-
cally destroys its value’’). It also has been found where
‘‘the application of [the] regulations [at issue] prohibited
any reasonable use of the subject lot’’ in a residential
zone, where the applicant sought a variance to con-
struct an accessory building on a vacant nonconforming
lot. (Emphasis added.) Stankiewicz v. Zoning Board
of Appeals, 15 Conn. App. 729, 735, 546 A.2d 919 (1988),
aff’d, 211 Conn. 76, 556 A.2d 1024 (1989), overruled in
part on other grounds by Gibbons v. Historic District
Commission, 285 Conn. 755, 771, 941 A.2d 917 (2008);
see also Bauer v. Waste Management of Connecticut,
Inc., supra, 234 Conn. 254–55 (‘‘[o]ur cases that have
found a taking by practical confiscation have involved
situations that required a landowner to leave his prop-
erty in essentially its natural state’’).
When a reasonable use of the property exists, there
can be no practical confiscation. For example, in Kelly
v. Zoning Board of Appeals, 21 Conn. App. 594, 595, 575
A.2d 249 (1990), this court rejected a claim of practical
confiscation with respect to an applicant’s request for
a variance to construct multifamily dwellings in a resi-
dential zone limited to single-family dwellings. We rea-
soned that ‘‘[n]owhere does the record show that [the
applicant] cannot use the parcel of land in a manner
consistent with the zoning regulations and in the same
manner as the other properties on [the street]. . . .
There was no evidence that a single-family subdivision
could not be developed. [The applicant] presented no
evidence that the limitation to single-family homes on
that parcel would be confiscatory or would effectively
destroy the economic utility of the parcel.’’ Id., 598–99.
Moreover, with respect to financial considerations,
‘‘[p]roof of financial hardship having a ‘confiscatory
or arbitrary’ effect requires more than testimony that
property can be sold only for a price substantially lower
than can be obtained if a variance is granted to permit
a use otherwise prohibited by the zoning regulations.’’
Grillo v. Zoning Board of Appeals, 206 Conn. 362, 371,
537 A.2d 1030 (1988). Rather, there can be no practical
confiscation unless ‘‘application of the regulations ren-
ders the property in question practically worthless.’’
(Internal quotation marks omitted.) Hoffer v. Zoning
Board of Appeals, 64 Conn. App. 39, 44, 779 A.2d 214
(2001). Evidence that a property is not ‘‘ ‘practically
worthless’ ’’ but ‘‘still possesses value’’ precludes a find-
ing of practical confiscation. Id.
In the present case, the Superior Court rejected the
applicants’ claim of practical confiscation, noting that
the 2010 assessor’s card, which is part of the administra-
tive record, indicates that the property’s assessed value
at the time of the public hearing was $221,000. Equally
significant, the applicants presented no evidence that
a denial of the requested variances would preclude any
reasonable use of the property. Instead, they argued
that their proposed expansion of the existing noncon-
forming structure would be a more reasonable use of
the property. In so doing, they fail to appreciate the
applicable legal standard, as it was incumbent upon
them to offer ‘‘proof that denial of the variance would
practically destroy the value of the property for all
reasonable uses.’’ (Emphasis added.) Rural Water Co.
v. Zoning Board of Appeals, supra, 287 Conn. 297. It is
undisputed that the existing nonconforming structure
has been used as a residence in a residential district
for many decades, which use is consistent with, and
protected by, the regulations and the General Statutes.
As was the case in Rural Water Co., the applicants thus
‘‘failed to prove that [they] could not continue to use
the property as it had been used for many years . . . .’’
Id. A denial of the requested variances, therefore, does
not amount to a practical confiscation.
The second confiscation test, which we shall refer
to as the ‘‘tantamount to confiscation’’ test, first was
recognized in Chevron Oil Co. v. Zoning Board of
Appeals, supra, 170 Conn. 146. Chevron Oil Co. involved
a vacant lot located in a ‘‘CB-2 business zone, in which
a gasoline service station is a permitted use.’’31 Id., 147.
The zoning regulation at issue required that ‘‘any build-
ing in a business zone be set back forty feet from the
boundary of a residence zone.’’ Id. As a result, ‘‘[t]he
application of that setback requirement to the [vacant
lot], when taken in conjunction with front yard and side
yard setback requirements, would restrict its usable
area to only 3600 square feet.’’ Id., 147–48.
For that reason, an application was filed ‘‘with the
defendant board of zoning appeals for a variance of the
setback regulation from forty to twenty feet, and for
certificates of approval for a gasoline station and for a
limited repairer’s license.’’ Id., 148. The defendant board
denied that request on the grounds that ‘‘ ‘the required
variance in the setback line would not be in harmony
with the purpose and intent of the ordinance’; that ‘such
hardship as exists is of the applicant’s own making,
inasmuch as he requested a zone change which now
does not permit him to use the property as he now
desires’; and that ‘the property could be used for a
permitted use without variance.’ ’’ Id. On appeal, the
Court of Common Pleas concluded that those reasons
‘‘lacked support in the record’’ and that ‘‘the application
of the forty-foot setback regulation to the [applicant’s]
property would be tantamount to confiscation
. . . .’’ Id.
Our Supreme Court affirmed that decision, noting
that ‘‘[t]he regulations permit the use of 35 percent of
the area of any lot in a CB-2 zone. The application of
the setback regulation to the . . . [plaintiff’s] property,
because of its location and shape, would restrict its use
to less than 15 percent of its area. That restriction would
apply to any permitted use’’ of the vacant lot. Id., 150.
Despite those limitations, the court determined that
‘‘[t]here was no ‘practical confiscation’ in the present
case, since a portion of the subject property could be
used for some permitted use if the variance were not
granted.’’ Id., 152. The court nevertheless proceeded to
a consideration of the plaintiff’s claim that ‘‘the setback
regulation, as applied to the subject parcel, was tanta-
mount to confiscation.’’ Id., 151. It cited Brecciaroli v.
Commissioner of Environmental Protection, 168
Conn. 349, 356, 362 A.2d 948 (1975), and Horwitz v.
Waterford, 151 Conn. 320, 323–24, 197 A.2d 636 (1964),
for the proposition that ‘‘[s]hort of regulation which
finally restricts the use of property for any reasonable
purpose resulting in a ‘practical confiscation,’ the deter-
mination of whether a taking has occurred must be
made on the facts of each case with consideration being
given not only to the degree of diminution in the value
of the land but also to the nature and degree of public
harm to be prevented and to the alternatives available
to the landowner.’’ (Internal quotation marks omitted.)
Chevron Oil Co. v. Zoning Board of Appeals, supra, 170
Conn. 151. The court further stated that ‘‘[t]he extent of
the deprivation must be considered in light of the evils
which the regulation is designed to prevent.’’ Id., 152.
In weighing those factors, the court concluded that
‘‘the application of the setback regulation to the subject
property would be tantamount to confiscation,’’ which
justified the granting of the requested variance. Id., 153.
The tantamount to confiscation test thus serves as
a limited exception to the practical confiscation test.
Whereas the latter requires ‘‘proof that denial of the
variance would practically destroy the value of the prop-
erty for all reasonable uses’’; Rural Water Co. v. Zoning
Board of Appeals, supra, 287 Conn. 297; the former
applies in situations that fall just shy of that measure.
This court clarified an applicant’s burden with respect
to those two differing confiscation standards in Jaser
v. Zoning Board of Appeals, 43 Conn. App. 545, 546
n.2, 684 A.2d 735 (1996), citing to Chevron Oil Co. and
stating that ‘‘an applicant must show not only that he
is thwarted in a desired use of land, but also that he is
being completely or almost completely deprived of the
use of the value of that land.’’ (Emphasis added.)
A denial of the requested variances in the present
case would not cause such a result. This case is not
like Chevron Oil Co., in which an applicant sought to
construct a new structure on a vacant lot, and the perti-
nent regulations restricted that proposed use to less
than 15 percent of its area. Chevron Oil Co. v. Zoning
Board of Appeals, supra, 170 Conn. 147–50. The appli-
cants here have an existing residential structure that
currently utilizes almost 50 percent of the property, and
their proposal is to continue and expand that use.32
Chevron Oil Co. instructs that we must consider the
‘‘extent of that deprivation’’ to the property owner. Id.,
152. The application submitted to the board indicates
that the existing structure presently covers nearly half
the property, exceeding the .25 maximum lot coverage
by .24. The applicants requested a variance to increase
that lot coverage by .03, for a new lot coverage of
0.52. In their principal appellate brief, the defendants
describe that increase as a ‘‘diminutive amount’’ and
submit that the requested setback variances are ‘‘minis-
cule . . . .’’ If that be the case, we are hard-pressed to
conclude that the resulting deprivation from a denial
thereof is anything but minimal.
Although we normally would consider the degree of
diminution in the value of the land; Chevron Oil Co. v.
Zoning Board of Appeals, supra, 170 Conn. 151; no such
evidence is contained in the record before us. The only
evidence regarding the ‘‘value of the land’’; id.; is the
aforementioned assessor’s card, which indicates that
the property’s assessed value at the time of the public
hearing was $221,000.
Chevron Oil Co. also instructs that a reviewing court
must consider ‘‘the alternatives available to the land-
owner.’’ (Internal quotation marks omitted.) Id. The
most obvious alternative, and one urged by McGrath
at the public hearing,33 is to continue to exercise their
vested right in the nonconforming residential structure
on the property, which has continued since 1925. That
alternative is consistent with the aim of the regulations
and the harm they were designed to prevent. This case
is about the expansion of a nonconforming structure.
