Leveille v. Zoning Bd. of Appeals of Town and City of Meriden

• Citation: 144 A.2d 45,145 Conn. 468
• Court: Supreme Court of Connecticut
• Decision Date: 17 July 1958
• Parties: Francis J. LEVEILLE et al. v. ZONING BOARD OF APPEALS OF TOWN AND CITY OF MERIDEN et al. Supreme Court of Errors of Connecticut

Page 45

144 A.2d 45

145 Conn. 468

Francis J. LEVEILLE et al. v. ZONING BOARD OF APPEALS OF TOWN AND CITY OF MERIDEN et al.

Supreme Court of Errors of Connecticut.

July 17, 1958.

Samuel H. Platcow, New Haven, with whom was Francis R. Danaher, Meriden, for appellants (defendants The International Silver Company et al.).

Joseph P. Patrucco, Meriden, for appellees (plaintiffs).

Before DALY, C. J., and BALDWIN, KING, MURPHY, and MELLITZ, JJ.

KING, Associate Justice.

John Humphries owns a lot on the southerly side of West Main Street in Meriden. The rear of this lot abuts a portion of Insilco Field, an irregularly shaped tract of land of over seven acres owned by The International Silver Company, hereinafter referred to as International. The Humphries lot lies between the main portion of the field and the south side of West Main Street. A narrow strip of land which is a part of the field extends to West Main Street and affords an entrance way to the main portion. A similar strip leads from the west side of the field to another street. When zoning became effective in Meriden in 1927, the area in question, including properties along West Main Street, was placed in a residence zone. Insilco Field was then, as it is today, an athletic field where games and contests were held to which the public was admitted for a fee. Concessions for soda, candy and similar items were conducted on the field. On the adoption of zoning, the field became a non-conforming use and has continued as such, except that an unascertainable portion was placed in a commercial zone in 1950. In that year the court of common council, which in Meriden is the zoning commission, changed the zoning of 'the property fronting on both sides of West Main Street,' in the area in question, from residence to commercial 'to permit the establishment of other businesses and to conform to the preponderant use of properties in the area which is commercial.' No depth of zone was given in this regulation. Depending upon the depth of the zone change, part or all of the Humphries property became zoned for commercial uses. The same is true of the strip of land running from the main portion of Insilco Field to West Main Street.

International is now engaged in erecting a new manufacturing plant which, inter alia, will include an athletic field. Since Insilco Field will no longer be of use to International, it desires to sell it. A substantial offer has been made on the condition that the field will be available for a shopping center. On October 1, 1956, the court of common council rejected a petition of Humphries and International to have their entire respective properties definitely placed in a commercial zone. From this action no appeal was taken. On December 17, 1956, the zoning board of appeals held a hearing on a joint application of Humphries and International for a variance to permit the use of their properties for commercial purposes in order to allow the shopping center.

On February 11, 1957, the board unanimously granted the variance. It gave as its reasons: (1) A portion of the property had been changed to a commercial zone in 1950. (2) The balance of the property fronts on a commercial zone. (3) The granting of the variance would not be detrimental to the general neighborhood. (4) The variance conforms to the present use. The plaintiffs appealed from the action of the board to the Court of Common Pleas, which sustained the appeal. From this judgment Humphries and International have appealed to this court.

It is apparent from the memorandum of decision that the court determined that a variance can be granted under the Meriden zoning ordinances only where there is a showing of practical difficulties or unnecessary hardship; that purely financial considerations such as the loss of a potential sale cannot constitute practical difficulties or unnecessary hardship within the rule; that in fact purely financial considerations constituted the only practical difficulties and unnecessary hardship before the board of appeals; and that consequently its action was illegal. If the court were correct in assuming that the only practical difficulties or unnecessary hardships present were financial, there would be no error in its decision. Devaney v. Board of Zoning Appeals, 132 Conn. 537, 542, 45 A.2d 828; Lindy's Restaurant, Inc. v. Zoning Board of Appeals, 143 Conn. 620, 623, 124 A.2d 918, and cases cited therein.

No evidence of any kind was introduced before the court. It cannot summarily disregard the reasons given by the board for the action taken and substitute reasons of its own. Couch v. Zoning Commission, 141 Conn. 349, 359, 106 A.2d 173; Suffield Heights Corporation v. Town Planning Commission, 144 Conn. 425, 428, 133 A.2d 612. From the reasons given by the board, it appears that it was influenced by the well-nigh impossible situation created by the 1950 zone change whereby properties on West Main Street were placed in a commercial zone of unascertainable depth. This change left at least a large portion of Insilco Field zoned for residence but shut off from West Main Street by property open to, and in large part occupied by, commercial enterprises. Such a situation fortified the testimony before the board that the field is not now usable for residence purposes and is adapted only for commercial uses. This is obvious from an examination of the map of the area. It shows that the field is an inside tract of land accessible from the public highway only over the two necks of land previously mentioned. The uncertainty as to what portions of the properties of Humphries and International were placed in a commercial zone in 1950 practically destroyed their salability by rendering the title of each property unmarketable. See Cole v. Steinlauf, 144 Conn. 629, 633, 136 A.2d...