Kavanewsky v. Zoning Bd. of Appeals of Town of Warren

• Decision Date: 10 February 1971
• Citation: 279 A.2d 567,160 Conn. 397
• Parties: Joseph KAVANEWSKY v. ZONING BOARD OF APPEALS OF the TOWN OF WARREN.
• Court: Connecticut Supreme Court

Page 567

279 A.2d 567

160 Conn. 397

Joseph KAVANEWSKY v. ZONING BOARD OF APPEALS OF the TOWN OF WARREN.

Supreme Court of Connecticut.

Feb. 10, 1971.

Melvin J. Silverman, Norwalk, with whom, on the brief, was George J. Lepofsky, Norwalk, for appellant (plaintiff).

Walter M. Pickett, Jr., Waterbury, for appellee (defendant).

Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.

SHAPIRO, Associate Justice.

The following facts are pertinent to this appeal. In 1934, the town of Warren adopted zoning pursuant to the provisions of chapter 29 of the Revision of 1930, now chapter 124 of the General Statutes. In 1959, by ordinance, the town was divided into two zones, one north and the other south. The north zone was made subject to certain uses, including a requirement that a building lot contain not less than one acre and have a width of not less than 100 feet. Still another provision required that 'no business conducted for a profit shall be operated on any premises except by a resident of the Town of Warren.' Warren Zoning Regs. § 3(1) (1959). The south zone was limited to certain uses and under § 2(10) of the zoning regulations contained the same one-acre minimum lot size provision as in the north zone.

On October 30, 1964, Joseph Kavanewsky, hereinafter referred to as the plaintiff, entered into a contract to purchase certain properties, which included land located at Arrow Point, in the south zone of the town. Prior to October 30, 1964, and until January 29, 1965, § 2(10) of the zoning regulations as to the south zone provided that: 'No dwelling shall be erected on any lot having an area less than one acre minimum width of lot is to be 100 feet, unless topographical or other conditions render these measurements unreasonable.' At a public hearing held on January 12, 1965, a map for a subdivision of land on Arrow Point, 'plans show 49 lots of 1 acre with 100 road frontage', was submitted by the plaintiff to the Warren zoning and planning commission, hereinafter referred to as the commission. Prior to this submission, the plaintiff had expended $5367 for engineering expense related to the preparation of maps. The minutes of this hearing disclose that the map was neither acted on nor accepted but do state that '(I)t was agreed that no proposal by Mr. Kavanewsky for less acreage per building lot would be acceptable by the commission.' The minutes also stated that a request had been made to the soil conservation office for a report as to the kind of soil and subsoil in relation to the sewage systems at Arrow Point and that the town health officer would call in state officials on this matter. The minutes also disclose that a motion was made and seconded to call a hearing as soon as possible to increase the size and frontage of building lots. It was voted to call a public hearing on January 25, 1965, at 8 p.m. 'to propose for adoption an increase in acreage of building lots and to increase the frontage of building lots.' Notices for the call of this meeting were published in the New Milford Times on January 14 and 21, in language similar to that of the proposal just recited. After the public hearing on January 25, 1965, § 2(10) was amended by unanimous vote of the commission whereby no dwelling could be erected on a lot having an area of less than two acres and having less than a 200-foot frontage, unless topographical or other conditions rendered such measurements unreasonable. It was further voted that these changes were to become effective on January 29, 1965, with notice to be advertised in the New Milford Times and the amendment to be filed in the town clerk's office. A notice was published on January 28, 1965, and the amendment was filed with the town clerk on January 27, 1965.

On January 30, 1965, the deed conveying the properties which were subject to the contract of October 30, 1964, was delivered to the plaintiff, and on February 3, 1965, the deed was recorded in the Warren land records. On October 27, 1965, the plaintiff filed three applications for building permits with the commission for three lots shown as numbers 21, 22 and 23 on his submitted plans. These applications requested permission to build on lots containing less than two acres and having less than a 200- foot frontage. The commission considered and denied the applications at a meeting on November 9, 1965, for the reason that none of these complied with § 2(10) of the zoning regulations which prohibited the erection of a dwelling on a lot having an area of less than two acres and required a minimum frontage of 200 feet. The plaintiff appealed to the zoning board of appeals, hereinafter called the defendant, which held a hearing on January 11, 1966, and on March 3, 1966, upheld the commission's decision denying the plaintiff's building permit applications. An appeal was taken from the borad's action to the Court of Common Pleas where the issues were found for the defendant and the plaintiff's appeal was dismissed. From the judgment rendered, an appeal was taken to this court.

The plaintiff claims that the action of the commission, and the sustaining of it by the defendant, in increasing the minimum lot size to two acres was arbitrary, illegal and in abuse of the discretion vested in it. This claim is predicated on the plaintiff's contention that the change in upgrading was made 'without any change in conditions and without any reasons for said change other than the vote of persons attending the public hearing.' No such claim was made in the court below or in the plaintiff's claims of law as required by Practice Book § 619. However, he does assign error in the conclusions reached by the court, (1) that the zoning regulations in effect when the plaintiff acquired title and at the time the applications were filed and acted on required a minimum of two acres and a 200-foot frontage on a town road, and (2) that the defendant did not act arbitrarily, illegally and in abuse of its discretion but acted correctly on the applications as it was required to do in accordance with § 2(10) of the commission's regulations. Nevertheless, while this issue was so presented on this appeal by the plaintiff, both sides, in their briefs and in argument, discussed fully the issue whether the commission acted illegally, arbitrarily and in abuse of its discretion. We have held that, although an assignment was defective, important rulings might be considered where counsel make them definite in their briefs. Boardman v. Burlingame, 123 Conn. 646, 655, 197 A. 761; State v Burns, 82 Conn. 213, 219, 72 A. 1083; see also Wicks v. Knorr,113 Conn. 449, 456, 155 A. 816; Monroe National Bank v. Catlin, 82 Conn. 227, 229, 73 A. 3. While we are not bound to consider a matter which is not contained in an assignment of error relating to overruling claims of law unless it is properly raised as required by Practice Book § 652, we have upon occasion considered a question not so raised, not by reason of the...