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E AND F ASSOCIATES, LLC v. ZONING BOARD OF

APPEALS OF THE TOWN OF FAIRFIELD ET AL.

(SC 19325)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.

Argued October 5—officially released December 22, 2015

Joel Z. Green, with whom was Linda Pesce Laske,

for the appellant (plaintiff).

Stanton H. Lesser, for the appellee (named

defendant).
Opinion

ROGERS, C. J. The issue that we must decide in

this appeal is whether the defendant Zoning Board of

Appeals of the Town of Fairfield (board) properly

granted an application for zoning variances to the defendant 1460 Post Road, LLC (applicant), which allowed

the vertical expansion of a nonconforming building,

when there was no showing that the strict application

of the zoning regulations would destroy the property’s

value for any of the uses to which it could reasonably

be put. The plaintiff, E & F Associates, LLC, appealed

to the trial court from the board’s decision granting the

variances claiming that: (1) the board improperly had

concluded that the strict application of the zoning regulations would produce an unusual hardship even though

the subject property would have economic value without the variances; and (2) the board’s decision was

illegal and void because a member of the Fairfield Board

of Selectmen, who was an ex officio member of the

board, represented the applicant in the proceedings

before the board. The trial court rejected both claims

and dismissed the plaintiff’s appeal. The plaintiff then

filed this appeal,1

in which it contends that the trial

court improperly resolved both claims. We conclude

that the trial court improperly determined that the strict

application of the zoning regulations would produce an

undue hardship for the applicant, justifying the variances. Accordingly, we reverse the judgment of the trial

court on this ground, and we need not address the

plaintiff’s second claim.

The record reveals the following facts, which were

either found by the trial court or are undisputed, and

procedural history. The applicant owns property

located at 1460–1462 Post Road (property) in the town

of Fairfield (town). The property is situated at the corner of Post Road and Sanford Road and is in the center

designed business district zone,2 which consists of a

small area in the center of the town’s downtown. A

single story building is situated on the property and has

frontage on both Post Road and Sanford Road. The

building was constructed before the town adopted its

zoning regulations and is nonconforming with respect

to several of those regulations, including setback

requirements. Specifically, the town’s zoning regulations require that buildings in the center designed business district be set back at least ten feet from the street

line and ten feet from the rear property line. The building, however, extends to the street lines on both Post

Road and Sanford Street and is set back only six inches

from the rear property line.

In 2012, the applicant filed an application with the

board seeking variances of the street line and rear property line setback requirements to add a second story

to the building.3

In its variance application, the applicant

represented that it wanted to lease the building to a
‘‘quality restaurant,’’ and the existing building lacked

sufficient storage and office space for that use. The

applicant also represented that it had received ‘‘numerous offers [to lease the existing building] from a major

coffee/donut shop, several national fast food retailers

and other high turnover food establishments,’’ but that

it ‘‘[did] not believe that it would be in the best interests

of itself, the [town] and the Fairfield [c]enter merchants

to entertain such offers as they would provide a much

higher intensity in traffic in the already bustling Fairfield [c]enter.’’

The board held a public hearing on the variance application on March 1, 2012. Counsel for the plaintiff, which

owns property on Post Road abutting the applicant’s

property, appeared at the hearing and argued that the

applicant was not entitled to the variances because

the strict application of the zoning regulations did not

render the applicant’s property unusable or subject the

applicant to a unique hardship. The board voted to

approve the variance application, but did not explain

the reasons for its approval.

The plaintiff appealed from the board’s decision to

the trial court claiming, among other things, that the

board could not reasonably have found that the strict

application of the zoning regulations would produce

unusual hardship when the property had several uses

even without the variances, and the board had ‘‘relied

upon improper influences and upon considerations that

did not provide a valid basis [forits decision] as a matter

of law . . . .’’ Relying on the Appellate Court’s decision

in Stillman v. Zoning Board of Appeals, 25 Conn. App.

631, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d

365 (1991), the trial court concluded that, because the

configuration of the property and the building precluded the applicant from expanding the building vertically without running afoul of the setback regulations,

the regulations produced a hardship justifying the

approval of the variance application. See id., 636–37

(zoning board of appeals properly granted variance

from setback requirements when placement of well and

septic system prevented applicant from building addition to house anywhere exceptin setback).Accordingly,

the trial court dismissed the appeal.

This appeal followed. The plaintiff claims that the

trial court improperly concluded that the board properly granted the variances when the applicant had failed

to demonstrate that the property would have no economic value without the variances.4 We agree with

the plaintiff.

‘‘The standard of review on appeal from a zoning

board’s decision to grant or deny a variance [pursuant

to General Statutes § 8-6 (a)]5is well established. We

must determine whether the trial court correctly concluded that the board’s act was not arbitrary, illegal

or an abuse of discretion.’’ (Footnote added; internal
quotation marks omitted.) Moon v. Zoning Board of

Appeals, 291 Conn. 16, 23–24, 966 A.2d 722 (2009).

‘‘Because the plaintiffs’ appeal to the trial court is based

solely on the record, the scope of the trial court’s review

of the board’s decision and the scope of our review of

that decision are the same.’’ Hescock v. Zoning Board

of Appeals, 112 Conn. App. 239, 244, 962 A.2d 177 (2009).

In the present case, the question of whether the board

had authority to grant a variance pursuant to § 8-6 (a)

when the property would not lack economic value even

if the variance were denied is a question of law. Accordingly, our review is plenary. Hasychak v. Zoning Board

of Appeals, 296 Conn. 434, 442, 994 A.2d 1270 (2010).

‘‘The burden of proof to demonstrate that the board

acted improperly is upon the plaintiffs.’’(Internal quotation marks omitted.) Moon v. Zoning Board of Appeals,

supra, 24.

‘‘A variance constitutes permission to act in a manner

that is otherwise prohibited under the zoning law of

the town. . . . It is well established, however, that the

granting of a variance must be reserved for unusual

or exceptional circumstances. . . . An applicant for a

variance must show that, because of some peculiar

characteristic of his property, the strict application of

the zoning regulation produces an unusual hardship, as

opposed to the general impact which the regulation has

on other properties in the zone. . . . Accordingly, we

have interpreted [§ 8-6 (a) (3)] to authorize a zoning

board of appeals to grant a variance only when two

basic requirements are satisfied: (1) the variance must

be shown not to affect substantially the comprehensive

zoning plan, and (2) adherence to the strict letter of

the zoning ordinance must be shown to cause unusual

hardship unnecessary to the carrying out of the general

purpose of the zoning plan. . . . Proof of exceptional

difficulty or unusual hardship is absolutely necessary

as a condition precedent to the granting of a zoning

variance.’’ (Internal quotation marks omitted.) Id.,

24–25.

‘‘Financial considerations are relevant [to the question of whether a variance is justified] only if the application of the regulation or ordinance practically

destroys the value of the property for any use to which

it may be put and the regulation or ordinance as applied

to the subject property bears little relationship to the

purposes of the zoning plan.’’ Bloom v. Zoning Board

of Appeals, 233 Conn. 198, 210, 658 A.2d 559 (1995);

see also Rural Water Co. v. Zoning Board of Appeals,

287 Conn. 282, 295, 947 A.2d 944 (2008)(‘‘considerations

of financial disadvantage—or, rather, the denial of a

financial advantage—do not constitute hardship, unless

the zoning restriction greatly decreases or practically

destroys [the property’s] value for any of the uses to

which it could reasonably be put’’ [internal quotation

marks omitted]); Vine v. Zoning Board of Appeals, 281

Conn. 553, 561, 916 A.2d 5 (2007)(‘‘[f]inancial considera-
tions 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 reasonably 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]). ‘‘A zoning regulation that prevents land from being used for its greatest

economic potential . . . does not create the exceptional kind of financial hardship that we have deemed

