Agenda - Planning Commission - 09/07/1999

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Page 8 August 10, 1999 Z.B. Variance -- Must owner show hardship to remove variance conditions? CONNECTICUT (7/6/99) -- Fleet National Bank held property in trust for the benefit of a church. It was a lakefront lot, just under a third of an acre. Fleet's property was bordered to the north and south by year-round resi- dences. It had about 82 feet of street frontage and tapered to 62 feet of lake frontage. The town's zoning regulations required a 35-foot sideyard setback. In t993, the town zoning board granted Fleet a variance so it could build a seasonal cottage on the property. The variance reduced the sideyard setbacks by 9 feet and 12 feet, respectively. The board also imposed conditions on the variance, including one that limited any building on the property to a seasonal cottage of no more than 640 square feet. Fleet tried to sell the property, but claimed it couldn't sell it for a satisfac- tory price because of the attached conditions. In 199'7, Fleet asked the board to modify the variance by removing the conditions. The board refused to remove the conditions, claiming Fleet didn't show a hardship. According to the minutes of the board's hearing, the board granted the variance because it wanted Fleet to have some use of the property but it limited construction to a small, seasOnal cottage because the shape of the lot meant any building would be close to the abutting properties. Fleet appealed to court, claiming circumstances had changed so much the conditions were now unreasonable and shouldn't be considered part of the board's decision to grant the variance. Fleet claimed the board limited con- struction to a small, seasonal cottage to limit contamination of the lake by year-round use of septic systems. It said all the properties on the road had since connected with the municipal sewer system, so there was no longer a need to distinguish between the seasonal and year-round dwellings. The court reversed, finding the board improperly required Fleet to show hardship to secure removal of the variance conditions. According to the court, all Fleet had to show was a material change in circumstances. The board appealed, claiming the court improperly found it had to remove the conditions based on a "material change in circumstances" instead of the hardship the applicant had to show to get the initial variance. DECISION: Reversed. The zoning board properly refused to remove the conditions. Fleet's claim that the board img..o, sed the conditions to limit further con- tamination of the lake was mere speculation. The minutes of the hearing on whether to remove the conditions indicated the board limited the size and use of any building on the property because the lot's shape meant any construction would be close '~o the abutting properties. This meant the conditions ,,vere an integral part of the board's decision to grant the variance, so couldn't be re- moved unless Fleet established hardsh? - just like it had to establish hard- ship when it got the variance. Fleet National Bank v. Zoning Board of Appeals of the Town of Winchester, Appellate Court of Connecticut, No. A C 18262 (J999).