Hlavati v. Board of Adjustment of City of New Britain

• Decision Date: 29 July 1955
• Citation: 142 Conn. 659,116 A.2d 504
• Parties: John J. HLAVATI v. BOARD OF ADJUSTMENT OF THE CITY OF NEW BRITAIN et al. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 504

116 A.2d 504

142 Conn. 659

John J. HLAVATI v. BOARD OF ADJUSTMENT OF THE CITY OF NEW BRITAIN et al.

Supreme Court of Errors of Connecticut.

July 29, 1955.

Joseph E. Klau and David M. Shea, Hartford, with whom, on the brief, were John M. Bailey and Alfred F. Wechsler, Hartford, for the appellant (plaintiff).

Irving S. Ribicoff, Hartford, with whom, on the brief, were Leo V. Gaffney, Stamford, Louise H. Hunt, and Norris L. O'Neill, Hartford, for the appellee (defendant First National Stores, Inc.); on the brief also was John L. Ericson, New Britain, for the appellees (named defendant et al.).

Before BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ., and PHILLIPS, Superior Court Judge.

WYNNE, Associate Justice.

This is an appeal from a judgment of the Court of Common Pleas dismissing the plaintiff's appeal from the board of adjustment of New Britain. This body granted a special exception to First National Stores, Inc., to allow the sale of beer under a grocery store beer permit at a new location in New Britain.

The facts are as follows: First National Stores, Inc., hereinafter called the defendant, petitioned for a special exception to allow the sale of beer under a grocery store beer permit at 703 West Main Street, New Britain. The defendant had moved to this address from 445 West Main Street, where it had held such a permit. The new premises were more than 750 feet from the old and were within 1500 feet of the premises of a holder of a grocery store beer permit. Consequently, the new premises did not qualify for a transfer under the zoning ordinance. New Britain Zoning Ordinances, § 11A (1953). On September 8, 1953, a hearing was held on the defendant's petition. On October 1, 1953, at an executive session, the board of adjustment granted a special exception. On January 20, 1954, the common council of the city adopted a resolution approving the granting of the special exception, and this action was approved by the mayor. On April 12, 1954, after the present appeal to the Court of Common Pleas was taken, the board of adjustment amended its minutes to include its reasons for its action.

In addition to the foregoing facts, it was stipulated in court that both the old and the new location of the defendant are in a business B zone, where grocery store beer permits are expressly allowed. It was also conceded that the members of the board of adjustment had personal knowledge of both locations.

The basic question is whether the board of adjustment acted arbitrarily, illegally or in abuse of its discretion. The plaintiff's first claim is that the defendant's petition was in reality a request for a variance and that the board erred in treating it as a petition for a special exception. In New Britain, the common council of the city is the zoning authority. 19 Sp.Laws, p. 1068, § 26. It adopted a zoning ordinance on September 16, 1925. New Britain Zoning Ordinances (1953). The act establishing the common council as the zoning authority was amended in 1931. The amendment gave to it power by ordinance to permit the board of adjustment to grant special exceptions to the terms of the zoning ordinance as to use of property in the several zoning districts of the city in all cases in which the conditions of real estate relating to zoning are not the same nor substantially the same throughout the entire zoning district, or if the strict execution of the law presents practical difficulties, or it by reason of growth, change, development or other circumstances the granting of the exception shall, in the judgment of the board, be not detrimental to the zoning district or to a contiguous district. 21 Sp.Laws, p. 193, § 26. An appeal from the decision of the board of adjustment was allowed. Ibid. The pertinent terms of the ordinance relating to exceptions are set forth in a footnote. ¹

In distinguishing a variance from an exception, we have said: 'Speaking broadly, then, a variance is authority extended to the owner to use his property in a manner forbidden by the zoning enactment. An exception * * * allows him to put his property to a use which the enactment expressly permits.' Mitchell Land Co. v. Planning & Zoning Board of Appeals, 140 Conn. 527, 532, 102 A.2d 316, 319; Service Realty Corporation v. Planning & Zoning Board of Appeals, 141 Conn. 632, 636, 109 A.2d 256. The gist of the plaintiff's argument is that the circumstances require the application of the ordinance pertaining to the granting of variances and that the decision of the board cannot be sustained because there was no practical difficulty or unnecessary hardship involved. The zoning ordinance (§ 11A) permits the sale of alcoholic liquors in a business B or C or an industrial zone if the location is no closer than 1500 feet to another liquor outlet. It also allows a permittee using a building for the dispensing of alcoholic liquor to move his business to another location provided it is not more than 750 feet away and not less than 1500 feet from other permit premises. In the instant case, the defendant was not seeking to use its new location for a purpose not permitted by the zoning regulations. The new store was in a business B zone, where the sale of alcoholic beverages was allowed. The ordinance empowers the board, by the process of what it calls an exception, to permit the defendant to put its new store to a use allowed in the zone where it is located even though this new location is more than 750 feet from the old location and is less than 1500 feet from another liquor outlet. The ordinance authorizes such action where the board finds that by reason of growth, change, development, or other circumstances, the granting of the exception would not be detrimental to the zoning district or to a contiguous district. In short, the conditions under which the permit may be allowed are contained in the ordinance. See Mitchell Land Co. v. Planning & Zoning Board of Appeals, 140 Conn. 527, 532, 102 A.2d 316. The board acted legally in holding that the circumstances required the application of the regulations pertaining to exceptions rather than the regulations pertaining to variances, and the court, on appeal, was correct in sustaining the action of the board on this feature of the case.

The second claim of error advanced by the plaintiff is that the record of the hearing does not support the granting of a special exception. The minutes of the hearing conducted by the board and of its executive session after the public hearing was closed were before the court. The original minutes were devoid of any statement expressing the reason why the board permitted the exception. This omission was met by a later amendment, which stated: 'The reason for the granting of the petition of the First National Stores was for the general welfare of the public in that area brought about by the tremendous increase in population; and it was for their use and good as well as for the safety and convenience.' The amendment in the language employed is certainly not beyond criticism. It does, however, state a reason for the board's action. That reason was the general welfare of the public in the area. It was inartificial and inept to modify the reason by saying it was brought about by 'the tremendous increase in population.' Even if it could be assumed that this statement meant that the need for the special exception to serve the general welfare arose from an increase in population and the...