First Church of Christ, Scientist v. Friendly Ice Cream

• Decision Date: 01 June 1971
• Citation: 286 A.2d 320,161 Conn. 223
• Parties: FIRST CHURCH OF CHRIST, SCIENTIST et al. v. FRIENDLY ICE CREAM et al.
• Court: Connecticut Supreme Court

Page 320

286 A.2d 320

161 Conn. 223

FIRST CHURCH OF CHRIST, SCIENTIST et al. v. FRIENDLY ICE CREAM et al.

Supreme Court of Connecticut.

June 1, 1971.

Sidney Zucker, New Britain, for appellants (plaintiffs).

William J. Butler, with whom was Aaron L. Gersten, Hartford, for appellee (named defendant).

No appearance for appellees (defendant Salvio and others).

Before HOUSE, THIM, RYAN, SHAPIRO and LOISELLE, ^* JJ.

LOISELLE, Associate Justice.

This is an appeal from a judgment of the Court of Common Pleas denying the plaintiffs the injunctive and other relief which they sought.

The defendant, Friendly Ice Cream, is the owner of certain property on West Main Street in the city of New Britain which is adjacent to the property of the plaintiff First Church of Christ Scientist and opposite the properties of the plaintiffs Temple B'Nai Israel and St. George Orthodox Church. All of the aforementioned properties are within a zone designated as an OP (office-public buildings) district under the zoning ordinances of the city of New Britain. On August 26, 1968, an application for a permit to construct a restaurant on the property was made by Friendly Ice Cream. At the time the application was made a restaurant was a permitted use in an OP district under § 130-10-120 of the New Britain zoning ordinances. On September 18, 1968, certain amendments to the zoning ordinances were enacted by the common council. The effect of these amendments was to remove a restaurant use from the list of permitted uses in an OP district under § 130-10-120 and make such a use in an OP district a special exception under a newly created § 130-20-150. Subsequently, on October 17, 1968, the application of Friendly Ice Cream for a permit to construct a restaurant on its property was granted by the defendant building commission of the city of New Britain.

The parties here neither briefed nor argued the effect of an application made while the use was permitted and before the effective date of a change of the ordinance and hence we do not consider the question of retroactivity. The trial court, in essence, upheld the issuance of the building permit to Friendly Ice Cream for the construction of a restaurant in an OP district on the ground, among others, that the amendments to the zoning ordinances which had the effect of changing a restaurant use in an OP district from a permitted use to a special exception were not validly enacted in accordance with procedures set forth in the charter of the city of New Britain. The plaintiffs have assigned error in the court's conclusion that the amendments were invalid because of failure to comply with the provisions of §§ 3134 and 3135 of the charter of the city of New Britain. The court's conclusions are to be tested by the finding and must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case. Johnston Jewels, Ltd. v. Leonard, 156 Conn. 75, 79, 239 A.2d 500.

The city of New Britain operates under a special chater granted by the General Assembly in 1961. 30 Spec.Acts 404, No. 420. The common council of New Britain can enact and amend the zoning ordinances pursuant to this special charter.

Section 3135 of the charter of New Britain provides that the zoning ordinances may be amended 'but only after notice and public hearing, as hereinbefore provided for the (establishment of) initial districts and regulations'. Section 3134 of the charter provides that a public hearing with respect to the establishment of initial districts and regulations must be held and that '(n) otice of the time and place of such hearings shall be publicized in the form of a legal advertisement appearing in a newspaper having a substantial circulation in said city at least twice at intervals of not less than two days, the first not more than fifteen days nor less than ten days, and the last not less than two days, before such hearing.' Compliance with the charter provision concerning notice and public hearing was a prerequisite to any valid and effective amendment of, or a change in, the zoning regulations. See Maher v. Town Planning & Zoning Commission, 154 Conn. 420, 425, 226 A.2d 397; Aurora v. Zoning Board of Appeals, 153 Conn. 623, 624, 220 A.2d 277; Lunt v. Zoning Board of Appeals, 150 Conn. 532, 536, 191 A.2d 553; Steiner, Inc. v. Town Plan & Zoning Commission, 149 Conn. 74, 76, 175 A.2d 559; Celentano, Inc. v. Board of Zoning Appeals, 149 Conn. 671, 674, 184 A.2d 49; see, generally, 1 Yokley, Zoning Law and Practice (3d Ed.) § 7-9; note, 96 A.L.R.2d 449, 471.

The following facts found by the court relevant to the issue of whether there was compliance with the notice provisions of § 3134 are undisputed: On July 17, 1968, the aforementioned amendments to the zoning ordinances were introduced in the common council of the city of New Britain; the proposed amendments were referred to the city plan commission for a report in accordance with the procedure in the city charter; on August 6, 1968, the city plan commission held a hearing on the amendments and reported favorably on them; on August 20, 1968, and on August 29, 1968, the zoning committee of the common council published in a New Britain newspaper notice of a public hearing of the zoning committee to be held on September 3, 1968, regarding the proposed amendments.

The court further found that the public hearing, the notice of which provided it was to be held on September 3, 1968, was not held until September 9, 1968. The plaintiffs have not attacked this finding. They have assigned error in the trial court's refusal to find a certain paragraph of their draft finding to the effect that the...