Gunther v. Board of Zoning Appeals of City of New Haven

• Decision Date: 14 December 1949
• Court: Connecticut Supreme Court
• Parties: GUNTHER et al. v. BOARD OF ZONING APPEALS OF CITY OF NEW HAVEN et al. Supreme Court of Errors of Connecticut

Page 91

71 A.2d 91

136 Conn. 303

GUNTHER et al. v. BOARD OF ZONING APPEALS OF CITY OF NEW HAVEN et al.

Supreme Court of Errors of Connecticut.

Dec. 14, 1949.

William L. Beers, New Haven, George G. DiCenzo and Alfred F. Celentano, New Haven, for appellant Board.

John A. Maresca, New Haven, Julius Maretz, New Haven, for appellant DeSenti.

George J. Grady, New Haven, William Dimenstein, New Haven, for appellees.

Before MALTBIE, C. J., and BROWN, ELLS, DICKENSON, and JENNINGS, JJ.

BROWN, Judge.

The defendant board of zoning appeals of the city of New Haven granted permission to the defendant DeSenti to use an existing dwelling house located at 132 Lawrence Street in New Haven as an office in connection with a manufacturing establishment, the Mettler Machine Tool Company, conducted in a building toward the rear of the premises as a nonconforming use. The plaintiffs, neighboring property owners, appealed to the Court of Common Pleas, which sustained the appeal, and the defendants have appealed to this court.

We summarize these material facts found by the court which are undisputed: The property at 132 Lawrence Street is owned by the company and consists of a lot which fronts 60 feet on the southerly side of that street and is 150 feet deep. A one-family dwelling house which was used as a residence until October, 1948, stands on the northeasterly portion of the lot near the front, and a brick building used by the company for manufacturing is nearer the rear. Under the city's zoning ordinance, effective since September 1, 1929, this property is in a residence B zone. Prior to that date the brick building was, and it ever since has been, used by the company for manufacturing purposes which constitute a nonconforming use. On September 20, 1948, DeSenti, on behalf of the company, applied to the city's board of zoning appeals for an 'Extension of a non-conforming use; namely to use existing dwelling in front of premises as an office.' At the hearing before the board, DeSenti by his attorney stated it was intended to remodel the interior of the house to afford office space for an increase in the company's office force for which its present office was inadequate. The plaintiffs objected to the requested extension of the nonconforming use. On October 6, 1948, the board granted the application. This entry appears in the minutes of its executive session, which determined the matter: '* * * that by virtue of subdivisions 2 and 3 of Section 1033 of our Zoning Ordinance, the Board may permit such non-conforming uses by any industrial establishment as may be necessary to adapt its plant or any part thereof to different or improved processes of manufacturing, or production, and may permit the extension of an existing or proposed building into a more restricted district. Hence, in view of the above, a motion to grant this appeal was * * * passed.' The use granted was a prohibited use in a residence B zone.

These further facts, challenged by the defendants as constituting conclusions unsupported by the subordinate facts, are properly established by the finding: There was no evidence before the board of any 'practical difficulties or unnecessary hardships' in using the property as a dwelling house, and it made no such finding. There was no evidence to support any finding that the company needed additional space because it was 'necessary to adapt its plant or any part thereof to different or improved processes of manufacture or production.' There was no extension of an 'existing or proposed building' involved.

Section 1033 of the city's zoning ordinance empowers the board, subject to appropriate conditions, to 'determine and vary the application of the regulations herein established in harmony with their general purpose and intent' in seven specified situations. The first three are these: '1. Permit the extension of an existing commercial or industrial establishment in any district. 2. Permit such non-conforming uses by any industrial establishment as may be necessary to adapt its plant or any part thereof to different or improved processes of manufacture or production. 3. Permit the extension of an existing or proposed building into a more restricted district.' New Haven Zoning Ordinance (Oct. 1941). As appears from the passage we have quoted from the minutes of the board's executive meeting, it was in reliance upon § 1033(2) and (3) that the board granted the application. As further appears from the last two sentences of the preceding paragraph, the record affords no basis for relief under either of these provisions.

The issue for the trial court upon the appeal was whether the board had acted arbitrarily or illegally, or so unreasonably as to have abused its discretion. Blake v. Board of Appeals of City of Hartford, 117 Conn. 527, 532, 169 A. 195; Piccolo v. Town of West Haven, 120 Conn. 449, 453, 181 A. 615. The legislative enactment, pursuant to which this zoning ordinance was adopted, made broad provision for the powers to be exercised by the trial court in reviewing the board's decisions, in these terms: 'If it shall appear to the court on the trial of such case that there has been an abuse of reasonable discretion on the part of said board, or that its decision was based upon a mistake or misconstruction of the law, or that such decision was the result of mistake or fraud, then such order, requirement or decision shall be set aside and vacated; otherwise it shall remain in full force and effect.' 19 Spec. Laws 1925, p. 1009, § 6. Accordingly, notwithstanding the board's decision could not be supported upon either of subdivisions 2 and 3 of § 1033, the sole grounds upon which it was predicated, it was incumbent upon the court to determine whether it could be sustained under subdivision 1, the only one which was claimed to be applicable. This calls for an interpretation of the effect to be accorded to that provision. Was it operative to permit the board to extend the company's nonconforming industrial establishment or was it inapplicable, rendering the board's decision the result of a mistake as to the law and demonstrating that the board had acted illegally? This is the decisive question presented by the defendants' attack upon the court's primary conclusion that the board in granting the application did act illegally.

A consideration of the other provisions of the ordinance is essential in determining whether subdivision 1 of § 1033 applies to any given use, be it conforming or nonconforming. Its language, 'Permit the extension of an existing commercial or industrial establishment in any district,' by its terms is rendered applicable to establishments which under the ordinance are permissible in residence A districts by subdivisions 4 and 6 of § 1011, and to those allowable in the other three residence districts, as well as to those in the two business and three industrial districts specified, as appears by §§ 1012-1019. Relative to each of these districts there are specific restrictions prescribing to a greater or less extent the permissible building area, requisite yard space, height of structures and proximity to the street, as specified in §§ 1020-1027. Under 'General Provisions' of the ordinance, § 1029 provides that 'No lot area shall be so reduced that the dimensions of any of the yards or open spaces shall be smaller than herein prescribed.' Section 1032 charges the building inspector with the duty of enforcing the ordinance and of requiring that 'the application for a building permit and the accompanying plot plan shall contain all the information necessary to enable him to ascertain whether the proposed building complies with the provisions of this Ordinance.' It further states that no building permit shall be issued until he has certified 'that the proposed building or alteration complies with all the provisions of this Ordinance' and that no person shall build or alter until such permit therefor has been duly issued. These provisions indicate that there was good reason for the enactment of the provision made by subdivision 1 of § 1033 for the extension of conforming commercial and...