A.P. & W. Holding Corp. v. Planning & Zoning Board

355 A.2d 91, 167 Conn. 182, 1974 Conn. LEXIS 738
Supreme Court of Connecticut·Decided August 27, 1974·Published·Cited by 184 cases

Opinion

Bogdanski, J.

This appeal concerns two adjoining parcels of land owned by the defendant Howard C. Merk and referred to as parcel 8A and parcel 12, [183] located at the intersection of Old Gate Lane and Woodmont Road in the city of Milford. The defendant Merk had constructed a motel on parcel 12, a use authorized by a special permit issued by the defendant planning and zoning board in 1967. On June 5, 1972, Merk applied to the defendant board for an amendment to this special permit, seeking to reduce the land area of parcel 12 from 2.75 acres to 1.78 acres. Thereafter, on July 17, 1972, Merk filed a second application “for an AMENDMENT TO SPECIAL PERMITS to establish or construct a Automatic Truck Wash ... on property described as . . . Woodmont Road, . . . BLOCK #810 Parcel # 8A & 12.” The land area described in this second application was 1.81 acres, and included all of parcel 8A and that portion of land which Merk sought to have removed from parcel 12 in his June application. On September 26, 1972, the board held a public hearing, and thereafter voted to approve both amendments to the special permit.

The plaintiffs, abutting property owners, appealed from those actions to the Court of Common Pleas, which dismissed the appeal. After our grant of certification, the plaintiffs appealed to this court, assigning error in the conclusion of the court that the board did not act illegally, arbitrarily or in abuse of its discretion. The remaining assignments of error have not been briefed and are treated as abandoned. First Hartford Realty Corporation v. Plan & Zoning Commission, 165 Conn. 533, 535, 338 A.2d 490; Maltbie, Conn. App. Proc. § 327.

The defendant planning and zoning board has “all the powers and duties conferred or imposed by the [184] general statutes on planning and zoning [commissions] . . . .” 29 Spec. Acts, No. 139, art. IV § 8. “Although the . . . defendant is designated a ‘board’ in Milford, usually such a body authorized to enact zoning regulations, as this one is, has been legally designated a ‘commission.’ See General Statutes §§ 8-1, 8-4a.” Malafronte v. Planning & Zoning Board, 155 Conn. 205, 207 n.1, 230 A.2d 606. In adopting or amending regulations, the board acts in a legislative capacity pursuant to the delegated authority contained in title 8, chapter 124 of the General Statutes.- First Hartford Realty Corporation v. Plan & Zoning Commission, supra, 540; Weigel v. Planning & Zoning Commission, 160 Conn. 239, 245, 278 A.2d 766; Beach v. Planning & Zoning Commission, 141 Conn. 79, 84, 103 A.2d 814. Acting in that legislative capacity, the board has adopted zoning regulations including provisions for special permit applications.

Chapter IV § 16.B of the zoning regulations of the city of Milford (1968) authorizes the board to issue special permits provided that specified standards are satisfied.1 When considering an application for a special permit, the board acts in an [185] administrative capacity. Farina v. Zoning Board of Appeals, 157 Conn. 420, 422, 254 A.2d 492. The terms “special permit” and “special exception” have the same legal import and can be used interchangeably. Beckish v. Planning & Zoning Commission, 162 Conn. 11, 15, 291 A.2d 208; Summ v. Zoning Commission, 150 Conn. 79, 87, 186 A.2d 160. A special permit allows a property owner to use his property in a manner expressly permitted by the local zoning regulations. Beckish v. Planning & Zoning Commission, supra; W A T R, Inc. v. Zoning Board of Appeals, 158 Conn. 196, 200, 257 A.2d 818. The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the “conditions necessary to protect the public health, safety, convenience and property values.” General Statutes § 8-2; Anastasi v. Zoning Commission, 163 Conn. 187, 190, 302 A.2d 258. Acting in this administrative capacity, the board’s function is to determine whether the applicant’s proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and the statute are satisfied. W A T R, Inc. v. Zoning Board of Appeals, supra; Farina v. Zoning Board of Appeals, supra.

[186] Merk’s two applications for the special permit amendments stated that they were brought under chapter IV § 16 of the zoning regulations. Chapter IV §16.F states that “[applications for Special Permit plan amendments which are necessitated by field conditions or which are deemed to be in the public interest may be made to the Planning and Zoning Board. Amendments . . . may be granted after Board review provided it shall find that the stipulations set forth in . . . [§ 16.B (see footnote 1)] are complied with.”

In granting Merk’s applications for special permit amendments, the defendant board was acting in its administrative capacity, and its actions were governed by chapter IV § 16.F of the zoning regulations. Wasicki v. Zoning Board, 163 Conn. 166, 171, 302 A.2d 276. The board was powerless to act unless it first found that the amendments were: (1) “necessitated by field conditions” or (2) “deemed to be in the public interest.” If one of those conditions was found to exist, the board then had to determine whether the proposed amendments satisfied all the standards set forth in chapter IV § 16.B.1-4.

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A.P. & W. Holding Corp. v. Planning & Zoning Board, 355 A.2d 91, 167 Conn. 182, 1974 Conn. LEXIS 738 (Colo. 1974).

355 A.2d 91 (A.P. & W. Holding Corp. v. Planning & Zoning Board) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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