hardship requirement in Connecticut

2020The trial court sustained the plaintiffs’ appeal, concluding that the plaintiffs demonstrated an unusual hardship on the basis of the destruction of their previous home and the need to comply with applica- ble federal and state flood elevation requirements, and that their pro- posal qualified under the narrow exception to the hardship requirement set forth in Adolphson v. Zoning Board of Appeals ( 205 Conn. 703 ), because the proposed house would reduce nonconformities in relation to the previous house.

2020On appeal, the board claims that the trial court erroneously sustained the appeal, and causes us to consider (1) whether the plaintiffs demonstrated a legally cognizable hardship, and (2) whether the plaintiffs’ proposal qualifies under the exception to the hardship requirement set forth in Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 710 , 535 A.2d 799 (1988), and its progeny.1 We reverse the judgment of the trial court.

1995Corporation v. Zoning Board of Appeals , 152 Conn. 327 , 329 (1965) (that zone was conducive to requested use, adjoined a railroad right of way and would not be detrimental did not support granting of variance); see also Grillo v. Zoning Board of Appeals , 206 Conn. 362 , 372 , CT Page 12360 537 A.2d 1030 (1988) (that use already permitted does not warrant granting of variance); Carini v. Zoning Board of Appeals , 164 Conn. 169 , 319 A.2d 390 (1972), cert. denied, 414 U.S. 831 , 94 S.Ct. 64 , 38 L.Ed.2d 66 , reh. denied, 414 U.S. 1087 (1973) (variance for rooming house properly denied despite

1993"It is for this reason that the rule is well established that the financial loss or the potential of financial advantage to the applicant is not a proper basis for a variance." Accord: Laurel Beach Assn. v. ZBA, 166 Conn. 385 , 387-388 ; Ward v. ZBA, 153 Conn. 141 , 143 , where the court says: "The hardship requirement is a fundamental one in innumerable opinions of this court in recent years . . . ." and the burden of proof rests with the applicant. 83 Am.Jur.2d, Zoning Planning, 784: "The burden of proof is heavy, and the reasons for granting [a variance] must be substantial." Without provin

1993"It is for this reason that the rule is well established that the financial loss or the potential of financial advantage to the applicant is not a proper basis for a variance." Accord: Laurel Beach Assn. v. ZBA, 166 Conn. 385 , 387-388 ; Ward v. ZBA, 153 Conn. 141 , 143 , where the court says: "The hardship requirement is a fundamental one in innumerable opinions of this court in recent years . . . ." and the burden of proof rests with the applicant. 83 Am.Jur.2d, Zoning Planning, 784: "The burden of proof is heavy, and the reasons for granting [a variance] must be substantial." Without provin

1990Ward v. Zoning Board of Appeals, 153 Conn. 141 , 143 (1965).

1965Makar v. Zoning Board of Appeals, 150 Conn. 391, 396 , 190 A.2d 45 .

1965Makar v. Zoning Board of Appeals, 150 Conn. 391, 396 , 190 A.2d 45 .

2020Adolphson does not stand for the proposition that the reduction in one non- conformity allows as a tradeoff the increase in, or cre- ation of, another nonconformity.’’ (Internal quotation marks omitted.) We agree with the board that the pres- ent case does not qualify under the Adolphson excep- tion to the hardship requirement.17 ‘‘In cases in which an extreme hardship has not been established, the reduction of a nonconforming use to a less offensive prohibited use may constitute an inde- pendent ground for granting a variance.’’ Vine v. Zoning Board of Appeals, 281 Conn. 553, 562 , 916 A.2d 5

2020Adolphson does not stand for the proposition that the reduction in one non- conformity allows as a tradeoff the increase in, or cre- ation of, another nonconformity.’’ (Internal quotation marks omitted.) We agree with the board that the pres- ent case does not qualify under the Adolphson excep- tion to the hardship requirement.17 ‘‘In cases in which an extreme hardship has not been established, the reduction of a nonconforming use to a less offensive prohibited use may constitute an inde- pendent ground for granting a variance.’’ Vine v. Zoning Board of Appeals, 281 Conn. 553, 562 , 916 A.2d 5

