Mabank Corp. v. Board of Zoning Appeals of City of Stamford
| Decision Date | 24 January 1956 |
| Citation | 143 Conn. 132,120 A.2d 149 |
| Parties | The MABANK CORPORATION et al. v. BOARD OF ZONING APPEALS OF the CITY OF STAMFORD et al. Supreme Court of Errors of Connecticut |
| Court | Connecticut Supreme Court |
Julius B. Kuriansky, Stamford, with whom was Maurice J. Buckley, Stamford, for appellants (plaintiffs).
Arthur L. DiSesa, Asst. Corp. Counsel, Stamford, with whom, on the brief, was John M. Hanrahan, Corp. Counsel, Stamford, for appellee (defendant board).
George Dimenstein, Stamford, with whom was Isadore M. Mackler, Stamford, for appellee (defendant Vogt).
Before INGLIS, C. J., BALDWIN, O'SULLIVAN and DALY, JJ., and BORDON, Superior Court Judge. BALDWIN, Associate Justice.
The plaintiffs have appealed from a judgment of the Court of Common Pleas dismissing their appeal from the action of the defendant board of zoning appeals for Stamford in granting a variance of the zoning regulations to allow the defendant Hugo Vogt to relocate his restaurant establishment.
The record of the proceedings before the board discloses the following facts. Vogt has conducted a restaurant business, where intoxicating liquors are sold to be consumed on the premises, at 475 Atlantic Street in Stamford for several years past. The premises were condemned by the state of Connecticut for highway purposes in July, 1953. Vogt tried to find a suitable site within a radius of 750 feet from the premises condemned to which, under the regulations, he could remove without any action of the zoning authorities. Stamford Bldg. Zone Regs., § 14(3) (1951, as amended). No such site was available. Vogt then bought property on Summer Street in Stamford, intending to relocate his business there. This property is in a zone where restaurants selling liquor are permitted by the regulations. There is, however, one outlet for the sale of intoxicating liquor within 1100 to 1200 feet, and another nearly 1500 feet away. The zoning regulations (§ 14) do not allow a new outlet within a radius of 1500 feet from an existing one. Vogt applied to the defendant board for a variance. His former location on Atlantic Street was less than 750 feet from at least four other restaurants selling liquor. His removal to Summer Street would lessen the congestion of outlets. The relocation of his establishment was involuntary on his part and was necessary because of reasons entirely beyond his control. The public health, safety and welfare do not require a strict enforcement of the 1500-foot restriction, and the granting of the variance would be in harmony with the purpose and intent of the zoning regulations because the Summer Street site is within a zone where the regulations permit restaurants selling liquors.
The board granted the variance on July 12, 1954. The plaintiffs, who concededly are aggrieved persons, appealed to the Court of Common Pleas. The court rendered judgment dismissing their appeal.
The correctness of the court's judgment is challenged on two grounds, first, that the board was not empowered by law to grant a variance upon the facts; and second, that it acted arbitrarily, unreasonably and in abuse of its discretion. Section 18(A)(5) of the regulations empowers the board '[t]o authorize * * * 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.' The plaintiff argues that the authority of the board to grant a variance is confined to those instances where the difficulty or hardship arises because of the size, shape or topography of the lot or some peculiar situation or condition of the building or land. The decision of this case does not hinge upon the interpretation of this section of the regulations. Section 1(A) of the regulations states that the zoning authorities, in adopting the regulations, purported to act in accordance with the general statutes of the state and the special acts relating to Stamford. Sup.1947, c. 29, Rev.1949, c. 43; 25 Spec.Laws 444, 445; 26 Spec.Laws 257, 278, 288, 1234. They were legally justified in so acting. The Stamford charter confers the powers authorized by the General Statutes for zoning boards of appeal upon the board of zoning appeals of Stamford. 25 Spec.Laws 445. Section 842 of the General Statutes, which is contained in chapter 43, gives to the board power to vary the application of the zoning regulations 'in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect...
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Karp v. Zoning Bd. of City of Stamford
...warrant judicial interference. Nielsen v. Board of Appeals on Zoning, 129 Conn. 285, 289, 27 A.2d 392; Mabank Corporation v. Board of Zoning Appeals, 143 Conn. 132, 136, 120 A.2d 149. Although the cases cited concern variances based upon so-called hardship, a board acting as the one did in ......
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