Park Const. Co. v. Planning and Zoning Bd. of Appeals of Town of Greenwich

• Decision Date: 21 December 1954
• Citation: 142 Conn. 30,110 A.2d 614
• Court: Connecticut Supreme Court
• Parties: The PARK CONSTRUCTION COMPANY v. The PLANNING AND ZONING BOARD OF APPEALS OF the TOWN OF GREENWICH et al. Supreme Court of Errors of Connecticut

Page 614

110 A.2d 614

142 Conn. 30

The PARK CONSTRUCTION COMPANY v. The PLANNING AND ZONING BOARD OF APPEALS OF the TOWN OF GREENWICH et al.

Supreme Court of Errors of Connecticut.

Dec. 21, 1954.

Sydney C. Winton, New York City, and William C. Strong, Greenwich, with whom, on the brief, was Daniel P. Hays, New York City, for appellant (plaintiff).

Kenneth F. Clark, Greenwich, for appellee (defendant Parish of Christ Church).

Charles R. Covert, Bridgeport, for appellee (named defendant).

Cyril Coleman, Hartford, with whom, on the brief, was C. Duane Blinn, Hartford, amicus curiae.

Before BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ., and SHEA, Superior judge.

BALDWIN, Justice.

On December 17, 1952, the plaintiff made application to the building inspector of Greenwich for a permit to erect five multifamily dwellings upon land in Greenwich which it leases, with an option to purchase, from the estate of Elizabeth M. Ashforth. The inspector refused the permit. This is an appeal from a judgment of the Court of Common Pleas sustaining the planning and zoning board of appeals, which had denied the plaintiff's appeal from the ruling of the inspector. The Parish of Christ Church, Greenwich, was joined with the board as a party defendant. Counsel for the trustee under the will of Elizabeth M. Ashforth argued the cause as amicus curiae.

The land upon which the plaintiff proposed to erect the five multifamily dwellings, each to have forty separate apartments, is an interior lot, hereinafter referred to as parcel C. It consists of 10.38 acres lying south of East Putnam Avenue and east of Milbank Avenue. The only portion of it which adjoins a public highway is a strip 60 feet in width, extending northerly for approximately 500 feet along the easterly boundary of land owned by the Parish of Christ Church to East Putnam Avenue, where it broadens to provide a frontage of 80 feet. Between the interior portion of parcel C and Milbank Avenue on the west there is a multifamily housing development known as Putnam Park on a parcel of land 12.064 acres in area which fronts on Milbank Avenue. This parcel will be referred to hereinafter as parcel B. Both parcels were formerly owned by the estate of Elizabeth M. Ashforth. On November 30, 1949, the trustee of that estate conveyed parcel B to the Pierce Construction Co., Inc., which erected the housing development. At that time the trustee reserved for the benefit of parcel C a right of way fifty feet wide across parcel B to Milbank Avenue. This right of way appears upon a map entitled 'Property of Trust Estate of Elizabeth Milbank Ashforth, Greenwich, Connecticut.' The map, which is specifically referred to in the agreement making the reservation, was approved by the commissioner of public works of Greenwich and placed on file with the town clerk on November 30, 1949. It was proposed that an improved roadway twenty feet in width extending easterly from Milbank Avenue to a traffic circle or turnabout located in part on parcel C would be constructed. The portion of parcel C upon which the plaintiff seeks permission to erect multifamily dwellings is in an R-MF (residence multifamily) zone where they are permitted. The portion of parcel C which constitutes the strip sixty feet wide extending northerly from the interior portion of parcel C to East Putnam Avenue is entirely within an R-6 (residence-6) zone, where multifamily dwellings are not allowed. Greenwich Bldg. Zone Regs., §§ 8, 9 (1952). The inspector denied the plaintiff's application for a permit because the property did not front upon or have access to a street, as required by the building zone regulations. ¹ We point out that the case does not present any question of variance or special exception.

The plaintiff contends that the inspector's reasoning was erroneous since parcel C met the requirements of the regulations regarding access to a public street in three separate manners. First, the sixty-foot strip extending northerly to East Putnam Avenue provided the requisite access in compliance with § 19 of the regulations. Second, parcel C has the necessary frontage in that it abuts for eighty feet on East Putnam Avenue. Third, the right of way running westerly from parcel C through Putnam Park to Milbank Avenue also met the requirements of § 19. We shall take these up seriatim.

