Friedson v. Town of Westport

• Decision Date: 17 June 1980
• Court: Connecticut Supreme Court
• Parties: Samuel R. FRIEDSON v. TOWN OF WESTPORT et al.

Page 17

435 A.2d 17

181 Conn. 230

Samuel R. FRIEDSON v. TOWN OF WESTPORT et al.

Supreme Court of Connecticut.

Submitted on Briefs April 9, 1980.

Decided June 17, 1980.

Samuel R. Friedson, on the brief pro se, appellant (plaintiff).

Keith D. Dunnigan, Bridgeport, and Stephen P. Sztaba, Bridgeport, on the brief for appellees (defendants).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and ARTHUR H. HEALEY, JJ.

LOISELLE, Associate Justice.

The plaintiff brought this action for a declaratory judgment and an injunction in order to maintain an advertising sign on his retail store in Westport. The defendant counterclaimed seeking an injunction against the plaintiff's alleged willful violation of a town zoning ordinance. The court rendered judgment in favor of the defendant and the plaintiff appealed.

In April, 1975, the plaintiff leased a retail store in a small shopping center, known as Sherwood Square, in the town of Westport. The structure was a typical colonial design, one story with a peaked roof sloping on one side toward the shopping center parking lot. The previous tenant had maintained a sign advertising its business on the roof of the building. The sign was supported by a metal frame and fastened to metal brackets which in turn were fastened to the roof. The sign had been left in tattered condition by the prior tenant. The plaintiff had the sign painted by a professional sign painting company, which unfastened the bolts and removed the sign to its place of business in Norwalk where the sign was painted in accordance with the plaintiff's directions. The sign was then returned to the store and replaced in the same location and in the same manner as it was before it was removed.

While the sign was being painted, the zoning enforcement officer of Westport contacted the plaintiff. The plaintiff knew that an attempt to put the sign back in the same place would be considered a violation of the zoning ordinance. On April 15, 1975, the Westport planning and zoning commission issued a cease and desist order to the plaintiff. The plaintiff appealed to the Westport zoning board of appeals for a variance. After a public hearing, the variance was denied. Rather than take an appeal as provided by General Statutes § 8-8, the plaintiff brought this action.

The present action is in eight counts. The complaint alleges, among other things, a violation of the plaintiff's first amendment rights, ultra vires action in the enactment of the regulations governing the use of signs, and a violation of the plaintiff's right to maintain a lawful nonconforming use of the sign which had allegedly remained there for many years.

The defendant claims that this court lacks jurisdiction over the appeal because the plaintiff, by instituting this action, has circumvented General Statutes § 8-8 which provides procedures to appeal from a decision by the zoning board of appeals. "We have frequently held that when a party has a statutory right of appeal from the decision of an administrative officer or agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test. McNish v. American Brass Co., 139 Conn. 44, 53, 89 A.2d 566 (1952); State Water Commissioner v. Norwich, 141 Conn. 442, 447, 107 A.2d 270 (1954)." Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 33, 193 A.2d 483, 486 (1963); Blum v. Lisbon Leasing Corporation, 173 Conn. 175, 179, 377 A.2d 280 (1977). In this action, however, the issue is not merely whether the zoning board acted illegally, arbitrarily or in abuse of its discretion. The plaintiff has challenged the very enactment of the regulations as ultra vires, and the constitutionality of the defendant's actions. Under these circumstances the statutory relief "falls short of effectively, conveniently and directly determining whether the (plaintiff is) entitled to the relief claimed." Bianco v. Darien, 157 Conn. 548, 555, 254 A.2d 898, 901 (1969). The issues presented were rightfully brought to the trial court and are reviewable by this court.

The plaintiff claims error in the trial court's refusal to include in the finding facts set forth in a paragraph of his draft finding claiming that the plaintiff's testimony in that regard was "undisputed, uncontradicted, and uncontested." "To secure an addition to the finding the party seeking it must point to some part of the appendix, the pleadings or an exhibit properly before us which discloses that the other party admitted the truth of the fact or that its validity was conceded to be undisputed." Cutler v. MacDonald, 174 Conn. 606, 610, 392 A.2d 476, 478 (1978). A fact is not admitted or undisputed simply because it is uncontradicted. Cutler v. MacDonald, supra, 610, 392 A.2d 476, citing Freccia v. Martin, 163 Conn. 160, 162, 302 A.2d 280 (1972). The plaintiff has not shown where the defendant admitted or conceded that the sign had been maintained on the roof for more than 20 years as claimed. The court did not err by omitting the claimed paragraph of the draft finding in the finding.

The plaintiff's attack on the court's conclusions concerning lack of evidence in support of the plaintiff's case is without merit because no evidence is included or finding referred to to refute these conclusions. The remaining claims of error briefed relate to the court's conclusion that prior nonconforming use of the sign had not been established. The court concluded that the "plaintiff offered no evidence as to whether the sign had been removed and replaced prior to his taking occupancy and therefore he did not establish a valid preexisting non-conforming use," and that "the plaintiff offered no evidence as to when the prior tenant had vacated the premises and he therefore did not establish a valid preexisting non-conforming use." The plaintiff has no appendix to his brief which might have included evidence to refute these conclusions. The appendix to the defendant's brief includes testimony which, though equivocal, relates to how long the previous tenants occupied the building rather than to the continued use of the sign.

We are not unmindful of the rule that mere discontinuance in use where there is no intent to abandon does not terminate a valid nonconforming use. Dubitzky v. Liquor Control Commission, 160 Conn. 120, 126, 273 A.2d 876 (1970); State ex rel. Eramo v. Payne, 127 Conn. 239, 241-42, 16 A.2d 286 (1940); Darien v. Webb, 115 Conn. 581, ...