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347 HUMPHREY STREET, LLC, ET AL. v. BOARD

OF ZONING APPEALS OF THE CITY

OF NEW HAVEN ET AL.

(AC 36186)

Lavine, Mullins and Bishop, Js.

Argued February 20—officially released October 6, 2015

(Appeal from Superior Court, judicial district of New

Haven, Hon. William L. Hadden, Jr., judge trial referee.)

Roderick R. Williams, assistant corporation counsel,

for the appellant (named defendant).

Marjorie Shansky, for the appellant (defendant

P.T.R., LLC).

Kenneth A. Votre, with whom was Richard E. Fennelly III, for the appellees (plaintiffs).
Opinion

BISHOP, J. In 2011, the named defendant, the Board

of Zoning Appeals of the City of New Haven (board),

granted an appeal for four variances and an application

for a special exception, with conditions, as requested

by the defendant applicant, P.T.R., LLC.1 The plaintiffs,

347 Humphrey Street, LLC, Rosemarie Morgan, and

Thomas Morgillo,2thereafter appealed from that decision to the Superior Court. The trial court sustained the

appeal,3 concluding, inter alia, that the administrative

record did not substantiate the board’s finding of an

unreasonable hardship, and, therefore, the board had

no legal basis for having granted the requested variances. On appeal, the defendants claim that the court

improperly substituted its judgment for that of the

board when it determined that P.T.R., LLC, did not

demonstrate the existence of a legally cognizable hardship and that the special exception was supported by

the record. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. P.T.R., LLC, is the

owner of real property located at 601-603 Orange Street

in New Haven (property). The property has been used

for the operation of a grocery market since at least

1963. P.T.R., LLC, currently operates a grocery and deli

known as Nica’s Market on the property, which is situated on the east side of Orange Street in the middle

of the block between Humphrey and Bishop Streets.

Orange Street, from several blocks south of Nica’s Market to several blocks north of the market, is located in

a RM-2, high middle density, residential zone.

On February 11, 2011, Joseph Sabino, a member of

P.T.R., LLC, filed an appeal for zoning variances with

the board seeking: (1) to permit lot coverage of 40

percent, where 40 percent already existed and 30 percent is permitted; (2) to permit a first floor grocery net

floor area of 4366 square feet, where 2446 square feet

already existed and 1500 square feet is permitted; (3)

to permit the construction of a conforming building

addition to the nonconforming building; and (4) to permit twenty-four outdoor seats where fifteen are permitted. Also, on February 11, 2011, Rosanna Sabino,

another member of P.T.R., LLC, filed an application

for a special exception for use of the property as a

‘‘Neighborhood Convenience Use (grocery) with

existing take-out component and seasonal outdoor seating at six tables (24 seats)–continuation of long-standing use with conforming alterations to existing nonconforming structure; served by existing parking lot

with 18 spaces.’’

The board held a public hearing on both pending

matters on March 15, 2011. At the outset, Marjorie Shansky, counsel for P.T.R., LLC, provided an overview of

its request, stating that ‘‘by putting a conforming addi-
tion onto [the building] we are seeking to deal with

some very problematic code issues in the rear service

area of the building and to provide a better operational

experience both for the owners and for the neighborhood.’’

Accompanying this presentation was a site plan prepared by architect Gerald Kagan (plan) that detailed

the proposed expansion and changes to the existing

structure,4 and the proposal for shifting the parking lot

and increasing the lot size.5 Kagan provided a review

of the plan, which contained both ‘‘existing’’ and ‘‘proposed’’ depictions of the property. He commented on

the requested changes for both the building and the lot

surrounding the building. He explained that the proposal (1) added twenty feet to the driveway and moved

it over about twenty feet so that it would be in the

middle of the parking lot; (2) created a new loading

zone with a trash compactor in the rear; (3) provided

two handicapped parking spaces and a new bicycle

parking location; (4) increased the first floor area to

provide accessibility for people waiting in line to get

to the deli; (5) increased the size of the kitchen by

approximately twenty square feet; and (6) provided

more space on the second floor for, inter alia, a break

room for employees, two desks, a bathroom, and two

offices.