2019Financial considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations to the property greatly decreases or practically destroys its value for any of the uses to which it could reason- ably be put and where the regulations, as applied, bear so little relationship to the purposes of zoning that, as to particular premises, the regulations have a confiscatory or arbitrary effect.’’ [Internal quotation marks omitted.]); Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369 , 537 A.2d 1030 (1988) (same). 12 A good examp

2019Financial considerations are relevant only in those exceptional situations where a board could reasonably find that the application of the regulations to the property greatly decreases or practically destroys its value for any of the uses to which it could reason- ably be put and where the regulations, as applied, bear so little relationship to the purposes of zoning that, as to particular premises, the regulations have a confiscatory or arbitrary effect.’’ [Internal quotation marks omitted.]); Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369 , 537 A.2d 1030 (1988) (same). 12 A good examp

2016After considering the language of the regulations and its plan for development, we conclude that the board's decision was not "so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it...." Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. at 105 , 616 A.2d 793 .

2016After considering the language of the regulations and its plan for development, we conclude that the board's decision was not "so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it...." Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. at 105 , 616 A.2d 793 .

2015An applicant’s burden with respect to the hardship requirement, there- fore, is twofold, as it must establish both the existence of a ‘‘sufficient hardship’’ and that ‘‘the claimed hardship is . . . unique . . . .’’ Francini v. Zoning Board of Appeals, 228 Conn. 785, 787 , 639 A.2d 519 (1994).

2015An applicant’s burden with respect to the hardship requirement, there- fore, is twofold, as it must establish both the existence of a ‘‘sufficient hardship’’ and that ‘‘the claimed hardship is . . . unique . . . .’’ Francini v. Zoning Board of Appeals, 228 Conn. 785, 787 , 639 A.2d 519 (1994).

2015If the measure to be applied merely is whether an applicant is proposing a use of the prop- erty that is ‘‘within reason,’’ as was suggested by one board member during the public hearing, then we arrive at a place where ‘‘most setback variance applications would have to be granted.’’ (Internal quotation marks omitted.) Bloom v. Zoning Board of Appeals, supra, 233 Conn. 211 n.13 .

2015Having concluded that Stillman is factually distinguishable from this case, we also disagree with the defendants’ assertion that Stillman modified the hardship standard when it allegedly ‘‘rejected’’ a ‘‘strict interpretation of the hardship test’’ for instances in which an applicant already possessed ‘‘a reasonable use of their land.’’ It is axiomatic that this court ‘‘is not free to depart from or modify the precedent of our Supreme Court.’’ Three Levels Corp. v. Conservation Commission, 148 Conn. App. 91, 113 , 89 A.3d 3 (2014).

2015Having concluded that Stillman is factually distinguishable from this case, we also disagree with the defendants’ assertion that Stillman modified the hardship standard when it allegedly ‘‘rejected’’ a ‘‘strict interpretation of the hardship test’’ for instances in which an applicant already possessed ‘‘a reasonable use of their land.’’ It is axiomatic that this court ‘‘is not free to depart from or modify the precedent of our Supreme Court.’’ Three Levels Corp. v. Conservation Commission, 148 Conn. App. 91, 113 , 89 A.3d 3 (2014).

2007Id.

2002Of Appeals, Superior Court, Judicial District of Stamford, Docket No. 0169017 (January 17, 2001), 2001 Ct. Sup. 1090 , and the preservation of trees on a lot; Ryan v. Farmington Zoning Board of Appeals, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. 513984 (February 4, 1994).

1995Corporation v. Zoning Board of Appeals , 152 Conn. 327 , 329 (1965) (that zone was conducive to requested use, adjoined a railroad right of way and would not be detrimental did not support granting of variance); see also Grillo v. Zoning Board of Appeals , 206 Conn. 362 , 372 , CT Page 12360 537 A.2d 1030 (1988) (that use already permitted does not warrant granting of variance); Carini v. Zoning Board of Appeals , 164 Conn. 169 , 319 A.2d 390 (1972), cert. denied, 414 U.S. 831 , 94 S.Ct. 64 , 38 L.Ed.2d 66 , reh. denied, 414 U.S. 1087 (1973) (variance for rooming house properly denied despite

