HomeMy WebLinkAboutVariance (112) APPLICATION FOR
TOWN OF SOUTH WINDSOR
ZONING BOARD OF APPEALS
1. Application and supplements must be filed in triplicate.
2. Application must be typewritten or printed in ink.
3. Answer all items, with particular attention to Page 3.
4. Application must be delivered to Chairman or Secretary no later than 15 days prior to first Thursday of each month.
Submit application as soon as possible because it will be returned if incomplete or not described satisfactorily.
5. The applicant or his representative must be present for the Board Meeting (time and place to be advised).
TO BE COMPLETED BY BOARD
Applicant . . . Marion P.. Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Filed 29.—E-0 . . . . .
(DMATE)
Mailing Address 1 44 FJaain .Street,. South .Windsor.,. Conn. . . . Fee a�,,�0. o.o . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . .
Receipt No. i,3;-S-S-V. . .
Is applicant a corporation, co-partnership or individual? Individual. . . . . . . . . . . . . . . . . . . . . . . . . . . .
If corporation list names of officers, if co-partnership — owners:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Address: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Address: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Address: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Is applicant owner, lessee or prospective tenant? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Check one of the following:
REQUEST VARIATION OF ZONING ORDINANCE: To vary Article . . 5. 2. . . . . . . . . . Section 5. . . . . . . . . .
to allow . a building. l9i:. y ith .less than the . required .frontac a.. . . . . . .
❑ OR SPECIFIC EXCEPTION OR ❑ APPROVAL UNDER Section. . . . . . . . . . . . . . . . . . . . . . . . • • • • • •
toallow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
L]OR AN APPEAL FROM THE BUILDING INSPECTOR'S DECISION INVOLVING . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
❑ 0R STATE HEARING UNDER 14-321 ❑ OR 14-54❑ OF THE GENERAL STATUTES FOR
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
LJ CR TEMPORARY AND CONDITIONAL PERMIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
on premises known as �\A. 13h01 . .011 Jaal? . . . . . . . . . . . . . . Zone . 7"/p . . . . . . . . .
(STREET AND NUMBER)
Owner of property . . T144�Qrl .P. . Cas.e . . . . . . . . . . . . . . . Address 1444. qakin ,S c. , South, €��indsor,
—1— Conn.
State the particular hardship or unnecessary difficulty that prompts this application:
Front foot variance requested for property as shown on attached reap;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . applicant ,desires, to .utilize. the .�ropert� for a , single family residence
. . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Continue on Page 4)
Signature of applicant . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
or
This application was executed by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Attorney or Authorized Agent)
in behalf of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Applicant)
Liquor Outlets Within the Restricted Area:
Locations and Distances from Location in Question:
* Attention is invited to Heriorandum, of Decision dated April 17 , 19801
#228741, Marion P. Case V. Zoning Board of Appeals of the Towri of
South Windsor, Superior Court for Hartford/New .Britain at Hartford.
Liquor outlets listed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date . . . . . . . . . . . . . . . . . . . . . . .
Distances listed by . . . . . . . . . . . . . . . . . . . . . Pg . Date . . . . . . . . . . . . . . . . . . . . . . .
—2—
Indicate plot by diagram, photographs and/or letters, in space below, showing streets, lot lines, building line, zone
boundary lines, dimensions and buildings present and proposed. It is important to include adjacent properties with dis-
tances from subject property.
In case of structural changes or new structure blue print or drawing made to scale must be submitted with this application.
ACTION OF THE BOARD
at the meeting held on
AN DEtiIED
' 44
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . ./ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Restrictions: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
LAW OFFICES
JOH N J. WOODCOCK III
1678 ELLINGTON ROAD
SOUTH WINDSOR,CONNECTICUT 06074
JOHN J.WOODCOCK III* P. 0. BOX 684
STEPHEN H.RIEGE April 29 1980
*ALSO ADMITTED IN MASSACHuSETTS (203)644-2431
Wayne Christopher Gerlt, Esquire
435 Buckland Road
South Windsor, CT 06074
Re: Marion P. Case vs. Town of South Windsor Zoning Board of Appeals
Our File No. : 79-93L
Dear Wayne:
Judge William Bieluch has upheld Mrs. Case's Appeal of the Zoning Board's
denial of her request for a variance. I enclose herewith a copy of his Memo-
randum of Decision dated April 17, 1980.
As you know, I represented Mrs. Case in this appeal. Attorney Richard
M. Rittenband represented the Town of South Windsor Zoning Board of Appeals.
By virtue of my now being the South Windsor Town Attorney, I am precluded from
further representing Mrs. Case in this matter. I am also precluded from repre-
senting the Zoning Board of Appeals.
Mrs. Case would, I suspect, be filing a new application for a variance
based on Judge Bieluch's decision. I would suspect that she will be repre-
sented by Attorney Robert D. King, of Rockville, Connecticut. Should the Zoning
Board decide to appeal Judge Bieluch's decision, it will then be necessary
for me to refer this case to outside counsel.
Please give me a call at your earliest convenience so that we can discuss
the foregoing.
Thank you for your courtesy and cooperation.
With best regards, I am
Very yours,
Jo J. Woodcock, III
JJW:djg
Enc.
s
All
III ` 000a00M T NHOr i
No. 228741
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MARION P. CASE SUPERIOR COURT
V. JUDICIAL DISTRICT OF
HARTFORD-NEW BRITAIN
AT HARTFORD
; ZONING BOARD OF APPEALS OF '
THE TOWN OF SOUTH WINDSOR APRIL 17 , 1980
1
MEMORANDUM OF DECISION
This case presents an appeal from the Zoning Board of
Appeals of the Town of South Windsor . Thy issue is whether the
boaLd acted illegally, arbitrarily or in abuse of its discretion 1
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:'when it denied the plaintiff' s request for a variance of the
'required frontage.
On August 24, 1962, the plaintiff' s late husband, Albro
!Case, purchased a tract of land in South Windsor having a frontage,
OfM4ppf xi nd--e..4y 254 feet on the easterly side of Main Street and
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gerpeh of about 880 feet. On September 6, 1962, he
mom El
con&yed tl�'.,�, therly 204 feet of this tract for a depth of 300
feet n6V lolawrM as 1752 Main Street, to a third party, retaining
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forChim elf the remaining land of approximately 3 . 8 acres with a
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street frontage of 50 feet. The plaintiff inherited this
a acreage from the estate of her husband, who died in 1971. The
property is located in an A-40 Residential Zone, which has a
street frontage requirement of 150 feet under 5. 2 of the
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zoning regulations. On January 10, 1979, the plaintiff filed
with the defendant board an application for a variance of the
frontage requirement so as to permit her to construct a single-
} family residence on the lot.
After a public hearing on February 1, 1979, the defendant
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board denied the plaintiff ' s application for the sole reason ;
that "the hardship was self-created. "
Under § 11. 4. 1.c of the zoning regulations, the board of
k: appeals has the power to "determine and vary the application of
the zoning laws and regulations in harmony with their general
purpose and intent and with due consideration for conserving
the public health, safety, convenience, welfare and property
4
value 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 zoning laws and regulations would result in
exceptional difficulty or unusual hardship. "
The hardship required for a zoning variance exists where
the application of the zoning ordinance or regulation to a piece
of property greatly decreases or practically destroys its value
for any permitted use and the application of the ordinance bears
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so little relationship to the purposes of zoning that, as to
that property, the ordinance is in effect confiscatory or
arbitrary. Lessner v. Zoning Board of Appeals, 151 Conn. 165,
170-71.
Once this hardship has been established, the applicant !
!! is required to show that the hardship is unique to his land.
i One seeking a variance must show that his property is peculiarly
disadvantaged by the operation of the zoning ordinance and not
merely that a general hardship, equally applicable to other ,
properties in the neighborhood, results from a strict enforce-
ment of the zoning code. Ward v. Zoning Board of Appeals, 153
Conn. 141, 143.
The hardship which justifies relief must arise from
circumstances or conditions beyond the control of the property
owner . It must stem directly from the application of the zoning
ordinance and not result from conduct on the part of the applicant.
Booe v. Zoning Board of Appeals, 151 Conn. 681, 683 ; McMahon v.