As to the first, the plaintiff contends that the use of the sixty-foot strip as a passway would be incidental to the principal use permitted on the interior portion of parcel C and would, therefore, be a permissible accessory use. ² Although the sixty-foot strip lies within an R-6 zone, the regulations for such a zone do not expressly proscribe its use as an access way. Section 8 of the regulations concerns uses permitted in an R-6 zone. It catalogues the permitted principal uses, which do not include multifamily dwellings such as the plaintiff proposes to erect, and lists the accessory uses which are allowed and those which are denied. The use of land as an access way to an interior lot is not specifically mentioned. It is true that zoning regulations are in derogation of common-law rights and they cannot be construed to include or to exclude by implication that which is not clearly within their express terms. Service Realty Corporation v. Planning and Zoning Board of Appeals, 141 Conn. 632, 638, 109 A.2d 256; City of Danbury v. Corbett, 139 Conn. 379, 384, 94 A.2d 6; Langbein v. Board of Zoning Appeals, 135 Conn. 575, 580, 67 A.2d 5; 8 McQuillin, Municipal Corporations (3d Ed.) § 25.72. Therefore, argues the plaintiff, the proposed use should be permitted since it is not expressly prohibited. This argument, however stands upon the assumption first, that the use of the sixty-foot strip as a passway is accessary to a residential use, and second, that as such an accessory use it can be extended across a zone boundary. The plaintiff must concede that the accessory residential use it claims is incidental to a principal use of parcel C for multifamily dwellings. It therefore partakes of the nature of the residential use allowed in an R-MF zone rather than of the residential use allowed in an R-6 zone. Abbadessa v. Board of Zoning Appeals, 134 Conn. 28, 32, 54 A.2d 675; First National Bank & Trust Co. v. Zoning Board of Appeals, 126 Conn. 228, 235, 10 A.2d 691; City of Yonkers v. Rentways, Inc., 304 N.Y. 499, 503, 109 N.E.2d 597; Monument Garage Corporation v. Levy, 266 N.Y. 339, 344, 194 N.E. 848; Town of Brookline v. Co-Ray Realty Co., 326 Mass. 206, 212, 93 N.E.2d 581; see Mellitz v. Sunfield Co., 103 Conn. 177, 184, 129 A. 228; Laughlin v. Wagner, 146 Tenn. 647, 657, 244 S.W. 475. To paraphrase what was stated by the court in City of Yonkers v. Rentways, Inc., supra, 304 N.Y. 503, 109 N.E.2d 598, it can hardly be said that the day-in-day-out passage of vehicles and other traffic going to and from five multifamily dwellings, housing 200 families, over the sixty-foot strip to East Putnam Avenue would be anything but a use of the strip for multifamily dwelling purposes. It certainly would not be a use accessory to a single-family dwelling, the type permitted in an R-6 zone. The regulations do permit a customary accessory use which is incident to the principal use located on the same lot. However, § 19(m), upon which the plaintiff relies, provides that an access way shall not be included as part of a rear lot. The effect of this provision in the instant case is the severance of the sixty-foot strip from the interior portion of parcel C at the very location of the boundary line between the R-MF and R-6 zones.

The plaintiff also maintains, in furtherance of its first contention that, under the regulations, an interior lot, regardless of how it is zoned or the use to which it is to be put, must have access to a street. Such access, it claims, is a substitute for the street frontage required by the regulations. Therefore, it says, the sixty-foot strip is not truly a part of the lot at all but, is, in effect, a kind of street, and so, under §§ 4 and 5 of the regulations, it is neutral ground to which they have no applications. ³ In support of this argument it cites Beckmann v. Township of Teaneck, 6 N.J. 530, 536, 79 A.2d 301; State ex rel. Szodomka v. Gruber, 201 La. 1068, 1077, 10 So.2d 899; Faulkner v. Keene, 85 N.H. 147, 159, 155 A. 195; Home Fuel Oil Co. v. Board of Adjustment, 5 N.J.Super. 63, 66, 68 A.2d 412; Prospect Park Borough v. McClaskey, 151 Pa.Super. 467, 470, 30 A.2d 179. Some of these cases by reason of their peculiar facts, and others by reason of the form of procedure in which the question involved was presented, can be distinguished from the one at bar. In any event, we cannot hold upon the circumstances of this case that this use of the sixty-foot strip as an access way for traffic going to and from the proposed five multifamily dwellings designed to accommodate forty families each could be called a neutral use or one that was not incidental and indispensable to a use permitted only in an R-MF zone. On the plaintiff's first claim, the ruling of the inspector, which was sustained by both the board and the court, was correct.

The plaintiff's second contention is that the eighty-foot frontage on East Putnam Avenue provides the access required under § 19(f) of the regulations. This section must be read with § 19(m). The latter specifically states that an access...