Fitzgerald v. Merard Holding Co., Inc.

• Citation: 147 A. 513,110 Conn. 130
• Court: Supreme Court of Connecticut
• Decision Date: 08 October 1929
• Parties: FITZGERALD v. MERARD HOLDING CO., INC., ET AL.

147 A. 513

110 Conn. 130

FITZGERALD v. MERARD HOLDING CO., INC., ET AL.

Supreme Court of Errors of Connecticut.

October 8, 1929

Appeal from Superior Court, Fairfield County; John W. Banks, Edwin C. Dickenson, and Carl Foster, Judges.

Action by Margaret Cook Fitzgerald against the Merard Holding Company, Incorporated, and another, for an injunction restraining defendants from using a certain building for business purposes in alleged violation of zoning regulations of the town of Greenwich, brought to the superior court in Fairfield county and tried to the court. Judgment for plaintiff, and defendants appeal. Error in part, and judgment of superior court set aside, with directions.

Possession of building permit, commencement of work, or execution of contracts, is not vested right, invasion of which invalidates enactment of general application.

At a special town meeting of the town of Greenwich held on January 29, 1925, a zoning commission and a board of adjustment were appointed. The zoning commission met and organized on February 16, 1925, and determined to engage the services of an expert to draft appropriate zoning regulations; H. S. Swan was subsequently engaged to prepare such regulations and a zoning map. On January 4, 1926, he presented proposed regulations and map, and the commission voted that a copy be filed with the secretary of the commission and that a public hearing thereon be held on February 1 1926. On January 7th and 8th notice of such public hearing was published in Greenwich newspapers; on January 11th a copy of the proposed regulations and map was filed with the secretary of the commission; and on January 21st such regulations and map were published in a Greenwich newspaper. On February 1, 1926, a public hearing was held, various amendments were made, and the building zone regulations and map were then adopted by the commission, pursuant to chapter 242 of the Public Acts of 1925, and No. 408 of the Special Acts of 1925 (19 Sp. Laws 1925, p. 881), to take effect immediately, and a building inspector, to enforce the regulations and issue permits thereunder, was appointed.

The general provisions of the regulations so adopted which are important to the present inquiry, including the declaration of purposes contained in section I, are in substance identical with those of the zoning regulations of the city of Bridgeport, quoted in State v. Hillman, 110 Conn 92, 147 A. 294, and, except as hereinafter noted, need not be repeated here. Thereby the town of Greenwich is divided into six classes of zones: A, B, and C, Residence Zones, Business Zones Nos. 1 and 2, and Industrial Zones. It is provided (section II) that: " In a residence zone, subject to the provisions of Section VI, no building or premises shall be used and no building shall be erected or altered which is arranged, intended or designed to be used except for one or more of the following uses: 1. Dwellings or tenements, including the office of a physician, surgeon, dentist, architect, engineer, lawyer, dressmaker, artist or musician when situated in the same dwelling or apartment used by such physician, surgeon, dentist, architect, engineer, lawyer, dressmaker, artist or musician as his private dwelling. 2. Boarding houses and rooming houses. 3. Hotels. 4. Churches. 5. Schools, public libraries, or public museums. 6. Clubs, except clubs the chief activity of which is a service carried on as a business. 7. Philanthropic or eleemosynary uses or institutions, other than correctional institutions, or asylums for the insane. 8. Railroad passenger stations and Central Telephone Exchange buildings. 9. Parks and Playgrounds. 10. Farming, truck gardening, nurseries or greenhouses. 11. Accessory uses customarily incident to the above uses" (subject to certain limitations and definitions not of present application). Section VI provides that: " Any non-conforming use existing at the time of the passage of these regulations may be continued and any existing building designed, arranged, intended, or devoted to a non-conforming use may be reconstructed and structurally altered, and the non-conforming use therein changed," subject to stated regulations not applicable in the instant case.

