Corden v. Zoning Bd. Of Appeals Of City Of Waterbury

• Decision Date: 08 March 1945
• Citation: 131 Conn. 654,41 A.2d 912
• Parties: CORDEN et al. v. ZONING BOARD OF APPEALS OF CITY OF WATERBURY et al.
• Court: Connecticut Supreme Court

131 Conn. 654

41 A.2d 912

CORDEN et al.

v.ZONING BOARD OF APPEALS OF CITY OF WATERBURY et al.

Supreme Court of Errors of Connecticut.

March 8, 1945.

Appeal from Superior Court, New Haven County; John A. Cornell, Judge.

Action by Henry J. Corden and others against the Zoning Board of Appeals of the City of Waterbury and others, to review order of the defendant board in granting a petition for an order extending a business zone into a residence zone for a business building. A demurrer to the plea in abatement of the defendant Sycamore Corporation was sustained, and judgment was entered for the plaintiffs vacating defendant board's order, and the defendants appeal.

Error, and case remanded, with direction.

John H. Cassidy, of Waterbury, and A. A. Ribicoff, of Hartford (George Miske, of Hartford, on the brief), for appellant Sycamore Corporation.

Maurice T. Healey and Edward J. McDonald, both of Waterbury, for the appellant Zoning Board of Appeals of City of Waterbury.

William K. Lawlor, of Waterbury, for appellees.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

MALTBIE, Chief Justice.

The zoning board of appeals in Waterbury granted the petition of The Sycamore Corporation to permit it to use its property for business purposes for a depth of twenty-five feet beyond a line dividing a business zone from a Residence A zone which crossed the tract, so that it might construct an addition to its building, which fronted on the street; certain property owners appealed from the decision of the board to the Superior Court; it held that decision illegal and improper, sustained the appeal and vacated the order of the board; and from that decision the board and the corporation have appealed to this court.

In the Superior Court the defendants filed a plea in abatement to the appeal, the plaintiffs demurred to it and the court sustained the demurrer. One ground stated in the plea was that the plaintiffs in their appeal did not state facts sufficient to support its allegations that the board acted illegally, arbitrarily and in abuse of the discretion vested in it; but, if the allegations were defective as claimed, a plea in abatement to the action was not the proper way to raise the question; the generality of the allegations would not render void a judgment based on them; Taylor v. Lounsbury-Soule Co., 106 Conn. 41, 49, 137 A. 159; and an insufficiency of the allegations of a complaint not amounting to such a defect as would destroy the jurisdiction of the court is not ground for abating the action. Lovell v. Doble, Quincy, Mass., 88; Bean v. Green, 58 Mass. 279, 4 Cush. 279; Will's Gould on Pleading, 6th Ed., p. 434.

Another ground of the plea in abatement was that no sufficient bond was taken from the plaintiffs. Section 429 of the General Statutes, which authorizes appeals to the court from zoning boards of appeal, contains this provision: ‘The authority issuing the citation in such appeal shall take from the appellant, unless such appellant be an official of the municipality, a bond or recognizance to said board, with surety, to prosecute such appeal to effect and comply with the orders and decrees of the court.’ The defendants' contention that the demurrer admitted the defect alleged in the plea is without foundation; if the record showed that a sufficient bond had been taken, the demurrer could not be held to have admitted the contrary. Meriden v. Rogers, 111 Conn. 115, 118, 149 A. 406. The appeal contained only a recognizance of an individual, without any surety, that the plaintiffs would prosecute the appeal to effect and pay any costs for which judgment might be rendered against them. While it is not easy to see why, on an appeal taken by property owners, as is the one before us, such a bond as that required by § 429 is necessary, we can find no basis for reading an exception into the statute. The failure of the plaintiffs to file a bond of the character specified was sound ground for the abatement of the appeal. Ormsbee v. Davis, 16 Conn. 567, 574; Morse v. Rankin, 51 Conn. 326, 327; Butterfield v. Brady, 111 Conn. 112, 113, 149 A. 252. As the trial court noted in its memorandum of decision on the demurrer to the plea in abatement, it could, upon motion of the plaintiffs, have permitted the process to be amended; General Statutes, § 5541; or, on motion of the defendants, it may well be that it could have made an order that a proper bond be filed; General Statutes, § 5620; but that either of these proceedings might have been adopted does not deprive the defendants of the right to take advantage of the defect by plea in abatement. Means v. Cromwell, 1 Ark. 247, 250. Section 5486 permits the amendment of civil process which is defective after a plea in abatement has been sustained; but this is not ground for a refusal to sustain the plea. The trial court should have overruled the demurrer to the plea in abatement and sustained the plea.

This requires that the case be remanded to the Superior Court. But as the plaintiffs may be able to file an amendment curing the defect, as the appeal has been fully argued before us upon the merits, and as the dismissal of the appeal, if the plaintiffs are not able to amend, would leave the officers of the city in a position where the judgment of the trial court as to the meaning of the ordinance would be their only guide, we have decided to give our opinion upon the main point at issue between the parties.

We summarize the facts appearing in the finding as far as necessary to our decision, with some incidental corrections to which the defendants are entitled. The Sycamore Corporation owned a lot of land at the northwest corner of East Main and Wales Streets, fronting sixty feet on the former and running back about one hundred and forty feet on the latter. This tract of land had been at all times since 1920 in a single ownership, and consequently was so owned when the zoning ordinance was first adopted in 1928. From 1920 until 1935 the only structures on the lot were a three-family dwelling house and a small single-car garage built some time prior to 1931. The land not occupied by these buildings was an open area, used only as a back yard for the convenience of the occupants of the buildings. What use was made of the garage at this time the trial court was unable to find. In 1936, the corporation completed the construction of a building so arranged that it might be occupied by three stores. Prior to 1940, the First National Stores occupied one of them, another was used as a tavern and the third as a drug store. The building extended across the entire width of the lot as it fronted on East Main Street, and along Wales Street for a distance of about seventy-one feet. The surface of the ground back of the building was rough, uneven and ungraded. It was used by employees and patrons in passing along a walk, which ran from Wales Street across the back of the building, to go to and from the rear entrances to the stores, by trucks delivering merchandise to the stores, by the occupants of the stores to burn or dispose of rubbish, with the corporation's passive permission, and by the occupants and patrons of the stores and others to park cars; and this use extended over the entire open space in the rear of the building except for the small space occupied by the garage, which was rented to the proprietor of the tavern for his personal use.

The First National Stores desired to establish a supermarket and, with that in view, the corporation failed to renew the lease to one of the other stores. There still would not be sufficient space for the enterprise and the corporation desired to enlarge the building on the premises by erecting an addition which would extend along Wales Street fifty-three feet eight inches from the rear of the building as it then stood and would occupy the entire width of the lot to that depth. Both sides of East Main Street in this vicinity to a depth of one hundred feet are within a Business 1 zone; the line of this zone crosses the corporation's...