Antenucci v. Hartford Roman Catholic Diocesan Corp.

• Decision Date: 10 May 1955
• Citation: 142 Conn. 349,114 A.2d 216
• Court: Connecticut Supreme Court
• Parties: Domenick ANTENUCCI et al. v. The HARTFORD ROMAN CATHOLIC DIOCESAN CORPORATION. Supreme Court of Errors of Connecticut

Page 216

114 A.2d 216

142 Conn. 349

Domenick ANTENUCCI et al. v. The HARTFORD ROMAN CATHOLIC DIOCESAN CORPORATION.

Supreme Court of Errors of Connecticut.

May 10, 1955.

Joseph P. Cooney, Hartford, with whom, on the brief, were Henry F. Cooney and John F. Scully, Hartford, for appellant-appellee (defendant).

Richard M. Feingold, Hartford, with whom, on the brief, was Marshall S. Feingold, Hartford, for appellants-appellees (plaintiffs).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

DALY, Associate Justice.

In this action the plaintiffs sought an injunction restraining the defendant from using land owned by it for a cemetery, and other relief. They withdrew the first of the three counts of their complaint. On the second, in which they claim that the defendant's proposed use of its land would constitute a nuisance, judgment was rendered for the defendant. On the third, in which they claim that the proposed use would violate the zoning regulations of the town of Bloomfield, judgment was rendered for them. The plaintiffs and the defendant have appealed.

The finding recites the following facts: Mount St. Benedict's Cemetery is located in the town of Bloomfield, which adjoins the city of Hartford on the north. The cemetery contains 127 acres and extends easterly into the town of Windsor. The land was acquired in three parcels, the first by St. Patrick's Church Corporation in 1873, the second by St. Joseph's Cathedral Corporation in 1911, and the third by the defendant in 1916. The defendant still holds legal title to a portion of the cemetery, which it operates and manages. It also owns property on the westerly side of Blue Hills Avenue. It desires to use this, too, for cemetery purposes and, if permitted to do so, will operate and manage it in connection with the existing cemetery. Blue Hills Avenue runs from Hartford in a northerly and westerly direction across Bloomfield to the town of Windsor. The present cemetery is the principal place of burial in the Hartford area for members of the Roman Catholic faith. It is maintained in excellent condition, with attractive planting and landscaping, and has a frontage of 2,250 feet on the easterly side of Blue Hills Avenue. On August 17, 1943, the defendant purchased its property on the west side of Blue Hills Avenue. The tract is irregular in shape and has an area of about 83 acres, which a frontage on Blue Hills Avenue of 850 feet, of which about 450 feet is opposite the existing cemetery. The property has long been known as the Hubbard Farm and for many years has been operated as a farm. Since 1943, the defendant has leased it for farming purposes.

The plaintiff Samuel Attardo owns a two-family house at 40 Hubbard Street and the rear of his lot abuts on the Hubbard Farm property. The plaintiff Bert Shampain owns a small residence at 150 Brookline Avenue and the rear of his lot also abuts on the farm. The plaintiff Domenick Antenucci owns a large lot, 800 feet by 500 feet, on Douglas Street and one side of this lot abuts on the farm. Blue Hills Avenue is a main, heavily traveled, thoroughfare, and for about a mile north of the Bloomfield-Hartford line a strip on either side of the avenue is zoned for business. A large outdoor motion picture theater is located near the Hubbard Farm, and between the farm and the city line there are, within the business zone, numerous commercial establishments, including gasoline stations, an outdoor storage yard for old cars, a furniture shop, a plumbing shop, a cabinet works, two monument yards, a branch library, a lot for pony rides, a radio transmission station with high towers topped by signal lights, a shoemaker's shop, cheap eating places and similar businesses. The properties in the rear of the strips zoned for business, including the side streets on which the plaintiffs live, are in an R-10 residence zone. R-10 is the lowest class of residential zone in the town. For the most part, houses located on these streets an in this zone are of moderate or low cost.

About one-half or three-quarters of a mile west of Blue Hills Avenue, there is a through highway from Hartford known as Granby Street. The property on the west side of the street is zoned for industry. It has several small manufacturing establishments on it, and there is a likelihood of more. Just south of the Hartford city line on Granby Street, there is a very extensive low-cost housing development which is visible from the Hubbard Farm. Four or five funeral processions, on the average, travel on Blue Hills Avenue each day to Mount St. Benedict's Cemetery. On the several religious holy days and on Mother's Day and Memorial Day, when it is customary to visit the graves of the dead, there is heavy traffic to and from the cemetery. In the evening, continuing very late, there is, except for a few months in the winter, heavy traffic to and from the outdoor motion picture theater. The use of the Hubbard Farm for a well-kept cemetery conducted by the defendant is far more desirable than the use which would result if it were developed in a manner similar to the development, in recent years, of most of the property in this area.

Zoning regulations became effective in Bloomfield on March 15, 1950. They contain no provision for the establishment of any new cemetery within the town. The defendant has not sought an amendment of the regulations to permit a new cemetery on the Hubbard Farm property. The highest class of zone under the regulations is R-30. Bloomfield Zoning Regs., Art. 2, § 1. Among the permitted uses in an R-30 zone is the 'extension of an existing cemetery.' Ibid. In 1953, the defendant filed a map in the office of the town clerk of Bloomfield showing the proposed development of the Hubbard Farm as a cemetery and made application to the building inspector for permission to use it for cemetery purposes. On April 29, 1953, a certificate of use for those purposes was issued. The application was made by the defendant only, and the certificate was issued to it alone. Blue Hills Avenue separates the existing cemetery and the Hubbard Farm. The latter nowhere adjoins the former. It is a different and separate tract of land. The highway which lies between the two properties cuts each completely off from the other. The plaintiff's claim that the proposed use of the Hubbard Farm would have a depressing effect upon them and their families and would disturb the enjoyment of their homes. The plaintiffs Attardo and Shampain claim that they will sell their properties and move elsewhere if the cemetery is extended. At certain times, traffic entering the cemetery is congested on Blue Hills Avenue for a distance of 1,500 feet to the south and also blocks the entrances to the side streets on the east side of the avenue south of the cemetery. Funeral processions entering the Hubbard Farm property would, at certain times, increase the traffic load on Blue Hills Avenue and on the narrow side streets on which the plaintiffs reside.

The defendant, as appellant, claims that the trial court erred in concluding that the proposed use of the Hubbard Farm cannot properly be regarded as the 'extension of an existing cemetery,' in concluding that the defendant may not proceed to use it for cemetery purposes under the certificate issued by the building inspector, and in rendering judgment for the plaintiffs on the third count.

The plaintiffs claim that the Hubbard Farm cannot be used for the 'extension of an existing cemetery' because St. Patrick's Church Corporation and St. Joseph's Cathedral Corporation did not join with the defendant in applying for the certificate of use and the certificate was not issued to all three corporations. They base this contention upon the fact that the defendant holds legal title to only a portion of the land comprising the existing cemetery. Since the defendant operates and manages the entire cemetery, it is in possession of all...