1995Corporation v. Zoning Board of Appeals , 152 Conn. 327 , 329 (1965) (that zone was conducive to requested use, adjoined a railroad right of way and would not be detrimental did not support granting of variance); see also Grillo v. Zoning Board of Appeals , 206 Conn. 362 , 372 , CT Page 12360 537 A.2d 1030 (1988) (that use already permitted does not warrant granting of variance); Carini v. Zoning Board of Appeals , 164 Conn. 169 , 319 A.2d 390 (1972), cert. denied, 414 U.S. 831 , 94 S.Ct. 64 , 38 L.Ed.2d 66 , reh. denied, 414 U.S. 1087 (1973) (variance for rooming house properly denied despite

1995Corporation v. Zoning Board of Appeals , 152 Conn. 327 , 329 (1965) (that zone was conducive to requested use, adjoined a railroad right of way and would not be detrimental did not support granting of variance); see also Grillo v. Zoning Board of Appeals , 206 Conn. 362 , 372 , CT Page 12360 537 A.2d 1030 (1988) (that use already permitted does not warrant granting of variance); Carini v. Zoning Board of Appeals , 164 Conn. 169 , 319 A.2d 390 (1972), cert. denied, 414 U.S. 831 , 94 S.Ct. 64 , 38 L.Ed.2d 66 , reh. denied, 414 U.S. 1087 (1973) (variance for rooming house properly denied despite

1995Corporation v. Zoning Board of Appeals , 152 Conn. 327 , 329 (1965) (that zone was conducive to requested use, adjoined a railroad right of way and would not be detrimental did not support granting of variance); see also Grillo v. Zoning Board of Appeals , 206 Conn. 362 , 372 , CT Page 12360 537 A.2d 1030 (1988) (that use already permitted does not warrant granting of variance); Carini v. Zoning Board of Appeals , 164 Conn. 169 , 319 A.2d 390 (1972), cert. denied, 414 U.S. 831 , 94 S.Ct. 64 , 38 L.Ed.2d 66 , reh. denied, 414 U.S. 1087 (1973) (variance for rooming house properly denied despite

1995Corporation v. Zoning Board of Appeals , 152 Conn. 327 , 329 (1965) (that zone was conducive to requested use, adjoined a railroad right of way and would not be detrimental did not support granting of variance); see also Grillo v. Zoning Board of Appeals , 206 Conn. 362 , 372 , CT Page 12360 537 A.2d 1030 (1988) (that use already permitted does not warrant granting of variance); Carini v. Zoning Board of Appeals , 164 Conn. 169 , 319 A.2d 390 (1972), cert. denied, 414 U.S. 831 , 94 S.Ct. 64 , 38 L.Ed.2d 66 , reh. denied, 414 U.S. 1087 (1973) (variance for rooming house properly denied despite

1995Corporation v. Zoning Board of Appeals , 152 Conn. 327 , 329 (1965) (that zone was conducive to requested use, adjoined a railroad right of way and would not be detrimental did not support granting of variance); see also Grillo v. Zoning Board of Appeals , 206 Conn. 362 , 372 , CT Page 12360 537 A.2d 1030 (1988) (that use already permitted does not warrant granting of variance); Carini v. Zoning Board of Appeals , 164 Conn. 169 , 319 A.2d 390 (1972), cert. denied, 414 U.S. 831 , 94 S.Ct. 64 , 38 L.Ed.2d 66 , reh. denied, 414 U.S. 1087 (1973) (variance for rooming house properly denied despite

1995Corporation v. Zoning Board of Appeals , 152 Conn. 327 , 329 (1965) (that zone was conducive to requested use, adjoined a railroad right of way and would not be detrimental did not support granting of variance); see also Grillo v. Zoning Board of Appeals , 206 Conn. 362 , 372 , CT Page 12360 537 A.2d 1030 (1988) (that use already permitted does not warrant granting of variance); Carini v. Zoning Board of Appeals , 164 Conn. 169 , 319 A.2d 390 (1972), cert. denied, 414 U.S. 831 , 94 S.Ct. 64 , 38 L.Ed.2d 66 , reh. denied, 414 U.S. 1087 (1973) (variance for rooming house properly denied despite