The regulations at issue address such structures at great
length, describing in detail the intent of the town to not
‘‘encourage [the] survival’’ of such nonconformities or
permit any expansion thereof, because ‘‘[s]uch uses are
. . . incompatible with permitted uses in the districts
involved . . . .’’ Branford Zoning Regs., §§ 8.1.A.2 and
8.1.A.3. As our Supreme Court has observed, ‘‘[i]t is
the intent of building zone regulations generally that
nonconforming uses should not be allowed to increase,
and an extension of the space allotted to a nonconform-
ing use is a proscribed extension of that nonconforming
use and is inconsistent with the policy and comprehen-
sive plan of the regulations.’’ Raffaele v. Planning &
Zoning Board of Appeals, 157 Conn. 454, 462, 462, 254
A.2d 868 (1969); see also Bauer v. Waste Management
of Connecticut, Inc., supra, 234 Conn. 243 (‘‘a noncon-
forming structure cannot be increased in size in viola-
tion of zoning ordinances, i.e., nonconforming additions
may not be made to the nonconforming structure’’);
Essex Leasing, Inc. v. Zoning Board of Appeals, 206
Conn. 595, 607, 539 A.2d 101 (1988) (‘‘the familiar goal
of zoning [is] to abolish nonconforming uses as quickly
as justice will tolerate’’). Accordingly, ‘‘[t]he alteration
or substantial remodeling of a building existing as a
nonconforming use is logically inconsistent with the
principle that [a]n essential purpose of zoning regula-
tions is the stabilization of property uses . . . [and]
fundamental structural improvements will serve only to
perpetuate the nonconforming use.’’ (Citation omitted;
internal quotation marks omitted.) Hyatt v. Zoning
Board of Appeals, supra, 163 Conn. 384. Given that long-
standing principle of Connecticut law, which expressly
is embodied in the regulations here, it is clear that
reasonable alternatives are available to the applicants
in the present case.34
In sum, the record does not substantiate the claim
that the applicants are ‘‘being completely or almost
completely deprived of the use of the value of that land.’’
Jaser v. Zoning Board of Appeals, supra, 43 Conn. App.
546 n.2. A denial of the requested variances, therefore,
does not amount to a practical confiscation, nor is it
tantamount to confiscation. Accordingly, confiscation
is not a proper basis for a finding of hardship in this case.
H
As we have noted, the defendants have not alleged
in this appeal, nor does the record substantiate, that
the application of the regulations destroys the value of
the property ‘‘for all reasonable uses.’’35 Rural Water
Co. v. Zoning Board of Appeals, supra, 287 Conn. 297.
Instead, they argue that a more reasonable use exists—
namely, an expanded and modernized residential struc-
ture. That contention, which was a primary point of
discussion during the public hearing, reflects a misun-
derstanding of the concept of hardship under Connecti-
cut law.
At the public hearing, the applicants maintained that
their requests did not amount to ‘‘an excessive utiliza-
tion of the variance . . . procedure.’’ Berdon,
described by the board’s chairman as ‘‘the most vocal
person on this application,’’ opined during the hearing
that applicants are ‘‘entitled to, under the law, to vari-
ances . . . that allows them to use their property to a
reasonable extent . . . . [T]he status of the property,
as it currently sits, is to some extent immaterial because
they’re entitled to get variances to a reasonable extent.
To use the property to a reasonable extent.’’ At that
point, Harrington stated, ‘‘I agree with that one hundred
percent.’’ When McGrath spoke in opposition to the
application, Berdon questioned whether he ‘‘would
agree that variances . . . are designed [and] entitle
. . . people reasonable use of their property.’’ McGrath
stated that he did not agree. Instead, McGrath submitted
that variances are designed to provide relief to appli-
cants that can demonstrate ‘‘a hardship . . . owing to
the characteristics of the land, that’s unique to their
property and not present in the general zoning district.’’
McGrath then argued that because a reasonable use
already existed on the property, the applicants could
not establish the requisite hardship, as the application
of the regulations to the property did not deny them
the reasonable benefit thereof.36 During the board’s
deliberations, Berdon was the only member who
addressed the issue of reasonable use, stating in rele-
vant part that ‘‘what was constructed in the past is not
a reasonable use of the property, and I think what he
has proposed is certainly within reason. I think that
they’re reasonable requests . . . .’’
The term ‘‘reasonable use’’ permeates our zoning
cases, often without context or elaboration.37 It origi-
nates in decisions addressing practical confiscation.
One illustrative case is Del Buono v. Board of Zoning
Appeals, 143 Conn. 673, 674, 124 A.2d 915 (1956), which
involved a property originally ‘‘zoned for industry’’ that
later was reclassified in a residential zone. In finding a
practical confiscation, the Supreme Court stated:
‘‘Because of the zonal classification in which the plain-
tiff’s property has been placed, he has, for all practical
ends, lost all right to its enjoyment, since it has been
stripped of every use to which it might reasonably be
put. . . . [T]he fact that the land is in a [residential]
zone precludes its use for any purpose for which it is
or can reasonably be made adaptable and compels the
owner to use it, if at all, for a purpose for which it is
utterly unfitted. A classification permanently restricting
the enjoyment of property to such an extent that it
cannot be utilized for any reasonable purpose goes
beyond valid regulation and constitutes a taking without
due process. . . . [Such a] classification would be
unreasonable and confiscatory.’’ (Citation omitted.) Id.,
677–78. Under those circumstances, the court held that
‘‘the plaintiff was entitled to have his land removed
from uselessness . . . .’’ Id., 678; see also Gregorio v.
Zoning Board of Appeals, 155 Conn. 422, 428, 232 A.2d
330 (1967) (‘‘[t]o grant the variance it was necessary for
the board to find [inter alia] that the strict application of
the provisions of the regulations would deprive the
applicant of the reasonable use of the land or build-
ings’’); Samp Mortar Lake Co. v. Town Plan & Zoning
Commission, 155 Conn. 310, 315, 231 A.2d 649 (1967)
(‘‘[t]here is little doubt that the plaintiff will be disadvan-
taged economically by the change of zone, but the
change does not amount to confiscation or deprive the
plaintiff of all reasonable use of his land’’).
In considering the issue of whether a ‘‘reasonable
use’’ exists, we repeat that ‘‘[v]ariances cannot be per-
sonal in nature, and may be based only upon property
conditions.’’ (Emphasis added.) Reid v. Zoning Board
of Appeals, supra, 235 Conn. 857. The preference of,
and convenience to, a particular property owner is irrel-
evant to the hardship question. See, e.g., Moon v. Zoning
Board of Appeals, supra, 291 Conn. 26 n.9 (personal
‘‘inconvenience’’ not ‘‘hardship necessary for the
approval of a variance’’); Garibaldi v. Zoning Board
of Appeals, supra, 163 Conn. 239–40 (‘‘[p]ersonal hard-
ships’’ such as a property owner’s ‘‘personal needs, pref-
erences and circumstances . . . do not provide
sufficient grounds for the granting of a variance’’). For
that reason, our Supreme Court has indicated that ‘‘[t]he
basic zoning principle that zoning regulations must
directly affect land, not the owners of land . . . limits
the ability of zoning boards to act for personal rather
than principled reasons’’ in exercising the variance
power. (Citation omitted; internal quotation marks
omitted.) Reid v. Zoning Board of Appeals, supra, 857–
58. The court likewise consistently has held that ‘‘disap-
pointment in [the] use of [the] property’’ does not
constitute legal hardship under our law. Moon v. Zoning
Board of Appeals, supra, 26 n.9; Berkman v. Board
of Appeals on Zoning, supra, 135 Conn. 399–400. It
therefore is hardly surprising that we can uncover no
authority in which our Supreme Court has found suffi-
cient hardship present where an applicant presently
enjoyed a reasonable use of the property under the
regulations, but nevertheless preferred an alternate one.
The defendants likewise have not furnished any such
authority. Contra Rural Water Co. v. Zoning Board of
Appeals, supra, 287 Conn. 296–97 (applicant ‘‘had not
met its burden to show unusual hardship’’ when it
‘‘failed to prove that it could not continue to use the
property as it had been used for many years’’).38
The defendants nevertheless posit that ‘‘the real test
for hardship is whether the condition of the property
is such that it would preclude the establishment of a
reasonable, permitted use. If it would, then the test for
hardship may be met regardless of what other use may
already exist on the parcel.’’39 For multiple reasons,
we disagree.
First and foremost is the fact that the defendants’
proposition is contrary to the precedent of this state’s
highest court indicating that the personal preference
of a property owner is irrelevant to the hardship deter-
mination; see Moon v. Zoning Board of Appeals, supra,
291 Conn. 26 n.9; Rural Water Co. v. Zoning Board of
Appeals, supra, 287 Conn. 296–97; Reid v. Zoning Board
of Appeals, supra, 235 Conn. 857; Garibaldi v. Zoning
Board of Appeals, supra, 163 Conn. 238–39; and disap-
pointment in the use of one’s property does not consti-
tute legal hardship. See Moon v. Zoning Board of
Appeals, supra, 26 n.9; Longo v. Board of Zoning
Appeals, 143 Conn. 395, 398, 122 A.2d 784 (1956); Berk-
man v. Board of Appeals on Zoning, supra, 135 Conn.
399–400. Furthermore, in the context of existing non-
conformities, our Supreme Court has held that ‘‘noncon-
forming uses should be abolished or reduced to
conformity as quickly as the fair interest of the parties
will permit—[i]n no case should they be allowed to
increase.’’ (Internal quotation marks omitted.)
Adolphson v. Zoning Board of Appeals, supra, 205
Conn. 710; see also Bauer v. Waste Management of
Connecticut, Inc., supra, 234 Conn. 243 (‘‘a noncon-
forming structure cannot be increased in size in viola-
tion of zoning ordinances, i.e., nonconforming additions
may not be made to the nonconforming structure’’). As
an intermediate appellate court, this panel is not at
liberty to discard, modify, reconsider, reevaluate or
overrule that precedent. See Hartford Steam Boiler
Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos.
Collective, 121 Conn. App. 31, 48–49, 994 A.2d 262, cert.
denied, 297 Conn. 918, 996 A.2d 277 (2010), and case
law cited therein.
Second, this court has rejected the precise claim
advanced by the defendants in this appeal. In Vine v.
Zoning Board of Appeals, 93 Conn. App. 1, 9 n.14, 887
A.2d 442 (2006), rev’d, 281 Conn. 553, 916 A.2d 5, aff’d
after remand, 102 Conn. App. 863, 927 A.2d 958 (2007),
this court concluded that it is not proper to grant a
variance ‘‘on the basis of the denial of reasonable use
of the property. To adopt such a standard would repre-
sent a significant change in our zoning jurisprudence,
namely, our Supreme Court’s repeated instructions that
variances are to be granted sparingly and only in excep-
tional situations.’’40 We concur with that assessment,
and note that if the well established hardship standard
is to be modified, such modification is the prerogative
of our Supreme Court.
Third, at its essence, the defendants’ proposition asks
this court to eviscerate the hardship standard under
Connecticut law. If the measure to be applied merely
is whether an applicant is proposing a use of the prop-
erty that is ‘‘within reason,’’ as was suggested by one
board member during the public hearing, then we arrive
at a place where ‘‘most setback variance applications
would have to be granted.’’ (Internal quotation marks
omitted.) Bloom v. Zoning Board of Appeals, supra,
233 Conn. 211 n.13. Such a legal standard for hardship
would effectively preclude any meaningful review of a
board’s decision to grant a variance, so long as the
decision included a finding that the proposed activity
was reasonable.
