Bouvier v. Zoning Board of Appeals of Monroe

28 Conn. Supp. 278
CourtPennsylvania Court of Common Pleas
DecidedSeptember 11, 1969
DocketFile No. 92413
StatusPublished

This text of 28 Conn. Supp. 278 (Bouvier v. Zoning Board of Appeals of Monroe) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bouvier v. Zoning Board of Appeals of Monroe, 28 Conn. Supp. 278 (Pa. Super. Ct. 1969).

Opinion

Mignone, J.

This is an appeal from the action of the defendant board in granting a variance to the defendant Monaco Construction Company, hereinafter called the defendant Monaco. There are two essential issues involved. One is the issue whether either or both plaintiffs are properly aggrieved parties entitled to appeal in this court. The other involves the question whether the board acted arbitrarily, illegally and in abuse of its discretion in granting the variance.

I

Taking up first the issue of aggrievement, the court finds the following facts.

1. The town of Monroe adopted zoning regulations in accordance with the provisions of chapter 121 of the General Statutes, “Zoning,” § 8-1. The regulations presently in issue, originally adopted prior to 1959, have been amended from time to time and, as set out in the record in this case, were in existence on the second Monday of October, 1967, when the newly adopted town charter became effective.

2. Chapter 3 of the town’s charter adopted under the provisions of the Home Rule Act (General Statutes, c. 99), provides for the appointment by the town council of a town manager, who is the chief administrative officer of the town. Section 3 thereof provides that the town manager shall appoint for a term of two years various town officials, including a zoning enforcement officer.

[280]*2803. Chapter 4 of the charter provides for elective officers, including an elected planning and zoning commission of five members.

4. Chapter 9, entitled “Administrative Officers,” provides for a public works department.

5. The charter does not deal with zoning in the town of Monroe and in no way changes the powers and duties of the planning and zoning commission.

6. On the evidence adduced, the plaintiff Bouvier was first employed by the planning and zoning commission on November 4, 1968, as the planning administrator.

7. In December, 1968, Claude Betterton was appointed a building inspector and zoning inspector and zoning enforcement officer, effective January 2, 1969.

8. The defendant Monaco purchased a parcel of land in the town of Monroe situated in an area designated “Industrial Park District” pursuant to the zoning regulations of the town of Monroe. Thereafter, it submitted plans for the use of this land, including the construction of certain buildings and the use of an area for outside storage of equipment and vehicles of approximately 54,650 square feet.

9. The defendant Monaco was informed that the proposed outside storage area was in conflict with the zoning regulations since these require that the outside storage area cannot exceed in ground area coverage more than 50 percent of the coverage of the building or buildings.

10. Thereafter the defendant Monaco, instead of changing its plans, elected to petition the zoning board of appeals for a variance of § 9.3.8 of the zoning regulations as to storage area.

11. On January 21, 1969, a public hearing was held at which officials of the defendant Monaco [281]*281appeared to press the petition and were supported by representatives of the board of finance, the Monroe chamber of commerce, the Monroe economic development commission, and the Monroe town manager.

12. Following the public hearing, at the executive session, the zoning board of appeals unanimously approved the petition for a variance, stating as the reason for its approval that “based on the nature of the business there is a storage hardship if strict interpretation of the regulations . . . [is] applied.”

13. Legal notice of the board’s decision was published on January 29, 1969. On February 5, 1969, the plaintiff Bouvier was appointed zoning enforcement officer by the planning and zoning commission and was directed to appeal the decision. The instant appeal was filed, listing as plaintiffs Arthur L. Bouvier and William E. Plumer, the latter “individually and as Chairman of the Monroe Town Planning and Zoning Commission.”

14. The appeal was timely filed.

On the basis of this essential fact situation, the defendants rely on the defense, as set out in their briefs, that neither of the plaintiffs can qualify as an aggrieved party to pursue this appeal in this court. The court must agree that the plaintiff Plumer, in his individual capacity and owning property, is not properly aggrieved. This leaves the issue whether the plaintiff Bouvier, who is alleged in the complaint to be the “duly appointed agent of the Monroe Town Planning and Zoning Commission for the enforcement of zoning pursuant to said zoning regulations and the General Statutes of the State of Connecticut,” and the plaintiff Plumer, as chairman of that commission, can properly qualify as aggrieved parties.

[282]*282The defendants attempt to support their claim by relying on the newly adopted charter granting to the town manager the power to appoint a zoning enforcement officer and on the fact that Claude Betterton had been so appointed, effective January 2, 1969. The defendants further stress the fact that the plaintiff Bouvier was not appointed enforcement officer by the town planning and zoning commission until February 5, 1969, subsequent to the action of the zoning board of appeals granting the petition in issue.

Inherent herein is the determination by this court as to whether the zoning regulations or the charter must control. As previously stated, the charter contains no zoning regulations or provisions other than to make reference to the elective planning and zoning commission (c. 4 § 8) and to an appointive zoning board of appeals (c. 5 §6). Section 8 makes no reference whatever to the powers of the planning and zoning commission. Section 6 states that the board “shall have all powers and duties conferred or imposed by the General Statutes on zoning boards of appeals.”

Section 17 of the zoning regulations, entitled “Enforcement,” provides in § 17.1: “The Building Inspector of the Town of Monroe and/or an Agent so appointed by the Planning and Zoning Commission is hereby designated as the officer with full power to enforce these Regulations. In carrying out his zoning enforcement duties, the Building Inspector and/or an Agent so appointed by the Planning and Zoning Commission, shall work under the guidance of the Planning and Zoning Commission.” Section 17.3 provides that: “No land shall be used . . . until a Certificate of Zoning Compliance shall have been issued therefor by the Building Inspector and/or Agent so appointed by the Planning and [283]*283Zoning Commission, showing that the proposed nse and construction are in accordance with these Begulations.”

Although the defendants claim the contrary, the status of the plaintiff; Bouvier as zoning enforcement officer entitled to appeal must be decided in this court and does not depend upon whether he was an aggrieved party as of the time the zoning board of appeals made its decision effective by publishing it, as required. If the plaintiff Bouvier is the duly appointed zoning enforcement officer, he is entitled to appeal under the provisions of § 8-8 of the General Statutes. This section reads: “Any person or persons severally or jointly aggrieved by any decision of said board, ...

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Bluebook (online)
28 Conn. Supp. 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bouvier-v-zoning-board-of-appeals-of-monroe-pactcompl-1969.