Corsino v. Grover

Decision Date20 April 1961
Citation148 Conn. 299,170 A.2d 267,95 A.L.R.2d 751
CourtConnecticut Supreme Court
Parties, 95 A.L.R.2d 751 Nunzio CORSINO v. Roger M. GROVER, Building Inspector of the Town of Old Lyme et al. Nunzio CORSINO v. ZONING COMMISSION OF the TOWN OF OLD LYME. Supreme Court of Errors of Connecticut

Charles Suisman, New London, with whom, on the brief, was James F. Brennan, Jr., New London, for appellant (plaintiff).

Edmund W. O'Brien, New London, for appellees (defendants).

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

BALDWIN, Chief Justice.

In November, 1958, the plaintiff instituted an action in the Court of Common Pleas against Roger M. Grover, building inspector of Old Lyme, and the zoning commission of Old Lyme. He sought a declaratory judgment respecting the application and validity of certain zoning regulations as they affected lots in the Miami Beach section of Old Lyme and his right to a building permit to erect a cottage on a lot at 38 Washington Avenue in that development. He also sought a permanent injunction against the enforcement of the zoning regulations and to compel the issuance of the permit. In March, 1959, in a second action, he appealed directly to the Court of Common Pleas from the enactment by the zoning commission of certain zoning regulations. General Statutes §§ 8-8 to 8-10. He claimed that the commission had acted arbitrarily and unreasonably and that it had violated statutory mandates and deprived him of constitutional rights. The two actions were tried together, although separate memorandums of decision were filed. The court rendered a judgment for the defendants in the first action and dismissed the appeal in the second. The plaintiff has appealed from both judgments to this court. By stipulation, the appeals have been combined. Practice Book § 382.

Ordinarily, an appeal from a zoning authority is determined upon the record of that authority, but when, as in this case, there has been no stenographic report or mechanical recording, the trial court may receive evidence in order to determine what facts and considerations were, presumptively, in the minds of the commission. General Statutes §§ 8-8 to 8-10; Schultz v. Zoning Board of Appeals, 144 Conn. 332, 334, 130 A.2d 789; Yurdin v. Town Plan & Zoning Commission, 145 Conn. 416, 421, 143 A.2d 639. Then too, since both cases were tried as one, the evidence adduced properly could be considered as applicable to both.

The facts found by the trial court can be stated in summary as follows: Between 1943 and 1947, the plaintiff purchased four contiguous tracts of land on the shore front in Old Lyme. In 1949, the legislature chartered the Miami Beach Association; its territory was these four tracts. 25 Spec. Laws 1130. In 1943, 1947 and 1954, the plaintiff filed subdivision plans for this land in the town clerk's office. At these times, there were no subdivision regulations in effect in Old Lyme. See General Statutes § 8-25. The plaintiff proceeded to develop the land for the erection of summer cottages. He spent in excess of $128,000 to erect a permanent office building, grade the land, make roads and install a water supply system. This system is operative in the summer only. The layout includes 448 building lots, of which 179 have no buildings or improvements on them and belong to the plaintiff. The lots vary in size from less than 4000 square feet to between 6000 and 8000 square feet. There are several other shore-front developments in Old Lyme which contain lots similar in size and design to those in Miami Beach. The plaintiff, a builder, has erected many summer cottages on lots which he has sold. Old Lyme covers 26.4 square miles. It has no public water supply and no sanitary sewer system.

