Malmstrom v. Zoning Bd. of Appeals of City of Hartford

• Decision Date: 09 February 1965
• Citation: 152 Conn. 385,207 A.2d 375
• Court: Connecticut Supreme Court
• Parties: Edward C. MALMSTROM et al. v. ZONING BOARD OF APPEALS OF the CITY OF HARTFORD et al. Supreme Court of Errors of Connecticut

Page 375

207 A.2d 375

152 Conn. 385

Edward C. MALMSTROM et al. v. ZONING BOARD OF APPEALS OF the CITY OF HARTFORD et al.

Supreme Court of Errors of Connecticut.

Feb. 9, 1965.

Thomas H. Corrigan, Hartford, for appellants (plaintiffs).

Francis V. Manion, Hartford, for appellee (defendant Associated Building Co.), with whom was Joseph J. Burns, Asst. Corp. Counsel, for appellee (named defendant).

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

MURPHY, Associate Justice.

The Associated Building Company, hereinafter called the defendant, is the owner of two lots on the south side of Victoria Road in Hartford and abutting the Wethersfield town line. The easterly lot, No. 9, is 66.5 feet wide and lies 76 feet west of Wethersfield Avenue in a business zone. Lot 11 adjoins it on the west. It is 60 feet wide and is in a residence B zone. The zoning board of appeals granted the application of the defendant for a variance to permit it to erect a two-story office building on lot 11 and to use lot 9 for parking eleven automobiles. The plaintiffs, neighboring property owners, appealed to the Court of Common Pleas, which rendered judgment sustaining the action of the board, and they have appealed from that judgment.

This application was the third attempt by the defendant to obtain permission from the board to use these lots at variance with the uses permitted in their respective zones. Apparently acting on the assumption that the board was familiar with the history of these particular lots, the defendant did not develop its case in depth before the board as would be done ordinarily on an original application. Fortunately, it is possible to construct a major portion of the background from the questions and answers of the witnesses in the hearing before the board and from the statements in the briefs. The plaintiffs lay particular stress on their claim that the action of the board was arbitrary, illegal and in abuse of its discretion in that the defendant failed to show that there was difficulty or unreasonable hardship warranting the variance and that there had been a material change in circumstances since the denial of a previous petition.

The defendant acquired lot 11 in 1955 in an exchange with the flood control commission of the city of Hartford for the lot on the southwest corner of Wethersfield Avenue east of lot 9. This exchange enabled the commission to construct a high flood control dike on the corner lot rather than on lot 11. The city also obtained a ten-foot right of way on lot 9 along its eastern and southerly boundaries. In 1958, the board denied the defendant's application for permission to erect a three-story building containing eighteen apartments. In December, 1961, the board conducted a hearing on the second application filed by the defendant. The defendant proposed to erect a two-story office building a permitted use, on lot 9. It requested a variance of the zoning regulations, which require a ten-foot open space between the wall of such a building and the boundary line of an adjoining residence zone. Hartford Zoning Regs. § 42-10(b) (1949, as amended). It also sought a variance to allow parking of twenty-five automobiles on lot 11 as an accessory use to the building. § 42-15(b). To the west of lot 11 is a convalescent home, a nonconforming use in a residence zone. It has a parking area on the east side of its property abutting lot 11. The city plan commission, although conceding the desirability of the proposed use, frowned upon the plan insofar as it would locate two parking areas adjacent to one another and create a broad expanse of black top pavement, which would be particularly objectionable in a residential district. This application was denied on January 16, 1962.

Thereafter, the defendant revised its plan and submitted the present application, which the board heard and granted on February 13, 1962. Under the revised plan, the office building would be erected on lot 11, thus eliminating the feature to which the city plan commission objected, because the revised plan provided for accessory parking on lot 9 without encroaching on the city's right of way. The report of the city plan commission stated that since lot 11 lies between a business zone and the commercial convalescent home...