Schultz v. Zoning Bd. of Appeals of Town of Berlin

• Decision Date: 26 March 1957
• Citation: 130 A.2d 789,144 Conn. 332
• Court: Connecticut Supreme Court
• Parties: Adolph SCHULTZ v. ZONING BOARD OF APPEALS OF TOWN OF BERLIN. Supreme Court of Errors of Connecticut

Page 789

130 A.2d 789

144 Conn. 332

Adolph SCHULTZ v. ZONING BOARD OF APPEALS OF TOWN OF BERLIN.

Supreme Court of Errors of Connecticut.

March 26, 1957.

Edward B. Scott and J. Noxon Howard, New Britain, with whom, on the brief, was Donald H. Clark, New Britain, for appellant (plaintiff).

Roger F. Gleason, New Britain, with whom, on the brief, was Algert F. Politis, New Britain, for appellee (defendant).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ.

INGLIS, Chief Justice.

The question presented in this case is whether the defendant board acted illegally or arbitrarily when it denied the plaintiff's application for permission to build a dwelling house on land located on the south side of Alling Street in the town of Berlin.

When the plaintiff appealed the decision of the board to the Court of Common Pleas, the board, in an apparent attempt to comply with the directions contained in § 379d of the 1955 Cumulative Supplement, filed in the court certain documents which purported to constitute the record of the case made before the board. This procedure was not strictly in compliance with the statute. On an appeal from a zoning board of appeals, the record made before the board should be annexed to, and incorporated by reference in, the answer of the board. When this is done, it does not become necessary to introduce the record in evidence on the trial of the case unless, of course, the plaintiff denies the correctness of the record returned. In the present case, the record filed contained, as was proper, the notice of the hearing, a rather sketchy report in narrative form of what was said at the hearing and a copy of the minutes of the executive meeting of the board at which the application was denied. There was no copy of the application itself, and this lack, as well as the incompleteness of the summary of evidence, had to be cured by the court's taking evidence, as it permitted by the statute to determine what facts and considerations were presumptively in the minds of the members of the board when they acted. Berkman v. Board of Appeals on Zoning, 135 Conn. 393, 397, 64 A.2d 875; Levine v. Zoning Board of Appeals, 124 Conn. 53, 57, 198 A. 173. Upon the evidence so taken, the court very properly made a finding.

From the record filed by the board and the finding made by the court, with such additions as the plaintiff is entitled to, it appears that the following are the facts pertinent to the decision of the case. The zoning ordinance of the town of Berlin was adopted originally in 1948 and was revised as of July 21, 1954. Prior to the revision, the minimum requirement for frontage of a building lot in the zone in which the property now in question is located was sixty feet. Under the revision, the minimum lot width was increased to seventy-five feet. The revised ordinance, however, contained the following provision as § 11(k): 'Any plot existing as a separate parcel and not complying with the minimum area or width of lot required in the schedule at the time of the passage of these regulations may, notwithstanding such fact, be improved with a building in accordance with the regulations of its residence zone, provided the owner owns no adjacent land which may, without undue hardship to him, be included as part of the plot in question.' At the time the revision went into effect, the land now belonging to the plaintiff was the eastern portion of property, having a total frontage of 132.6 feet on Alling Street, owned by Jack and Constance Glendening. The title had come to them by mesne conveyances from James B. Ellsworth, who owned it from May, 1946, to November, 1947. While Ellsworth was the owner, he built a dwelling house on the westerly portion of the lot. In that connection he graded and planted the land around the house so as to make a lot with a frontage of 68.6 feet on Alling Street. This operation left the easterly part of the original plot, sixty-four feet in front, unimproved and at a grade about four feet lower than the improved land. Ever since then this lot has been allowed to remain unimproved and in a wild state. It is this sixty-four-foot frontage that is now owned by the plaintiff. When Ellsworth sold the property, he sold the entire 132.6 feet frontage as one piece, and there was no division of ownership of the piece until April 7, 1955, when the plaintiff took conveyance of the eastern portion, and the western portion, with the dwelling house on it, was conveyed to Walter H. and Hedwig Parlow.

On March 23, 1955, before the plaintiff bought the lot with a frontage of sixty-four feet, he applied to the zoning commission of the town of Berlin, the body charged with the enforcement of the zoning ordinance, for a building permit for the erection of a dwelling on the lot. A permit signed by R. H. Allen, chairman of the commission, was given to the plaintiff, but the commission as a whole had not authorized its issuance. Thereafter, the plaintiff bought the lot and proceeded to excavate and pour concrete footings for a projected house. After receiving protests from neighbors against the erection of the house, the zoning commission first suspended, and then revoked, the permit.

On July 19, 1955, the plaintiff applied to the defendant board for relief from the revocation of his building permit, claiming that it was error for the commission to have taken that action. He also asked for a variance under the appropriate provisions of the ordinance which empowered the granting of variances 'in instances where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of these regulation.' Berlin Zoning Ordinance, § 15(6) (1954). As regards the application of the plaintiff for review of the action of the commission, his claim was that his plot with the sixty-four-foot frontage existed as a separate lot prior to the revision of the zoning ordinance in 1954 and therefore came within § 11(k) of the ordinance, quoted above. This...