Spalding v. Board of Zoning Appeals of City of New Haven
| Decision Date | 26 December 1957 |
| Citation | 137 A.2d 755,144 Conn. 719 |
| Court | Connecticut Supreme Court |
| Parties | Lillian D. SPALDING et al. v. BOARD OF ZONING APPEALS OF The CITY OF NEW HAVEN et al. Supreme Court of Errors of Connecticut |
T. Holmes Bracken, New Haven, for appellants (defendants Cantor et al.).
William Dimenstein and George J. Grady, New Haven, with whom, on the brief, was Morton J. Dimenstein, New Haven, for appellees (plaintiffs).
Before WYNNE, C. J., and BALDWIN, DALY, KING, and MURPHY, JJ.
The defendants Sidney Cantor and Robert McMullen were granted a variance of the zoning regulations of the city of New Haven by the defendant board. The plaintiffs, owners and residents of neighboring premises, appealed to the Court of Common Pleas. The court rendered judgment sustaining the appeal, and from that judgment Cantor and McMullen, hereinafter referred to as the defendants, have appealed to this court.
On April 8, 1953, the defendants purchased a vacant corner parcel of land, known as 1250 Whalley Avenue, in New Haven. The property was then, and is now, in a residence B zone. Before the defendants bought the property, they knew that it was in such a zone and that the owner had not been able to procure a purchaser of it during the previous thirty- five years. They purchased the premises, hoping than an application for a variance would be granted. On April 22, 1953, they filed with the board an application for a variance to permit the construction and use of a commercial building on the property. The application was denied. One of the grounds upon which the denial was based was that 'there was no evidence of hardship to warrant a variance.' On June 11, 1956, the defendants filed a second application, requesting the same variance. On July 2, 1956, the board 'found that the only suitable use to which the property could be put was to business use, because of the practical difficulty and unnecessary hardship occasioned by the topography of the land' and granted the variance. The board's finding of practical difficulty and unnecessary hardship was obviously based upon the defendants' claim that the erection of a retaining wall, without which no building could be constructed upon their land, would make the cost of any building permitted in a residence B zone so great that the investment would not be profitable.
The portion of the New Haven zoning ordinance which authorizes the board to grant a variance is printed in the footnote. 1 A pecuniary loss does not furnish the difficulty or hardship contemplated by the zoning ordinance. Lindy's Restaurant, Inc., v. Zoning Board of Appeals, 143 Conn. 620, 623, 124 A.2d 918. That aside, the hardship, if such it may be called, did not originate in the zoning regulations. The defendants...
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