Piccirillo v. Board of Appeals on Zoning of City of Bridgeport

• Decision Date: 25 October 1950
• Citation: 139 Conn. 116,90 A.2d 647
• Court: Connecticut Supreme Court
• Parties: PICCIRILLO v. BOARD OF APPEALS ON ZONING OF CITY OF BRIDGEPORT et al. Supreme Court of Errors of Connecticut. July, 8, 1952. James C. Shannon, Bridgeport, with whom, on the brief, were Harold Sobel and Max Frauwirth, Bridgeport for appellant (defendant Lustig). John V. Donnelly, Bridgeport, for named defendant. No appearance for appellee (plaintiff). Before BROWN, C. J., and JENNINGS, INGLIS and O'SULLIVAN, JJ. BROWN, Chief Justice. The defendant Lustig is the owner of premises with a building thereon at 754 Madison Avenue in Bridgeport. The property is in a business number 1 zone, where the keeping, slaughtering, selling and marketing of live poultry, a designated heavy industrial use, is prohibited under the city's zoning regulations. Bridgeport Zoning Regs. (1949) c. 9, § 3(q); c. 10, § 3(b). On

Page 647

90 A.2d 647

139 Conn. 116

PICCIRILLO v. BOARD OF APPEALS ON ZONING OF CITY OF BRIDGEPORT et al.

Supreme Court of Errors of Connecticut.

July, 8, 1952.

James C. Shannon, Bridgeport, with whom, on the brief, were Harold Sobel and Max Frauwirth, Bridgeport for appellant (defendant Lustig).

John V. Donnelly, Bridgeport, for named defendant.

No appearance for appellee (plaintiff).

Before BROWN, C. J., and JENNINGS, INGLIS and O'SULLIVAN, JJ.

BROWN, Chief Justice.

The defendant Lustig is the owner of premises with a building thereon at 754 Madison Avenue in Bridgeport. The property is in a business number 1 zone, where the keeping, slaughtering, selling and marketing of live poultry, a designated heavy industrial use, is prohibited under the city's zoning regulations. Bridgeport Zoning Regs. (1949) c. 9, § 3(q); c. 10, § 3(b). On October 25, 1950, the defendant board of appeals granted Lustig a waiver of the above restriction, permitting him to carry on such activities upon his premises for a period of two years. The plaintiff, as owner and occupant of adjoining property, appealed from the granting of the waiver to the Court of Common Pleas, which rendered judgment sustaining her appeal. The defendant Lustig has appealed to this court.

The Court of Common Pleas decided the matter upon the record of the defendant board. This record contains evidence of these further material facts which are not disputed: For fifteen years Lustig had operated a live poultry market upon his property at 127 Lexington Avenue, some three miles from 754 Madison Avenue. The Lexington Avenue premises were in an entirely different business number 1 zone. He had carried on his business there under a certificate of approval issued by the city for the commercial slaughter of poultry and the sale of live poultry until the Bridgeport housing authority condemned the property for a housing project. Lustig's present property is next north of a store located on the northeasterly corner of Madison and Wheeler Avenues. It abuts on the north and east sides of the store property so that it fronts on Wheeler as well as Madison Avenue. There are both residential and commercial properties in the neighborhood. The plaintiff's residence is immediately adjacent to the Lustig building on the north; a four or five-family house fronting on Wheeler Avenue and within sixty feet of the building borders the lot on the east; and there are a number of multiple family apartments on the opposite side of Madison Avenue. There is a heavy industrial zone on Housatonic Avenue within a half mile of Lustig's property. The court concluded that the defendant board exceeded its powers and acted unlawfully, arbitrarily and in abuse of its legal discretion.

Our attention has been called to but two provisions in the zoning laws and in the Bridgeport zoning regulations, adopted pursuant to chapter 43 of the General Statutes, which it could be claimed authorized the waiver. Chapter 18, § 2(1) of the zoning regulations gives te board the authority specified, '[t]o grant in undeveloped sections of the City temporary and conditional permits for not more than two years for structures and uses in contravention of these regulations.' While the record of the board's action in granting the waiver fails to show the ground upon which it was allowed, the two-year limitation contained in the order might well justify the inference that it was done pursuant to the section just quoted. As so construed the order was clearly unwarranted, for it is beyond dispute that the area in question was not an 'undeveloped section.' Thus regarded, the board's action was in excess of its powers and so, as the court concluded, was unlawful.

The other provision is § 842(3) of chapter 43 of the General Statutes which is substantially reiterated in § 2(m) of chapter 18 of the regulations. The statute provides that the board may 'determine and vary the application of the * * * 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 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 exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured.' The defendant Lustig urges in his brief that by virtue of this provision the defendant board had express power to grant a waiver upon the facts before it, because these disclose that the enforcement of the zoning regulations would 'result in exceptional hardship and a waiver of such regulations [would] not affect the comprehensive zoning plan.' We, therefore, discuss briefly the effect of this provision.

As we have repeatedly pointed out, the power of authorizing variations from the general provisions of zoning regulations is designed to be sparingly exercised. Thayer v. Board of Appeals, 114 Conn. 15, 23, 157 A. 273; Rommell v. Walsh, 127 Conn. 272, 278, 16 A.2d 483. It is only in rare instances and under exceptional circumstances that it can be properly utilized. Grady v. Katz, 124 Conn. 525, 529, 1 A.2d 137; Gunther v. Board of Zoning Appeals, 136 Conn. 303, 309, 71 A.2d 91. 'In any determination of the question whether there exist situations of practical difficulty or unnecessary hardship justifying the relaxation of zoning regulations, there is necessarily a balancing of the considerations involved in the general public interests and those affecting the individual.' Torello v. Board of Zoning Appeals, 127 Conn. 307, 311, 116 A.2d 591, 592. However, 'Financial considerations alone * * * cannot govern the action of the board. They are bound to take a broader view than the apparent monetary distress of the owner. Otherwise, there would be no occasion for any zoning law.' Norcross v. Board of Appeal, 255 Mass. 177, 185, 150 N.E. 887, 890; Thayer v. Board of Appeals, supra, 114 Conn. 22, 157 A. 273. In accord with these principles, this court has decided many times that financial detriment to a single owner of property would not of itself warrant relaxation on the ground of practical difficulty or unnecessary hardship. Thayer v. Board of Appeals, supra; Torello v. Board of Zoning Appeals, supra, 127 Conn. 310, 16 A.2d 591; First National Bank & Trust Co. v. Zoning Board of Appeals, 126 Conn. 228, 238, 10 A.2d 691; Benson v. Zoning Board of Appeals, 129 Conn. 280, 283, 27 A.2d 389; Devaney v. Board of Zoning Appeals, 132 Conn. 537, 542, 45 A.2d 828; Delaney v. Zoning Board of Appeals, 134 Conn. 240, 243, 56 A.2d 647; Celentano v. Zoning Board of Appeals, 136 Conn. 584, 587, 73 A.2d 101.

In other words, it is only the exceptional case of financial detriment which can present a hardship warranting the granting of a variation, as where, for example, the application of zoning to a particular property would greatly decrease or...