While the hardship standard in our law may appear
a formidable one; see, e.g., Aitken v. Zoning Board of
Appeals, 18 Conn. App. 195, 205, 557 A.2d 1265 (1989)
(noting ‘‘the stringent requirements for establishing
hardship’’); the alternative is far less attractive. The
‘‘reasonable use’’ standard proposed by the defendants
here would undermine the essential purpose of land
use regulation, which is ‘‘to adopt measures to regulate
property uses in conformance with a comprehensive
plan in a manner to advance . . . the public health,
safety, morals and general welfare.’’ (Citations omit-
ted.) Steiner, Inc. v. Town Plan & Zoning Commission,
supra, 149 Conn. 75–76. Under the relaxed standard
advanced by the defendants, ‘‘the whole fabric of town-
and city-wide zoning will 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 is completely thwarted.’’ (Internal
quotation marks omitted.) Pleasant View Farms Devel-
opment, Inc. v. Zoning Board of Appeals, supra, 218
Conn. 270–71; accord M. Zizka et al., State & Local
Government Land Use Liability (2013) § 15:1, p. 15-1
(‘‘[s]ince the issuance of a variance effectively causes
at least a minor tear in the fabric of the comprehensive
regulatory scheme, variances should not be granted
lightly’’). We therefore decline to apply that proposed
standard in the present case. Rather, we adhere to the
precedent of our Supreme Court.
During the public hearing, the board’s chairman sum-
marized his interpretation of the applicants’ request as
follows: ‘‘What I’m hearing [from the applicants] is, we
have a structure that is old, it’s falling apart . . . it’s
in need of major renovations . . . regardless of
whether it gets expanded or not. But since we’re going
to go through all that, we might as well, rather [than]
to maintain the status quo, we’re going to ask for per-
mission to improve it and enlarge it somewhat. That’s
what I’m hearing.’’ (Emphasis added.) That observation
aptly summarizes what this case is about. A variance
is not a tool of convenience, but one of necessity. They
are to be granted when the strict application of the
regulations results in unusual hardship peculiarly
affecting the property. They are not to be granted when
a reasonable use already is present, or plainly is possible
under the regulations, but an owner prefers otherwise.
See Rural Water Co. v. Zoning Board of Appeals, supra,
287 Conn. 296–97 (applicant ‘‘had not met its burden
to show unusual hardship’’ when it ‘‘failed to prove that
it could not continue to use the property as it had been
used for many years’’); Bauer v. Waste Management of
Connecticut, Inc., supra, 234 Conn. 256 (variance not
justified ‘‘when the landowner cannot take advantage
of a myriad of uses acceptable under the applicable
regulations because of choices the landowner itself has
made that limit its land use options’’); Green Falls Asso-
ciates, LLC v. Zoning Board of Appeals, supra, 138
Conn. App. 94 (because ‘‘the plaintiff can build a smaller
house and likely comply with all regulations’’ it was
not entitled to variance; inability to build ‘‘its desired
house’’ was merely disappointment); Jaser v. Zoning
Board of Appeals, supra, 43 Conn. App. 548 (‘‘hardship
was not shown because the plaintiffs admitted that a
house, even though not the type that they desired, could
have been built on the lot while conforming to the
setback requirements’’).
In the present case, the regulations protect the appli-
cants’ vested right to continue the residential use of
their existing nonconforming structure. See Branford
Zoning Regs., §§ 8.1.A.2 and 8.1.B. The applicants did
not elect to surrender the ‘‘advantages’’ of that noncon-
formity; Kleinsmith v. Planning & Zoning Commis-
sion, supra, 157 Conn. 314; in seeking a more spacious
and modern residence. Instead, they want to continue
and expand the nonconformity, in contravention of the
express intent of the regulations. Branford Zoning
Regs., § 8.1.A.3. The record, however, furnishes no basis
to conclude that a legal hardship exists on their property
justifying the variances requested in the present case.
I
In light of the foregoing, we need not discuss the
small size of the applicants’ parcel in much detail. This
is not a case where, absent the requested variances,
the application of the regulations precludes the use of
the property for a permitted residential purpose. Contra
Lessner v. Zoning Board of Appeals, supra, 151 Conn.
168–70; Archambault v. Wadlow, supra, 25 Conn. App.
382–83. This also is not a case where the ‘‘variance
application was submitted for the board’s consideration
as if the lot were vacant’’ because ‘‘[t]he existing [non-
conforming residential structure] is to be razed and
replaced with a new structure . . . .’’41 Stancuna v.
Zoning Board of Appeals, 66 Conn. App. 565, 573, 785
A.2d 601 (2001). Although the defendants have offered
a hypothetical comparison of the applicants’ parcel in
a vacant state to the property at issue in certain cases,
such as Chevron Oil Co. v. Zoning Board of Appeals,
supra, 170 Conn. 146, it remains that the property is
not vacant. We therefore decline to resort to speculation
and conjecture, which ‘‘have no place in appellate
review.’’ (Internal quotation marks omitted.) New Hart-
ford v. Connecticut Resources Recovery Authority, 291
Conn. 502, 510, 970 A.2d 578 (2009).
IV
The defendants also claim that the court improperly
concluded that the record failed to disclose any hard-
ship that was unusual or unique to the property. We
disagree.
In the seminal case of Ward v. Zoning Board of
Appeals, supra, 153 Conn. 143, our Supreme Court noted
that the requirement that a claimed hardship must be
unusual and unique to the property ‘‘is a fundamental
one in zoning law . . . .’’ As it explained, ‘‘[o]ne seeking
a variance must show that his property is peculiarly
disadvantaged by the operation of the zoning ordinance
and not merely that a general hardship, equally applica-
ble to other properties in the neighborhood, results
from a strict enforcement of the code.’’ Id. The court
emphasized that ‘‘[t]he granting of a variance must be
reserved to those situations involving exceptional or
unusual circumstances’’; id., 145; and then detailed pre-
cisely why the decision to grant a variance in that case
was improper: ‘‘In upholding the board’s action, the
court may seem to have condoned the board’s use of
its variance power to alter the zoning classification of
an entire neighborhood. Such a practice is incompatible
with established zoning procedures and ignores the
rule, so often emphasized by this court, that a variance
may not be granted unless the applicant can show that
the zoning ordinance works a distinct hardship on his
particular piece of property and not merely a general
hardship on the neighborhood at large.’’ Id., 146.
Accordingly, because ‘‘[t]he record . . . fails to dem-
onstrate that a strict application of the ordinance cre-
ated an unreasonable hardship or had any adverse effect
on the property of the [applicants] in comparison with
other properties in the same general area,’’ the court
sustained the appeal. Id., 147.
Under Connecticut law, ‘‘a unique hardship, imposed
by conditions outside the property owner’s control, is
a condition precedent to the issuance of a zoning vari-
ance.’’ (Emphasis in original.) Michler v. Planning &
Zoning Board of Appeals, supra, 123 Conn. App. 185;
see also Wnuk v. Zoning Board of Appeals, 225 Conn.
691, 699 n.11, 626 A.2d 698 (1993) (‘‘[t]he hardship would
not be unique to the owner’s property . . . and there-
fore could not support a grant of variance’’); Bloom v.
Zoning Board of Appeals, supra, 233 Conn. 207–208
(proof of unusual hardship ‘‘is absolutely necessary’’ to
obtain variance); B. I. B. Associates v. Zoning Board
of Appeals, 163 Conn. 615, 617, 316 A.2d 414 (1972)
(‘‘the claimed hardship is not one unique to the property
of the applicants’’); 9 R. Fuller, supra, § 9.3, p. 242 (‘‘[a]
person is not entitled to a variance where the hardship
claimed is not different in kind from that generally
affecting property in the same zoning district, namely
the hardship is not unique or unusual’’). An applicant
therefore bears the burden of establishing, on the
record of the proceeding before the zoning board of
appeals, that the claimed hardship is peculiar to its
property and not one generally present in the zoning
district. See Komondy v. Zoning Board of Appeals, 127
Conn. App. 669, 678, 16 A.3d 741 (2011) (‘‘[T]he burden
rests with the applicant [seeking a variance] to demon-
strate its entitlement to the requested relief. . . . It
thus is incumbent on an applicant to provide an eviden-
tiary basis, whether through testimony, documentation
or a combination thereof, in support of its plea for
relief.’’ [Citations omitted.]).
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. See Vine v. Zoning
Board of Appeals, supra, 281 Conn. 559–60. As our
Supreme Court stated in a case where a zoning board
of appeals, like the present case, did not make any
finding of unique hardship: ‘‘[T]he board made no spe-
cific finding that exceptional difficulty or unnecessary
hardship would result to the owner of the property from
the strict enforcement of the regulations. It described
no special circumstances in detail which do not apply
to other properties in the area and which constitute a
hardship to the applicants . . . . Moreover, such find-
ings cannot be implied from the minutes or from other
portions of the record before us. . . . [T]he variance,
therefore, was not properly granted.’’ Gross v. Plan-
ning & Zoning Board of Appeals, 171 Conn. 326, 328,
370 A.2d 944 (1976); see also Francini v. Zoning Board
of Appeals, supra, 228 Conn. 791 (‘‘there were many
other nonconforming lots in the area that were subject
to the same zoning restrictions as the plaintiff’s prop-
erty’’); Grillo v. Zoning Board of Appeals, supra, 206
Conn. 373 (because ‘‘[t]he record does not indicate how
many other property owners in the zone also had’’ same
hardship present on their property, ‘‘[t]here is no basis
. . . for assuming that [the applicant’s] situation was
essentially different from that of many others in the
area’’); Allen v. Zoning Board of Appeals, supra, 155
Conn. 510 (stating that ‘‘there is nothing which signifi-
cantly distinguishes the [applicant’s] property from
other property located on either [the street] or on the
cul-de-sac [on which the property is located]. Unless
such dissimilarity is shown, the board may not properly
vary the application of the regulations.’’); Kelly v. Zon-
ing Board of Appeals, supra, 21 Conn. App. 599 (‘‘[t]here
was no evidence that the application of the existing
zoning regulation affected this particular parcel in a
manner distinct from neighboring properties’’); Green
v. Zoning Board of Appeals, 4 Conn. App. 500, 504, 495
A.2d 290 (1985) (same); 2 P. Salkin, American Law of
Zoning (5th Ed. 2011) § 13:16, pp. 13-46 and 13-47
(‘‘[w]here unnecessary hardship is required for a vari-
ance, the applicant must also show that the alleged
hardship relating to the property is unique’’).42
A review of the record in the present case reveals
no legally cognizable hardship that does ‘‘not apply to
other properties in the area . . . .’’ Gross v. Planning &
Zoning Board of Appeals, supra, 171 Conn. 328. The
size of the applicants’ parcel arguably presents their
strongest case for hardship, as the buildable area, con-
sistent with the setback and lot coverage requirements
of the R-2 district, is quite small. The application of the
regulations to their property in that regard is not unique.
