Opinion
A local zoning authority which under 16-235 regulates the location of a water tank of a public service company subject to an appeal to the public utilities commission acts as a special agency of the state. It can be the zoning board of appeals rather than the zoning commission if the effect of its action is to allow the extension of a nonconforming use and the allowance of such an extension in, under the local zoning regulations, a matter for the board of appeals. Since the appealable zoning regulations committed to the zoning board of appeals the function of approving extensions of nonconforming uses, the application of the defendant water company to the board for permission to erect another water tank on property where it already had one tank as a nonconforming use was made to the appropriate agency. It followed that it was proper under 16-235 for the public utilities commission to entertain the company's appeal from the denial of the application.
Argued February 3, 1960
Decided March 1, 1960
Appeal from an order by the named defendant, in an appeal from the zoning board of appeals of West Haven, authorizing the defendant New Haven Water Company to erect a second standpipe for water storage on its property in West Haven, brought to the Superior Court in New Haven County and tried to the court, Shapiro, J.; judgment dismissing the appeal, from which the plaintiff appealed to this court. No error.
Herbert D. Fischer, with whom was Charles H. Fischer, Jr., for the appellant (plaintiff).
Donald F. Keefe, for the appellee (defendant New Haven Water Company).
Louis Weinstein, assistant attorney general, with whom, on the brief, was Albert L. Coles, attorney general, for the appellee (named defendant).
The New Haven Water Company, a public service company (General Statutes 16-1) hereinafter referred to as the company, owned a parcel of land on Shingle Hill in West Haven on which it had erected and maintained a water tank or standpipe. This land was in an A residence zone. West Haven Zoning Regs. 2 (1957). The standpipe had been erected before the zoning regulations became effective and constituted a nonconforming use. Id. 7. The company found it necessary to erect a second standpipe on this land. On April 8, 1958, it petitioned the zoning board of appeals of West Haven for permission to do so. Under 15 of the zoning regulations, providing that the board may in a specific case determine and vary the application of the regulations in harmony with their general purpose and intent in a number of specified ways, the board may ". . . (3) Permit the extension of a non-conforming use or building upon the lot occupied by such use or building at the time of the passage of (the] regulations. . . . (10) Vary any requirement of [the] regulations in harmony with their general purpose and intent, so that substantial justice may be done."
The plaintiff owns land adjacent to the land on which the company proposes to locate the standpipe He, among others, opposed the granting of the petition at a public hearing before the board. The board denied the petition, and the company appealed to the public utilities commission under General Statutes 16-235. The commission overruled the board and granted the petition. The plaintiff then appealed to the Superior Court under General Statutes 16-35; it considered the case upon the record before the public utilities commission and dismissed the plaintiff's appeal. The plaintiff has appealed from that judgment.
The plaintiff claims that the location of the standpipe is "a matter of public utility regulation specifically assigned by section 16-235 to the West Haven Zoning Commission as a special agency of the state, acting in a special capacity," that the company should have applied to the zoning commission, not the zoning board of appeals, and that, consequently, the public utilities commission was without jurisdiction to entertain the appeal from the board of appeals. Under 16-235, a Zoning authority acts as a special agency of the state and in that capacity weighs considerations of the general needs of public convenience, necessity and safety as well as of the needs of local zoning. Jennings v. Connecticut Light Power Co., 140 Conn. 650, 669, 103 A.2d 535; Wilson Point Property Owners Assn. v. Connecticut Light Power Co., 145 Conn. 243, 249, 140 A.2d 874. While the Jennings case was an action for a declaratory judgment, it was concerned with the fact that a public service company had brought a petition to the zoning commission of Norwalk, under what is now 16-235, asking the zoning commission to regulate and restrict the location of a large steam plant for generating electricity on land of the company in a zone where such a use was prohibited. In other words, the public service company was seeking permission to make, initially, a use of its land which was not permitted under the zoning regulations. The appropriate local zoning agency to consider such a question is the zoning commission.
"Sec. 16-233. CONTROL BY LOCAL AUTHORITIES; APPEAL. . . . [A] town planning, zoning, building, gas, water or electrical board, commission or committee . . . if it has the power to regulate and restrict the location of structures, trades, industries and business, may regulate and restrict the proposed location of any steam plant, gas plant, gas tank or holder, water tank or electric substation of any public service company. . . . Each . . . order shall be subject to the right of appeal . . . by any party aggrieved to the public utilities emission . . . ."
In the case at bar, the land was already being put to a use permitted under the regulations as a non-conforming use. The company's request was not for a new use but for the extension of an existing one. While a new use may well require action by the zoning commission, approval of an extension of a nonconforming use is generally a function of the board of appeals. So it is in West Haven. Although a local zoning authority, in passing upon a land use proposed by a public service company, must, as we pointed out in the Jennings case, supra, take into account convenience and the general need for the service to be performed by the proposed use of the land, as well as the local requirements of zoning, there is nothing in 16-235 or in the Jennings case to indicate that any question involved in the local regulation of public service activities should not be acted upon by the local regulatory agency empowered to pass upon that particular kind of question. The judgment of the trial court dismissing the plaintiff's appeal was correct.