Charchenko v. Kelley

• Court: Connecticut Supreme Court
• Writing for the Court: Before BROWN; O'SULLIVAN
• Citation: Charchenko v. Kelley, 140 Conn. 210, 98 A.2d 915 (Conn. 1953)
• Decision Date: 28 July 1953
• Parties: CHARCHENKO v. KELLEY. Supreme Court of Errors of Connecticut

Page 915

98 A.2d 915

140 Conn. 210

CHARCHENKO v. KELLEY.

Supreme Court of Errors of Connecticut.

July 28, 1953.

Michael V. Blansfield, Waterbury, with whom was Irving W. Pasternak, Waterbury, for appellant (plaintiff).

Louis Weinstein, Asst. Atty. Gen., with whom, on the brief, was George C. Conway, Atty. Gen., for appellee (defendant).

Before BROWN, C. J., and BALDWIN, INGLIS, O'SULLIVAN and CORNELL, JJ.

O'SULLIVAN, Associate Justice.

This case came to the Court of Common Pleas as an appeal from the action of the commissioner of motor vehicles in refusing to issue a certificate approving the plaintiff's premises on Hamilton Avenue, Watertown, as a proper location for repairing automobiles and for dealing in used cars. The court decided the matter on the transcript of proceedings before the commissioner and after personally viewing the premises. From the judgment dismissing the appeal, the plaintiff has appealed to this court.

The transcript discloses that evidence was submitted to the commissioner in support of the following facts: The plaintiff's family owns a large tract of land on the north side of Hamilton Avenue in the town of Watertown. The land is in a rural district and is located about a mile from the shopping center. On this tract the plaintiff has erected a one-story building, 30 feet wide and 40 feet long. The structure is set back about 15 feet from the highway. It is at this place that the plaintiff wishes to repair automobiles and to deal in used cars.

Hamilton Avenue has no sidewalks. There about fifty children of school age living within one mile of the plaintiff's building. A school bus travels over Hamilton Avenue twice a day. Some of the children whom it transports are of kindergarten age. They are dismissed from school earlier than the others, and are accustomed to walk home accompanied by one of their parents. In doing so, they use the traveled portion of Hamilton Avenue in the neighborhood of the plaintiff's premises. The same part of the highway is also used by women pedestrians on their way to and from the shopping center, and by student athletes from a nearby boys' preparatory school when engaged in running exercises.

Hamilton Avenue is hilly and winding. It is between 25 and 30 feet wide, and is surfaced with tar. During the winter season when snow is on the ground in quantity, the traveled portion of the highway ranges from 8 to 16 feet in width. On either side of this obviously country roadway are many shade trees, one of which obscures the driveway leading into the plaintiff's premises. A very short distance both to the east and to the west, the highway dips sharply downward and from the bottom of neither dip can the driveway be seen by an approaching motorist. The plaintiff's plans contemplate the towing of disabled cars over Hamilton Avenue to his repair shop.

Pursuant to § 2394 of the General Statutes, the plaintiff applied to the selectmen of the town for the approval of the premises as a location for his proposed business venture, and pursuant to § 2396, the selectmen requested the commissioner of motor vehicles to determine whether a certificate of approval should be granted. Following a hearing held as prescribed, to assist in the determination of that question, the commissioner refused to issue a certificate. It was from this refusal that the plaintiff appealed to the Court of Common Pleas.

Whether or not a location for repairing automobiles and for dealing in used cars should be approved is to be determined upon the basis of the situation actually existing when the certificate of approval is sought. The ultimate question before the...