Berson v. Zoning Bd. of Appeals of Town of Rocky Hill

• Decision Date: 10 January 1967
• Docket Number: No. 94390,94390
• Citation: 227 A.2d 258,26 Conn.Supp. 475
• Court: Connecticut Court of Common Pleas
• Parties: Gerald S. BERSON et al. v. ZONING BOARD OF APPEALS OF the TOWN OF ROCKY HILL.

Page 258

227 A.2d 258

26 Conn.Supp. 475

Gerald S. BERSON et al. v. ZONING BOARD OF APPEALS OF the TOWN OF ROCKY HILL.

No. 94390.

Court of Common Pleas of Connecticut, Hartford County.

Jan. 10, 1967.

Tulin & Skelley, Hartford, for plaintiffs.

Robert F. Stengel, Hartford, for defendant.

MIGNONE, Judge.

This is an appeal from the denial by the defendant zoning board of appeals of an application for a 'variance and/or special exception' under § 4.1, 4.11 and 4.12 of the zoning regulations of the town of Rocky Hill, which deal with public garages and automobile filling and servicing stations. The plaintiffs are the owners of a parcel of land located in a heavy commercial zone in Rocky Hill and were seeking a variance permitting, upon receipt of the required certificate of approval of location, the erection of a gasoline filling station within 1500 feet of an existing station. This was prohibited under § 4.12, which provides as follows: 'No gasoline or diesel filling station, either as a primary or a secondary activity, shall be erected near any building or premises used for such purpose or any part of a lot within a radius of fifteen hundred (1500) feet of any lot or plot used or proposed to be used for within the stated purposes.'

The complaint alleges that the defendant board acted illegally, arbitrarily and in abuse of its discretion in denying the application and alleges violations of the plaintiffs' rights under the fourteenth amendment to the United States constitution and article first, § 11, of the constitution of the state of Connecticut. It further alleges that the defendant exceeded its authority in denying the application and that it failed to state upon its records the reason for its decision 'in denying the variance and/or special exception.' In addition, the complaint alleges that the highest and best use of the land in issue is for a gasoline station and that the plaintiffs have been illegally deprived of its use for same. It is obvious that the plaintiffs herein not only are appealing from the action of the defendant in failing to grant the 'variance and/or special exception' requested in the application but seek to raise constitutioanl issues.

The appeal is before this court solely on the record made in the pubic hearing before the defendant board and the minutes of the executive session of the board. Examination of the record discloses that it concerns an application made by the plaintiffs for a 'variance and/or special exception' under §§ 4.1, 4.11 and 4.12 of the zoning regulations. Of these three sections, only § 4.12, which deals with the 1500-foot restriction, is in issue. Moreover, no one of these sections referred to in the application contains any provision relative to a 'special exception.' The application, stripped to its bare bones, sought a variance of the 1500-foot restriction under § 4.12.

I

Under the zoning regulations of Rocky Hill which became effective August 22, 1960, the board of appeals has the following powers: '13.11. To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the Zoning Administrator in connection with the enforcement of these regulations. * * * 13.13. To determine and vary the application of these regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting the district in which it is situated, a literal enforcement of these regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public welfare and safety secured.'

The legal notice of the public hearing on the application filed gave notice of a public hearing relative, inter alia, to the application of 'Gerald S. Berson and Matthew J. Reiser, 1 Robbins Lane, Rocky Hill, to erect a gasoline station on the southeast side of intersection of Marshall Road and Silas Deane Highway. State hearing also.' Examination of the record of this public hearing leads inevitably to the conclusion that the plaintiffs and the defendant board construed the application as requiring a hearing not only on the application for a variance but also for a certificate of the suitability of the location of the subject parcel. All the evidence adduced by the plaintiffs was addressed to the issue of suitability of the location under the guidelines set forth in the statute. General Statutes § 14-322.

It hardly needs clarification that a zoning board of appeals performs a separate and distinct function in passing, as the agent of the state under §§ 14-321 and 14-322, upon an application for a certificate of approval of location. On so doing, the board is required to determine suitability of location, giving due consideration '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.' § 14-322.

