Hovanesian v. Zoning Bd. of Appeals of City of New Britain

• Decision Date: 23 November 1971
• Parties: Thomas HOVANESIAN et al. v. ZONING BOARD OF APPEALS OF the CITY OF NEW BRITAIN.
• Court: Connecticut Supreme Court

Page 896

290 A.2d 896

162 Conn. 43

Thomas HOVANESIAN et al. v. ZONING BOARD OF APPEALS OF the CITY OF NEW BRITAIN.

Supreme Court of Connecticut.

Nov. 23, 1971.

Charles G. Karanian, New Britain, for appellants (plaintiffs).

Andrew S. Aharonian, City Atty., for appellee (defendant).

Before HOUSE, C.J., and COTTER, THIM, SHAPIRO and LOISELLE, JJ.

COTTER, Associate Justice.

The court rendered a summary judgment in favor of the defendant zoning board of appeals of the city of New Britain. In support of its motion for a summary judgment the defendant filed an opinion by the trial court in an earlier appeal brought to the Court of Common Pleas, concerning the action of the defendant board taken in a 1966 matter, as well as certain affidavits and 'documents.' In the present case the plaintiffs in November, 1969, filed an application for a variance of certain sections of 'the building zone ordinances' for the premises located at 5 Nency Road and 697 Osgood Avenue, New Britain, to 'permit offices,' claiming that a strict application of the regulations would produce undue hardship. Under the paragraph concerning undue hardship. Under the paragraph concerning undue hardship the statement appears: 'See attached letter.' There is no letter in the record before this court.

At this point a brief discussion of the applicable statutes is pertinent. Section 8-6 of the General Statutes prescribes the power of a zoning board of appeals to determine and vary the application of a zoning ordinance in harmony with its general purpose and intent, with due consideration for conserving the public health, safety, convenience, welfare and property values with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such ordinance would result in exceptional difficulty or unusual hardship, so that substantial justice will be done and the public safety and welfare secured. Section 8-7 of the General Statutes provides that whenever a zoning board of appeals grants or denies any special exception or variance in the zoning regulations applicable to any property it shall state on its records the reason for its decision. Section 8-7a provides that evidence shall be taken at such a hearing by a stenographer or shall be recorded by a sound- recording device. Section 8-8 of the General Statutes sets up the procedures which must be followed in appeals which are taken from the zoning board of appeals to the Court of Common Pleas and provides in part that: 'The court, upon such appeal, shall review the proceedings of said board and shall allow any party to such appeal to introduce evidence in addition to the contents of the record of the case returned by said board if the record does not contain a complete transcript of the entire proceedings before said board, including all evidence presented before said board, including all evidence presented to it, pursuant to section 8-7a, or if, upon the hearing upon such appeal it appears to the court that additional testimony is necessary for the equitable disposition of the appeal.' Section 8-8 further states that appeals from the decisions of said board shall be privileged cases to be heard by the court, unless cause is shown to the contrary, as soon after the return date as is practicable.

It is obvious in view of the procedures enumerated that there is no impelling necessity to pursue the summary judgment procedure in a case of this nature. In the case at bar, the plaintiffs' application for a variance was on the agenda at a meeting of the defendant board on December 29, 1969, and '(a)t the commencement of the hearing it was announced by the chairman of the board that they would not have a hearing on the petition for variance but would only hear evidence as to whether or not this was a new matter or a re-hearing.' The zoning board of appeals denied the plaintiffs' application on January 8, 1970. The plaintiff appealed from that decision to the Court of Common Pleas. The defendant filed an answer and four special defenses, together with what it calls exhibits which purport to be 'copies . . . of the proceedings pertinent to the record.' It was evidently intended that these exhibits meet the requirements of § 8-8 of the General Statutes that the board 'return either the original papers acted upon by it and constituting the record of the case appealed from, or certified copies thereof.'

The defendant included in its account of 'the proceedings pertinent to the record' a statement that one of the exhibits returned to the trial court was a '(r)ecord of the transcript of evidence taken in the hearing held on December 29, 1969 (On file as exhibit at hearing held before Judge Sponzo, April 24, 1969 in clerk's office).' We do not have the foregoing in the record or file before the Supreme Court, nor can the clerk of the Court of Common Pleas or the clerk of the Supreme Court locate such a transcript. It is also difficult to understand how the record of the transcript of evidence taken in a hearing held on December 29, 1969, could be used as an exhibit at a hearing held in April, 1969, some nine months before the December hearing was held. The return of the board did not contain the minutes of the executive meeting of the board, if one was held, at which the application was denied. The plaintiffs alleged that on or about January 8, 1970, the zoning board of appeals filed a notice that the plaintiffs' application was denied. This allegation was admitted by the...