Whitney Theatre Co. v. Board of Zoning Appeals of Town of Hamden

• Decision Date: 01 January 1963
• Citation: 189 A.2d 396,150 Conn. 285
• Parties: WHITNEY THEATRE COMPANY, Inc. v. ZONING BOARD OF APPEALS OF the TOWN OF HAMDEN et al. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 396

189 A.2d 396

150 Conn. 285

WHITNEY THEATRE COMPANY, Inc. v. ZONING BOARD OF APPEALS OF the TOWN OF HAMDEN et al.

Supreme Court of Errors of Connecticut.

January Term, 1963.

Feb. 19, 1963.

John J. Resnik, New Haven, with whom was Nathan A. Resnilk, New Haven, for appellant (plaintiff).

William L. Hadden, Jr., New Haven, with whom were Francis P. Barberio, New Haven, and, on the brief, William L. Hadden, New Haven, for appellee (defendant Hamden Mart, Inc.); with him also, on the brief, was Robert W. Carangelo, New Haven, for appellee (named defendant).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

ALCORN, Associate Justice.

Hamden Mart, Inc., owns property at 2300 Dixwell Avenue in Hamden. The property is in a business CA-1 zone. The Hamden zoning regulations do not include an indoor theater among the permissible uses in such a zone. The property embraces about twenty-nine acres of land developed as a shopping center and occupied by twenty-three business establishments, including two department stores, a supermarket, a bank, a gasoline-repair station, a forty-lane bowling alley, a restaurant with a seating capacity for 600 persons and parking facilities for over 2000 automobiles. Hamden Mart, Inc., applied to the zoning board of appeals for a variance of the zoning regulations to permit the construction and operation of an indoor theater on the premises, and the application was granted. The plaintiff, claiming to be an aggrieved person under § 8-8 of the General Statutes, appealed to the Court of Common Pleas, alleging that the defendant board had acted illegally, arbitrarily and in abuse of its discretion in granting the application. The aggrievement alleged in the appeal is that the plaintiff owns real estate on which it operates a theater and leases other space to tenants and that, because of the decision appealed from, the theater will be forced to cease operation and the value of the real estate will thereby be adversely affected. The answer filed by the board denied that the plaintiff was aggrieved. The court heard evidence on the issue and dismissed the appeal on the ground that the plaintiff was not aggrieved. The plaintiff has appealed, and the court has made a limited finding on the issue of aggrievement. The finding is not subject to correction.

The appeal raises two questions: (1) whether the court erred in concluding that the plaintiff was not aggrieved and therefore not entitled to appeal; (2) whether the action of the board in granting the variance was illegal and invalid. The court, having dismissed the appeal because the plaintiff was not aggrieved, did not pass on the validity of the board's action. If the court's conclusion concerning aggrievement is correct, then that conclusion is decisive of the case.

The plaintiff had the burden of proving that it was aggrieved. London v. Planning & Zoning Commission, 149 Conn. 282, 284, 179 A.2d 614; Fox v. Zoning Board of Appeals, 146 Conn. 665, 667, 154 A.2d 520. Since traffic in intoxicating liquor was not involved, this burden of proof required the plaintiff to establish that it was specially and injuriously affected in its property rights or other legal rights. London v. Planning & Zoning Commission, supra; Tyler v. Board of Zoning Appeals, 145 Conn. 655, 662, 145 A.2d 832. In meeting this burden, it was not sufficient for the plaintiff to show that the action complained of would permit the operation of a business in competition with its business. Mills v. Town Plan & Zoning Commission, 145 Conn. 237, 240, 140 A.2d 871; Zuckerman v. Board of Zoning Appeals, 144 Conn. 160, 163, 128 A.2d 325; see also Circle Lounge & Grille, Inc. v. Board of Appeal, 324 Mass. 427, 429, 86 N.E.2d 920. It was the court's function to decide whether, under these well-established principles, the plaintiff had proved that it was aggrieved. Bright v. Zoning Board of Appeals, 149 Conn. 698, 704, 183 A.2d 603; Fox v. Zoning Board of Appeals, supra. The facts found by the court on this issue may be briefly summarized. The plaintiff owns a building at 1212-1222 Whitney Avenue in Hamden, three and one-half miles from the Hamden Mart shopping center. The building houses a neighborhood theater, at least twenty-one years old, which is operated by the plaintiff, and five stores. Many factors affect theater attendance, such as location, type of pictures, facilities of the...