Kiska v. Skrensky

• Decision Date: 21 January 1958
• Citation: 145 Conn. 28,138 A.2d 523
• Court: Connecticut Supreme Court
• Parties: Joseph KISKA v. Charles SKRENSKY et al. Supreme Court of Errors of Connecticut

Page 523

138 A.2d 523

145 Conn. 28

Joseph KISKA v. Charles SKRENSKY et al.

Supreme Court of Errors of Connecticut.

Jan. 21, 1958.

George F. Carroll, Jr., Norwalk, for appellants (defendants).

Robert B. Seidman, Norwalk, with whom, on the brief, was Sidney Vogel, Norwalk, for appellee (plaintiff).

Before WYNNE, C. J., and BALDWIN, DALY, KING and MURPHY, JJ.

MURPHY, Associate Justice.

The defendants have appealed from a judgment of the Superior Court enjoining them from building on any fifty-foot lots in a certain tract of land on the easterly side of Strawberry Hill Avenue in Norwalk. The trial court concluded that the defendants were not members of a family within the meaning of that term as used in the special act creating a city planning commission in Norwalk and that the conveyances of certain lots in the tract did not constitute a division of property among the members of a family. Such a division is exempted from the application of the subdivision requirements of the act.

The defendants are two brothers, Charles and Edward Skrensky; their sister, Mary Shafranek; and Emma Skrensky, the wife of Charles. In 1949, the brothers purchased the tract. Title was taken in the name of Edward. He conveyed it to his sister and sister-in-law the following year. On March 16, 1954, he applied, in his own name, to the city planning commission for approval of a subdivision layout of the tract into thirteen lots and a street called Turkey Hill Road. The commission approved the subdivision on August 4, 1954. The common council rejected it on August 10, 1954. As a result, the requisite approval was lacking.

While the application was pending, the two women conveyed three lots to Charles and three lots to Edward. They retained title to the rest of the tract. The deeds were dated July 26, 1954, and recorded two days later. The lots were described by metes and bounds. No reference was made to any map or other layout. Neither the planning commission nor the common council was advised of the transfers before action was taken on the application for the subdivision.

On July 26, 1954, the area was in a residence B zone. Minimum lot requirements were a frontage of 50 feet and an area of 6250 square feet. On August 16, 1954, the zoning of the tract was upgraded to residence A, in which the minimum lot requirements were a frontage of 100 feet and an area of 12,500 square feet. On November 3, 1954, Edward Skrensky applied for building permits for lots 11 and 12 on Turkey Hill Road. He listed himself as owner. These applications were canceled because of misinformation contained therein. He submitted new applications on December 2, 1954, in which he listed Charles Skrensky as the owner of lot 11 and Emma Skrensky and Mary Shafranek as the owners of lot 12. The building inspector issued the permits, since he concluded that the two lots conformed to the zoning regulations in effect when the title of the one was transferred to Charles and the deed recorded in July. No appeal was taken from the action of the building inspector.

Norwalk has a city planning commission created under Special Act No. 214 passed by the General Assembly in 1947. 25 Spec.Laws, p. 302, § 2. While the commission had not adopted a complete master plan for the city, it had adopted regulations governing subdivisions and a master plan of parks. These are major sections of a master plan. Under the special act, no street or subdivision can be constructed or authorized, after the adoption of a master plan or a major section or sections of one, unless both the planning commission and the common council have given their approval. 25 Spec.Laws, p. 304, § 7. A division of property among members of a family is, however, excluded from the operation of the subdivision requirements. 25 Spec.Laws, p. 302, § 1. The defendants contend that the conveyances from Emma and Mary to Charles and Edward constituted a division of property among the members of a family and that approval by the commission and the council was not required.

The trial court concluded that 'family,' as used in the 'zoning law is pretty much limited to a father, mother and children living in one household.' The use of the word 'zoning' indicates a misconception by the court of the provisions of law applicable to this case. This is confirmed by an examination of the memorandum of decision, in which the court said: 'The apparent exemption of members of a family from requirements of a zoning law pertaining to a subdivision among members of the family does not apply in this instance.' While the finding that lots 11 and 12 did not meet the requirements of a residence A zone has not been challenged, the injunction was not issued because the change of zone had become effective and the issuance of the building permits was in violation of it. Rather, the injunction is based on the application of the law pertaining to planning.

Municipal planning is designed to promote, with the greatest efficiency and economy, the coordinated development of the municipality and the general welfare and prosperity of its people. General Statutes, § 856. Its aim is to secure the uniform and harmonious growth of villages, towns and cities. Brous v. Smith, 304 N.Y. 164, 168, 106 N.E.2d 503. Zoning is concerned primarily with the use of property. State ex rel. La Voie v. Building Commission, 135 Conn. 415, 419, 65 A.2d 165; Abbadessa v. Board of Zoning Appeals, 134 Conn. 28, 32, 54 A.2d 675. It should be realized that while there is a definite and harmonious relationship between planning and zoning, as is evidenced by the...