Comley v. Boyle

• Decision Date: 02 August 1932
• Citation: 162 A. 26,115 Conn. 406
• Parties: COMLEY, State's Atty. ex rel. ROWELL v. BOYLE et al.
• Court: Connecticut Supreme Court

162 A. 26

115 Conn. 406

COMLEY, State's Atty. ex rel. ROWELL v. BOYLE et al.

Supreme Court of Errors of Connecticut.

August 2, 1932

Appeal from Superior Court, Fairfield County; Edwin C. Dickenson Judge.

Application for a writ of mandamus by William H. Comley, State's Attorney, on the relation of George P. Rowell, against Joseph H. Boyle and others to require the Building Commission and the common council of the City of Stamford to issue a building permit to the relator, brought to the superior court in Fairfield county, whence issued an alternative writ, and upon issue joined and hearing, a peremptory writ was denied the alternative writ dismissed, and the relator appealed.

No error.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

Lot owner's inability to obtain financial benefit from lot except by building commission's removing Building Code restrictions held not " practical difficulty" authorizing their removal. 17 Sp.Acts 1915, p. 564, § 132 et seq.; p. 565, § 140.

Clement A. Fuller and Joseph L. Melvin, both of Stamford, for appellant.

Maurice J. Buckley, of Stamford, for appellees.

HAINES, J.

The relator is the owner of an undivided one half interest and a lessee of the other half in an unoccupied rectangular tract of land in the city of Stamford, forty by fifty feet in size. This tract is situated in a section which is established by the Building Code of that city as a " fire district" or as " fire limits," and is also within a business zone as defined by the zoning regulations of the city.

Chapter 10 of the revised charter of the city creates a building commission of seven members, one being the building inspector of the city, three being the building committee of the common council, and three composed of electors of the city, with the mayor as member ex officio. 17 Special Acts, 1915, pp. 564, 565, § 132 et seq. The building commission is given general power to supervise the erection, maintenance, and use of buildings in the city and to issue permits for the construction of buildings. An appeal to the common council is provided, by any party claiming to be aggrieved by the action of the building commission, and the charter states that " At said time and place the common council shall hear any such party or parties, and any member or members of said building commission, together with witnesses and counsel, in relation to said appeal, and is authorized to and shall confirm, modify, or set aside the action of said building commission from which such appeal was taken and may issue any permit so refused by said commission." Section 140.

There are in effect in the city certain zoning regulations and a Building Code, which provide that it shall not be lawful to construct any building or structure until a permit to do so has been obtained, and that no permit shall be issued unless the proposed building complies with the laws and ordinances applicable thereto, the duly authorized regulations of the building commission, the zoning commission, or the board of appeals.

Section 204 of the Code, par. 5, provides, in part: " a. The Building Commission shall have power to vary or modify a provision of the Building Code or of an authorized regulation with respect to a particular building or structure, upon written application by the owner or lessee, or his duly authorized agent, where there are practical difficulties in the way of carrying out the strict letter of such provisions, so that its spirit shall be observed and substantial justice done; but no variation or modification shall be granted or allowed unless the particulars of each application and of the decision of the building commission thereupon shall be entered upon the records of the commission."

Section 204, par. 6, provides: " All matters and questions relating to building or building operations necessary for safety but not covered or provided for in the Building Code shall be decided by and left to the discretion of the Building Commission, and their decision shall be final and binding as if contained in the Building Code."

The Code classifies buildings, and designates as one class " unprotected metal" structures, and buildings of this class may not be erected within the fire limits, which, by the terms of the Code, include the business zones established by the zoning regulations.

The relator applied to the building commission April 6, 1931, for a permit to erect on the above-described tract " an all-metal or temporary structure to be used for the purpose of maintaining a fruit and vegetable market or other kindred purposes." This was concededly an " unprotected metal" structure within the definition of the Code. In support of his application he claimed to the building commission that his proposed building was within the purview of section 204, par. 5, above quoted. At the same time he complained that the Code, as applied to the situation presented by his application, was unconstitutional.

The type of building proposed at the location referred to is not allowed by the Building Code, and the building commission refused to issue a permit for its construction. The relator then appealed to the common council, but at the hearing thereon objected to the participation in the hearing of the three members of the building commission, claiming they were disqualified by reason of having previously heard and acted upon the same matter as a building commission. The objection was overruled, and, after the hearing, the common council, by a vote of six to three, " denied" the " petition" of the relator, who then brought this action of mandamus to the superior court. That court heard the various claims of the parties and dismissed the alternative writ. A study of the record shows that the entire proceeding finally resolved itself into two principal questions, viz.: Whether the restrictions of the Building Code were constitutional; and whether the building commission and the common council in the reasonable exercise of discretion should have modified or lifted the restrictions. The reason urged by the relator in supporting the affirmative of this latter question was that there were " practical difficulties" in carrying out the restrictions, within the meaning of paragraph 5 of section 204, above quoted. The relator claimed that, if he were not permitted to erect his building, he would fall to obtain a considerable financial benefit which would otherwise accrue to him and insisted that this was a " practical difficulty" within the meaning of the Code. The superior court found that these facts did not constitute " practical difficulties" within the true intent and meaning of the Building Code, and held that the respondents were bound by the ordinances as they stood and were justified in refusing the permit.

Of the forty assignments of error, twenty-two relate to the refusal of the court to find certain facts claimed by the relator. The truth of these allegations of fact is not denied, but they were refused by the court on the ground that they were immaterial. Four of them purport to show the financial benefit which would accrue to the relator by the granting of the permit, and eight recite the action taken upon other applications, claimed to be of a similar character. The remaining ten assignments recite details of the action by the common council at the hearing upon the appeal; the claim being that it disclosed improper motives of the common council in holding the relator to the requirements of the building code.

If the inability of the owner of land to obtain financial profit from the erection of a building thereon were to be considered a " practical difficulty" in applying the restrictions of a Building Code to that erection, then there are few cases indeed where practical difficulties could not be shown under most of the restrictive provisions of a Building Code. Thayer v. Board of Appeals. 114 Conn. 15, 22, 157 A. 273; Norcross v. Board of Appeal, 255 Mass. 117, 185, 150 N.E. 887, 890. The very fact that these are recognized as restrictions indicates that property owners must submit to a limitation upon the use of their properties, but, if these limitations are constitutional and apply reasonably and fairly to all, there can be no question of the right to impose them under the police power for the general welfare. State v. Hillman, 110 Conn. 92. 100, 147 A. 294, and cases there cited. Facts showing a financial benefit to the landowner by a removal of the restrictions did not of themselves constitute " practical difficulties" in the sense in which that term is used in the ordinance, and no purpose would have been served by inserting in the finding claimed facts in relation thereto.

The request to include in the finding facts relative to other permits previously considered by the building commission, was rightly refused. The trial court properly regarded facts relating to the procedure of the common council as having no place in the finding. This is not an appeal from the doings of that body, but an independent proceeding for a mandamus.

The action of the building commission was that required by the Building Code, and the common council as a court of review could properly sustain that action. Even if the facts urged by the relator were held to be " practical difficulties," these did not impose upon either the building commission or the common council the absolute duty of granting the permit. The action of both bodies is discretionary, and, if the discretion be properly exercised, it cannot be disturbed or controlled by mandamus. Thus it has been said in State ex rel. Berger v Hurley, 73 Conn. 536, 538, 48 A. 215, a writ of mandamus will not be issued to enforce the performance of a ministerial duty, unless (1) the party...