Sherman-Colonial Realty Corp. v. Goldsmith

• Decision Date: 31 May 1967
• Docket Number: SHERMAN-COLONIAL
• Court: Connecticut Supreme Court
• Parties: TheREALTY CORPORATION et al. v. Donald E. GOLDSMITH et al.

Page 568

230 A.2d 568

155 Conn. 175

The SHERMAN-COLONIAL REALTY CORPORATION et al. v. Donald E. GOLDSMITH et al.

Supreme Court of Connecticut.

May 31, 1967.

Jules Lang, Norwalk, with whom, on the brief, was Max R. Lepofsky, Norwalk, for appellants (plaintiffs).

Richard G. Bell, New Haven, with whom were Louis M. Winer and, on the brief, Carroll W. Brewster, New Haven, for appellees (defendants).

Before KING C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

HOUSE, Associate Justice.

The factual situation presented on this appeal is more complex than usual in that it involves not only the judgment from which the appeal has been taken but the litigation in an independent but related action in which the Ridgefield planning commission, consisting of all the defendants in the present case, was the plaintiff. To lessen some inevitable confusion, the defendants in the present appeal will be referred to in this opinion, in all instances, as the commission.

The finding, which is not subject to correction in any material respect, discloses that the plaintiffs are the owner and contract-purchaser of real estate in Ridgefield. In 1957, the named plaintiff, the owner, filed two maps in the office of the Ridgefield town clerk showing a proposed subdivision of approximately 141 acres of land into 100 building lots. At that time there were no subdivision regulations in Ridgefield, and such a filing was the accepted manner of subdividing real estate. Effective March 1, 1959, the commission adopted its first subdivision regulations and article 17, § 17, of those regulations provided that 'they shall not apply to any subdivision filed on a map in the Office of the Town Clerk prior to March 1, 1959.' Effective July 13, 1963, the commission adopted new regulations which contained no provision corresponding to article 17, § 17, of the 1959 regulations. The 1963 regulations did, however, contain a section, § 11-1, entitled 'Variations from Regulations', which authorized the planning commission to permit variances in cases where a strict application of the regulations would cause extraodinary hardship and provided that '(i)n determining the extent to which variations may be granted with respect to a subdivision shown on a map filed in the office of the Town Clerk prior to March 1, 1959, the Commission shall be guided by the amount and nature of work done thereon prior to July 13, 1963, and by whether and to what extent full compliance with the regulations would deprive the owner or developer of the benefit of funds prudently invested in development of the subdivision prior to said date.' The named plaintiff paid out $6500 for engineering work pertaining to the subdivisions, and the plaintiff J-P Homes, Inc., the purchaser, hereinafter called the purchaser, paid our approximately $3500 for engineering work and other expenses connected with the obtaining of three building permits. The finding does not disclose the dates on which these expenditures were made and whether it was before or after enactment of the July 13, 1963, regulations, although it is a reasonable inference from the finding that at least the $3500 was expended subsequent to that date. At no time after the adoption of the 1963 regulations did either plaintiff make application to the commission for approval of the subdivisions as provided for in § 11-1.

In April, 1964, the purchaser obtained from the building inspector three building permits to construct houses on three of the lots. The plaintiffs believed the subdivisions to be validly established. Contrary to the advice of the Ridgefield town counsel, as well as of a prior town counsel, both of whom advised the commission that the subdivisions were valid and legally constituted subdivisions, the members of the commission, acting individually and as the commission, by other counsel, instituted suit against the plaintiffs and the building inspector by writ dated June 10, 1964, returnable to the Court of Common Pleas on the first Tuesday of July, 1964. The writ was subsequently amended to remove the members of the commission as parties in their individual capacities and leave the commission as the sole complainant in that suit. By way of relief, that suit sought an injunction against the plaintiffs to restrain them from selling lots in the subdivisions and a declaratory judgment determining the validity of the three permits issued by the building inspector.

The plaintiffs' reaction to that suit was the institution of the action giving rise to the present appeal, that is, a suit in the Superior Court against the commission and its individual members, alleging, inter alia, that the commission's suit was 'malicious, illegal and oppressive and was brought with a wanton and reckless disregard of the rights of the plaintiffs.' The plaintiffs sought an injunction to restrain the commission and its members from proceeding with their action in the Court of Common Pleas, from interfering with the issuance of building permits to build dwellings in the subdivisions, and to prohibit them and their successors from attacking the validity of the plaintiffs' subdivisions. The plaintiffs also claimed $300,000 damages.

The suit pending in the Court of Common Pleas was transferred to the Superior Court, and the actions were consolidated and tried simultaneously. The court concluded that the plaintiffs' subdivisions were subject to the July 13, 1963, subdivision regulations, that the plaintiffs had demonstrated no use of a lot or lots owned by them in the subdivisions which established a vested right to continue a use nonconforming to the subdivision regulations, ¹ that the plaintiffs should have made application for a variance under the provisions of § 11-1 of the 1963 regulations, and that they were not entitled to any damages. The court further concluded that the action of the commission and its members was not malicious but that the action brought by the commission in the Court of Common Pleas was brought without legal authority and, as allegedly aggrieved individuals, the members of the commission should, instead, have pursued a remedy by appeal to the board of appeals pursuant to §§ 8-6 and 8-7 of the General Statutes. Judgment was rendered for the commission and its members in the suit against them and for the subdivision owner and developer and the building inspector in the action brought against them by the commission. No appeal was taken from the latter judgment, and we are here concerned only with the appeal taken by the plaintiffs from the judgment for the commission and its members in the action against them for injunctive relief and damages.

Both parties filed assignments of error from which it appears that the basic issues on this appeal are two: (1) Did the trial court err in going into the merits of the plaintiffs' claims in their action to enjoin the commission from prosecuting its action brought in the Court of Common Pleas after the court decided that the commission had no authority as a body to sue to enforce or to seek a judicial determination of issues affecting the subdivision regulations? (2) Did the trial court err in holding that the plaintiffs' subdivisions, which subdivisions predate the adoption of subdivision regulations by the town of Ridgefield, were subject to the jurisdiction of the commission and the 1963 regulations when the original 1959 regulations had expressly exempted from their purview subdivisions which predated the adoption of subdivision regulations in Ridgefield?

Since no appeal was taken from the judgment in the action instituted by the commission, the judgment rendered in that action is relevant here only because, in the case on appeal, the plaintiffs sought not only substantial damages but an injunction to restrain the commission and its members, as individuals, and their successors in office from proceeding with that suit or any other based on the same claim or theory, from interfering in any manner with the issuance of building permits in the subdivisions, and from, in any way or manner, attacking the validity of the subdivisions. Furthermore, the plaintiffs expressly alleged that...