Board of Zoning Appeals, 140 Conn. 433, 442.
As stated in the zoning regulations , variances are available
to alleviate only unnecessary hardships . A hardship is unneces-
sary only where the granting of the variance will not materially
affect the comprehensive plan or the regulations as a whole. In
other words, the variance must be in harmony with the purpose and '
intent of the zoning law. Rogers v. Zoning Board of Appeals,
154 Conn. 484 , 488.
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The function of the board in determining whether to grant
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a variance is to balance the interests of the public against
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those of the applicant. Torello v. Board of Zoning Appeals, 127
Conn. 307, 311. . As part of this weighing process it becomes
relevant for the board to consider the effect of the variance
on the surrounding property against the effect on the applicant
6-of a denial of the variance. It is only when the public has no
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strong interest in requiring the owner to endure the hardship }
caused by the ordinance that a variance should be granted. See
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Torello v. Board of Zoning Appeals, supra.
The solution of zoning questions is to be left to the local;
.' authority, and the courts cannot substitute their judgment for
the liberal discretion enjoyed by zoning authorities. Rogers v.
i
Zoning Board of Appeals, 154 Conn. 484, 488; Zieky v. Town Plann
' and Zoning Commission, 151 Conn. 265, 267 . The courts are not
precluded, however , from reviewing the decisions of zoning
authorities.
"Where a zoning authority has stated reasons for its
' action, the questions for the court to determine on appeal are
whether the reasons assigned are reasonably supported by the
evidence in the record and whether they are pertinent to the
considerations which the authority was required to apply under
ii
the governing statutes and zoning regulations. " Smith v. Zoning
Board of Appeals, 174 Conn. 323, 325. If the court finds that the
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action of the board does not meet this standard, it may conclude
that the board' s action was arbitrary or in abuse of discretion.
Based on the facts of this case, the court finds that the
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board acted arbitrarily and in abuse of its discretion when it
denied the plaintiff ' s application for a frontage variance. The , 1
board ' s reason for the denial was that the plaintiff ' s hardship
had been self-created. It is well settled that a self-created
or self-inflicted hardship is never proper grounds for the
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granting of a variance. Abel v. Zoning Board of Appeals, 172
Conn. 286, 289; Booe v. Zoning Board of Appeals, supra.
This principle has been extended in particular situations
to disallow variances - where the hardship has been created by the
applicant' s predecessor in interest. The reasoning behind this
extension of the self-created hardship rule is explained in
terms of the "purchase with knowledge" doctrine. A purchaser of }
property is held to be on constructive notice of the zoning
regulations in a given district and of any nonconformity of the
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property being purchased. The zoning board need not grant him
relief from a hardship, the existence of which he was, or should
have been, aware when he purchased the property. See Abel v.
Zoning Board of Appeals, supra, at 288-89.
The instant case presents neither a self-created hardship,
nor a purchase with knowledge . The plaintiff inherited the land
from her deceased husband. The manner in which she acquired the
property was purely involuntary. The court finds that the
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situation falls outside the scope of the self-created hardship
principle.
Where the hardship arises as a result of some voluntary
act by one other than the applicant, the board may, in its sound
is
discretion, grant a variance. Belknap v. Zoning Board of Appeals;
155 Conn. 380, 384. ;
S; There was evidence submitted by the plaintiff that the
! land in question was not suitable for any permitted use other than
t the proposed building lot, and a denial of the variance applica-
tion would result in practically destroying the value of the
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property. This presents the type of confiscatory result which
tthe law seeks to avoid. Lessner v. Zoning Board of Appeals, 151
Conn. 165, 170-71. Since the land is located in a residential
zone, it would not appear that the granting of a frontage variance,
in order to permit construction of a single-family residence,
would materially upset the comprehensive zoning plan. On the
contrary, a variance of this nature would seem to- be in harmony
i' with the purpose and intent of the zoning regulations. Other
than the lack of the required frontage, the plaintiff ' s lot
exceeds every other dimensional requirement imposed by the
" regulations.
r For the aforesaid reasons, the court concludes that the
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board' s denial of the plaintiff' s application for a frontage
i
variance was arbitrary, illegal and in abuse of its discretion.
The plaintiff' s appeal is hereby sustained.
Bie uch
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T�rc llnrzn M. R11-1-ENUAN n
ATTORNEY EY AT 1.AW
1734 ELLINGTON ROAD
ti()1;'III WINW,()U.('()NNI"('1'1('1!'1' ()()()71
,2n3:644-245F
May 2 , 19 8 0
:ohn ?. oo�� ock ; sq.
678 -:,llington. Road
So1.�th I-,lindsor, C:T 4�6 1
Re Marion P . tease vs .
Zoning Board of Appeals
of South Windsor
Dear ?ohn :
s I am sure you are aware , the Court sustainer the
appeal in the above matter, i believe , earlier this week . 'vow ,
the decision has to be made as to whether the Town shoi.�1 C file
a petition for certification on the Supreme Court.
I recognize that you are in a difficult position to
make that decision . However, although my appearance is on record
for the ` 'own, I have not as yet been instructed to proceed for
the Town on this matter since December 3, 1979 . Possibly; you:
might want the input of the ZBA*as to whether or not to appeal .
In any event, I would be glad to discuss this with you,
but if an appeal is to be taken , the petition and supporting legal
memorandum contained in the petition, has to be filed within
twenty 20 ) days of the issuance of the decision and, v f course ,,
it should not be left to the last minute .
realize you are busy with next Tuesday 5 s primary ; rut
please let me know how you wish to proceed on this .
shank you.
Very truly yours ,
Richard M. Rittenband'
�R:mwd
* 'Ir Erie anci 1
LAW OFFICES
..SOH N J. WOODCOCK III , P.C.
1678 ELLINGTON ROAD
SOUTH WINDSOR,CONNECTICUT 06074
JOHN J.WOODCOCK IIP' P. O. BOX 684
STEPHEN H.RIEGE -
•ALSO ADMITTED IN MASSACH:I5 ETTS
(203)644-2431
May 5, 1980
Wayne C. Gerlt, Esquire
435 Buckland Road
South Windsor, CT 06074
Re: Marion P. Case
v. Zoning Board of Appeals
. of South Windsor
Dear Wayne:
I enclose a copy of attorney Richard M. Rittenband's letter of
May 2, 1980 relative to this matter. If the Zoning Board of Appeals
wishes to appeal Judge Bieluch's Decision to the State Supreme Court,
I will have to appoint a Special Town Attorney in a hurry for that
specific purpose. Time is of the essence, so please reply in
writing as soon as possible as to the Zoning Board of Appeals' wishes.
Thank you for your courtesy and prompt attention.
With best regards, Z am
VVq truly yo 's,
Jahn Woodcock, III
JJW,/j lh
Enclosure
TOWN OF SOUTH WINDSOR s9F F;
ZONING BOARD OF APPEALS
�t t � w
Received from --- ----- j -- ---------------------------- �------------------ -- - ------------------------------------
Of -------------------------------------------------------- _-______________-_.________-_____-----------------------------------------------
- Doi•lars fee for a hearing before the Zoning Board of Appeals.
This hearing is to cover application number ___-__-_____-------------------_for_________:=______________._________________________
--------------------------------------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------------------------------------.
Dated at South Windsor, Conn.,this________________________day of ........ -----------------------------------------------19______.
Signed----------------------------------------------------------------------------
SECRETARY
t0wN a
y
Toli-pt-21 V/ SC../,dA , 71.1-A V t
s y �� 1540 SULLIVAN AVENUE • SOUTH WINDSOR, CONN. 06074
'Sol-co AREA CODE 203/644-2511
JUm 24, 1980
Mrs. Marion P. Case
1444 Main Street
South Windsor, Connecticut 06074
Re: Application No. 1385-80
Dear Mrs. Case:
Your application to the South Windsor Zoning Board of Appeals will be
heard at a public hearing on Thursday, July 10, 1980 at 7:30 p.m. in
the Council Clu-cabers of the South Windsor Town Hall, 1540 Sullivan
A�-enue, South Windsor. You, or someone representing you, must be
present.