1995Corporation v. Zoning Board of Appeals , 152 Conn. 327 , 329 (1965) (that zone was conducive to requested use, adjoined a railroad right of way and would not be detrimental did not support granting of variance); see also Grillo v. Zoning Board of Appeals , 206 Conn. 362 , 372 , CT Page 12360 537 A.2d 1030 (1988) (that use already permitted does not warrant granting of variance); Carini v. Zoning Board of Appeals , 164 Conn. 169 , 319 A.2d 390 (1972), cert. denied, 414 U.S. 831 , 94 S.Ct. 64 , 38 L.Ed.2d 66 , reh. denied, 414 U.S. 1087 (1973) (variance for rooming house properly denied despite

1995Corporation v. Zoning Board of Appeals , 152 Conn. 327 , 329 (1965) (that zone was conducive to requested use, adjoined a railroad right of way and would not be detrimental did not support granting of variance); see also Grillo v. Zoning Board of Appeals , 206 Conn. 362 , 372 , CT Page 12360 537 A.2d 1030 (1988) (that use already permitted does not warrant granting of variance); Carini v. Zoning Board of Appeals , 164 Conn. 169 , 319 A.2d 390 (1972), cert. denied, 414 U.S. 831 , 94 S.Ct. 64 , 38 L.Ed.2d 66 , reh. denied, 414 U.S. 1087 (1973) (variance for rooming house properly denied despite

1995Corporation v. Zoning Board of Appeals , 152 Conn. 327 , 329 (1965) (that zone was conducive to requested use, adjoined a railroad right of way and would not be detrimental did not support granting of variance); see also Grillo v. Zoning Board of Appeals , 206 Conn. 362 , 372 , CT Page 12360 537 A.2d 1030 (1988) (that use already permitted does not warrant granting of variance); Carini v. Zoning Board of Appeals , 164 Conn. 169 , 319 A.2d 390 (1972), cert. denied, 414 U.S. 831 , 94 S.Ct. 64 , 38 L.Ed.2d 66 , reh. denied, 414 U.S. 1087 (1973) (variance for rooming house properly denied despite

1995Corporation v. Zoning Board of Appeals , 152 Conn. 327 , 329 (1965) (that zone was conducive to requested use, adjoined a railroad right of way and would not be detrimental did not support granting of variance); see also Grillo v. Zoning Board of Appeals , 206 Conn. 362 , 372 , CT Page 12360 537 A.2d 1030 (1988) (that use already permitted does not warrant granting of variance); Carini v. Zoning Board of Appeals , 164 Conn. 169 , 319 A.2d 390 (1972), cert. denied, 414 U.S. 831 , 94 S.Ct. 64 , 38 L.Ed.2d 66 , reh. denied, 414 U.S. 1087 (1973) (variance for rooming house properly denied despite

1994A zoning board or appeals derives its authority to grant a variance from General Statutes § 8-6 (3), which provides in relevant part that the ZBA may grant variances: `with respect to a parcel of land where, owing 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.' CT Page 5948 Haines v. Zoning Board of Appeals , 26 Conn. App. 187 ,

1994Whittaker v. Zoning Board of Appeals, 179 Conn. 650 656, 427 A.2d 1346 (1980); Miclon v. Zoning Board of Appeals, 173 Conn. 420 , 423 , 424 , 378 A.2d 531 (1977).

1994Whittaker v. Zoning Board of Appeals, 179 Conn. 650 656, 427 A.2d 1346 (1980); Miclon v. Zoning Board of Appeals, 173 Conn. 420 , 423 , 424 , 378 A.2d 531 (1977).

1991In Allen v. Zoning Board of Appeals, 155 Conn. 506 , 511 (1967) topographical difficulty and a deed restriction as to the location of garages, coupled with the landowner's desire to have a garage on his residential property, were not held to satisfy the hardship standard of 8-6 C.G.S.

1965See, e.g., Krejpcio v. Zoning Board of Appeals, 152 Conn. 657 , 211 A.2d 687 ; Cymerys v. Zoning Board of Appeals, 151 Conn. 49 , 193 A.2d 521 ; Makar v. Zoning Board of Appeals, 150 Conn. 391 , 190 A.2d 45 .

1965See, e.g., Krejpcio v. Zoning Board of Appeals, 152 Conn. 657 , 211 A.2d 687 ; Cymerys v. Zoning Board of Appeals, 151 Conn. 49 , 193 A.2d 521 ; Makar v. Zoning Board of Appeals, 150 Conn. 391 , 190 A.2d 45 .