With regard to the driveway, Kagan explained that,

by adding twenty feet and moving the driveway over

about twenty feet, trailer trucks would now be able to

come into the parking lot more easily and would be able

to back into the loading zone. Kagan further clarified:

‘‘There is a truck loading zone for box trucks. They get

off the street and [its] a straight shot into the parking

lot. And there is a [sufficient] turning radius for those

trucks in the rear of the property to provide [for] loading

and unloading. We have also provided on the side right

here a space for the merchandise to go down into the

cellar. What we are proposing to do is to build a whole

new structure across the back of the building so that

we’re going to remove some of the physical impediments which are on the inside of the structure.’’ Kagan

stated: ‘‘[T]he truck loading is a really, really critical

part of this application and by being able to have accessibility in the rear for these trucks to unload takes a

burden off the street.’’

With regard to the first floor of the building, Kagan

explained that the proposed alterations would provide

an access line for people waiting in line to get to the

deli and that the purpose of the plan was to ‘‘make the

front of the store, the existing store, totally accessible.’’

Next, he described the proposed changes to the kitchen.

Specifically, Kagan told the board that the plan called

for a complete removal of the existing kitchen on the

property and that the new kitchen would be more accessible and have ‘‘the ability for people to work in an
efficient manner.’’ Finally, Kagan described the layout

for the second floor and explained that the plan would

provide ‘‘a break room for the employees, space for

two desks, a bathroom and [two] office[s] . . . .’’

Shansky then spoke again on behalf of P.T.R., LLC.

Shansky stressed that the granting of the variances

would bring the property more into compliance with

the zoning regulations and would therefore achieve one

of the goals of zoning administration, namely, reducing

and eliminating nonconformities. She further explained

to the board: ‘‘These operational alterations that will

be beneficial to the neighborhood indeed by their ability, and certainly the accessibility is a factor, but by

being able to have access to the market and to its deli

function unencumbered. It’s going to provide a better

flow for trucks to ease or ameliorate that traffic concern. And certainly, from a code perspective, from a

building code perspective, it will eliminate this very

hazardous four level operational place in the back and

provide an accessible place potentially for employees

as well.’’

Later during the presentation, board chairperson

Cathy Weber asked whether the plan would provide

increased employment opportunities for the deli. In

response, Kagan stated: ‘‘The goal of [P.T.R., LLC] is

not to make the business any bigger. It’s to make it safer.

It’s to allow accessibility to handicapped individuals to

get through the store. It’s the ability to service the back

where they don’t go up and down stairs and employees

[will not] be in danger. It’s to make their lives easier,

not more difficult.’’

After Shansky and Kagan concluded their presentation, Weber asked if anyone from the public wished

to be heard. Charles Famularo and Barry Nellis, who

frequent Nica’s Market regularly, spoke in favor of the

application. Furthermore, Harold Roth, Bill Donahue,

Lloyd Parchman, and Donald Harvey, who live in the

neighborhood where the property is located, spoke in

favor of the application. Harvey specifically explained

to the board that the plan ‘‘addresses the needs of the

neighborhood with regard to traffic concerns and garbage [as] well as Nica’s need to streamline operations

while maintaining the neighborhood, the character of

the neighborhood.’’

Attorney Gregory Gallo then spoke on behalf of 347

Humphrey Street, LLC, an abutting property owner.

Gallo argued: ‘‘A variance under the code would require

either a difficulty or an unreasonable hardship and a

strict enforcement of the code. Here we don’t have that.

. . . [T]he applicant doesn’t claim that there is a hardship. Looking at section 7 of the appeal to the zoning

board there is no mention of a hardship.’’6 He later

explained that, ‘‘Ultimately, according to the zoning

[regulations], the application doesn’t meet the requirements of the [regulations] and it is an impermissible
enlargement of a nonconforming structure in which the

applicant is seeking, without any hardship, to justify it,

or any reason in which to circumvent these rules.’’ In

rebuttal, Shansky stated: ‘‘With respect to section 7 [of

the appeal to the board] the question is describe the

unreasonable difficulty or hardship. I don’t think there

is any grammatical or syntactical requirement that I

recite the word hardship in that paragraph. So I will

continue to stand on what I had written in the application as being responsive to that question.’’ She further

explained: ‘‘It will be larger. But that does not, under

a zoning law, make it an expansion or an impermissible

expansion of the use. [That] is simply the distinction I

would make. And the real difference is that we’re adding

a safe one level kitchen so that we are removing the

obstacles, both for employment and accessibility, and

simply the safety issues, and bringing it up to code.’’