As the Superior Court correctly noted in sustaining the
administrative appeal, ‘‘[a] careful review of a map of
the neighborhood contained in the record confirms
[that] [m]any properties . . . are as small as, or even
smaller, than the [applicants’] property.’’ Our review of
the zoning map43 likewise confirms that several proper-
ties in the R-2 district are of a comparable size and
suffer similar limitations in terms of buildable area. To
paraphrase Celentano, Inc. v. Board of Zoning Appeals,
149 Conn. 671, 674, 184 A.2d 49 (1962), ‘‘[t]he hardship
claimed is in no sense peculiar’’ to the applicants’
property.
As specifically described in the regulations, the R-2
district consists ‘‘of residential areas that have been
developed over a period of years primarily with single-
family houses for seasonal as well as year-round occu-
pancy on relatively small lots.’’ Branford Zoning Regs.,
§ 3.2.B.1. In Chapman v. Zoning Board of Appeals, 23
Conn. App. 441, 442, 581 A.2d 745 (1990), we considered
a variance application for a ‘‘property . . . located on
the west shore of Rogers Lake in Old Lyme, an area
consisting of small parcels, a number of which contain
seasonally used cottages.’’ The applicant in Chapman
‘‘sought a variance from zoning regulations governing
minimum lot area, side yard area, and rear yard area
in order to construct a 1380 square foot house,’’ claim-
ing, inter alia, that ‘‘the enforcement of the zoning regu-
lations caused the plaintiff unusual hardship entitling
him to a variance . . . .’’ Id. The board unanimously
denied that request, concluding that the applicant
‘‘failed to establish that a unique hardship existed
. . . .’’ Id. On appeal, we affirmed the propriety of that
determination, stating that ‘‘[a] hardship must be differ-
ent in kind from that generally affecting properties in
the same zone. . . . Here, other lots in the same zoning
district as the [applicant’s] also were nonconforming.
Therefore, the record supports the board’s conclusion
that the [applicant] did not suffer any unusual or unique
hardship.’’44 (Citations omitted.) Id., 443. The Superior
Court’s determination that the claimed hardship in the
present case is not unique is consistent with that
precedent.
In extolling the ‘‘salutary result’’ of granting variances
in such ‘‘older neighborhoods’’—namely, the prevention
of ‘‘dilapidation and blight’’—the defendants encourage
us to take judicial notice of ‘‘the widespread existence
of such small-lot, waterfront communities in this
state.’’45 In so doing, they fail to appreciate the ‘‘funda-
mental distinction between the legislative function of
the zoning commission, and the administrative and
quasi-judicial functions of the zoning board of appeals
. . . .’’ T. Tondro, supra, p. 129. As we recently
observed, ‘‘[t]he variance power exists to permit what
is prohibited in a particular zone. . . . In simple terms,
the zoning commission acts as a land use legislature in
enacting zoning requirements. . . . By contrast, the
zoning board of appeals is the court of equity of the
zoning process . . . . [Z]oning commissions and zon-
ing boards of appeal are, by design and by statute,
independent branches of a municipality’s land use
department.’’ (Citations omitted; footnotes omitted;
internal quotation marks omitted.) MacKenzie v. Plan-
ning & Zoning Commission, 146 Conn. App. 406, 429–
30, 77 A.3d 904 (2013).
To the extent that the defendants argue that the vari-
ance power properly may be wielded to foster such
‘‘salutary’’ results in a given district, they are mistaken.
‘‘When a zoning board of appeals grants a variance
on grounds which apply equally to a large number of
properties in a given area, it in effect establishes a new
zoning regulation applicable to that area. . . . Argu-
ments concerning the general unsuitability of a neigh-
borhood to the zoning classification in which it has
been placed are properly addressed to the promulgators
of the ordinance and not to those who have been
empowered to grant variances. . . . The granting of a
variance must be reserved to those situations involving
exceptional or unusual circumstances.’’ (Citation omit-
ted; footnote omitted.) Ward v. Zoning Board of
Appeals, supra, 153 Conn. 144–45. ‘‘[T]he purpose of
variances . . . is not to work major changes in a zoning
plan, or to correct errors of judgment in zoning.’’ (Foot-
notes omitted.) 101A C.J.S., supra, § 301, p. 387. The
variance is an instrument of relief, not rezoning. As our
Supreme Court has held, ‘‘[a variance] should not be
used to accomplish what is in effect a substantial
change in the uses permitted in a residence zone. That
is a matter for the consideration of the zoning commis-
sion. . . . The power to repeal, modify or amend a
zoning ordinance rests in the municipal body which
had the power to adopt the ordinance, and not in the
zoning board of appeals.’’ (Citation omitted; internal
quotation marks omitted.) Kaeser v. Zoning Board of
Appeals, supra, 218 Conn. 446; see also 3 E. Yokley,
Zoning Law and Practice (4th Ed. MacGregor 2010)
§ 19-2, p. 19-16 (‘‘[b]oards are created to help make
zoning ordinances workable, not to sit as judicial bodies
to determine the propriety of their adoption’’); 101A
C.J.S., supra, § 305, p. 396 (‘‘[u]nder the guise of a vari-
ance, the zoning board may not waive, suspend, disre-
gard, or ignore the zoning regulations, depart from
them, set them aside, or nullify them’’ [footnote omit-
ted]). If the requirements of the R-2 residential district
are particularly oppressive to the many undersized
properties therein, the proper forum for redress is the
town zoning commission.
Furthermore, as exemplified by Harrington’s obser-
vation during the public hearing, this case is not about
repair, but rather the expansion of the nonconformity
of an existing structure.46 To obtain a variance, the
applicants bore the burden of establishing a legally cog-
nizable hardship that peculiarly affected their property,
rather than numerous properties in the R-2 district. The
small buildable area on their parcel that results from
the application of the regulations at issue is an affliction
shared by several other properties in that district. It,
therefore, is not a unique hardship warranting exercise
of the variance power.
V
We note that a narrow exception exists to the tradi-
tional test for obtaining a variance, on which a board
properly may grant a variance despite an applicant’s
failure to establish the requisite hardship. In Adolphson
v. Zoning Board of Appeals, supra, 205 Conn. 705, the
applicants owned property located in an industrial zone,
on which existed an aluminum casting foundry, which
was a nonconforming use. The applicants sought cer-
tain variances in order to use the property as an automo-
bile repair shop, despite the fact that such use also was
prohibited in that industrial zone. Id., 706. The Zoning
Board of Appeals nonetheless granted the requested
variances, and the Superior Court upheld that decision
on appeal, concluding that ‘‘the proposed use for the
subject property operating under current regulations as
to air pollution and the like would be far less offensive to
the surrounding residents than a foundry.’’ (Internal
quotation marks omitted.) Id.
A divided Supreme Court affirmed that determina-
tion. The majority opinion emphasized that the appli-
cants were seeking ‘‘to change an established
nonconforming use to a less offensive nonconforming
use.’’ Id., 712. In that regard, the majority distinguished
cases in which applicants sought to expand a noncon-
formity; id., 708; recognizing the well established princi-
ple of Connecticut law that ‘‘nonconforming uses
should be abolished or reduced to conformity as quickly
as the fair interest of the parties will permit—[i]n no
case should they be allowed to increase.’’ (Emphasis
added; internal quotation marks omitted.) Id., 710. The
court continued: ‘‘The accepted method of accomplish-
ing the ultimate object is that, while the alien use is
permitted to continue until some change is made or
contemplated, thereupon, so far as is expedient, advan-
tage is taken of this fact to compel a lessening or sup-
pression of the nonconformity.’’ (Internal quotation
marks omitted.) Id. In light of the ‘‘unchallenged find-
ing’’ that the proposed use ‘‘ ‘would be far less offen-
sive’ ’’ than the existing nonconforming use, the court
held that the Zoning Board of Appeals properly granted
the requested variances.47 Id.
This court applied that exception three years later
in Stancuna v. Zoning Board of Appeals, supra, 66
Conn. App. 565. The property at issue contained a non-
conforming use—a single-family residence in a com-
mercial zone. Id., 571. The applicant sought a variance
of certain side yard setback requirements to permit the
construction of a new commercial building, which the
Zoning Board of Appeals granted. Id., 567. We affirmed
that decision, citing to Adolphson and stating, ‘‘[t]hat a
variance will eliminate a nonconforming use constitutes
independent grounds for sustaining the granting of a
variance.’’ Id., 572. Because ‘‘the variance eliminates
the nonconforming residential use of the property and
allows a commercial use in a commercial zone,’’ this
court concluded that the variance properly was
granted.48 Id.
The limited exception articulated in Adolphson most
recently was applied by our Supreme Court in Vine v.
Zoning Board of Appeals, supra, 281 Conn. 553. In that
case, the court noted that ‘‘[i]n cases in which an
extreme hardship has not been established, the reduc-
tion of a nonconforming use to a less offensive prohib-
ited use may constitute an independent ground for
granting a variance.’’ Id., 562. The court ultimately con-
cluded that the zoning board’s ‘‘decision to grant the
variance was proper because it reduced the preexisting
nonconforming use of the property to a less offensive
use.’’ Id., 563; see also Morikawa v. Zoning Board of
Appeals, supra, 126 Conn. App. 413 (recognizing ‘‘that
case law has carved out a narrow exception’’ to unusual
hardship requirement); Hescock v. Zoning Board of
Appeals, 112 Conn. App. 239, 242, 260–61, 962 A.2d 177
(2009) (in case where applicants ‘‘wanted to raze the
[existing nonconforming residential structure] that
occupied their property and to construct a new one,’’
Superior Court ‘‘properly concluded that the
[Adolphson exception] was fully applicable to the pre-
sent circumstances’’ because ‘‘there was substantial evi-
dence that the new construction would reduce and
eliminate existing nonconformities’’).
