Donohue v. Zoning Bd. of Appeals of Town of Norwalk

• Citation: 155 Conn. 550,235 A.2d 643
• Court: Supreme Court of Connecticut
• Decision Date: 10 November 1967
• Parties: Julian P. DONOHUE v. ZONING BOARD OF APPEALS OF the TOWN OF NORWALK.

Page 643

235 A.2d 643

155 Conn. 550

Julian P. DONOHUE v. ZONING BOARD OF APPEALS OF the TOWN OF NORWALK.

Supreme Court of Connecticut.

Nov. 10, 1967.

Edward J. Zamm, Sp. Counsel, with whom, on the brief, was Thomas A. Flaherty, Corp. Counsel, for appellant (defendant).

Robert N. Grosby, Norwalk, for appellee (plaintiff).

Before ALCORN, HOUSE, THIM, RYAN and COVELLO, JJ.

RYAN, Justice.

The plaintiff, the owner of land located on Ely Avenue in the city of Norwalk, applied to the zoning inspector for a permit to erect a commercial building on his land. On June 14, 1966, the application was denied on the ground that the granting of the permit would be in conflict with the Norwalk zoning regulations. On June 15, 1966, the plaintiff appealed from this decision to the defendant board. The plaintiff's appeal was heard by the board on July 21, 1966, and, on October 6, 1966, it was denied. From this decision the plaintiff appealed to the Court of Common Pleas, alleging that the action of the board was erroneous and void and that the board was without jurisdiction because of its failure to decide the appeal within sixty days after the hearing in accordance with § 8-7 of the General Statutes (Rev. to 1966). He also alleged that the purported decision of the board was contrary to law and was an erroneous application of § 15 of the Norwalk zoning regulations. The trial court sustained the plaintiff's appeal and rendered judgment accordingly. From this judgment the board appealed to this court.

The judgment file recites the plaintiff's prayers for relief as follows: '1. A judgment declaring that the decision of the defendant board denying the appeal and sustaining the action of the Building and Zoning Inspector more than sixty (60) days from the date of hearing was without jurisdiction, erroneous and void. 2 A judgment directing the board to reverse the action of the Building and Zoning Inspector and directing him to grant the permit. 3. A judgment directing the Building and Zoning Inspector to grant the permit applied for by the plaintiff'.

It then recites that the court, having heard the parties, found the issues for the plaintiff and sustained the plaintiff's appeal. Thus, the judgment is that the board was without jurisdiction to render its decision. Obviously, if the court found that the board was without jurisdiction, there would be no occasion to consider whether the board acted illegally or in excess or abuse of its powers. Since the court properly made no finding, we turn to its memorandum to ascertain the legal conclusions upon which it based its judgment. City of Rockville v. Public Utilities Commission, 146 Conn. 1, 6, 146 A.2d 916; see In re Application of Koenig, 152 Conn. 125, 130, 204 A.2d 33; Treat v. Town Plan & Zoning Commission, 145 Conn. 136, 140, 139 A.2d 601; Gordin v. Zoning Board, 145 Conn. 597, 600, 145 A.2d 746; State ex rel. Haverback v. Thomson, 134 Conn. 288, 291, 57 A.2d 259.

The court's memorandum of decision indicates that the judgment was based on its interpretation of § 15 of the Norwalk zoning regulations. As a result of its construction of the regulations, it concluded that the action of the board in denying the application of the plaintiff was illegal and arbitrary and that the appeal should be sustained. The appeal was decided on the merits, and the court did not pass on the plaintiff's claim that the board was without jurisdiction because of its failure to decide the appeal within sixty days after the hearing.

Despite the representation of counsel in argument that, in zoning matters, the city of Norwalk was acting under the provisions of a special act of the General Assembly, it is quite clear that it has been acting under the General Statutes since 1929, and that chapter 124 of the General Statutes applied. In zoning cases it is, at times, of importance to distinguish between municipalities acting under special acts and those operating under the General Statutes. Puskarz v. Zoning Board of Appeals, 155 Conn. 360, 364, 232 A.2d 109; Gregorio v. Zoning Board of Appeals, 155 Conn. --, 232 A.2d 330. This court should not be required to do the work of counsel in making this determination.

It is admitted in the pleadings that the date of the hearing before the board was July 21, 1966, and that the board rendered its decision on October 6, 1966. Section 8-7 of the General Statutes (Rev. to 1966) provides, in part, as follows: 'Said board shall decide such appeal within sixty days after the hearing.' The plaintiff urges that the statute makes it mandatory for the board to decide the appeal within sixty days after the hearing, that the board's decision, rendered more than sixty days thereafter, was void, and that the board was therefore without jurisdiction. In determining whether a statute is mandatory or merely directory, the most satisfactory and conclusive test is whether the prescribed mode of action is of the essence of the thing to be accomplished or, in other words, whether it relates to matter of substance or to matter of convenience. Gallup v. Smith, 59 Conn. 354, 358, 22 A. 334, 12 L.R.A. 353. Viewed in the light of this test, the provision of § 8-7 is directory and not mandatory. It relates to procedure. The language is affirmative in character and such as would naturally be used to secure the prompt and proper dispatch of the appeal. Winslow v. Zoning Board, 143 Conn. 381, 384, 122 A.2d 789. The statute contains nothing which expressly invalidates a belated decision or which inferentially makes compliance therewith a condition precedent. The provision is not of the essence of the thing to be accomplished. International Brotherhood of Teamsters, etc. v. Shapiro, 138 Conn. 57, 68, 82 A.2d 345. There is no statutory limitation of time, the nonobservance of which renders the board's decision voidable. Wilson Point Property Owners Assn. v. Connecticut Light & Power Co., 145 Conn. 243, 267, 140 A.2d 874; Danbury Rubber Co. v. Local 402, 145 Conn. 53, 56, 138 A.2d 783; Spencer's Appeal, 78 Conn. 301, 303, 61 A. 1010.

The plaintiff is the owner of land which fronts on Ely Avenue and is approximately ninety feet wide and 200 feet deep. The lot is divided into two separate zone designations. The front 100 feet from the street line lies in a C residence zone. The zone line runs parallel to and 100 feet distant from Ely Avenue. The rear half of the property lies in a light industrial 1 zone. The plaintiff's application for a permit to erect a commercial building conformed to light industrial 1 zone regulations but did not conform to the C residence zone regulations. It is the claim of the plaintiff that paragraph 3 of § 15 of the zoning regulations is applicable, and he invoked its provisions, claiming that, since his lot is in the interior of a block, he is permitted to use the entire lot in accordance with the use regulations of the light industrial 1 zone. The pertinent sections of the regulations are set forth in a footnote. ¹

The board contends that the language of paragraph 3 of § 15 prohibits the use of the plaintiff's land in accordance with the less restricted zone regulations within 100 feet or any and all streets bounding the block, including the street on which the lot fronts. In...