Smith v. Zoning Bd. of Appeals of Town of Norwalk

• Decision Date: 28 February 1978
• Citation: 387 A.2d 542,174 Conn. 323
• Court: Connecticut Supreme Court
• Parties: Warren R. SMITH et al. v. ZONING BOARD OF APPEALS OF the TOWN OF NORWALK et al.

Page 542

387 A.2d 542

174 Conn. 323

Warren R. SMITH et al. v. ZONING BOARD OF APPEALS OF the TOWN OF NORWALK et al.

Supreme Court of Connecticut.

Argued Nov. 2, 1977.

Decided Feb. 28, 1978.

Angelo J. Smeraldi, Asst. Atty. Gen., with whom, on the brief, were Carl R. Ajello, Atty. Gen., and Victor Feingold, Asst. Atty. Gen., for the appellant (defendant commissioner of the department of transportation).

Robert A. Slavitt, Norwalk, with whom, on the brief, was Abraham D. Slavitt, Norwalk, for the appellees (plaintiffs).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

LONGO, Associate Justice.

This appeal presents a question of first impression whether a condemning authority proposing a partial taking must show hardship to the property owner in order to obtain a zoning variance under General Statutes § 48-24. ¹ In April, 1972, pursuant to the provisions of what is now § 48-24, the defendant commissioner of the department of transportation, hereinafter the state, applied to the defendant zoning board of appeals of the town of Norwalk for a variance of the minimum lot area restriction on a house lot owned by the plaintiffs, Warren R. Smith and Sara F. Smith. The variance was requested in anticipation of the state's taking of .03 of an acre of the plaintiffs' land in connection with the relocation of U.S. route 7. The partial taking of a narrow strip running along the frontage on Perry Avenue reduced the one-acre lot to .97 of an acre, rendering the plaintiffs' property a non- conforming use under a Norwalk zoning ordinance requiring one acre of land for a single-family house in an "AAA" residence zone. The variance application was made without the knowledge or approval of the plaintiffs. After a public hearing which the plaintiffs attended, the board granted the application in a resolution stating that "the small difference of .03 of an acre should not be a substantial detriment to the zoning regulations or to the other houses in the area." The plaintiffs strenuously objected to the granting of the variance.

The state, upon certification, has appealed to this court from a judgment rendered by the Court of Common Pleas sustaining the plaintiffs' appeal from the action of the zoning board of appeals. The trial court decided the appeal on the record returned by the board. No finding was requested and none was made.

Where a zoning authority has stated reasons for its action, the questions for the court to determine on appeal are whether the reasons assigned are reasonably supported by the evidence in the record and whether they are pertinent to the considerations which the authority was required to apply under the governing statutes and zoning regulations. DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 540, 271 A.2d 105; Rogers v. Zoning Board of Appeals, 154 Conn. 484, 489, 227 A.2d 91. In reviewing the court's decision absent a finding, we may consult the memorandum of decision to ascertain the conclusions upon which the court based its judgment. Goldberg v. Zoning Commission, 173 Conn. 23, 26, 376 A.2d 385; A. P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 187, 355 A.2d 91.

General Statutes § 8-6 ² authorizes a zoning board of appeals to grant a variance where two basic requirements are satisfied: (1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan. Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 280, 129 A.2d 619; Parsons v. Board of Zoning Appeals, 140 Conn. 290, 295, 99 A.2d 149. Section 118-32 of the Norwalk zoning ordinance adopts these statutory requirements. ³

In its resolution granting the variance the board stated in effect that the first of these requirements had been satisfied. The board's conclusion was reasonably supported by evidence in the record that the plaintiffs' one-acre house lot would be diminished only by a narrow strip of frontage amounting to .03 of an acre. See McMahon v. Board of Zoning Appeals, 140 Conn. 433, 441, 101 A.2d 284. The court could not reasonably have rejected the board's conclusion, nor did it do so. Rather, the memorandum of decision indicates that the basis of the court's judgment in favor of the plaintiffs was its conclusion that the second requirement, hardship to the property owner, had not been met. The court reasoned that General Statutes § 48-24 must be read together with General Statutes § 8-6 to require that the state allege and prove hardship to the owner in order to obtain a variance under § 48-24. Since the record returned by the board revealed no showing of hardship to the plaintiffs, the court found the board's action to be illegal, arbitrary, and an abuse of discretion.

We agree with the reasoning of the court that in enacting § 48-24 when § 8-6 was in existence, the legislature must be presumed to have acted with existing relevant statutes in mind and with the intention of creating a consistent body of law. Cicala v. Administrator, 161 Conn. 362, 365, 288 A.2d 66; Knights of Columbus Council No. 3884 v. Mulcahy, 154 Conn. 583, 589, 227 A.2d 413. We cannot agree, however, with the court's conclusion that the proper way to reconcile the two statutes is to require that the state show hardship to property owners in every application for an area variance under § 48-24. The meaning of "exceptional difficulty or unusual hardship" as used in General Statutes § 8-6 has been extensively litigated. It is well settled that the hardship must be different in kind from that generally affecting properties in the same zoning district, and must arise from circumstances or conditions beyond the control of the property owner. Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 238-39, 303 A.2d 743; Highland Park, Inc. v. Zoning Board of Appeals, 155 Conn. 40, 43, 229 A.2d 356; Booe v. Zoning Board of Appeals, 151 Conn. 681, 683, 202 A.2d 245; McMahon v. Board of Zoning Appeals, 140...