Agenda - Planning Commission - 04/02/2009

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() Zoning Bulletin February 25, 2009\ Volume 31 No.4 quiring new'construction be 100 feet landward of the mean high tide. . Ultimately, the ZBA approved the variance. The Holts' neighbors, William Hescoc;:k and Regina Hescock ap- pealed from the ZBA's decision. They argued, among other things, that the ZBA's decision to approve the variance was improper because the Holts had not shown that they faced an "unusual hardship" from en- forcement of the 100 foot landward restriction. They asserted than an unusual hardship was necessary for a grant of a variance. The superior court dismissed the Hescocks' appeal. The Hescocks further appealed, DECISION: Affirmed. ') The Appellate Court of Connecticut held that the ZBNs decision to grant the Holts' variance application was proper. It explained that, asrhe Hescocks' had argued, an individual seeking a variance ordinarily must show that "because of some unusual char- acteristic of his property, a literal enforcement of the zoning regulations would result in unusual hardship to him. . . ." However, the court also explained that even if an extreme hardship had not been shown, a vari- ance could be granted if it was shown that there was a "reduction of a nonconforming use to a less offensive prohibited use." Here the court found that the ZBA's conclusion that the Holts' new construction would diminish nonconformities' was substantially sup- ported by evidence. The existing house did not comply with applicable . building and habitability codes. The new construction would: decrease noncompliance with the setback requirement by six feet; and address and improve flood zone issues, conforming to all flood zone regulations except the setback requirement. Moreover, there was no evidence that replacing the existing house would result in "even minimal harm to the neighborhood." In fact, the ZBA had concluded that "with time, all of the houses in the neighborhood would' conform to the flood zone requirements and that the defendants were on the cutting edge of new development. " See also: Adolphson v. Zoning Bd. of Appeals of Town of Fairfield, 205 Conn. 703, 535 A.2d 799 (1988). ' See also: Stancuna v. Zoning Bd. of Appeals of Town of Wallingford, 66 Conn. App. 565, 785 A.2d 601 (2001). Case Note: The Hescocks also appealed the ZBA's approval. of the Holts' coastal site plan review (which pursuant to law was required to accompany variance applications for projects within, or partly within, the coastal boundary). The appellate court up- held the ZBA's approval of the coastal site pian review, finding @ 2009 Thomson Reuters 3 93