Dolan v. Zoning Bd. of Appeals of Town of Fairfield

• Decision Date: 07 May 1968
• Citation: 156 Conn. 426,242 A.2d 713
• Court: Connecticut Supreme Court
• Parties: Joseph T. DOLAN et al. v. ZONING BOARD OF APPEALS OF the TOWN OF FAIRFIELD et al.

Page 713

242 A.2d 713

156 Conn. 426

Joseph T. DOLAN et al. v. ZONING BOARD OF APPEALS OF the TOWN OF FAIRFIELD et al.

Supreme Court of Connecticut.

May 7, 1968.

Austin K. Wolf, Bridgeport, with whom was Stuart A. Epstein, Bridgeport, for appellants (plaintiffs).

Donal C. Collimore, Fairfield, with whom, on the brief, were T. F. Gilroy Daly and John T. Fitzpatrick, Fairfield, for appellees (defendant Cobb et al.).

John J. Darcy, Fairfiled, for appellee (named defendant).

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

THIM, Associate Justice.

The defendant John Cobb and William Whitehead propose to lease certain property owned by Mitchell Stock for the purpose of operating a restaurant business. Cobb and Whitehead desire a restaurant liquor permit to sell alcoholic beverages in conjunction with their proposed restaurant operation. Because Stock's property is located within 1500 feet of the entrance to another building used for restaurant purposes which is presently operating with a restaurant loquor permit, Cobb and Whitehead, joined by Stock, filed with the defendant board an application for a variance of the zoning regulation which prohibits the use of premises for the purpose of selling alcoholic beverages if those premises are within 1500 feet of the entrance to premises operating under a similar permit. Fairfield Zoning Regs. § 3, div. 5(2) (1961). After a hearing, the board voted to grant their application. The plaintiffs appealed to the Court of Common Pleas, which dismissed their appeal. The present appeal followed.

Because the variance which was granted relates to the sale of alcoholic beverages, the status of the plaintiffs as taxpayers in the community entitles them to prosecute this appeal. M. & R. Enterprises, Inc. v. Zoning Board of Appeals, 155 Conn. 280, 281, 231 A.2d 272; Cowles v. Zoning Board of Appeals, 153 Conn. 116, 117, 214 A.2d 361.

It is the plaintiff's claim that there was insufficient evidence from which the board could find unusual hardship and that the trial court erred therefore in dismissing their appeal.

The record discloses these pertinent facts: Stock owns a parcel of property known as 4147 Black Rock Turnpike in Fairfield. On Stock's property is a building, the interior of which is adapted for use as a restaurant. From 1948 until 1962, a restaurant, with a restaurant liquor permit, was operated on the permises. In 1962 the restaurant discontinued operation, and the permit was allowed to lapse.

Subsequent to the cessation of the restaurant business on Stock's property and the lapse of the permit, another restaurant, with a restaurant liquor permit, began operation within 1500 feet of Stock's property. It is the existence of this restaurant, which is operating with a restaurant liquor permit, which necessitated the application for a variance.

Cobb and Whitehead will lease Stock's property only if they can obtain a restaurant liquor permit for the premises. It is problematical whether a rerstaurant could be profitably operated at this location without such a permit. Stock has been unable to sell or lease the premises for restaurant purposes because of the lack of a permit. The building on the property would have to be substantially altered in order to use the building for other than restaurant purposes.

After hearing the foregoing testimony, the board granted the application for a variance. The board has all the powers conferred on zoning boards of appeal under the general law. See 25 Spec.Laws p. 719; Fairfield Zoning Regs. § 14 (1961); see also Makar v. Zoning Board of Appeals, 150 Conn. 391, 393, 190 A.2d 45. It has the power to vary the application of the zoning regulations where, because of some peculiar characteristic of the property, a strict application of the regulations causes an unusual hardship and the variance will promote justice and protect the public welfare. General Statutes § 8-6(3).

The power to vary the application of zoning regulations should be sparingly exercised. Allen v. Zoning Board of Appeals, 155 Conn. 506, 510, 235 A.2d 654. The 1500-foot minimum distance regulation is designed to prevent the undue concentration of liquor outlets in a zone where such outlets are allowed. Kallay's, Inc. v. Katona, 152 Conn. 546, 549, 209 A.2d 185. If the application of this regulation is varied in cases other than those which fall clearly within the specified requirements for a variance, the purpose of the regulation is thwarted.

An applicant for a variance must show that, because of some peculiar characteristic of his property, the strict application of the zoning regulation produces an unusual hardship, as opposed to the general impact which the regulation has on other properties in the zone. Belknap v. Zoning Board of Appeals, 155 Conn....