139 Conn. 463 | Conn. | 1953
The defendant zoning board of appeals granted a variance of the zoning regulations in favor of the defendant Viola. The plaintiff, an adjoining property owner, appealed to the Court of Common Pleas. That court directed that judgment be entered sustaining her appeal. The defendant Viola has appealed from the judgment.
The finding is not subject to correction. It discloses the following facts: The plaintiff owns and resides in a dwelling house located on Cherry Street in Milford. The defendant Viola owns a dwelling house next door and to the east. Both properties are in a residence A zone, which is limited to single-family dwellings. Milford Zoning Regs., Art. 3, § 3 — 1 (1). For some time prior to 1949, the defendant Viola, whom we shall call the defendant, lived with his family in his one-family frame dwelling. It has seven rooms, three downstairs and four up. A fourth room was added to the first floor sometime j before 1951. The defendant is a physician and he i kept his professional office in his home. This was \ permitted as an accessory use under the zoning regulations. Id., Art. 3, §3 — 1 (22). Since 1949, the defendant has maintained a home for himself and his family at Bayview in another part of Milford. He continued, however, to use his house on Cherry Street for his office. Having previously been denied a permit for two additional offices, the defendant, on August 14,1951, applied to the building inspector for a permit for one additional medical and dental office
The board of appeals held a hearing on the defendant’s application on September 6, 1951. The plaintiff and others appeared and were heard in opposition. On the same date, the board voted, four to one, in executive session, to approve the defendant’s application and grant the variance, The zoning regulations require that before a variance is granted the board of appeals shall include a written finding in its minutes stating specifically the exceptional conditions, the practical difficulties or the unnecessary hardships involved. Milford Zoning Regs., Art. 5, § 5 — 5 (A) (3). The minutes of the board were made a part of the finding. From an entry therein it appears that it was voted “that permit be granted to Dr. Carl P. Viola to have one additional Medical-Dental Office at his present address at No. 26 Cherry Street, Milford, Conn. Reason: — on basis of allowing Dr. Viola to put the property to its best use, denial of which would be a practical difficulty.” The variance having
The trial court concluded that there were no practical difficulties or unnecessary hardship which justified the allowance of a variance and that the action of the board in granting one was illegal, arbitrary and in abuse of its discretion. The defendant claims error in this conclusion. The zoning regulations of the town of Milford provide that the zoning board of appeals shall have the power, among others not pertinent here, to “authorize upon appeal in specific cases variances from the terms of [the] regulations, where by reason of exceptional shape, size or topography of lot, or other exceptional situation or condition of the building or land, practical difficulty or unnecessary hardship would result to the owners of said property from a strict enforcement of [the] regulations.” Milford Zoning Regs., Art. 5, § 5 — 5 (A) (3). They further provide that the powers of the board “shall be exercised, subject to appro
The power to grant a variance in the application of established zoning regulations should be exercised charily. Piccirillo v. Board of Appeals on Zoning, 139 Conn. 116, 120, 90 A.2d 647. The obvious reason is that unless great caution is used and variations are granted only in proper eases, the whole fabric of town- and city-wide zoning will be worn through in spots and raveled at the edges until its purpose in protecting property values and securing an orderly development of the community is completely thwarted. Gunther v. Board of Zoning Appeals, 136 Conn. 303, 309, 71 A.2d 91; Devaney v. Board of Zoning Appeals, 132 Conn. 537, 540, 45 A.2d 828; Grady v. Katz, 124 Conn. 525, 529, 1 A.2d 137. The facts of this case do not bring it within the provisions of the ordinance. The defendant seeks, by means of a variance, to change the use of his property completely. It is to be no longer the home of a doctor in which he maintains his office and from which he conducts his practice. It is to become a small professional office building. The considerations which moved the defendant to seek the ehange were concerned with his own convenience and financial interest. He was building a new home and his problem was how best to dispose of the old one. A dentist who was seeking an office but could find no location that suited him or that he thought was not too expensive was available ¡ as a tenant. It was to the defendant’s financial! advantage to convert his Cherry Street property j into an office building. This did not warrant a relax- j ation of the zoning regulations on the ground of '
The defendant’s claim that the plaintiff cannot appeal from the action of the board is without merit. The premises she owns and occupies are directly /affected by the variance granted and she is an aggrieved person within the meaning of the statute pursuant to which the zoning regulations were enacted. General Statutes, Sup. 1951, § 160b; Kamerman v. LeRoy, supra, 237; see Beard’s Appeal, 64 Conn. 526, 533, 30 A. 775.
The defendant objected to the admission of the zoning regulations in evidence. He alleged that they were invalid because there was not a quorum of the members of the town planning and zoning board present at the meeting on August 29,1950, when the regulations were adopted. The defendant, however, invoked these same regulations in his own behalf. He twice sought permits to alter the use of his premises, he applied to the board of appeals for a variance and, this having been granted, he accepted
There is no error.
In this opinion the other judges concurred.