Weber thereafter closed the public hearing.

Following the hearing, in accordance with Section

63 (d) (6) of the New Haven Zoning Ordinance,7

the

board referred the application for a special exception

and all exhibits to the New Haven City Plan Commission

(commission). The commission then submitted an advisory report to the board recommending approval of the

application for a special exception, with conditions.

On April 12, 2011, the board conducted a ‘‘voting

session.’’ During this voting session, the board evaluated the merits of P.T.R., LLC’s application for variances

and a special exception, and discussed the commission’s advisory report. Thereafter, the board voted to

approve the application for variances as requested, and

the application for the special exception with several

conditions.8 Notice of the board’s decision was published in the New Haven Register on April 21, 2011.

On May 18, 2011, the plaintiffs filed an appeal of the

board’s decision in the Superior Court. On April 8, 2013,

the trial court issued a memorandum of decision in

which it reversed the board’s approval of the variances

and the special exception. With regard to the variances,

the court concluded that the board had acted illegally

in approving the variances because there was no evidence in the record to establish proof of difficulty or

unreasonable hardship. With regard to the special

exception, the court concluded that (1) the board was

not entitled to accept, as its own finding, the commission’s conclusion that the application for the special

exception was in accord with the public convenience;

and (2) the commission did not make the necessary

findings pursuant to § 31 (d) of the New Haven Zoning

Ordinance, and the board did not make the necessary

finding pursuant to § 63 (d)(3) of the New Haven Zoning

Ordinance. Accordingly, the court sustained the plaintiffs’ appeal. The defendants filed the present appeal

after this court granted their joint petition for certification.
The defendants claim that the court improperly substituted its judgment for that of the board when it

reversed the board’s decision approving the variances

and the special exception. Because the board failed to

issue any formal, collective statement of the reasons

for its approval, the defendants argue that the court

was required to consider the record as a whole and

that substantial evidence in the record supported the

board’s decision to grant the variances and special

exception.9

In response, the plaintiffs claim that the

court correctly concluded that the record did not contain any evidence showing an exceptional difficulty or

unusual hardship that would support the granting of

the variances. Furthermore, the plaintiffs claim that the

court correctly concluded that the board failed to make

the necessary finding that the special exception request

was in accord with the public convenience and welfare.

We agree with the plaintiffs that the defendants failed

to demonstrate the requisite hardship, and, therefore,

we need not reach the issue of whether the trial court

correctly concluded that the special exception application should have been denied.10

At the outset, we review the well established standard

of review applicable to zoning appeals. ‘‘[C]ourts are

not to substitute their judgment for that of the board,

and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably

and fairly made after a full hearing . . . . The trial

court’s function is to determine on the basis of the

record whether substantial evidence has been presented to the board to support [the board’s] findings.

. . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which

the fact in issue can be reasonably inferred. . . . Where

the board states its reasons on the record we look no

further. . . . Where, however, the board has not articulated the reasons for its actions, the court must search

the entire record to find a basis for the board’s decision.

. . . More specifically, the trial court must determine

whether the board has acted fairly or with proper

motives or upon valid reasons. . . . We, in turn, must

determine whether the court properly concluded that

the board’s decision to grant the variance was arbitrary,

illegal or an abuse of discretion.’’ (Citation omitted;

internal quotation marks omitted.) Schulhof v. Zoning

Board of Appeals, 144 Conn. App. 446, 451, 74 A.3d

442 (2013).

Section 63 (c)(1) ofthe New Haven Zoning Ordinance

provides in relevant part: ‘‘Where there is difficulty or

unreasonable hardship in the way of carrying out the

strict letter of the zoning ordinance, the Board of Zoning

Appeals shall have power in a specific case to vary the

application of any provision of the ordinance, if such

variance will be in harmony with the general purpose

and intent of the ordinance and if the public health,
safety and general welfare will be served and substantial

justice done.’’

