E&F Associates LLC v. Zoning Board of Appeals of the Town of Fairfield; E&F Associates LLC v. Plan and Zoning
Owner Of Property Built On Property Line Proved Hardship
Land Use and Planning | Residential and Commercial Real Estate
- Superior Court
- CV12-6026129S and CV12-6028919S
- Jun 26 2013 (Date Decided)
- Radcliffe, J.
A property's location on the property line on a corner lot, without any ability to expand vertically without violating setback requirements, can be sufficient to establish hardship. The defendant, Fourteen Hundred Sixty Post Road LLC, owns property in Fairfield Center that was built on the property line, prior to the adoption of zoning regulations, and that is nonconforming with respect to setback requirements. The defendant requested variances and a zoning permit, to permit the defendant to renovate and to build an addition, because it hopes to attract a boutique restaurant on the first floor, and to furnish office space on the second floor. The zoning board of appeals approved the defendant's request for variances, to expand or to enlarge the nonconformity. Plaintiff E&F Associates, which owns adjacent property, filed a timely appeal. To grant a variance the ZBA must find: 1.) the variance does not affect substantially the municipal comprehensive plan; and 2.) adherence to the zoning ordinance would cause unusual hardship, unnecessary to the carrying out of the general purpose of the zoning plan. Evidence in the record established that other buildings in the area are multi-storied and that restaurants are permitted uses. The court found that the proposed use of the property was consistent with the municipal comprehensive plan. Substantial evidence supported the ZBA's conclusion that a hardship existed, because of the subject property's location on the property line on a corner lot, and the defendant's inability to expand the structure vertically, without violating setback requirements. No evidence existed that the plaintiff previously raised the issue of possible bias, because the defendant's attorney at the time of the public hearing also was a member of the municipal board of selectmen and an ex officio member, without any vote, of every municipal board. A presumption exists that members of an administrative agency are not biased. "The record," wrote the court, "contains not a scintilla of evidence to suggest a claim of actual bias." The attorneys for the plaintiff and the defendant have represented their clients "zealously" and "within the bounds of propriety," and the court dismissed the plaintiff's appeals.