159 Conn. 234 | Conn. | 1970
The plaintiff has appealed from a judgment of the Court of Common Pleas dismissing its appeal from the action of the defendant zoning
The plaintiff appealed to the Court of Common Pleas from each of the board’s decisions. In the trial court, Anderson informed the court that owing to the passage of time he did not desire to take advantage of the variance granted by the board with regard to building setback and that the plaintiff’s appeal from the granting of the variance might be sustained. The plaintiff informed the court that it had no objection so long as the appeal was sus
The plaintiff assigns error in the conclusion of the trial court that the sustaining of the plaintiff’s appeal from the hoard’s decision concerning the setback variance removed the issue of any zoning violation from the case. Section V of the Naugatuck zoning regulations (1958, as amended) provides as follows: “business zone ... (b) No building or premises shah be used, and no building shall be erected which is arranged, intended or designed to be used for any of the following trades, industries, or uses . . . : ... repair garages, filling stations or junk yards, as provided in Section XIV hereof.”
Section XIV provides: “The Board of Appeals may in a specific case after notice and hearing subject to appropriate conditions and safeguards [emphasis added] determine and vary the application of the regulations herein established in harmony with their general purposes and intent as follows: . . . 4. Vary any requirement of these regulations in harmony with its general purpose and intent, so that substantial justice may be done. This authority shall be exercised in a manner to secure the public health, safety, and welfare solely in instances where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of these regulations. ... 6. Permit in the Business Zone the construction, extension, alteration or conversion and use of a building or land intended for
The plot plan submitted by Anderson with his applications for a variance and for approval of the location for a gasoline station were considered by the board at the public hearing and in its executive session, when both applications were approved. Section 14-322 of the General Statutes requires a hearing by the zoning board of appeals in passing on an application for a certificate of approval of location for a gasoline station: “No such certificate shall be issued unless such . . . board of appeals finds 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.” There are “two basic requirements which an applicant must prove to justify the approval of a location for the sale of gasoline. The first is the suitability of the proposed location in view of the proximity of schools, churches, theaters or playhouses or other places of public gathering, intersecting streets, traffic conditions, width of highway and the effect of public travel; the second is that the use of the proposed location will not imperil the safety of the public.” Atlantic Refining Co. v. Zoning Board of Appeals, 150 Conn. 558, 561, 192 A.2d 40.
The establishment of a gasoline station on Anderson’s property, which is in a business zone under the Naugatuck zoning regulations, can be accomplished only upon fulfilment of three conditions:
The plaintiff raises no question concerning the granting of a variance to permit a gasoline station in a business zone, although the return of the board indicates in the minutes of the executive session that the variance granted was “to erect a Commercial Building and leaving 3 feet front line set back.” The plaintiff contends that the board, in considering the foregoing criteria, granted Anderson’s application on the condition that the filling station be erected “as per plot plan.” The plot plan, pertaining to location, entrances, exits and other criteria of the statute, was obviously quite relevant to the site. See Atlantic Refining Co. v. Zoning Board of
The evidence heard by the board at the public hearing supports the position of the plaintiff that the board, in fact, conditioned its approval on the use of that specific plot plan. Evidence was presented by a representative of the Sun Oil Company and by a traffic expert, both of whom discussed the
When the plaintiff’s appeal from the granting of the variance was sustained in the trial court, the action of the hoard in granting the variance was overruled. Anderson was left in a situation wherein the approval of the location of the gasoline station was conditioned on the station’s being constructed in such a way as to be in violation of the zoning regulations. A certificate of approval cannot be properly issued for a location where a gasoline station would he in violation of zoning regulations. Consiglio v. Board of Zoning Appeals, 153 Conn. 433, 435, 217 A.2d 64; St. John’s Roman Catholic Church v. Board of Adjustment, 125 Conn. 714, 724, 8 A.2d 1. “To grant a certificate of approval before the proposed use meets the zoning requirements serves only to produce the anomalous situation illustrated by Herrup v. Hartford, 140 Conn. 622, 629, 103 A.2d 199, and Silver Lane Pickle Co. v. Zoning Board of Appeals, 143 Conn. 316, 319, 122 A.2d 218. The issuance of a certificate of approval for a location which is not favorably zoned only obscures the rights of an applicant and serves no useful purpose.” Sun Oil Co. v. Zoning Board of Appeals, 154 Conn. 32, 36, 221 A.2d 267; see also Etzel v. Zoning Board of Appeals, 155 Conn. 539, 542, 235 A.2d 647.
In the instant case we must conclude that the use
Since this conclusion is determinative of the appeal, it is not necessary to discuss the remaining assignments of error.
There is error, the judgment is set aside and the case is remanded with direction to sustain the appeal.
In this opinion the other judges concurred.