Farr v. Zoning Bd. of Appeals of Town of Manchester

• Decision Date: 17 March 1953
• Citation: 139 Conn. 577,95 A.2d 792
• Parties: FARR et al. v. ZONING BOARD OF APPEALS OF TOWN OF MANCHESTER et al. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 792

95 A.2d 792

139 Conn. 577

FARR et al. v. ZONING BOARD OF APPEALS OF TOWN OF MANCHESTER et al.

Supreme Court of Errors of Connecticut.

March 17, 1953.

Paul B. Groobert, Manchester, for the appellant, defendant wiganowske.

John R. Mrosek, Hartford, with whom was Harold W. Garrity, Hartford, for the appellees, plaintiffs.

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

BROWN, Chief Justice.

This proceeding began as an appeal from the zoning board of appeals of the town of Manchester. The trial court rendered judgment for the plaintiffs sustaining the appeal. The defendants, the petitioner and the board, have appealed to this court. The question involves the board's right to grant a variance.

So far as is necessary for the decision of this appeal, the facts found by the court, which are not subject to correction, are thus summarized: Article 4, § 8, of the Manchester zoning regulations forbade the use for the sale of alcoholic liquors of any building located within 1000 feet of any other premises where alcoholic liquors were sold. Article 5, § 5(4), empowered the board of appeals to '[a]uthorize on appeal, variances from the strict application of the provisions of these regulations to a specific lot or piece of property where, by reason of exceptional shape, exceptional topography or other exceptional situation or conditions, unusual difficulty or unreasonable hardship would result to the owners of said property; provided that relief can be granted without impairment of the integrity of these regulations and without substantial detriment to the public welfare. Before any variance is granted, it shall be shown that special circumstances attach to the property which do not generally apply to other property in the same neighborhood.' Subsection 6 further provided that all determinations of the board should be in accord with the comprehensive plan set forth in the regulations and that no permit for special exceptions should be granted unless the board found that the proposed use would not give rise to a traffic hazard, interfere with the pattern of highway circulation, or tend to depreciate the value of property in the neighborhood or its residences.

On June 5, 1951, the petitioner, the defendant Wiganowske, hereinafter referred to as the defendant, took title to a package store at 35 Oak Street. He applied to the defendant board for permission to transfer the store to a building at 219 Spruce Street which he and his wife owned. Oak Street runs at right angles to Spruce Street and the two places are approximately two blocks apart. Each is in a business zone wherein the use of buildings for the sale of alcoholic liquors may be permitted. There are numerous liquor outlets within 1000 feet of 219 Spruce Street. The same is true of 35 Oak Street. In his application to the board for the transfer, the defendant asked for a variation of the 1000-foot restriction applying to 219 Spruce Street, stating as his reason that he and his wife owned the property, which had 'an empty store,' and further that 'there is no parking problem in front of this property.'

On July 16, 1951, the board granted the defendant's application for the transfer of the 35 Oak Street package store 'to location within 1000 feet of another liquor outlet at 219 Spruce Street,' provided the board was furnished with papers establishing that the former premises would remain vacant for a period of thirty days. The defendant complied with this condition. On September 10, 1951, after the plaintiffs had appealed to the Court of Common Pleas, the board voted to amend its record of the above meeting by adding: 'Reasons for granting: There will be no increase in the number of liquor outlets, it being merely a transfer from one location to another. (2) There is considerable hardship involved by reason of the applicant's ownership of the proposed location and inability to use same for any profitable enterprise. (3) There is a physical hardship alleged by the applicant by reason of a health condition.'

The store at 219 Spruce Street has an area twelve by seventeen and one-half feet and is one part of an original store which the defendant divided into two. Three steps lead into it from the sidewalk. It is similar to stores in many other business buildings in the immediate vicinity. In spite of the defendant's efforts to rent this store, it has been vacant for approximately 75 per cent of the time since 1940. The 35 Oak Street property is nearer the business center of Manchester and has more liquor outlets within a radius of 1000 feet than 219 Spruce Street has. Traffic and parking conditions are more congested in the vicinity of the former location than in that of the latter. The plaintiffs, who are owners of nearby homes as well as competitors of the defendant, are residents, taxpayers and electors of Manchester.

The gist of the court's subordinate conclusions supporting its ultimate conclusion is: (1) There was no evidence of unusual difficulty or unreasonable hardship within the terms of article 5, § 5(4). (2) The plaintiffs' residential property would be adversely affected by the variance. (3) The plaintiffs as landowners, taxpayers and electors are aggrieved and entitled to appeal. (4) Financial hardship does not justify the granting of a variance under the zoning regulations. The court's ultimate and controlling conclusion is that the board acted arbitrarily and illegally and abused the discretion reposed in it.

The brief of the defendant states that the first of the two issues on this appeal is whether the court erred in concluding that the plaintiffs are aggrieved within the meaning of § 160b of the 1951 Cumulative Supplement to the General Statutes and so are entitled to appeal. He urges that in admitting the testimony of the plaintiffs that they are Manchester taxpayers, landowners and electors the court violated the best evidence rule and so committed error. It is further claimed that this leaves the finding of these facts unsupported and that it must be stricken out. The defendant's claim overlooks the distinction which exists in a case involving ownership of land between the proof which is essential where the question of title is directly in issue and that which is essential where it is only collaterally involved. The best evidence rule 'applies when the issue of title or ownership is directly involved, and not when it is collaterally involved, in which case a prima facie right of ownership may be established by parol evidence from one qualified to speak.' Mathews v. Livingston, 86 Conn. 263, 273, 85 A. 529, 533; see 4 Wigmore, Evidence (3d Ed.) § 1246. As Wigmore points out, ordinarily 'where the terms of a document are not in actual dispute, it is inconvenient and pedantic to insist on the production of the instrument itself.' 4 Wigmore, op.cit., p. 482. Furthermore, as was observed in the Mathews case, if testimony as to ownership upon a collateral issue is disputed it can easily be contested. This the defendant made no attempt to do. The question of title was only collaterally involved in the present case, because the decision of the case would not conclusively determine whether the plaintiffs were the owners of the properties concerning which they testified. Abundant authority supports the court's ruling in allowing the testimony to prove ownership. Shanks v. Robertson, 101 Kan. 463, 464, 168 P. 316, 1 A.L.R. 1140; State ex rel. Walton v. Superior Court, 18 Wash.2d 810, 822, 140 P.2d 554; In re Mingo Drainage District, 267 Mo. 268, 281, 183 S.W. 611; Littlefield v. Bowen, 90 Wash. 286, 291, 155 P. 1053; 20 Am.Jur. 368, § 408, and see p. 258; note, 1 A.L.R. 1143; 4 Wigmore, op.cit., § 1254 and n. 1. For like reasons the court properly admitted the testimony of the plaintiffs that they were also taxpayers and electors. The defendant further contends that, even though the plaintiffs were landowners, taxpayers and electors in the town, since they were competitors they could not be parties 'aggrieved' within § 160b. If the sole basis of their alleged grievance was that they were competitors of the defendant, they would not qualify as aggrieved persons. Benson v. Zoning Board of Appeals, 129 Conn. 280, 284, 24 A.2d 389. They do come within the statute as owners of residential property in the vicinity. Kamerman v. LeRoy, 133 Conn. 232, 237, 50 A.2d 175. The court's finding of subordinate facts is sustained by the evidence and warrants its conclusion that the plaintiffs were aggrieved by the decision of the board.

The defendant's brief states that the other issue is whether the court erred in concluding that the board abused its discretion...