O'Connor v. Board of Zoning Appeals of Town of Stratford

• Decision Date: 16 June 1953
• Citation: 140 Conn. 65,98 A.2d 515
• Court: Connecticut Supreme Court
• Parties: O'CONNOR et al. v. BOARD OF ZONING APPEALS OF TOWN OF STRATFORD et al. Supreme Court of Errors of Connecticut

Page 515

98 A.2d 515

140 Conn. 65

O'CONNOR et al. v. BOARD OF ZONING APPEALS OF TOWN OF STRATFORD et al.

Supreme Court of Errors of Connecticut.

June 16, 1953.

Thomas B. Coughlin, Bridgeport, for appellant (named plaintiff).

Raymond W. Ganim, Bridgeport, with whom, on the brief, was George W. Ganim, Bridgeport, for appellee (defendant Garfield).

Hugh A. Hoyt, Bridgeport, appeared for appellee (defendant board).

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

BROWN, Chief Justice.

The defendant board of zoning appeals of the town of Stratford denied an appeal from the action of the town planning board whereby, pursuant to a petition of the defendant Estelle F. Garfield, hereinafter called the defendant, it granted, on December 17, 1951, a waiver of the 1000-foot distance requirement of § 7(B) of the Stratford zoning ordinance and approved the defendant's premises at 895 Barnum Avenue Cutoff as a location for a package store. The plaintiffs appealed to the Court of Common Pleas, which affirmed the action of the board of zoning appeals and dismissed their appeal. The named plaintiff, hereinafter called the plaintiff, has appealed to this court. The appeal presents two questions for determination: first, whether the action of the board of zoning appeals in approving the waiver of the 1000-foot restriction was illegal, arbitrary or in abuse of its discretion; and, second, whether the plaintiff was entitled, as a person aggrieved, to appeal from the decision of the board of zoning appeals to the Court of Common Pleas.

The salient facts are undisputed and may be thus summarized: The plaintiff is a resident and taxpayer of Stratford, where he is actively engaged in business. He owns a home located on a different street and approximately one-half mile from the defendant's premises. These consist of a store which has been used for various types of retail business and is located in a business zone. There are three outlets for the sale of alcoholic liquors, beer, ale or wine within 100 feet of the defendant's property as that distance is defined in § 7(B) of the zoning ordinance. This provision forbids the operation of a package store within 1000 feet of any other premises where alcoholic liquors, beer, ale or wine are sold. Section 20(B) of the ordinance authorizes the planning board to 'vary or waive the zoning regulations * * * as to an individual specific property, provided such action shall be in harmony with the general purposes and intent of the zoning regulations * * * 5. * * * This authority shall be executed in a manner to secure the public health, safety and welfare solely in instances where there are practical difficulties, or unnecessary hardships in the way of carrying out the strict letter of these regulations.' The court's conclusions were that the plaintiff is not an aggrieved party entitled to challenge the action of the defendant board and that its decision could not be disturbed as illegal, arbitrary or in abuse of its discretion.

The principles determinative of the validity of the defendant board's action in approving the waiver are clearly established by the repeated decisions of this court. The 1000-foot restriction prescribed by the ordinance constitutes a definite declaration of policy by the town council of Stratford as the duly authorized legislative body of the town. Power to modify or amend it rests in the town council, which had the power to adopt the ordinance, and not in the defendant board. Greenwich Gas Co. v. Tuthill, 113 Conn. 684, 694, 155 A. 850, 928. The defendant board's approval of the waiver notwithstanding that three other outlets already existed 'flies directly in the face of the declared policy embodied in the ordinance.' Delaney v. Zoning Board of Appeals, 134 Conn. 240, 245, 56 A.2d 647, 650. What was further stated in that opinion is also applicable to the present case: 'The facts disclose no basis upon which it could reasonably be held that such action would be in harmony with the general purpose and intent of the zoning regulations or would accord with the spirit of the ordinance. Indeed, it would be a rare case where the facts would permit a variation in this particular regulation.' Ibid.; Devaney v. Board of Zoning Appeals, 132 Conn. 537, 542, 45 A.2d 828; Maltbie, The Legal Background of Zoning, 22 Conn. B. J. 2, 8.

The application of these principles might well suffice to indicate that the defendant board would have been unwarranted in approving the waiver even if it were assumed that upon the facts it had authority to exercise that power. The record leaves no doubt, however, that the defendant board had no such right or power in this case. The sole authority for the action of the planning board was § 20(B) of the ordinance, quoted above. This makes clear that in no event can a waiver be granted unless 'practical difficulties, or unnecessary hardships' are first established. It is likewise manifest, under the language of the ordinance, that the only 'hardships' referred to are those due to the zoning law restriction upon the petitioner's use of the property in question. This is well exemplified in a number of cases which have been decided by this court. Devaney v. Board of Zoning Appeals, supra, 132 Conn. at page 540, 45 A.2d 828; Delaney v. Zoning Board of Appeals, supra, 134 Conn. at page 244, 56 A.2d 647; Stavola v. Bulkeley, 134 Conn. 186, 191, 56 A.2d 645; Benson v. Zoning Board of Appeals, 129 Conn. 280, 282, 27 A.2d 389; Grady v. Katz, 124 Conn. 525, 529, 1 A.2d 137; Thayer v. Board of Appeals, 114 Conn. 15, 23, 157 A. 273. If the total lack of facts affording a basis for a finding that any unnecessary hardship existed as to the use of the defendant's property were not to be regarded as conclusive that no such hardship did exist, the reasons stated by the defendant board for approving the waiver would of themselves remove all...