Parsons v. Town Of Wethersfield

• Decision Date: 14 July 1948
• Citation: 135 Conn. 24,60 A.2d 771
• Court: Connecticut Supreme Court
• Parties: PARSONS et al. v. TOWN OF WETHERSFIELD

135 Conn. 24

60 A.2d 771

PARSONS et al.

v.TOWN OF WETHERSFIELD

Supreme Court of Errors of Connecticut.

July 14, 1948.

Appeal from Superior Court, Hartford County; Daly, Judge.

Action by Louise S. Parsons and others against The Town of Wethersfield and others for a declaratory judgment determining the validity of a change in zoning, for an injunction and for other relief, brought to the Superior Court and tried to the court. Judgment for the defendants and sustaining the acts of the defendant zoning commission and the defendant town, from which the plaintiffs appeals to this court.

No error.

Wallace R. Burke, of Hartford (Frank R. Odlum, of Hartford, on the brief), for appellants.

Joseph V. Fay, Jr., of Hartford (David R. Woodhouse, of Hartford, on the brief), for appellees.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

JENNINGS, Judge.

The zoning commission of Wethersfield, four of the five commissioners present and voting, changed the Griswold property, hereinafter described, from a residence zone to a light industrial zone on August 6, 1946. The plaintiffs appealed on the ground that the action of the commission was not unanimous and that there had been no substantial change in the neighborhood since the adoption of the zoning regulations. The trial court rendered judgment for the defendants.

With such changes in the finding as the plaintiffs are entitled to, the controlling facts may be summarized as follows: Zoning was adopted in Wethersfield in 1926. The property of William G. Griswold, Jr., and Frederick A. Griswold, II, hereinafter called the defendants, was placed in a residence district. They petitioned twice for a change of zone, but both of these petitions were ‘discouraged’ by the commission. Their present petition was for a change from residence to industrial zone 1. Industrial 2 is for heavy industry and industrial 1 for light industry. The uses permitted in the latter are those allowed in a business zone plus the operation of such light industries as distributing and bottling plants and the assembly and sale of small tools and appliances.

The defendants' land bounds west on the Silas Deane Highway about 1,800 feet, north on land of Ray Stolzenbach about 500 feet, east on land of the New York, New Haven and Hartford Railroad Company about 900 feet and south on land of Frank Briggaman about 200 feet and on land of Owen W. Sweeney about 500 feet. The Silas Deane Highway is 100 feet wide and carries a heavy volume of traffic between Hartford and Middletown and beyond. It was built subsequent to 1926. Except for the construction of this highway, no physical change which had any practical effect on the plaintiffs' property was made between 1926 and 1946. The Stolzenbach and Sweeney properties were zoned for industrial 1 and that of Briggaman for industrial 2 on August 6, 1946. The latter property had been in an unclassified industrial zone since 1926. There are other properties zoned for industry near this highway, including a strip 300 feet wide along the west side of the railroad from the property in question south to the town line and a large lot north of the lots of the plaintiffs between Middletown Avenue and the railroad. A pole line runs diagonally through the property in question and another along the eastern boundary. There is a 50-foot right of way along the eastern boundary for the high-tension power line of the Connecticut Power Company. The railroad property is a strip of land 66 feet wide running along the entire eastern boundary east of the power lines. Middletown Avenue roughly parallels the railroad property and is between 300 and 500 feet to the east. The plaintiffs own houses and lots facing east on Middletown Avenue and in the aggregate own more than 20 per cent of the land east of and opposite the Griswold property. They opposed the defendants' petition at a hearing before the zoning commission. The railroad lies between the lands of the plaintiffs and defendants. The value of the plaintiffs' lots will not be affected by the change.

In 1945 Wethersfield engaged an expert in city planning to make a survey of the town. He submitted a master plan for town development and recommended that the land in question be zoned for industrial number 1 use.

The trial court concluded that a unanimous vote of the commission was not required, that the classification of the land in question as industrial 1 was in accord with a comprehensive plan for zoning in the town of Wetherfield and that the commission acted with fair and proper motives, skill and sound judgment.

At the threshold of this inquiry lies the question whether a unanimous vote of the commission was required to accomplish a change in zone. This depends upon the construction of General Statutes, Cum.Supp.1939, § 132e. It reads in part: ‘If a protest shall be filed with the zoning authority against such change, signed by the owners of twenty per cent or more of the area of the lots included in such proposed change, or of those immediately adjacent in the rear thereof extending one hundred feet therefrom, * * * such change shall not become effective except by unanimous vote of the zoning authority if such zoning authority is a zoning commission * * *.’ The decision on this point depends on the meaning to be accorded the words ‘immediately adjacent.’ If the railroad owned only a right of way, the property owners on either side owned to its center and their lands might be said to be immediately adjacent. Center Bridge Co. v. Wheeler & Howes Co., 86 Conn. 585, 589, 86 A. 11. The railroad can, however, own land for its tracks in fee. New York, B. & E. Ry. Co. v. Motil, 81 Conn. 466, 471, 71 A. 563; General Statutes § 5008. If it owned this 66-foot strip in fee, the land of the plaintiffs did not adjoin or abut the land in question, but it still must be determined whether it was immediately adjacent.

The plaintiffs relied in argument both in the trial...