Please ca plete the enclosed form by inserting the legal description
of the property in question, as well as the name of the owner of record
and bring it with you the night of the hearing.
Enclosed is a receipt for the application fee of .00.
Very truly ,
Wa is her Gerlt
Chairman
Zoning of Appeals
bes
Enclosures
co
1540 SULLIVAN AVENUE SOUTH WINDSOR, CONN. 06074
OR-CO AREA CODE 203/644-2511
July 14, 1980
Mrs. Marion P. Case
1444 Main Street
South Windsor, Connecticut 06074
Re: Application No. 1385-80
Dear Mrs. Case:
Your application to the South Windsor Zoning Board of Appeals
requesting a variance of Article 5.2,. Section 5 to allow a
building lot with less than the required frontage on Main
Street, Zone A40 has been tabled,at. your request.
Very truly Y
Wa Chr' per Gent
oning Board of Ap als
bes
CERTIFIED MAIL
pow N SE,
1540 SULLIVAN AVENUE SOUTH WINDSOR, CONN. 06074
SOR-CQ AREA CODE 203/644-2511
July 15, 1980
Mrs. nxion P. Case
1444 WLin Street
South Windsor, Connecticut 06074
Re: Application No. 1385-80
Dear Mrs. Case:
Your application to the South Windsor Zoning Board of Appeals will be
heard at a public hearing on Tuesday, July 29, 1980 at 7:30 p.m• in
the Caucus Roan of the South Windsor Town Hall, 1540 Sullivan Avenue,
South Windsor, Connecticut. You, or scmeone representing you, must
be present.
Do not forget to bring the form that was previc:usly sent to you. It
must be canpleted by inserting the legal description of the property
in question, as well as the name of the owner.of record.
Very truly yours,
r Yr
p g}
Wayne Christopher GerY
Chairman, Zoning Board(of Aft:)eals
bes
�°wN se4
1540 SULLIVAN AVENUE SOUTH WINDSOR, CONN. 06074
()R cO AREA CODE 203/644-2511
July .30, 1960
Urs. Marion P. Case
14144 Plain Street
6outh Windsor, Connecticut 06074
Re : Application No. 1 365-bO
Dear Mrs . Case :
Your application to the South Wind.sor Zoning; f:oara of
Appeals requesting; a variance of Article 5.2, Section
1 to allow a building lot with less than the required.
frontage on Main Street, Zone 1^40 has been tabled..
The Board. decided. to table this application until
further information could. be obtained in regard to
whether or not the property is in a flood management
area.
Very t y rs,
W r o her Ger
Chairma
bes
KING, QUBEAU & RYAN, P. C.
ATTORNEYS AT LAW
ROBERT D. KING 38 PARK STREET
ROBERT 0.DU BEAU
ATHERTON B.RYAN ROCKVILLE,CONN. 06066
(203) 875-3375
August 4, 1980
Secretary, Zoning Board of Appeals
Town Hall
South Windsor, Connecticut 06074
Re: Applicant, Marion Case
At the hearing on the application of the above on the 29th
of July, the Board asked me to determine if the 50 foot by 300 foot
strip included in the application was subject to "flood control
management" .
After several trips to the Engineering Department and Town
Clerk' s office, I am pleased to report that no part of the subject
parcel is within the flood control area. Mr. Davies of the Engineering
Department has verified this for me.
Very truly o s,
1
R bert D. King
RDK:jgs
KING, DUBEAU & RYAN, P. C.
ATTORNEYS AT LAW
ROBERT D. KING 38 PARK STREET
ROBERT G.DU BEAU
ATHERTON B.RYAN ROCKVILLE,CONN. 06066
(2031 875-3375
September 4 , 1980
Zoning Board of Appeals
South Windsor, Connecticut
Re: Case 2-Ba
Applicant: Marion Case
Gentlemen:
The applicant, Marion Case, at the request of the Zoning
Board of Appeals, agrees to extend the time for rendering a
decision in the above matter for sixty (60) days.
r the a ant, Marion Case
V�
Robert D. King
Her Attorney
RDK:j gs
A. N S F4
O
wG 1540 SULLIVAN AVENUE SOUTH WINDSOR, CONN. 06074
R•co~� AREA CODE 203/644-2511
October 6, 1980
Mrs. Marion P. Case
1444 Main Street
South Windsor, Connecticut 06074
Re: Application No. 1385-80
Dear Mrs. Case:
Your application -to the South Windsor Zoning Board of Appeals requesting a
building lot with less than the required frontage on premises known as
1752 Main Street, Zone A40 has been granted.
The Board voted -too grant this application because this particular parcel
suffers an unusual hardship in that the property cannot be utilized for any
other purpose because of the topography of the land and the character of
the neighborhood would not be detrimentally affected because any residence
would be subject to approval by the historic district. The variance is
not out of harmony with the general purpose and intent of the zoning laws
and regulations since the lot size provides a more than adequate buffer or
separation between residences, and the public health, safety, convenience,
welfare and property values are protected and not harmed. The conditions of
this approval are that any building constructed would have to comply with a
theoretical building line at least 150 feet behind adjoining property on
Main Street, and plans would have to be sitmitted to Planning and Zoning and
approved by Planning and Zoning for the housing of any livestock, specifically
for the approval and/or fencing for such livestock.
This action is effective October 15, 1980 and upon filing of the enclosed
form in the Town Clerk's Office. This form must be filled out and returned
to me for my signature after which I will return it to you for filing.
Very truly yours,
Wa yn aisto� pher
Chairman
bes
cc: Robert D. Yjng, Esquire
MEMBERS PRESENT: Wayne Gerlt, Chairman: Robert Warren, Edward
Steben, Thomas Murrin
ALTERNATE PRESENT: Robert Earley
Attorney Robert King: I am Attorney Robert D. King, office
address is 38 Park Street in Rockville. I apologize for not being
here last time. It was one of these mental tricks. I was sure in my
own mind it was the following night and I wasn't particularly doing
anything but it was one of those things. May I ask the Board if they
have a copy of the map and would they like to have one. I have a
copy here.
Chairman Gerlt: I don't believe we have a full size map.
Attorney Robert Kind: I don1t think it terribly germamu to
the hearing but I have one and if you wish to look on I will be
referring to the property. It might help you follow it if you have
the map in front of you.
Chairman Gerlt: O.K. we have a smaller one taken from the
Town zoning map. It is the same thing.
Attorney Robert King: The legal advertisement I think properly
states the section, the variance requested, and the zone involved. Inso-
far as would expedite matters, I would like to make the principle
statements, Mrs. Case can certainly verify them, and if the Board has
any questions please address either to myself or to Mrs. Case. Mrs.
Case is presently the owner of the property and she became so as a result
of the death of her husband in 1971 I believe it was. The property up
to his death remained. in his name and had been so held. from the time
he purchased it in the early 19601s. It is at least partially relevant
to the history of the property that Mr. Case was a restorer, in fact I
would say a lover of old houses, and there was a house on this property
-2-
that he did restore and eventually sold the property containing the
house. There was a portion of the land left which you can see on the
map that the people who bought the house did not with to purchase and.
hence it was left. The property as it is now constituted. has approxi-
mately 50 feet along the property of which it was originally a part and
then the remaining part of it contains roughly 3.8 acres as a practical
matter. Mrs. Case would like to sell the lot for building purposes. The
potential buyer has indicated. that he wishes to put up a single family
home. The single family home would be toward the rear of the long piece.
The area, for those of you who are familiar with it, is wooded and jud.ing
from the location where the potential owner wishes to place the house,
it probably could. not be seen from the road. I say probably because we
are aware that a small portion of the land would come under the inland-
wetlands legislation. Also, of course, the whole property is in the
historic district and the potential owner would. have to satisfy the
requirements of both the inland-wetlands legislation ordinances and the
requirements of the historic district so the exact location of the
house would depend on what occurred with those two agencies. But the
property itself is vastly in excess of the amount of land normally
required for a minimum lot in the area. The 50 foot, approximately 50
foot, frontage would be basically used for means of ingress and egress
to the rear portion of the lot or the lot proper. I think it is
important to remember that Mrs. Case had no control over the property
as such until after her husbandIs death. She was the Administratrix
of the Estate and since that time the land has been unproductive. She
knows of no use, I know of no use that it can be put to if it is not
-3-
used for the purpose which we seek this evening. It is otherwise
open space land. and the question then becomes who can afford. to sustain
land. as open space which has no income and, no other conceivable use at
least at the present time and in the immediate future for that matter.
