Strain v. Zoning Bd. of Appeals of Town of Greenwich

Decision Date20 June 1950
Citation137 Conn. 36,74 A.2d 462
PartiesSTRAIN et al. v. ZONING BOARD OF APPEALS OF TOWN OF GREENWICH et al. Supreme Court of Errors of Connecticut
CourtConnecticut Supreme Court

Frederick L. Comley, Bridgeport, for the appellants (defendants Ohrstrom and others).

Orson L. St. John, Greenwich, with whom was Halford W. Park, Jr., Greenwich, for the appellant (defendant board).

Joseph L. Melvin, Stamford, for the appellees (plaintiffs).



The plaintiffs are the owners of land at the concur of Round Hill and Old Mill Roads in Greenwich, where they have been conducting for some time past a gasoline filling station, automobile repair business and general store. Their property is located in what is described under the building zone regulations of the town of Greenwich as a local business (B-L) zone. They made an application in writing to the zoning board of appeals requesting authorization to erect an addition to the existing buildings to be used in connection with repairing automobiles. The pertinent section of the regulations, article II, § 5, subsection A, item 4, reads as follows: 'Permitted uses. * * * Automobile sales rooms, gasoline filling stations and garages for the storage or repair of more than five (5) motor vehicles and parking lots, when authorized by the Board of Zoning Appeals and subject to the provisions of Article IV, Section 5 and to such limitations on outside storage and repair of motor vehicles as are prescribed by the Board of Appeals.' After a hearing the board denied the application upon the ground that the granting of it would aggravate an unsightly and noisy condition and that the denial of it would be in accord with the public interest and the appropriate development of the neighborhood and in harmony with the purpose and intent of the zoning regulations. The plaintiffs appealed to the Court of Common Pleas. The court sustained the appeal and held that the provisions of the zoning ordinance under which the board of appeals purported to act were unconstitutional and void because they did not contain any rule or standard to guide or restrain the discretion of the board, nor any comprehensive plan for uniformity, and, therefore, were illegal and improper delegations of legislative power. The sole question presented on the defendants' appeal to this court is the correctness of the trial court's ruling on that issue.

A transcript of the testimony taken at the hearing before the zoning board of appeals was in evidence at the trial in the Court of Common Pleas and is before us as an exhibit. This transcript shows that at the hearing before the board the plaintiffs claimed that the zoning regulation was not effective because it was an improper delegation of unlimited discretion to the board that the sole question before the board was the traffic problem involved, which had been decided favorably to the plaintiffs in an earlier proceeding some years before when they had obtained permission to operate a gasoline pump and an automobile repair business, and that, therefore, their application should be granted.

The plaintiffs cannot seek the approval of the zoning board of appeals under a provision of the zoning regulations and at the same time attack the constitutionality of its power to act thereunder. 'The appellant having recognized and utilized the regulations by proceeding under them, it is not open to him to attack them, in this action, as unconstitutional and invalid.' Chudnov v. Board of Appeals of Town of Bloomfield, 113 Conn. 49, 57, 154 A. 161, 164; Lathrop v. Town of Norwich, 111 Conn. 616, 626, 151 A. 183; Rindge v. Holbrook, 111 Conn. 72, 77, 149 A. 231; Holley v. Sunderland, 110 Conn. 80, 85,...

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19 cases
  • Carofano v. City of Bridgeport
    • United States
    • Connecticut Supreme Court
    • July 9, 1985
    ...raising the issue of its constitutionality. Florentine v. Darien, 142 Conn. 415, 428, 115 A.2d 328 (1955); Strain v. Zoning Board of Appeals, 137 Conn. 36, 38, 74 A.2d 462 (1950); Holley v. Sunderland, 110 Conn. 80, 85, 147 A. 300 The rule is plainly inapplicable to the situation presented ......
  • Helbig v. Zoning Commission of Noank Fire Dist.
    • United States
    • Connecticut Supreme Court
    • August 18, 1981
    ...149 Conn. 712, 717-18, 184 A.2d 42 (1962); Florentine v. Darien, 142 Conn. 415, 428, 115 A.2d 328 (1955); Strain v. Zoning Board of Appeals, 137 Conn. 36, 38-39, 74 A.2d 462 (1950), and cases cited therein. Mr. Justice Brandeis, concurring in Ashwander v. Tennessee Valley Authority, 297 U.S......
  • Bombero v. Planning and Zoning Com'n of Town of Trumbull
    • United States
    • Connecticut Court of Appeals
    • January 9, 1996
    ...application); J & M Realty Co. v. Norwalk, 156 Conn. 185, 191, 239 A.2d 534 (1968) (subdivision appeal); Strain v. Zoning Board of Appeals, 137 Conn. 36, 38-39, 74 A.2d 462 (1950) (application to build garage). A plaintiff may, however, attack the constitutionality of the regulations in an ......
  • Florentine v. Town of Darien
    • United States
    • Connecticut Supreme Court
    • June 7, 1955
    ...same proceeding raise the question of its constitutionality. Holley v. Sunderland, 110 Conn. 80, 85, 147 A. 300; Strain v. Zoning Board of Appeals, 137 Conn. 36, 38, 74 A.2d 462. 5 This rule would have no application to an independent proceeding challenging the constitutionality of a zoning......
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