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Introduction The Zoning Boards of Appeals and the granting of variances are a integral part of the zoning system. However ZBA's and their functions are probably one of the most, if not the most misunderstood and abused aspect of the zoning system. This thesis will attempt to address the issues related to variances and zoning boards of appeals by reviewing Connecticut Zoning Law, related case law, and evaluating the actions and procedures of a particular zoning board of appeals. Statement of Problem Zoning presents a conflict between the individual rights of property owners and the police powers of government, the Zoning Board of Appeals is an integral part of the zoning system. Chapter 124, Section 8-6, of the Connecticut General Statutes provides the ZBA with the authority to prevent a taking by regulation from the conditions imposed upon a property by the zoning regulations. Section 8-6 clearly states that the Zoning Board of Appeals can grant a variance only when a "literal enforcement" of the regulation, due to "conditions especially affecting a parcel of land" not the entire zoning district, "would result in exceptional difficulty or unusual hardship" preventing the owner from use of his land in a reasonable manner. Hypothesis: Without a firm understanding of the complexities of the zoning system and variances, ZBA's tend to make decisions that, while satisfying their personal judgments on property rights, may not correspond with what is legally required and appropriate. Chapter One - Introduction This chapter addresses the zoning boards of appeals and their place within the zoning system. Being a member of the zoning board of appeals is probably one of the most difficult of all land use positions. However, ZBA members must realize that if the zoning regulation is in accordance with the law, the government's right to regulate private property outweighs the individual's right to use his property as he pleases. The ZBA should not grant a variance if the legal requirements of hardship and the harmony clause of Section 8-6 are not met. The zoning system has been created to better serve the public interest and the community as a whole and not cater to the individual needs of property owners. Chapter Two - The Legal Authority and Framework of Zoning Chapter Two provides a summary of issues related to the legal basis for zoning. These issues include the constitutionality of zoning, a taking by regulation, and the police powers of government. In addition, a summary of legal powers of a municipality to adopt, implement and enforce zoning, under the delegation of power from the State of Connecticut, is provided. Chapter Three - The Zoning Board of Appeals The ZBA plays a critical role within the zoning system. Fuller states, "Without authorization to a board of appeals or some similar agency to grant variances, it would be difficult, if not impossible, to keep the law "running on an even keel" and to prevent attacks upon the constitutionality of the zoning ordinance" (Fuller 1993, 146-147). The powers of the Zoning Board of Appeals are established in Sections 8-5, 8-6, and 8-7 of the Connecticut General Statutes. Section 8-6 (Powers and Duties of Board of Appeals) provides the ZBA with its power and duties. The most critical power of the ZBA is the ability vary the zoning regulations: To determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured (CGS, 1958, Revised 1997). Chapter Four - Variances, Hardships, and Harmony Chapter Four introduces the topic of variances, hardship, and the harmony clause. This chapter provides a comprehensive definition of variances by combining the writings of leading land use attorneys and adding a land use official's perspective. The definition is as follows: A variance is an exception granted to the owner (present or future) of a parcel of land, giving the legal right to violate a specific term of the zoning regulations, because the literal enforcement of the said zoning regulation would result in an unusual hardship and restrict any reasonable use of said land, due to special conditions of the land related to size, shape, location, and/or topography and not affecting other parcels in the zoning district, and where granting the said variance would not conflict with the harmony and general intent of the comprehensive plan of zoning and/or the public welfare. Hardship can be defined as, "resulting from the peculiar topography or condition of the land, or a particular location which makes the property unsuitable for the use permitted in the zone in which it lies, may well be such a hardship as contemplated by the ordinance" (Byrne 1986, 58). The harmony clause is a requirement in Section 8-6 of the CGS, that any variance granted must be in harmony with the general intent of the comprehensive plan of zoning. The courts have been very clear that hardships cannot be financial, self created or personal in nature (Byrne 1986). Financial hardships are considered only if not granting a variance would result in a taking. ZBA's must understand hardship and harmony and not let their decisions be swayed by hardship claims that do not meet these legal standards. Chapter Five - East Hartford Zoning Board of Appeals Case Study Chapter five focuses on the Town of East Hartford as a case study review of its zoning board of appeals. This case study will provide a historical review of the board, and an in-depth review of current applications, policies, and procedures. The intent is to provide a reasonable understanding of problems within the zoning system and their cause and effect relationship with the ZBA. The methodology used for this research can be divided into four main steps, general review of ZBA records, evaluation and analysis of the ZBA Index files, detailed evaluation and analysis of the 1995, 1996, and 1997 ZBA Application Files, and review and analysis of the ZBA policies and procedures. STEP I: General Review of ZBA Records Step one identifies and reviews the records of the ZBA. These records included the minutes of the board, the application files for each variance, the ZBA index file, and documentation related to ZBA policies and procedures. The ZBA Index File was the most consistent record of the ZBA since the 1940's and provided accurate summary of applications and the actions of the board. STEP II: ZBA Index File, Evaluation and Analysis The ZBA Index File was evaluated card by card and general information about each card was entered