Smith v. F. W. Woolworth Co.

• Decision Date: 25 January 1955
• Citation: 142 Conn. 88,111 A.2d 552
• Parties: Herbert R. SMITH v. F. W. WOOLWORTH COMPANY et al. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 552

111 A.2d 552

142 Conn. 88

Herbert R. SMITH v. F. W. WOOLWORTH COMPANY et al.

Supreme Court of Errors of Connecticut.

Jan. 25, 1955.

Simon J. Beizer, Hartford, with whom, on the brief, were Morris G. Beizer and Joseph A. Levy, Hartford, for appellant (named defendant).

Richard F. Corkey, New London, for appellee (plaintiff).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE AND COVELLO ^*, JJ. O'SULLIVAN, Associate Justice.

The plaintiff instituted this action against the F. W. Woolworth Company, hereinafter called the defendant, and against the acting building inspector and the members of the zoning board of appeals of the city of New London. Subsequently, the municipality was joined as a party defendant. The plaintiff's purpose in bringing the action was to have the court determine whether certain permits issued to the defendant by the inspector and the board were valid, and, if the permits were invalid, to obtain, in addition to other relief, an injunction restraining the defendant from continuing with the construction of a building on premises abutting land of the plaintiff. The court found the issues for the plaintiff and enjoined the defendant as requested. From the judgment rendered, the defendant has appealed.

The finding, which is not subject to material correction, narrates the following facts: Golden Street and State Street in New London are substantially parallel. The former is the street next south of the latter. The plaintiff is the owner of a parcel of land bounded on the south by Golden Street and, at its rear, by land of the defendant. The defendant's land is bounded on the north by State Street. The only public highways touching these properties are the ones mentioned. Both parcels, under the municipal zoning ordinance, are in a business zone No. 2 and are 'interior lots,' so-called. New London Bldg. Zone Ordinance, §§ 1(f), 2 (1953). Each has a depth in excess of 100 feet. The ordinance provides that no business building in a business zone No. 2 may be erected or altered on an 'interior lot' unless the rear yard has a minimum depth equivalent to 10 per cent of the lot's entire depth. The yard's depth, however, need not exceed ten feet. New London Bldg. Zone Ordinance, §§ 10, 11(d) (1953).

On August 28, 1953, there was submitted to the acting building inspector of the city an application for a permit to alter the existing building on the defendant's land by constructing an addition which would extend to the southerly boundary line and would destroy the possibility of any rear yard upon the defendant's property. The inspector denied the application on the ground that the proposed addition conflicted with the requirement of the ordinance as to a rear yard. Within the time prescribed, the defendant filed with the zoning board of appeals a purported appeal from the decision of the inspector. Although the appeal was treated by the board as an appeal, it was, in effect, an application for a variance. Under the applicable law, the inspector could not legally have issued the permit requested, nor had he any power to grant a variance.

Public notice of a hearing on the purported appeal was given by publication in a local newspaper in accordance with long-time practice. However, nothing in the notice gave any indication that the defendant was seeking a variance. The zoning board held the hearing on October 2, 1953, and unanimously voted to grant the permit. On the same date, the building inspector issued a permit to proceed with the proposed construction. At no time did the defendant claim that the requirement of a rear yard with a depth of ten feet created any practical difficulties or unnecessary hardships. Furthermore, the board did not find, nor, on the record, could it have found, any such difficulties or hardships in the way of carrying out the strict letter of the ordinance.

The public notice appearing in the newspaper did not come to the attention of the plaintiff, an elderly resident of Bronxville, New York, who was at the time in a hospital. He did not learn of the action of the board until after November 5, 1953, the date upon which the defendant's building contractor mailed him a letter stating that an excavation was to be made along the common boundary line and notifying him to shore up a building adjacent to the line. When the plaintiff was apprised of the proposed activities of the defendant, he promptly instituted the present action, since the time for taking an appeal from the doings of the zoning board had expired. General Statutes, Cum.Sup.1953, § 285c.

The elimination of a rear yard on the defendant's land and an excavation along the common boundary line would cause special and peculiar damage to the plaintiff. Unless the work of excavation and construction was stopped, he would also be subjected, under the building code ordinance of the city, to a financial burden in shoring up his building.

Upon the foregoing facts, the court concluded that the defendant's appeal to the zoning board was, in effect, an application for a variance and that the board's action in granting the application was null and void because, among other reasons, no proper notice had been given to the plaintiff or to the public generally.

We first dispose of the claim that the present action cannot be maintained because, the defendant urges, the reasons which prompted the board to grant the variance may be reviewed judicially only through the medium of an appeal to the Court of Common Pleas, as provided by statute. General Statutes, Cum.Sup.1953, §§ 285c, 286c. The contention appears to be that an independent action is improper under the circumstances, since 'the court cannot inquire as to the facts or reasons for the discretionary decision of the board of appeals as these are properly for an appeal and not for a collateral...