BISHOP, J.
In 2011, the named defendant, the Board of Zoning Appeals of the City of New Haven (board), granted an appeal for four variances and an application for a special exception, with conditions, as requested by the defendant applicant, P.T.R., LLC.
The following facts and procedural history are relevant to our resolution of this appeal. P.T.R., LLC, is the owner of real property located at 601-603 Orange Street in New Haven (property). The property has been used for the operation of a grocery market since at least 1963. P.T.R., LLC, currently operates a grocery and deli known as Nica's Market on the property, which is situated on the east side of Orange Street in the middle of the block between Humphrey and Bishop Streets. Orange Street, from several blocks south of Nica's Market to several blocks north of the market, is located in a RM-2, high middle density, residential zone.
On February 11, 2011, Joseph Sabino, a member of P.T.R., LLC, filed an appeal for zoning variances with the board seeking: (1) to permit lot coverage of 40 percent, where 40 percent already existed and 30 percent is permitted; (2) to permit a first floor grocery net floor area of 4366 square feet, where 2446 square feet already existed and 1500 square feet is permitted; (3) to permit the construction of a conforming building addition to the non-conforming building; and (4) to permit twenty-four outdoor seats where fifteen are permitted. Also, on February 11, 2011, Rosanna Sabino, another member of P.T.R., LLC, filed an application for a special exception for use of the property as a "Neighborhood Convenience Use (grocery) with existing take-out component and seasonal outdoor seating at six tables (24 seats)—continuation of long-standing use with conforming alterations to existing nonconforming structure; served by existing parking lot with 18 spaces."
Accompanying this presentation was a site plan prepared by architect Gerald Kagan (plan) that detailed the proposed expansion and changes to the existing structure,
With regard to the driveway, Kagan explained that, by adding twenty feet and moving the driveway over about twenty feet, trailer trucks would now be able to come into the parking lot more easily and would be able to back into the loading zone. Kagan further clarified: "There is a truck loading zone for box trucks. They get off the street and [its] a straight shot into the parking lot. And there is a [sufficient] turning radius for those trucks in the rear of the property to provide [for] loading and unloading. We have also provided on the side right here a space for the merchandise to go down into the cellar. What we are proposing to do is to build a whole new structure across the back of the building so that we're going to remove some of the physical impediments which are on the inside of the structure." Kagan stated: "[T]he truck loading is a really, really critical part of this application and by being able to have accessibility in the rear for these trucks to unload takes a burden off the street."
With regard to the first floor of the building, Kagan explained that the proposed alterations would provide an access line for people waiting in line to get to the deli and that the purpose of the plan was to "make the front of the store, the existing store, totally accessible." Next, he
Shansky then spoke again on behalf of P.T.R., LLC. Shansky stressed that the granting of the variances would bring the property more into compliance with the zoning regulations and would therefore achieve one of the goals of zoning administration, namely, reducing and eliminating nonconformities. She further explained to the board: "These operational alterations that will be beneficial to the neighborhood indeed by their ability, and certainly the accessibility is a factor, but by being able to have access to the market and to its deli function unencumbered. It's going to provide a better flow for trucks to ease or ameliorate that traffic concern. And certainly, from a code perspective, from a building code perspective, it will eliminate this very hazardous four level operational place in the back and provide an accessible place potentially for employees as well."
Later during the presentation, board chairperson Cathy Weber asked whether the plan would provide increased employment opportunities for the deli. In response, Kagan stated: "The goal of [P.T.R., LLC] is not to make the business any bigger. It's to make it safer. It's to allow accessibility to handicapped individuals to get through the store. It's the ability to service the back where they don't go up and down stairs and employees [will not] be in danger. It's to make their lives easier, not more difficult."
After Shansky and Kagan concluded their presentation, Weber asked if anyone from the public wished to be heard. Charles Famularo and Barry Nellis, who frequent Nica's Market regularly, spoke in favor of the application. Furthermore, Harold Roth, Bill Donahue, Lloyd Parchman, and Donald Harvey, who live in the neighborhood where the property is located, spoke in favor of the application. Harvey specifically explained to the board that the plan "addresses the needs of the neighborhood with regard to traffic concerns and garbage [as] well as Nica's need to streamline operations while maintaining the neighborhood, the character of the neighborhood."