In this case, the defendant board was not legally empowered to consider or grant a certificate of approval until the required variance relative to the 1500-foot restriction under § 4.12 was granted. Consiglio v. Board of Zoning Appeals, 153 Conn. 433, 435, 217 A.2d 64; Sun Oil Co. v. Zoning Board of Appeals, 154 Conn. 32, 221 A.2d 267. This aspect of the situation appears to have been completely overlooked by the plaintiffs. There was no evidence whatsoever adduced to show 'conditions especially affecting such parcel but not affecting the district in which it is situated'; nor was there any evidence directed to show that 'a literal enforcement of these regulations would result in exceptional difficulty or unusual hardship.' Rocky Hill Zoning Regs. § 13.13. The only reason set forth in the application filed, with regard to the specific hardship claimed, is: '(B)ecause of its location contiguous to the entrance and exit ramps to Interstate Route 91 the highest and best use of this property is for an automobile filling and servicing station.' When this hardship reason is related to the issue of a variance because of 'exceptional difficulty or unusual hardship,' the 'legal inefficacy of such a reason is so apparent as to require little discussion.' Baccante v. Zoning Board of Appeals, 153 Conn. 44, 47, 212 A.2d 411, 412.

Innumerable cases of our Supreme Court have stated and restated the powers and duties of zoning boards of appeal relative to the granting of variances. Most recently, the case of Ward v. Zoning Board of Appeals, 153 Conn. 141, 215 A.2d 104, has reviewed the applicable law. At page 143, 215 A.2d at page 106, the opinion points out: 'The hardship requirement is a fundamental one in zoning law and has been discussed in innumerable opinions of this court in recent years. * * * One seeking a variance must show that his property is peculiarly disadvantaged by the operation of the zoning ordinance and not merely that a general hardship, equally applicable to other properties in the neighborhood, results from a strict enforcement of the code. * * * Evidence of financial considerations, short of a drastic depreciation in the value of the property, will not suffice.' The evidence adduced in this case, it must again be emphasized, is completely devoid of any proof that the subject property was 'peculiarly disadvantaged.' And the hardship, if any, caused by the operation of this zoning regulation is a general one, equally applicable to other properties in the district.

The defendant board, in executive session, voted to deny in the application. From its minutes setting forth the reasons for the denial, it would appear that the board itself was under the impression that it was acting both on an application for a variance and on the issue of suitability of location under the statutes. But reasons set out in these minutes clearly meet the real issue presented herein, namely, whether the plaintiffs were entitled to a variance of § 4.12: 'The applicant has not proved a hardship * * * (nor) has he presented any unusual difficulty for himself or anyone else, if this station were not erected. He also has * * * not proved that public welfare or convenience would be served in any way by the erection of this filling station. The fact is that I can see no reason to build a filling station at this location other than to profit the owners and * * * (possibly) the operators. This in itself is an insufficient reason for the granting of a variance.'

The plaintiffs have failed to sustain the burden of proof upon them to show that the defendant acted illegally, arbitrarily or in abuse of its discretion in denying the application for a variance. Since a variance of § 4.12 was not granted, the application for the certificate of approval perforce had to be denied by the board. Consiglio v. Board of Zoning Appeals, 153 Conn. 433, 435. The same failure of proof exists as to the plaintiffs' claims relative to the highest and best use of their property.

II

There remains to be considered in this case the issues, which the plaintiffs seek to raise, of confiscation of property and the constitutionality of the ordinance. As was the case in DeForest & Hotchkiss Co. v. Planning & Zoning Commission, 152 Conn. 262, 268, 205 A.2d 774, no hint of any claim that the zoning classification, as applied to the plaintiffs' property was so confiscatory as to be unconstitutional was given the board at the hearing before it. This issue is first raised in the pleadings incident to this appeal.

This court must discuss the issues of confiscation and unconstitutionality within the permissible framework of the record herein. The plaintiffs made no attempt whatsoever to deal with these issues concretely in the...