The present case does not qualify under the
Adolphson exception to the hardship requirement. The
applicants here proposed increasing the existing non-
conformity. Among their requests was a variance from
the regulation prohibiting such expansion. The pro-
posed expansion plainly would not result in lesser non-
conformity on the applicants’ property.
VI
Even if the defendants qualified under the Adolphson
exception or otherwise demonstrated a peculiar hard-
ship, they still could not prevail, as applicants seeking
a variance also must demonstrate that the requested
relief will not ‘‘affect substantially the comprehensive
zoning plan . . . .’’ (Internal quotation marks omitted.)
Moon v. Zoning Board of Appeals, supra, 291 Conn. 24.
Put differently, ‘‘a variance should not be granted unless
it is in harmony with the general purpose and intent of
the zoning ordinance.’’ Krejpcio v. Zoning Board of
Appeals, 152 Conn. 657, 662, 211 A.2d 687 (1965); see
also 3 E. Yokley, Zoning Law and Practice (4th Ed.
MacGregor 2010) § 20-1, pp. 20-1 and 20-2 (a variance
‘‘waives the strict letter of the zoning ordinance while
at the same time it preserves, or should preserve, the
spirit and purpose of the ordinance). Following the
commencement of this appeal by the defendants, the
plaintiff filed a timely alternate ground of affirmance
pursuant to Practice Book § 63-4 (a) (1), claiming that
the applicants failed to demonstrate that the requested
variances would not substantively impact the town’s
comprehensive plan.
‘‘The comprehensive plan is found in the zoning regu-
lations themselves.’’ Pike v. Zoning Board of Appeals,
31 Conn. App. 270, 277, 624 A.2d 909 (1993). In Raffaele
v. Planning & Zoning Board of Appeals, supra, 157
Conn. 454, our Supreme Court addressed whether the
proposed expansion of a nonconformity was in har-
mony with the comprehensive zoning plan. The court
noted that ‘‘[a]n essential element in the board’s consid-
eration of the appeal would be the settled proposition
that zoning regulations in general seek the elimination
rather than the enlargement of nonconforming uses.’’
Id., 458. In reviewing the regulations at issue, the court
stated that ‘‘[n]owhere in the regulations is there any
indication that an extension of a nonconforming use is
to be permitted. . . . It is the intent of building zone
regulations generally that nonconforming uses should
not be allowed to increase, and an extension of the
space allotted to a nonconforming use is a proscribed
extension of that nonconforming use and is inconsistent
with the policy and comprehensive plan of the regula-
tions.’’ (Citation omitted.) Id., 462; accord Bauer v.
Waste Management of Connecticut, Inc., supra, 234
Conn. 243 (‘‘a nonconforming structure cannot be
increased in size in violation of zoning ordinances, i.e.,
nonconforming additions may not be made to the non-
conforming structure’’); 4 E. Yokley, Zoning Law and
Practice (4th Ed. MacGregor 2003) § 22-7, p. 22-38
(‘‘[n]onconforming uses . . . are not to be enlarged in
derogation of the general zoning scheme’’).
The court likewise set aside the granting of a variance
in Bradley v. Zoning Board of Appeals, 165 Conn. 389,
334 A.2d 914 (1973), due to a lack of harmony with the
comprehensive plan. The court stated in relevant part
that ‘‘[t]o allow zoning boards of appeal to grant vari-
ances authorizing uses nowhere permitted in the zoning
regulations of the town would fly in the face of that
clearly expressed policy. To do so would, in effect, give
zoning boards the capacity to shape the development
of the community with little or no regard for the commu-
nity plan as expressed in the general zoning regulations
. . . . [W]e fail to see how the authorization of a use
not permitted in the zoning regulations possibly could
be in harmony with their intent and purpose.’’ (Citation
omitted.) Id., 393. Cognizant of the ‘‘fundamental dis-
tinction between the legislative function of the zoning
commission, and the administrative and quasi-judicial
functions of the zoning board of appeals’’; T. Tondro,
supra, p. 129; the court explained that ‘‘[b]y authorizing
a use not permitted within the zoning regulations the
board, in effect, amended those regulations. . . . [T]he
granting of the variance authorizing a use nowhere per-
mitted in the zoning regulations was not ‘in harmony’
with those regulations and clearly amounted to an
amendment thereto. Such an action endangers the
orderly process of zoning, usurps the legislative func-
tion of the zoning and planning commission, and is
thus illegal and an abuse of the board’s discretion.’’
(Citations omitted.) Bradley v. Zoning Board of
Appeals, supra, 395–96.
That logic applies with equal force here. The present
case involves a request to expand the nonconformity
of an existing structure. The regulations expressly artic-
ulate a policy precluding the expansion thereof. Section
8.1.A.3 provides in relevant part that ‘‘[i]t is . . . the
intent of this [s]ection that nonconformities shall not
be enlarged, expanded or extended if such a change
increases the nonconformity, nor shall they be used as
grounds for adding other structures or uses prohibited
elsewhere in the same district.’’ Section 8.1.B requires
in relevant part that ‘‘[a]ny changes to the nonconform-
ing use or structure shall be in compliance with these
[r]egulations.’’ Section 8.1.C.1 specifies that ‘‘[n]o non-
conforming use of land shall be enlarged, extended or
altered, and no structure or part thereof devoted to a
nonconforming use shall be enlarged, extended, recon-
structed or structurally altered, except where the result
of such changes is to reduce or eliminate the nonconfor-
mity.’’ Section 8.1.C.2 provides in relevant part that
‘‘[n]o nonconforming use of a structure shall be
extended to occupy land outside such structure . . . .’’
Section 8.1.C.3 similarly provides that ‘‘[n]o building or
other structure that does not conform to the require-
ments of these regulations regarding the building height
limit, area and width of lot, percentage of lot coverage,
and required yards and parking facilities shall be
enlarged unless such enlarged portion conforms to the
regulations applying to the district in which it is
located.’’ Section 8.1.D.5 provides in relevant part that
‘‘[n]o building, structure or use in a nonconforming
location may be . . . expanded into a different non-
conforming location.’’ As was the case in Raffaele,
nowhere in the regulations is there any indication that
an expansion of an existing nonconforming structure
that increases the nonconformity is to be permitted.49
The granting of multiple variances to permit such
expansion thus flies in the face of the clearly expressed
policy of the regulations. Accordingly, we conclude that
the record does not substantiate the necessary finding
that the variances granted are in harmony with the
comprehensive plan.
VII
We have scoured the entire record in search of a
proper basis for the board’s decision to grant the
requested variances to expand the existing noncon-
forming structure. The record does not substantiate
a finding that (1) a legally cognizable hardship exists
peculiarly affecting the applicants’ property, or (2) the
proposed expansion would not affect substantially the
comprehensive zoning plan. The record also indicates
that the Adolphson exception does not apply. We there-
fore conclude that the Superior Court properly sus-
tained the plaintiff’s administrative appeal.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘In hearing the plaintiff’s appeal from the decision of the zoning board
of appeals, the Superior Court acts as an appellate body.’’ Megin v. Zoning
Board of Appeals, 106 Conn. App. 602, 603 n.1, 942 A.2d 511, cert. denied,
289 Conn. 901, 957 A.2d 871 (2008).
2
Unless otherwise indicated, all references to the regulations in this opin-
ion pertain to the 2011 revision thereof.
3
The variance application submitted to the board indicates that the
existing structure intrudes upon the fifteen foot front setback by approxi-
mately thirteen and one-half feet, the twenty foot rear setback by approxi-
mately thirteen and one-half feet, the ten foot westerly side setback by
approximately eight and one-half feet, and the ten foot easterly side setback
by approximately two and one-half feet.
4
The variance application submitted to the board indicates that the
existing structure exceeds the .50 maximum floor area by .22 and exceeds
the .25 maximum lot coverage by .24. We note that the regulations deliber-
ately utilize decimals rather than percentages. As Jennifer Fisher from LWF
Land Surveying explained during the public hearing on the applicants’
request for variances, ‘‘[t]he way the new regulations were written, under the
revised regulations they changed it to [decimals so] people can multiply that.’’
5
General Statutes § 8-2 (a) provides in relevant part that municipal zoning
‘‘regulations shall not prohibit the continuance of any nonconforming use,
building or structure existing at the time of the adoption of such regula-
tions. . . .’’
General Statutes (Rev. to 2011) § 8-13a (a) provides: ‘‘When a building is
so situated on a lot that it violates a zoning regulation of a municipality
which prescribes the location of such a building in relation to the boundaries
of the lot or when a building is situated on a lot that violates a zoning
regulation of a municipality which prescribes the minimum area of the lot,
and when such building has been so situated for three years without the
institution of an action to enforce such regulation, such building shall be
deemed a nonconforming building in relation to such boundaries or to the
area of such lot, as the case may be.’’
General Statutes § 8-26a, titled ‘‘Effect of change in subdivision or zoning
regulations or boundaries of districts after approval of plan,’’ similarly pro-
vides in relevant part that ‘‘[t]his subsection shall not alter or affect a
nonconforming use or structure as provided in section 8-2.’’
6
The record indicates that the applicants previously requested, and the
board granted, similar variances for the property in 2009. As required by
General Statutes § 8-3d, the applicants then filed those variances on the
town land records. Verrillo v. Zoning Board of Appeals, Superior Court,
judicial district of New Haven, Docket No. CV-09-4036920-S (June 21, 2010)
(50 Conn. L. Rptr. 161). The plaintiff thereafter commenced an appeal of
that decision in the Superior Court. While that appeal was pending, the
applicants signed a document titled ‘‘Affidavit of Waiver and Relinquishment
of Variances.’’ After reciting the aforementioned procedural history, the
document stated that ‘‘[i]n lieu of defending the Appeal, we hereby (a)
relinquish the variances granted by the Board on March 26, 2009; (b) waive
all rights that we or any of our successors or assigns may have otherwise
had under such variances as owners of the property; and (c) authorize the
Board to treat said variances as null and void. . . . We are executing this
instrument willingly and with full knowledge of the significance of our
waiver and relinquishment of the March 26 variances. We do not, however,
waive the right to seek the same or similar variances from the Board in the
future.’’ Id. The applicants filed that affidavit on the town land records. Id.
A copy of that signed affidavit was submitted as evidence before the board
at its March 20, 2012 public hearing and, thus, is in the record before us.
