Town attorneys brief New Canaan ZBA on variances, appeals and conflicts

New Canaan — Attorneys from the town’s counsel firm, Birch & Moses, told the Zoning Board of Appeals on an approximately one-hour training call that variances and appeals must meet precise legal standards under Connecticut case law and that board members should avoid conflicts and public statements that could show bias or predetermination.

The briefing focused on two paths the board can use to grant relief: a traditional undue-hardship variance and a more limited route when a proposal demonstrably reduces an existing nonconformity. Town counsel also reviewed the practical limits that recent Connecticut appellate and Supreme Court decisions place on variances and described how the ZBA should treat appeals of decisions by the zoning enforcement officer (ZEO).

Ira Bloom, an attorney with Birch & Moses, opened the discussion by summarizing the statutory role of a ZBA and the two legal conditions typically required for a variance: that the variance not substantially affect the municipal comprehensive plan and that the applicant demonstrate an undue hardship. Bloom emphasized that financial loss alone does not qualify as hardship, saying, “financial loss is not a hardship.”

Nick Bamonte, also of Birch & Moses, reviewed the state-level decisions the board should keep in mind. He described the so-called “E and F” decision from 2015 and said it narrowed the circumstances in which courts will uphold an increase in nonconforming uses. “The bottom line out of this E and F case … is that we cannot grant variances unless there is literally no economic value to the property,” Bamonte said, summarizing the case’s practical effect: if a property already has economic value in its existing use, courts are skeptical of expansion that materially increases economic value.

Attorneys explained that Verillo (an appellate opinion from 2015) provides a long review of variance law and historical context but did not itself create a new rule. They also contrasted the older Stillman line of cases (which treated physical site constraints as classic hardship examples) with E and F’s stricter economic-value analysis, and they noted that some practitioners continue to argue Stillman-style hardships while courts continue to cite E and F.

The panel described an alternative ground for relief: a variance granted to reduce an existing nonconformity (for example, removing an encroaching side stair while adding a smaller rear deck so that the net encroachment into setbacks decreases). Pete (Birch & Moses) framed how courts treat such exchanges: reductions must be “apples to apples” (the same category of nonconformity, e.g., setback for setback), and courts do not permit trading different nonconformities (for example, decreasing setback encroachment in exchange for increasing height).

Regarding appeals, Pete told the board that appeals from a zoning enforcement officer are heard de novo: “It’s a de novo kind of hearing,” he said, meaning the ZBA reweighs the evidence and applies the zoning regulations anew. The attorneys clarified that not only enforcement refusals but also some affirmative administrative decisions (for example, a staff “rubber-stamped” site plan approval) can be appealable to the ZBA.

Counsel reviewed procedural points the board should follow: state the factual and legal reasons for any variance decision on the record (judges reviewing appeals will expect more than a single-word rationale), record or reference site plans and dated drawings in the variance resolution when approvals are conditioned on those plans, and obtain applicant consent if only four board members will be present to vote (a majority of the full commission is required for action). Bloom noted the practical concern that a ZBA may have a quorum of three but cannot take a binding vote without at least four members.

The attorneys also discussed the Anatra (Madison) decision and related issues about how specific representations in the record (for example, an architect’s pledge) can bind subsequent owners, even when the representation appears only in hearing minutes rather than the recorded land records. Counsel warned that such representations can be difficult for future applicants or buyers to find because they are not always recorded on the land records.

On conflicts, bias and predetermination, the panel urged caution. They recommended recusal for clear financial or legal conflicts and advised members to avoid public commentary about pending or anticipated matters (including social media and media interviews). As Birch & Moses put it bluntly: “Social media, stay off.” They noted a practical rule of thumb: if in doubt about a possible conflict or appearance of bias, it is safer for an individual member to recuse.

The attorneys closed by pointing to continuing-education resources. They referenced an upcoming Connecticut Bar Association Planning & Zoning seminar (late March, remote) and offered to answer follow-up questions routed through the town staffer, Sarah. Sarah told the board she would circulate the seminar registration information and could cover fees for interested members.

The training produced no formal board actions during the session; attorneys fielded questions about case law, procedure and recordkeeping and advised the board to document conditions, site plans and the reasons for decisions to assist any future judicial review.