Parsons v. Board of Zoning Appeals of City of New Haven

• Decision Date: 11 August 1953
• Citation: 140 Conn. 290,99 A.2d 149
• Court: Connecticut Supreme Court
• Parties: PARSONS et al. v. BOARD OF ZONING APPEALS OF CITY OF NEW HAVEN et al. Supreme Court of Errors of Connecticut

Page 149

99 A.2d 149

140 Conn. 290

PARSONS et al. v. BOARD OF ZONING APPEALS OF CITY OF NEW HAVEN et al.

Supreme Court of Errors of Connecticut.

Aug. 11, 1953.

Elmer W. Ryan, New Haven, for appellants-appellees (plaintiffs).

Frank E. Callahan, New Haven, with whom was Harrison F. Turnbull, New Haven, for the appellant-appellee (defendant Security Insurance Company of New Haven), and on the brief, John W. Barclay, New Haven, for the appellant-appellee (defendant board).

Before BROWN, C. J., and BALDWIN, INGLIS and O'SULLIVAN, JJ., and CORNELL, Superior Court Judge.

CORNELL, Judge.

On September 25, 1951, the board of zoning appeals of the city of New Haven granted the application of the estate of Bertha A. Watrous and the Security Insurance Company of New Haven, defendants in this action, for permission to use the basement and first and second floors of a single-family dwelling, known as the Watrous property, at 261 Bradley Street, New Haven, for offices for physicians, surgeons and dentists, but denied them permission to construct, maintain and use the driveway along the easterly boundary of the property as a passway between Bradley Street and other premises of the insurance company located at the rear of the property. The plaintiffs, comprising a number of residents of the city of New Haven, appealed to the Court of Common Pleas from the action of the board in allowing the variance. That court rendered judgment dismissing the appeal.

The plaintiffs take exception to several paragraphs of the finding which are to the effect that the board had before it certain facts concerning the number of doctors' offices already in the neighborhood. The basis of their exception is that the only evidence of these facts was an unsworn statement made at the hearing before the board by counsel for the defendants. Proceedings before an administrative board are informal. Saporiti v. Zoning Board of Appeals, 137 Conn. 478, 482, 78 A.2d 741. Such a board is not bound by the strict rules of evidence. Adam v. Connecticut Medical Examining Board, 137 Conn. 535, 540, 79 A.2d 350. It may act upon facts which are known to it even though they are not produced at the hearing. Jaffe v. State Department of Health, 135 Conn. 339, 349, 64 A.2d 330, 6 A.L.R.2d 664; Mrowka v. Board of Zoning Appeals, 134 Conn. 149, 154, 55 A.2d 909. The only requirement is that the conduct of the hearing shall not violate the fundamentals of natural justice. That is, there must be due notice of the hearing, and at the hearing no one may be deprived of the right to produce relevant evidence or to cross-examine witnesses produced by his adversary or to be fairly apprised of the facts upon which the board is asked to act. Wadell v. Board of Zoning Appeals, 136 Conn. 1, 8, 68 A.2d 152.

In the present case, the statement of facts was made at the hearing by counsel for the defendants in the presence of counsel for the plaintiffs and without objection. The latter had ample opportunity to refute it and in fact did contradict it in certain particulars. Under the circumstances, the board was entitled to accept the statement in lieu of sworn testimony and to give to it such credence and weight as, in their minds, it merited. The facts contained in the statement were properly before the board. The dictum in Celentano v. Zoning Board of Appeals, 135 Conn. 16, 18, 60 A.2d 510, that such statements are not evidence is overruled.

From the transcript of the proceedings before the board, supplemented by the finding, which is not subject to correction, it appears that the board had in mind in granting the variance the following facts The Watrous property is on the north side of Bradley Street. It consists of a single-family dwelling of thirteen rooms on a lot having a frontage of 80 feet and a depth of 170 feet. The zoning ordinance of the city of New Haven in effect on September 25, 1951, was adopted under the authority of a special act of the General Assembly. 19 Spec.Laws 1006. The Watrous property is in a residence B district. The uses permitted in that district include any building or use permitted in a residence AA district, two-family detached dwellings, boarding houses, one- or two-family attached dwellings where there is an alley in the rear, and hotels having thirty or more sleeping rooms. New Haven Zoning Ordinance, Art. 5, § 1013 (1951). The land extending west of the Watrous property to the east line of Whitney Avenue and the land on the north are in a business A district. The land on the north and the office building on it are owned by the Security Insurance Company. On September 1, 1951, the insurance company acquired the Watrous property by a deed from the executors of the will of Bertha A. Watrous. The company knew before contracting to purchase the property that it was in a residence B district in which no business use was permitted unless sanctioned by a variance granted by the board of zoning appeals, and the purchase was not conditioned on the obtaining of a variance.

There are sixteen houses on Bradley Street between Whitney Avenue, the street to the west of the Watrous property, and Orange Street, the second street to the east. There are twenty-nine doctors' offices in properties bounding on Bradley Street between Whitney Avenue and the next street east. Of the doctors using these offices, only three reside in the houses where they maintain their offices. The board of zoning appeals had previously granted four variances...