Welch v. Zoning Bd. of Appeals of Town of North Branford

• Decision Date: 22 April 1969
• Citation: 257 A.2d 795,158 Conn. 208
• Court: Connecticut Supreme Court
• Parties: John WELCH et al. v. ZONING BOARD OF APPEALS OF the TOWN OF NORTH BRANFORD.

Page 795

257 A.2d 795

158 Conn. 208

John WELCH et al. v. ZONING BOARD OF APPEALS OF the TOWN OF NORTH BRANFORD.

Supreme Court of Connecticut.

April 22, 1969.

Vincent J. Bruno, North Branford, for appellants (plaintiffs).

Charles A. Sherwood, New Haven, for appellee (defendant).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

ALCORN, Associate Justice.

The plaintiffs own land on the southeasterly side of route 80, a public highway in North Branford. They applied to the defendant zoning board of appeals for approval of the location as a site for a gasoline filling station. The board denied the application, and an appeal taken by the plaintiffs from that decision to the Court of Common Pleas was dismissed. The present appeal asserts error in the conclusions of the court that there was evidence to support the decision of the board and that the board did not act illegally, arbitrarily and in abuse of its discretion and also asserts that the court erred in denying the plaintiffs the right to cross-examine 'interested parties' and the right to demonstrate the improper action of the board by the introduction of evidence at the trial.

A certificate of approval of the location by the board was a prerequisite to the issuance, by the commissioner of motor vehicles, of a license for the sale of gasoline. General Statutes § 14-321. In passing upon the plaintiffs' application for approval of the location, the board was acting as an administrative agency of the state. Etzel v. Zoning Board of Appeals, 155 Conn. 539, 541, 235 A.2d 647; Socony Mobil Oil Co. v. Zoning Board of Appeals, 153 Conn. 257, 259, 216 A.2d 201; Silver Lane Pickle Co. v. Zoning Board of Appeals, 143 Conn. 316, 319, 122 A.2d 218; Watson v. Howard, 138 Conn. 464, 468, 86 A.2d 67. As such it was required to hold a hearing and could issue no certificate approving the location unless it found 'that such location is suitable for the sale of gasoline and other products, due consideration being given to the proximity of schools, churches, theaters or playhouses or other places of public gatherings, intersecting streets, traffic conditions, width of highway and effect of public travel, and that such use of such proposed location will not imperil the safety of the public.' General Statutes § 14-322.

The plaintiffs' application recited that their premises were 750 feet from the town hall, 750 feet from a church, 1200 feet from one road intersection, opposite another road intersection, 1350 feet from a little league field, and a mile and a half from the high school. The plan was to erect a 'three-bay' gasoline station if the necessary approval of the location was granted.

The board held a public hearing on the plaintiffs' application at which counsel for the plaintiffs made a lengthy statement descriptive of the proposed station and the surrounding area. In the course of that statement, he called upon the members of the board to utilize their own knowledge of the area in determining whether the safety of the public would be imperiled by the proposed gasoline station. He said: 'I think this is far more valuable than having a paid professional safety expert. You know the town. You live here as I live here. You must view the site. I know that this board is conscientious in that aspect of the problem.' Exhibits consisting of a booklet of 'pertinent facts', a sketch of the proposed station layout, and photographs of the area were received evidence, and counsel concluded his presentation with a discussion of factors which he considered pertinent to the requirements of General Statutes § 14-322. The plaintiffs were present at the hearing, but no testimony was offered by them or by other witnesses other than a statement by the plaintiff John Welch concerning the location of a fence.

No persons appeared at the hearing in opposition to the application. At the conclusion of the statement by counsel for the plaintiffs, however, the chairman of the board stated that he had received a letter in opposition to the application. He read the letter, in full, into the record, and no objection to the reading was made by the plaintiffs or their counsel. The purport of it was that a gasoline station at the proposed location would increase an already existing hazard to public safety. The opposition to the application expressed in the letter was based on assertions that the nearby church was in constant use, not only on Sunday but for meetings of various organizations on weekdays, that the town hall was regularly used for public gatherings, that a library located approximately 250 feet from the plaintiffs' property was constantly active and expanding its facilities, that a store with limited parking facilities was located about 300 feet from plaintiffs' property, that general parking in the area was extremely limited, that there were five narrow intersecting streets at distances ranging from directly opposite to 1200 feet away from the location with various visibility problems, that route 80 itself was too narrow to accommodate the present traffic over it, and that a number of gasoline stations already existed on the south side of route 80 with none on the north side so that westbound vehicles had to make left turns across eastbound lanes for service.

After the letter in opposition had been read, the chairman of the board inquired whether any one wished to speak. Neither the plaintiffs nor their counsel spoke, nor did they request an opportunity to offer rebuttal evidence or to call the writer of the letter as a witness or to cross-examine him.

Proceedings before an administrative board acting in a quasi-judicial capacity, such as this board, are informal, and the board is not bound by strict rules of evidence. Watson v. Howard, 138 Conn. 464, 468, 86 A.2d 67. Nor does due process guarantee any particular form of state procedure. Katz v. Brandon, 156 Conn. 521, 537, 245 A.2d 579; Graham v. Houlihan, 147 Conn. 321, 330, 160 A.2d 745, cert. denied, 364 U.S. 833, 81 S.Ct. 70, 5 L.Ed.2d 57. The guiding rule is that, at the hearing, 'no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary or to be fairly apprised of the facts upon which the board is asked to act.' Parsons v. Board of Zoning Appeals, 140 Conn. 290, 293, 99 A.2d 149, 150; Wadell v. Board of Zoning Appeals, 136 Conn. 1, 9, 68 A.2d 152; see 2 Am.Jur.2d 234, Administrative Law, § 424. In the present case, no witnesses were offered either in support of or in opposition to the application, as already stated. It is perfectly clear from the record, however, that the plaintiffs were afforded full opportunity to present their case, were fully informed of the letter offered in opposition and were not denied the opportunity, if they had wished to ask for it, to call and examine the writer of the letter. Indeed, they make no claim to the contrary in the present appeal. 'The principle requiring a testing of testimonial statements by cross-examination has always been understood as requiring, not necessarily an actual cross-examination, but merely an opportunity to exercise the right to...