Levinsky v. Zoning Commission of City of Bridgeport

• Decision Date: 11 December 1956
• Citation: 127 A.2d 822,144 Conn. 117
• Court: Connecticut Supreme Court
• Parties: Maurico LEVINSKY et al. v. ZONING COMMISSION OF the CITY OF BRIDGEPORT et al. Supreme Court of Errors of Connecticut

Page 822

127 A.2d 822

144 Conn. 117

Maurico LEVINSKY et al. v. ZONING COMMISSION OF the CITY OF BRIDGEPORT et al.

Supreme Court of Errors of Connecticut.

Dec. 11, 1956.

Austin K. Wolf, Bridgeport, with whom were Martin F. Wolf, Bridgeport, and, on the brief Herbert L. Cohen, Bridgeport, for the appellants (plaintiffs).

Albert L. Coles, Bridgeport, with whom, on the brief, was James J. O'Connell, Bridgeport, for the appellee (defendant Culhane).

John V. Donnelly, Bridgeport, for the appellee (named defendant).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

DALY, Associate Justice.

The plaintiffs appealed to the Court of Common Pleas from the action of the named defendant in changing the zoning of property located on Boston Avenue in Bridgeport. The court rendered judgment dismissing the appeal. The plaintiffs have appealed from that judgment.

The land in question, hereinafter referred to as the Fitch property, has a frontage of 569 feet on the north side of Boston Avenue commencing 171 feet easterly of Dean Place and extending easterly to within 385 feet of Noble Avenue. It has a depth of about 672 feet on its east side and about 495 feet on its west side. The northerly boundary runs about 455 feet from east to west. The property is bounded on the south by the north street line of Boston Avenue, on the west by properties located on the east side of Dean Place, on the north by a line about 210 feet south of and parallel to the south line of Hawthorne Street and on the east and northeast by the properties of Sooren Hovhannissian and the German Evangelical Lutheran St. Paul's Church. It has been is a business 1 zone for a depth of 100 feet since the adoption of zoning in Bridgeport in 1926. The remaining portion of it has been in a residence B zone. The defendant Frank J. Culhane procured an option to purchase the property and applied to the commission for a rezoning of the entire tract to business 3. He was acting for Food Fair Stores, Inc. It desires to erect a shopping center on the land at a cost of $500,000. Its plans provide for more than the required space for off-street parking.

On October 28, 1955, the commission changed the zoning of the entire tract to business 3 except for buffer strips fifty feet wide along its northerly boundary and twenty feet wide along its westerly boundary. In granting the application the commission required the owner to agree to landscape the fifty-foot buffer strip and inclose it within a link wire fence and to agree that no entrance to or exit from the property is to be had on Hawthorne Street. The surface of the land at the easterly boundary is eight or ten feet below the surface of the land of the abutting owner. The applicant has agreed that a retaining wall will be erected on the easterly boundary along the rear of the church property, with a protective fence on the top of the wall.

Hawthorne Street, a residential street, is 700 or 800 feet long and runs west from Noble Avenue to Dean Place. The lots on the south side are in a residence A zone for a depth of 100 feet and in a residence B zone for the remaining depth. Each lot is about 200 feet deep and 60 feet wide. Some of them are bounded on the south by the Fitch property. Dean Place runs south from Hawthorne Street to Boston Avenue. There are six or seven houses on its east side. The lots on the east side are in a business 1 zone for a distance of 100 feet north from Boston Avenue, in a residence A zone for a distance of 100 feet south from Hawthorne Street, and in a residence B zone from a point 100 feet north of Boston Avenue to a point 100 feet south of Hawthorne Street. The land on the west side of Dean Place, except the 100 feet immediately south of Hawthorne Street, which is in a residence A zone, is zoned for light industrial uses, and at the present time is used for the conduct of various businesses. A large gasoline station is located on the northeast corner of the intersection of Dean Place and Boston Avenue. Between the gasoline station and the Fitch property are a music store and a diner. A commercial floor covering business uses the Hovhannissian property to a depth of approximately 152 feet. The land on the south side of Boston Avenue, opposite the Fitch property, is zoned for business 1 for a depth of 100 feet and for light industrial uses in the rear. This land is used for business purposes. Boston Avenue is a part of route 1A. The plaintiffs' property, located on Noble Avenue adjoining the church property, does not abut on the Fitch property. Their property is bounded on the west by the Hovhannissian property.

The commission heard the interested parties. A large number of exhibits, including maps and photographs, were introduced in evidence at the hearing. The members of the commission visited the premises. In voting to grant the application, the commission, as required by the zoning regulations, stated upon its records the reasons for its action. Bridgeport Zoning Regs., c. 21, § 1 (1949). Two of the reasons stated are the following: 'The Land Use Plan of the City of Bridgeport, as adopted by the Planning Commission on September 30, 1952, contemplates the establishment of local shopping centers along Boston Avenue and along East Main Street to the north of the subject property to serve residential neighborhoods 11 and 27, and is so shown on the plan. The specific locations of these local shopping areas are not designated but are left in the plan to the discretion of the Zoning Commission. Reference is made to this policy in the text of the plan and the Zoning Commission believes that this change of zone is fully within the concept of the basic principles set forth in the Introduction on Page 2 and is even more specifically recommended on Page 9, Paragraph 3 which discusses the very type of integrated shopping center planned upon the subject property. * * * The plan also contemplates a planned industrial area in the Pequonnock River Valley to the west, northwest and southwest of the subject property and the Zoning Commission believes that, because of present development and trends, the east side of Dean Place abutting upon the said subject property is not now desirable residential property and will, in the future become a part of either the business area contemplated by this change of zone or the industrial area immediately to its west.'

The appeal was presented to the trial court on the record of the hearing before the commission. The court visited the location in question with counsel. In their first assignment of error, the plaintiffs claim that the court erred in denying their request for a finding of facts. Since this assignment has not been pressed in their brief, we construe it as abandoned. Somers v. Hill, 143 Conn. 476, 480, 123 A.2d 468; Maltbie, Conn.App.Proc., § 165.

The plaintiffs contend that the action of the commission was in violation of the comprehensive plan, which, they say, is shown by the master plan of land use adopted by the city planning...