Cohen v. Board of Appeals on Zoning of City of Bridgeport
| Decision Date | 03 February 1953 |
| Citation | 139 Conn. 450,94 A.2d 793 |
| Court | Connecticut Supreme Court |
| Parties | COHEN v. BOARD OF APPEALS ON ZONING OF CITY OF BRIDGEPORT et al. Supreme Court of Errors of Connecticut |
D. H. Cotter, Bridgeport, for the appellant (defendant dEvellis).
Otto H. LaMacchia, Bridgeport, for the appellee (plaintiff).
Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.
The defendant Virginio DeVellis, owner and operator of a restaurant with a beer permit at 193 North Avenue in Bridgeport, made application to the defendant board for a waiver of a zoning restriction to allow him to operate on these premises under an unlimited package store permit. The restaurant is in a business zone and is within 1500 feet of three establishments having all-liquor restaurant permits and of two others having restaurant beer permits. There is no package store within a radius of 1500 feet. The defendant board granted a waiver of the applicable 1500-foot restriction, and the plaintiff, a resident of Bridgeport, appealed to the Court of Common Pleas, which rendered judgment sustaining the appeal. The defendant DeVellis, hereinafter referred to as the defendant, has appealed to this court.
The trial court heard no testimony. The exhibits offered by the defendant, which included a copy of the city's zoning regulations and a zoning map, the return of the defendant board relating to the application, and photographs of the locus and adjoining premises, constituted the only evidence presented. Goldblatt v. Ferrigno, 138 Conn. 39, 41, 82 A.2d 152. The court's finding, in addition to the facts already recited, contains the pertinent provisions of the zoning regulations. It further states that (1) the board gave no reason for its action in granting the waiver but simply voted in executive session 'that the petition be granted, provided the improvements stated to the Board be put into effect, as regards the building,' and (2) there was no evidence before the board that the literal enforcement of the regulations would result in exceptional difficulty or unusual hardship. While error is assigned in both of these findings, neither is subject to correction. The first accurately states the action of the board as recorded in its minutes, and no other action or expression by the board or any of its members concerning the granting of this waiver appears therein. Examination of the exhibits and particularly of that containing the record of the hearing before the board, shows that the second statement is also correct. The record of the hearing does contain certain claims by counsel for the defendant applicant bearing upon potential financial detriment to him. It also includes statements by counsel concerning proposed structural changes in the building and referring to petitions of people in the vicinity in favor of the application. Neither the claims of counsel nor the unsworn expressions favoring the defendant's request were to the effect that literal enforcement of the regulation would result in exceptional difficulty or unusual hardship. The finding is not subject to correction.
The foregoing discussion is made necessary because of the form of the record presented to us. See Maltbie, Conn.App.Proc. § 22. Since it is apparent, however, that this appeal was tried in the Court of Common Pleas on the proceedings before the board of appeals, no finding was necessary. Biz v. Liquor Control Commission, 133 Conn. 556, 557, 53 A.2d 655; Winchester Repeating Arms Co. v. Radcliffe, 134 Conn. 164, 169, 56 A.2d 1. Section 160b of the 1951 Cumulative Supplement to the General Statutes provides, in connection with appeals from zoning boards of appeal to the Court of Common Pleas: While the reference in the first sentence quoted to 'the record' is not as specific as it might be, the legislative intent is sufficiently clear as expressed by the two sentences together. It is to require the board to file in the trial court all of the record which is necessary to enable it to pass upon the propriety of the board's action. This means that the board must return forthwith to the trial court, upon any appeal from its decision, either the original or a certified copy of the petition or application upon which it has acted, its minutes of the proceedings before it and of its executive action taken thereon, a transcript of the proceedings if a stenographic record was made, all exhibits considered by it, and, since the court cannot take judicial notice thereof, a copy of the...
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