Agenda - Planning Commission - 09/03/1996

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August 13, 1996 Z.B. Variance-- Surveyor inadvertently stakes sideline too close to neighbor Osborne v. Zoning Board of Appeals of the Town of Guilford, 675 A.2d 917 (ConnecticuO 2996 Conroy owned a summer house on Mulberry Point Road in the town of Guilford, Conn. The house was five feet from the abutting property line, although the town's zoning regulations required an 8-foot sideline setba6k. Most other houses in the area were on nonconforming lots. When Conroy decided to enlarge and winterize'the house, he hired an architect. The architect retained a land surveyor to stake the comers of the foUndation. The surveyor inadvertently staked the sideline at a point only 7.4 feet from'Conroy's west boundary. The error was discovered after con- struction was substantially complete.. The surveyor applied to the town's Zoning Board of Appeals for a Vari- ance frOm the 8-foot sideyard requirement. At ~ board hearing, the surveyor and the architect testified that the architect hired the surveyor. The architect said he, not Conroy, 'decided to hire a surveyor to set the corner stakes because of the "tightness of the lot.". The" board granted the variance. It found the surveyor made. an honest error, and because the house was already built, strict enforcement of the sideyard requirement would cause undue hardship. It also found relevant that most of the other houses in the area were. on nonconforming lots, C0nr°y's new house would not adversely impact the comprehensive plan, and the new house W~as more than two feet farther from the sideline than the old house.. Osborne, Conroy's neighbor to the east, appealed. The court found for Osborne. It found Conroy hired the surveyor who made the mistake, so Conroy's hardship was self-created. Because COnroy created his own hardship, the court ruled, the board, shouldn't, have granted the variance. . -. :- Conroy'appealed. He said the court should not have found he created the hardship himself. He argued the board did not find Conroy hired the sur- veyor, nor did the record support such a finding. DECISION: Reversdd. --' The trial court's decision had to be reversed. The board properly granted Conroy the variance based on Undue hardship. -' Conr°y did not create the hardship himself. The surveyor made the mis- take. The trial court Was wrong to attribute the surveyor's mistake tbl Conroy. The board did not find Conroy hired the surveyor, nor did the evidence show Conroy hired or controlled the surveyor. To the contrary, the testimonY shoWed the architect hired the surveyor, and the surveyor was an independent con- tractor who controlled his own work. Tianti iv. William Ravels Real Estate Inc., 651 A.2d 1286 (1995).