Perdue v. Zoning Board of Appeals of City of Norwalk

• Decision Date: 08 February 1934
• Citation: 118 Conn. 174,171 A. 26
• Court: Connecticut Supreme Court
• Parties: PERDUE et al. v. ZONING BOARD OF APPEALS OF CITY OF NORWALK.

171 A. 26

118 Conn. 174

PERDUE et al. v. ZONING BOARD OF APPEALS OF CITY OF NORWALK.

Supreme Court of Errors of Connecticut.

February 8, 1934

Appeal from Superior Court, Fairfield County; Newell Jennings Judge.

Appeal by Mary B. Perdue and others from the action of the zoning board of appeals of the city of Norwalk in granting a gasoline and service station license, taken to the court of common pleas and transferred to the superior court, where the issues were tried to the court; judgment affirming said action, from which the plaintiffs appeal.

No error.

Nehemiah Candee and Robert M. Wolfe, Jr., both of South Norwalk, for appellants.

William F. Tammany, of South Norwalk, for appellee.

Argued before MALTBIE, C.J., and HAINES, SIMPSON, BANKS, and AVERY JJ.

SIMPSON, Judge.

This is an appeal from the granting, by the zoning board of appeals of the city of Norwalk, to one L. J. Currie, of a certificate of approval of a location of a station on West avenue for the sale of gasoline. One of the appellants, and the wife of the other, are owners of property in the vicinity of the proposed station. The appellants have filled nineteen assignments of error. It is not necessary to consider all these seriatim, as many of them overlap and are repetitions, contrary to our rules of procedure, which require that assignments of error be so made as to avoid unnecessary prolixity of repetition. Rules for Appellate Procedure, § 16. The appellants in their brief have, however, attempted to classify the assignments of error in groups, and we will follow this course so far as necessary. The appellants' claims, aside from two rulings on evidence and the court's refusal to permit the filling of an amendment to the reasons of appeal, which will be considered separately, are that the court erred in dismissing the appeal and in ruling and holding that the zoning board of appeals gave due consideration to the relevant facts prescribed by the statute before granting the permit for the location of the gasoline filling station; that the zoning board of appeals made no finding of the facts, upon which its action was based, as it is claimed that statute requires, and also because the board did not and could not find " that public convenience and necessity required the sale of gasoline or other products at the proposed location." The statute in question is printed in the footnote. ^[1]

In reference to these claims, the trial court has found that the board held a hearing on the application of Currie, and " legally advertised and gave due notice of the hearing on said petition" ; visited the site of the proposed location of the gasoline station and, following such visit and in connection with the hearing on the application of Currie, found that the location satisfied all legal requirements and thereupon issued its approval of the application. The court further found that, though the board did not make a formal finding of facts following the hearing on the application, it " did consider the proximity of schools, churches and other places of public gatherings in the vicinity of said proposed location, of intersecting streets, of the sufficiency of number of similar stations in said vicinity, of traffic conditions over the highway, and the effect of public travel, and it also considered the question of public convenience and necessity and it also considered whether the proposed location would imperil the safety of the public as a traffic hazard, but after consideration of such questions, issued its approval of said application and embraced its consideration of said questions and its conclusions in the finding that said location ‘ met all legal requirements." Unless these findings of the court can be materially corrected, the first stated claim of appellants will have to be overruled.

It appears from the finding of the court, to which no objection is made, and from the minutes of the zoning board introduced by the appellants, that the board held two hearings on the petition of Currie, one on October 6, 1932, and an adjourned meeting thereof on October 20, 1932. These appellants and others appeared at the meetings of the board and were fully heard respecting the granting of the certificate of approval of the location. At the meeting on October 20th, Dr. Perdue was represented by counsel, who filed with the board a copy of the statute in question, particularly calling to the attention of the board the provisions thereof. The minutes of the meetings of the zoning board of appeals are obviously very far from a complete transcript of the proceedings before it. Yet, even so, it appears that the appellants raised substantially all the questions which the statute requires a zoning board to consider before granting a certificate of approval. At the conclusion of the hearing on October 20th, Mr. Taylor (presumably a member of the board) said: " This section is zoned for business. We have been up there and looked over the whole situation. It seems to me that the applicant has met every requirement. It is a straight application and I move that it be granted." Dr. Davenport, also presumably a member of the zoning board, seconded the motion. It does not appear from the minutes that the motion was formally passed, or that a quorum was present, but it...