Ward v. Zoning Bd. of Appeals of Town of Hartford

• Citation: 215 A.2d 104,153 Conn. 141
• Court: Supreme Court of Connecticut
• Decision Date: 24 November 1965
• Parties: Samuel I. WARD et al. v. ZONING BOARD OF APPEALS OF the TOWN OF HARTFORD et al. Supreme Court of Errors of Connecticut

Page 104

215 A.2d 104

153 Conn. 141

Samuel I. WARD et al. v. ZONING BOARD OF APPEALS OF the TOWN OF HARTFORD et al.

Supreme Court of Errors of Connecticut.

Nov. 24, 1965.

Robert E. Thorne, Hartford, with whom, on the brief, was R. Graeme Smith, Hartford, for appellants (plaintiffs).

Joseph G. Lynch, Hartford, with whom was Warren S. Randall, for appellee (defendant Keefe); with him also were Cornulius J. Shea, Asst. Corp. Counsel, for appellee (named defendant), and, on the brief, Ferdinand D'Esopo, Hartford, for appellees (defendants D'Esopo).

Before KING, C. J., and MURPHY, SHANNON, HOUSE and COTTER, JJ.

COTTER, Justice.

This appeal again raises the question of the sufficiency of the grounds upon which a local zoning authority may grant a variance in the strict application of a municipal zoning ordinance. The defendants Carmela M. and Teresa M. D'Esopo, as owners, and the defendant William P. Keefe, as prospective purchaser, applied to the defendant zoning board of appeals for a variance to permit the location of two doctors' offices in the D'Esopos' one-family residence at 240 Ashley Street in Hartford and for a special exception to allow seven parking spaces in the rear of the premises. The plaintiffs, owners of a two-family residence in the immediate vicinity, appeared at the public hearing in opposition. The board granted the variance and exception, and the plaintiffs brought an appeal to the Court of Common Pleas. The present appeal results from a judgment dismissing the appeal in that court. Only that portion of the appeal dealing with the granting of the variance has been pursued.

The plaintiffs claim, inter alia, that there was insufficient evidence from which the board could find the necessary prerequisite of hardship. The Hartford zoning ordinance, as well as the Hartford city charter, explicitly limits the granting of a variance to those situations where a hardship or unusual difficulty exists. Hartford Zoning Regs. §§ 38-27(3), (5); Hartford Charter, c. 19, § 11 (1960 as amended); 25 Spec.Laws 87, § 11 (as amended, 28 Spec.Laws 843, § 6). ¹ The hardship requirement is a fundamental one in zoning law and has been discussed in innumerable opinions of this court in recent years. See, e. g., Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 211 A.2d 687; Cymerys v. Zoning Board of Appeals, 151 Conn. 49, 193 A.2d 521; Makar v. Zoning Board of Appeals, 150 Conn. 391, 190 A.2d 45. One seeking a variance must show that his property is peculiarly disadvantaged by the operation of the zoning ordinance and not merely that a general hardship, equally applicable to other properties in the neighborhood, results from a strict enforcement of the code. Malmstrom v. Zoning Board of Appeals, 152 Conn. 385, 390, 207 A.2d 375; Cymerys v. Zoning Board of Appeals, supra, 151 Conn. 51, 193 A.2d 521; Makar v. Zoning Board of Appeals, supra, 150 Conn. 396, 190 A.2d 45; Murphy, Inc. v. Board of Zoning Appeals, 147 Conn. 358, 360, 161 A.2d 185. Evidence of financial considerations, short of a drastic depreciation in the value of the property, will not suffice. Libby v. Board of Zoning Appeals, 143 Conn. 46, 51, 118 A.2d 894; Makar v. Zoning Board of Appeals, supra, 150 Conn. 395, 190 A.2d 45.

We have many times declared that it is desirable for the board to state its reasons for granting a variance. If it does not, the court must search the record to attempt to find some basis for the action taken. Zieky v. Town Plan & Zoning Commission, 151 Conn. 265, 268, 196 A.2d 758. If none is found, the action of the board cannot be upheld.

The property in the present case is located in a residential zone and had been used for residential purposes by the D'Esopo family for twenty-eight years prior to the application for this variance. The record indicates that the applicants based their request on the grounds that the area in question was dominated by the Saint Francis Hospital and that doctors' offices represented the most appropriate use to which the D'Esopo property could be put at the time of the application. The applicants stated that most of the surrounding properties were two-family and three-family houses, while theirs was a one-family residence, but they did not indicate any way in which the zoning regulations imposed a particular burden on the latter type of dwelling. It was also mentioned that the frontage of the subject property was only forty feet, but nothing was said concerning the frontage of the other lots in the immediate neighborhood. There was no specific assertion that the property could not be used for residential purposes, as it had been for twenty-eight years prior to the application.

On the record, there is nothing which significantly distinguishes the D'Esopo property from other residential property in the same area. When a zoning board of appeals grants a variance on grounds which apply equally to a large number of properties in a given area, it in effect establishes a new zoning regulation applicable to that area. However, the establishment of and changes in general zoning regulations are a legislative function, properly carried out in Hartford only by the city council, ² and when the board uses its variance power to change these general rules, it encroaches on this legislative area and thereby acts in abuse of its discretion. The fact that no similarly situated property owners have actually requested variances is of no import, as long as it appears that the rationale behind the granting of a variance for one piece of property would apply in like manner to the surrounding properties. ³ Arguments concerning the general unsuitability of a neighborhood to the zoning classification in which it has been placed are properly addressed to the promulgators of the ordinance and not to those who have been empowered to grant variances. See Finch v. Montanari,...