Thayer v. Board of Appeals of City of Hartford

• Decision Date: 08 December 1931
• Citation: 114 Conn. 15,157 A. 273
• Court: Connecticut Supreme Court
• Parties: AYER et al. v. BOARD OF APPEALS OF CITY OF HARTFORD et al.

157 A. 273

114 Conn. 15

AYER et al. v. BOARD OF APPEALS OF CITY OF HARTFORD et al.

Supreme Court of Errors of Connecticut.

December 8, 1931

Appeal from Superior Court, Hartford County; Newell Jennings, Judge.

Willis M. Thayer and others appealed from a decision of the Board of Appeals for the City of Hartford to the Superior Court. Judgment for the plaintiffs, and appeal by the defendants.

No error.

Where record fails to show ground on which zoning board of appeals granted application for permission to erect building, only the presumption that board acted with proper motives and upon valid reasons will be indulged.

Louis M. Schatz and Joseph B. Griffin, both of Hartford, for appellants.

A Storrs Campbell and W. Arthur Countryman, Jr., both of Hartford, for appellees.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

HINMAN, J.

On February 9, 1926, the city of Hartford adopted a zoning ordinance, under authority of a special act the general provisions of which are stated in St. Patrick's Church Corporation v. Daniels, 113 Conn. 132, 133, 154 A. 343. The purposes of this ordinance as set forth in section I thereof include: " Promoting the health safety, morals, and general welfare of the community securing safety from fire, panic, and other dangers; preventing the overcrowding of land and avoiding undue concentration of population; facilitating adequate provision of transportation, water, sewerage, schools, parks and other public requirements; conserving the value of buildings and encouraging the most appropriate use of land throughout the city; providing for the public health, comfort and general welfare in living and working conditions; and regulating and restricting the location of trades and industries and the location of buildings designed for specific uses." These declared purposes of the zoning regulations are " weighty elements to be considered in their administration, including determination as to exceptions and relaxations sought through the board of appeals." St. Patrick's Church Corporation v. Daniels, supra, page 141 of 113 Conn., 154 A. 343, 346.

The city is divided into seven classes of zones and it is provided that " no building or premises shall be used, and no building shall be erected or altered, except in conformity with the regulations herein prescribed for the zone in which such building or premises is located." Section VII, which relates to nonconforming buildings and uses, provides that " any nonconforming use existing at the time of the passage of this ordinance may be continued and any existing building designed, arranged, intended or devoted to a non-conforming use may be reconstructed and structurally altered, and the non-conforming use therein changed subject to the following regulations: (a) The cost of structural alterations made in such building shall in no case exceed forty per cent of the value of such building, nor shall the building be enlarged unless the use therein is changed to a conforming use. *** (b) No non-conforming use shall be extended at the expense of a conforming use. (c) In a residence zone, no building or premises devoted to a use permitted in a business zone shall be changed into a use excluded from a business zone. ***"

Section XIV provides, further, " Nothing in this ordinance shall prevent the restoration of a building destroyed by fire, explosion, act of God, or act of the public enemy, to the extent of not more than fifty per cent. of its assessed value, or prevent the continuance of the use of such building or part thereof or prevent a change of such existing use under the limitations provided in Section VII. But any building destroyed in the manner aforesaid to an extent exceeding fifty per cent. of its assessed value at the time of such destruction may be reconstructed and thereafter used only in such manner as to conform to all the provisions of this ordinance."

It is provided in section XV that " the Board of Appeals may in a specific case after public notice and hearing and subject to appropriate conditions and safeguards determine and vary the application of the regulations herein established, in harmony with their general purposes and intent as follows. *** (3) Permit the extension of a non-conforming use or building upon the lot occupied by such use or building at the time of the passage of this ordinance. (4) Permit the erection of an additional building upon a lot occupied at the time of the passage of this ordinance by a business or industrial establishment, where carrying out the strict letter of the provisions would result in practical difficulties or unnecessary hardships. *** (6) Vary any requirement of this ordinance in harmony with its general purpose and intent, so that substantial justice may be done. This authority shall be executed in a manner to secure the public health, safety and welfare solely in instances where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this ordinance. ***"

Since 1922, Jacob Weiner has owned premises at the northwest corner of Blue Hills avenue and Branford street, having frontage on Blue Hills avenue of approximately sixty-three feet, and a depth on Branford street of about one hundred and fifty-seven feet. At the time of his purchase and continuing to the present, there have been on the lot a store building facing Blue Hills avenue, sixteen feet in width and fifty feet in depth, and in the rear thereof, but detached therefrom, two separate single-family dwelling houses, many years old and in poor condition. These premises are within the " B Residence Zone."

In November, 1930, Weiner filed an application with the board of appeals for permission to erect a new store building with a frontage of fifty feet on Blue Hills avenue and with a depth of fifty feet, agreeing if such permission were granted to demolish the existing store building and dwelling houses. Some of the members of the board visited the premises; others had intimate knowledge of the history and development of the neighborhood. November 26, 1930, the board, after notice and hearing, granted the application, conditioned upon the demolition of all of the present structures and the erection of the new structure limited to a single store having a frontage of fifty feet on Blue Hills avenue and a depth of fifty feet; architecture and construction to be subject to the approval of the board.

From this action, Thayer and fifteen other residents and owners of property in the vicinity and within the same residence zone appealed to the superior court. On the trial, the court found the facts above stated in substance; also made the following findings which are not questioned on the appeal to this court. At the time of the purchase of these premises by Weiner there was but one house on Branford street other than those owned by him; there were practically no buildings lying to the west of Blue Hills avenue. Since then, approximately forty two-family houses have been erected on Branford street new streets parallel with or intersecting Blue Hills avenue have been opened up and have been fully developed: the houses thereon being single or...