McMahon v. Board of Zoning Appeals

101 A.2d 284, 140 Conn. 433, 1953 Conn. LEXIS 260
CourtSupreme Court of Connecticut
DecidedDecember 1, 1953
StatusPublished
Cited by50 cases

This text of 101 A.2d 284 (McMahon v. Board of Zoning Appeals) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McMahon v. Board of Zoning Appeals, 101 A.2d 284, 140 Conn. 433, 1953 Conn. LEXIS 260 (Colo. 1953).

Opinions

Baldwin, J.

The defendant Cott Beverage Corporation, hereinafter referred to as Cott, appealed to the defendant board of zoning appeals of New Haven from the refusal of the building inspector to permit the use of certain of its premises for business purposes. The board overruled the inspector, and the plaintiffs, who were residents and property owners nearby, appealed to the Court of Common Pleas. From a judgment sustaining the board the plaintiffs have appealed to this court.

Error is assigned in the finding. The court was undoubtedly trying to adopt the procedure suggested in Cohen v. Board of Appeals on Zoning, 139 Conn. 450, 453, 94 A.2d 793. While the procedure was not followed in all respects, no harm was thereby done to the plaintiffs. One further claim made in connection with errors assigned in the finding is that the statements of counsel at the hearing before the board should not be considered as statements of fact because they are not competent evidence. The procedure before the board was informal. Statements of counsel made in open, public hearing, where they are subject to question and contradiction from the opposition, are entitled to such weight and credence as the board deems them worthy to receive. This claim of error is without merit. Parsons v. Board of Zoning Appeals, 140 Conn. 290, 293, 99 A.2d 149.

[436]*436The record discloses the following situation. Cott owns a plant fronting on Rowe Street and located at the northwest corner of that street and Chatham Street in New Haven. The plant was formerly owned and operated by the Sagal-Lou Products Company and the General Ice Cream Corporation. Within the block bounded by Rowe, Chatham, Perry and Lombard Streets there are five or six dwellings, and the rest of the land is used for business purposes. The land fronting on Perry Street, which is parallel with and west of Rowe Street, is zoned business A to a substantial depth. The Cott plant, however, is located in a residence B zone and therefore is a nonconforming use. It was in existence and operation as a dairy prior to the adoption of the zoning ordinance. In 1928, an application to the board of zoning appeals to add a substantial addition to the plant as it then stood, in order that it might extend its business, was approved. Cott purchased the entire plant in 1946. It employs about 200 people and represents an investment of over a million dollars. West of the plant on Chatham Street are premises designated as 215 Chatham Street. The rear of these premises, which are zoned residence B, abuts the rear of the Cott plant. Cott also owns a lot fronting on Perry Street. There is a driveway leading to Chatham Street from the rear of the Perry Street lot. The lot and the driveway are located in a business A zone.

Prior to 1948, trucks came into the plant through an entrance on Rowe Street and went out through an entrance on Chatham Street. This arrangement was unsatisfactory because it necessitated double parking and created traffic congestion on Rowe and Chatham Streets. It was inconvenient because it interfered with the flow of truck traffic through the plant. To alleviate the situation, in 1948 Cott ac[437]*437qnired the Ferry Street property and the Chatham Street driveway. In 1950, Cott purchased the premises designated as 215 Chatham Street, on which there is a two-and-one-half-story residential frame building presently occupied by Cott employees. There is an area 64 by 53.3 feet in the rear which Cott proposed to use for business purposes. This plot of land is adjacent to and between the Ferry Street property and the Cott plant and can be reached from Ferry and Chatham Streets. In 1951, Cott sought permission from the building inspector to erect a shed on a portion of this plot for the storage of bottles, and to use the Ferry Street property and the driveway to Chatham Street for motor vehicle transportation and the handling of storage containers and bottled products. The building inspector denied the request because it constituted an extension of a nonconforming use into a more restricted zone and because the transportation and handling of bottled products on these premises was offensive by reason of noise and vibration. Cott appealed to the board of zoning appeals from the inspector’s decision.

The board concluded that the acquisition of the driveways to Chatham and Ferry Streets did away with the congestion of traffic on Rowe and Chatham Streets and that the uses sought were reasonable, proper and essential to Cott’s business and would “not create or add any more discomfort to the resi-; dents in the vicinity than they already have been; accustomed to” from the operation of a permissible; nonconforming use. It further concluded that the denial of the appeal would not stop the noise complained of, that the changes sought would be beneficial to the residents in the vicinity as well as to Cott because they would alleviate the traffic conges[438]*438tion on Rowe and Chatham Streets, of which the plaintiffs complained, and that if the appeal were denied Cott would suffer a great hardship which would retard production and transportation and affect the value of the investment and the employment of 200 people. The net effect of the board’s decision was the extension of a nonconforming use to a lot area 64 by 53.3 feet adjacent to and in the rear of the Cott plant and a holding that the transportation and handling of storage containers and bottled products, so far as the use of the driveways to Chatham and Ferry Streets was concerned, was not in violation of the ordinance.

We have frequently asserted, as a fundamental proposition, that the decisions of zoning authorities are to be overruled only when it is found that they have not acted fairly, with proper motives, and upon valid reasons. Mallory v. West Hartford, 138 Conn. 497, 505, 86 A.2d 668; First National Bank & Trust Co. v. Zoning Board of Appeals, 126 Conn. 228, 237, 10 A.2d 691. “Where it appears that an honest judgment has been reasonably and fairly exercised after a full hearing, courts should be cautious about disturbing the decision of the local authority.” Kutcher v. Town Planning Commission, 138 Conn. 705, 710, 88 A.2d 538. The burden of overthrowing the decision of this board rests squarely upon the plaintiffs. DeFelice v. Zoning Board of Appeals, 130 Conn. 156, 164, 32 A.2d 635; Perdue v. Zoning Board of Appeals, 118 Conn. 174, 178, 171 A. 26.

The Perry Street property and the driveway from the rear of it to Chatham Street are in a business A zone. The ordinance forbids, in a business zone, “[a]ny trade, business or industry that is noxious or offensive by reason of the emission of . . . noise or vibration.” New Haven Zoning Ordinance (1951) [439]*439§§1015 (1), 1016 (3). The plaintiffs complain that Cott’s operation causes excessive noise and vibration. We first consider this complaint as addressed to the use of the property which lies within a business A zone.

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Bluebook (online)
101 A.2d 284, 140 Conn. 433, 1953 Conn. LEXIS 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmahon-v-board-of-zoning-appeals-conn-1953.