‘‘To support a variance . . . a hardship must arise

from a condition different in kind from that generally

affecting properties in the same zoning district and must

be imposed by conditions outside the property owner’s

control. . . . The applicant bears the burden of demonstrating the existence of a hardship. . . . Proof of

exceptional difficulty or unusual hardship is absolutely

necessary as a condition precedent to the granting of

a zoning variance. . . . A mere economic hardship or

a hardship that was self-created, however, is insufficient

to justify a variance . . . and neither financial loss nor

the potential for financial gain is the proper basis for

granting a variance.’’ (Citation omitted; internal quotations omitted.) Schulhof v. Zoning Board of Appeals,

supra, 144 Conn. App. 453. Moreover, an applicant’s

desire to modernize an existing nonconformity does

not ‘‘constitute a cognizable legal hardship that would

warrant a variance.’’ Horace v. Zoning Board of

Appeals, 85 Conn. App. 162, 171, 855 A.2d 1044 (2004).

This court held in Horace that improving the appearance of a building, ‘‘even if beneficial, [does not] constitute a cognizable legal hardship . . . .’’ Id.

Furthermore, in rejecting a claim of ‘‘unusual hardship

from the fact that the internal layout of the [existing

nonconforming structure] was poorly designed to meet

the needs of modern living,’’ our Supreme Court

observed that ‘‘inconvenience . . . does not rise to the

level of hardship necessary for the approval of a variance.’’ Moon v. Zoning Board of Appeals, 291 Conn. 16,

26 n.9, 966 A.2d 722 (2009).

From our careful review of the record, we agree with

the court that there is nothing in the record to support

a finding of a hardship. At the public hearing before

the board, Kagan stated that the purpose of the variances was to make the store accessible to customers

and help employees in the kitchen work more efficiently. Furthermore, Shansky told the board that the

variances would give Nica’s Market an opportunity to

deal with problematic code issues, provide a better

operational experience forthe owners and forthe neighborhood, and eliminate nonconformities on the property. On several occasions, she stressed the importance

of eliminating the hazardous condition that is currently

present in the existing kitchen. At oral argument before

this court, Shansky further argued that the hardship for

Nica’s Market was being ‘‘penned in’’ by the preexisting

nonconformities and in having an unsafe kitchen.

Although the variances might allow P.T.R., LLC, to operate Nica’s Market with more accessibility and more

efficiency, it is well established that financial considerations, unless they greatly decrease or destroy the value

of the property, do not constitute a cognizable legal

hardship that would warrant a variance. See Norwood

v. Zoning Board of Appeals, 62 Conn. App. 528, 534–35,
772 A.2d 624 (2001); see also Grillo v. Zoning Board

of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988).

The court properly determined that the board illegally

granted the variances filed on behalf of P.T.R., LLC,

because the record did not support the existence of a

legally cognizable hardship. Accordingly, we conclude

that the court properly sustained the plaintiffs’ administrative appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

1 For purposes of clarity, we referto the board and P.T.R., LLC, collectively

as the defendants, and individually by name.

2 Each plaintiff is the owner of property located within 100 feet of the

property that is the subject of this appeal. The trial court found that each

of the three named plaintiffs was statutorily aggrieved by the board’s decisions; see General Statutes § 8-8 (a) (1); and that finding has not been

challenged on appeal. For purposes of clarity, we refer to them collectively

as the plaintiffs, and individually by name.

3

‘‘In hearing the [plaintiffs’] appeal from the decision of the zoning board

of appeals, the Superior Court acts as an appellate body.’’ Megin v. Zoning

Board of Appeals, 106 Conn. App. 602, 603 n.1, 942 A.2d 511, cert. denied,

289 Conn. 901, 957 A.2d 871 (2008).

4 The record indicates that the existing structure consists of a first floor,

a second floor, and a basement. The first floor consists of grocery aisles,

a deli counter, and a kitchen. The kitchen currently operates on four separate

levels. The second floor contains employee offices and is accessible by a

staircase. Finally, the basement is used as a storage area and is also accessible by a staircase. The proposed plan for the first floor includes a new

kitchen on one level, a second front entrance to the building, and a separated

corridor that runs along the northern edge of the new structure back to a

deli counter. The proposed plan for the second floor increases the floor

area from 396 square feet to 928 square feet and adds office space and a

break room for employees. Moreover, the plan enables the construction of

a conforming staircase to both the second floor and the basement.

