Blum v. Lisbon Leasing Corp., Inc.

• Decision Date: 14 June 1977
• Citation: 377 A.2d 280,173 Conn. 175
• Court: Connecticut Supreme Court
• Parties: Jerome W. BLUM et al. v. LISBON LEASING CORPORATION, INC., et al.

Page 280

377 A.2d 280

173 Conn. 175

Jerome W. BLUM et al. v. LISBON LEASING CORPORATION, INC., et al.

Supreme Court of Connecticut.

Argued April 7, 1977.

Decided June 14, 1977.

Kevin E. Booth, New London, with whom, on the brief, were Leo J. McNamara, New London, and William J. Meuser, Milford, for appellants (defendants).

John R. FitzGerald, Hartford, for appellees (plaintiffs).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

LONGO, Associate Justice.

The plaintiffs instituted an action in the Superior Court seeking damages and an injunction prohibiting the defendants from using certain premises for business purposes not permitted by the zoning regulations. The defendants have appealed to this court from the judgment granting the requested injunction. The court denied the plaintiffs' claim for damages.

Having examined the defendants' attack on the court's findings we arrive at the following summary of the pertinent facts: In November, 1969, Ralph P. Chick owned a parcel of land located on route 138 in the town of Lisbon where for many years he had conducted a gasoline filling station and automobile repair shop. In December, 1969, the premises were leased to Andre J. Messier and at various times during the lease term, repair, maintenance and tire work were performed on trucks and equipment for three transportation companies. On March 4, 1970, the Lisbon Leasing Company was incorporated, and, on March 18, the premises were sold to the corporation which was empowered by its certificate of incorporation to buy, sell and lease all types of motor carriers and equipment.

The town of Lisbon adopted zoning regulations on July 6, 1970, placing the premises in issue in an R-40 residential district. The regulations prohibited the use of any land or building for any purpose not in conformity with all regulations, requirements and restrictions specified in the regulations, but permitted the continuance of any nonconforming use or building lawfully existing at the time of the adoption of the regulations. ¹ The zoning regulations do not allow the uses made by the defendants of the premises in an R-40 residential district.

Following the adoption of the regulations, the defendant Lisbon Leasing Corporation discontinued the use of the premises as a gasoline filling station and automobile repair garage and commenced using the land and building for a tire recapping manufactory, a retail tire store, a radiator repair shop, a tire storage center, a trucking terminal and a tire dump. The various operations were conducted by the three defendant corporations, all of which were owned by the Messier family.

On November 10, 1971, the Lisbon zoning enforcement officer who was also the chairman of the zoning board issued a building permit for the enlargement of the existing building on the premises. The permit contained the following notation: "Non-conforming use allowed to expand Article 6.1 Zoning Regulations." The plaintiff Jerome Blum complained when he noticed the structurally altered and enlarged building, and thereafter he and other plaintiffs who were abutting property owners or owned property in the immediate area of the defendants' premises made numerous complaints to the planning and zoning commission concerning the changes in the use of the premises. These complaints were discussed at seven meetings of the commission between June 1, 1971, and June 6, 1972, but the complaints failed to produce formal action by the commission or by the enforcement officer. The complaints related to the smoke, loud noises, odor of burning rubber, the tire recapping operation which starts between 5:30 a. m. and 7:00 a. m., the arrival of trucks at irregular hours, sometimes as early as 2:30 a. m., the fumes and odors produced by idling diesel engines and tractors, and the soot deposited on property owned by the plaintiffs all of which tended to destroy the plaintiffs' use and enjoyment of their properties. The trial court viewed the premises, confirming evidence introduced by the plaintiffs that the premises in question were unsightly, noisy and odorous.

Among the conclusions reached by the trial court were the following: The zoning regulations adopted by the town of Lisbon on July 6, 1970, did not permit the conduct of any business in an R-40 residential district; the use of the premises as a gasoline station and automotive repair shop was nonconforming, but the nonconforming use was lawful as long as it continued; after July 6, 1970, the Lisbon Leasing Corporation did not continue the nonconforming use as a gasoline filling station and repair shop, thereby abandoning the use of the premises for those purposes; the premises were not actually used for the contemplated purposes of conducting a tire recapping manufactory, a trucking terminal, a retail tire store, a radiator repair shop, and a tire storage center until after July 6, 1970. Finally, the court concluded that the use made by the defendants was not the same as that made by the prior owner, and that the use violated the zoning regulations of the town of Lisbon.

In their first assignment of error, the defendants contend that the plaintiffs are not entitled to injunctive relief without first having appealed to the zoning board of appeals, as provided by statute. The defendants cite the many decisions of this court wherein we have held that "when a party has a statutory right of appeal from the decision of an administrative officer or agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test." Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 33, 193 A.2d 483, 486; State Water Commission v. Norwich, 141 Conn. 442, 447, 107 A.2d 270; McNish v. American Brass Co., 139 Conn. 44, 53, 89 A.2d 566. "This power (to review) is vested in a zoning board of appeals, both to provide aggrieved persons with full and adequate administrative relief and to give the reviewing court the benefit of the local board's judgment." Country Lands, Inc. v. Swinnerton, supra, 151 Conn. 33, 34, 193 A.2d 486; see 2 Rathkopf, Zoning and Planning (3d Ed.) p. 37-6, § 1.

The present case is distinguishable from those cases in which we have held that the exhaustion of administrative remedies is a prerequisite to appeal. In the present case, the plaintiffs do not seek review of adverse action taken by a zoning board; rather, they seek to attack directly the existence of a nonconforming use concerning which the zoning board has refused to take any official action. Nor is this a situation in which the plaintiffs seek to launch a collateral attack on an order of an administrative body. Rather, they seek to attack directly the actions of the defendants in using their property for impermissible purposes in...