into a spread sheet. This included the address and date for approval or denial. STEP III: 1995,1996, and 199 7 Applications and Case Study A detailed review of all 130 applications for variances from 1995, 1996, and 1997 was conducted. Of these 130 applications, fifteen were used as individual cases of typical applications. STEP IV: ZBA Policies and Procedures, Evaluation and Analysis This evaluation included a comparative analysis of the policies and procedure of the East Hartford Zoning Board of Appeals to the procedures required for ZBA's by the Connecticut General Statutes. Fifteen Sample Applications for Variance These applications were chosen based on their issues and the regulations to be varied. The intent was to cover many different sections of the regulations and types of variances. Therefore, the applications represent both use and area variances, and specific issues such as signs, accessory structures, accessory uses, parking, setbacks, non-conforming uses, and permitted uses are all depicted here. Chapter Six - Findings of the East Hartford Zoning Board of Appeals Chapter Six combines the legal foundation developed in chapters one through four with the case study, to prove that the actions of the East Hartford Zoning Board of Appeals support the hypothesis stated in chapter one. EHZBA and Dealing with Variances Since 1941 the ZBA acted upon 2,917 applications and appeals. Of these, 2,808 had information about the approval and/or denial of the applications. Of the 2,808 applications, 2,096 (75%) variances were approved by the ZBA. In addition, 256 properties have had more than one variance application approved. Of these 256 properties, 168 have two variances, 52 have three, 25 have four, 5 have five variances, 4 properties have six, I property has seven, and I property eight variances (EHZBA, Index). The courts have stated that the ZBA's granting of variances should be done sparingly and only in extreme circumstances, it is evident that the East Hartford ZBA does not grant variances "sparingly", with its 75 percent approval rate. Applications from 1995, 1996, and 1997 From January of 1995 through December 1997 the East Hartford Zoning Board of Appeals heard 130 applications for variance and approved 86 percent. The most common variances applied for were signs, accessory structures, and area variances. Case Study Findings The Case Study provides an in-depth look at the procedures and actions of the ZBA on applications for variances. Five main problems, hardship, issues perceived as justifiable property rights by the board, reasons for decisions, conditions of approvals, and legislative issues, were identified. • The absence of discussions of hardship provide good reason to believe that the East Hartford Zoning Board of Appeals does not understand the requirements for hardship, the complexities of zoning, and its role as a zoning board of appeals within the zoning system. • Application after application, the ZBA discussed "feel good" issues which were not relevant to the requirements for a variance. It is these discussions that provide insight into the ZBA basing its decisions to grant variances on what it perceives as justifiable property rights. • The conditions of approval imposed by the East Hartford ZBA do not meet this standard set by the courts for conditions and their actions related to conditions were arbitrary. • Reasons for approvals used by the board were shown to be vague and did not to address the issues of hardship and harmony. These vague reasons may add further to the board's lack of understanding its role and may also undermine its ability to act properly. • The ZBA failed to recognize its role as quasi-judicial board and acted in the legislative manner. An example is granting a use variance for a use not permitted in a zoning district. Granting such a variance is the equivalent of granting a zone change, which is a legislative function. Conclusion The problems related to the East Hartford ZBA contain a similar theme: The ZBA does not understand the standard for hardship and their role within the zoning system. The actions of the board are arbitrary and their failure to address the issues of hardship and harmony. Chapter Seven - Introduction The East Hartford Case Study clearly shows that the variances granted by the ZBA do not meet the legal requirements for the granting a variance. The strongest argument to support this fact is the ZBA's failure to address hardship claims and specific conditions of the property and how the property is impacted by the regulations. Recommendations The conclusion that the granting of variances by the East Hartford ZBA do not meet the legal requirement is not surprising. However, the ZBA's lack of understanding of its role within the zoning system was an unexpected finding. Therefore, the following are recommendations for action that should be taken to better address the granting of variances. • Further education and training is needed for land use commissions and their members. This may require amending Statutes to require some form of training. • Improve public awareness and education for property owners about the zoning system and the need and reason for land use controls is also necessary. The main recommendation is the introduction of a process to better evaluate variance applications. This system was developed as a result of the findings and provides a means to focus the attention of the ZBA on the issues and only those issues that they should concern themselves with. Criteria for Land Based Evaluation of Variance Applications This procedure focuses the ZBA's attention on the characteristics of the zone, the zoning regulation, and the applicant's property. This land based criteria is performed through a series of questions that the ZBA should ask regarding the application, the regulations, the zoning district, and the applicant's parcel. This provides the ZBA the ability applications within the statutory authority for variances. Conclusions The ZBA play a quasi-judicial role within the zoning system. The East Hartford ZBA's failure to understand their role within the zoning system and their granting of variances to satisfy what its perceives as justifiable property rights, casts doubt on the intent and fairness of the zoning system. The Land Based Variance Review system provides the ZBA with a tool that can both educate the ZBA and public, and a procedure that can aid the ZBA in acting effectively with their legal authority. |
CCSU Theses & Dissertations
