Service Realty Corp. v. Planning and Zoning Bd. of Appeals of Town of Greenwich

• Decision Date: 09 November 1954
• Citation: 141 Conn. 632,109 A.2d 256
• Court: Connecticut Supreme Court
• Parties: SERVICE REALTY CORP. v. PLANNING AND ZONING BOARD OF APPEALS OF TOWN OF GREENWICH. Supreme Court of Errors of Connecticut

Page 256

109 A.2d 256

141 Conn. 632

SERVICE REALTY CORP. v.PLANNING AND ZONING BOARD OF APPEALS OF TOWN OF GREENWICH.

Supreme Court of Errors of Connecticut.

Nov. 9, 1954.

Halford W. Park, Jr., Greenwich, for appellant(defendant).

S. Floyd Nagle, Greenwich, with whom was William C. Strong, Greenwich, for appellee(plaintiff).

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

O'SULLIVAN, Associate Justice.

The basic question posed by this appeal is whether the zoning regulations of the town of Greenwich empower the defendant board to restrict the amount of permissible parking on a lot in a business zone as a condition to the granting of a special exception authorizing use of the premises for an automobile salesroom and a repair garage.

The facts are not in dispute.On April 30, 1952, the plaintiff owned a lot on the westerly side of Indian Field Road in Greenwich.The land was located within a so-called B-L (local business) zone.The lot had a street frontage of 156 feet, ran to a depth of approximately 170 feet, and abutted residential property on the south.On the date mentioned, the plaintiff applied to the defendant board for a special exception to erect on the lot an automobile salesroom and a repair garage.Authorization for these uses was sought under § 10 of the Greenwich building zone regulations quoted in the footnote.¹The board granted the application but imposed the condition, as one of several, that no outside parking upon the lot would be permitted.The plaintiff appealed from that decision to the Court of Common Pleas, which sustained the appeal on the ground that 'it does not appear that the protection of the interests of [the plaintiff's] neighbors requires or justifies that no parking shall be permitted on the plaintiff's land' and that the prohibition of all parking was contrary to § 17 of the regulations.²The court then remanded the matter to the board for further consideration.

Subsequently, the board held another hearing on the plaintiff's application and again granted the special exception but on the modified condition that outside parking on the lot should be restricted to its westerly section.This would provide parking space for twenty-six automobiles.The number of spaces required by § 17 of the regulations, referred to previously, is twenty-two.The condition imposed by the board will prohibit parking in an area containing about 5200 square feet.

The plaintiff again appealed to the Court of Common Pleas, claiming that the board had acted illegally, arbitrarily and in abuse of its discretion in imposing the condition as to parking.From the judgment of the court sustaining that appeal the board has appealed to this court.

The concept of zoning embodies a clash of conflicting forces.On the one hand is the common-law right of a man to use his land as he pleases, as long as that use does not create a nuisance.Monument Garage Corporation v. Levy, 266 N.Y. 339, 344, 194 N.E. 848.On the other hand is the effort of the lawmaking body, acting under the police power, to limit that use in order to promote the health, safety, morals and general welfare of the community.To resolve this conflict in such a manner as to afford necessary flexibility, zoning regulations customarily provide for a board of appeals, empowered, among other functions, to grant variances and special exceptions.Without this authorization to a board of appeals or to some similar agency, it would be difficult, if not impossible, to keep the law 'running on an even keel' and to resist with any assurance of success, attacks upon the constitutionality of the enactment.St. Patrick's Church Corporation v. Daniels, 113 Conn. 132, 139, 154 A. 343.

The regulations of the town of Greenwich follow the pattern of the aforementioned custom.They make provision for the defendant board and they set forth its powers.Greenwich Building ZoneRegs., § 28(1952).Among those enumerated therein is the power to grant variances and special exceptions.The case at bar is concurned solely with the latter.In a recent case the distinction between the two was recognized and explained.Mitchell Land Co. v. Planning & Zoning Board of Appeals, 140 Conn. 527, 531, 102 A.2d 316.We stated, 140 Conn. at page 532, 102 A.2d at page 318, that a variance is authority extended to the owner to use his property in a manner forbidden by the zoning enactment, while an exception allows him to put his property to a use which the enactment expressly permits.The right to attach reasonable conditions to the grant of a variance is not dependent upon express authorization from the lawmaking body.1 Yokley, Zoning Law & Practice(2d Ed.) § 144;Bassett, Zoning, p. 128;58 Am.Jur. 1046;seeKelley v. Board of Zoning Appeals, 126 Conn. 648, 652, 13 A.2d 675.Were this not so, the board, for lack of such right, might be forced, at times, to deny a variance and thus to perpetuate an owner's plight crying for relief.But as regards the authorization of a special exception a different situation prevails.As was further pointed out in the Mitchell Land Co. case, 140 Conn. at page 532, 102 A.2d at page 318, the conditions permitting an exception must be found in the regulations themselves, and these conditions, if any, may not be altered.Stone v. Cray, 89 N.H. 483, 487, 200 A. 517;58 Am.Jur. 1047.

The Greenwich regulations must be examined, then, to determine, in the first instance, whether authority to impose conditions when granting a special exception has been conferred upon the board and, if so, to what extent it runs.The board refers us to §§ 28(b)(3)and10(a)(4) of the regulations to justify its actions in imposing the condition.

Section 28(b)(3)³ recites that the board may attach to a granted special exception 'appropriate conditions and safeguards in accordance with the public interest and the comprehensive plan set forth in these regulations, and in harmony with the purpose and intent expressed in Section 1 thereof.'⁴The power thus conferred upon the board is not unlimited.It is, on the contrary, expressly circumscribed by the requirement that any condition imposed by the board upon the grant of a special exception shall, first, be in accordance with the public interest, second, be in accordance with the comprehensive plan found in the regulations and, third, be in harmony with the general purposes set forth in § 1.In other words, the conditions must meet all three standards.Whatever may be said as to its promotion of the public interest, the condition limiting the extent of parking upon the plaintiff's property is not only not in accordance with the comprehensive plan of zoning but is contrary to it.That plan, at least in the zone in which the property in question lies, is to take parking off the streets.Furthermore, the condition is directly at odds, rather than in harmony with, the general purpose, stated in § 1, 'of lessening congestion in the streets.'The authority of the board to impose the condition cannot be found in § 28(b)(3).

Nor does § 10(a)(4) empower the board to attach the condition to the grant.That section provides for the approval, as a special exception, of an automobile salesroom and garage ...