Guerriero v. Galasso

• Citation: 144 Conn. 600,136 A.2d 497
• Court: Connecticut Supreme Court
• Decision Date: 19 November 1957
• Parties: John GUERRIERO v. Joseph A. GALASSO et al. Robert MURKETT v. Joseph A. GALASSO et al. Supreme Court of Errors of Connecticut

Page 497

136 A.2d 497

144 Conn. 600

John GUERRIERO v. Joseph A. GALASSO et al.

Robert MURKETT v. Joseph A. GALASSO et al.

Supreme Court of Errors of Connecticut.

Nov. 19, 1957.

Alfred L. Finkelstein, Waterbury, with whom was Pasquale Palumbo, Waterbury, for appellant (defendant Cappelletti) in the first case, and with whom, on the brief, was Carmine G. Cipriano, Corp. Counsel, Waterbury, for appellants (named defendant and others) in the first case.

William K. Lawlor, Waterbury, for the appellant (defendant Fabiani) in the second case, with whom, on the brief, were Carmine G. Cipriano, Corp. Counsel, Waterbury, and Clarence Balanda, Asst. Corp. Counsel, Waterbury, for the appellants (named defendant and others) in the second case.

F. Patrick Zailckas, Waterbury, for appellee (plaintiff) in each case.

Before WYNNE, C. J., and BALDWIN, DALY, KING and MURPHY, JJ.

KING, Justice.

Antonetta Cappelletti and Maurice Fabiani each owned a lot on Jersey Street in Waterbury in a B residence zone. The lots were about 1000 feet apart. Both owners desired to put their lots to business uses, probably as sites for retail stores, and each separately applied to the zoning authority of Waterbury for a change of zone to business 1. The change were granted for identical reasons. The plaintiffs Guerriero and Murkett, owners of residential property in the B residence zone, appeared before the zoning authority in opposition to the granting of the Cappelletti and Fabiani applications, respectively, and thereafter took appeals to the Court of Common Pleas from the action of the zoning authority. The court sustained the appeals. In each case, the defendants have appealed from the judgment. While certain assignments of error in the Murkett case involve procedural questions not raised in the Guerriero case, both appeals may be considered together.

It is admitted in the pleadings that the board of aldermen of Waterbury, which consists of fifteen members, ex officio constitutes the authority, sometimes referred to as the zoning commission, authorized to establish and change zones and that it acts on recommendation of a standing committee comprised of five of its members. It is in effect conceded by all parties that the applicable zoning regulations in Waterbury became effective January 1, 1954. Under these regulations, retail stores, among many other uses, are permitted in a business 1 zone but not in a B residence zone. Waterbury Bldg. Zone Regs., Art. 2, §§ 2, 4 (1954). It further appears from article 1, § 1, of the regulations that they were adopted under authority of the zoning law of the state as distinguished from any special act.

It is admitted in the pleadings that public hearings on the Cappelletti and Fabiani applications were held by the committee of the board of aldermen and that on December 5, 1955, the committee recommended the changes of zone requested. It is further admitted in the pleadings that the board of aldermen, on December 5, 1955, changed the zoning of the Cappelletti and Fabiani lots to business 1.

In each case, the plaintiff's basic complaint is that the board of aldermen illegally indulged in spot zoning. The cases were tried on the same day in the Court of Common Pleas in the judicial district of Waterbury. The court did not find it necessary to pass on the question whether either change of zone, alone, could have been justified on the basis of the need for a convenient retail store in the residential neighborhood in question. It sustained the appeal in each case, stating; '[S]ince both petitions were granted [by the board of aldermen] at the same meeting * * * this Court cannot say which one might be valid and which one invalid. The two appeals rise or fall together. The action of the [board of aldermen] * * * constituted spot zoning, and its action was invalid.'

Much identical language, including that quoted above, appeared in the memoranda of decision filed in the two cases on July 9, 1956. On August 3, 1956, in the Murkett case, the defendant Fabiani filed a 'Plea to Jurisdiction' and a 'Motion to Set Aside Judgment.' In the 'Plea to Jurisdiction' he claimed that under § 379d of the 1955 Cumulative Supplement (now Nov. 1955 Sup., § N11) the Court of Common Pleas in New Haven County had sole jurisdiction to try his appeal, that is, an appeal from a decision of a zoning commission in New Haven County, even though the city of Waterbury is within the general territorial jurisdiction of the Court of Common Pleas in the judicial district of Waterbury. In the 'Motion to Set Aside Judgment' the same claim as to the court's jurisdiction was made, together with the claim that 'the papers were never served on the Zoning Board [sic] of the City of Waterbury as required by the statute.'

We do not consider whether the first claim has any possible merit. All the defendants in the Murkett case answered generally, and the case was tried through on the merits, no jurisdictional question having been raised. It was not until the filing of the plea and the motion, some three weeks after the judgment, that any question as to procedure was raised. Language in the case of Fine v. Wencke, 117 Conn. 683, 684, 169 A. 58, 59, may be paraphrased aptly to apply to this situation: 'By his general appearance the defendant submitted himself to the jurisdiction of the court. * * * [The Court of Common Pleas] is one court throughout the state: if there was any defect in bringing the [appeal to the Court of Common Pleas in the judicial district of Waterbury instead of to the Court of Common Pleas in New Haven County] * * * it went to venue and not jurisdiction; and, no claim of want of venue having been made at the trial, the question cannot now be raised. Mower v. State Department of Health, 108 Conn. 74, 77, 142 A. 473.'

The claim as to the defect in service has, if anything, even less merit. The defendants in the Murkett case, in their answer, admitted the allegation in the complaint that the board of aldermen changed the zone and in a so-called special defense affirmatively alleged that the board had acted legally and properly in doing so. Obviously, if the claim as to the defect in service could successfully have been raised at all, it would have been by a plea in abatement seasonably filed in accordance with the provisions of Practice Book, § 82. Regardless of the admission and special defense, the defendants, by filing their answer and going to trial on the merits, waived any such defect in service as this which, at most, would result in a lack of in personam jurisdiction of the zoning authority. Samson v. Bergin, 138 Conn. 306, 309, 84 A.2d 273.

We turn now to the basic merits of the two appeals. The issues are essentially the same, and one discussion will suffice. By two assignments of error in the Murkett case, it is claimed that the court erred in considering the appeals together, there being no legal evidence in the Murkett case of the zone change of the Cappelletti property...