LAVINE, J.
Following this court's granting of their petition for certification to appeal, the plaintiffs Thomas B. Schulhof and Anne K. Schulhof
The following procedural history is relevant to our resolution of the plaintiffs' appeal. In 2009, the owner filed an application for a zoning variance (2009 application) to replace an existing nonconforming structure with a boathouse on the island. The board denied the 2009 application. In 2010, after modifying its plans, the owner submitted another application again seeking a setback variance (2010 application), which the plaintiffs opposed. The board granted the 2010 application, and the plaintiffs appealed to the Superior Court. Following an evidentiary hearing, the court, Tobin, J., found that the plaintiffs were aggrieved by the board's decision. The merits of the appeal were then heard by the court, Hon. A. William Mottolese, judge trial referee,
The court found the following facts. The plaintiffs are residents of the Wilson Point area of Norwalk, which lies adjacent to Long Island Sound and overlooks the Norwalk Island Chain,
On appeal to the Superior Court, the plaintiffs challenged the board's granting of the 2010 application permitting the owner to construct the boathouse because the variance fails to comply with the setback requirements and violates § 118-800 D of the of the Norwalk Zoning Regulations, which prohibits a nonconforming structure from being enlarged. The board did not articulate its reason for granting
Before addressing the plaintiffs' claims, we review the well established standard of review applicable to zoning appeals. "[C]ourts are not to substitute their judgment for that of the board, and... the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing...." (Internal quotation marks omitted.) Jaser v. Zoning Board of Appeals, 43 Conn.App. 545, 547, 684 A.2d 735 (1996). "The trial court's function is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board's] findings.... [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred.... Where the board states its reasons on the record we look no further.... Where, however, the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board's decision.... More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons.... We, in turn, must determine whether the court properly concluded that the board's decision to grant the variance was arbitrary, illegal or an abuse of discretion." (Citations omitted; internal quotation marks omitted.) Stancuna v. Zoning Board of Appeals, 66 Conn.App. 565, 568, 785 A.2d 601 (2001).
Because the court, in interpreting the regulations, made conclusions of law in its memorandum of decision, our review is plenary. See Raymond v. Zoning Board of Appeals, 76 Conn.App. 222, 229, 820 A.2d 275, cert. denied, 264 Conn. 906, 826 A.2d 177 (2003). The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board's decision in this case, the plaintiffs. See id.
General Statutes § 8-6(a), which sets forth the powers and duties of a zoning board of appeals, provides in relevant part: "The zoning board of appeals shall ... (3)... determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving 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 substantial 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 permitted by variance in districts in which such uses are not otherwise allowed...." See also Norwalk Zoning Regs., § 118-1410.
The plaintiffs claim that the court improperly sustained the board's granting of the 2010 application for a setback variance on the basis of a hardship that is not unusual, unique or in harmony with Norwalk's comprehensive zoning plan. We do not agree.
In its memorandum of decision, the court found that the plaintiffs grounded their appeal in § 18-800 D of the Norwalk Zoning Regulations,
The court then directed its attention to whether the board properly granted the 2010 application on the basis of hardship. The court found that § 118-300 C(4) of the Norwalk Zoning Regulations prescribes setbacks of fifty feet from the mean high water mark in the conservation zone. See footnote 8 of this opinion. None of the setbacks for the boathouse proposed in the 2010 application — 23.55 feet from the north, 27.78 feet from the south, 25.81 feet from the east and 20.67 feet from the west — conform to the setback requirement. The court concluded that the setback from the mean high water mark was a hardship created in 1974 when the classification of the island changed from B residence zone to conservation zone, and that the reclassification occurred when the island was owned by someone other than the owner. The court noted, citing Lawrence Memorial Hospital, Inc. v. Zoning Board of Appeals, 22 Conn.App. 291, 300, 577 A.2d 740 (1990), that "if the hardship is created by the enactment of a zoning ordinance and the owner of the parcel could have sought a variance, then the purchaser has the same right to seek a variance and, if [its] request is supported in law, to obtain the variance.... Otherwise the zoning ordinance could be unjust and confiscatory." (Internal quotation marks omitted.) Moreover, the court found that the fifty foot setback lines overlap, effectively preventing any structure from being built on the island. This court upheld a similar variance in Eagan v. Zoning Board of Appeals, 20 Conn.App. 561, 564-65, 568 A.2d 811 (1990) (enforcement of setback requirement would preclude house of any size on lot).
The court concluded that the hardship derived from the 1974 zoning reclassification that adopted a fifty foot mean high water setback and that the size, shape, and topography of the island prevent any structure, other than a dock or boat landing, from being erected on the island. The court also found that granting the 2010 application for a setback variance would not substantially affect the Norwalk comprehensive zoning plan as the boathouse is designed to store three small boats, which is in harmony with the purpose of the conservation zone. See footnote 5 of this opinion.