5 The defendants represent that the site itself is 40 feet by approximately

154 feet and currently has an eighteen space parking lot.

6 Section 7 of the form entitled, ‘‘Appeal to the Board of Zoning Appeals

for a Variance,’’ requires the applicant to: ‘‘Describe in detail the DIFFICULTY and UNREASONABLE HARDSHIP asserted to be in the way of

carrying out the strict letter of the zoning ordinance.’’ (Emphasis in original.)

Joseph Sabino, on behalf of P.T.R., LLC, responded in writing: ‘‘The subject

property is a legally existing non-conforming structure with a use that is

permitted under the Zoning Ordinance by Special Exception, but whose

origins in the neighborhood predate 1963. As such, the existing profiles of

the property and use are non-conforming in virtually every respect. The

proposal before the [board] accomplishes several salutary goals under Connecticut and New Haven zoning law. By redefining the adjacent parcels’

property lines, the subject property is being brought closer to conformity,

indeed, eliminating non-conformity in certain respects (e.g., currently, the

subject lot width is 40’ 0’’ where 50’ 0’’ [is] required; the proposal before the

Board results in a lot width of 68’ 0’’ while preserving the zoning conformity of

the adjacent lot). The proposed alterations/additions to the existing structure

are designed to conform with existing RM-2 standards, including side and

rear[yard] setbacks as demonstrated on the submitted site plan. The outdoor

seating is located where automobiles formerly parked. Please see the

attached Zoning Chart for the Proposed Development attached hereto and

by reference incorporated herein.’’

7 Section 63 (d) (6) of the New Haven Zoning Ordinance requires the

board to refer the entire file to the New Haven City Plan Commission.

Section 63 (d) (6) provides in relevant part: ‘‘In the following types of special

exception cases, which involve more than conventional questions of use

and may have a significant impact on surrounding areas and a substantial

relationship to the comprehensive plan of the city, the Board of Zoning

Appeals shall, following its hearing, refer the case including all exhibits to

the City Plan Commission, which shall submit an advisory report, on such

factors as it may deem relevant, to the board within 30 days after receiving
all records and documents in the case. This report of the City Plan Commission shall be taken into account in the decision of the Board.’’ (Emphasis

in original.)

8

In making these conditions, the board stated: ‘‘Permission is hereby

granted with conditions: (1) A site plan application shall be submitted to

the City Plan Commission in accord with Section 64 (f) for detailed site

plan review and approval prior to issuance of a building permit. (2) The

number of seats on the exterior front patio will be 24, and shall not interfere

with the public sidewalk. (3) The existing street trees will be replaced with

a different species to be approved by the City’s landscape architect in the

City Plan Department before issuance of a Certificate of Occupancy. (4)

The bike rack will be removed to the location shown on the plans and shall

be located on the applicant’s property.’’

9 The defendants also claim that the decision of the trial court reversing

the board’s decision is contrary to Connecticut appellate decisional authority

because the trial court failed to recognize that the reduction and elimination

of nonconformities as an independent basis for the grant of variance relief.

The record reveals, however, that the court considered that claim and

addressed it in its memorandum of decision: ‘‘[P.T.R., LLC] claim[s] by way

of [its] brief that the record demonstrates that the proposed construction

will result in the elimination of certain nonconforming uses and that this

would constitute an independent basis for the granting of the variances.

See Vine v. Zoning Board of Appeals, 281 Conn. 553 [916 A.2d 5] (2007);

Hescock v. Zoning Board of Appeals, 112 Conn. App. 239 [962 A.2d 177]

(2009). The court does not agree with this claim. The court notes that the

board made no findings or conclusions which support this reasoning. The

record discloses that [P.T.R., LLC’s] proposed construction will eliminate or

reduce a few nonconformities but create substantially more nonconformities

than it will eliminate or reduce.’’ Thus, upon our review, the record fully

supports the trial court’s conclusion.

10 Because the need for the special exception was dependent upon the

granting of the variances, we need not reach the defendants’ claim that the

trial court improperly determined that the board’s granting of the special

exception violated certain provisions of the New Haven Zoning Ordinance.