Heady v. Zoning Bd. of Appeals for Town of Milford

• Decision Date: 03 February 1953
• Citation: 94 A.2d 789,139 Conn. 463
• Parties: HEADY v. ZONING BOARD OF APPEALS FOR TOWN OF MILFORD et al. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 789

94 A.2d 789

139 Conn. 463

HEADY v. ZONING BOARD OF APPEALS FOR TOWN OF MILFORD et al.

Supreme Court of Errors of Connecticut.

Feb. 3, 1953.

Ephraim Edward Sinn, Milford, for appellant (defendant Viola).

Joseph Weiner, New Haven, with whom was William Gitlitz, Milford, for appellee (plaintiff).

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

BALDWIN, Associate Justice.

The defendant zoning board of appeals granted a variance of the zoning regulations in favor of the defendant Viola. The plaintiff, an adjoining property owner, appealed to the Court of Common Pleas. That court directed that judgment be entered sustaining her appeal. The defendant Viola has appealed from the judgment.

The finding is not subject to correction. It discloses the following facts: The plaintiff owns and resides in a dwelling house located on Cherry Street in Milford. The defendant Viola owns a dwelling house next door and to the east. Both properties are in a residence A zone, which is limited to single-family dwellings. Milford Zoning Regs., art. 3, § 3-1(1). For some time prior to 1949, the defendant Viola, whom we shall call the defendant, lived with his family in his one-family frame dwelling. It has seven rooms, three downstairs and four up. A fourth room was added to the first floor sometime before 1951. The defendant is a physician and he kept his professional office in his home. This was permitted as an accessory use under the zoning regulations, Id., art. 3, § 3-1(22). Since 1949, the defendant has maintained a home for himself and his family at Bayview in another part of Milford. He continued, however, to use his house on Cherry Street for his office. Having previously been denied a permit for two additional offices, the defendant, on August 14, 1951, applied to the building inspector for a permit for one additional medical and dental office in his Cherry Street house. His purpose was to rent this additional office to a dentist. The building inspector refused the permit as one calling for a nonconforming use, and the defendant applied to the zoning board of appeals for a variance. The zoning regulations require that an application for a variance must be transmitted by the building inspector to the secretary of the planning and zoning board, as well as to the board of appeals, and that the planning and zoning board shall make a report thereon to the board of appeals before that board makes its decision upon the application. Milford Zoning Regs., art. 5, § 5-5(B)(3). On August 16, the planning and zoning board recommended that the defendant's application be denied as a nonconforming use.

The board of appeals held a hearing on the defendant's application on September 6, 1951. The plaintiff and others appeared and were heard in opposition. On the same date, the board voted, four to one, in executive session, to approve the defendant's application and grant the variance. The zoning regulations require that before a variance is granted the board of appeals shall include a written finding in its minutes stating specifically the exceptional conditions, the practical difficulties or the unnecessary hardships involved. Milford Zoning Regs., art. 5, § 5-5(A)(3). The minutes of the board were made a part of the finding. From an entry therein it appears that it was voted 'that permit be granted to Dr. Carl P. Viola to have one additional Medical-Dental Office at his present address at # 26 Cherry Street, Milford, Conn. Reason:--on basis of allowing Dr. Viola to put the property to its best use, denial of which would be a practical difficulty.' The variance having been granted by the board, the defendant, in September, 1951, secured a permit to make repairs so that the room on one side of the first floor of his house on Cherry Street could be used as his medical office and those on the other for a dentist's office, and a certificate of occupancy for such use was issued to him. Since then, the defendant and a dentist have used the first floor of the premises for their offices. The defendant has removed most of his household furniture and no longer occupies the house as a dwelling. Since the two offices have been established, there has been an increase in the parking of cars, both in the street and in the driveway on the property, and there have been more people entering and leaving the premises, particularly during three nights each week when the defendant has office hours. All this interferes with the comfort and use of the plaintiff's premises.

The trial court concluded that there were no practical difficulties or unnecessary hardship which justified the allowance of a variance and that the action of the board in granting one was illegal, arbitrary and in abuse of its discretion. The defendant claims error in this conclusion. The zoning regulations of the town of Milford provide that the zoning board of appeals shall have the power, among others not pertinent here, to 'authorize upon appeal in specific cases variances from the terms of [the] regulations, where by reason of exceptional shape, size or topography of lot, or other exceptional situation or condition of the building or land, practical difficulty or unnecessary hardship would result to the owners of said property from a strict enforcement of [the] regulations.' Milford Zoning Regs., art. 5, § 5-5(A)(3). They further provide that the powers of the board 'shall be exercised, subject to appropriate conditions and safeguards, in harmony with the purpose and intent of [the] regulations and in accordance with the public interest and the most appropriate development of the neighborhood.' Id., art. 5, § 5-5(A).

The power to grant a variance in the application of established zoning regulations should be exercised charily. Piccirillo v. Board of Appeals on Zoning, 139 Conn. 116, 120, 90 A.2d 647. The obvious reason is...