Bogue v. Zoning Bd. of Appeals of Town of North Haven
Citation | 345 A.2d 9,165 Conn. 749 |
Parties | Esther BOGUE v. ZONING BOARD OF APPEALS OF the TOWN OF NORTH HAVEN. |
Decision Date | 15 January 1974 |
Court | Supreme Court of Connecticut |
Lawrence J. Carboni, New Haven, for appellant (defendant).
Benson A. Snaider, New Haven, for appellee (plaintiff).
Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.
The plaintiff, Esther Bogue, is the owner of land bounded on the west by Whitney Avenue and on the south by Skiff Street in the town of North Haven. The property was located in a CN-20 zone which is designated neighborhood commercial and which permits certain professional and business offices and other types of basic neighborhood stores and services but not restaurants. There are presently located on the property two small restaurants as nonconforming uses and a package store. Above these are an apartment and rented rooms in disrepair. The plaintiff applied to the zoning board of appeals for a variance to remove the existing structures and to construct a new restaurant which would eliminate the two detracting nonconforming uses and substitute therefore one nonconforming use which the plaintiff contended would enhance the character of the neighborhood.
The defendant zoning board of appeals denied the application for a variance, the record of the vote stating that '(t)he Board was of the opinion that the granting of this appeal would not be in the best interests of the neighborhood, since it is not a permitted use in a CN-20 zone.' The plaintiff appealed to the Court of Common Pleas, where the appeal was sustained and the decision of the board was reversed. The court made no finding but did note in its memorandum of decision that the reason given by the board for its denial of the application for a variance was 'improper and insufficient as a matter of law.' This court granted certification, and the defendant board took the present appeal.
The defendant's sole assignment of error is that the Court of Common Pleas erred in failing 'to remand the case to the defendant Board of Zoning Appeals to be proceeded with according to law.' On the other hand, it is the plaintiff's contention that having sustained the appeal, the court 'had no power' to remand the case to the board for further proceedings, and that the sustaining of the appeal and reversal of the decision of the zoning board was tantamount to a judgment granting the variance sought. The plaintiff relies upon our decision in DeMaria v. Planning & Zoning Commission, 159 Conn. 534, 271 A.2d 105, as authority for her position. That reliance is misplaced.
Section 11.6.3 of the zoning regulations of the town of North Haven 1 specifies the circumstances in which the zoning board of appeals may grant a variance. They are, in substance, the same as those specified in § 8-6(3) of the General Statutes. Section 8-7 of the General Statutes provides that whenever a zoning board of appeals grants or denies a variance it shall state upon its records the reason for its decision. On an appeal from the board's decision Jenkins v. Zoning Board of Appeals, 162 Conn. 621, 623, 295 A.2d 556, 558.
In the present case, the plaintiff expressly alleged that the defendant board had acted 'arbitrarily, illegally, erroneously and in abuse of the discretion vested in it' and by way of specific relief, prayed that the order of the defendant board denying her application for a variance 'may be ordered reversed and that the Board be directed to enter an order granting the variance prayed for.' As we have noted, the judgment of the court found the issues for the plaintiff, sustained the appeal and directed that the decision of the defendant board be reversed but it did not grant the plaintiff's request for an order directing that the board grant the variance prayed for. The narrow issue before us, therefore, is the effect of the court's judgment and whether the court was in error in not remanding the case to the defendant zoning board of appeals 'to be proceeded with according to law.'
It is true that when on a zoning appeal it appears that as a matter of law there was but a single conclusion which the zoning authority could reasonably reach, the court may direct the administrative agency to do or to refrain from doing what the conclusion legally requires. Watson v. Howard, 138 Conn. 464, 470, 86 A.2d 67; Executive Television Corporation v. Zoning Board of Appeals, 138 Conn. 452, 457, 85 A.2d 904; Bishop v. Board of Zoning Appeals, 133 Conn. 614, 623, 53 A.2d 659; Colonial Beacon Oil Co. v. Zoning Board of Appeals, 128 Conn. 351, 355, 23 A.2d 151; see Walker v. Jankura, 162 Conn. 482, 491, 294 A.2d 536. In the absence of such circumstances, however, the court upon concluding that the action taken by the administrative agency was illegal, arbitrary or in abuse of its discretion should go no further than to sustain the appeal taken from its action. For the court to go further and direct what action should be taken by the zoning authority would be an impermissible judicial usurpation of the administrative functions of the authority. Guerriero v. Galasso, 144 Conn. 600, 608, 136 A.2d 497; Watson v. Howard, supra, 138 Conn. 469, 470, 86 A.2d 67. For the plaintiff in the present case to obtain the variance which she sought, it was necessary for her affirmatively to establish that the granting of the variance was permitted under the provisions of the governing zoning regulations. As we have noted (see footnote 1, supra), it was incumbent upon her to prove that owing to conditions...
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