Benson v. Zoning Bd. of Appeals of City of Hartford

• Decision Date: 16 July 1942
• Citation: 27 A.2d 389
• Parties: BENSON v. ZONING BOARD OF APPEALS OF CITY OF HARTFORD.
• Court: Connecticut Supreme Court

27 A.2d 389

BENSON

v. ZONING BOARD OF APPEALS OF CITY OF HARTFORD.

Supreme Court of Errors of Connecticut.

July 16, 1942.

Appeal from Superior Court, Hartford County; Baldwin, Judge.

Action by Henry James Benson against the Zoning Board of Appeals of the City of Hartford, wherein an appeal from the denial of an application for permission to conduct a restaurant selling alcoholic liquors was brought to the superior court and tried to the court. From a judgment sustaining the appeal and ordering the board to grant the application, defendant appeals.

Error and case remanded with direction.

Before MALTBIE, C. J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.

Frank A. Murphy, of Hartford (Harold Borden and Vincent W. Dennis, both of Hartford, on the brief), for the appellant (defendant).

Joseph P. Cooney, of Hartford, for appellee (plaintiff).

BROWN, Judge.

The plaintiff, operating a tavern at 365 Asylum Street in Hartford under a permit for the sale of beer only, made application to the defendant board for variation of a zoning ordinance requirement to allow the operation of a restaurant with a full liquor permit at this location. The plaintiff's tavern is located in a business zone and is within one thousand feet of six establishments dispensing liquor with full liquor permits. The pertinent zoning ordinances of Hartford provide in substance that in a business zone no premises shall be used for a restaurant selling alcoholic liquor or beer (§ 201) if located upon property within one thousand feet of property on which there is a restaurant selling alcoholic liquor or beer, a tavern or a grill (§ 204.1); but that the board of appeals may determine and vary the application of the zoning regulations in harmony with the general purpose and intent of the ordinance so that substantial justice may be done, executing this authority "in a manner to secure the public health, safety and welfare solely in instances where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this ordinance" (§ 213). The defendant board denied the application and the plaintiff appealed to the Superior Court, which rendered judgment sustaining the appeal and ordering the defendant to grant the application. Upon that appeal the question for determination was whether the defendant board in denying the plaintiff's application acted legally and within its discretion, as claimed by it, or illegally, arbitrarily or so unreasonably as to have abused its discretion, as contended by the plaintiff. Piccolo v. West Haven, 120 Conn. 449, 453, 181 A. 615; Levine v. Zoning Board of Appeals of Meriden, 124 Conn. 53, 57, 198 A. 173.

No evidence was offered at the hearing before the defendant board, but counsel for the plaintiff urged that the application be granted, and counsel for neighboring competitors voiced their opposition. Upon the hearing of the appeal by the Superior Court the parties stipulated that the court should view the neighborhood and premises involved, which it did. As expressly appears from the finding, the court then found the facts assumed to have been the facts before the defendant board and in accord with our recognized procedure (Grady v. Katz, 124 Conn. 525, 530, 1 A.2d 137) used these as a basis for testing the defendant board's conclusion. The facts so found are not in dispute.

From the provisions of the ordinance above recited authorizing the board of appeals to vary the application of the prohibition which would otherwise preclude the granting of the plaintiff's application, it is clear that it would be unwarranted in granting him relief under the circumstances unless satisfied that by the enforcement of the strict letter of the ordinance "unnecessary hardship" to the plaintiff would result. Accordingly the burden rested upon the plaintiff of proving a situation disclosing such hardship. The decisive question presented by this record therefore is whether the finding contains facts which are sufficient to establish this essential as a matter of law. The only facts which can be claimed by the plaintiff to support it are these: The plaintiff holds a tavern permit for these premises and conducts a restaurant business there with a large patronage; the premises are suited to the conduct of a restaurant business; there is a demand among his patrons for other types of alcoholic liquor than beer, which he now sells; the granting of the application made by him to the defendant board is a...