We are all aware that an application of this kind. requires a proving of
hardship. It would. seem to me that a proof of the hardship is certainly
present in the factual situation. You have a piece of land in an area
where there is exclusive residential houses and very fine residential
houses with no other use except that, permitted, desirable or even
possible and if the property can't be used for that it is certainly an
economic hardship on the owner of the land which in this case happens
to be Mrs. Case. Now I think the question which is Board is going to
eventually have to consider is what kind of a hardship was this. Is
this a hardship that Mrs. Case had anything to do with or is this some-
thing that she fell heir to so to speak. There doesn't seem to be any
question about that. She is in a situation which in effect was handed.
to her as a result of the Estate. Her husband owned the property. Her
husband did whatever was done to the property and she, Mrs. Case, is
left with it as it is. Certainly a hardship that was not created as a
result of any action on her part or any fault on her part or any attempt
on her part to take land and ring the maximum out of it. It is an
existing piece and she is here tonight to try to make the best of the
situation. I don't know as there 's any particular additional facts
that I want to add or in fact are necessary to add. I think it is
important to remember where the property is, the size of the property,
what is involved, very adequate in every respect except for the frontage,
that a situation is presented by the very fact that it is there which
M4-
lends only to one use and that is residential building, in fact, a
residential building. If that cantt be done the property is going to
sit there with no other use except open space as such and, of course,
the predominant question in that case would be at whose expense which
is an expense which Mrs. Case can ill-afford. Lastly, the hardship
which is obvious was not a hardship which was created by her. She is
only attempting to make the best of the situation as she finds it. Do
you Board members have any questions?
Chairman Gerlt: Thank you Mr. King. Do you want to say any-
thing Mrs. Case on this application?
Mrs. Marion Case: No, I think he has covered it all very well.
Chairman Gerlt: Do any of the members have any questions for
the applicant or her attorney. Mr. Murrin? Do you want to reserve
them until later. Does anyone wish to speak in favor of this application?
Does anyone wish to speak in opposition? Mr. Cavanaugh, we will give
you wide latitude for time. We will ask the members of the public to
please try to narrow their comments as much as possible and not duplicate
anything that you have heard.
Attorney Cavanaugh: Mr. Chairman, I think that I can keep
within the time limit. I have a statement which I will leave for the
clerk so it can save her trouble if she wants it but I want to present
it to you so that if you have questions you can answer them. You
know my name is Daniel P. Cavanaugh and I live on Main Street in South
Windsor and I appear here tonight as the attorney for Dudley P. Clapp,
who is one of the older people in town who owns a considerable amount
of land adjacent to the land that is described in this application.
I want to say something first that bothers me. I am inclined sometimes
-5-
to irritate the Board by their thinking and trying to educate them
and all that but years ago a very wise judge told me that everyone is
presumed to know the law except the Court. The Court has to be told and
that is why we have lawyers. Of course, one person has a lawyer that
tells the Court the law is one way and the other person has a lawyer
who tells them the law is the other way. It is the job of the lawyer
to tell the Court what the law is. Now you people are sitting as a
Court really because you are not making law, you are interpreting law,
you are enforcing law, so my job just as Mr. Kings job is, is to tell
you what we think the law is as applied to our client. So in order to
give this Board a clear picture of my client's objection to this appli-
cation, I want to first make brief reference to the Supreme Court decision
of April 17, 1980 which held that your Board acted arbitrarily and in
abuse of its discretion when it turned down this application for the sole
reason in that the hardship complained of was self-created. Now I
think it is regretable that no appeal was taken from that decision,
because I think it was highly unlikely that the Supreme Court of
Connecticut would have approved the strange concept suggested by the
Superior Court; namely, that when a person acquires land by inheritance
and presumably by gift has greater rights under zoning ordinances than
one who purchases the land. I question the concept particularly because
the judge who wrote the opinion was not able to site a single case
either in Connecticut or anywhere else in support of that strange idea.
But, no appeal was taken from that decision, so like it or not we have to
live with it. We are bound by it. It becomes the law of this case and
so we have to wait for another day before we can challenge that concept.
Now this means that the application that is before you tonight cannot
-6-
be turned down for other reasons, if there are other good reasons, and I
suggest that under the decision of our Supreme Court your Board is obliged
to take a fresh look at this application for there is nothing in that
Supreme Court decision that says you must approve it. All that Supreme
Court decision says is that you can't disapprove it because of a self-
created hardship. Any other reason that is there still stands up. Now
if we take a fresh look at this application I submit that there are at
least three good reasons why it should not be approved. The first
reason has to do with Section 11 .4 of the Town's zoning ordinance which
governs the powers of this Board. Under that section of the ordinance
the Board can grant a variance only if the variance is in harmony with
the general purpose and intent of the zoning ordinance. I am sure you
are all familiar , with that. Now the present application requests
permission to build on a private road four or five hundred feet back from
Main Street on a lot having no frontage on Main Street other than the
frontage of the private road which leads to the requested back lot.
Then the question is whether such an application is in harmony with the
general purpose and intent of the zoning ordinances. I suggest that the
answer is nobecause there is a major and very substantial conflict
between the application and the basic requirements of our zoning
regulations for the R40 zone. Mainly, the requirement that building lots
must have at least 150 feet frontage on a public street. Now in the
present case there is a serious question and you look at that map as
any ordinary person would interpret what is frontage on a street. There
is a serious question whether the three plus acre lot on which the
present applicant wants to build, there is a serious question as
whether that lot had any frontage on Main Street. Indeed, it can be
-?-
argued that the lot's only frontage is on the private road leading -to
Main Street. But even if one were to say that the private road frontage
on Main Street can be considered the lot's frontage on Main Street the
fact remains that the frontage is only one-third of that required by
our ordinance. So either way you look at it, the application is not in
harmony with the general purpose and intent of the zoning ordinance
because it either has no frontage or has only one-third of the required
frontage on a public street. There are a number of good reasons for
the requirement in our zoning ordinances that building lots be on a
public street, including the necessity of providing police and fire
protection, utilities, etc. But apart from these matters of public
health and safety, there is another very important asthetic consideration
having to do with good community planning. Just think of the bodge
podge that would exist in the Main Street area and in every other area of
this town if this Board should continue to grant variances so that
people can build on private roads leading to public streets. The damage
would be particularly acute in an historic district or in any other
district which has been settled for a long time and has established
building lines and street lines. If the Board were to allow the present
application, it could hardly refuse to approve similar variances for any
persons who have one or more acres of back land which can be reached by
a private road leading to a public street. The door would be open for
everyone to build private roads to their back land so long as no sub-
division of three or more lots is involved. Therefore, I submit to you
that this application should be denied because the requested variance
would not be in harmony with the general purpose and intent of the zoning
ordinance and there are more cases than I would care to bother with in
the Supreme Court so holding that you can't approve a variance where it
-8-
is not in harmony with the general intent of the ordinance and. this one
is not. Now the second. major objection to the application is this.
The applicant is unable to satisfy the requirement which is imposed
upon everyone seeking a variance; namely, the requirement that the
conditions affecting the land described in the application must be
"conditions especially affecting such parcel but not affecting generally
the district in which it is situated'. The land described in the
present application is located in the P40 district and I am sure the
members of this Board know enough about the Town to realize that there
are a great many parcels of land in South Windsor which are affected
by the same conditions substantially identical to those affecting the
parcel that is described. in this application. In other words, there
are many pieces of land back from existing streets which a-an be reached
from existing streets only over rights of way or over private roads
and under our present zoning ordinances such backlands cannot be used
as building lots although they may at some future time be used as
building lots if and when they become part of an approved subdivision
having the required frontage on public streets and meeting other
subdivision requirements. Now yesterday I went to Town Hall and. I
examined the zoning map as well as the aerial map on file in the
Assessor's Office. I ask this Board to take judicial notice of the
information contained. on those maps. I found, from an examination of
those maps that on Main Street alone there are at least twelve and
possibly twenty parcels of land which have two hundred feet or more of
frontage, that is fifty feet more than the one hundred fifty that is
required, and which had a total acreage of more than two acres which
is an acre more than is required and if the Board were to approve the
-9-
present application, it would be opening the gate to all persons not
only on Main Street but in all other parts of Town who would like to
sell their house with a minimum frontage on a public street and then
sell the rest of their land as a second building lot through the simple
devise of connecting the other land to the public street by a private
road. There are three such situations right in my immediate area. I
never thought about it before. Joe Vibert has one, Trotman across
the street has one. I am not sure but what the Lanus have one. I
know Shepard has one. They are all over the place these situations.
