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

• Decision Date: 29 January 1946
• Citation: 45 A.2d 828,132 Conn. 537
• Parties: DEVANEY et al. v. BOARD OF ZONING APPEALS OF CITY OF NEW HAVEN et al.
• Court: Connecticut Supreme Court

132 Conn. 537

45 A.2d 828

DEVANEY et al.

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

Supreme Court of Errors of Connecticut.

Jan. 29, 1946.

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

Action by Michael Devaney and others in the nature of appeals from the actions of the Board of Zoning Appeals of the City of New Haven granting permission to Vito Migliaro to use the first floor of premises located in a residential zone for a restaurant. A judgment was entered revoking action of the defendant board and the applicant appealed. The plaintiffs filed a motion to erase the appeal which was denied, 132 Conn. 218, 43 A.2d 218.

No error.

Thomas R. FitzSimmons, of New Haven, for appellant (defendant migliaro).

Vincent P. Dooley and Harold C. Donegan, both New Haven, for defendant board.

David M. Richman, of New Haven, for appellees (plaintiffs).

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

MALTBIE, Chief Justice.

Vito Migliaro, on September 19, 1944, purchased a one-family dwelling house at 423 Orange Street in New Haven for the purpose of conducting a restaurant business in it. The property was in a Residence B zone as defined in the zoning ordinance of the city, and in that zone such a use of property was forbidden, as Migliaro knew. He applied to the building inspector for a permit to alter the first floor to adapt it for the restaurant, but this permit was refused because of the prohibition in the ordinance. Migliaro appealed to the zoning board of appeals from that ruling. The board held a hearing, at which property owners living in the vicinity appeared in opposition to granting the permit. It voted, however, to grant the application, with a provision that the permission should be limited to such a use of the property by Migliaro and that no signs should be displayed. Interested property owners took an appeal to the Court of Common Pleas and it revoked the permit. From that decision Migliaro has appealed.

The justification for zoning in any municipality is that it serves to promote the public health, safety, welfare and prosperity of the community. State v. Hillman, 110 Conn. 92, 100, 147 A. 294. Not the least of its purposes is to stabilize property uses. Strain v. Mims, 123 Conn. 275, 287, 193 A. 754. The adoption of a zoning ordinance, or, indeed, any substantial change in it, may very seriously affect property values; an individual may, on the one hand, profit greatly by reason of it or, on the other, suffer substantial loss; but if the limitations upon the use of property are constitutional and apply reasonably and fairly to all they are valid; Comley ex rel. Rowell Boyle, 115 Conn. 406, 411, 162 A. 26; Strain v. Mims, supra, 123 Conn. at page 286, 193 A. 754; and the individual hardship and loss must be borne in order to make possible the greater advantage to the community as a whole. Osborn v. Town of Darien, 119 Conn. 182, 185, 175 A. 578. Zoning consists of ‘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. To attempt to give to any small group of individuals such as a zoning commission or appeal board the power to determine in the exercise of its unrestricted discretion what uses might be made of the properties in a community would not only be contrary to sound social policy but clearly unconstitutional. State v. Stoddard, 126 Conn. 623, 628, 13 A.2d 586. As, however, there may be situations where a literal enforcement of the provisions might result in serious injustice to a particular individual, it is usual to vest in the zoning commission or appeal board power to vary the regulations where there would otherwise be unnecessary hardships or practical difficulties. Lathrop v. Town of Norwich, 111 Conn. 616, 620, 151 A. 183; St. Patrick's Church Corporation v. Daniels, 113 Conn. 132, 139, 154 A. 343. This is an exceptional power which should be sparingly exercised and can be validly used only where a situation falls fully within the specified conditions. Thayer v. Board of Appeals, 114 Conn. 15, 23, 157 A. 273; Grady v. Katz, 124 Conn. 525, 529, 1 A.2d 137; Benson v. Zoning Board of Appeals, 129 Conn. 280, 284, 27 A.2d 389; DeFelice v. Zoning Board of Appeals, 130 Conn. 156, 164, 32 A.2d 635, 147 A.L.R. 161; Matter of Levy v. Board of Standards & Appeals, 267 N.Y. 347, 352, 196 N.E. 284.

The zoning ordinance before us contained these provisions: ‘The Board of Zoning Appeals may in appropriate cases, 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 purpose and intent as follows: * * * Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of any provision of this Ordinance, or where the effect of the application of the Ordinance is arbitrary, the Board of Zoning Appeals shall have power in a specific case to vary any such provision in harmony with its general purpose and intent so that the public health, safety and general welfare may be secured and substantial justice done.’ While the words ‘practical difficulties or unnecessary hardships' are found in many zoning regulations, no court, so far as we have been able to find, has ever regarded the words ‘practical difficulties' as having any significance in themselves; indeed, they are too lacking in precision of meaning to afford a standard sufficient to sustain the delegation of power to the board; and the phrase is construed as a whole. In applying such a provision, the requirement that any change shall be in harmony with the general purpose and intent of the ordinance is highly important. St. John's R. C. Church v. Board of Adjustment or Appeals, 125 Conn. 714, 723, 8 A.2d 1; Matter of Levy v. Board of Standards & Appeals, supra, 267 N.Y. at page 353, 196 N.E. 284; Prusik v. Board of Appeal, 262 Mass. 451, 457, 160 N.E. 312. This consideration is emphasized by the use of the adjective ‘unnecessary’ in modification of ‘hardships,’ because it can only be related to those hardships which do not follow as the ordinary results of the adoption of the zoning plan as a...