Agenda - Planning Commission - 03/03/2016

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Zoning Bulletin February 10, 2016 I Volume 10 1 Issue 3 CONNECTICUT (12/22/15)—This case addressed the issue of whether peculiar characteristics of a property that made it difficult to construct a second story on a building that would comply with zoning setback requirements justified the granting of a variance from setback requirements, where the property would have had economic value even if the variance were denied. The Background/Facts: 1460 Post Road, LLC (the "Applicant") owned a building in the Town of Fairfield (the "Town"). The building was located in the Town's central design business district. The building was a single -story building, while most of the properties in the same zoning district were two stories. The building was located on a corner lot and thus subject to two separate street setback requirements. The Applicant sought to add a second story to the building so that it could lease the building to a "quality restaurant," providing "sufficient storage and office space" for that use. In furtherance of that proposal, the Applicant filed an application with the Town's Zoning Board of Appeals (the "Board"), seeking variances of the street line and rear property line setback requirements so that it could add a second story to its building. The. Board, without providing explanation, approved the Applicant's variance application. E & F Associates, LLC ("E & F"), which owned land abutting the Applicant's property, appealed the Board's decision. E & F pointed to the Applicant's own admission that it had received numerous offers to lease the existing one-story building from "a major coffee/donut shop, several national fast food retailers and other high turnover food establishments." E & F maintained that the Board could not reasonably have found that the strict application of the zoning regulations would produce unusual hardship when the property had several uses even without the variances. The trial court concluded that, "because the configuration of the prop- erty and the building precluded the [A]pplicant from expanding the building vertically without running afoul of the setback regulations, the regulations produced a hardship justifying the approval of the variance application." Accordingly, the trial court dismissed the appeal. E & F.again appealed. DECISION: Judgment of superior court reversed, and matter remanded with direction. The Supreme Court of Connecticut held that, the peculiar characteris- tics of the Applicant's property, which made it difficult to construct a second story on the building that would comply with the zoning setback requirements, did not justify granting a variance. In so holding, the court explained that a variance constitutes permis- sion to act in a manner that is otherwise prohibited under the zoning law of the town, and therefore the granting of a variance "must be reserved © 2016 Thomson Reuters 7