to have a confiscatory or arbitrary effect.’’ (Internal

quotation marks omitted.) Grillo v. Zoning Board of

Appeals, 206 Conn. 362, 370, 537 A.2d 1030 (1988); see

also Dolan v. Zoning Board of Appeals, 156 Conn. 426,

430–31, 242 A.2d 713 (1968) (‘‘[i]t is not a proper function of a zoning board of appeals to vary the application

of zoning regulations merely because the regulations

hinderlandowners and entrepreneurs from putting their

property to a more profitable use’’); Krejpcio v. Zoning

Board of Appeals, 152 Conn. 657, 662, 211 A.2d 687

(1965) (‘‘[d]isappointment in the use of property does

not constitute exceptional difficulty or unusual

hardship’’).

‘‘In order to determine whether the board properly

granted the subject variance, we must first consider

whether the board gave reasons for its action. . . .

Where a zoning board of appeals does not formally state

the reasons for its decision . . . the [reviewing] court

must search the record for a basis for the board’s decision.’’ (Internal quotation marks omitted.) Moon v. Zoning Board of Appeals, supra, 291 Conn. 25.

In the present case, our search of the record has

revealed no basis for the board’s decision granting the

applicant’s variance application under the foregoing

legal standards. With respect to economic hardship, the

applicant conceded in its variance application and at the

hearing before the board that it had received numerous

offers from a variety of sources to lease the existing

building. Accordingly, there is no evidence that the

strict application of the zoning regulations would have

a confiscatory effect. Indeed, the board makes no claim

that the applicant was entitled to the variances because

a denial would cause economic hardship. Rather, the

board claims that, because most of the properties in

the central design business district have two stories

and the building on the applicant’s property has only

one story, and because the building is on a corner lot

subject to two separate street setbacks, the property

has peculiar characteristics that render the strict application of the zoning regulations unduly harsh because

it would prevent the construction of a second story.

Even if we were to assume that the placement of the

building on a corner lot and the fact that it has only

one story are characteristics that are not shared by
other properties in the central designed business district, however, this court previously has held that proof

that a property has a ‘‘peculiar characteristic’’; id., 24;

that has made it difficult for a particular use to comply

with the zoning regulations does not justify the granting

of a variance when the owner has ‘‘made no showing

that [the property] could not reasonably be developed

for some other use permitted in the [zoning district] or

that the effect of limiting the parcel to the permitted

uses only would be confiscatory or arbitrary.’’ Miclon

v. Zoning Board of Appeals, 173 Conn. 420, 423, 378

A.2d 531 (1977); id. (difficulties created by difficulties

of access and topography of property did not justify

variance in absence of proof that application of zoning

regulations would be confiscatory or arbitrary); see also

Bloom v. Zoning Board of Appeals, supra, 233 Conn. 210

(zoning board of appeals improperly granted variance

because ‘‘limitations imposed by the shape of the lot

do not in themselves create a hardship,’’ and there was

no evidence that property would be worthless if variance were denied [internal quotation marks omitted]);

Dolan v. Zoning Board of Appeals, supra, 156 Conn.

431 (no evidence in record demonstrating diminishing

effect regulation had on value of property); Krejpcio v.

Zoning Board of Appeals, supra, 152 Conn. 662 (that

it would be to applicant’s financial advantage to secure

variance did not warrant relaxation of zoning regulations). Accordingly, the fact that the peculiar characteristics of the applicant’s property made it difficult to

construct a second story on the building that would

comply with setback requirements did not justify the

granting of the variance when the evidence established

that the property would have economic value if the

variance were denied.

As we previously have indicated, in support of its

conclusion to the contrary, the trial court in the present

case relied on theAppellateCourt’s decision in Stillman

v. Zoning Board of Appeals, supra, 25 Conn. App. 631.

