Loew v. Falsey
| Decision Date | 13 November 1956 |
| Citation | 144 Conn. 67,127 A.2d 67 |
| Court | Connecticut Supreme Court |
| Parties | Elias M. LOEW v. Henry G. FALSEY, Building Inspector of the City of New Haven, et al. Supreme Court of Errors of Connecticut |
Harold M. Mulvey, Asst. Corp. Counsel, New Haven, with whom, on the brief, was George W. Crawford, Corp. Counsel, New Haven, for appellants (defendants).
J. Stephen Knight, New Haven, for appellee (plaintiff).
Before INGLIS, C. J., BALDWIN, WYNNE and DALY, JJ., and COTTER, Superior Court Judge.
The plaintiff brought an action in the nature of mandamus to the Superior Court to compel the issuance of a building permit. The court rendered judgment for the plaintiff, and the defendants have appealed.
The finding is not subject to correction. The salient facts are these: The named defendant is the building inspector of the defendant city of New Haven. The plaintiff operates a number of open-air drive-in theaters through two corporations of which he owns the stock and exercises control--E. M. Loew, Inc., which will be referred to herein as the Loew corporation, and E. M. Loew Theaters, Inc. On October 18, 1955, the Loew corporation purchased land on Amity Road in New Haven near the Woodbridge town line for the purpose of developing an open-air drive-in theater. This land, which the parties have referred to as the DeLucia property, is located in a business A zone, wherein open-air drive-in theaters are permitted. Previously, in September, the Loew corporation had purchased two other parcels, referred to as the DeFelice property, which adjoins the rear of the DeLucia property, and the contiguous Petrillo property, which lies in the town of Woodbridge. The purchase of these three properties was the culmination of a series of negotiations begun in May, 1955. The DeFelice property is in a residence B zone, wherein drive-in theaters are not permitted. On August 17, 1955, an application was made to the New Haven board of zoning appeals by Louis DeFelice, then the owner of record of the DeFelice property, for a variance to permit its use for a parking lot in conjunction with the proposed theater. The day following, August 18, 1955, a draft of a proposed ordinance requiring that all applications for building permits for places to be used for public assembly be first approved by the board of zoning appeals and the board of police commissioners was filed with the city clerk. This proposed ordinance was referred by the board of aldermen, on two occasions, to its committee on ordinances. Notices of public hearings on the ordinance were duly given, and the hearings were held. No final action could be taken by the board of aldermen before its meeting in March, 1956, a date some time after the trial of the present case.
On September 5, 1955, Henry W. Ross, acting as agent for the plaintiff, consulted the defendant building inspector concerning a building permit for the DeLucia property. Thereafter, he employed Charles Cahn to survey the property and Alfred M. Thomas to prepare the plans necessary for obtaining a building permit. On October 28, 1955, Thomas and Ross went to the office of the building inspector with the prepared plans and specifications to consult with him and his assistant, Mr. Bowman. Thomas and Ross were advised that the plans for a proposed concession building on the DeLucia property complied with the building code and the zoning ordinance of New Haven. On the same day, the city engineer certified that the property on which the proposed structure was to be built was in a business A zone. Thomas, as agent for the plaintiff, executed an application for a building permit which was prepared by Bowman from information supplied by Thomas. In this application, at the place where the identity of the owner is required, the name E. M. Loew was inserted. The application was approved by the building inspector. There was then issued to the plaintiff's agents by the building inspector's office, upon the payment of a $90 fee, a card bearing the following legent: The issuance of this card was authorized by the building inspector. The practice of the inspector was to issue such a card to be placed upon the premises where construction was to be undertaken as a notice to the building inspector and the police department. A formal permit was customarily issued later. On November 3, 1955, the building inspector, having been told of the ordinance pending before the board of aldermen, advised the plaintiff that he would not issue the formal permit for that reason. When the plaintiff sought the building permit, he had not yet applied for a certificate of approval of location from the state traffic commission as required by § 1408d of the 1955 Cumulative Supplement.
Upon these facts the plaintiff claims that the court properly directed the defendant to issue the permit. To this claim the defendants say that the permit should not issue for these reasons: (1) The plaintiff has not secured the certificate of approval of location from the state traffic commission. (2) The defendant building inspector is justified in withholding a formal building permit because of the pending ordinance. (3) The plaintiff has failed to comply with the building code of New Haven because the name of the owner of the premises for which the permit to build is sought is not correctly stated in the application.
Section 1408d of the 1955 Cumulative Supplement to the General Statutes provides in part that '[n]o person shall build, establish or operate any open air theater having an exit or entrance on, or abutting or adjoining, any trunk line or state aid highway within this state unless the person building, establishing or operating such open air theater shall have procured from the state traffic commission a certificate that the operation of such open air theater will not imperil the safety of the public.' It is conceded that this statute applies to the DeLucia property. It should be noted that there is nothing in the statute which calls for the issuance of a building permit for the construction of a...
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