In Fox v. Zoning Board of Appeals, 146 Conn. 665, 666, 154 A.2d 520, we pointed out that aggrievement must be established in the trial court.Summary of this case from Parcesepe v. Zoning Board of Appeals
The aggrievement which one must have to appeal from a zoning authority does not arise until the authority has acted. It is a fact to be established in the trial court rather than before the authority, and the court should find whether the plaintiff has satisfied the burden of proving it. Such a finding was lacking in the instant appeal, but the Supreme Court, upon determining from the record of the hearing before the defendant board that at least one of the plaintiffs owned property within reasonable, though not close, proximity to the subject property, decided not to send the matter back for completion of the record. The conditions permitting a special exception must be found in the zoning regulations themselves. As they did not appear in the regulations under which the board acted in the present case, its action in granting "variances" when the legal requirements for a variance were not present could not be sustained on the theory that it was really granting an exception.
Argued June 2, 1959
Decided July 7, 1959
Appeal from the action of the defendant board in granting variances to allow the extension of a nonconforming use, brought to the Court of Common Pleas in Fairfield County and tried to the court, Leipner, J.; judgment dismissing the appeal, from Which the plaintiffs appealed to this court. Error; judgment directed.
The defendants Saunders et al. filed a motion for reargument which was denied.
Julius B. Kuriansky, for the appellants (plaintiffs).
David M. Wise, for the appellees (defendants Saunders et al.), with whom was Raymond G. Cushing, for the appellee (defendant board).
The judgment in this case was rendered July 8, 1958, just one week following the publication in the Connecticut Law Journal of the opinion in Tyler v. Board of Zoning Appeals, 145 Conn. 655, 145 A.2d 832. The trial court stated in its memorandum of decision: "The instant case was heard before [the Tyler case, supra] was decided. . . . Thus, even though the record [before the defendant board] is rather vague as to the way in which the plaintiffs are aggrieved persons, the court under the existing circumstances has decided to allow the appeal to stand." By this language, the court showed that it misunderstood the applicability of the rule of the Tyler case, supra, to the instant case and misconstrued the function of the court. It is not necessary for one who claims to have been aggrieved by the action of a zoning authority to establish his aggrievement before the board conducting the hearing. A person does not become aggrieved until the board has acted. Rev. 1958, 8-8 — 8-10. One could be aggrieved by the action of a municipal board and yet have been unaware of the situation until after the board had acted. See National Transportation Co. v. Toquet, 123 Conn. 468, 476, 196 A. 344. Upon appeal, he must establish his aggrievement in the trial court, and the court must decide whether he has sustained the burden of proving that fact. Tyler v. Board of Zoning Appeals, supra, 662. A finding on the issue of aggrievement should have been made by the present trier. Since, however, it appears from the record of the hearing before the board that at least one of the plaintiffs is the owner of property within reasonable, though not close, proximity to the subject property, we have decided to dispose of the appeal on the record before us without causing it to be sent back to the trial court for completion of the record. Altman v. Hill, 144 Conn. 233, 240, 129 A.2d 358; Practice Book 402; Maltbie, Conn. App. Proc. 279.
The plaintiffs appealed to the Court of Common Pleas from the action of the defendant board in granting an application for two variances to permit the extension of a nonconforming use in a residential zone. One variance permitted the construction of an addition to the gasoline service station of the defendants John N. Saunders and Jessie R. Schumann on High Ridge Road, and the other waived the rear-yard requirements to permit the modernization of the station and its enlargement to over four times its present size. The court in its memorandum of decision agreed with the plaintiffs that the record was devoid of any proof that the applicants had established legal reasons for the granting of the variances. The court found, however, that the variances which the applicants sought and the board granted were in fact a special exception and sustained the action of the board. From the judgment dismissing the appeal, the plaintiffs have appealed to this court.
The General Statutes, as well as the Stamford zoning regulations, give the defendant board the power to grant special exceptions where the board is required to pass upon such exceptions under the specific terms of the regulations. Rev. 1958, 8-6; Stamford Zoning Regs. 18(A)(2) (1956). The conditions permitting an exception must be found in the regulations themselves. Service Realty Corporation v. Planning Zoning Board of Appeals, 141 Conn. 632, 636, 109 A.2d 256; Mitchell Land Co. v. Planning Zoning Board of Appeals, 140 Conn. 527, 532, 102 A.2d 316; see Baldwin, "Variances and Exceptions in Zoning," 32 Conn. B.J. 1, 5. The Stamford regulations make no provision for the conditions under which the defendant board may grant special exceptions. Without such provision, the board lacked the power which the trial court assumed it had. The court was therefore in error in sustaining the action of the board for the reason given. As previously indicated, the court agreed that the board could not grant the variances. The court should therefore have sustained the appeal.