150 Conn. 285 | Conn. | 1963
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
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
It is clear from the evidence referred to in the appendices to the briefs that anticipated business competition is at the heart of the plaintiff’s claim
The plaintiff also complains that the conclusion that it was not aggrieved was erroneous inasmuch as the court had stated to the plaintiff that sufficient evidence had been offered to establish aggrievement. The claim is based on a colloquy prior to the plaintiff’s decision not to call, as a witness, an out-of-state expert, who was not immediately available. From a reading of the discussion between the court and the plaintiff, it is apparent that the court’s objective was to ascertain whether the suggested testimony would cover new material or be merely cumulative. The substance of the court’s comment was that the primary issue was whether the plaintiff, as a matter of law, came within the definition of an aggrieved person and that merely cumulative evidence was unnecessary on that issue. At the conclusion of the colloquy, the plaintiff indicated that the contemplated evidence would be “of the same type” and chose to rest without calling the witness. The claim of the plaintiff that it was misled by the discussion is without merit.
The plaintiff, on this appeal, seeks to make the further claim that the variance granted by the board represented a change in the comprehensive zoning plan and that, under such circumstances, the plaintiff is able to establish aggrievement merely by reason of its status as a property owner in the town.
There is no error.
In this opinion the other judges concurred.