Grady v. Katz

• Decision Date: 12 July 1938
• Citation: 124 Conn. 525,1 A.2d 137
• Court: Connecticut Supreme Court
• Parties: GRADY et al. v. KATZ et al., Board of Zoning Appeals of New Haven.

1 A.2d 137

124 Conn. 525

GRADY et al. v. KATZ et al., Board of Zoning Appeals of New Haven.

Supreme Court of Errors of Connecticut.

July 12, 1938

Appeal from Superior Court, New Haven County; Edward J. Daly, Judge.

Proceeding by William H. Grady and another against Jacob Katz and others, constituting the Board of Zoning Appeals of New Haven, wherein plaintiffs appeal from an order of the defendants granting a petition to utilize a private garage for a nonconforming use under a zoning ordinance. From a judgment sustaining the appeal and vacating the order defendants appeal.

No error.

On appeal from order of Board of Zoning Appeals of New Haven permitting a nonconforming use of property, under statute, on ground of difficulty or unreasonable hardship, testimony of board's members as to their opinions in support of the order was inadmissible to show the grounds of the board's decision. 19 Sp.Laws 1925, No. 490, § 6.

Vincent P. Dooley, Bernard Greenberg, and Harold C. Donegan, all of New Haven, for appellants.

George J. Grady and Edward L. Reynolds, both of New Haven, for appellees.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

BROWN Judge.

Pursuant to a special act of the General Assembly, No. 490, Special Laws of 1925, the city of New Haven on December 17th, 1926 adopted an ordinance, since amended, dividing the city into zones and regulating the use, height and bulk of buildings and the areas of lots. The defendant board has been constituted under § 6 of the special act and consists of five members named in the writ. Mrs. Michael Mursko is the owner of 85 Truman Street, New Haven, consisting of a lot with a residence and a garage thereon. The plaintiffs own 87-89 Truman Street, the adjoining property, a lot with house thereon. Both properties are in a Residence B Zone, within which the uses permitted by the ordinance include among others a single family detached dwelling and a private garage, but not the use specified in the defendants' order hereinafter recited. On October 18th, 1934, the building inspector ordered Michael Mursko ‘ to discontinue the use of the garage in the rear of 85 Truman Street for business purposes as the present use of making and repairing organs, etc., is in violation of § 1013 of the Zoning Ordinances.’ On October 27th, 1934, Mursko appealed to the defendant board for an order permitting him to use the garage for the commercial purpose stated, on the ground of ‘ practical difficulty or unnecessary hardship,’ claiming he had used it commercially for repairing furniture since 1924 and at times for the repair and manufacture of organs. A hearing was held on his petition on November 13th, 1934.

The board's minutes stated that the building inspector's order was offered in evidence; that it also had before it in evidence an agreement of June 29th, 1929, between Mursko and the pastor of a church regarding a $3,000 organ; also a statement and letters to him from dealers indicating his purchase of lumber and materials for organs during the period from 1924 to 1934; and that witnesses testified and petitions were submitted both in favor of and in opposition to the appeal. After a contested hearing the board unanimously voted to grant Mursko's appeal, the vote being thus recorded in the minutes: ‘ the Board, after due consideration voted to grant permission to use a private garage located in the rear of the property at 85 Truman Street, for the purpose of repairing furniture and the manufacture and repair of organs; provided, however, that there shall be no alteration of the exterior of said garage, nor any sign displayed in connection with said business.’

Section 6 of No. 490 of the Special Laws of 1925 provides that the ‘ board shall keep minutes of its proceedings, showing the vote of each member upon every question * * * and shall also keep records of its examination and other official actions'; that it may reverse, affirm or modify an order appealed from and shall have all the powers of the authority from whose decision the appeal is had; that ‘ when it shall appear to at least four members of said board that difficulty or unreasonable hardship might result in carrying out the strict letter of any ordinance concerning which an appeal has been taken, said board shall have the power, after such hearing is concluded, to vary or modify the application of the rules, regulations and provisions, relating to the construction, structural changes in, equipment or alteration of, buildings or structures, provided such change, modification or variance shall not violate the spirit of the ordinance. Said board * * * may also hear and act upon other matters for which provision is made in the ordinance.’ Subsection 7 of § 1033 of the ordinances of the city of New Haven provides: ‘ Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of any provision of this ordinance or where the effect of the application of the ordinance is arbitrary, the board of zoning appeals shall have power in a specific case to vary any such provision in harmony with its general purpose and intent so that the public health, safety and general welfare may be secured and substantial justice done.’ The record fails to show that the board in granting Mursko's application found any ‘ practical difficulties or unnecessary hardships' in the way of carrying out the strict letter of the zoning ordinance.

The court sustained the plaintiffs' appeal from the defendants' order and reached these...