It hardly seems necessary therefore to dwell further on the point
that the present (now wait a minute I forgot) .
Chairman Gerlt: Whenever you are ready, Pat.
Attorney Cavanaugh: I don't think I have got all my sheets
here. Three, four. Well I have this mixed up so I am going to shoot
from the hip and go on. The second, reason, the first reason is that it
isntt in harmony. The second reason is that the conditions affecting
this land are no different from the conditions that affect hundreds of
other pieces of land in town which are subject to these same conditions.
Now if the people that feel there is a hardship as a result of not being
able to build. on this back land except by getting a subdivision have a
good case, the remedy is to go to the zoning commission. Certainly our
Court has held time and again that they can't come to the Zoning Board
of Appeals and by getting one case using that as an excuse to have another
and finally having a whole raft of them all over town, which results in
a change in your zoning ordinance. The third reason why it seems to me
that this application should not be approved is that it has been stated
but hasn't been proven that this land has no significant value. I
-10-
think that's what they're saying under its present condition. Again,
I went to Town Hall and. I think this Board should take judicial notice
at what is shown in the Assessor's Office. In the last reassessment of
this town that land was valued at $6,000.00 and while a lot of us complain
about the value of the land at the time that reassessment went through,
I think almost everyone knows that there have been few sales since then
when the price has not been substantially more than the value the
Assessor put on it and I dare say that if this land. were put up for sale
today it would bring in excess of $2,000.00 an acre. So if you look at
it that way, what the applicant is really saying is not that the land
doesn't have value but that it would have more value if it could be sold
as a building lot. But of course that is the situation that hundreds of
people in the town have. They could get more for their land if they
could use it for something that the zoning ordinance doesn't allow them
to use it for. Now finally, I thought some reference at the last
hearing and in the Court decision some reference was made and this Board
made in its discussion that this Board, probably other members on it at
the time, has in the past approved variances bearing some relation to
this and I think that may be true. I remember one or two. I can
remember others that have claimed to resemble this but have no
resemblance to it such as the recent one which now is on Main Street
where a 388 foot lot was allowed to be divided into two lots; one of
which had only 12 feet less than the required frontage. So instead of
having two lots of 150 foot frontage you have one of 150 and one of
138. Well in my mind that has no relation to what we are talking about
here today. That is a minor little variance, that isn't the case of
someone having no frontage or only one-third of the frontage but even
-11 -
if it were a fact that this Board has in times passed occasionally
granted a variance like this, that is no reason why you should continue
to grant them if under the law you should not and have no power to grant
this variance. Even the Supreme Court of the United States corrects
its mistakes and refuses to continue in those ways. So I think it is
no argument at all. The people in town that live here today are
entitled to have this Board enforce the law as the law is today and
under the law as it stands I think you have no power to approve this
but beyond that I don't think you should approve it, even if you did
have the power because of the reasons I have given to you.
Chairman Gerlt: I have one question I would like to ask. In
the part of the argument you indicated you don't feel the application is
in harmony with the spirit and intent of the zoning regulations. I want
to ask you about this passage in Judge Bieluk's opinion. He wrote "since
the land is located in a residential zone, it would not appear that the
granting of the frontage variance in order to permit construction of a
single family residence would materially upset the comprehensive
zoning plan. On the contrary, a variance of this nature would seem to
be in harmony with the purpose and intent of the zoning regulations.
Other than the lack of the required frontage, the Plaintiff's lot
exceeds every other dimensional requirement imposed by the regulations'.
Attorney Cavanaugh: I don't think that has anything, I think
that is not part of the decision binding on you. That issue was not before
the Court, it was a gratuitous statement. The only question before
that Court was whether you had a right to turn it down as a self-
inflicted hardship. That issue was not in the case and I think it's
-12-
absolutely wrong. It is like saying that you need three dimensions
and the thing is substantially correct because it has two of them.
I think the whole decision was a bad decision and. that's one of the
worse things in there.
Chairman Gerlt: Does anyone else have any questions?
Edward Steben: I want to ask Mr. Cavanaugh another question.
You mentioned just prior to Mr. Gerlt's question that we don't have
the power to give this variance?
Attorney_Cavanaugh: In my judgment you do not have the power.
I had in my briefcase, I am sure you are aware of many decisions by
the Supreme Court of Connecticut and we try to avoid in our discussions
before this Board getting into the decisions of the Court but there
have been many decisions saying holding that where there is a basic
policy set out in an ordinance you cannot grant a variance which will
conflict with that basic policy. It could not possibly be in harmony
with it if it conflicts with it. Every rule has some point beyond
which it can't go and some point to which you can go. That is the
problem with law and philosophy and. everything else. Where do you draw
the line. An ordinance that says you must have 150 foot frontage
probably isn't in serious conflict if you let them have 140 foot frontage
but because you let them have 140 that doesn't mean you can let them
have 10. Where do you draw the line and when you come down to less
than one-third of what is required, is that in conflict with the purpose
and basic intent of the ordinance. The other thing is we have had, I
remember a number of years ago, we had one of the most stormy town
meetings in this town when we were adopting our zoning ordinance
which everyone understood required that you could not build on private
-13-
roads. We had a lot of cowpaths in this town. Some people say my
grandfather delivered milk over that so it is a road. But is it a
public road or is it a private road. and I presented a map, I was Town
Attorney at the time, showing all the public roads that we claimed in
town and wanted the town to vote. If it wasn't on that map it wasn't a
public road. All the farmers were out that night and said well if you
put my road on there I will vote for it but they never did vote for it
so that there has always been that argument. Felt Road was one of them.
What is a private road? Now when we come down to what is a road and what is
a lot frontage on a street, I found on case in Michigan. It hasn'.t
been decided in Connecticut. But I don't think any old. farmer would
have any trouble with that. Suppose you had 50 feet on Main Street and
one half a mile back you had five acres up in the woods. Are you still
going to say the 50 feet that is only the road on Main Street is the
frontage of your lot. I think most anybody would say that this lot has
frontage on a private road. It is not a frontage on Main Street. Mr.
King I think said it was 50 feet. As I recollect, it is 300 feet along
that other property. I may be wrong.
Chairman Gerlt: It is 300 feet.
Attorney Cavanaugh: I think it is. So if your house would be
400 or 500 feet from Main Street with a house inbetween it and I stretch
the imagination to say that is frontage on Main Street.
Chairman Gerlt: Is there an existing private road there now?
Attorney Cavanaugh: There is a private road there which has a
right of way in favor of Mr. Clapp and the Theological Seminary had. a
right of way over it. In 1834 it was set up in a deed with reference
to it but Mr. Clapp insists that he has the right of way on there too.
40 1 4-
Chairman Gerlt: Does Mr. Clapp own this parcel that is just
south of the piece we are talking about?
Attorney Cavanaugh: yes,
Chairman Gerlt: Does he own behind as well?
Attorney Cavanaugh: Yes,
Unidentified person: The right of way is not in that spot
though. It is north of the other house. It is on the other side of
the
house.
Chairman Gerlt: The right of way is over in here.
Attorney Cavanaugh: There is another road.
Chairman Gerlt: Point it out please.
Attorney Cavanaugh: Clapp told me it was there. Now I don't
know.
Unidentified person: It is there. I walk my dog up there.
Attorney Cavanaugh: All right, but I don't think that's
important.
Chairman Gerlt: Does anyone else have any questions of Mr.
Cavanaugh? Mr, Murrin?
Tom Murrin: There are a number of other houses on back property
in that area, right? Would you differentiate between those and this
application.
