Schulhof v. Zoning Board of Appeals of the City of Norwalk
When strict adherence to zoning regulations effectively prohibit construction of a permitted use, a variance is proper. The plaintiffs, Thomas and Anne Schulhof, appealed from the trial court's judgment dismissing their appeal from the decision of the defendant Norwalk zoning board of appeals. The plaintiffs contended that the court improperly sustained the board's decision to grant an application for a setback variance for the defendant, Cedar Hammocks Island, LLC, which owns Cedar Hammocks Island. The application called for the removal of an existing eight foot by 12 foot structure and construction of a 666 square foot boathouse at a higher elevation on the 0.23 acre, crescent-shaped island. The Appellate Court affirmed the judgment, finding that the trial court properly affirmed the board's decision based on hardship. The plaintiffs unsuccessfully claimed that the court improperly sustained the board's granting of the 2010 application for a setback variance based on a hardship that was not unusual, unique or in harmony with Norwalk's comprehensive zoning plan. The trial court found that the 1974 zoning reclassification of the island from a B residence zone to a conservation zone, adopted a 50 foot mean high water mark setback and, on Cedar Hammocks Island, the tiniest of the Norwalk islands, the 50 foot setback lines overlap, effectively preventing any structure from being built. The trial court properly found a hardship existed as the small size, shape, and topography of the island, and the 1974 setback requirements rendered it impossible to build any permitted structure on the island. The court properly concluded that without a setback variance there is no place on the island for the owner to construct a boathouse and that strict adherence to the regulations would greatly decrease the value of the island for a permitted use, a boat house. The plaintiff's argument that the variance constitutes an enlargement of a nonconforming structure overlooks the fact that the existing structure is to be demolished and the boathouse situated at a higher elevation. Hardship was unique to the island too small to accommodate the setback from the mean high water mark. If the setbacks were strictly applied, no structure could be built and a variance was proper.