Lathrop v. Town of Norwich

• Citation: 111 Conn. 616,151 A. 183
• Court: Supreme Court of Connecticut
• Decision Date: 09 July 1930
• Parties: LATHROP v. TOWN OF Norwich et al.

151 A. 183

111 Conn. 616

LATHROP v. TOWN OF Norwich et al.

Supreme Court of Errors of Connecticut.

July 9, 1930

Appeal from Superior Court, New London County; Earnest C. Simpson Judge.

The application of Harry L. Lathrop for a permit to erect a gasoline filling station on certain property in a residence district was denied by the first selectman and by the board of appeals of the town of Norwich, and on appeal therefrom the superior court rendered judgment confirming decision and dismissing the appeal, and plaintiff appeals.

No error.

In 1920 the appellant purchased a tract of land located on the easterly side of Washington street in Norwich, having a frontage of one hundred and seventeen feet on Washington street and a depth of three hundred and fifty feet. Situated thereon was a dwelling house, and, about one hundred and seventy feet from the street, a large barn in which the appellant established a general repair shop or garage for repairing, servicing, and storing automobiles. The lower floor of the house was occupied as a residence by the appellant and his family; the upper floor was rented for living apartments. Appellant stored in the cellar small quantities of gasoline and oil for emergency use at night and repaired batteries therein, also used a portion of a room on the first floor for office purposes. In 1922 he purchased another tract, adjoining that first mentioned on the north having a frontage of fifty feet on Washington street and a depth of about three hundred feet. About one hundred and thirteen feet east of Washington street, on the north boundary of the tract first mentioned, he installed one filling pump and tank for the sale of gasoline. On February 14, 1927, the appellant was using his premises substantially in the manner above stated.

On that date the board of selectmen of the town of Norwich, pursuant to a special act authorizing the city of Norwich and the town of Norwich to create zoning districts, approved June 26, 1925 (19 Sp. Acts 1925, p. 1024), adopted a zoning ordinance which divided the town into districts, one, in which the appellant's property is located, being known as residence district, class B. As to this district it was provided that no building shall be erected or building or premises used other than for certain specified uses-in which the business uses made by the appellant of his property are not included. Provisions were made, however, regarding the continuance, extension, and change of nonconforming uses, as hereinafter detailed.

Washington street for one-half mile north of the appellant's premises, and for three quarters of a mile south, is a residential street with only two places of business located thereon, one a small grocery store, and the other a gasoline filling station. The entire locality is residential and some of the most valuable property in Norwich, for residential purposes, is located therein. The appellant's land abuts along its north boundary, on a highway which is the entrance to a park owned by the city.

On March 6, 1929, the appellant entered into a contract with a corporation extensively engaged in the operation of stations for the sale of gasoline, oil, and motor vehicle accessories, to convey to it the northwest corner of his premises, with a frontage of one hundred and thirty feet on Washington street and a depth of one hundred feet, but, the contract provides, the sale will not be consummated unless the tract in question may be used for the above-mentioned purposes. On March 8th the appellant filed with the town clerk an application for a permit to erect, on this tract, a building for such purposes. As required by the ordinance (section 19) the application and the accompanying plans and specifications were submitted to the first selectman for approval, and the latter disapproved the same on the ground that the building was designed and intended to be used for purposes contrary to the zoning ordinance. Thereupon the appellant filed with the board of appeals a paper stating that: " I hereby appeal to your board from the action of the first selectman of the town of Norwich in refusing me a permit to build a gas filling station upon my premises abutting on 271 Washington Street, which is in the Class B. Residence District or Zone under the ordinance of the town of Norwich concerning zoning. I therefore request your board to grant me, after hearing, such modification of the application of the regulations and provisions of said ordinance, as in my case, the board shall decide."

After public hearing the board found " that the strict application of the ordinances and regulations of the town of Norwich relating to zoning will not cause any difficulty or unreasonable hardship to the appellant in relation to the premises owned by him," and adjudged that the appeal be not granted, and that no variation or modification be made by the board in the application of the regulations or provisions relating to the use or erection of buildings or use of the land in so far as concerns the appellant's premises. From this decision appeal to the superior court was taken, upon the grounds stated in the course of the opinion.

Charles Hadlai Hull, of New London, for appellant.

Henry H. Pettis, George H. Gilman, Edmund W. Perkins, and Arthur M. Brown, all of Norwich, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

HINMAN, J. (after stating the facts as above).

The original reasons of appeal to the superior court may be resolved into two general propositions. The first is that strict application of the ordinances and regulations will cause such difficulty and unreasonable hardship to the appellant in relation to his premises that the board of appeals erred in not granting such a modification in the application thereof as to permit the erection of the pumps, filling station, and oil pit, as shown by the plans and specifications. In the examination of this contention, the general purposes and objects of zoning ordinances and the special functions of boards of appeal created thereunder are to be kept in view.

In the drafting of zoning ordinances it has been found difficult to avoid or eliminate ambiguities and mistakes in the highly technical provisions which are inherent therein, and, since such an ordinance must be comprehensive and city wide in its application, it is impossible to provide for the exceptional cases and situations which may arise. Therefore a board of appeals or adjustment is usually provided, the functions of which include the interpretation and application of vague or ambiguous expressions, and, so far as consistent with the spirit and purposes of the ordinance, amelioration of unnecessary hardships which, owing to special conditions, would result from a literal enforcement of its provisions. Baker, Legal Aspects of Zoning, p. 76. Extensive and liberal powers, to this end, are conferred upon such a board of appeals by section 14 of the Norwich Ordinance, including the following which are pertinent to the present discussion: " (3) Permit the extension of a non-conforming use or building upon the lot occupied by such use or building at the time of the passage of this ordinance." " (8) Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the regulations or provisions of this ordinance, vary or modify any such provision or regulation in harmony with its general purposes and intents and the general intent and purpose of this ordinance, so that the spirit of this ordinance and such regulations and provisions shall be observed, public safety and welfare secured and substantial justice done."

The appeal taken in the present instance manifestly was intended to invoke an exercise by the board of appeals of its powers under subdivision (8) of section 14, just quoted, and the finding of this board that the strict application of the ordinance will not cause any difficulty or unreasonable hardship to the appellant, and its decision refusing modification therein, were responsive to the only issue raised, expressly or by fair implication, by the appeal. The conclusion of the superior court, upon the appeal to it, that this action of the board of appeals was not arbitrary illegal, or unreasonable, is fully...