Dlugos v. Zoning Bd. of Appeals of Trumbull

• Decision Date: 07 March 1980
• Docket Number: No. 113305,113305
• Citation: 416 A.2d 180,36 Conn.Supp. 217
• Court: Connecticut Superior Court
• Parties: Andrew R. DLUGOS v. ZONING BOARD OF APPEALS OF TRUMBULL. Fairfield, at Bridgeport

Page 180

416 A.2d 180

36 Conn.Supp. 217

Andrew R. DLUGOS v. ZONING BOARD OF APPEALS OF TRUMBULL.

No. 113305.

Superior Court of Connecticut, Judicial District of

Fairfield, at Bridgeport.

March 7, 1980.

Raymond G. Heche, Bridgeport, for plaintiff.

Burton S. Yaffie, Bridgeport, for defendant.

ZARRILLI, Judge.

This is an appeal from the action taken by the zoning board of appeals of the town of Trumbull denying the application of the plaintiff, Andrew R. Dlugos, for a variance from the zoning regulations to enable him to use a portion of his residence as a real estate office. As a property owner the plaintiff is found to be an aggrieved person and, as such, has standing to maintain the appeal. The property under consideration is situated in a residential zone.

Article II, § 1 of the zoning regulations of the town of Trumbull provides in pertinent part as follows: "Within any Residence zone no building, structure or premises shall be . . . used for other than . . . (a) A one family detached house for one house-keeping unit only." Under subsection (b), providing for special exceptions, the following exception is, however, made for "(t)he office of a resident professional person . . . provided that the premises are the principal residence of such professional person . . . ."

In claiming that the business of a real estate broker should be classified as a professional occupation so as to fall within the purview of a permitted use under subsection (b), the plaintiff places heavy reliance upon the fact that this particular occupation is regulated by the licensing requirements of General Statutes § 20-314. That reliance is misplaced. The requirement of licensing serves a public policy purpose allowing "supervision and regulation of the real estate business and make(ing) possible the elimination of the incompetent and unscrupulous agent." Cyphers v. Allyn, 142 Conn. 699, 704, 118 A.2d 318, 321; Metropolitan Casualty Co. v. Billings, 150 Conn. 603, 607, 192 A.2d 541.

In the common usage of the term, a real estate office cannot be classified any differently from an insurance office, a collection agency, a shoe repairer's store, a tailor's store, or other types of occupations, businesses or agencies where personal services are offered to the general public. On the other hand, the word profession denotes something more. It implies "professed attainments in special knowledge as distinguished from mere skill." It signifies a "practical dealing with affairs as distinguished from mere study or investigation; and an application of such knowledge to uses for others as a vocation as distinguished from its pursuit for its own purposes." Ballentine's Law Dictionary (2d Ed.). The term "profession" implies "knowledge of an advanced type in a given field of science or learning gained by a prolonged course of specialized instruction and study." People ex rel. Tower v. State Tax Commissioner, 282 N.Y. 407, 412, 26 N.E.2d 955, 957; Rosenbloom v. State Tax Commission, 44 App.Div.2d 69, 71, 353 N.Y.S.2d 544. Typical examples of professions are, of course, dentistry, medicine, law and divinity. Also includable are, inter alia, professions practiced by chiropractors, psychiatrists, podiatrists, psychologists, and architects.

A plethora of decisions from other jurisdictions clearly indicates that a real estate broker simply cannot be categorized as a professional person. See Pennock v. Fuller, 41 Mich. 153, 155, 2 N.W. 176, 177, which held that "(r)eal estate agencies are no more professions than any other business agencies." In Jones v. Robertson, 79 Cal.App.2d 813, 816-17, 180 P.2d 929, 931, the court held that " '(o)ne who operates a real estate agency is not engaged in a professional employment.' " Similar contentions were made and overruled in the following cases: Cummins v. Pennsylvania Fire Ins. Co., 153 Iowa 579, 134 N.W. 79; Seaman v. Zoning Board of Appeals, 340 Mass. 488, 165 N.E.2d 97; Hackett v. Gale, 104 N.H. 90, 179 A.2d 451; Ridley v. Pronesti, 431 Pa. 34, 244 A.2d 719. See 3 Yokely, Zoning (3d Ed.) § 28-52 and 1 Rathkopf, Law of Zoning § 31, pp. 23-51. In Hancock v. Concord, 111 N.H. 413, 414, 285 A.2d 791, 792, the Supreme Court of New Hampshire stated that "(t)he occupation of a real estate agent has been held to be a business and not a profession."

The plaintiff's claims with respect to the declining values of property and the changing character of the area are more properly addressed to the zoning and planning commission than to the zoning board of appeals, whose functions are strictly limited in character. Variances should not be used to accomplish what is, in effect, a substantial change in the uses permitted in a specific zone. Bradley v. Zoning Board of Appeals, 165 Conn. 389, 395, 334 A.2d 914; Dooley v. Town Plan & Zoning Commission, 151 Conn. 304, 313, 197 A.2d 770. "(T)he establishment of and changes in general zoning regulations are a legislative function, . . . and when the board (a zoning board of appeals) uses its variance power to change these general rules, it encroaches on this legislative area and thereby acts in abuse of its discretion." Ward v. Zoning Board of Appeals, 153 Conn. 141, 145, 215 A.2d 104, 106-07.

General Statutes § 8-6 authorizes a zoning board of appeals to grant a variance when two basic requirements are satisfied: (1) the variance must be shown not to affect substantially the comprehensive plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan. Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 280, 129 A.2d 619. "It is well settled that the hardship must be different in kind from that generally affecting properties in the same zoning district, and must arise from circumstances or conditions beyond the control of the property owner." Smith v. Zoning Board of...