Atlantic Refining Co. v. Zoning Bd. of Appeals of Town of Milford

• Decision Date: 11 January 1955
• Citation: 142 Conn. 64,111 A.2d 1
• Parties: The ATLANTIC REFINING COMPANY v. ZONING BOARD OF APPEALS OF TOWN OF MILFORD. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 1

111 A.2d 1

142 Conn. 64

The ATLANTIC REFINING COMPANY v. ZONING BOARD OF APPEALS OF TOWN OF MILFORD.

Supreme Court of Errors of Connecticut.

Jan. 11, 1955.

William L. Beers, New Haven, with whom was John N. Reynolds, New Haven, for appellant (plaintiff).

Richard H. Lynch, Milford, for appellee (defendant).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

WYNNE, Associate Justice.

In this case the plaintiff seeks a certificate approving certain premises in Milford as a suitable site for the sale of gasoline. In conformity with § 2538 of the General Statutes, the plaintiff applied to the defendant for such a certificate. After the defendant had refused approval, the plaintiff appealed to the Court of Common Pleas. The court dismissed the appeal, and from that judgment the plaintiff has appealed to this court.

There is no dispute regarding the facts. The situation is clearly set forth in the record. The plaintiff, hereinafter called the company, applied to the defendant board on December 23, 1953, for a certificate of approval of the company's property at 247 Broad Street, in Milford, as a site for a retail gasoline station. A hearing on the application was held on March 4, 1954, and the application was denied by the board on March 12, 1954. The decision of this court in Town of Milford v. Commissioner of Motor Vehicles, 139 Conn. 677, 96 A.2d 806, supplies the background leading up to the present case. From that decision it appears that in 1946 the board issued to the then owner of the property a certificate of approval of it as a site for the retail sale of gasoline. The property is located in a business zone, and the board was acting, not on a zoning matter, but as an agent of the state with statutory authority to pass upon the question of suitability of location for the purpose sought. The certificate of approval granted in 1946 was not used. In 1952, a new owner of the property, unaware of the 1946 certificate, applied to the board for a certificate of approval of the site for a retail gasoline station. This application was denied on April 3, 1952, and no appeal was taken. Thereafter, it was discovered that a certificate of approval had been issued in 1946, and on the basis of this the plaintiff sought and obtained from the commissioner of motor vehicles a license for the conduct on the premises of a gasoline service station. This was the second necessary step for the establishment of a service station. At this point the town of Milford instituted the action of Town of Milford v. Commissioner of Motor Vehicles, supra. In that case we held that the denial of the certificate by the board in 1952 operated to revoke the certificate granted in 1946 and that, therefore, the commissioner of motor vehicles had no power to issue the license.

The assignment of errors sets forth, first, that the action of the defendant was arbitrary and in abuse of its discretion. Our statutes provide that no person shall sell or offer to sell gasoline or any other product intended for use in the propelling of motor vehicles using combustible type engines over the highways of this state without having received a license from the commissioner of motor vehicles. General Statutes § 2536. Any person desiring to secure such a license must first obtain from a specified local authority and present to the commissioner a certificate of approval of the location for which the license is desired. § 2538. The local authority cannot issue a certificate unless it 'shall find that such location is suitable for the sale of gasoline * * *, due consideration being given to the proximity of schools, churches, theatres or playhouses or other places of public gatherings, intersecting streets, traffic conditions, width of highway and effect of public travel, and that such use of such proposed location will not imperil the safety of the public.' § 2539. Upon an appeal from the decision of the local authority, the question is whether its action was so devoid of any reason as to render it arbitrary or so unreasonable as to be an abuse of discretion. Connecticut Baptist Convention v. Murphy, 128 Conn. 261, 264, 22 A.2d 13.

The board gave the following as its reason for denying the application: 'It is the opinion of the Board that the traffic conditions at No. 247 Broad Street, Milford, Conn. are very hazardous and traffic has not decreased at this location since the Board denied a similar application by The Atlantic Refining Company at their meeting held April 3, 1952.' The site for which the certificate was sought had frontages on three streets, Golden Hill...