175 A. 578 | Conn. | 1934
This is an appeal from the board of adjustment established under the Act creating a zoning commission in the defendant town. 19 Special Laws, p. 922. The complaint filed in the Court of Common Pleas is vague and uncertain in its allegations. In general the situation disclosed may be summarized in this way: The plaintiff had for some years conducted a boarding, apartment and rooming house in a large building upon her property in the *184 defendant town. She desired to erect upon her property an apartment hotel and to renovate the old building. These changes would not in any way damage any person, would not create a nuisance and are necessary in order to enable her to maintain herself and prosecute her business. For about a year she worked to accomplish her purpose and caused plans to be made for the new building, believing that no zoning regulations forbade the changes she was contemplating. While not directly stated, it is apparent from the allegations of the complaint that the plaintiff's property is located in a residence zone. In the original zoning regulations for the town, a copy of which is attached to the complaint, boarding and rooming houses and hotels were permitted in such a zone, but by what the plaintiff calls a "claimed" amendment to the regulations, apartment houses and hotels are forbidden in such a zone. She filed with the zoning commission an application for a building permit for the building, upon a printed form, of which a copy is attached to the complaint and which was addressed to the board of selectmen of the town. The commission refused to hear her application and dismissed it. She thereupon appealed to the board of adjustment, which in turn refused to hear the matter. She then appealed to the Court of Common Pleas. In the trial court a demurrer was filed to the complaint which was sustained upon two grounds, that it did not appear from the allegations of the complaint that the decision appealed from was arbitrary, illegal or unreasonable, and that it did appear that the erection of the building planned by the plaintiff was in violation of the zoning regulations of the town and the action of the board was justified by them. The plaintiff failed to plead further and moved for judgment so that she might bring this appeal. *185
The board of adjustment is given authority by the Act creating the zoning commission to alter, vary or modify the application of the zoning regulations, but the appeal to it in no way invoked the exercise of that power and no question as to it could arise upon the appeal to the court. In the absence of action by the board under this power, the fact that the application of the regulations to her property would cause the plaintiff loss and hardship by preventing her from carrying out the contemplated changes upon her property would not justify an exemption from the regulations in her favor; individual hardship and loss is a necessary accompaniment of zoning in any community; and such loss must be borne in order to make possible the broader advantages secured by it to the community as a whole. Thayer v. Board of Appeals,
The complaint contains a general statement that the amendment was unlawful and of no effect. There is nothing upon the face of the copy of the amendment attached to the complaint which suggests any invalidity and the allegation, being but the statement of a legal conclusion, is to be tested by such specific defects as are alleged elsewhere in the complaint. Bradley
v. Clarke,
It is true that the action of the commission and board of adjustment in failing to give a hearing to the plaintiff seems arbitrary. It was perhaps ill advised, for a good deal of trouble and expense to the town and the plaintiff might have been saved had such a procedure been followed. But so far as appears, neither the commission nor the board could have done otherwise than dismiss the plaintiff's application and no harm could have come to her from a failure to give her an opportunity to be heard. Indeed, the seemingly arbitrary action of the commission and board was very likely due to the fact that they considered that they had no jurisdiction over the plaintiff's application, as apparently they did not. That application *188 was addressed to the board of selectmen but was filed with the zoning commission; the duty of enforcing the regulations is placed upon the building inspector of the town, if there is one, otherwise upon the first selectman, under rules adopted by the board of selectmen; so far as appears an application for a building permit is not to be made to the commission but to the official charged with the duty of enforcing the regulations. Apparently the zoning commission was without authority to act upon this particular application and the only course open to the board of adjustment upon the appeal was to dismiss it.
There is no error.
In this opinion the other judges concurred.