The applicants then moved to dismiss the plaintiff’s administrative appeal
in the Superior Court, claiming that the affidavit rendered moot the plaintiff’s
appeal. The plaintiff opposed that motion, arguing that variances run with
the land and are not personal in nature. See Garibaldi v. Zoning Board of
Appeals, 163 Conn. 235, 239, 303 A.2d 743 (1972) (‘‘[A] variance is not a
personal exemption from the enforcement of zoning regulations. It is a legal
status granted to a certain parcel of realty without regard to ownership.’’).
The plaintiff also argued that a dismissal of the appeal, in essence, would
deprive him of his right to fundamental fairness, as the board would be
bound to approve a future variance request for the property in light of its
earlier decision on the matter. See, e.g., Cumberland Farms, Inc. v. Groton,
247 Conn. 196, 215, 719 A.2d 465 (1998) (‘‘[t]he established law of this state
. . . prohibits a zoning board of appeals from reversing its previous decision
unless the facts and circumstances which actuated the decision are shown
to have so changed as to vitiate or materially affect the reason which
produced and supported it and no vested rights have intervened’’ [internal
quotation marks omitted]).
Despite those objections, the court granted the applicants’ motion to
dismiss, reasoning that ‘‘[i]f the property owner must apply for the variance
and the grant thereof is only effective upon its being recorded on the land
records, why cannot the owner, on the very same land records, relinquish
the variance and declare it null and void?’’ Verrillo v. Zoning Board of
Appeals, supra, 50 Conn. L. Rptr. 163. The court then stated that ‘‘[o]ut of
an excess of caution the court will grant the motion to dismiss but will also
vacate the board’s action in granting the variances—this only makes explicit
the defendants’ direction to the board to nullify its previous actions regarding
the granting of the variances. Any future application for the same or similar
variances must therefore be reviewed on a de novo basis by the board, and
any future granting of such an application that relies on the action taken
by the board in granting the variances that are the subject of this appeal
would therefore be a grounds for reversal of any favorable action on such
new application. The court, of course, is not vacating the action of the board
based on an examination of the merits of the plaintiffs’ appeal. The court
views its action as a compromise between ensuring fundamental fairness
to the plaintiffs’ right to fully contest the merits of any future granting of
an application for the same or similar variances. It also seeks to avoid what
it believes would be the unnecessary burden and expense that would be
imposed on the defendants by having to further contest this appeal when
they have declared they have no present intention to act on the variances.’’
Id., 164.
We are perplexed by that decision in multiple respects. Nonetheless, it
remains that no appeal was taken from that judgment. We therefore do not
consider the propriety of that decision in resolving the present appeal. At
the same time, we do not necessarily endorse its holding.
At the outset of the public hearing in the present case, counsel for the
applicants reviewed the history of the 2009 variances and submitted to the
board that ‘‘your prior decision on [that matter] should not be considered
by your board with regard to this application . . . .’’ The public hearing
then proceeded on the merits of the new application without further mention
of the 2009 variances. In this appeal, none of the parties raised any issues
with respect to the variances granted by the board in 2009.
7
Section 8.1.C.1 of the Branford Zoning Regulations provides: ‘‘No noncon-
forming use of land shall be enlarged, extended or altered, and no structure
or part thereof devoted to a nonconforming use shall be enlarged, extended,
reconstructed or structurally altered, except where the result of such
changes is to reduce or eliminate the nonconformity.’’
Section 8.1.C.3 of the Branford Zoning Regulations provides: ‘‘No building
or other structure that does not conform to the requirements of these
regulations regarding the building height limit, area and width of lot, percent-
age of lot coverage, and required yards and parking facilities shall be enlarged
unless such enlarged portion conforms to the regulations applying to the
district in which it is located.’’
8
The record indicates that the existing structure consists of a first floor, a
second floor and a crawl space underneath the structure. The plan proposed
raising the structure so that a garage, mechanical room and storage area
could be located on the first level of the structure. The proposed second
level would be similar to the first floor of the existing structure and contain
the kitchen, dining, and living rooms, as well as a bathroom, enclosed front
porch and staircase to the third floor. The proposed third level largely would
resemble the second floor of the existing structure, albeit with an expanded
master bedroom and the addition of a second bathroom on that floor. During
the hearing, Karpuska stated that the existing second floor would become
the third floor of the structure under the applicants’ proposal.
9
The court found that the plaintiff was statutorily aggrieved as the owner
of abutting property. The defendants do not quarrel with that conclusion
on appeal.
10
‘‘Scope of review and standard of review are often—albeit erroneously—
used interchangeably. The two terms carry distinct meanings and should
not be substituted for one another. Scope of review refers to the confines
within which an appellate court must conduct its examination. . . . In other
words, it refers to the matters (or what) the appellate court is permitted to
examine. In contrast, standard of review refers to the manner in which (or
how) the examination is conducted.’’ (Internal quotation marks omitted.)
Brunswick v. Statewide Grievance Committee, 103 Conn. App. 601, 606–607
n.7, 931 A.2d 319, cert. denied, 284 Conn. 929, 934 A.2d 244 (2007).
11
In Gibbons v. Historic District Commission, 285 Conn. 755, 771, 941
A.2d 917 (2008), our Supreme Court expressly overruled Stankiewicz v.
Zoning Board of Appeals, 211 Conn. 76, 556 A.2d 1024 (1989), aff’g 15 Conn.
App. 729, 546 A.2d 919 (1988), to the extent that it conflicted with the
‘‘traditional rule that when a reason is given, [a reviewing court] should not
search beyond it. . . . [T]his is the appropriate scope of review for munici-
pal land use appeals . . . . When an administrative agency specifically
states its reasons, the court should go no further because it could reasonably
be inferred that this was the extent of its findings. To go beyond those
stated reasons invades the factfinding mission of the agency by allowing
the court to cull out reasons that the agency may not have found to be
credible or proven.’’ (Citations omitted; internal quotation marks omitted.)
12
One commentator has observed that ‘‘[a] fundamental responsibility of
the courts vis-a-vis administrative agencies is to prevent them from roaming
at will over the adjudicative landscape, without going as far as to substitute
the court’s judgment for that of the agency. [When] the board does not state
why it made a decision, it will be that much more difficult for the court to
perform its function. . . . [R]equiring a [zoning agency] to state its reasons
for the decision so that a court will not have to search the record for an
adequate reason, will prevent a judicial usurpation of the administrative
authority.’’ (Footnotes omitted; internal quotation marks omitted.) T. Ton-
dro, Connecticut Land Use Regulation (2d Ed. 1992) pp. 482–83. That com-
mentary highlights the inherent tension that arises in such instances wherein
a reviewing court must scour the record in search of a valid basis for the
zoning agency’s action. As it notes, ‘‘[it] is nearly boilerplate Connecticut
land use law that the court cannot undertake a review de novo of a [zoning
agency’s] decision, a position somewhat out of place when at the same time
the court will re-examine the evidence before [the agency] to search for
adequate support for its decision.’’ (Emphasis omitted.) Id., 483.
13
The regulations similarly provide that ‘‘[i]n accordance with [§] 8-6, the
[b]oard shall have the power and duty to determine and vary the application
of the [r]egulations solely with respect to a parcel of land where, owing to
conditions especially affecting such parcel but not affecting generally the
district in which it is situated, a literal enforcement of these [r]egulations
would result in exceptional difficulty or unusual hardship.’’ Branford Zoning
Regs., § 9.13.A.
14
General Statutes § 8-6 (b) provides: ‘‘Any variance granted by a zoning
board of appeals shall run with the land and shall not be personal in nature
to the person who applied for and received the variance. A variance shall
not be extinguished solely because of the transfer of title to the property
or the invalidity of any condition attached to the variance that would affect
the transfer of the property from the person who initially applied for and
received the variance.’’
15
As then Chief Judge Benjamin N. Cardozo of the New York Court of
Appeals once observed, ‘‘[t]he power of the [b]oard of [a]ppeals is confined
to variations in special cases to meet some unusual emergency, some unnec-
essary hardship. . . . There has been confided to the [b]oard a delicate
jurisdiction and one easily abused. Upon a showing of unnecessary hardship,
general rules are suspended for the benefit of individual owners, and special
privileges established.’’ People ex rel. Fordham Manor Reformed Church v.
Walsh, 244 N.Y. 280, 289–90, 155 N.E. 575 (1927).
16
General Statutes (Rev. to 2011) § 8-13a (a) provides: ‘‘When a building
is so situated on a lot that it violates a zoning regulation of a municipality
which prescribes the location of such a building in relation to the boundaries
of the lot or when a building is situated on a lot that violates a zoning
regulation of a municipality which prescribes the minimum area of the lot,
and when such building has been so situated for three years without the
institution of an action to enforce such regulation, such building shall be
deemed a nonconforming building in relation to such boundaries or to the
area of such lot, as the case may be.’’
17
In their principal appellate brief, the defendants argue that the plaintiff’s
attorney ‘‘made an important concession’’ during the public hearing when
he indicated his agreement with the proposition that if the existing structure
on the property ‘‘was leveled in a storm,’’ the applicants ‘‘would have the
right . . . to build at least the same structure that was there before.’’ That
alleged ‘‘concession’’ appears entirely consistent with Lampasona and the
principles of law articulated therein.
18
In response to a question from the board as to whether the applicants
would be ‘‘tearing the house down and starting all over again, Gibson
explained that the applicants instead proposed expanding the existing non-
conforming structure. He stated in relevant part: ‘‘No, we’re not going to
tear it down. . . . [W]hat we’re going to try to do [is] to provide more space
by raising the building up to raise the area of the crawl space. . . . And
also to have living and storage space on the third level, which is really the
second floor, in the rear of the . . . building.’’
19
In Wiltzius v. Zoning Board of Appeals, 106 Conn. App. 1, 28, 940 A.2d
892, cert. denied, 287 Conn. 906, 907, 950 A.2d 1283, 1284 (2008), this court
similarly noted that the regulations at issue ‘‘expressly prohibit [the] expan-
sion of the nonconformity.’’ In light of that regulatory prohibition and the
general principle of zoning law that nonconformities should not be allowed
to increase, we held that the applicant’s proposal to replace ‘‘individual
[nonconforming] mobile homes with larger mobile homes in [their] mobile
home park constituted an illegal expansion and enlargement of a nonconfor-
mity.’’ Id., 24.