Attorney Cavanaugh: Well, I don't think there are a number of
houses in back area. There is a settlement that was built there years
ago with four or five houses on it.
Tom Murrin: Just north of the property?
Attorney Cavanaugh: Yes,
Tom Murrin: Not too far south there are a couple more aren't
there?
_1 5_
Unidentified Person: Just one, but she has the frontage.
Chairman Gerlt: Does anyone else have any questions? Thank
you Mr. Cavanaugh. Does anyone else wish to speak in opposition of
this application?
Martha Lane: My name is Martha Lane, 870 Main Street and I
would like to tell you that the property immediately north of me 880
Main Street which consists of about 2.9 acres and I think their
frontage is approximately 285 feet, has made informal inquiries up here not
to the zoning board but to the Town Clerk's Office to see if they might
chop down a row of pine trees and. use that as frontage and put a house
in back and sell it as a building lot. So, there is somebody who I know
personally who is doing what Mr. Cavanaugh thinks might be done.
Chairman Gerlt: Thank you. Anyone else? Please just come
forward. Give us your name and. address.
Ann Craven: I am Ann Craven. I live adjacent to the property
in question at 1712 Main Street and I promised my husband. I wouldn't
speak but here I am. I mean to take my name off this. I got so excited
about the whole thing I signed twice so there is only one duplication
on there. If you will take me off here. I guess the thing that disturbs
us so much about this is we bought our house from the Casets. To us
Main Street is a pretty special place to live and we bought it with the
understanding that most of the young couples up and down the historic
district that are working so hard that this was a special area and that
it would stay a special area. No one in that historic district has
any more trouble paying their taxes than Bob and I do and. we have a
50 foot frontage that goes back to a two acre parcel. We also could
sell and build. back there if this goes through but it is not to be. It
-16-
is not what we want there. This is a special area and most all of us are
fighting so hard. for that that signed this. It is a hardship to pay
your taxes true but we do it.
Ed Steben: Ann, how much frontage d.o you have?
Ann Craven: We have 200 feet maybe a few feet over but we have
over four acres so we could sell a back lot and. so could a lot of other
people but the thing is as you all know Main Street should. be special
to you. Your own brochure for the Town of South Windsor put two houses
in there, our house and another house. It has to be special or you
wouldn't be using our pictures.
Chairman Gerlt : Thank you Mrs. Craven. Letthe record show
we have 38 signatures on this application. It says, "we the undersigned
respectfully request that the Zoning Board of Appeals not grant the
request to allow the back lot behind 1752 Main Street to be used as one
or more building lots".
Charles Rotenberg: I would. just like to add my name to the
record. Charles Rotenberg, 809 Main Street. I live in the neighborhood
of Mr. Cavanaugh and of Mrs. Lane and I certainly would, be affected by
similar situations in that area as well.
Chairman Gerlt: Does anyone else wish to speak?
Robert Accorsi : I live at 1752 Main Street. The house that is
surrounded by the piece of property and I would like to say that we
bought the house and. Mrs. Case had made us an offer to buy the property
just about the time that I was ready to sell my house. Since then I
decided to stay at the house and if the property were offered to me
again- at what the property really is I would maybe be interested in
purchasing it as it is. Getting it changed. into a residential piece
-17-
of property for building naturally would, boost the price up and eliminates
the potential buyer from purchasing the property as what it is backlands,
wetlands, etc. That is about it.
Chairman Gerlt: Does anyone else wish to speak in opposition?
Lynwood Addington: My name is Lynwood Addington. I live at
1648 Main Street and I have a couple of things that I really, I contacted
the Town Hall and I asked about what these properties had been sold for
down through the years. According to the Town Hall, this parcel of land
with the back acreage was bought for twelve five and approximately the
same month according to the Town Hall this property was sold for twenty
four eight. So I can't really see a hardship and it was sold without
the back land and. it was bought with the back land.
Chairman Gerlt: You are talking about the piece in question?
Mr. Addington: Yes. The Accorsits property and. the back land.
were bought for twelve five according to the Town Hall in 1962. In
September it was sold for twenty four eight without the back property.
Unidentified Person: Were there any changes in the house?
Mr. Addington: There were changes made in the house. I would
say not as extensive as the money gotten for the house. I am not going
to mention the exact amounts but there was a fire in one corner and it
didn't get the whole complete house. Again, this is a piece of property
which is actually a combination of slightly high land and lower wetlands
which is another tax against our water table. The land really, Mr.
Cavanaugh kind of put it just about right as far as opening up back
lands and having no frontage. I have property also with back land. I
got 11 acres on Main Street. But I don1t want any part of this
-18-
developing behind our properties. This A40 zone is only made that
deep to make our properties have a buffer zone between industrial and
residential A40 so in building in our backyards is completely against
the whole principle that was tried to have been evolved in making this
an A40 zone. Also, this is in the historic district which really takes
away from the value of the houses (unintelligible 2 or 3 words)
historical district houses and the district as a whole.
Chairman Gerlt: Thank you Mr. Addington. Anyone else?
Bob Craven: My name is Bob Craven. I live at 1712 Main Street.
My wife has already spoken and I would just like to say that I am on
record as opposing the application.
Doris Rockwell: Doris Rockwell, 1713 Main Street and I am
opposed to this. The Accorsits have done a beautiful job in restoring
that house so that it is a beautiful place. The lack of land around it
decreases the value and it certainly wouldn't increase it to have another
house in back. They have practically no room now for a yard and that right
of way to the north is practically running so you could reach out and touch
the side of the house and that is true also of the house to the north.
There is just no room there. That is the right of way to the north of
that house.
Chairman Gerlt: To the other side.
Doris Rockwell: To the north.
Chairman Gerlt: Oh, okay. Thank you.
Lynwood Addington: That 50 foot strip is actually running right
up against houses and Mr. Clapp's land also. He has buildings right
against the line.
Chairman Gerlt: This building here?
Lynwood Addington: There are several buildings. See you can
see the jogs. There is more than one building.
Chairman Gerlt: Where is it?
-19.
Lynwood Addington: They are actually garages and sheds and stuff
like that. They are right against that line.
Chairman Gerlt: Thank you. Anyone else? If no one else wants
to speak on this, I am going to declare the public participation portion
of this hearing closed. Last chance. Okay I am going to close the public
participation portion of this hearing. We will now have questions from
the Board of the applicant if they wish to have any.
Robert Warren: I would like to clarify the setback of the 50
foot right of way. Mr. King. You spoke of a 50 foot frontage with
approximately 50 feet of that frontage (unintelligible 3 or four words) .
Attorney King: I either misquoted or I was misunderstood.
That goes back about 300 feet along Accorsits property.
Chairman Gerlt: Any further questions? Mr. Warren, Mr.
Murrin, Mr. Steben, Mr. Earley. Mr. King, I would like to hear any
rebuttal as to whether or not the Board has the power to grant this
variance and then two things that are of deep concern to me whether or
not we are damaging an historic district and secondly whether or not we
are creating a dangerous precedent.
Attorney King: Those are all good questions . As Mr. Cavanaugh
was speaking, I felt a very close kinship to his situation. There are
good decisions and there are bad decisions. The good decisions are the
ones that you agree with and the bad decisions are the ones you disagree
with. The same goes for courts and judges. Now in this particular
situation Mr. Cavanaugh feels as I have often felt that this is a bad
decision because it doesntt exactly support exactly what I wish it did.
And so it goes. But I would recommend if the Board has already not
-20-
read it, that the Board do read, it collectively and individually.
Attorney Gerlt: We have all read it.
Attorney King: Because I think that it sets out in very
succinct fashion some of the fundamental zoning laws of the state and
as it applies to the town which of course operates under the state statute.
So far as Mr. Cavanaugh's position that you have no power to hear this.
