Kyser v. Zoning Bd. of Appeals of Town of Westport

• Decision Date: 14 June 1967
• Citation: 230 A.2d 595,155 Conn. 236
• Court: Connecticut Supreme Court
• Parties: J. Donald KYSER et al. v. ZONING BOARD OF APPEALS OF the TOWN OF WESTPORT et al. J. Donald KYSER et al. v. ZONING BOARD OF APPEALS OF the TOWN OF WESTPORT et al. J. Donald KYSER et al. v. Michael SOCHACKI et al.

Page 595

230 A.2d 595

155 Conn. 236

J. Donald KYSER et al. v. ZONING BOARD OF APPEALS OF the TOWN OF WESTPORT et al.

J. Donald KYSER et al. v. ZONING BOARD OF APPEALS OF the TOWN OF WESTPORT et al.

J. Donald KYSER et al. v. Michael SOCHACKI et al.

Supreme Court of Connecticut.

June 14, 1967.

J. Peter LaChance, Westport, for appellants (named plaintiff et al. in the first case).

Alan H. Senie, Westport, with whom was J. Peter LaChance, Westport, for appellants (named plaintiff et al. in the second case).

Jack Stock, Westport, with whom, on the brief, was J. Peter LaChance, Westport, for appellants (named plaintiff et al. in the third case).

Edwin K. Dimes, Westport, for appellee (named defendant in the first and second cases).

John Keogh, Jr., Norwalk, for the appellees (defendants Bomar in the first and second cases); with him, on the brief in the first case, was Robert A. Fuller, Wilton.

Robert N. Grosby, Norwalk, for appellee (defendant Sochacki in the second and third cases); with him, on the brief in the third case, was John Keogh, Jr., Norwalk, for the appellees (defendants Bomar).

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

HOUSE, Associate Justice.

Although each of these appeals is from the judgment rendered in a separate action, the factual basis of the three cases is sufficiently similar to permit the decision of the appeals in one opinion. They all involve the same three adjoining lots in Westport and were tried seriatim in the Court of Common Pleas.

William E. and Byrd F. Bomar, defendants in all three cases, in 1951 acquired lot 16 of a tract shown on a map entitled 'Map of Property at Westport, Conn. Surveyed For Isabel G. Redpath Scale 1 In. = 40 Ft. Jan. 1937.' The map is recorded in the Westport land records as map 1180. The Bomars presently live in a house on that lot. Later they purchased lot 7, which is contiguous to lot 16 and adjoins it on the east. The northerly lines of the two lots do not meet, the northerly line of lot 7 being about eight feet south of the northerly line of lot 16, and for this distance lot 16 is bounded on the east by lot 6, which lies immediately north of lot 7 and is now owned by J. Donald and Judith C. Kyser, plaintiffs in all three cases. In 1952, the Bomars built a porch on the easterly rear of their house on lot 16, facing the rear of their lot 7. In 1953, the area was rezoned from a minimum requirement of quarter-acre lots to a minimum requirement of half-acre lots. In 1956, the Kysers purchased lot 6 and erected a house thereon. By their purchase they acquired a common, side boundary with lot 7, on the south, and a common, rear boundary with the Bomars' lot 16, for a distance of about eight feet. In 1957, the Bomars obtained a variance to permit the sale of lot 7 as a separate lot of less than one-half acre in size. Thereupon, the porch violated the twenty-five-foot rear setback requirements of the zoning regulations since it extended to a point only eight feet from the dividing line between lots 16 and 7. In April, 1965, upon the Bomars' application, the Westport zoning board of appeals granted a variance from the twenty-five-foot rear setback requirement to legalize the location of the porch on their house only eight feet from the rear of their lot 16 property line.

I

The first case arises out of the granting of this 1965 variance. The Kysers and the owners of the lots lying north and south of the Bomars' lot 16 appealed to the Court of Common Pleas from the decision granting the variance. They alleged, inter alia, that the board of appeals had acted illegally in that there was no evidence of exceptional difficulty or unusual hardship which justified the board's decision. The plaintiffs expressly alleged that they were aggrieved by the action of the board in granting the variance because the value of their properties was adversely affected, their legal rights were violated, and they suffered a diminution in the use and enjoyment of their properties. The Bomars were joined as defendants. All the defendants denied the plaintiffs' allegations of aggrievement. The court heard testimony on the question of aggrievement, concluded that the plaintiffs had failed to sustain their burden of proving that they were aggrieved persons, and, accordingly, dismissed the appeal. From that judgment, only the Kysers have appealed to this court.

