Kelley v. Board of Zoning Appeals of New Haven

• Decision Date: 05 June 1940
• Citation: 13 A.2d 675,126 Conn. 648
• Court: Connecticut Supreme Court
• Parties: KELLEY v. BOARD OF ZONING APPEALS OF NEW HAVEN.

13 A.2d 675

126 Conn. 648

KELLEY v. BOARD OF ZONING APPEALS OF NEW HAVEN.

Supreme Court of Errors of Connecticut.

June 5, 1940

Appeal from Superior Court, New Haven County; Carl Foster and Frank P. McEvoy, Judges.

Action by Joseph E. Kelley against the Board of Zoning Appeals of New Haven, in the nature of an appeal to superior court from a decision of the Board refusing to revoke permission given to George W. Lyons to use his premises for certain purposes. From a judgment dismissing the appeal, after plaintiff's demurrer to defendant's plea in abatement was overruled and the plea was sustained, plaintiff appeals.

No error.

Franklin Coeller, of New Haven, for appellant (plaintiff).

Vincent P. Dooley, of New Haven (Harold C. Donegan and David M. Reilly, both of New Haven, on the brief), for appellee (defendant).

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS JJ.

MALTBIE, Chief Justice.

The complaint in this action, in the nature of an appeal from the board of zoning appeals of New Haven, is in two counts. The first recites that on February 16, 1937, the board granted permission to George W. Lyons to use a building in a ‘ Residence C. District’ for ornamental iron and structural steel work, a nonconforming use, provided that use should not constitute a nuisance and subject to further modification or revocation of the permission by the board at any time; that the board acted arbitrarily, illegally and so unreasonably as to have abused its discretion in granting that permission; and that the use permitted to Lyons ‘ has been abandoned by him and terminated either to the Bilco Manufacturing Company or the Builders' Iron Company, Inc.’ The second count incorporated by reference the allegations of the first, and then stated that on August 6, 1939, the plaintiff, claiming to be aggrieved, petitioned the board to reopen the matter and revoke the permission granted Lyons, but that the board denied that petition and in so doing acted arbitrarily illegally and unreasonably. As no appeal was taken from the decision of the board granting permission for the use in question, within the time allowed by the clarter, it is conceded that so much of the complaint as is in the nature of such an appeal presented nothing for the determination of the court. As regards the attempted appeal from the denial by the board of the petition to it to revoke that permission, the defendants filed a plea in abatement on the ground that no appeal lies under the charter of the city of New Haven from the denial of such a petition, and after certain interlocutory proceedings, this plea was sustained by the trial court. From that decision the plaintiff has filed this appeal.

The charter of the city of New Haven provides for the establishment of a zoning system in the city and the adoption of a zoning ordinance. The building inspector of the city is the administrative officer charged with the enforcement of the ordinance. The charter further provides for the appointment of a board of zoning appeals and for an appeal to it by ‘ any person, claiming to be aggrieved by any order, requirement or decision’ of that administrative officer; and also that the board ‘ may reverse or affirm, in whole or in part, or may modify such order, decision or requirement appealed from, and it shall have all the powers of the authority from whose decision such appeal shall have been taken.’ 19 Special Laws, 1925, pp. 1007, 1008. A right of appeal from any decision of the board to the Superior Court is granted to any aggrieved person. It was agreed on argument that the board has no original jurisdiction but can act only upon an appeal from an order or ruling of the building inspector.

The fact that the plaintiff did not appeal from the original decision of the board would not of itself have debarred an appeal from the refusal of the board to revoke the permission it had granted if the condition attached to that permission was violated. The plaintiff might, for instance, have been content to have Lyons use the premises for the purpose specified so long as that use did not constitute a nuisance, in the belief that, if it did, the board would, under the power it reserved to itself, revoke the permission, and h...