Del Buono v. Board of Zoning Appeals of Town of Stratford

• Decision Date: 27 July 1956
• Citation: 143 Conn. 673,124 A.2d 915
• Court: Connecticut Supreme Court
• Parties: Robert M. DEL BUONO v. BOARD OF ZONING APPEALS OF THE TOWN OF STRATFORD. Supreme Court of Errors of Connecticut

Page 915

124 A.2d 915

143 Conn. 673

Robert M. DEL BUONO v. BOARD OF ZONING APPEALS OF THE TOWN OF STRATFORD.

Supreme Court of Errors of Connecticut.

July 27, 1956.

Anthony T. Varone, Bridgeport, with whom, on the brief, were Raymond W. Ganim and George W. Ganim, Bridgeport, for appellant (defendant).

Thomas B. Coughlin, Bridgeport, for appellee (plaintiff).

Before BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ., and COMLEY, Superior Court Judge.

O'SULLIVAN, Justice.

Since the early part of 1953, the plaintiff has been the owner of a five-acre tract of land in the town of Stratford. It is bounded on the north by a shipyard, on the east by the Housatonic River, on the south by land occupied by a group of dilapidated shanties, and on the west by route 1, a heavily traveled thoroughfare. A gasoline station and a marine supplies store of generous proportion are on the westerly side of this thoroughfare near the tract in question. In the immediate neighborhood another station, a garage and a restaurant have recently been built, their former location having been taken for the new Greenwich-Killingly expressway which passes about 650 feet away.

The plaintiff's property is in a residence B zone. Approximately twenty-five years ago, it had been zoned for industry when an aircraft concern contemplated erecting a plant upon it, but after that plan collapsed the zonal classification reverted to residence B, and since then no further change has been made. In the meantime, business and industry have crept into the vicinity of the tract, and this tendency has accelerated in recent years. All of the surrounding property is now in either a business or and industrial zone.

On February 7, 1955, the plaintiff filed with the planning and zoning board a petition asking that the tract, in whole or in part, be rezoned to business 1. A public hearing was had on March 2, 1955. On May 16, 1955, the petition was denied. From that ruling the plaintiff appealed to the board of zoning appeals, the defendant herein. The appeal was fully heard on June 9, 1955, and about three weeks later was terminated by the adoption of the following vote: 'Be It Resolved the decision of the Town Planning and Zoning Board of May 16, 1955 be reversed to the extent that Robert M. Del Buono is granted a waiver of Residence B requirements to permit use for the following purposes, and subject to the conditions stated hereafter: 1. A dock, wharf, slip, basin or similar land for pleasure boats or for vessels engaged in fishing or shellfishery. 2. A yard for building, storing, repairing, or servicing boats. 3. A sail loft or ship chandlery, including the sale of marine equipment, engines and supplies. 4. Accessory uses customarily incidental to a permitted use, including the dispensing of fuels and lubricants to boats only. 5. Signs pertaining to a business on the premises only, and in accordance with sign regulations.' The effect of this vote was to deny the request for a change of zone and in lieu thereof to grant the plaintiff a waiver of the zoning regulations. The limitation precluding the use of the tract for businesses other than those enumerated conformed to the plaintiff's statement at the public hearing that all he wanted to do with his property was to use it for marine and boating activities. To that end, he had submitted a plot plan, prepared by an architectural engineer, indicating areas for boat slips, dry docks, parking, and a boat supplies building. As we shall later point out, the waiver was good for only two years.

The plaintiff appealed from the decision of the board of zoning appeals to the Court of Common Pleas. His appeal was sustained, and the defendant board has now appealed to this court.

The petition presented to the planning and zoning board was not for a waiver. The plaintiff was seeking a change of zone. The same request was before the board of zoning appeals when he appealed to that body from the denial of his petition. The narrow question, then, submitted to us is whether the court erred in holding that the defendant, by its refusal to change the classification of the plaintiff's tract from residence B to business 1, and by its granting, on its own motion, a temporary waiver for specific uses, acted illegally or arbitrarily. Chouinard v. Zoning Commission, 139 Conn. 728, 731, 97 A.2d 562.

In 1945, the town council, acting as the legislative body of Stratford, adopted an entirely new zoning ordinance which, with certain amendments, is presently in effect. The ordinance sets up a planning and zoning board, indiscriminately referred to, in the enactment, by that name and as the planning board. Section 17 recites, in part, that 'the Planning Board shall have the power to adopt new zoning regulations and to amend, change or repeal the regulations of this ordinance and to establish new zone boundaries and to amend, change or abandon the present zone boundaries' under conditions and procedural steps then stated. Section 21(A) provides that '[t]he Board of Zoning Appeals shall hear and decide appeals of aggrieved persons from decisions of the Planning Board; it may affirm, reverse, modify, alter or revise any order or decision of the Planning Board.' Since no claim to the contrary has been advanced by either party, we shall...