Lessner v. Zoning Bd. of Appeals of Town of Manchester

• Decision Date: 29 October 1963
• Court: Connecticut Supreme Court
• Parties: Esther M. LESSNER v. ZONING BOARD OF APPEALS OF the TOWN OF MANCHESTER et al. Supreme Court of Errors of Connecticut

Page 437

195 A.2d 437

151 Conn. 165

Esther M. LESSNER v. ZONING BOARD OF APPEALS OF the TOWN OF MANCHESTER et al.

Supreme Court of Errors of Connecticut.

Oct. 29, 1963.

Lewis Segal, Manchester, for appellant (plaintiff).

Philip Bayer, Manchester, with whom were Herbert A. Phelon, Jr., Manchester, and, on the brief, Richard W. Law, Manchester, for appellee (defendant Burnham Estates, Inc.); with him also was Irving L. Aronson, Hartford, town counsel, for appellee (defendant board).

Before KING, C. J., and MURPHY, SHEA, ALCORN and COMLEY, JJ.

MURPHY, Justice.

The defendant zoning board of appeals of Manchester granted a variance to the defendant Burnham Estates, Inc., on March 28, 1962, authorizing it to construct a one-family house on a lot having a 100-foot frontage on Robert Road in Manchester. The property is in a residence AA zone. The zoning regulations specify a 120-foot frontage for AA zone lots. Manchester Zoning Regs., art. 3 (1956). The plaintiff owns property adjoining the Burnham lot. She appealed the granting of the variance to the Court of Common Pleas, which dismissed her appeal. From the judgment, the plaintiff has taken this appeal.

The plaintiff's property and that of Burnham are part of the layout of Green Hill Terrace, for which a map was recorded in 1925. The lots on the north side of Robert Road were mapped as being eighty feet wide at the street line. The plaintiff acquired lot 26 and one-half of the adjoining lot, No. 25, and built her house upon them. In 1961, Burnham purchased the other half of lot 25 and sixty feet of lot 24, next to it. Twenty feet of lot 24 had been sold to another. Burnham applied for a permit for a one-family house, and on May 10, 1961, the building inspector issued the permit. Burnham proceeded with construction of the house and had the foundation completed when on May 31, 1961, the building inspector, as a result of a complaint made on behalf of the plaintiff, ordered construction stopped. On March 1, 1962, Burnham applied for a variance, which the board granted after a public hearing.

At the hearing, it was disclosed that the building inspector had issued the building permit in accordance with a 1951 written opinion of the town counsel and had ordered construction stopped following the opinion of a different town counsel in 1961. Both opinions concerned the interpretation and application of article 3 of the Manchester zoning regulations, which excepted from the provisions governing the minimum size of lots any lots of smaller size which were of record on August 1, 1945. The 1961 opinion, as applied to Robert Road, permitted the erection of a dwelling on an eighty-foot lot if it was one of the lots delineated on the 1928 map but did not allow a dwelling to be erected on property less than 120 feet wide unless it included a full size lot as laid out on the map.

Burnham had been approached by a real estate agent who tried to interest it in purchasing 120 feet on Robert Road. The property consisted of lot 24 plus forty feet of lot 25. The price was too high for a speculative builder. Later, the agent offered 100 feet at a price suitable to Burnham. The agent had interested the owner of the property to the west of lot 24 in buying twenty feet of lot 24. The agent had been assured by the planning and zoning office and by the building inspector that a permit could be issued and a dwelling constructed on the 100-foot frontage and so informed Burnham's representative. This advice accorded with the practice followed since the 1951 opinion of the town counsel and was based upon it. After construction was stopped, Burnham was unsuccessful in attempting to purchase the west twenty feet of lot 24 or to sell its property to either of the adjoining owners.

The board, in granting the variance, made a very thorough and detailed finding of the reasons on which its action was predicated. Briefly summarized, they were: No contiguous land is available to provide a 120-foot frontage. Burnham's land cannot be used for any permitted purpose without a variance. A variance would not impair the integrity of the zoning regulations or be substantially detrimental to the public welfare. A substantial majority of the lots of record in the subdivision have frontages of less than 100 feet. There are still three 80-foot lots in the subdivision on which dwellings can be legally built. The sideyard areas of Burnham's property are greater than required. The property has 25 percent more frontage than nearby subdivision lots and meets density objections. The proposed house will be in a price range comparable to those in the area. The board concluded that the location of the property and the unavailability of additional land for compliance with the regulations constituted special circumstances which did not apply generally to other property in the neighborhood; that the approval of the...