In Stillman, the defendant landowner sought a variance

of the town of Redding’s coverage and setback regulations in order to build an addition to her house, which

the Zoning Board of Appeals of the Town of Redding

granted. Id., 632. The defendant landowner had claimed

that a hardship existed because the location of a well

and septic system on her property prevented her from

building the addition anywhere except on an area where

it was prohibited by the setback requirement. Id., 636.

The plaintiff, an abutting landowner, appealed to the

trial court, which reversed the decision of the Zoning

Board of Appeals of the Town of Redding on the ground

that the defendant landowner had failed to establish a

hardship because the record was ‘‘devoid of evidence

that the property has little or no value because of the

setback regulations . . . .’’ Id., 635–36. The defendant

landowner then appealed to the Appellate Court, which

concluded that the trial court had applied an improper
test. Id., 636. Specifically, the Appellate Court concluded that, although the ‘‘[economic hardship] test is

a valid means of establishing a hardship, it is not exclusive.’’ Id. Rather, even in the absence of a showing that

the denial of the variance will cause economic hardship,

‘‘[a] variance may be granted if the literal enforcement

of a regulation causes exceptional difficulty or hardship

because of some unusual characteristic of the property.’’6

Id. The Appellate Court further concluded that

this test was met in Stillman because of the location

of the well and septic system on the defendant landowner’s property. Id., 636–37. Accordingly, the court concluded thatthe board properly had granted the variance.

Id.; see also Jersey v. Zoning Board of Appeals, 101

Conn. App. 350, 360, 921 A.2d 683 (2007) (variance may

be granted when hardship has been established even

if property would have economic value if zoning regulations were strictly applied); Giarrantano v. Zoning

Board of Appeals, 60 Conn. App. 446, 453, 760 A.2d 132

(2000)(variance may be granted when strict application

of zoning regulations would deprive landowner of particular use of property that is allowed in zoning district

even when property would have economic value without variance).7

This court, however, has criticized the Appellate

Court’s decision in Stillman. In Bloom v. Zoning Board

of Appeals, supra, 233 Conn. 210–11 n.13, this court

stated that, contrary to the holding in Stillman, ‘‘the

fact that an owner is prohibited from adding new structures to the property does not constitute a legally cognizable hardship. If it is a hardship to not be able to

use one’s property as one wishes, then most setback

variance applications would have to be granted. . . .

Although we distinguish Stillman from this case, we do

not necessarily endorse its holding.’’ (Citation omitted;

internal quotation marks omitted.)

Moreover, Stillman is inconsistent with our cases

holding that, when a property would have economic

value even if the zoning regulations were strictly

enforced, the fact that a peculiar characteristic of the

property would make compliance with the zoning regulations exceptionally difficult if the property were put

to a more valuable or desirable use does not constitute

either an ‘‘exceptional difficulty’’ or an unusual hardship

for purposes of § 8-6 (a). Krejpcio v. Zoning Board of

Appeals, supra, 152 Conn. 662 (‘‘[d]isappointment in

the use of property does not constitute exceptional

difficulty or unusual hardship’’); see also Rural Water

Co. v. Zoning Board of Appeals, supra, 287 Conn. 295

(denial of financial advantage generally does not constitute hardship); Grillo v. Zoning Board of Appeals,

supra, 206 Conn. 370 (regulation preventing land from

use for greatest economic potential does not create

exceptional financial hardship); Miclon v. Zoning

Board of Appeals, supra, 173 Conn. 423 (no hardship

when landowner made no showing that property could
not reasonably be developed for some other use permitted in zone); Dolan v. Zoning Board of Appeals, supra,

