Fiorilla v. Zoning Bd. of Appeals of City of Norwalk

• Decision Date: 19 February 1957
• Citation: 129 A.2d 619,144 Conn. 275
• Court: Connecticut Supreme Court
• Parties: Rose FIORILLA et al. v. ZONING BOARD OF APPEALS OF the CITY OF NORWALK et al. Supreme Court of Errors of Connecticut

Page 619

129 A.2d 619

144 Conn. 275

Rose FIORILLA et al. v. ZONING BOARD OF APPEALS OF the CITY OF NORWALK et al.

Supreme Court of Errors of Connecticut.

Feb. 19, 1957.

Robert B. Devine, Norwalk, for appellants (plaintiffs).

Leslie N. Davis, Norwalk, for appellee (defendant Boots Aircraft Nut Corporation), with whom, on the brief, was Vincent D. Flaherty, Norwalk, for appellee (named defendant).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

O'SULLIVAN, Associate Justice.

The issue on this appeal is whether the court was correct in refusing to invalidate the action of the defendant zoning board of appeals in granting to the defendant Boots Aircraft Nut Corporation a variance permitting an extension of a nonconforming use in a residential zone.

The facts are these: The premises in question lie in a residence AA zone. They are located just south of the Merritt Parkway near the easterly town line of Norwalk. Access to the irregularly shapped land is by a narrow entrance from a public highway. Upon the premises stands a stone building in which light industry has been carried on as a nonconforming use since 1929, the year when the Norwalk zoning ordinance was first enacted. In 1945, the board granted a variance authorizing an extension of the nonconforming use by the then operator of the plant. As a result, an addition constructed of cement blocks was erected. In 1948, the premises were sold to another company, and in 1951 Boots Aircraft Nut Corporation, herein to be called Boots, entered into an agreement with that company to buy the property, provided permission to increase the size of the stone and cement-block building could be obtained. Although an application for a variance to attain that objective was denied, Boots bought the property. It also purchased another parcel of land, with a building thereon, in South Norwalk, believing that the two plants could be satisfactorily operated together. This decision proved to be unwise because of the expense and inconvenience in transporting personnel and material between the two plants. Nevertheless, operations at both were continued until a series of floods, extending over two years, struck the South Norwalk plant, causing damage during one year alone in excess of $100,000. Boots decided that it could not absorb further losses of that nature and closed down the South Norwalk plant.

On January 10, 1956, Boots applied to the board for a variance to permit the construction of an addition to its Norwalk plant. The contemplated addition would double the size of the existing building but is substantially less extensive than the one for which a variance was sought and denied in 1951. In filing the 1956 application, Boots offered to soundproof its manufacturing operations, landscape the property, screen the addition with trees and shrubbery, and tear down a small structure near one of the boundary lines of the property. The board held three public hearings on the application. Every member of the board visited the site in the evening and most of them made several trips in the daytime to examine it. On February 20, 1956, the board granted the application. A group of property owners then took an appeal to the Court of Common Pleas, but their appeal was dismissed. From that judgment they have now appealed to this court.

A preliminary contention advanced by the plaintiffs is that the denial of the 1951 application precluded the board from granting the one submitted in 1956, because, they maintain, no change of conditions had occurred since the prior decision and no other considerations materially affecting the merit of the subject matter had intervened without the vesting of any rights. It is a salutary principle of law that at least one of the two contingencies just stated must ordinarily exist in order to justify an administrative agency in reversing itself. Hoffman v. Kelly, 138 Conn. 614, 616, 88 A.2d 382. Otherwise, there would be no finality to the proceeding, and the first decision would be capable of change at the whim of the agency or, worse still, through improper influence exerted on its members. Mitchell Land Co. v. Planning & Zoning Board of Appeals, 140 Conn. 527, 533, 102 A.2d 316; St. Patrick's Church Corporation v. Daniels, 113 Conn. 132, 137, 154 A. 343. The principle applies, however, only when the subsequent application seeks substantially the same relief as that sought in the former. And it is for the administrative agency, in the first instance, to decide whether the requested relief in both applications is substantially the same. Its determination will be disturbed only if its...