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Russo v. Zoning Board of Appeals

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

September 3, 2015

Carmelina Russo et al.
v.
Zoning Board of Appeals of the Town of Westport et al

Filed Date September 4, 2015

MEMORANDUM OF DECISION

Dale W. Radcliffe, J.

The Defendants, Richard Benson and RB Properties, LLC, are the owners of property known as 12 Sterling Drive, Westport (ROR 1), having purchased the real estate in March of 2012. Richard Benson's wife, Tonya, is a co-owner of the parcel under the name RB Properties, LLC. (TR, 4-22-14, p. 1-2.)

12 Sterling Drive, which consists of .11 acres, is located in an AA Residence (one acre) Zone, and is therefore nonconforming as to lot area. A single-family residence situated on the property was built in the 1920s. It consists of 1, 374 square feet, and contains seven (7) rooms, including two (2) bedrooms.

On February 28, 2014, Richard Benson and RB Properties, LLC, submitted a request for multiple variances to the Defendant, Zoning Board of Appeals of the Town of Westport. The variances were requested as part of a proposal to demolish the existing residence, and to construct a new, single-family residence on the parcel (ROR 1). An application for a demolition permit (ROR 5) was filed with the Town of Westport Building Department.

Although it was constructed in the 1920s, prior to the adoption of zoning regulations by the Town of Westport, the existing structure is subject to variances granted in 1996, to the Defendants' predecessor in title (Supplemental ROR). The variances were sought and obtained in conjunction with the construction of a deck and a third-floor dormer on the structure (Supplemental ROR 2 & 3).

The 1996 variances, which are recorded at Volume 1428, Page 160 of the Westport Land Records, involved the following sections of the Westport Zoning Regulations (Supplemental ROR 1):

1) Section 6-3 (nonconforming lot area and slope);
2) Sections 12-4 & 6-3 (front setback, 19 feet instead of twenty 20 feet);
3) Sections 12-5 & 6-3 (Three (3) stories instead of two (2)); and
4) Sections 12-6, 6-2 & 6-4 (total coverage over 25 percent).

The variances were conditioned upon construction in accordance with specific plans. The condition imposed by the Westport Zoning Board of Appeals provided: " The project must be built in conformance with approved plans. The structure cannot be demolished, unless it has been specifically requested in the application." (Supplemental ROR 1.)

The Defendants, Richard Benson and RB Properties, LLC, propose to build a single-family residence which is much larger than the present building. Instead of a 1, 374-square-foot structure, the proposal calls for a 3, 311-square-foot edifice, consisting or five (5) bedrooms, three (3) elevated outdoor decks and a two-car garage (ROR 11). The 3, 311-square-foot figure does not include the 419-square-foot garage, but does include a finished basement (740 square feet), a first and a second floor (each 1159 square feet), and a one-half story (253 square feet).

In order to construct the proposed dwelling, the Defendants were required to seek a variance of Section 6-2.1.6 of the Zoning Regulations. That section, which is applicable to new construction, reads: " All new construction will be in accordance with these regulations."

Because the .11-acre parcel is legally nonconforming as to area, Section 6-3 is also implicated, and a variance is necessary. That section reads: " A new building . . . on a nonconforming lot shall comply with all applicable requirements of the zoning district in which it is located, except for setbacks."

12 Sterling Drive is subject to the Zoning Regulations applicable to a AA Residential Zone.

Concerning the regulations which are specifically applicable to a Residence AA District, the property owner requested a variance of the coverage requirements in Section 12-6. The section reads: " The total coverage shall not exceed twenty-five percent (25%) of the lot area . . ."

The existing structure is subject to a coverage variance which was granted in 1996, which Richard Benson claims will be slightly reduced from 33.42 or 33.47 to 33.4 percent. (TR 4-22-14, p. 5.)

However, the Zoning Regulations applicable to the existing building prohibit any expansion of that structure, because the coverage is in excess of the twenty-five percent (25%) of the lot area maximum, provided by Section 12-6 of the Regulations. Section 6-2.2 of the Regulations states:

If an existing building or structure does not conform to the building coverage requirements in a residential zone A, B or any non-residential zone or the total coverage requirements in a residence zone AA or AAA, it shall not be expanded or extended.

Therefore, a variance of Section 12-6 permits the owner to accomplish through new construction an increase in the size of the dwelling which cannot be accomplished by renovating or enlarging the existing structure, in light of Section 6-2.2 of the existing Regulations.

A variance was also sought, to permit two and one-half stories, rather than the maximum of two (2) structures, mandated by Section 6-3.3 and Section 12-5 of the Westport Regulations.

The proposal also called for the removal of the nonconforming patio in the existing structure, and a nonconforming retaining wall.

A public hearing on the requested variances was noticed for April 22, 2014 (ROR 18).

The applicant, Richard Benson, in presenting the application, compared and contrasted the variances granted in 1996 with those which he was seeking in connection with the proposed new construction. He pointed out that the coverage variance was substantially the same, and that the 1996 variance provided for three stories, and two and one-half stories were proposed. (TR 4-22-14, p. 5-6.) He claimed that the proposal was consistent with the neighborhood, and that the area contains many undersized lots which are subject to variances. He also mentioned crack in the foundation of the structure, and the difficulty he would encounter if he attempted to repair or expand the existing house.

However, when the applicant suggested that living within or reducing the existing variances justified a finding of hardship, Commissioner Ezzes opined that the variances did not run with the land, in this instance: " . . . it (the variance) does not run with the land. It's a new house, and, as you know, whether it's a ZBA in Westport or anywhere, we feel it's incumbent on a new house to conform if that's possible." (TR 4-22-14, p. 14.)

The proposal drew opposition from neighbors, who pointed to the increase in the size of the new home, when contrasted with the existing nonconforming dwelling. (TR 4-22-14, p. 23.) It was explained that the 1996 coverage variance merely confirmed the legally nonconforming coverage applicable to a dwelling which had been built in the 1920s, prior to the adoption of zoning regulations by the Town of Westport in 1930 (TR 4-22-14, p. 18-20).

Following the close of the public hearing, the Defendant, Westport Zoning Board of Appeals, voted to deny the requested height variance, but granted the requested coverage variance (TR 4-22-14, p. ...


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