Johnny Cake, Inc. v. Zoning Bd. of Appeals of Town of Burlington

• Decision Date: 22 April 1980
• Citation: 429 A.2d 883,180 Conn. 296
• Court: Connecticut Supreme Court
• Parties: JOHNNY CAKE, INC. v. ZONING BOARD OF APPEALS OF the TOWN OF BURLINGTON et al.

Page 883

429 A.2d 883

180 Conn. 296

JOHNNY CAKE, INC. v. ZONING BOARD OF APPEALS OF the TOWN OF BURLINGTON et al.

Supreme Court of Connecticut.

Argued Dec. 6, 1979.

Decided April 22, 1980.

Ernest A. Inglis, Jr., Hartford, for appellant (named defendant).

Vincent J. Dowling, Hartford, with whom, on the brief, were Louis B. Blumenfeld and Vincent M. DeAngelo, Hartford, for appellants (defendants Hartford Roman Catholic Diocesan Corp. and its tenant St. Thomas Seminary).

Michael D. O'Connell, Hartford, with whom, on the brief, was James T. Flaherty, Hartford, for appellee (plaintiff).

Before LOISELLE, BOGDANSKI, PETERS, HEALEY and PARSKEY, JJ.

LOISELLE, Associate Justice.

The plaintiff appealed to the Court of Common Pleas pursuant to General Statutes § 8-8 as an abutting landowner aggrieved by the action of the defendant zoning board granting an application for several variances from the Burlington zoning ordinances. The court sustained the plaintiff's appeal. Upon the granting of certification, the defendants appealed to this court.

The land in question is a 100 foot by 100 foot parcel set back 100 feet from Johnny Cake Mountain Road with access to the road over a 20 foot by 100 foot strip. Except for the frontage on the road, the parcel is surrounded on all sides by property owned by the plaintiff Johnny Cake, Inc. (hereinafter Johnny Cake). For many years, the state of Connecticut owned the land and used it to operate a 60 foot high wooden fire watch tower. Both properties, that of Johnny Cake and that of the state, were located in a residence "A" zone as defined by the regulations of the town planning and zoning commission. The residence "A" zone required a 150 foot lot width, a 60 foot rear yard and a 35 foot front yard.

On October 22, 1973, the state conveyed the parcel to the defendant Hartford Roman Catholic Archdiocesan Corporation (hereinafter the Archdiocese). On December 7, 1973, the defendant St. Thomas Seminary (hereafter the Seminary), as tenant, applied to the zoning board of appeals for four variances. The requested variances sought relief from the 60 foot rear yard requirement, the 1050 square foot minimum building area requirement and two use restrictions so as to allow construction of a 75 foot high radio antenna mast in place of the fire watch tower, along with a 204 square foot radio transmitter building. In its application for the variances, the Seminary claimed the following hardships: "The premises now contain an obsolete nonconforming fire tower, which is not suitable for an F.M. Radio Antenna Mast desired by applicant. Applicants' lot is 100 feet by 100 feet in size, nonconforming, and cannot be built on without variances, since the zone requirement requires a 60 foot rear year, a 35 foot front yard, two 25 foot side yards, leaving an area of 5 feet by 50 feet which can be built on without variances." A hearing on the application was held by the zoning board of appeals and on January 30, 1974, the board granted the variances. Johnny Cake, as an abutting landowner, appealed to the Court of Common Pleas.

The court sustained the appeal and rendered judgment for Johnny Cake on the grounds that the hardship claimed by the defendants was self-created. Although the court recognized that the board was empowered to exercise liberal discretion in determining whether to grant the variance; Bora v. Zoning Board of Appeals, 161 Conn. 297, 299, 288 A.2d 89 (1971); the court regarded the defendants' purchase and lease of the parcel, in view of the use intended, as a self-inflicted or self-created hardship which could never be considered proper grounds for a variance. The court held that Abel v. Zoning Board of Appeals, 172 Conn. 286, 374 A.2d 227 (1977), was dispositive. There we said that "where the claimed hardship arises from the applicant's voluntary act, a zoning board lacks power to grant a variance." Id., 289, 374 A.2d 228.

The defendants assign four errors, all of them attacking the Court of Common Pleas' application of Abel v. Zoning Board of Appeals, supra, to this case. Since this is the sole issue presented on appeal, the errors assigned will be considered together.

In Abel, the purchaser of a .704 acre lot in the city of Norwalk applied for a variance from the one-acre area requirement mandated by the ordinance's "AAA" residential zone classification where the lot was located. The applicant requested the variance in 1973, six months after he had purchased the lot, in order to obtain permission to construct a dwelling. Upon examination of the manner in which the applicant had obtained title to the lot, however, the court observed that it had been created in 1961 as the remains of a subdivision which had yielded five separate building lots of one acre each and a sixth area designated on the recorded map as follows: "(Reserve) Area = .704 Acre This area is not to be constituted as a building lot but to be used as a park reserve for Sisters of Saint Thomas of Villanova (across the street.)" These were the terms of the subdivision plan as approved by the Norwalk planning commission in 1961. Yet the board granted the variance and its decision was upheld by the Court...