Libby v. Board of Zoning Appeals of City of New Haven

• Decision Date: 06 December 1955
• Citation: 118 A.2d 894,143 Conn. 46
• Court: Connecticut Supreme Court
• Parties: Ruth S. LIBBY et al. v. BOARD OF ZONING APPEALS OF the CITY OF NEW HAVEN et al. Supreme Court of Errors of Connecticut

Page 894

118 A.2d 894

143 Conn. 46

Ruth S. LIBBY et al. v. BOARD OF ZONING APPEALS OF the CITY OF NEW HAVEN et al.

Supreme Court of Errors of Connecticut.

Dec. 6, 1955.

William Dimenstein and George J. Grady, New Haven, for appellants (defendants Allinson), with them, on the brief, were George W. Crawford, Corp. Counsel, and B. Fred Damiani, Asst. Corp. Counsel, New Haven, in behalf of appellant (named defendant).

Charles A. Watrous, New Haven, with whom were Frank W. Flood and, on the brief, Dominick W. Celotto, Julius Maretz, Elliott R. Katz and Hubert C. O'Keefe, New Haven, for appellees (plaintiffs).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

O'SULLIVAN, Associate Justice.

The appeal before us is one taken from a judgment of the Court of Common Pleas by the named defendant, to be called the board, and by the other two defendants, M. J. Carl Allinson and Elizabeth M. Allinson. By virtue of the judgment, the court sustained an appeal by the plaintiffs from the action of the board in granting to the Allinsons a variance permitting them to convert their home from a one-family to a two-family house.

The following facts were available to the board: In 1948 the Allinsons bought the property known as 133 West Park Avenue, New Haven, for $23,000. It consists of a lot which has a frontage of 58 feet on the street and a depth of 141 feet, and a one-family house standing thereon. The house was built about thirty-five years ago, is of frame construction, rises two and one-half stories, and has thirteen rooms. West Park Avenue is a street five blocks long. It runs north and south and is in the west end of the city. All of the houses are built on the east side of the street, which is zoned as residence A. Edgewood Park runs along the entire west side of the street. All of the houses are one-family houses except three, which are five, six and ten houses, respectively, from the Allinsons' property. Since two-family houses are prohibited in a residence A zone, these three houses are nonconforming, having been built before the zoning ordinance was enacted.

After purchasing the property, the Allinsons used it as their home. Sometime after 1948, Allinson, who is engaged in the practice of medicine, moved his office to Greenwich, Connecticut. As he wished to have his family closer to the scene of his practice, he and his wife decided to sell their home on West Park Avenue. For over two years before he applied to the board for the variance, the granting of which resulted in this litigation, he made earnest efforts to dispose of the property through active real estate agents and extensive advertising. In spite of the efforts of all concerned, no one has shown any interest in buying it as a one-family house because of the large number of rooms. There is no present market for the property. Because of this inability to sell their home, the Allinsons filed with the board an application for a variance to authorize the conversion of the existing building into a two-family house. At a public hearing held after proper notice, several persons who own real estate near the property in question were heard in opposition to the application. The conversion will not require any exterior changes, and the interior will be altered only by inclosing the front staircase, by putting a bathtub in an existing bathroom, by constructing a doorway to lead to the rear staircase, and by installing some kitchen fixtures. The proposed changes will not have an adverse effect upon land in the vicinity, nor will they substantially affect the comprehensive plan of zoning either in the immediate neighborhood or in the entire city.

The board granted the variance, and the plaintiffs appealed to the Court of Common Pleas, which reversed the action of the board. As has been stated, it is from the judgment rendered by the court that the board and the Allinsons have appealed to this court. Because of the view we take on the merits of the matter, it is unnecessary to dispose of those assignments of error which are addressed to procedural rulings made by the court.

The pertinent part of the New Haven zoning ordinance reads as follows: 'Sec. 1033. * * * The Board of Zoning Appeals may in appropriate cases, after public notice and hearing and subject to appropriate conditions and safeguards, determine and vary the application of the regulations herein established in harmony with their general purpose and intent as follows: * * * (7) Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of any provision of this Ordinance, or where the effect of the application of the Ordinance is arbitrary, the Board of Zoning Appeals shall have power in a specific case to vary any such provision in harmony with its general purpose and intent so that the public health, safety and general welfare may be secured and substantial justice done.' One of the reasons which a property owner may advance in requesting a variance under this ordinance is that the effect of the ordinance is arbitrary. McMahon v. Board of Zoning Appeals, 140 Conn. 433, 440, 101 A.2d 284. The Allinsons do not take that ground. They rely entirely on the fact that they are faced with an unnecessary hardship. Because of their position, the board was justified in granting the variance only (1) if the effect of the zoning regulation upon the Allinson property has been to create an unnecessary hardship, as those two words have been defined by this court, and (2) if the board's exercise of its authority to vary has permitted a use which is in harmony with the general purposes of the zoning ordinance and also results in substantial justice. Plumb v. Board of Zoning Appeals, 141 Conn. 595, 600, 108 A.2d 899.

The minutes of the board state that the basis upon which it acted was 'the inability to procure a purchaser for a house with 13 rooms to be used as a one-family house and its uselessness as such due to the prohibitive cost of maintenance.' Economic loss, in and of itself, is not the decisive factor in determining whether a variance should be...