A. P. & W. Holding Corp. v. Planning and Zoning Bd. of City of Milford

• Decision Date: 27 August 1974
• Citation: 167 Conn. 182,355 A.2d 91
• Court: Connecticut Supreme Court
• Parties: The A.P.& W. HOLDING CORPORATION et al. v. PLANNING AND ZONING BOARD OF the CITY OF MILFORD et al.

Page 91

355 A.2d 91

167 Conn. 182

The A.P.& W. HOLDING CORPORATION et al. v. PLANNING AND ZONING BOARD OF the CITY OF MILFORD et al.

Supreme Court of Connecticut.

Aug. 27, 1974.

Richard H. Lynch, Milford, for appellants (plaintiffs).

Kenneth J. Damato, Bridgeport, with whom, on the brief, was Joseph E. Meuser, Bridgeport, for appellee (defendant Howard C. Merk).

No appearance for the named defendant.

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

BOGDANSKI, Associate Justice.

This appeal concerns two adjoining parcels of land owned by the defendant Howard C. Merk and referred to as parcel 8A and parcel 12 located at the intersection of Old Gate Lane and Woodmont Road in the city of Milford. The defendant Merk had constructed a motel on parcel 12, a use authorized by a special permit issued by the defendant planning and zoning board in 1967. On June 5, 1972, Merk applied to the defendant board for an amendment to this special permit, seeking to reduce the land area of parcel 12 from 2.75 acres to 1.78 acres. Thereafter, on July 17, 1972, Merk filed a second application 'for an AMENDMENT TO SPECIAL PERMITS to establish or construct a Automatic Truck Wash . . . on property described as . . . Woodmont Road, . . . BLOCK #810 Parcel #8A & 12.' The land area described in this second application was 1.81 acres, and included all of parcel 8A and that portion of land which Merk sought to have removed from parcel 12 in his June application. On September 26, 1972, the board held a public hearing, and thereafter voted to approve both amendments to the special permit.

The plaintiffs, abutting property owners, appealed from those those actions to the Court of Common Pleas, which dismissed the appeal. After our grant of certifivation, the plaintiffs appealed to this court, assigning error in the conclusion of the court that the board did not act illegally, arbitrarily or in abuse of its discretion. The remaining assignments of error have not been briefed and are treated as abandoned. First Hartford Realty Corporation v. Plan & Zoning Commission, 165 Conn. 533, 535, 338 A.2d 490; Maltbie, Conn. App.Proc. § 327.

The defendant planning and zoning board has 'all powers and duties conferred or imposed by the general statutes on planning and zoning (commissions) . . ..' 29 Spec.Acts, No. 139, art. IV § 8. 'Although the . . . defendant is designated a 'board' in Milford, usually such a body authorized to enact zoning regulations, as this one is, has been legally designated a 'commission.' See General Statutes §§ 8-1, 8-4a.' Malafronte v. Planning & Zoning Board, 155 Conn. 205, 207 n.1, 230 A.2d 606, 608. In adopting or amending regulations, the board acts in a legislative capacity pursuant to the delegated authority contained in title 8, chapter 124 of the General Statutes. First Hartford Realty Corporation v. Plan & Zoning Commission, supra, 165 Conn. 533, 540, 338 A.2d 490; Weigel v. Planning & Zoning Commission, 160 Conn. 239, 245, 278 A.2d 766; Beach v. Planning & Zoning Commission, 141 Conn. 79, 84, 103 A.2d 814. Acting in that legislative capacity, the board has adopted zoning regulations including provisions for special permit applications.

Chapter IV § 16.B of the zoning regulations of the city of Milford (1968) authorizes the board to issue special permits provided that specified standards are satisfied. ¹ When considering an application for a special permit, the board acts in an administrative capacity. Farina v. Zoning Board of Appeals, 157 Conn. 420, 422, 254 A.2d 492. The terms 'special permit' and 'special exception' have the same legal import and can be used interchangeably. Beckish v. Planning & Zoning Commission, 162 Conn. 11, 15, 291 A.2d 208; Summ v. Zoning Commission, 150 Conn. 79, 87, 186 A.2d 160. A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations. Beckish v. Planning & Zoning Commission, supra; WATR, Inc. v. Zoning Board of Appeals, 158 Conn. 196, 200, 257 A.2d 818. The Proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the 'conditions necessary to protect the public health, safety, convenience and property values.' General Statutes § 8-2; Anastasi v. Zoning Commission, 163 Conn. 187, 190, 302 A.2d 258. Acting in this administrative capacity, the board's function is to determine whether the applicant's proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and the statute are satisfied. WATR, Inc. v. Zoning Board of Appeals, supra; Farina v. Zoning Board of Appeals, supra.

Merk's two applications for the special permit amendments stated that they were brought under chapter IV § 16 of the zoning regulations. Chapter IV § 16.F states that '(a)pplications for Special Permit plan amendments which are necessitated by filed conditions or which are deemed to be in the public interest may be made to the Planning and Zoning Board. Amendments . . . may be granted after Board review provided it shall find that the stipulations set forth in . . . (§ 16.B (see footnote 1)) are complied with.'

In granting Merk's applications for special permit amendments, the defendant board was acting in its administrative capacity, and its actions were governed by chapter IV § 16.F of the zoning regulations. Wasicki v. Zoning Board, 163 Conn. 166, 171, 302 A.2d 276. The board was powerless to act unless it first found that the amendments were: (1) 'necessitated by field conditions' or (2) 'deemed to be in the public interest.' If one of those conditions was found to exist, the board then had to determine whether the proposed amendments satisfied all the standards set forth in chapter IV § 16.B.1-4.

The board gave no reasons for granting the two applications. It is desirable for the zoning authority to state on the record its reasons for its action, since if it does not, the trial court must search the record to find a basis for the action taken. Hovanesian v. Zoning Board of Appeals, 162 Conn. 43, 47, 290 A.2d 896; Ward v. Zoning Board of Appeals, 153 Conn. 141, 144, 215 A.2d 104; Zieky v. Town Plan & Zoning Commission, 15s Conn. 265, 268, 196 A.2d 758. See also General Statutes § 8-3c. "Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons . . .. We, in turn, review the action of the trial court.' Willard v. Zoning Board of Appeals, 152 Conn. 247, 248-249, 206 A.2d 110, 111.' Anastasi v. Zoning Commission, supra, 163 Conn. 191, 302 A.2d 260. The trial court decided the appeal solely on the record returned by the board, and there is no finding. In these circumstances we consult the memorandum of decision to ascertain the conclusions on which the trial court based its judgment. Miklus v. Zoning Board of Appeals, 154 Conn. 399, 400, 225 A.2d 637. In its memorandum of decision, the trial court determined that it was for the board to decide whether the applications were necessitated by field conditions or were deemed to be in the public interest as required by § 16.F; that the board's determination that the granting of the applications would increase the public revenue and create much needed employment in the...