The Kysers urge that to prove aggrievement it was unnecessary for them to establish more than the fact that they were owners of property adjoining that for which the variance was granted. Although it is undoubtedly true that in many, if not most, cases the owner of property adjoining that for which a variance has been granted is able to prove aggrievement, proximity alone does not establish it. Here, the question of aggrievement was put in issue by the pleadings and the Kysers make no claim that they offered any evidence of aggrievement aside from proving the proximity of their premises. There is nothing in the record or the appendix to the brief of the Kysers to show that the value of their property would be specifically lessened or that any other property or legal right of theirs would be specifically and injuriously affected by the granting of the variance. The appeal is, accordingly, governed by the principles reenunciated in Parcesepe v. Zoning Board of Appeals, 154 Conn. 46, 47, 221 A.2d 270, and cases cited, to which may be added Hickey v. New London, 153 Conn. 35, 38, 213 A.2d 308, and I. R. Stich Associates, Inc. v. Town Council, 155 Conn. 1, 3, 229 A.2d 545. The Court of Common Pleas correctly concluded that it had no jurisdiction because the plaintiffs did not qualify as aggrieved persons under General Statutes, § 8-8. There was therefore no error in the judgment dismissing that appeal.

II

In the second case, the Kysers were again plaintiffs, together with the owners of another lot in the area, and to the named defendant and the defendants Bomar, Michael Sochacki has been added as a defendant. By deed dated June 4, 1965, the Bomars conveyed lot 7 to Sochacki, the deed making specific reference to that lot as shown on map 1180 on file in the office of the Westport town clerk. The deed reserved as an appurtenance to the Bomars' lot 16 'the exclusive use (including, but not limited to, the right to grade, landscape and fence)' of an area sixty feet by twenty feet on lot 7 adjacent to the easterly boundary line of lot 16. Upon acquiring title, Sochacki applied to the Westport building inspector and zoning enforcement officer for a permit to build a house on lot 7. With his application, Sochacki submitted a plot plan showing the location of the proposed house on lot 7, using the identical lot dimensions which appear on map 1180 and in his deed from the Bomars. The plot plan, however, referred by number to map 4578 rather than map 1180. Map 4578 was a map which the Bomars had caused to be prepared and filed in the office of the town clerk in 1958. This map showed a jog cut out of lot 7 where it adjoined lot 16. In the plan submitted with the application for a building permit, however, the jog indicated on map 4578 was not shown, and the line between lots 16 and 7 ran in a straight line so that in all respects the plan depicted lot 7 to be as shown on map 1180. Map 4578, although signed by the 1958 secretary of the zoning board of appeals as approved by that board, was in fact never approved by that board. It is undisputed that no subdivision of lot 7 as shown on map 1180 was ever approved by the zoning authorities, and all parties agree that for zoning purposes map 4578 was illegal and a nullity. See General Statutes, §§ 8-18, 8-25 (Rev. to 1966); Westport Subdivision Regs. §§ 1.3-1.5 (1955, as amended). The dimensions of the house on the plan submitted to the building inspector were shown as sixty-four feet by thirty-four feet. At the same time, Sochacki also filed an application for a permit to construct a private sewage disposal system on lot 7, and a similar plot plan was filed with this application. This plan, however, showed the dimensions of the proposed building on the lot to be sixty feet by twenty-eight feet. A permit was issued by the town sanitarian on June 29, 1965, and the building inspector granted the building permit on July 1, 1965. On July 8, the plaintiffs appealed to the zoning board of appeals from the granting of the building permit.

On July 16, while the plaintiffs' appeal to the zoning board of appeals was pending, to remove the Bomars' reservation of the use of a portion of lot 7 and obviate any question as to whether that reservation had reduced the size of that lot below the minimum lot size required by the zoning regulations, Sochacki quitclaimed lot 7 back to the Bomars, and they thereupon, by warranty deed, reconveyed it to him. The July 16 deed to Sochacki contained no reservation by the Bomars of any right to use a portion of lot 7. It did, however, contain a restriction, which the June 4 deed had also contained, that no building should be constructed on the lot at a greater height than twenty-two feet from ground level and limited the height of any fences or vegetation on the westerly thirty feet of the lot.

On October 6, after a hearing held on August 12, the zoning board of appeals voted unanimously to deny the plaintiffs' appeal. The minutes of the board's executive session disclosed that the members of the board in executive session reviewed with the building inspector and the sanitarian the procedures which those officials used in processing applications for building and health permits 'in general and specifically, as applied to this case in question' and that the board 'felt that there were no irregularities involved to warrant reversing the action of the Zoning Enforcement Officer and Building Inspector in issuing a zoning and building permit.' From the board's decision, the plaintiffs appealed to the Court of Common Pleas.

In their appeal the...