Parish of St. Andrew's Protestant Episcopal Church v. Zoning Bd. of Appeals of City of Stamford

Citation155 Conn. 350,232 A.2d 916
CourtSupreme Court of Connecticut
Decision Date13 July 1967
PartiesPARISH OF ST. ANDREW'S PROTESTANT EPISCOPAL CHURCH et al. v. ZONING BOARD OF APPEALS OF the CITY OF STAMFORD et al.

Charles Townsend, Jr., Stamford, for appellants (plaintiffs).

Thomas J. Dolan, Bridgeport, with whom, on the brief, was James J. O'Connell, Bridgeport, for appellees (defendant, California Oil Co. et al.).

Theodore Godlin, Asst. Corp. Counsel, with whom, on the brief, was W. Patrick Ryan, Corp. Counsel, for appellee (named defendant).

Before KING, C.J., and ALCORN, HOUSE, COTTER and THIM, JJ.

COTTER, Associate Justice.

Upon the application of the defendants Nicholas P. Nanos and California Oil Company, the defendant zoning board of appeals unanimously granted a special exception under the zoning regulations and a certificate of approval for the construction and operation of a gasoline service station on premises owned by Nanos at the northwesterly corner of North Street and Washington Avenue in Stamford. As a condition to the granting of the special exception and the issuance of the certificate of approval, the board provided that the owner 'shall convey to the City of Stamford, at such time as the City shall request, so much of the easterly eleven (11) feet of the premises as shall be required by the City of Stamford for the widening of Washington Avenue; and if the owner shall fail to comply with said request of the City of Stamford, the approvals granted herein shall be revoked, at the option of the Zoning Board of Appeals.' The Court of Common Pleas, on appeal by the plaintiffs, who are neighboring property owners, rendered judgment affirming the action of the board, and the plaintiffs have taken the present appeal to review that judgment. The land in question is in a C-N zone, also designated neighborhood business district, in which the operation of a gasoline service station is a permitted use, subject to the issuance of a special exception by the zoning board of appeals. Stamford Zoning Regs., App. A, table II, No. 54 (1965).

I

A basic claim of the plaintiffs is that the decision of the board is illegal and in abuse of its descretion because it is predicated on the applicants' offer to donate an elevenfoot strip of land to the city. This offer, it is claimed, was the 'real basis' and 'primary motivation' of the board's decision. In support of this claim, the plaintiffs reason that to impose a condition such as this is to violate the purpose and intent of the zoning regulations and that the board has exceeded its powers in reserving the right to revoke the grant of a special exception and the certificate of approval upon a breach of the condition.

The factual situation supporting this claim consists solely of the testimony of Nanos, at the public hearing before the board, concerning the contemplated widening of Washington Avenue, which would require eleven feet of the applicants' property. Nanos stated that he would be willing to have the board make it a condition of the approval of the application that the eleven-foot strip be dedicated by him to the city of Stamford at no expense. This testimony, represeenting the totality of the evidence on this issue, in and of itself does not show improper motive on the part of the members of the board. While the members of the board precipitously and injudiciously accepted the suggestion, there is nothing in the record which demonstrates that this offer was the basis of and the primary motivation for their action.

A special exception, as requested herein, allows an owner to put his property to a use which is expressly permitted under the regulations, in contradistinction to the grant of a variance, for instance, wherein the zoning board has the power to extend to the owner a right to use his property in a manner forbidden by the zoning enactment and need not depend upon express authorization in the zoning enactment. The conditions under which an exception is permitted must be found in the regulations themselves and cannot be altered. 1 Fox v. Zoning Board of Appeals, 146 Conn. 70, 72, 147 A.2d 472.

The regulations provide that the board may exercise its powers and duties 'subject to appropriate conditions and safeguards, in harmony with the purpose and intent of these regulations and in accordance with the public interest and the most appropriate development of the neighborhood.' Stamford Zoning Regs. § 19(A) (1965). The condition requiring a conveyance of the strip of land and containing an option to revoke approval in the event of a failure to comply does not come within the expressed authority of the board of relate to the standards promulgated in the regulations. Service Realty Corporation v. Planning & Zoning Board of Appeals, 141 Conn. 632, 638, 109 A.2d 256. The board had no authority to impose, as a condition of the use of the property for a gasoline service station, a requirement that the owner convey the strip to the city. Such a requirement may be revoked and set aside. Abbadessa v. Board of Zoning Appeals, 134 Conn. 28, 34, 54 A.2d 675. So much of the decision as imposed the condition and reserved the right to revoke the permission is void and of no force. Service Realty Corporation v. Planning & Zoning Board of Appeals, supra, 141 Conn. 639, 109 A.2d 256; Kelley v. Board of Zoning Appeals, 126 Conn. 648, 652, 13 A.2d 675; 8A McQuillin, Municipal Corporations (3d Ed. Rev.) § 25.271; 2 Rathkopf, Law of Zoning and Planning, c. 49; 101 C.J.S. Zoning § 234, p. 999.

In granting a special exception, the board may, in a proper case, impose a condition but only where it is warranted by the regulations. The imposition of a void condition, however, does not necessarily render the whole decision illegal and inefficacious. If the decision is otherwise supported by sufficient grounds as found by the board, a modification of the decision may be decreed with a view toward ending further litigation. Levine v. Zoning Board of Appeals, 124 Conn. 53, 59, 198 A. 173. In the instant case, the condition was not an integral part of the determination and can be separated from the grant as awarded. The widening of Washington Avenue had evidently been considered by the City as early as 1958, and there was testimony that, at the time of the public hearing, approximately $778,000 had been appropriated for the project. In fact, the proposed design and layout of the gasoline station submitted by the applicants at the public hearing was planned in contemplation of the future widening of the avenue by the city at the point in question. Under the circumstances, although the condition imposed is illegal and of no effect, this illegal action does not invalidate the remainder of the board's decision.

II

The plaintiffs further urge that there is error in the manner in which findings were made by the board, as required for a special exception under § 19(A)(2)(a) of the regulations, 2 on the ground that they were made 'in boilerplate' fashion. The board did find in verbatim fashion that each and every standard as required was complied with in the language of the regulations. There was evidence offered, however, upon which it could so conclude.

Considerable evidence was offered at the public hearing which, if considered credible by the board, would reasonably support the findings it made in this connection. In brief, it consisted in part of the following in the form of testimony any exhibits. The proposed gasoline station, as shown on the plot plan, is colonial in design and complies with all of the specific regulations of the city including setback, area coverage, and parking. The general area, as shown in the photographs submitted, contains mixed commercial and residential uses. A real estate expert testified that the gasoline station, as proposed, would not be in substantial conflict with the orderly development and basic character of the district. He pointed out the many existing commercial uses in the immediate neighborhood and testified that the proposed use would not discourage appropriate development in the area. The adjacent property is also zoned as a neighborhood business district. The proposed station is set back from the building lines, and the major impact of the contemplated use is away from adjacent property toward the street lines. The building is to be so located on the site as to minimize any impact on the adjacent area, and the design of the building attempts to conform to high architectural standards. Adjoining residential areas would be well screened and insulated by the adjacent property. The plot plan shows two entrance and exit drives on each street, a total of four driveways. There are virtually unlimited sight distances along Washington Avenue and North Street according to a traffic expert, who further testified that the operation in accordance with the layout as submitted would...

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