On appeal here, the plaintiffs claim that the basis of the hardship is not the size of the island, but the personal preference of the owner to remove the existing structure and build a boathouse.
"A variance constitutes permission to act in a manner that is otherwise prohibited under the zoning law of the town.... The Norwalk zoning regulations strictly limit the extent to which structural nonconformities may be expanded or altered. Norwalk Zoning Regs.,
In this case, the court properly found a hardship existed in that the small size, shape, and topography of the island, and the 1974 setback requirements rendered it impossible to build any permitted structure on the island because the setback lines from the mean high water mark overlap. See, e.g., Stancuna v. Zoning Board of Appeals, supra, 66 Conn.App. at 565, 785 A.2d 601. The island is a legally nonconforming buildable lot. Section 118-300 C(1)(c) of the Norwalk Zoning Regulations permits boathouses in the conservation zone. The court properly concluded that without a setback variance, there is no place on the island for the owner to construct a boathouse and that strict adherence to the setback regulations would greatly decrease the value of the island for a permitted use, i.e., a boathouse. See Culinary Institute of America, Inc. v. Board of Zoning Appeals, 143 Conn. 257, 262, 121 A.2d 637 (1956).
The plaintiffs' argument that the variance constitutes an enlargement of a nonconforming structure overlooks the fact that the existing structure is to be demolished and the boathouse situated at a higher elevation on the island. In Stancuna v. Zoning Board of Appeals, supra, 66 Conn. App. at 573, 785 A.2d 601, this court concluded that the board in that case "did not allow for a continuance and expansion of the nonconforming use, rather, it granted [the defendant's] application for a variance under the [set-back] regulations. The defendant is not increasing the size of the existing structure or building a larger one at the same location. Therefore, no expansion of the nonconforming use can occur. The existing house is to be razed and replaced with a new structure at a different location on the property. The variance application was submitted ... as if the lot were vacant." The same reasoning applies in the present case where the existing nonconforming structure is to be taken down and a boathouse, a permitted use in the conservation zone, is to be constructed.
The plaintiffs also claim that the court improperly concluded that the variance is in harmony with the comprehensive zoning plan. Although the plaintiffs concede that boathouses are a use permitted in the conservation zone, they contend that the analysis of whether the variance comports with the comprehensive zoning plan should go beyond "mere" compliance with one of the several permitted uses in the conservation zone. The substance of the plaintiffs' argument is that the variance constitutes the expansion of a nonconformity, a claim we have rejected.
The Norwalk zoning regulation's declaration of the necessity and purpose of the conservation zone identified the need to protect "the fragile environment of the Norwalk Islands while permitting their development for limited residential uses" and provided that "to permit such development and to protect the islands, the following provisions are declared necessary to the public interest."
We therefore conclude that the plaintiffs have not carried their burden to demonstrate that the board acted improperly by granting the 2010 application for a setback variance. See Raymond v. Zoning Board of Appeals, supra, 76 Conn.App. at 229, 820 A.2d 275.
The plaintiffs also claim that the court improperly dismissed their appeal by relying on (1) an independent ground not raised by the parties
The judgment is affirmed.
In this opinion the other judges concurred.
"(1) It is declared that a need has developed for the protection of the fragile environment of the Norwalk Islands while permitting their development for limited residential uses.
"(2) In order to permit such development and to protect the islands, the following provisions are declared to be necessary to the public interest."
"(2) A nonconforming structure shall not be moved unless, as a result of the move, the structure is made to conform to these regulations.
"(3) Where a change of use would create new setbacks, any structure which lawfully existed before such change shall be rendered legally nonconforming, provided that the existing structure is effectively screened from adjacent properties, subject to the satisfaction of the Zoning Inspector."
"(3) Vary any requirement of these regulations in harmony with their general purpose and intent, so that substantial justice may be done. This authority shall be exercised in a manner to secure the public health, safety and welfare solely in instances where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of these regulations. To grant a variance, the Zoning Board of Appeals shall adopt a resolution which shall stipulate the reasons for granting the variance."
"D. Nonconforming structures.
"(1) A nonconforming structure shall not be enlarged or altered if the result would be an increase in the extent to which the structure does not conform to these regulations. A nonconforming structure may be enlarged or altered, provided that the enlargement or alteration conforms to these regulations....
"(2) A nonconforming structure shall not be moved unless, as a result of the move, the structure is made to conform to these regulations.
"(3) Where a change of use would create new setbacks, any structure which lawfully existed before such change shall be rendered legally nonconforming, provided that the existing structure is effectively screened from adjacent properties, subject to the satisfaction of the Zoning Inspector."
The plaintiffs also rely on Norwood v. Zoning Board of Appeals, supra, 62 Conn.App. at 528, 772 A.2d 624, in support of their argument that diminution in property value does not ordinarily constitute hardship. Id., at 534, 772 A.2d 624. There is no claim of personal hardship due to diminution in property value at issue in this case. The basis of the hardship claimed is the size, shape and topography of the island.