Housatonic Terminal Corp. v. Planning and Zoning Bd. of City of Milford

• Decision Date: 08 April 1975
• Citation: 362 A.2d 1375,168 Conn. 304
• Court: Connecticut Supreme Court
• Parties: HOUSATONIC TERMINAL CORPORATION et al. v. PLANNING AND ZONING BOARD OF the CITY OF MILFORD.

Page 1375

362 A.2d 1375

168 Conn. 304

HOUSATONIC TERMINAL CORPORATION et al. v. PLANNING AND ZONING BOARD OF the CITY OF MILFORD.

Supreme Court of Connecticut.

April 8, 1975.

Edgar W. Bassick, III, Bridgeport, with whom, on the brief, was Donal A. Cahill, Jr., Bridgeport, for appellants (plaintiffs).

Leo P. Carroll, Milford, for appellee (defendant).

Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.

BOGDANSKI, Associate Justice.

This appeal concerns the defendant board's denial of the plaintiffs' application for a special permit to establish an asphalt manufacturing plant on certain property located in the city of Milford and zoned for heavy industrial uses. On appeal, the Court of Common Pleas concluded that the board did not act illegally, arbitrarily or in abuse of its discretion and dismissed the appeal. From the judgment rendered, and after our grant of certification, the plaintiffs appealed to this court assigning error in the conclusions of the court. The plaintiffs claim that the reasons given by the board for the denial of the application are not supported by the record, and that since an asphalt plant is a permitted use in a heavy industrial zone, the board had no alternative but to grant the permit.

In denying the plaintiffs' application, the board stated its reasons as follows: '(1) Uncontrolled heavy truck traffic will be generated on streets in the vicinity of this proposed plant. Some of these streets traverse residential areas and such traffic would create possible hazards and a public nuisance; (2) site plans and testimony received at the public hearing conflict with each other concerning the methods of movement of dust-producing materials on the site itself.'

The trial court decided the appeal on the record returned by the board and made no finding of facts. We therefore consult the memorandum of decision to ascertain the conclusions on which the trial court based its judgment. A.P. & W. Holding Corporation v. Planning & Zoning Board, Conn.,355 A.2d 91; Miklus v. Zoning Board of Appeals, 154 Conn. 399, 400, 225 A.2d 637. The court correctly confined its inquiry to two issuse: Whether the reasons given by the board were reasonably supported by the record; and whether those reasons were pertinent considerations which the board was required to apply under the applicable zoning regulations. Holt-Lock, Inc. v. Zoning and Planning Commission, 161 Conn. 182, 190, 286 A.2d 299. Both of the above issues were answered in the affirmative.

In testing the correctness of those conclusions, we review the facts in the record on which they are based. 'That record is the one submitted to us pursuant to Practice Book § 647 as it may be supplemented by any relevant portions of the record before the board . . . which are printed in the appendices to the briefs pursuant to Practice Book § 719.' Miklus v. Zoning Board of Appeals, supra, 154 Conn. 401, 225 A.2d 638. Both parties filed extensive appendices to their briefs on the evidence presented to the board at the public hearing. While that evidence was conflicting, there was testimony that at least seventy-five trucks per day would be entering and leaving the plaintiffs' proposed asphalt plant; that those trucks, driven by independent operators, could not be controlled by the plaintiffs; and that they would be using highways traversing residential areas. Moreover, while the plaintiffs' witnesses testified that dust-producing materials would be moved by covered or underground conveyor, their site plan did not disclose any provisions for such dust-prevention measures. In reviewing that evidence, the trial court could not substitute its own judgment for that of the zoning authority. Horvath v. Zoning Board of Appeals, 163 Conn. 609, 316 A.2d 418; Sobol v. Planning & Zoning Commission, 158 Conn. 623, 262 A.2d 185. In light of the above, the trial court was correct in concluding that the reasons given by the board were reasonably supported by the record.

The only question remaining is whether those reasons were pertinent considerations on...