Bishop v. Bd. Of Zoning Appeals Of City Of New Haven

• Decision Date: 09 May 1947
• Court: Connecticut Supreme Court
• Parties: BISHOP et al. v. BOARD OF ZONING APPEALS OF CITY OF NEW HAVEN et al.

133 Conn. 614

53 A.2d 659

BISHOP et al.

v.BOARD OF ZONING APPEALS OF CITY OF NEW HAVEN et al.

Supreme Court of Errors of Connecticut.

May 9, 1947.

Appeal from Court of Common Pleas, New Haven County; Devlin, Judge.

Proceedings in the matter of the appeal of Carlton T. Bishop and others from an order of the Board of Zoning Appeals of the City of New Haven, granting permission to extend a business building into an adjacent residence zone. From a judgment dismissing the appeal, plaintiffs appeal.

No error.

Charles M. Lyman, of New Haven (Joseph Weiner, of New Haven, on the brief), for appellants (plaintiffs).

Charles Henchel, of New Haven (Harold E. Alprovis, of New Haven, on the brief), for appellee defendant Alden Realty Co.

George DiCenzo, William L. Beers, and Alfred Celentano, all of New Haven, for appellee (named defendant).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

ELLS, Judge.

The board of zoning appeals of the city of New Haven granted permission to a property owner to extend a business use into an adjacent residence area. The plaintiffs, who are neighboring property owners, appealed to the Court of Common Pleas, it dismissed the appeal, and they have appealed to this court.

The business property is a building having a frontage of seventy-five feet on the east side of Alden Avenue and one hundred and forty-four feet on the north side of West Elm Street. It contains four stores on the ground floor on Alden Avenue, two dwelling apartments on the second floor, three stores fronting on West Elm Street, and a four-car garage. The building was being used for business purposes prior to and at the time that the New Haven zoning ordinance became effective in 1929. Under the ordinance it was placed and still is in a business A zone, and it is the only area in a residential district of considerable size that was zoned as business A. In 1927 the owners acquired the property adjoining the Alden Avenue stores on the north. There is a two-family dwelling house thereon, the southerly side of which is about thirty-five feet north of the northerly line of the store building. The land between the buildings is a vacant yard. The action of the board in effect extended the business A zone an average distance of about twenty-four feet into the yard of the residence property, zoned as residence B. No additional stores were permitted, but the space of the existing stores was increased. There were to be no structural changes in any building located in the residence zone.

The trial court did not quote all of the numbered paragraphs of § 1033 of the Zoning Ordinances of the City of New Haven (October, 1941) in its finding. They appear in an exhibit made a part of it. We have corrected the finding so as to include them. A further correction sought by the plaintiffs is not warranted.

The applicable section of the zoning ordinance of the city is § 1033 and is printed in full in the footnote. ¹ The application made by the owners was for an ‘extension of existing building into adjacent property, owned by the appellant also, in accordance with Section 1033, paragraphs 1 & 3,’ and stated that a building permit had been refused and that under the ordinance the zoning board's permission was required. A public hearing was held after due notice and ultimately permission was granted, subject to certain limitations.

The plaintiffs contend that the original zoning of the locus whereby the corner property was classified as business A was invalid, and that the locus must be considered as a nonconforming use. The basis of the claim is that the enabling act by which the ordinance was authorized, 19 Spec.Laws, p. 1006, § 2, provides that the zoning regulations ‘shall be made in accordance with a comprehensive plan’ and that the plan adopted was not ‘comprehensive’ within that requirement. The quoted language must be read in connection with an additional provision contained in § 2: ‘Such regulations shall be made with reasonable consideration, as to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality.’ A ‘comprehensive plan’ means ‘a general plan to control and direct the use and development of property in a municipality or a large part of it by dividing it into districts according to the present and potential use of the properties.’ State ex rel. Spiros v. Payne, 131 Conn. 647, 652, 41 A.2d 908, 911. The city adopted such a plan. To permit business in a small area within a residence zone may fall within its scope, and to do so, unless it amounts to unreasonable or arbitrary action, is not unlawful. Upon this record nothing appears to show that the zoning authority exceeded its powers as regards the property in question. See Smith v. Collison, 119 Cal.App. 180, 186, 6 P.2d 277.

The next question is whether the enabling act authorized the city to confer upon the board of appeals the powers granted by § 1033. The ordinances must rest primarily upon the enabling act and must not go beyond the power delegated by it. Section 1, 19 Spec.Laws, p. 1006, authorized the board of aldermen to enact zoning regulations and states that ‘Such regulations may provide that a board of appeals may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules therein contained.’ The plaintiffs contend that § 1033 does not contain general or specific rules. It contains the same general rules provided for in the enabling act, in substantially the same language, and in addition provides that the board shall act only after public notice and hearing and subject to appropriate conditions and safeguards, and only in one of the situations described in the numbered paragraphs. The provisions of the ordinance reasonably are within the authority delegated to the city. A further claim is that the board has changed or altered a zoning district and that this may be done only by ordinance. What the board did was to extend a business use in a business zone a few feet into a residence zone, as it was authorized to do by the provision of § 1033. See People ex rel. Fordham Manor Reformed Church v. Walsh, 244 N.Y. 280, 287, 155 N.E. 575, 577. As the board did not make any change in a zoning district, it was under no duty to state its reasons for the action it took; Perdue v. Zoning Board of Appeals, 118 Conn. 174, 178, 171 A. 26; and consequently its failure specifically to find the facts upon which it based its order does not invalidate its decision. Its powers are and should be limited, but specific authority is granted in some cases where no other means of accomplishing the purposes of zoning exists, and this case provides one of the limited examples where that power may be applied.

The plaintiffs' main claim relates to the construction to be accorded to § 1033. The trial court concluded that the permission granted was within the power of the defendant board under paragraph 3 and that the hardship provision contained in paragraph 7 did not govern the case. The finding on this appeal does not state that difficulty or hardship existed, and no subordinate facts are found from which such existence reasonably could be found. The plaintiffs contend, however, that the vote of the board included a finding of hardship as one of the principal bases of its order. All that the record contains is the statement of one member of the board that unless the petition were granted ‘a truly practical difficulty and unnecessary hardship’ would result. In determining whether the board should exercise its discretion under paragraphs 1 and 3, the fact that otherwise hardship and difficulty would result would be a proper, though not necessary, consideration; and that one member mentioned that fact does not show this to be the...