Beckish v. Planning and Zoning Commission of Town of Columbia

• Decision Date: 23 November 1971
• Citation: 291 A.2d 208,162 Conn. 11
• Parties: Frances BECKISH et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF COLUMBIA.
• Court: Connecticut Supreme Court

Page 208

291 A.2d 208

162 Conn. 11

Frances BECKISH et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF COLUMBIA.

Supreme Court of Connecticut.

Nov. 23, 1971.

Herbert A. Lane, Willimantic, with whom, on the brief, was Jerome A. Rosen, Willimantic, for appellants (plaintiffs).

Jerome I. Walsh, Manchester, with whom was Robert J. Haggerty, Willimantic, for the appellee (defendant).

Before HOUSE, C.J., and COTTER, THIM, SHAPIRO and LOISELLE, JJ.

COTTER, Associate Justice.

The plaintiffs applied to the defendant commission for a special permit pursuant to § 4.32(D) of the zoning regulations of the town of Columbia to extend an existing nonconforming use to include the remaining unoccupied floor space in the building, known as the Landmark, owned by Frances Beckish and operated by the plaintiffs as the owners of Landmark, Inc., which is located at the intersection of routes 6A and 87. At a meeting of the commission held on November 14, 1967, it was voted to grant a special permit as requested subject to eighteen conditions and the plaintiffs' appeal is based on the imposition of two of those conditions, which require: 'The free-standing sign located East of the Landmark on the Columbia Town Green, adjacent to Route #87, and the free-standing sign located South of the Landmark, adjacent to route 6-A are to be removed within Two Weeks from the issuance of this Special Permit' (designated condition 11 by the commission) and 'no additional exterior signs may be erected, added to or changed except upon receipt of a Zoning Permit' (designated condition 12 by the commission).

It is the plaintiffs' claim that the defendant commission acted illegally, arbitrarily and in abuse of its discretion because: (1) the conditions do not bear any relation to any standards set forth in the regulations and are not founded on or warranted by the regulations; (2) the imposition of condition 11 deprives the plaintiffs of the use of their property without due process of law; and (3) condition 12 is too vague and uncertain.

The property in question, although a nonconforming use, is located in a residence A-1 district. The general appearance and location of the property is significant. Prior to 1962 the building, a rambling, wooden structure two hundred years old, was used as an inn and more recently as a retail establishment for the sale of newspapers and grocery items. It was also used in part as a residence. After 1962, Peter Beckish opened a pharmacy in the building and sold drugstore items, using only a portion of the building for this activity. The plaintiffs stated, inter alia, in their application to the commission requesting the permit for an extension of the nonconforming use that '(t)he present exterior general appearance of the building will not be altered so as to change the colonial and historic appearance of the building. The said general appearance will remain in conformity with the existing structures in the area.'

Section 4.3 of the zoning regulations of the town of Columbia is entitled 'Special Permit Use.' Section 4.32(D), pursuant to which the plaintiffs applied, concerns 'Non-Conforming Retail Establishments' and specifically provides that 'legally existing non-conforming retail establishments may be expanded to use the existing floor area of an existing main building only, not fully occupied by it for a retail or commercial use . . . subject to the conditions and restrictions listed' below in the section. Section 3.11 (Table of General Use Regulations), column 3 (Uses by Special Permit), pertaining to residence A-1 district, specifically authorizes the following use by special permit: 'Expansion of legally existing non-conforming retail establishments within the existing floor area of the main building only, subject to Section 4.32(D). A permit granted under the provisions of this section shall not be construed as eliminating or waiving by the Commission the non-conforming status of such building or use.'

It is well settled that the conditions permitting the use of property as a special exception must be found in the zoning regulations themselves; that the commission must have the authority in granting a special exception to subject the grant only to those conditions which are found in the regulations; and that none of the conditions imposed by the commission altered the requirements prescribed in the zoning regulations. Farina v. Zoning Board of Appeals, 157 Conn. 420, 422, 254 A.2d 492.

' Special permit' and 'special exception' have the same meaning and can be used interchangeably. See Summ v. Zoning Commission, 150 Conn. 79, 87, 186 A.2d 160. A special permit, as requested by the plaintiffs, permits an applicant to put his property to a use which is expressly permitted under the regulations so that the conditions under which a special exception is allowed must be found in the regulations and cannot be altered; and if a condition is imposed by a commission without being warranted by the regualtions, it is void. Parish of St. Andrew's Church v. Zoning Board of Appeals, 155 Conn. 350, 353, 232 A.2d 916. The regulations, as amended, contain specific and general conditions. Section 4.31 of the regualtions, for instance, contains six subsections enumerating certain conditions with which the applicant must comply in connection with 'the proposed use.' There is nothing in the zoning regulations, however, which gives the defendant commission any authority to require the discontinuance of a preexisting use of undisputed legality, as distinguished from a proposed use, so as to impose such a requirement in the nature of a condition before it will agree to grant the expansion of a nonconforming use of the remainder of the floor area in the building.

A zoning ordinance may reasonably regulate or prohibit the use of advertising signs as an exercise of the police power, and a zoning regulation such as § 3.11 has been approved as coming within the police powers of the community. Franklin Furniture Co. v. Bridgeport, 142 Conn. 510, 515, 115 A.2d 435; McGuire v. Purcell, 7 Ill.App.2d 407, 129 N.E.2d 598; Littett's Petition, 291 Pa. 109, 139 A. 619; 101 C.J.S., Zoning, §§ 60, 158; 3 Yokley, Zoning Law and Practice (3d Ed.) § 28-59. For a general discussion see Murphy, Inc. v. Westport, 131 Conn. 292, 298-300, 40 A.2d 177. The free-standing signs involved in the present case, however, are clearly not of the type allowed by § 3.11. We have stated that under certain circumstances the erection and presence of advertising signs on one's premises at the time of the adoption of an ordinance, which otherwise prohibited their use, may be found to be an existing lawful nonconforming use of the premises at the time of the adoption of the ordinance in question so as to allow their lawful continuance. See State v. Huntington, 145 Conn. 394, 400, 401, 143 A.2d 444. From the record before us in this case we cannot say what the situation was prior to the adoption...