Section XIV, entitled " Completion and Restoration of Existing Buildings," reads as follows: " Nothing herein contained shall require any change in the plans, construction or designated use of a building for which a building permit has been heretofore issued or plans for which are on file with the building inspector or the Board of Burgesses of the Borough of Greenwich or the Board of Selectmen of the Town of Greenwich at the time of the passage of these regulations and the construction of which, in either case shall have been diligently prosecuted within a year of the date of such permit and the ground-story framework of which, including the second tier of beams, shall be completed within such year, and which entire building shall have been completed according to such plans as filed within two years from the date of the passage of these regulations."

Prior to the adoption of the zoning regulations and the appointment of a building inspector thereunder, there had been no building inspector having jurisdiction over that part of the town of Greenwich lying outside of the borough. The premises of the plaintiff and of the defendant the Merard Holding Company, Incorporated, are located outside of the borough limits. All the property adjacent to and in the neighborhood and vicinity of these premises is, and for many years past has been, used and devoted solely to residential purposes and buildings, and the neighborhood has been a well-recognized, high-class residential community, devoted exclusively to the erection and maintenance of homes and private dwellings. The plaintiff is the owner of a tract of about 7 acres, on which is located a large dwelling house situated about 125 feet back from the street line, the premises having a frontage of about 230 feet and being located on the west side of Riverside avenue, and she and her husband and family have for a number of years occupied the same as a private dwelling and home.

During the month of January, 1926, the defendant company contracted in writing for the purchase of certain premises directly across the street from the premises of the plaintiff, and prepared plans and specifications for the erection thereon of a building consisting of four stores, and contracted for certain labor and materials to be used therein. On January 20th a contractor started excavating the cellar for the building, using a steam shovel. He worked several days, removed all of the loose earth, and took out a quantity of stones with which he started the construction of the cellar wall, laying the stones as he took them out of the ground so as to save rehandling. By reason of bad weather, this contractor stopped work just before February 1st, and did not resume until the last week of February, or the first week of March following.

During the last week of January, Joseph P. Crosby, who was on February 1st appointed building inspector and authorized to enforce the zoning regulations, visited the defendant's premises and observed the conditions. A few days later, and shortly prior to February 1, 1926, Mr. Merritt, president of the Merard Holding Company, called at the office of Mr. Crosby, who then and there notified and warned him that the contemplated building would be in violation of the proposed zoning regulations, and that a permit therefor would not be issued, but Merritt expressed an intention to proceed with the construction of the building. Since the premises are located outside the borough of Greenwich, the defendant company was not legally required, prior to February 1, 1926, to obtain the permission of the town of Greenwich or any of its officers for the erection of the building, nor to file plans or specifications of the proposed building with any officer or other authority. On February 2d the defendant filed with Building Inspector Crosby plans for the building, but no permit authorizing such construction was ever issued.

The defendant the Merard Holding Company became the owner of the premises by deed dated and recorded February 1, 1926, and on March 1st resumed excavation work, and continued the construction and erection of a one-story, four-store building, which was completed during the last week of May. Shortly after June 1st one of the stores was occupied, under lease, by a general chain store grocery business and another for the sale of newspapers, tobacco, and miscellaneous merchandise. After the institution of the present action, the remaining two stores were from time to time rented for business purposes, one being occupied during most of the period for a meat market, and the other for a tailoring and clothes-cleaning establishment.

The finding of the court is that the character and the conduct of the businesses is such that the highway in front of the plaintiff's property is constantly throughout the daytime greatly congested by automobiles and trucks which are brought there by people who trade and deal with the proprietors of those stores; large numbers of people are attracted to, and constantly assemble throughout the day and evening at, the stores, three of which frequently keep open until after 9 o'clock, and one until as late as midnight, which is a gathering place for undesirable people from outside the neighborhood, and breaches of the peace and brawls are indulged in; there is a constant noise and disturbance from the arrival and departure of patrons and the delivery of merchandise by trucks and other conveyances; automobiles and trucks constantly park on the highway, and sometimes on the sidewalk in front of the plaintiff's...