Attorney Gregory Gallo then spoke on behalf of 347 Humphrey Street, LLC, an abutting property owner. Gallo argued: "A variance under the code would require either a difficulty or an unreasonable hardship and a strict enforcement of the code. Here we don't have that. . . . [T]he applicant doesn't claim that there is a hardship. Looking at section 7 of the appeal to the zoning board there is no mention of a hardship."
Following the hearing, in accordance with Section 63(d)(6) of the New Haven Zoning Ordinance,
On April 12, 2011, the board conducted a "voting session." During this voting session, the board evaluated the merits of P.T.R., LLC's application for variances and a special exception, and discussed the commission's advisory report. Thereafter, the board voted to approve the application for variances as requested, and the application for the special exception with several conditions.
On May 18, 2011, the plaintiffs filed an appeal of the board's decision in the Superior Court. On April 8, 2013, the trial court issued a memorandum of decision in which it reversed the board's approval of the variances and the special exception. With regard to the variances, the court concluded that the board had acted illegally in approving the variances because there was no evidence in the record to establish proof of difficulty or unreasonable hardship. With regard to the special exception, the court concluded that (1) the board was not entitled to accept, as its own finding, the commission's conclusion that the application for the special exception was in accord with the public convenience; and (2) the commission did not make the necessary findings pursuant to § 31(d) of the New Haven Zoning Ordinance, and the board did not make the necessary finding pursuant to § 63(d)(3) of the New Haven Zoning Ordinance. Accordingly, the court sustained the plaintiffs' appeal. The defendants filed the present appeal after this court granted their joint petition for certification.
The defendants claim that the court improperly substituted its judgment for that of the board when it reversed the board's decision approving the variances and the special exception. Because the board failed to issue any formal, collective statement of the reasons for its approval, the defendants argue that the court was required to consider the record as a whole and that substantial evidence in the record supported the board's decision to grant the variances and special exception.
At the outset, we review the well established standard of review applicable to zoning appeals. "[C]ourts are not
Section 63 (c)(1) of the New Haven Zoning Ordinance provides in relevant part: "Where there is difficulty or unreasonable hardship in the way of carrying out the strict letter of the zoning ordinance, the Board of Zoning Appeals shall have power in a specific case to vary the application of any provision of the ordinance, if such variance will be in harmony with the general purpose and intent of the ordinance and if the public health, safety and general welfare will be served and substantial justice done."
"To support a variance . . . a hardship must arise from a condition different in kind from that generally affecting properties in the same zoning district and must be imposed by conditions outside the property owner's control. . . . The applicant bears the burden of demonstrating the existence of a hardship. . . . Proof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance. . . . A mere economic hardship or a hardship that was self-created, however, is insufficient to justify a variance. . . and neither financial loss nor the potential for financial gain is the proper basis for granting a variance." (Citation omitted; internal quotations omitted.) Schulhof v. Zoning Board of Appeals, supra, 144 Conn.App. at 453, 74 A.3d 442. Moreover, an applicant's desire to modernize an existing nonconformity does not "constitute a cognizable legal hardship that would warrant a variance." Horace v. Zoning Board of Appeals, 85 Conn.App. 162, 171, 855 A.2d 1044 (2004). This court held in Horace that improving the appearance of a building, "even if beneficial, [does not] constitute a cognizable legal hardship. . . ." Id. Furthermore, in rejecting a claim of "unusual hardship from the fact that the internal layout of the [existing nonconforming structure] was poorly designed to meet the needs of modern living," our Supreme Court observed that "inconvenience . . . does not rise to the level of hardship necessary for the approval of a variance." Moon v. Zoning Board of Appeals, 291 Conn. 16, 26 n. 9, 966 A.2d 722 (2009).
From our careful review of the record, we agree with the court that there is nothing in the record to support a finding of a hardship. At the public hearing before the board, Kagan stated that the purpose of the variances was to make the store accessible to customers and help employees in the kitchen work more efficiently. Furthermore, Shansky told the board that the variances would give Nica's Market
The court properly determined that the board illegally granted the variances filed on behalf of P.T.R., LLC, because the record did not support the existence of a legally cognizable hardship. Accordingly, we conclude that the court properly sustained the plaintiffs' administrative appeal.
The judgment is affirmed.
In this opinion the other judges concurred.