156 Conn. 430–31 (application of zoning regulations not

varied merely because they hinder landowners from

putting property to more profitable use). We continue

to find the reasoning of these cases persuasive. ‘‘This

court has many times held that the power to grant

variances must be exercised sparingly . . . .’’ Krejpcio

v. Zoning Board of Appeals, supra, 661. If the fact that

a peculiar characteristic of a property prevented a landowner from putting the property to a particular use that

is allowed in the zoning district justified the granting

of a variance in and of itself, even when the property

would have economic value if the variance were denied,

‘‘the whole fabric of town- and city-wide zoning [would]

be worn through in spots and raveled at the edges

until its purpose in protecting the property values and

securing the orderly development of the community

[would be] completely thwarted.’’ (Internal quotation

marks omitted.) Pleasant View Farms Development,

Inc. v. Zoning Board of Appeals, 218 Conn. 265, 270–71,

588 A.2d 1372 (1991). Accordingly, we conclude that

Stillman and its progeny must be overruled. Because

Stillman provided the sole basis for the trial court’s

ruling in the present case and denial of the variances

will cause no unusual hardship, we conclude that the

board improperly granted the applicant’s application

for variances and the trial court improperly dismissed

the plaintiff’s appeal.

The judgment is reversed and the case is remanded

to the trial court with direction to sustain the plaintiff’s

appeal and to remand the case to the board with direction to deny the applicant’s application for the

variances.

In this opinion the other justices concurred.

1 The Appellate Court granted the plaintiff’s petition for certification to

appeal from the judgment of the trial court pursuant to General Statutes

§ 8-8 (o) and we transferred the appeal to this court pursuant to General

Statutes § 51-199 (c) and Practice Book § 65-1.

2 The trial court referred to the ‘‘[c]ommercial [d]esigned [b]usiness [d]istrict.’’ The zoning regulations, however, refer to the zone as the ‘‘[c]enter

[d]esigned [b]usiness [d]istrict.’’ Fairfield Zoning Regs., § 12.3.

3 Neither the applicant nor the board has ever disputed that the variances

were required because the vertical expansion of the building within the

applicable setbacks constituted a prohibited expansion of the nonconforming use under the town’s zoning regulations.

4 The plaintiff also claims that the trial court improperly rejected its claim

that the board’s decision was illegal and void because the applicant had

been represented in the proceedings before the board by an attorney who

was an ex officio member of the board. Because we agree with the plaintiff’s

claim that the board should have rejected the application for variances when

the property would have economic value if the variances were denied, we

need not address this claim.

5 General Statutes § 8-6 (a) provides in relevant part: ‘‘The zoning board

of appeals shall have the following powers and duties . . . (3) 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,

provided that the zoning regulations may specify the extent to which uses

shall not be permitted by variance in districts in which such uses are not

otherwise allowed. . . .’’

6 The Appellate Court in Stillman v. Zoning Board of Appeals, supra, 25

Conn. App. 636, relied on this court’s decisions in Whittaker v. Zoning

Board of Appeals, 179 Conn. 650, 658, 427 A.2d 1346 (1980), and Garibaldi

v. Zoning Board of Appeals, 163 Conn. 235, 238, 303 A.2d 743 (1972). Neither

Whittaker nor Garibaldi, however, directly addressed the question of

whether a peculiar characteristic of a property that makes compliance with

zoning regulations difficult is sufficient to justify the granting of a variance

when the property would have economic value even if the zoning regulations

were strictly enforced.

7 But see Vine v. Zoning Board of Appeals, 93 Conn. App. 1, 9 n.14, 887

A.2d 442 (2006), rev’d on other grounds, 281 Conn. 553, 916 A.2d 5 (2007).

In Vine, the Appellate Court attempted to explain that its decision in Giarrantano did not stand for the proposition that a variance is justified whenever strict application of the zoning regulations would deprive the applicant

of a use of the property that was allowed in the zoning district. Id. The

peculiar characteristics of the property had created a hardship in Giarrantano, however, only because the landowner wanted to put the land to a

particular use. Giarrantano v. Zoning Board of Appeals, supra, 60 Conn.

App. 448–49. Those characteristics would not have prevented other uses of

the property that had economic value. Id. It is clear to us, therefore, that

the court in Giarrantano concluded that the landowner was entitled to a

variance because, otherwise, he would have been deprived of a use of the

property that was allowed in the zoning district.