Kefauver v. Zoning Bd. of Appeals of Town of Newtown
| Decision Date | 29 October 1963 |
| Citation | 151 Conn. 144,195 A.2d 422 |
| Court | Connecticut Supreme Court |
| Parties | Evans KEFAUVER et al. v. ZONING BOARD OF APPEALS OF the TOWN OF NEWTOWN et al. Supreme Court of Errors of Connecticut |
Philip H. Smith, Bridgeport, for appellants (plaintiffs).
George N. Wakelee, Fairfield, for appellees (defendants Foster).
Before KING, C. J., and MURPHY, SHEA, ALCORN and COMLEY, JJ.
The plaintiffs are a group of property owners in the Riverside section of the town of Newtown who appealed to the Court of Common Pleas from the action of the zoning board of appeals of Newtown in granting, in part, the application of Charles E. and Gertrude A. Foster for a special exception to the zoning regulations to permit them to construct an addition to a motel which has been a nonconforming use in a farming and residence zone since August 25, 1958, the effective date of the zoning regulations. The court held that the plaintiffs had failed to prove that the action of the board was arbitrary, illegal, unreasonable or in abuse of discretion and dismissed the appeal. The plaintiffs have appealed from the judgment.
Upon this appeal, we must necessarily review the conclusion of the lower court and the facts in the record on which the conclusion is based in order to determine the correctness of the conclusion. Gordon v. Zoning Board, 145 Conn. 597, 601, 145 A.2d 746. The court in its memorandum of decision stated that it took judicial notice of the file and in particular of the judgment file in Kefauver v. Foster, Court of Common Pleas, Fairfield County, No. 77093, an action which several of the present plaintiffs instituted after the present appeal from the decision of the zoning board of appeals had been taken. The judgment in No. 77093 vitally affected part of the property on which the Fosters had the board's approval to build the addition to their motel. The Fosters were defendants in that case as well as in this one. Judgment by stipulation of the parties was rendered in No. 77093 on June 13, 1961, whereas the appeal to the Court of Common Pleas in the present case was not heard and decided until April 26, 1962. We have examined the file in No. 77093 and do not agree with the conclusion reached by the trial court in the present case on the basis of the judicial notice it took of that file.
The Riverside section of Newtown is a real estate development on Lake Zoar dating from 1923. In 1927, the owners of property in the section organized the Riverside on Lake Zoar Association, Inc., as a corporation without capital stock. In 1930, by deed from the developer, the association acquired title to the private roadways in the development and was charged with the maintenance and upkeep of them. In 1945 and 1946, the state of Connecticut, through the highway commissioner, acquired by purchase or condemnation all or part of many of the lots in Riverside for the relocation of route 6 as a part of the highway system. Route 6 bisects Riverside and cuts across Mountain View Road, Lakeview Road and Lake Drive. The portion of the Foster property involved in this appeal lies between Mountain View Road and Lakeview Road, east of route 6. Lakeview Road has no direct access to route 6. Access to and from the northbound lane of route 6 was provided at Mountain View Road. A macadamized service road was constructed by the highway department parallel to and immediately adjacent to the east side of the route 6 layout. Part of this service road ran between Lakeview Road and Mountain View Road. There is an underpass beneath route 6 at Lake Drive, and the service road together with this underpass permitted the residents of Riverside to get to and from their properties.
In 1953, the highway commissioner executed a quitclaim deed of seven parcels of land in Riverside to the association. This deed was not recorded until 1959. We are concerned only with parcel 6, because the board denied the portion of the Fosters' application which sought a special exception for expansion in parcel 7. Parcel 6 lies between Mountain View Road and Lakeview Road and abuts the easterly edge of route 6 for a distance of 230 feet. Parcel 6 includes a section of the service road. The parcel contains 0.31 acres and is of varying depth, the easterly boundary being irregular because it follows the taking line of certain properties acquired by the state. The Fosters owned the land adjacent to parcel 6 on the east and there erected, in 1954, a twelve-unit motel fronting on Lakeview Road. On May 7, 1958, the association quitclaimed parcels 6 and 7 to the Fosters. At the time, Charles Foster was...
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...the facts in the record on which (they) . . . are based in order to test the correctness of the conclusions. Kefauver v. Zoning Board of Appeals, 151 Conn. 144, 146, 195 A.2d 422. That record is the one submitted to us pursuant to Practice Book § 647 as it may be supplemented by any relevan......
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