Leonard v. Zoning Bd. of Appeals of City of Norwalk

• Decision Date: 26 May 1964
• Citation: 151 Conn. 646,201 A.2d 466
• Court: Connecticut Supreme Court
• Parties: William T. LEONARD et al. v. ZONING BOARD OF APPEALS OF the CITY OF NORWALK et al. Supreme Court of Errors of Connecticut

Page 466

201 A.2d 466

151 Conn. 646

William T. LEONARD et al. v. ZONING BOARD OF APPEALS OF the CITY OF NORWALK et al.

Supreme Court of Errors of Connecticut.

May 26, 1964.

John N. Cole, Stamford, for the appellants (plaintiffs).

Richard S. Weinstein, Norwalk, with whom was Jack Waltuch, Norwalk, for the appellee (defendant Mallia); with him also was Edward J. Zamm, So. Norwalk, for the appellee (named defendant).

Before KING, C. J., and MURPHY, ALCORN and COMLEY, JJ., and HOUSE, Acting Justice.

HOUSE, Acting Justice.

The plaintiffs appealed to the Court of Common Pleas on July 9, 1962, from the granting on June 27, 1962, effective July 16, 1962, of an application for a special exception under § 17 of the Norwalk zoning regulations (1929, as amended) to permit the defendant Henry J. Mallia to build a hotel in a residential zone. The defendants filed a plea in abatement and to the jurisdiction. From the judgment sustaining the plea and dismissing the appeal the plaintiffs have appealed.

The defendants' plea was based on the contention that under § 8-8 of the General Statutes a person aggrieved by a decision of a zoning board of appeals must appeal within fifteen days from the date of decision and that this requirement was not met since the relevant decision in the matter was rendered on March 2, 1961, more than a year before the appeal by the plaintiffs. The defendants claim that the March 2, 1961, decision is the one which granted the exception and that the 1962 proceeding was merely for review and approval of the plans and specifications as required by the first decision. The plaintiffs claim that the June 27, 1962, decision was based on a new application seeking a new exception.

In its decision on the plea in abatement, the court found the issues for the defendants and in effect held that since the plaintiffs did not appeal from the March 2, 1961, decision of the board within fifteen days as provided by § 8-8 of the General Statutes, they could not now appeal the action of the board in permitting the constitution of the hotel.

It is apparent that much of the difficulty before us arises from the absence of a finding adequate to determine the issues raised by the plea in abatement. We have before us only a limited finding, appropriate in a zoning case; Cohen v. Board of Appeals of Zoning, 139 Conn. 450, 453, 94 A.2d 793; but not a finding containing the findings necessary to test the conclusion of the court on a plea in abatement. Mendrochowicz v. Wolfe, 139 Conn. 506, 509, 95 A.2d 260. Such a finding is essential where relevant facts do not appear on the face of the record. Gitlitz v. Davis, 146 Conn. 280, 281, 150 A.2d 213; Maltbie, Conn.App.Proc. § 126. It is possible, however, to decide this particular appeal on the basis of the record. Tuite v. Tuite, 150 Conn. 345, 346, 348, 189 A.2d 394; Dolbeare v. Dolbeare, 124 Conn. 286, 288, 199 A. 555, 117 A.L.R. 687.

The record discloses that the plea in abatement was filed and decided on the assumption that § 8-8 of the General Statutes was the applicable statute governing the time within which an appeal from either of the decisions of the zoning board should have been taken. This was error, for, as we pointed out in Aurora v. Zoning Board of Appeals, 151 Conn. 378, 380, 198 A.2d 60, 61, '[s]ection 8-8 has no bearing on the limitation of time fixed for an appeal to the court from the granting of a variance by a zoning board of appeals.' The same rule is applicable to special exceptions. Section 8-7 governs the time within which to appeal from a special exception or variance granted by a zoning board of appeals. ¹

The record...