20
The applicants neither requested nor obtained a variance from § 8.1.C.2
of the regulations, despite the fact that they proposed expanding their resi-
dential use of the existing structure. In Munroe v. Zoning Board of Appeals,
75 Conn. App. 796, 806, 818 A.2d 72 (2003), we expressly considered ‘‘what
is embraced in the term nonconforming use. The term nonconforming uses
is often used without consideration as to what aspect of the use of property
is nonconforming, and in determining whether an activity is an expansion
or change of a nonconforming use, the nature of the nonconformity is
important. There are basically four types of nonconformity: (1) nonconform-
ing use—the use of the land or structure on it is nonconforming (e.g.,
commercial use in a residential zone); (2) a nonconforming lot—the lot is
undersized, irregularly shaped, has inadequate width or depth or inadequate
frontage; (3) nonconforming building or structure—the structure does not
meet the minimum or maximum size requirements, floor area ratio, height
or bulk requirements of the existing zoning regulations; (4) nonconformity
as to location of structure, i.e., it does not conform with one or more
of the setback requirements. These distinctions are important because a
particular piece of property may be nonconforming in one of these respects,
but conforming as to the others.’’ (Internal quotation marks omitted.)
Munroe involved the vertical expansion of a nonconforming structure in
the same municipality as the present case. Id., 798. At issue was § 5.7 of
the regulations as they existed in 1997, which was titled ‘‘Enlargement’’
and contained language largely identical to that set forth in § 8.1.C of the
regulations as they existed in 2011, which also is titled ‘‘Enlargement.’’ See
Munroe v. Zoning Board of Appeals, supra, 75 Conn. App. 798 n.4. In that
case, this court observed that the proposed expansion implicated ‘‘the fourth
type of nonconformity, that aspect of use of land or property that relates
to the location of the structure or building on the land and whether a second
story addition to the building is an increase in that type of nonconforming
land use.’’ Id., 806. Unlike the present case, the proposed expansion in
Munroe would not have ‘‘changed the footprint of the building.’’ Id.
21
Like the applicants in the present case, the applicant in Michler owned
property containing an existing nonconforming structure. Michler v. Plan-
ning & Zoning Board of Appeals, supra, 123 Conn. App. 184.
22
The plaintiff in his appellate brief notes that ‘‘the regulations have abso-
lutely no bearing on the applicants’ ability to renovate and upgrade their
property, to relocate the heating system or replace it with an alternative
heat source . . . . The regulations prohibit the applicants only from enlarg-
ing their house because it would be an expansion of a nonconforming
structure.’’
23
There exists a crucial distinction between maintaining an existing non-
conforming structure and improving, or modernizing, it. As noted in Munroe
v. Zoning Board of Appeals, 75 Conn. App. 796, 810, 818 A.2d 72 (2003),
‘‘[z]oning regulations that deal with legal nonconforming uses of land or
buildings balance two competing interests, the protection of individual prop-
erty rights and the protection of the community’s interest in a speedy elimina-
tion of the particular nonconformity. . . . The landowner has an interest
in making reasonable renovations to prevent deterioration, but the commu-
nity has an interest in not extending the life of the nonconformity so that
the nonconformity gradually will be eliminated. . . . If a property owner
is allowed to make drastic changes in a building, that interest would be
favored over the interest of the community.’’ (Citations omitted.) See also
4 E. Yokley, Zoning Law and Practice (4th Ed. MacGregor 2003) § 22-11, p.
22-62 (‘‘[g]enerally, while buildings may be repaired or restored, the use
may not be enlarged’’ [footnote omitted]). For that reason, the regulations
here provide in relevant part that the intent of the regulations is ‘‘to permit
these nonconformities to continue until they are removed, but not to encour-
age their survival’’; Branford Zoning Regs., § 8.1.A.2; that ‘‘[a]ny structure
or use lawfully existing . . . may be continued [but] [a]ny changes to the
nonconforming use or structure shall be in compliance with these [r]egula-
tions’’; Branford Zoning Regs., § 8.1.B; and that ‘‘[n]o nonconforming use of
land shall be enlarged, extended or altered, and no structure or part thereof
devoted to a nonconforming use shall be enlarged, extended, reconstructed
or structurally altered, except where the result of such changes is to reduce
or eliminate the nonconformity.’’ Branford Zoning Regs., § 8.1.C.1. Those
regulations comport with the ‘‘general rule . . . that the owner of a [noncon-
forming structure] can continue . . . the use of [the] structure that was
established prior to the adoption of a restricting regulation, but neither use
nor structure may be changed.’’ T. Tondro, supra, p. 157.
As our Supreme Court explained in Helbig v. Zoning Commission, 185
Conn. 294, 306, 440 A.2d 940 (1981), ‘‘the indisputable goal of zoning [is] to
reduce nonconforming to conforming uses with all the speed justice will
tolerate. . . . Nevertheless, the rule concerning the continuance of a non-
conforming use protects the right of a user to continue the same use of
the property as it existed before the date of the adoption of the zoning
regulations.’’ (Citations omitted; emphasis added; internal quotation marks
omitted.). ‘‘A determination as to whether an alteration, extension, recon-
struction, or repair of a nonconforming structure . . . is permissible is
dependent on, or is affected by, the particular provisions of the applicable
zoning ordinance . . . .’’ (Internal quotation marks omitted.) Munroe v.
Zoning Board of Appeals, supra, 75 Conn. App. 805–806; see also 101A
C.J.S., supra, § 181, p. 264 (‘‘[t]he right to alter or extend a nonconforming
structure depends primarily on the terms of the applicable zoning
ordinance’’).
24
The minutes to the board’s March 20, 2012 meeting likewise state that
the ‘‘changes requested’’ by the applicants were ‘‘slight . . . .’’
25
Unlike the plaintiffs in Moon v. Zoning Board of Appeals, supra, 291
Conn. 26, the applicants here did not claim in their application or at the
public hearing before the board that the literal enforcement of the regulations
at issue made ‘‘it impossible to add onto the existing [nonconforming] build-
ing for . . . necessary compliance with building codes.’’ (Internal quotation
marks omitted.)
26
In his prefatory remarks, Gibson stated in relevant part that ‘‘since there
is little or no room . . . for horizontal expansion, what has to be done in
order to improve the property and modernize it, bring it up to code as much
as possible, is to go up.’’ Gibson later argued that the expansion of the
existing structure ‘‘will contribute to the health and safety of the applicants
and owners by helping to provide [them] with fire and building code require-
ments and providing some modem (sic) of storage which is really needed
also for health purposes.’’
27
Although Laska made an isolated reference to a ‘‘FEMA compliant build-
ing’’ during the board’s deliberations, the record contains no evidence of
any such requirements. The only other reference in the record to ‘‘FEMA’’
appears in the ‘‘Building/Engineering/Zoning/Wetlands Routing Sheet’’ that
the applicants submitted to the town Planning and Zoning Commission on
February 23, 2012. In that completed form, the applicants indicated that the
property was not within a ‘‘FEMA Flood Zone.’’ The applicants made no
mention of any FEMA requirements in their application or their presentation
at the public hearing. In this appeal, the applicants and the board likewise
have not mentioned such requirements in either their appellate briefs or at
oral argument before this court.
28
The defendants did not make any mention of compliance with building
and fire code requirements either in their appellate briefs or at oral argument
before this court.
29
A deed to the property dated July 3, 1908, references ‘‘a right in common
with others to a passway for teams and pedestrians over a strip of land 3
ft. wide’’ that runs ‘‘over the [e]ast side of said lot . . . .’’
30
To be clear, the applicants did not specifically raise any confiscation
claim before the board. They merely argued that, absent the requested
variances, they could not expand the existing nonconforming structure.
31
That property originally was located in a residential zone. Chevron Oil
Co. v. Zoning Board of Appeals, supra, 170 Conn. 147. At the applicant’s
request, that zoning classification ‘‘was changed to a CB-2 business zone’’;
id.; prior to his request for a variance. Id., 148.
32
On appeal, the defendants urge us to ignore the presence of the existing
nonconforming structure on the property for purposes of our hardship
analysis. We decline to do so. Unlike myriad cases, such as Chevron Oil
Co. v. Zoning Board of Appeals, supra, 170 Conn. 146, and Archambault v.
Wadlow, supra, 25 Conn. App. 375, the present case does not involve an
applicant seeking to build a structure on a vacant lot, as Gibson explicitly
stated at the outset of the public hearing. Instead, this case involves a
proposal to expand an existing nonconforming structure in numerous
respects. The suggestion that we must now engage in the fiction that the
nonconforming structure does not exist strikes us as both illogical and
insincere. The applicants are seeking to continue the ‘‘advantages’’ acquired
by the enactment of the regulations; Kleinsmith v. Planning & Zoning
Commission, supra, 157 Conn. 314; which permit and protect significant
intrusions into setback and other requirements of the regulations. See foot-
notes 3 and 4 of this opinion. At the same time, they ask us to ignore the
existence of those intrusions in analyzing the hardship issue, despite the
fact that their proposal seeks to continue—and expand—those intrusions.
In so doing, the defendants ‘‘apparently believ[e] that it really is possible
to have one’s cake and eat it too . . . .’’ (Internal quotation marks omitted.)
Piquet v. Chester, 306 Conn. 173, 191 n.17, 49 A.3d 977 (2012).
33
McGrath stated during the public hearing: ‘‘It’s not as though this appli-
cant can’t build [and] is being denied [the] use of his property [and] is denied
all reasonable benefit of this property. There’s a house here. It’s a residential
district. There is a residence. It’s [been] used as a summer residence, it has
been for a very long period of time. There’s nothing about this . . . lot,
this structure and the application of the [regulations] to it that denies them
the reasonable benefit of their property.’’
34
Another alternative is to revise their proposal so as request variances
that lessen the nonconformity on the property, consistent with Adolphson
v. Zoning Board of Appeals, supra, 205 Conn. 703, and its progeny. See part
V of this opinion.
35
The applicants presented no evidence at the public hearing that a denial
of the requested variances would preclude any reasonable use of the prop-
erty. In their principal appellate brief, the defendants argue that we should
ignore the existing nonconforming residential use of the property for pur-
poses of our hardship analysis, which claim we already have rejected. See
footnote 32 of this opinion.
36
McGrath stated: ‘‘It’s not as though this applicant can’t build [and] is
being denied [the] use of his property [and] is denied all reasonable benefit
of this property. There’s a house here. It’s a residential district. There is a
residence. It’s [been] used as a summer residence, it has been for a very
long period of time. There’s nothing about this . . . lot, this structure and
the application of the [regulations] to it that denies them the reasonable
benefit of their property. They have a house there. It’s their notion that they
want to build, they want to expand, they want to completely gut the place
as the architect indicated, they want to put a master bedroom on and another
bathroom . . . they want to do all these things. It’s the construction that
creates the extensible hardship. . . . It’s their desire to expand. It’s their
desire to extend. Their desire to have a better . . . living space than they
have now that . . . causes them to bring this application, and it makes
them try to find this as a hardship.’’ If the requested variances were denied,
McGrath argued, ‘‘the applicant still has a perfectly useful residence.’’