I am utterly unable to follow his reasoning on that. If you are unable
to hear this, what function do you have. You are charged with hearing
cases in which there is a hardship which under the regulations as they
are written cannot admit a certain application. It is your function
to use your common sense, to use the latitude which the statute gives
you to make allowance for the cases that don't come precisely within the
terms of the town ordinance and the state statute and that under 11 .4
of your own ordinance which is the same language as Judge Bieluk
referred to is exactly why you are here. You have the authority, you
have the power to look at the facts and to make your judgment based on
what you know the ordinance to be and what you know of the situation
being presented to you. If that isn't what this ordinance says, what
the statute says, you have no reason for being in the first place and
they could abolish the zoning. I was also struck by a statement that
Mr. Cavanaugh made and I would wonder what would. happen if miraculously
that were brought about. He said of course the land has value. The
land in this particular case has value. Someday somebody is going to
come along and establish a subdivision and take this land in. Now I
wonder how many people would be here tonight if this were a subdivision
rather than a single family house situated. back from the road.. It
-21 -
seems to me to say that it isn't suitable for a subdivision is simply
carrying the argument to an illogical extreme. Now one other thing
that was mentioned. This is the value of the land itself. Mr.
Accorsi said. well they sort of like it and maybe they might buy it under
the right circumstances. Mr. Cavanaugh said that he thought the
assessed value was 6,400. I think actually the assessed value was 4V200.
I am not sure about that but it is one or the other figure. But in any
event, whatever its value if it can't be used for anything in the immediate
future, or if in the forseeable future, who is going to sustain that
economic loss. This isntt a part of an additional property that is
useable. This is property apart by itself which has no earthly use
except for the purpose of a dwelling which.is in conformity with the '
area in general, which gets us to your question of the historic
district. We speak of the historic district. Presumably we want to
maintain the general pattern that existed in the past, to preserve
what has been because it was found to be good and not create any
discordant notes. Well whether this particular proposal would meet
with your local historic district rules and regulations I think is
beyond the scope of this hearing and. I as I said initially whoever
attempts or undertakes to build on this property is going to have to
make peace with the historic district and with the inland-wetlands
as well. So this is really a separate issue. But getting back to
the real purpose, I suppose, behind an historic district, preserving
what is good. How many situations in the past can you think of in
this town, and in my own town, and in my particular case in my own
home, where we are back and incidentally which is 150 years old,
where we are back a mile or nearly a mile from the road. We own
-22-
land up to the road itself, a narrow stripe. But we are back and we
are not alone. This was common in the era past so what is so conflicting
about this situation, where people build back away from the road. If
you are really talking about an historic district and you want to
duplicate and preserve the pattern of the past, certainly there is
nothing inconsistent about this particular pattern and what abounded
in the past with this type of set back - private road - house at the
end of a private road. I can show you a dozen in our town and I suppose
if I knew this town better, I could find plenty of instances of that kind.
I think it does not lie in the fate of history. In fact, it compliments
history but that is not really the point here. I think whoever under-
takes this particular project has got to make his peace with the local
ordinances and if he can't make the grade then I think he's got a
problem.
Chairman Gerlt: Do either one of the two attorneys here tonight
know whether or not the property is in a flood management area? You
don't know. Could you please let us know that and get some information
to us.
Attorney King: I haventt checked myself but I know somebody
else did. I understand that it is not but let me confirm that.
Chairman Gerlt: I would appreciate it.
Attorney King: Do you mean a flood control area.
Chairman Gerlt: No flood management.
Robert Warren: I would like to focus for a minute on the 50 foot
by 300 foot slice. Does any piece of it, just that slice, have inland-
wetlands territory where it is subject to inland-wetlands and I under-
stand if there is any inland-wetlands in the back that that also is
-23-
subject to it. But are there wetlands within that strip and secondly
also focussing on that strip, my real question is what will the sharing
of the access through that strip be. Mr. Cavanaugh said that there
was a right of way at least as respects the Clapp and the Theological
Seminary which may (unintelligible word) the Accorsits but I am not
sure. What sharing would there be of the access through that strip?
Attorney King: As far as I remember it, I think there is a
vague outline on the map. The right of way is on the other side of
Accorsits house.
Robert Warren: It is not involved in this strip?
Attorney King: As far as I know it is not. So far as I know
this land is, this particular piece the 350 foot by 300 piece that we
are talking about to the best of my knowledge. This is all not subject
to any easement to anyone. It is not subject to an easement because it
is owned outright. On the question of wetlands, it is my understanding
that the wetlands part of this parcel may be involved, is toward the
back but I must say that the manner in which wetlands are identified
and established in most communities is rather vague and less than
scientific, so lhst it is difficult for me to say to what extent the
portion of the wetlands actually affecting this parcel are and to what
degree they are. They may be technically within an area designated
as wetlands and they actually may be under any scientific description
of wetlands that you can find. I happen to be in the legislature when
that was passed and I think this was the most troublesome part of the
law. How are you going to define it and. eventually as you know most of
the towns describe wetlands by getting out a map and sitting down
some evening session and probably much later in the evening and drawing
-24-
some lines and th Et was it, because it was very difficult to do and
very expensive to do so the lines defining wetlands are rather uncertain
and vague but wherever they are in this case it is my understanding
they are toward the rear of the large piece. I will check on that
flood control.
Chairman Gerlt: Okay, we would appreciate that.
Attorney Cavanaugh: Mr, Chairman, I would like to request one
minute to respond. There were many statements that I didn't recognize
and I am not going to take the time to answer them all, but there is
one thing that is very important and that is that I. of course, never
said that you had no power to hear this application. Of course you have
the power to hear it but what I said was that not only under the
express language of our zoning ordinance Section 11 .4 as well as under the
State statute and under the Court under the decisions of the Courts of
Connecticut you have no power to grant a variance which is not in harmony
with the purpose and intent of the zoning ordinance. Now like any other
question that comes before a judicial body that does require a
determination by you as to whether or not this does, this is in ,h armony.
Is it in harmony with the intent and purpose of our zoning ordinance
to let somebody build on a privath road when our ordinance says that we
have to have frontage on a public street. Is it consistent with the
intent and purpose to let them have only 50 feet if the ordinance says
150 feet. Now as to whether or not something is in harmony with the
intent and purpose. Again, I said initially that that is the old problem
that every people, everyone in a professional or in a difficult business
has. Where do you draw the line. How far do you go without going
over. There is always gray or black and I am submitting to you that
where you have only got one-third on one view of the frontage that you
-25-
need and under the other view you have no frontage at all, how can
anyone know that is where. I read several cases today where the Court
said where you have such a conflict how can anyone say that at the
same time you have a major conflict you are in harmony with the intent
and purpose.
Edward Steben: Pat, again I would like to come back and you
have been in town a good many years when I was on the first Town Council.
I was a newcomer to town. I have lived in town 27 years. I am no
longer a newcomer. (Unintelliglbe 4 or 5 words) Is it not true, Pat,
that this Board does break the law with every variance that we allow?
Attorney Cavanaugh: No, I dontt think that is true. I think
Mr. King put it rather well. He said your Board is here to make
allowances for cases that dontt come precisely within the language.
Now you have many cases where you need a 15 foot building line. The
neighbor doesntt object. The guy has got 13 feet. You have had. cases
where a lot had, required in the area was 150. You have gone down to
138. As I said. before, how far do you go down before you cease to be
in harmony. Most of us would say letting a man with 388 feet, I mean
288 feet, divide into two lots if the neighbors dontt object to it and
particularly if he is in a neighborhood with a lot of non-conforming
lots and not going to hurt the pattern which was true in the case you
granted on Main Street which I didn't attend the hearing. Sometime ago
you gave me permission to buy 10 feet of land from my neighbor. He
doesn t t have 100 feet and. I don t t. We have had a problem for 30 years
over a driveway. That isn't a major disturbance of the intent and
purpose. We donft need to use a microscope to find it. But when you
look at what we have here. My god. it is hard to imagine anything that
-26-
would be more in conflict with the general purpose and as I say this
matter of zoning ordinance doesn't say and I remember the discussion
on this. We say how near the streets you can't come closer than the
street line. We don't say how far back you can go. I put it to Paul
Kupchunos and Dick Reeves at a meeting I was to sometime ago and. Paul
would remember he was part of the group that passed the original
ordinance and why we didn't put that back how far back it went because
it was assumed that well if the fellow owned 150 feet a mile back if
he wanted. to build a mile back it was up to him. But no one ever
thought in terms of a fellow owning a 20 foot road and going back a
half a mile to somebody elses property. And if you can do it for
500 feet why can't you do it for a mile. If you start doing that, where
is your police and fire and. all the rest. Now even that in some cases
if you are in an area of the town that isn't developed or maybe it
isn't developable if there are such things, you might have a situation
where you could tolerate an unusual setup like this without disturbing
the climate and general pattern of the community. But that is not
true here. This is a beautiful little community up there and to start
doing this as I say all over Main Street there are people that today
you could find a fine market for 15 or 20 acres of land with a second
house in back and that might be a good idea but it is not for you people
to say. I think that is up to the zoning commission. Thank you.
