DocketNumber: No. CV 93-0457305S
Citation Numbers: 1994 Conn. Super. Ct. 8482
Judges: LAVINE, JUDGE.
Filed Date: 8/19/1994
Status: Non-Precedential
Modified Date: 4/18/2021
For the reasons stated below, the appeal is denied.
Aggrievement
At the June 23, 1994, hearing in this case evidence was presented that Clifford Soucie owns land within 100 feet of CT Page 8483 the subject premises. Accordingly, the court finds that Soucie has demonstrated aggrievement. General Statutes §
Facts
The material facts are essentially undisputed, and therefore will not be set out in length. To summarize very briefly, on February 26, 1993, the Simsbury zoning enforcement officer issued a cease and desist order directed to Nancy Augustine, d/b/a Bargain Fun Attic, as tenant, and to landlord Aerospace Industries, Inc., one of the owners of the building where her business was located at 2 Tunxis Road in Tariffville. The business, a thrift shop, is located within a flood plain zone, which permits only limited use as recreation, agriculture, or open space, and certain limited uses after special exception. The property has been the subject of previous applications, appeals and orders in recent years.
On March 26, 1993, Augustine filed an application with the Simsbury Zoning Board of Appeals seeking review of the zoning enforcement officer's order. A public hearing was held on April 28, 1993. On May 26, 1993, the board granted the application.
On June 16, 1993, the instant appeal was filed. At the June 23, 1994 hearing, plaintiff pursued two arguments. First, plaintiff argued that the instant appeal was inconsistent with a prior final judgment of Simsbury's zoning commission and is thus barred under the doctrine of res judicata. Second, plaintiffs argue that the decision of the Zoning Board of Appeals exceeded the scope of its authority under General Statutes §§
Preliminarily, the court rejects the argument, put forth by plaintiffs, that defendants have the burden in this appeal. In the court's view, plaintiff carries the burden in this appeal of demonstrating that the ZBA acted illegally or abused its discretion when it reversed the zoning enforcement CT Page 8484 officer. Caserta v. Zoning Board of Appeals,
Plaintiff's first argument, as mentioned, is that the instant action is barred by the doctrine of res judicata. Plaintiff argues that an application involving the same retail use by Augustine was heard by the zoning commission and decided adversely on April 6, 1992, when the commission decided that retail use was not a grandfathered use. Plaintiff argues further that this previous decision of the zoning commission was appealed to the Superior Court by Nancy Augustine (Nancy Augustinev. Simsbury Zoning Commission, et al, CV 92-512606, Judicial District of Hartford/New Britain at Hartford). It is uncontested that this appeal was withdrawn by Augustine. Plaintiff's argument fails because he cites no authority in support of his contention that withdrawal of an appeal of a decision of a zoning board of appeals is the equivalent of a final judgment triggering res judicata. As is noted in Wade's Dairy Inc. v.Fairfield,
Plaintiff's second argument is based on his reading of General Statutes §§
A search of the record, Burnham v. Planning and ZoningCommission, supra, reveals that although the ZBA did not state the reasons for its decision, valid reasons and sufficient evidence existed for the ZBA to act as it did in light of the evidence presented to it indicating that a retail use existed at the mill before the flood plain was enacted. The ZBA apparently relied upon one exhibit in particular, ROR Exhibit 13, an April 2, 1993 letter from Elton Lewis, secretary of the prior owner, The Tariffville Manufacturing Co., which had not earlier been available to be presented to the zoning commission. As noted above, the question before this court is not whether it would have decided the matter as the ZBA did. The ZBA had wide discretion to weight witness credibility and the evidence it received. Torsiello v. Board of Appeals,
In conclusion, the plaintiff has failed to sustain his burden on this appeal. The doctrine of res judicata did not operate to bar the ZBA from acting as it did under the General Statutes. The ZBA did not exceed its authority in acting as it did. The record provides support for the ZBA's action. The appeal is therefore denied.
DOUGLAS S. LAVINE JUDGE, SUPERIOR COURT