Murphy, Inc. v. Board of Zoning Appeals of Town of Wilton

• Decision Date: 24 May 1960
• Court: Connecticut Supreme Court
• Parties: MURPHY, INC. v. BOARD OF ZONING APPEALS OF the TOWN OF WILTON. Supreme Court of Errors of Connecticut

Page 185

161 A.2d 185

147 Conn. 358

MURPHY, INC. v. BOARD OF ZONING APPEALS OF the TOWN OF WILTON.

Supreme Court of Errors of Connecticut.

May 24, 1960.

Arthur Levy, Jr., Bridgeport, with whom, on the brief, was Irwin E. Friedman, Bridgeport, for the appellant (plaintiff).

William R. Curtis, So. Norwalk, for the appellee (defendant).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ, SHEA, JJ. MELLITZ, Associate Justice.

The plaintiff has been the lessee of a parcel of land in Wilton for more than twenty years and has maintained thereon a billboard carrying an advertisement of a restaurant located in another town. In 1946, the town of Wilton adopted a zoning ordinance. Under its provisions advertising signs such as that maintained by the plaintiff were expressly prohibited in a residential zone. The plaintiff's billboard is in such a zone. In 1955, an amendment of the zoning ordinance required every sign which constituted a nonconforming use in any district to be discontinued and removed within two years. Wilton Zoning Regs. § 2(4) (1955). The plaintiff, having been directed to remove its sign, applied to the defendant for a variance to permit the continued location of the sign on the premises. After a hearing, the board denied the application on the ground that the hardship of which the plaintiff complained applied to all the land in the town zoned for residence and not alone to the land on which the plaintiff's sign was located, and that 'the hardship required by the Statute [as a basis for a variance] was not shown' by the plaintiff. The plaintiff has brought this appeal from a judgment of the Court of Common Pleas dismissing an appeal taken by the plaintiff to that court.

The power of the defendant to vary the application of the zoning regulations is fixed by General Statutes § 8-6, which provides, so far as here pertinent, that a variance may be granted 'solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such * * * regulations would result in * * * unusual hardship.' A hardship which under the statute would permit the defendant to vary the application of the zoning regulations must differ in kind from the hardship imposed on properties in general by the regulations. Talmadge v. Board of Zoning Appeals, 141 Conn. 639, 643, 109 A.2d 253; Plumb v. Board of Zoning Appeals, 141 Conn. 595, 600, 108 A.2d 899. The conditions created by the operation of the regulations must be peculiarly oppressive to the applicant's property. Under the Wilton zoning ordinance, the display of signs such as the one here involved is expressly prohibited in all residence districts. Wilton Zoning Regs. § 4(A)(2)(b) (1955). It does not appear that the operation of the regulations affects the property of the plaintiff differently from, or creates a situation not applicable to, all other properties located in a residence zone in the town.

The issue for the trial court upon the appeal was whether the board acted arbitrarily of illegally, or so unreasonably as to have abused its discretion. Piccolo v. Town of West Haven, 120...