Sipperley v. Board of Appeals on Zoning of Town of Westport

• Decision Date: 14 July 1953
• Court: Connecticut Supreme Court
• Parties: SIPPERLEY et al. v. BOARD OF APPEALS ON ZONING OF TOWN OF WESTPORT et al. Supreme Court of Errors of Connecticut

Page 907

98 A.2d 907

140 Conn. 164

SIPPERLEY et al. v. BOARD OF APPEALS ON ZONING OF TOWN OF WESTPORT et al.

Supreme Court of Errors of Connecticut.

July 14, 1953.

Frederick L. Comley, Bridgeport, for appellants (defendants hrivnock).

Edgar T. See, Westport, for appellant (defendant board).

Gregory C. Willis, Bridgeport, with whom, on the brief, was Lorin W. Willis, Bridgeport, for appellees (plaintiffs).

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

O'SULLIVAN, Associate Justice.

On September 6, 1951, the named defendant, to be called the board, granted a variance of the zoning regulations of Westport to the defendants Theodore H. and Stephen W. Hrivnock. The eleven plaintiffs, all taxpayers owning real estate in the immediate vicinity, appealed from the action of the board to the Court of Common Pleas. Their appeal was sustained, and from the judgment rendered thereon all defendants have appealed to this court.

It is conceded that the following facts were before the board: The Hrivnocks, whom we shall call the defendants, own a tract of land in the town of Westport. The tract fronts southerly on the Boston Post Road for 190 feet and easterly on Maple Avenue for 344 feet; its westerly and northerly dimensions are 311 and 190 feet, respectively. Zoning was adopted by the town on September 8, 1930. The southerly part of the tract to a depth of 200 feet has always been zoned for business, while the remainder was placed and still remains in a residence zone. Prior to September 8, 1930, the premises had been used for hotel purposes and as a site for the sale of vegetables.

The defendants purchased the property in 1948 and established a lumberyard on the part of the premises within the business zone. During September, 1950, they unsuccessfully sought the board's approval of a variance through which the rest of the tract could be used for their business. They took no appeal from the adverse decision. In August, 1951, the defendants again applied to the board for permission to use for business purposes the entire tract or that portion within 300 feet of the Post Road or such additional part of the property beyond the 200-foot depth as the board might deem proper. At the public hearing held upon the application, the defendants admitted that no change in conditions had occurred since the preceding hearing. They stated, however, that the need for a variance had increased because of the growth of their business. In spite of the opposition voiced by neighboring landowners, the board granted the application by permitting a business use up to a line fifty feet distant from the northerly boundary. The Court of Common Pleas held that the action of the board was illegal, arbitrary and in abuse of its discretion. On appeal to this court, the defendants have advanced several assignments of error, but, in our view of the case, we need refer to but one matter, since this provided ample justification for the reversing of the action of the board.

A board of zoning appeals is undoubtedly invested with a liberal discretion in deciding whether to reverse one of its former decisions. Torello v. Board of Zoning Appeals, 127 Conn. 307, 311, 16 A.2d 591. The exercise of this discretion, however, is subject to review by the court to determine whether the board acted reasonably and legally and upon evidence which fairly sustained its action. Burr v. Rago, 120 Conn. 287, 292, 180 A. 444. When the question was first presented in the early days of zoning, this court held that a zoning board of appeals 'should not ordinarily be permitted to review its own decisions and revoke action once duly taken. Otherwise there would be no finality to the proceeding; the result would be subject to change...