Stern v. Zoning Bd. of Appeals of City of Norwich

• Decision Date: 04 August 1953
• Citation: 140 Conn. 241,99 A.2d 130
• Court: Connecticut Supreme Court
• Parties: STERN et al. v. ZONING BOARD OF APPEALS OF CITY OF NORWICH et al. Supreme Court of Errors of Connecticut

Page 130

99 A.2d 130

140 Conn. 241

STERN et al. v. ZONING BOARD OF APPEALS OF CITY OF NORWICH et al.

Supreme Court of Errors of Connecticut.

Aug. 4, 1953.

Orrin Carashick, Norwich, for appellant (defendant board).

John P. Hodgson, Hartford, with whom were Leon P. Lewis and Guerson D. Silverberg, Norwich, for appellant (defendant Jones).

P. Corbin Kohn, Hartford, for appellees (plaintiffs).

Before BROWN, C. J., and BALDWIN, CORNELL ^*, INGLIS and O'SULLIVAN, JJ.

CORNELL, Associate Justice.

This is an appeal from a judgment of the Court of Common Pleas sustaining the plaintiffs' appeal from the defendant zoning board of appeals of Norwich. By its decision the board had affirmed the action of the city manager in granting an application for the issuance of a certificate of occupancy approving a change of the nonconforming use of property owned by the defendant Jones, located at the southwesterly corner of West Main Street and Jones Court.

The zoning ordinances, which became operative February 14, 1927, divided the town into four classifications with respect to the buildings and uses of property within each, namely, residence districts, class A; residence districts, class B; business districts; and unrestricted districts. Norwich Zoning Ordinances, Art. 1, § 1 (1927). At that time the principal use of the Jones property was, and it ever since has been, that of conducting a motor vehicle garage and repair shop thereon. It is located in a residence B zone, and under the provisions of the ordinances this use of the premises has always constituted a nonconforming use, which it was permissible to continue as such.

Section 6(b) of article 2 of the ordinances provides: 'Any use existing in any building or premises at the time of the passage of this ordinance and not conforming to the regulations of the use district or zone in which it is maintained may be changed to a similar use and such use may be extended throughout the building or premises. * * *' This provision is subject to certain conditions, § 6(b)(1) and (2), but these do not materially affect the question for decision. In February, 1952, Jones, having decided that it was desirable to change the existing nonconforming use to that of a retail grocery supermarket, made application to the city manager for the issuance of a certificate of occupancy, which he granted as above recited. Whether he was warranted in so doing is the underlying question upon this appeal. The answer depends upon whether a retail grocery supermarket is a similar nonconforming use to that of a motor vehicle garage and repair shop within the meaning of § 6(b) of the ordinances.

The provisions of § 6(b) permit, and contemplate, a change from the nonconforming use existent when the ordinance took effect to another use, subject to the limitation that the latter shall be 'similar' to the former. The criterion of similarity is not the type of business of the one as compared with the other, but the relative degree to which the use, or changed use, is obnoxious to the division or zone in which the original use is, and the changed use will be, or is planned to be, located. It is evident that the purpose of § 6(b) in permitting a change from an original nonconforming use to another nonconforming use is twofold: (1) that the change be to a use which is no more obnoxious than the present use; and (2) that, when possible, it be to a use less obnoxious. Lathrop v. Town of Norwich, 111 Conn. 616, 623, 151 A. 183. The policy of this as well as of most zoning ordinances is gradually to eliminate nonconforming uses. No change to a use which is more obnoxious than the existing one is allowed. See Gunther v. Board of Zoning Appeals, 136 Conn. 303, 309, 71 A.2d 91; Farr v. Zoning Board of Appeals, 139 Conn. 577, 587, 95 A.2d 792; Williams, Law of City Planning & Zoning, p. 203; Baker, Legal Aspects of Zoning, p. 66; Bassett, Zoning, p. 105. The intent of the provision may be recognized as one to invite an improvement in the character of a nonconforming use during the period of its continued existence, while awaiting the event of its abandonment or suppression.

The fact that the section makes no attempt at prescribing specific conditions constituting similarity in a changed use to the use from which it is changed is not a fatal objection to it because of the lack of certainty. Such indefiniteness is frequently encountered in zoning regulations and is particularly evident in provisions justifying a board of appeals in varying or modifying the provisions of an ordinance or zoning regulation to relieve practical difficulties or unnecessary hardships in carrying out their strict letter. Boards of appeal are necessarily entrusted with the function of deciding, within...