In an interesting self-created hardship case from Connecticut, an error made by the builder's architect was attributed to the homeowner and disqualified him from obtaining a variance under Connecticut law. In Morikawa v. Zoning Bd. of Appeals of Town of Weston, 126 Conn.App., 2011 WL 341683 (Conn.App.2011), an application for a building permit for a single-family residence was submitted to the Codes Department. The plans were reviewed but rejected because the height of the home was 38 feet, and the zoning ordinance only permitted a maximum height of 35 feet, a not uncommon requirement in many smaller towns and cities.
The building plans were revised and resubmitted and a building permit was issued. At a later time, after the construction was completed, while making an inspection concerning an unrelated issue, the codes enforcement officer noticed that the height of the roof appeared to be over the the maximum. Upon closer inspection, the roof height was 37 feet, 7 inches. Since this was a clear violation of the zoning regulations, the codes enforcement officer issued a cease-and-desist order requiring that the homeowners and bring the property into compliance.
Not surprisingly, the homeowner appeal to the local zoning board. Although the board believed that the cease-and-desist order was issued appropriately, it invited the homeowner to apply for a variance which it suggested it might be inclined to grant based on the fact that there was such a small violation of no apparent harm done to neighboring properties. As a result, an application for a variance was filed.
I certainly cannot claim to be any expert on Connecticut land use law, but a quick review indicates that Connecticut, unlike Tennessee, does not have the Alfred Bettman modified variance provision. That is, Bettman drafted language which rooted variance applications in exceptional physical features of the land, such as exceptional narrowness, shallowness, shape, or topographic conditions. The Connecticut statute is more general following the pattern which is probably the majority rule across the United States, and allows a zoning board to grant variances from zoning ordinances or regulations with respect to a parcel of land when “owing to conditions especially affecting such parcel but not affecting generally the [zoning] district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship…” CGS § 8-6. More about this later.
The defendants submitted three justifications for the variance sought: (1) the defendants relied on independent contractors, an architect and builders who did not check periodically the height of the roof against the plans during construction; (2) the code enforcement officer negligently failed to monitor the construction periodically; and (3) the excess height would not affect the surrounding areas, as the house is set back from the street and the land to the rear of the house is owned by a land trust.
The zoning board granted a variance based on a "de minimis" theory of exceptional hardship. That is, the 2'7" by which the building height exceeded the zoning regulations maximum height was so small that it really was not worthy of enforcement. As a result, the variance was granted.
A neighboring property owner filed an appeal, and one review the trial court reversed. The trial court concluded that there was no theory upon which the board of zoning appeals could grant a variance because the resulting violation was only the minimus. The court found that the difficulty occurred because the contractor looked at the wrong plans. The homeowner maintains that the problem occurred because, although the architect adjusted the height of the roof in the revised plans, he failed to adjust its pitch. Either way, the trial court found that the error was attributable to the homeowner and therefore self-created. One wonders if there was not an underlying thought that the architect revised the plans but that the construction deliberately ignored those revisions based on the wishes of the homeowner. There is no discussion of this anywhere in the Court of Appeals decision, but frankly, having worked in this field for years, it's a bit hard to shake that feeling in the back of your mind that the homeowner was simply trying to get away with something here.
The case was appealed to the Connecticut Court of Appeals:
we conclude that the errors of the architect and/or general contractor that resulted in the roof exceeding the thirty-five foot height requirement are attributable to the defendants because the voluntary acts of those persons were on behalf of the ones whom the variance would benefit. Thus, the hardship claimed is self-created. Moreover, although we can appreciate the plight of the defendants, who relied on the work of the professionals that they hired, we have stated that “[p]ersonal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance . . . [T]he basic zoning principle that zoning regulations must directly affect land, not the owners of land . . . limits the ability of zoning boards to act for personal rather than principled reasons, particularly in the context of variances.”
The homeowner argued for a “de minimis” deviation exception that would obviate the need for the homeowners to prove hardship but the court declined to do so. The authority of a zoning board of appeals to grant a variance is controlled by statute, and § 8-6(a)(3) does not allow a variance unless the applicant proves that there is an “exceptional difficulty or unusual hardship.” See Moon v. Zoning Board of Appeals, supra, 291 Conn. at 24 (“[p]roof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance).
There are several interesting aspects of this case which I would like to discuss in the context of Tennessee land use planning law. We'll take a look at those issues tomorrow.