Osborn v. Town of Darien
| Decision Date | 08 November 1934 |
| Citation | 175 A. 578,119 Conn. 182 |
| Court | Connecticut Supreme Court |
| Parties | OSBORN v. TOWN OF DARIEN. |
Appeal from Court of Common Pleas Court, Fairfield County; Samuel C Shaw, Judge.
Proceedings by Anna B. Osborn against the Town of Darien, its Board of Adjustment, on appeal from the Board of Adjustment, taken to the court of common pleas; where the defendant filed a demurrer to the appeal. From a judgment in favor of the defendant, after a demurrer to the appeal was sustained and the plaintiff refused to plead further, the plaintiff appeals.
No error.
Joseph A. Gray, of Norwalk, for appellant.
John D. Walker and Francis K. Norman, both of Stamford, for appellee.
Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.
This is an appeal from the board of adjustment established under the act creating a zoning commission in the defendant town. 19 Sp. Laws 1925, p. 922. The complaint filed in the court of common pleas is vague and uncertain in its allegations. In general the situation disclosed may be summarized in this way: The plaintiff had for some years conducted a boarding apartment and rooming house in a large building upon her property in the defendant town. She desired to erect upon her property an apartment hotel and to renovate the old building. These changes would not in any way damage any person, would not create a nuisance, and are necessary in order to enable her to maintain herself and prosecute her business. For about a year she worked to accomplish her purpose and caused plans to be made for the new building, believing that no zoning regulations forbade the changes she was contemplating. While not directly stated, it is apparent from the allegations of the complaint that the plaintiff's property is located in a residence zone. In the original zoning regulations for the town, a copy of which is attached to the complaint, boarding and rooming houses and hotels were permitted in such a zone, but, by what the plaintiff calls a " claimed" amendment to the regulations, apartment houses and hotels are forbidden in such a zone. She filed with the zoning commission an application for a building permit for the building, upon a printed form, of which a copy is attached to the complaint and which was addressed to the board of selectmen of the town. The commission refused to hear her application and dismissed it. She thereupon appealed to the board of adjustment, which in turn refused to hear the matter. She then appealed to the court of common pleas. In the trial court a demurrer was filed to the complaint which was sustained upon two grounds, that it did not appear from the allegations of the complaint that the decision appealed from was arbitrary, illegal, or unreasonable, and that it did appear that the creation of the building planned by the plaintiff was in violation of the zoning regulations of the town and the action of the board was justified by them. The plaintiff failed to plead further, and moved for judgment so that she might bring this appeal.
The board of adjustment is given authority by the Act creating the zoning commission to alter, vary, or modify the application of the zoning regulations, but the appeal to it in no way invoked the exercise of that power, and no question as to it could arise upon the appeal to the court. In the absence of action by the board under this power, the fact that the application of the regulations to her property would cause the plaintiff loss and hardship by preventing her from carrying out the contemplated changes upon her property would not justify an exemption from the regulations in her favor; individual hardship and loss is a necessary accompaniment of zoning in any community; and such loss must be borne in order to make possible the broader advantages secured by it to the community as a whole. Thayer v Board of Appeals, 114 Conn. 15, 22, 157 A. 273; Comley, State's Attorney ex rel. Rowell v. Boyle, 115 Conn. 406, 411, 162 A. 26. The original zoning regulations contained a provision that they should not apply to any building for which the foundation had been started at the time of their adoption, but neither they, nor the amendment, contains any other exception. If that amendment was valid, it necessarily applied to the erection after its adoption of any...
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Florentine v. Town of Darien
...some individual property owner is not ordinarily sufficient to render zoning regulations invalid. Strain v. Mims, supra; Osborn v. Darien, 119 Conn. 182, 185, 175 A. 578; State v. Hillman, supra, 110 Conn. 104, 147 A. The power of regulation is not limitless. It cannot be exercised in a con......
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Karen v. Town of East Haddam
...of Zoning Appeals, 140 Conn. 1, 6, 97 A.2d 564; Town of Wallingford v. Roberts, 145 Conn. 682, 684, 146 A.2d 588; Osborn v. Town of Darien, 119 Conn. 182, 185, 175 A. 578; Fitzgerald v. Merard Holding Co., 110 Conn. 130, 141, 147 A. 513, 54 A.L.R. 361, certiorari denied 281 U.S. 732, 50 S.C......
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Strain v. Mims
...supra, 110 Conn. 92, at page 104, 147 A. 294; Thayer v. Board of Appeals, supra, 114 Conn. 15, at page 22, 157 A. 273; Osborn v. Darien, 119 Conn. 182, 185, 175 A. 578. However, where the value of property of an individual seriously affected by a zoning regulation especially applicable to i......
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Devaney v. Bd. Of Zoning Appeals Of City Of New Haven
...hardship and loss must be borne in order to make possible the greater advantage to the community as a whole. Osborn v. Town of Darien, 119 Conn. 182, 185, 175 A. 578. Zoning consists of ‘a general plan to control and direct the use and development of property in a municipality or a large pa......