Town of Farmington v. Viacom Broadcasting, Inc.

522 A.2d 318, 10 Conn. App. 190, 1987 Conn. App. LEXIS 857
CourtConnecticut Appellate Court
DecidedMarch 17, 1987
Docket4535
StatusPublished
Cited by30 cases

This text of 522 A.2d 318 (Town of Farmington v. Viacom Broadcasting, Inc.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Town of Farmington v. Viacom Broadcasting, Inc., 522 A.2d 318, 10 Conn. App. 190, 1987 Conn. App. LEXIS 857 (Colo. Ct. App. 1987).

Opinion

Hull, J.

The defendant appeals from the judgment of the trial court granting the plaintiffs’ application for injunctive relief. The principal issues on appeal are (1) whether the trial court erred in concluding that the plaintiff Farmington planning, zoning and inland wetlands commission (hereinafter commission) had authority to require that the defendant dismantle its “standby” broadcast tower as a condition of granting the defendant’s special exception for the construction of a new, taller broadcast tower, and (2) whether the commission was entitled to injunctive relief absent a showing of irreparable harm. The plaintiffs claims in their preliminary statement of issues that the defendant is estopped from raising these claims because it did not take an appeal from the original action of the commission.

The facts as found by the trial court are as follows. On June 14, 1976, the defendant’s predecessor was granted a special exception by the commission to erect a 500 foot television broadcast tower on Rattlesnake Mountain in Farmington. The special exception was granted subject to certain conditions. The tower had to be erected within two years and the tower existing at the time had to be razed within that time. The tower was not built within two years, however. In June, 1978, the defendant again went to the commission and asked to increase the height of the tower to 1,129.3 feet. At a public hearing, required by the Farmington zoning [192]*192regulations, the defendant confirmed that upon completion of the higher tower, the existing standby tower would be removed. On July 10, 1978, the defendant’s application for a special exception to heighten the tower was granted on condition that when the tower became operational, the standby tower would be dismantled. On July 12, 1978, the town asked the defendant for written assurance that the required condition would be met. In the summer of 1979, the defendant’s chief engineer agreed that the condition regarding dismantling would be met. On September 20,1979, the defendant, by letter, asked the commission to reconsider its decision regarding the dismantling. At a regular commission meeting on October 22,1979, the defendant made a formal request that the order regarding dismantling be relaxed. The commission denied the request on October 29,1979. The defendant never did anything about dismantling the standby tower.

On February 24,1981, the defendant asked for clarification of the commission’s position with respect to dismantling the tower. The defendant appeared before the commission on May 12,1981, requesting permission to continue using the standby tower. The commission granted its request subject to the condition that there would be an annual review until such time as a separate tower, called the WRCH tower, was approved for construction on Rattlesnake Mountain. The defendant agreed on June 1,1981, in writing, that it understood the conditions with respect to the standby tower.

No action was taken until July 16, 1984, when the commission met and received a status report from the defendant. Following this meeting, the town planner wrote to the defendant confirming the mutual understanding that the tower would be dismantled as soon as possible. On August 1, 1984, the defendant responded in writing that it understood the town planner’s letter. It did not, however, begin the dismantling. [193]*193At a regular meeting of the commission on May 28, 1985, the defendant advised the commission that it was negotiating with United Cable Television concerning the standby tower, and that if United Cable secured the ownership of the standby tower, a new agency, the Connecticut Siting Council, would have authority over the disposition of the standby tower and the town could no longer exercise such authority. On June 24, 1985, the Farmington town counsel asked for assurances from the defendant’s counsel that the tower would be dismantled. When no such assurances were given, the plaintiffs brought suit seeking an injunction to prohibit the defendant from selling or leasing the standby tower, and an injunction requiring that the defendant immediately dismantle the standby tower. The court granted the relief sought.

I

The defendant’s first claim is that the court erred in concluding that the commission had the authority to impose the condition that the standby tower be removed upon construction of the taller tower. The defendant cites Beckish v. Planning & Zoning Commission, 162 Conn. 11, 14-15, 291 A.2d 208 (1971), in support of its claim. In Beckish, the plaintiff was granted a special exception on the condition, inter alia, that it take certain advertising signs down. The court found that there was nothing in the zoning regulations authorizing the defendant commission to require the discontinuance of the preexisting, nonconforming use before it would grant the exception. The defendant claims that, as in Beckish, the commission did not have the authority to require the discontinuance of the preexisting use as a condition of granting the special exception.

We do not find Beckish controlling in this instance. The commission had authority, both from the General [194]*194Statutes and from its own regulations, to impose the condition that is in issue here. First, General Statutes § 8-2 states that local zoning regulations “may provide that certain classes or kinds of . . . structures . . . are permitted only after obtaining a special permit or special exception . . . subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values.” (Emphasis added.)

Second, article II, § 1 (3) of the Farmington zoning regulations allows construction of broadcast towers only when permitted by the commission after a public hearing. The regulations condition the commission’s granting of any special exception upon the requirement that the proposed use not increase fire or traffic hazards, depreciate neighborhood property values, or cause other detriment to the neighborhood or its residents. The regulations do not restrict the commission’s power to grant or deny special exceptions to narrow or specific grounds alone. Rather, the regulations give the commission authority to make decisions within broad, general limits related to a proposed structure’s potential impact on the community.

The plaintiffs assert that implicit in the power to authorize special exceptions which do not have an adverse impact on public safety or neighborhood characteristics, is the authority to condition the grant of a special exception to avoid such an impact.

In Lurie v. Planning & Zoning Commission, 160 Conn. 295, 278 A.2d 799 (1971), the court held that a zoning commission had the authority reasonably to condition the grant of a special permit upon certain on and off-site changes and improvements by the applicant and by other town agencies not ünder the commission’s control. In Lurie, the applicant sought to construct office buildings for conducting a particular business. The com[195]*195mission “laid down in meticulous detail specific conditions” to the granting of the requested special exception. Id., 299. Several of the conditions related to on-site matters such as the placement of buildings and parking facilities.

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Bluebook (online)
522 A.2d 318, 10 Conn. App. 190, 1987 Conn. App. LEXIS 857, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-farmington-v-viacom-broadcasting-inc-connappct-1987.