London v. Zoning Bd. of Appeals of City of Bridgeport

• Decision Date: 26 March 1963
• Citation: London v. Zoning Bd. of Appeals of City of Bridgeport, 190 A.2d 486, 150 Conn. 411 (Conn. 1963)
• Court: Connecticut Supreme Court
• Parties: Seymour LONDON et al. v. ZONING BOARD OF APPEALS OF the CITY OF BRIDGEPORT et al. Supreme Court of Errors of Connecticut

Page 486

190 A.2d 486

150 Conn. 411

Seymour LONDON et al. v. ZONING BOARD OF APPEALS OF the CITY OF BRIDGEPORT et al.

Supreme Court of Errors of Connecticut.

March 26, 1963.

Martin F. Wolf, Bridgeport, with whom were Aaron B. Schless, Bridgeport, and, on the brief, Austin K. Wolf, Bridgeport, for the appellants (plaintiffs).

Burton J. Jacobson, Bridgeport, with whom, on the brief, was Alfred A. D'Amore, Bridgeport, for the appellees (defendants Yanosik); with him also was John J. McGuiness, Jr., Bridgeport, for the appellee (named defendant).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ. SHEA, Associate Justice.

In November, 1960, the defendants Ida J. and Harold Yanosik applied to the zoning board of appeals of Bridgeport for a variance of the zoning regulations to permit the construction of a medical office building on premises in a residence A zone. The board granted the application. The plaintiffs, neighboring property owners and aggrieved persons within the meaning of § 8-8 of the General Statutes, appealed to the Court of Common Pleas, which affirmed the decision of the board. The plaintiffs have appealed to this court.

The return of the board contained the following notation: 'Due to the failure of the recording machine, the mechanical recording of the public hearing could not be transcribed. Therefore, there is no transcript available of the public hearing held on * * * [the] petition.' The board also failed to comply with the statutory requirement that it shall state upon its records the reason why the variance was granted. General Statutes § 8-7. Thus, the record as presented provided no basis on which the court could review the proceedings of the board. The defendants requested the court to take evidence to furnish a basis for deciding the appeal. After a preliminary hearing on this request, the court concluded that the failure of the board to return a transcript of the proceedings did not render the action of the board invalid and decided to allow the defendants to introduce evidence to reconstruct that which was before the board. The court also decided to allow any additional evidence which would enable it properly to understand the case. London v. Zoning Board, 23 Conn.Sup. 6, 175 A.2d 709. Thereafter, the court heard the evidence, concluded that the board did not act arbitrarily, illegally or in abuse of its discretion and dismissed the plaintiffs' appeal.

The plaintiffs contend that the court erred in allowing the introduction of evidence and that the failure of the board to comply with § 8-7a of the General Statutes renders the action of the board invalid. Section 8-7a provides: 'The zoning commission and zoning board of appeals shall call in a competent stenographer to take the evidence, or shall cause the evidence to be recorded by a sound-recording device, in each hearing before such commission or board in which the right of appeal lies to the court of common pleas.' Section 8-8 provides that any person aggrieved by any decision of a zoning board of appeals may take an appeal to the Court of Common Pleas. When an appeal is taken, the board is required to return to the court either the original papers acted upon by the board, constituting the record of the case appealed from, or certified copies thereof. Under this requirement, the board must return forthwith either the original or a certified copy of the petition or application on which it has acted, the minutes of the proceedings before it and of the executive action taken by it, a transcript of the proceedings, all exhibits considered by it, and a copy of the relevant and material zoning regulations. See Cohen v. Board of Appeals on Zoning, 139 Conn. 450, 453, 94 A.2d 793. Section 8-8 also provides that: 'The court, upon such appeal, shall review the proceedings of said board and shall allow any party to such appeal to introduce evidence in addition to the contents of the record of the case returned by said board, if, upon the hearing upon such appeal, it appears to the court that additional testimony is necessary for the equitable disposition of the appeal.'

Since 1925, the law has permitted the court to take evidence if it appeared that testimony was necessary for the equitable disposition of the appeal. Public Acts 1925, c. 242, § 13; Rev.1930, § 429; Rev.1949, § 844. Until 1955, the court in the proper exercise of its discretion could hear evidence when the record failed to present the hearing in sufficient scope to determine the merit of the appeal or when some extraordinary reason required it. Devaney v. Board of Zoning Appeals, 143 Conn. 322, 324, 122 A.2d 303. This was done to determine what facts and considerations were presumptively in the minds of the board when it acted. Schultz v. Zoning Board of Appeals, 144 Conn. 332, 334, 130 A.2d 789; Berkman v. Board of Appeals on Zoning, 135 Conn. 393, 397, 64 A.2d 875.

In 1955, the law relating to the introduction of evidence before the court was amended. ¹ If the record did not contain a stenographic report or complete mechanical recording of the entire proceedings before the board, including all evidence presented to it, each party had a right to introduce evidence on the appeal. Morama Corporation v. Town Council, 146 Conn. 588, 590, 153 A.2d 431; Village Builders, Inc. v. Town Plan & Zoning Commission, 145 Conn. 218, 221, 140 A.2d 477. The amendment became a part of § 8-8. In 1959, the General Assembly passed an act entitled, 'An Act concerning Mandatory Stenographic Reports in Hearings before Zoning Commissions and Zoning Boards of Appeal.' Public Acts 1959, No. 460. Section 1 of that act is now General Statutes § 8-7a as quoted above. Section 2 struck out the portion of § 8-8 which allowed any party to an appeal to introduce evidence in addition to the...