Judges: Maltbie, Avery, Brown, Jennings, Ells
Filed Date: 11/6/1940
Status: Precedential
Modified Date: 11/3/2024
This case concerns the power of a zoning board of appeals to reverse a decision made with respect to the same property on a former application.
On February 9, 1926, the city of Hartford adopted a zoning ordinance pursuant to legislative authority. Its general purpose is discussed in St. Patrick's Church Corp. v. Daniels,
"The Board of Appeals may in a specific case, after public notice and hearing, and subject to appropriate conditions and safeguards, determine and vary the application of the regulations herein established in harmony with their general purposes and intent as follows:
"(a) . . .
"(b) Where a zone boundary line divides a lot in a single ownership at the time of the passage of this ordinance, permit a use authorized on either portion of such lot to extend to the entire lot, but not more than twenty-five feet beyond the boundary line of the zone in which such use is authorized."
The defendants Barry own and occupy property within the description of (b) just quoted. On June 12, 1934, they made application to the zoning board of appeals for variation of the ordinance by extending a *Page 274 "Business No. 1" zone, within which a portion of their property was located, so that twenty-five feet more would be included, in accordance with the authority granted under (b). The board considered this application at an extended hearing where some appeared in favor of the change and many were opposed. The application was denied. On June 2, 1938, an application was filed identical with the former application except that after copying it two inconsequential changes were made in pencil. The changes weakened rather than strengthened the allegations. After a hearing on this new application, opposed and favored as before, it was granted and the plaintiffs appealed. All of the facts recited above were matters of record.
While the finding is attacked, the evidence not only supports it but the basic facts appear to be substantially undisputed. The Barrys own and occupy a residence on the westerly side of Sigourney Street. The frontage is 49.7 feet of which the southerly 34.7 feet is in a "Residence C" zone and the northerly fifteen feet is part of an area one hundred feet square at the southwest corner of Sigourney and Ashley Streets zoned "Business No. 1." The next two properties to the north are in this business zone but most of the large section surrounding the properties in question is zoned as "Residence C."
The so-called Hayes building, situated between the Barry property and a drug store on the corner, was constructed in 1926. It was planned for four stores on the ground floor with high class residential apartments on the two floors above. At the time of the 1934 hearing a grocery occupied the two northerly stores which ran through from the front to the rear of the building. South of these was the entrance to the apartments. On the southeast corner was a barber shop with a rear room and on the southwest corner an office occupied *Page 275 by Mr. Hayes. Between the two hearings, the following changes were made in the layout of the ground floor. In 1935, because of a change in the liquor law, a separate store for the liquor department was built in the northeast corner of the grocery store. In 1937 this was moved to the store occupied by the barber shop, the barber shop moved to the rear room in the middle of the south front and a beauty shop took the place of Mr. Hayes' office. A new window was built in the south wall to light the barber shop. The floor space and number of tenants remained the same. The only substantial change was in the substitution of the beauty shop for the office.
There is a sidewalk in an alley between the Hayes and Barry properties. It was and is used to reach the rear and cellar entrances of the tenements and stores as well as the doors in the south wall of the building giving access to the barber and beauty shops. Three electric signs were added at the southeast corner of this building, next to the Barry property, after the changes. The liquor store maintained one in the window, the beauty shop installed a small neon sign at right angles to Sigourney Street and an illuminated whirling sign of the barber shop was changed to a small electric sign parallel to Sigourney Street. These signs are customarily illuminated only when the stores are open for business and the closing hours are fairly early. Other small changes occurring in the neighborhood between the two hearings included the changing of a one to a two family house, one residence was changed to a rooming house and a dressmaker retired from business downtown and kept a few dresses for sale in her home. All of these changes were permitted in a "Residence C" zone.
The court further found that such inconvenience as was suffered by the Barrys between 1934 and 1938 as *Page 276 a result of the proximity of business was similar in character and extent to that suffered prior to 1934, that the full depreciation of their property occurred when the business zone was established and the block built, that while traffic increased, the increase was no greater than in Hartford as a whole and that the fifteen feet owned by the Barrys in the business zone can be devoted to practical business use. It also found that the granting of the application would depreciate the property of the named plaintiff and others similarly situated.
On these facts the trial court concluded that the reversal of its decision by the board of appeals was arbitrary, unreasonable, illegal and an abuse of its discretion because no material changes in conditions occurred between the two hearings. The determinative question on this appeal is, does the finding support this conclusion?
The power of a zoning board of appeals to reverse its own decision has been frequently before the courts. It was considered in two leading Connecticut cases where many decisions from other states were analyzed. St. Patrick's Church Corp. v. Daniels, supra; Burr v. Rago,
In the St. Patrick's Church case, the changes involved the congestion of streets, the promotion of safety and the public welfare and for that reason they were held to be material. This is a very different consideration from the increased inconvenience or even financial detriment to a single individual. Thayer v. Board of Appeals, supra, 22; Strain v. Mims,
In arguing orally that the denial of their petition places them in a "Residence C" zone for all time, the defendants lose sight of the two distinct remedies which the zoning act provides. That invoked by them, a variance by the board of appeals, is to be sparingly used. Thayer v. Board of Appeals, supra, 23. Should general conditions change so as to require a fundamental revision of the zoning ordinance, the court of common council has full authority. Special Laws, 1925, p. 987; 1927, p. 238. The distinction is pointed out by Justice Cardozo in People ex rel. Fordham M. R. Church v. Walsh,
In addition to arguing the materiality of the changes, the defendants emphasize the repeated assertion *Page 279
of this court that the board of appeals is vested with a wide discretion which will be interfered with only when it has been abused. Blake v. Board of Appeals,
There is no error.
In this opinion the other judges concurred.
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Thayer v. Board of Appeals ( 1931 )
Blake v. Board of Appeals ( 1933 )
St. Patrick's Church Corporation v. Daniels ( 1931 )
People Ex Rel. Fordham Manor Reformed Church v. Walsh ( 1927 )
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