37
In an unrelated context, the terminology also pertains to one’s duty to
neighboring properties. See, e.g., Nailor v. C. W. Blakeslee & Sons, Inc., 117
Conn. 241, 245, 167 A. 548 (1933) (‘‘[i]t is the duty of every person to make
a reasonable use of his own property so as to occasion no unnecessary
damage or annoyance to his neighbor’’).
38
The defendants rely principally on this court’s decision in Stillman v.
Zoning Board of Appeals, 25 Conn. App. 631, 632, 596 A.2d 1, cert. denied,
220 Conn. 923, 598 A.2d 365 (1991). That decision is distinguishable from
the present case, as the applicant in Stillman sought to construct a first
floor addition to her house due to ‘‘her advancing age’’; id., 633; and the
hardship that supported the granting of a variance arose ‘‘from the configura-
tion of [the applicant’s] lot and the location of the well and the septic
system’’; id., 637; which left the side setback area as the only area in which
an addition was possible. Id., 636. The present case, by contrast, is not one
in which the buildable area on the property is constrained by the presence
of what Stillman referred to as ‘‘improvements’’ such as a well or septic
system. Id. Moreover, unlike Stillman, the applicants’ proposal involves
adding a third story to the existing nonconforming structure; see footnote
8 of this opinion; which causes ‘‘a substantial increase in the nonconformity.’’
Munroe v. Zoning Board of Appeals, supra, 75 Conn. App. 811.
Having concluded that Stillman is factually distinguishable from this case,
we also disagree with the defendants’ assertion that Stillman modified the
hardship standard when it allegedly ‘‘rejected’’ a ‘‘strict interpretation of the
hardship test’’ for instances in which an applicant already possessed ‘‘a
reasonable use of their land.’’ It is axiomatic that this court ‘‘is not free to
depart from or modify the precedent of our Supreme Court.’’ Three Levels
Corp. v. Conservation Commission, 148 Conn. App. 91, 113, 89 A.3d 3 (2014).
As we just discussed, our Supreme Court consistently has held that the
personal preferences of property owners in terms of the use of their property
is not a proper basis for a finding of hardship, nor is disappointment in the
use of their property. With respect to the expansion of existing nonconformit-
ies, that court has held that ‘‘nonconforming uses should be abolished or
reduced to conformity as quickly as the fair interest of the parties will
permit—[i]n no case should they be allowed to increase.’’ (Internal quotation
marks omitted.) Adolphson v. Zoning Board of Appeals, supra, 205 Conn.
710; see also Bauer v. Waste Management of Connecticut, Inc., supra, 234
Conn. 243 (‘‘a nonconforming structure cannot be increased in size in viola-
tion of zoning ordinances, i.e., nonconforming additions may not be made
to the nonconforming structure’’).
We further are mindful that Bloom v. Zoning Board of Appeals, supra,
233 Conn. 199, also involved applicants who ‘‘expanded and altered’’ a
nonconforming structure ‘‘within the nonconforming areas’’; id.; and then
relied on Stillman in support of their claim of hardship. Id., 210 n.13. After
distinguishing that precedent, our Supreme Court declared: ‘‘Furthermore,
the fact that an owner is prohibited from adding new structures to the
property does not constitute a legally cognizable hardship.’’ Id., 210–11 n.13.
The court then opined that ‘‘[i]f it is a hardship to not be able to use one’s
property as one wishes, then most setback variance applications would
have to be granted.’’ (Internal quotation marks omitted.) Id., 211 n.13. The
Supreme Court concluded its discussion of Stillman with the following
admonition: ‘‘Although we distinguish Stillman from this case, we do not
necessarily endorse its holding.’’ Id. In the nearly quarter-century since
Stillman was decided, the Supreme Court not once has relied on that prece-
dent in any manner, and the Supreme Court has since stated that the inability
to add ‘‘new structures to the property does not constitute a legally cogniza-
ble hardship’’; id., 210–11 n.13; that personal ‘‘inconvenience . . . does not
rise to the level of hardship necessary for the approval of a variance’’; Moon
v. Zoning Board of Appeals, supra, 291 Conn. 26 n.9; and that an applicant
cannot demonstrate unusual hardship when it ‘‘failed to prove that it could
not continue to use the property as it had been used for many years . . . .’’
Rural Water Co. v. Zoning Board of Appeals, supra, 287 Conn. 297. In light
of the great weight of authority of our Supreme Court, and Bloom’s treatment
of Stillman in particular, we thus view Stillman as best confined to its
essential facts.
39
The defendants’ position appears to be animated by a faulty premise—
namely, that the applicants possess a right to expand their nonconforming
structure. That presumption finds no support in our law. As the Supreme
Court observed in Bloom v. Zoning Board of Appeals, supra, 233 Conn.
210–11 n.13, ‘‘the fact that an owner is prohibited from adding new structures
to the property does not constitute a legally cognizable hardship.’’ See also
Bauer v. Waste Management of Connecticut, Inc., supra, 234 Conn. 243 (‘‘a
nonconforming structure cannot be increased in size in violation of zoning
ordinances, i.e., nonconforming additions may not be made to the noncon-
forming structure’’). Property owners that enjoy the advantages of a noncon-
forming lot or structure, therefore, must recognize that the existence of
such nonconformities does not confer the ‘‘right to build an addition.’’ T.
Tondro, supra, 77 (Cum. Supp. 2000); see also 2 P. Salkin, American Law
of Zoning (5th Ed. 2011) § 12:19, p. 12-121. (‘‘[t]he right to continue a noncon-
forming use does not include a right to expand or enlarge it’’); 101A C.J.S.,
supra, § 188, p. 269 (‘‘the area of a nonconforming use may not be enlarged or
extended, except as permitted by applicable zoning statutes or ordinances’’
[footnote omitted]).
40
In so doing, the court in Vine distinguished Giarrantano v. Zoning
Board of Appeals, 60 Conn. App. 446, 760 A.2d 132 (2000), another case
cited by the defendants in this appeal. As the court noted, the regulations
at issue specifically included the phrase ‘‘ ‘reasonable use of such land’ ’’ in
specifying the powers and duties of the defendant board. Id., 448 n.1. In
Vine—a subsequent decision by the same authoring judge—this court explic-
itly noted that distinction in rejecting the claim that ‘‘a variance may be
v. Zoning Board of Appeals, supra, 93 Conn. App. 9 n.14.
41
See footnote 18 of this opinion.
42
In their principal appellate brief, the defendants submit that ‘‘to obtain
a variance, one need not prove that the circumstances are highly unusual;
one must prove only that one’s circumstances are not applicable or relevant
to the whole of the pertinent zoning district . . . .’’ (Emphasis added; inter-
nal quotation marks omitted.) They then argue that ‘‘[n]othing in the adminis-
trative record suggests that the conditions affecting the applicants’ property
‘generally affected’ all of the other properties in the R-2 district.’’ (Emphasis
added.) That novel take on the hardship standard cannot be reconciled with
the ample body of precedent from this state’s highest court indicating oth-
erwise.
43
‘‘[A] zoning map is an integral part of the zoning regulations, without
which the regulations are said to be meaningless . . . .’’ (Citation omitted;
internal quotation marks omitted.) Planning & Zoning Commission v. Gil-
bert, 208 Conn. 696, 706–707, 546 A.2d 823 (1988). Following the commence-
ment of this appeal, the defendants filed a motion for permission to correct
the record by filing ‘‘a corrected set of zoning regulations and zoning map,’’
consistent with the dictates of Practice Book § 81-6 (‘‘[t]he appellant’s brief
shall be filed simultaneously with one complete copy of the local land use
regulations that were in effect at the time of the hearing that gave rise to
the agency action or ruling in dispute.’’). We granted that motion, thereby
accepting those materials into the record before us.
44
‘‘An interesting feature of the . . . test for a variance is the situation
of the undersized residential lot in a subdivision or neighborhood with
similar undersized lots. The existence of similar lots . . . make[s] it difficult
or impossible to prove unusual or unique hardship.’’ 9 R. Fuller, supra, § 9.2,
p. 240.
45
Arguably implicit in that request is some acknowledgement that the
applicants’ claimed hardship is not unique to their property.
46
As the board’s chairman noted, ‘‘What I’m hearing [from the applicants]
is, we have a structure that is old, it’s falling apart . . . it’s in need of major
renovations . . . regardless of whether it gets expanded or not. But since
we’re going to go through all that, we might as well, rather [than] to maintain
the status quo, we’re going to ask for permission to improve it and enlarge
it somewhat. That’s what I’m hearing.’’
47
The dissenting justices expressed their disagreement with the proposi-
tion ‘‘that a change in a nonconforming use otherwise violative of the compre-
hensive plan may be permitted by way of a variance, so long as the new
use is less offensive than the former use . . . .’’ Adolphson v. Zoning Board
of Appeals, supra, 205 Conn. 717 (Shea, J., dissenting).
48
As in Adolphson, the court in Stancuna went to great lengths to empha-
size that the variance did not result in an increase of the existing nonconfor-
mity. We stated: ‘‘In this case, the court did not conclude that the variance
was an expansion of a nonconformity. Rather, it concluded that the board
had properly granted the variance. The board did not allow for a continuance
and expansion of the nonconforming use, rather, it granted [the] application
for a variance under the applicable regulations. The defendant is not increas-
ing the size of the existing structure or building a larger one at the same
location. Therefore, no expansion of the nonconforming use can occur.’’
Stancuna v. Zoning Board of Appeals, supra, 66 Conn. App. 573.
49
In their reply brief, the defendants state that § 8.1 ‘‘flatly prohibits any
enlargement of a nonconforming structure.’’ They are mistaken. Although
that regulation flatly prohibits the enlargement of any nonconformity on
an existing nonconforming structure, the regulation permits the expansion of
such structures to the extent that (1) it does not increase the nonconformity;
Branford Zoning Regs., § 8.1.A.3; and (2) ‘‘such enlarged portion conforms
to the regulations applying to the district in which it is located.’’ Branford
Zoning Regs., § 8.1.C.3. The Adolphson exception, which we discussed in part
V of this opinion, meets that criteria pursuant to § 8.1.C.1 of the regulations.