Agenda - Planning Commission - 05/05/2011

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Zoning Bulletin March 10, 2011 I Volume 5 1 No. 5 high. A cease and desist order was issued to the Ryans. The order re- quired them to "remove the height violation and bring the structure into compliance." On appeal by the Ryans, the town's zoning board of ap- peals ("the "ZBA") upheld the cease and desist order. The Ryans then applied for a variance. They asked the Board to grant them a variance from the 35-foot building height limit. They maintained that they were entitled to a variance because enforcement of the height limit was a hardship for them. They said that the fact that their roof was nearly three feet above the height limit was the fault of their independent contractor and/or architect. Thus, they said their hardship resulted from "a voluntary act by one other than the one whom the variance would benefit." In other words, they argued that since the roof height error was not their fault, they should get the variance. The Board granted the variance. The Ryans' abutting neighbors, Curtis Morikawa and Diane Lynch (the "Neighbors"), appealed. They argued that the Ryans' hardship was self-created, and that, as such, it was insufficient to justify the grant of a variance. The court agreed. The Ryans appealed. On appeal, they maintained that the court im- properly concluded that their hardship was self-created. DECISION: Affirmed. The Appellate Court of Connecticut held the alleged errors of the Ry- ans' architect and/or general contractor were attributable to the Ryans, and thus, the Ryans' claimed hardship was self-created, precluding the granting of a zoning ordinance. The court explained that a variance gives permission "to act in a man- ner that is otherwise prohibited under the zoning law of the town ...." "An applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regu- lation produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone." The court fur- ther explained that a zoning board of appeals may 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." Without hardship, a variance may not is- sue, emphasized the court. Moreover, a "mere economic hardship or a hardship that was self-created ... is insufficient to justify a variance." Here, the Neighbors had argued that a variance should not issue be- cause the Ryans' hardship was self-created. The Ryans had countered that their hardship was not self-created, but was created by the error of the contractor and/or the architect. The appellate court agreed with the Neighbors. The court acknowledged that variances may be issued when © 2011 Thomson Reuters 3