Vicino v. Zoning Board of Appeals

611 A.2d 444, 28 Conn. App. 500, 1992 Conn. App. LEXIS 302
CourtConnecticut Appellate Court
DecidedAugust 4, 1992
Docket10645
StatusPublished
Cited by20 cases

This text of 611 A.2d 444 (Vicino v. Zoning Board of Appeals) 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
Vicino v. Zoning Board of Appeals, 611 A.2d 444, 28 Conn. App. 500, 1992 Conn. App. LEXIS 302 (Colo. Ct. App. 1992).

Opinion

Heiman, J.

The defendant Westbrook zoning board of appeals appeals from the trial court’s judgment sustaining the plaintiffs’ appeal from the denial by the zoning board of appeals of their application for a certificate of approval for the location of an automobile repair shop.

The defendant asserts that the trial court (1) incorrectly interpreted the statutory role of the zoning board of appeals in considering the plaintiffs’ application and (2) improperly substituted its judgment for that of the zoning board of appeals. We affirm the trial court’s judgment.

[502]*502The following undisputed facts are necessary to resolve this appeal. The plaintiffs, Thomas A. and James A. Vicino, own a vacant parcel of land located on the Boston Post Road in Westbrook. This property is located in a district zoned for commercial use.1 The construction of a building as a “public garage or automobile sales agency” is a permitted use in commercial districts in Westbrook. Westbrook Zoning Regulations, Article VIII, § 800 (6). A public garage is defined in the Westbrook zoning regulations as “[a] building, not a private garage, used for the repair, servicing, or storage of motor vehicles.” Westbrook Zoning Regulations, Article I, § 101 (12).

On November 21,1989, the plaintiffs filed an application with the Westbrook zoning commission for site plan approval for the proposed use of a public garage on their property. On April 9, 1990, the zoning commission granted the application unanimously, with the sole condition that the plaintiffs agree that there be no overnight parking or outside storage of vehicles.

On May 25, 1990, the plaintiffs filed an application with the zoning board of appeals for a certificate of approval for the location of a motor vehicle repair shop on their property. See General Statutes § 14-54.2 The zoning board of appeals held a public hearing on the application on June 27, 1990.

At the hearing, the plaintiffs introduced expert testimony and documents regarding their proposed use [503]*503of the property. They offered expert testimony that the proposal would not create any adverse environmental impact, nuisance from dust, noise levels higher than conversational levels or excessive vibrations to the ground outside of the shop. Their expert concluded that there would be no negative impact on any of the abutting property owners. The plaintiffs also produced a letter from the department of transportation authorizing the issuance of a driveway permit. The plaintiffs then offered the testimony of a traffic engineer that the road at the proposed site is thirty feet wide with one travel lane in each direction, that the sight lines are safe and ample, that for the anticipated type of traffic the width and radii of the driveway are adequate and that the use of the site would generate only a small amount of additional traffic. He further testified that the nearest school is 900 to 1000 feet east of the site on the opposite side of the road, that the nearest church is over one-half mile away and that there are no theaters within one mile of the site. Two auto dealerships, one of which had gone out of business at the time of the hearing, were located across the street from the proposed site.3

At the hearing, local residents spoke in opposition to the application. Although they questioned the qualifications and credentials of the plaintiffs’ experts, they did not introduce any expert testimony of their own.

On July 11, 1990, the zoning board of appeals announced its decision denying the plaintiffs’ application. It based its denial on: (1) the disparity between the proposed use and the town’s master plan of development; (2) the proximity of the site to a school; and (3) the proximity of the site to a densely populated residential area.

[504]*504The plaintiffs appealed the zoning board of appeals’ decision to the Superior Court. On August 1,1991, the trial court, finding that the denial of the plaintiffs’ application was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, sustained the appeal and ordered that the plaintiffs’ application be granted. This appeal followed.

I

The zoning board of appeals first claims that the trial court incorrectly interpreted the role of the zoning board of appeals under General Statutes §§ 14-54 and 14-55.4 Specifically, it claims that the trial court equated a “permitted activity” under the Westbrook zoning regulations with the suitability of a proposed location under General Statutes § 14-55. We disagree.

When considering the plaintiffs’ application for approval of a certificate of location for its motor vehicle repair facility, the zoning board of appeals acted as a special agent of the state. Mason v. Board of Zoning Appeals, 143 Conn. 634, 637, 124 A.2d 920 (1956); see also New Haven College, Inc. v. Zoning Board of Appeals, 154 Conn. 540, 542, 227 A.2d 427 (1967) (zoning board of appeals acts as a special agent of the state when considering a certificate of approval for location of a gasoline station under General Statutes § 14-322). When receiving, hearing and eventually deciding whether to grant the application, the zoning board of appeals does not act pursuant to either the municipal zoning ordinance or the zoning statutes. Mason v. Board of Zoning Appeals, supra. Thus, the zoning board of appeals does not act as the “voice of the people,” [505]*505as it claims. Rather, it acts in a special capacity, serving as the local agency “named by the General Assembly to determine whether a certificate of approval should be issued” for a motor vehicle repair facility. Id.

As an agent of the state, the zoning board of appeals must follow the statutory criteria in determining whether to issue the certificate of approval. Id. General Statutes § 14-55 sets forth the criteria to be followed by an agency when making its decision. The zoning board of appeals cannot grant a certificate until the application “has been approved and such location has been found suitable for the business intended, with due consideration to its location in reference to schools, churches, theaters, traffic conditions, width of highway, and effect on public travel. ...” General Statutes § 14-55.

Because the zoning board of appeals acts as a special agent of the state in issuing certificates of approval, the trial court’s scope of review of the zoning board of appeals’ decision is governed by the Uniform Administrative Procedure Act, General Statutes § 4-183 (j) (5). See New Haven College, Inc. v. Zoning Board of Appeals, supra, 543-44. General Statutes § 4-183 (j) (5) mandates that the trial court “shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . .

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Bluebook (online)
611 A.2d 444, 28 Conn. App. 500, 1992 Conn. App. LEXIS 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vicino-v-zoning-board-of-appeals-connappct-1992.