Damick v. Planning and Zoning Commission of Town of Southington

• Citation: 256 A.2d 428,158 Conn. 78
• Court: Supreme Court of Connecticut
• Decision Date: 25 March 1969
• Parties: Albert W. DAMICK et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF SOUTHINGTON et al.

Page 428

256 A.2d 428

158 Conn. 78

Albert W. DAMICK et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF SOUTHINGTON et al.

Supreme Court of Connecticut.

March 25, 1969.

William W. Sprague, Hartford, Stephen K. Elliott, Gerald C. Mitchell, Southington, for appellant (defendant) Gibbs Realty Corp.

Joseph H. Thalberg, Alan I. Scheer, Southington, for appellees (plaintiffs), Alan H. Hertzmark, Waterbury (on the brief).

Before KING, C.J., and ALCORN, HOUSE, THIM and COVELLO, JJ.

HOUSE, Associate Justice.

This appeal is taken from a judgment of the Court of Common Pleas sustaining an appeal by residents of the town of Southington from the action of the defendant planning and zoning commission in granting an application to change the zone classification of eighteen and one-half acres of land in Southington from a residential to an industrial zone. The court found that thirty-eight of the eighty-eight plaintiffs were owners of twenty-two pieces of property located within 500 feet of the area involved in the zone change, that they were aggrieved persons for the purpose of taking the appeal, and that the action of the defendant commission was aribitrary, illegal and in abuse of its discretion.

In taking their appeal to the Court of Common Pleas, the plaintiffs alleged twenty-two separate grounds for their claim that the commission acted improperly. Included were allegations that several members of the commission were disqualified from acting on the application for the change in zone. In answering the complaint, the defendant at first denied that the plaintiffs were aggrieved. They subsequently amended their answer to admit that certain of the plaintiffs were aggrieved but did not amend the previous denial of aggrievement as to the remaining plaintiffs. On the appeal, the court therefore properly heard evidence on the limited issues of disqualification and aggrievement. It repeatedly and emphatically, in ruling on questions of evidence, reminded counsel of the limited purpose for which evidence was being admitted and would be considered and that it would decide from the record before the commission and its examination of the site whether the action of the commission was arbitrary, illegal or in abuse of its discretion. Neverthless, in its limited finding, the court used that evidence and testimony for purposes beyond the limited ones for which it had permitted it to be introduced. Among other facts which the court found-not from the record before the commission, but expressly on the basis of evidence which the court had admitted for the limited purpose of deciding the issues of disqualification and aggrievement- was the fact that, in addition to the reasons set forth in the record for the commission's approval of the zone change, other reasons for which the commission made the change were to prevent an industry from leaving town and to prevent a tax increase which would result therefrom.

Such a misuse of evidence admitted for a limited purpose is impermissible, and the defendants have properly assigned it as error. If a determination of the merits of this appeal depended in any degree on a finding predicated upon the facts thus found, we would be constrained to find reversible error. That is not the case, however, and we disregard the findings of fact thus improperly made and limit our consideration to the facts disclosed by the record before the commission as supplemented by the court's view of the site and adjacent area since we test therefrom the court's conclusion that the action of the commission in changing the zone was arbitrary, illegal and in abuse of its discretion because the change was not in accordance with the comprehensive zoning plan of the town of Southington.

Among the few matters to which there is, and could be, no disagreement among the parties are the following: (1) Zoning in Southington operates under the authority of the General Statutes. (2) The defendant commission has not adopted a master plan, and accordingly the comprehensive plan is to be found in the zoning regulations themselves and the zoning map, which are primarily concerned with the use of property. Dooley v. Town Plan & Zoning Commission, 154 Conn. 470, 473, 226 A.2d 509. (3) The general purposes of zoning in Southington are similar to those set forth in General Statutes § 8-2. (4) The commission in exercising its power to adopt zoning regulations acts as a legislative body.

It is unnecessary to recite in detail the whole situation giving rise to this appeal. It suffices to note but a few of the significant facts. Since zoning became effective in Southington in 1957, the rezoned area has been in the middle of a large residential zone limited to single-family residences. This residential zone extends in an irregular way about 2500 feet to an industrial zone on the north, about 4000 feet to an industrial zone on the east, about 3000 feet to an industrial zone on the south, and about 1500 feet to a business zone on the west. A very small portion of the area which the commission rezoned to industrial use is occupied by a moderately sized industrial building which faces West Street. The court found that, when zoning was adopted, the appearance of the building did not detract noticeably from the residential appearance of the neighborhood. The balance of the rezoned area is vacant land except for one residence. The use of the existing building for industrial purposes has, since zoning became effective, been a noncomforning use. The building is on a 10.15-acre parcel owned by the defendant Gibbs Realty Corporation, hereinafter referred to as Gibbs, and the industry located in the building is owned and operated by Gibbs Wire and Steel Company, Inc. Gibbs' application for the change of zone stated as the primary reason for the change that '(t)he expansion of Gibbs Wire and Steel Company's business makes it necessary to expand the present building.'

We have long recognized the broad discretion which has been vested in a zoning commission, when it is acting in a legislative capacity, to effect changes in zoning regulations. Hawkes v. Town Plan & Zoning Commission, 156 Conn. 207, 211, 240 A.2d 914; Lupinacci v. Planning & Zoning Commission, 153 Conn....