173 Conn. 420 | Conn. | 1977
The plaintiff, the building official and zoning enforcement officer for the town of Windsor Locks, appealed to the Court of Common Pleas from the decision of the defendant zoning board of appeals (hereinafter the board) granting a variance to the defendant Barnett B. Berliner to construct an eighty-six unit apartment complex upon a parcel of land zoned Business 1. From the judgment of that court finding the issues for the defendants and dismissing the appeal, the plaintiff has appealed to this court upon the granting of certification.
The parcel of land for which Berliner sought and the board granted the variance which is the subject of this appeal contains approximately six acres, comprising part of a larger tract of land of approximately fifteen acres, located at the junction of Route 20, the Bradley Field Connector, and Route 75, Turnpike Road, which was rezoned from Industrial 1 to Business 1 in 1968 at Berliner’s request. The Berliner parcel comprises the rear portion of the larger tract and is bounded, without access, by Route 20 to
The issue raised by the plaintiff’s appeal is whether, on the record of the board’s proceedings, its action was arbitrary, illegal or an abuse of its discretion. Bogue v. Zoning Board of Appeals, 165 Conn. 749, 752, 345 A.2d 9; Belknap v. Zoning Board of Appeals, 155 Conn. 380, 385, 232 A.2d 922; Wil
Even if exceptional difficulty or unusual hardship was shown to have existed, the board could not grant a variance for a use which was inconsistent with the “general purpose and intent of the zoning ordi
It is unnecessary to consider the plaintiff’s remaining claim that the board’s action cannot be sustained because the board, in granting Berliner’s requested variance, failed to state upon its records the reasons for its action, describing specifically the exceptional difficulty or unusual hardship on which its decision was based. See General Statutes § 8-7.
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.
Windsor Locks Zoning Ordinance § 12.3.3 provides that the zoning board of appeals shall have the following power: “To determine and vary the application of provisions of these regulations in harmony with their general purposes and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated a literal enforcement of these regulations would result 'in exceptional difficulty or unusual hardship so that substantial justice be done and the public safety and welfare secured.”
Although there is some evidence in the record that Berliner controlled the development of the Ramada Inn and Bitco Office Building located upon the remainder of the Business 1 tract and therefore suffered from a self-imposed hardship not warranting relief by variance; Abel v. Zoning Board of Appeals, 172 Conn. 286, 289, 374 A.2d 227; see 2 Yokely, Zoning Law and Practice (3d Ed.) § 15-8; the record is insufficient to permit adequate discussion of this issue. Since the parties failed to brief this issue, wo need not consider it in view of the other grounds for disposition presented by this appeal.
A letter from the economic and industrial development commission which stated in part that “it is against the policy of this commission to favor residential units in a business zone unless an overwhelming need is demonstrated to support business or industrial operations” was read into the record of the board’s proceedings. The member of the planning and zoning commission appearing to present the commission’s views stated in part: “[W]e don’t need residential use in commercial and industrial zones .... Route 75 is practically the bread and butter of the town, it is growing in industry ... it sets a tremendous precedent.”
Berliner testified in pertinent part as follows: “May T answer the question on the comprehensive plan. In due respect to your officials in town, I have a great deal of planning and re-use analysis and zoning and new use plans for cities and towns — and times change. . . . We have a lot of industrial land in the town, and it would be good if we built a lot of industry, but I’m not sure it may be practical to build industry in Windsor Bocks with the cost of fuel and the cost of oil, although it may be the kind of thing to bring clean industry here, it may not happen and until it happens it still has to be utilized.”
While the board undoubtedly discussed this aspect o £ the application in the executive session which it held immediately prior to approving Berliner’s application, its deliberations in that session are not a part of the record and, of course, can furnish no support for its action.