Chairman Gerlt: Any questions from the Board?
Robert Earley: Mr. King, do you know the date when the
original piece was sold off?
Chairman Gerlt: September 60 1962. Any other questions? If
not we will declare the public participation portion of the meeting
-27-
closed. We are not going to be able to decide this tonight because
I am going to ask the Board to consent to my request to table it until
we have the flood management information before us. Thank you very
much.
I am Daniel P. Cavanaugh of 840 Main Street, South Windsor, and
I appear here tonight as attorney for Dudley P. Clapp who owns land
adjacent to the land described in the application.
In order to give the Board a clear understanding of my client' s
objections to the application I must first make brief reference to
the Superior Court's decision dated April 17, 1980 , which held that
your Board acted arbitrarily and in abuse of its discretion when it
denied the plaintiff' s application for the sole reason that the
hardship complained of was "self created" .
It is regretable that no appeal was taken from the Superior Court
decision, for I think it is highly unlikely the4 Court of
Connecticut would approve the strange concept suggested ia- the Superior
I
Court)dea&aAdwi1,, namely that persons who obtain title to land by
inheritance, or by gift, have greater ri4hts, under the Zoning Ordinances,
than those who obtain title by purchase.
To put it another way, the Court held, in effect, that land is
purged of the stigma of a 1 ..
~-t _ if and when the land passes to the owner's heirs by
inheritance or, presumably, if the owner makes a gift of the land to
his wife or other family members.
Inasmuch as no prior decision in Connecticut, or in any other
State, was cited in support of this strange legal concept, I would like
to have seen it tested by appeal to the Supreme Court of Connecticut.
But it was not appealed, so we must live with it, at least so
far as the present case it concerned.
-2-
This means that the application cannot be denied on the grounds
that the hardship complained of was self-created. But the application
can be denied for other reasons.
In short, the Board take a fresh look at this
application, and there is nothing in the Suerior Court decision that
requires the Board to approve its except that it cannot, again, be
disapproved on the grounds of self-created hardship.
So, taking a fresh look at the case, I submit there are at least
three good reasons for disapproving the application.
I
The first has to do with Section 11. 4 of the Town's Zoning
Ordinance which states that the Zoning Board of Appeals can grant a
variance only if the variance is in harmony with the general purpose
and intent of the Zoning Ordinance.
The present application requests permission to build on a private
road, 400 or 500 feet back from Main Street, on a lot having no
frontage on Main Street other than the frontage of the private road
which leads to the Is such an application
"in harmony with the general purpose and intent" of the Zoning Ordinance.
I suggest the answer to that is "no" , because there is a major
and very substantial conflict between the application and the basic
requirement of our Zoning Regulations for the R-40 zone, namely the
requirement that building lots must have 150 foot frontage on a public
street.
There is a serious question whether the 3 acre lot on which the
present applicant wants to build has any frontage on Main Street.
that the lot' s only frontage is on the private road
leading to Main Street. But even if one were to say that the private
road frontage on Main Street can be considered the lot's frontage on
Main Street, the fact remains that the frontage is only one-third
of that required by the ordinance. So either way you look at it the
application is not in harmony with the general purpose and intent of
the zoning Ordinance, because it either has no frontage or has only
one-third of the required frontage on a public street.
-3-
There ,.ua" a number of good Xeasons for
4,44
including he necessity of providing police and fire protection,
utilities, etc. , *but apart from these matters of public health and
safety, there was another very important esthetic consideration
.01
having to do with good community planning. r
Just think of the hodge podge that would exist in the Main
Street area, and in every other area of Town, if this Board should
continue to grant variances so that people can build on private roads
leading to public streets.
The damage would be particularly accute in an historic district
or a district which has long been settled and has established building
lines and street lines.
If the Board were to allow the present application it could
hardly refuse to approve similar variances by any persons who have
one or more acres of back land which can be reached by a private road
leading to the public street.
The door would be open for everyone to build private roads to
their back land so long as no subdivision of three or more lots is
involved.
Therefore, I submit to you that this
application should be denied *w because the requested variance would
not be "in harmony with the general purpose and intent" of the Zoning
Ordinance.
II
second major objection to the application is that the
applicant is unable to satisfy another requirement which is imposed
upon persons who seek variances, namely the requirement that the
conditions Affecting the land described in the application must be
-4-
"conditions especially Affecting such parcel, but not affecting generally
the district in which it is situated" .
The land described in the present application is located in the
R-40 district. I am sure the members of this Board know enough about
the Town of South Windsor to realize that there are l•-EM-•
.z* parcels of land in the Town which are -Affected by conditions
substantially identical to those ,Rffecting the present parcel of land.
In other words, there are many pieces of land back from existing
streets which can be reached from existing streets only over rights of
way or over private roads. Under our present Zoning Ordinance such
backlands cannot be used as building lots, although they may at some
future time, be used as building lots if and when they become part of
an approved subdivision, having the required frontage on public streets
and meeting other subdivision requirements.
Yesterday I went to the Town Hall and examined the zoning map
as well as the aerial maps on file in the Assessor' s office. I Aii;m�this Board to take judicial notice of the information
contained on such maps. I concluded, from an examination of such
maps, that on Main Street alone there are at least 12 and possibly 20
parcels of land which have 200 feet or more of frontage on Main Street
total acreage of more than two acres. I f �� ere��
and which have a o g ,�w
to approve the resent application
t h a Boa rd te ,app,�7"-%.,LV= CL
• ���
who would like to sell :4LaLhouse with a minimum frontage
.and then sell the rest of ,bs land as a second building loth through
the simple dev4e of connecting such other land to A6-t-n Street by way
of a private road.
t2
r•
7 leel
y s.
It hardly seems necessary to the point that the
present applicant' s situation is not unique, or even unusual , and I
assume the Board knows that the Supreme Court of Connecticut has said,
over and over again, that under such circumstances no variance can
be granted, because to grant variances in such circumstances, would
amount to usurping the Legislative powers of the Zoning Commission by
changing the Zoning Ordinance.
III
Finally, I suggest that the application should be denied because
it has not been shown that the land has no significant value at the
present time. Again, I ask the Board to take judicial notice of the
fact that according to the records of the Tax Assessor, this land has
a value of $6 ,000. There is no record in the Assessor's office that
the owner has objected to such valuation.
When the Assessor revalued our property a few years ago some of us
complained that assessments were too high, but today we must admit
that few sales in Town have been for less than the assessed value of
the property. The Board may, therefore, assume that if the owner of
this property were to offer it for sale, even without approval of the
requested variance, it would bring a price substantially in excess
of $2,000 per acre.
-6-
So what the applicant is really saying, is not that the land has
no value in its present condition, but that it would be worth more
if it could be sold as a building lot rather than as back land.
When you put it that way it becomes evident that the applicant
is in the same situation as many other people in Town who own back
land and who could reap a wind fall if they could sell such back land
for a second building lot.
If our Ordinance is unfair to them, they should try to get the
Ordinance changed. They have no right to variances which, if granted,
will amount to changing the Ordinance in a major way.
The-'applicant has tried to make something of the fact that the
�A? a
Board=o ,, in the past, have approved variances bearing some resemblance
to the present one. Even if that were true, the Board is required to
follow the law in passing on the present application, pqnd if there
were errors in the past, the Board has no obligation to continue to
err. The citizens of South Windsor look to you to protect the
integrity of their Zoning Ordinance, and in the present case that means
that the application should be denied.
We the undersigned respectfully request that the Zoning
Board of Appeals not grant the request to allow the back-
lot behind 1752 Main Street to be used as one or more
building lots.
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