Isdale v. Town Plan and Zoning Commission of Town of Orange

• Decision Date: 20 July 1954
• Citation: 141 Conn. 509,107 A.2d 267
• Court: Connecticut Supreme Court
• Parties: ISDALE v. TOWN PLAN AND ZONING COMMISSION OF TOWN OF ORANGE. Supreme Court of Errors of Connecticut

Page 267

107 A.2d 267

141 Conn. 509

ISDALE v. TOWN PLAN AND ZONING COMMISSION OF TOWN OF ORANGE.

Supreme Court of Errors of Connecticut.

July 20, 1954.

Robert J. Woodruff, New Haven, for appellant (plaintiff).

Harold E. Drew, Derby, for appellee (defendant).

Before INGLIS, C. J., and BALDWIN, WYNNE, DALY and SHANNON, JJ. ^*

WYNNE, Associate Justice.

The town plan and zoning commission of the town of Orange denied an application by the plaintiff to change her one-family house into a two-family house. The plaintiff purchased her property on September 1, 1950. It consists of a tract of land on the Derby turnpike in the town of Orange. It has a frontage of 400 feet and a depth of 180 feet. Upon the lot is a dwelling house, built about January 1, 1890, which for a time prior to plaintiff's acquisition of it had been occupied by two families. The zoning regulations of the town became effective in January 1938. In 1950, the town adopted an amendment to the zoning ordinance which provided for two-family houses in residential zones under certain conditions. Orange Zoning Regs. § 8 (1951). So far as pertinent, this section reads as follows: 'The Town Plan and Zoning Commission may, upon formal application and after public notice and hearing, allow the conversion from a one-family dwelling built prior to January 1, 1937 to a two-family dwelling, when in its judgment the areas of the dwelling and the lot upon which it is located shall be adequate and the adjoining property will not be substantially injured.'

The plaintiff was given a hearing on her application on December 2, 1952, and on January 6, 1953. At an executive session of the commission on February 3, 1953, the application was denied. In the minutes of that meeting the following appears: 'The Commission concluded that in its judgment, based upon the findings, it was the unanimous decision of the Board that the area of the dwelling was inadequate to warrant conversion and that the adjoining property would be adversely affected. A final vote was taken and the application was denied.' The plaintiff appealed to the Court of Common Pleas. The appeal was dismissed, and from the judgment the plaintiff has appealed.

The assignments of error are sixteen in number, but in substance they raise two principal claims, (1) that the commission was biased and prejudiced against the plaintiff, and (2) that its action was arbitrary, illegal and in abuse of its discretion. Included in the latter claim is the assertion that the finding by the commission that 'the adjoining property would be adversely affected' was not a finding, in accordance with the plain language of the regulation, that the adjoining property would be 'substantially injured.'

The case was not heard by the Court of Common Pleas solely on the record before the commission. Because of the claim of bias and prejudice, the plaintiff was granted permission to offer evidence. It is for this reason that a finding by the court was necessary and is before us. The trial court considered the case upon the record of the commission and such additional evidence as was deemed necessary in order for it to pass upon the claim of bias and prejudice. The finding, as it should be, is limited and does not contain the facts appearing on the record before the commission. Kuehne v. Town Council, 136 Conn. 452, 457, 72 A.2d 474. Under these circumstances, an attempt to have the court make findings based on the record of the...