Zoning regulations were first adopted in Old Lyme in 1940, pursuant to what is now General Statutes § 8-1. On January 2, 1957, the zoning commission made an extensive revision of the regulations, effective January 21, 1957. Since that time, Miami Beach has been located in what is designated as an R-10 residence district, which requires a minimum lot area of 10,000 square feet. Old Lyme Zoning Regs. §§ 2.1, 4.2 (Jan. 21, 1957). All of the lots in Miami Beach have less than the minimum area. The 1957 regulations allowed the construction of a permitted building, or the establishment of a permitted use, on any lot 'which at the time of the adoption of these regulations and continuously thereafter was owned separately from any adjoining lot as evidenced by deed' of record. Id. § 3.10. Only single-family dwellings could be built. Ibid. The 1957 regulations also allowed the continuance of any nonconforming use. Id. § 14.1. On December 9, 1957, § 3.10 of the regulations was amended. Under the section as amended, it was necessary to obtain an exception from the zoning board of appeals in order to use an undersized lot. The exception could be given only with respect to a lot owned separately on December 11, 1957, and continuously thereafter. The exception could affect lot area only and had to be in conformance with the sanitary code of the town and the general purpose and intent of the zoning regulations. Many exceptions were thereafter granted. Section 3.10 was again amended, effective August 12, 1958. Old Lyme Zoning Regs. §§ 3.10.1-3.10.4 (Aug. 12, 1958). The effect of the amendment was to establish four categories of lots, those ranging from 8000 to 10,000 square feet in area, those from 6000 to 8000 square feet, those from 4000 to 6000 square feet, and those under 4000 square feet. Lots in the first category were given an automatic exception; § 3.10.2.1; those in the next two categories had to meet certain standards, progressively more severe as lot area decreased, to qualify for an exception; §§ 3.10.2.2, 3.10.2.3; and the granting of any exceptions for lots having an area less than 4000 square feet was prohibited. Id. § 3.10.3. Prior to March 12, 1959, the regulations described a nonconforming use as one which does not 'conform to the regulations prescribed for the district in which it is situated.' Id. § 1.17. Effective March 12, 1959, the regulations were re-enacted, and under them the definition of nonconforming use was changed to exclude from the definition a vacant or unimproved lot unless the location and size of the lot, as designated on a recorded plan, was approved by the planning commission subsequent to January 2, 1957, and a building was erected on the lot within ten years after the date of the approval. Old Lyme Zoning Regs. § 1.17 (Mar. 12, 1959).

The court found that the character and use of the land in R-10 zones, particularly where the plaintiff's land is located, had not changed subsequent to the adoption of the regulations on January 21, 1957. Between January 2, 1957, and March 7, 1959, the zoning of resort areas in Old Lyme was discussed at meetings of the Old Lyme zoning authorities. Pursuant to an ordinance of the town adopted on April 20, 1957, a new zoning commission was elected on October 7, 1957. It employed an expert on sewage disposal systems who made percolation tests in nine areas of Old Lyme, including Miami Beach. He advised that a minimum area of 10,000 square feet should be required for lots where neither a central water system nor sewers existed. Miami Beach, the commission was told, was only a few feet above sea level and was partly filled land, there were several water supply systems, and, at some places, the ground water level was within a few inches of the surface. A professional planner who had previously been employed had reported that unless the development of the beach areas was controlled, their rapid growth would give rise to serious problems of sanitation, schooling and traffic. The cottages at Miami Beach were so constructed that they could be occupied in the winter. Ten were already so occupied. Their water supply came from their own wells or neighbors' wells. It could be expected that there would be a gradual increase in year-round occupancy. When the amendment of § 3.10 became effective on August 12, 1958, the plaintiff had under sale, on an instalment plan, nineteen lots, each of which was less than 6000 square feet in area. No deeds had passed. Owing to the change in the zoning regulations, payments were suspended. One suit was instituted to recover the payments made. Other suits were threatened. On October 30, 1958, the plaintiff applied to the defendant building inspector for a permit to erect a cottage on the lot at 38 Washington Avenue, Miami Beach. The lot contained 3480 square feet and was not one the plaintiff had contracted to sell. The permit was refused.

The defendant zoning commission has assigned error in the finding. Practice Book § 393. It asks that the following facts be found: On January 14, 1957, Antoinette Corsino, the plaintiff's daughter, acting under a power of attorney, quitclaimed to Carmelina Corsino, the plaintiff's wife, 115 lots at Miami Beach. This conveyance prevented the consolidation of any adjoining lots by a single owner because the conveyance divided the unsold lots between the plaintiff and his wife in such a way that neither of them owned an adjoining lot. Each lot had an area of about 4000 square feet. The deed was recorded January 15, 1957. It was subsequently confirmed by one executed by the plaintiff, dated May 24, 1957. This conveyance made it impossible for the plaintiff, without the consent of his wife, or for her, without the consent of the plaintiff, to combine individual lots or any parts of them in such a way as to make a lot having an area of more than 4000 square feet.

Corrections in a finding can be made if the trial court has refused to find a material fact which was an admitted or undisputed fact. Practice Book §§ 396, 397; Maltbie, Conn.App.Proc. § 158. It must be established that the fact claimed was admitted or that its truth was conceded to be undisputed. Brown v. Connecticut Light & Power Co., 145 Conn. 290, 293, 141 A.2d 634; see Chouinard v....

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