Agenda - Planning Commission - 08/07/2008

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'. ....-....., . -j i. July 25,20081 Volume 21 No. 14 for construction of a single family dwelling. A variance was needed for such construction because, after zoning changes in 1966, the Property became a nonconforming lot since the minimum lot size under the town's zoning regu- lations became 1 acre, and the Property was only 0.284 aCres. The town's zoning board of appeals (ZBA) denied RWC's applica- tion for the variance. Its denial was based in significant part on the ZBA's finding that: (1) no unusual hardship was present that would justify. the grant of variance; and (2) since it was the decision of RWC to close the wells, any hardship claimed was self~created. RWC appealed the ZBA'sdecision. The trial court dismissed RWC's appeal. It also found that RWC failed - to show the unusual hardship necessary for a grant of a variance. Specifi- cally, the court said RWC did not show what the value of the Property was as a non-buildable lot. RWC appealed. It argued that it was entitled to a variance because without a variance the Property had no mea,nipgful use since: (1) the zoning regulations restricted the Property; and (2) the radon related pub- lic health concerns forced it to close the well. RWC also asserted that the application of the zoning regulations amounted to inverse condemna- tion-the taking of its Property by depriving the Property of all reason- . able uses and reducing its value to virtually nothing. The Supreme Court of Connecticut transferred the appeal to itself. DECISION: Affirmed. The court said two conditions had to be met before a ZBA could grant a variance: it had to be shown that (1) the variance would not sub- stantially affect the comprehensive zoning plan; and (2) strict application of the zoning regulations would cause unusual hardship that was unnec- essary to the carrying out of the general purpose of the zoning plan. The hardship, the coUrt said, had to arise out of the application of the or- dinance to circumstances or conditions beyond the control of the party involved. If the hardship was caused by a condition that was due to the party's own voluntary act, the ZBA could not grant the variance. The court emphasized that denial of a financial advantage caused by applica- tion of a zoning regulation did not constitute a hardship, unless the zon- ing restriction greatly decreased or practically destroyed the property's value for any of the uses to which it could reasonably be put. The court concluded that RWC failed to show the required unusual hardship. In so finding, the court noted that RWC had not shown that use of the well had to be discontinued because of high radon levels. RWC failed to explain why measures could not be taken to treat the level of ra- don in the well water. Therefore the court found that the well was argu- ably still operational. Given the Property was still usable as a well, there was no proof that denial of the variance would practically destroy the value of the property for all reasonable uses, the court said. @ 2008 Thomson ReuterslWest 5 53