State ex rel. Capurso v. Flis

• Decision Date: 08 July 1957
• Court: Connecticut Supreme Court
• Parties: STATE ex rel. Frank CAPURSO et al. v. Stephen A. FLIS, Town Manager of the Town of Farmington, et al. Supreme Court of Errors of Connecticut

Page 901

133 A.2d 901

144 Conn. 473

STATE ex rel. Frank CAPURSO et al. v. Stephen A. FLIS, Town Manager of the Town of Farmington, et al.

Supreme Court of Errors of Connecticut.

July 8, 1957.

J. Read Murphy and Craig Shea, Hartford, for appellants (defendants).

Frank R. Odlum, Hartford, for appellees (plaintiffs).

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

DALY, Justice.

The relators, hereinafter called the plaintiffs, brought this action against the respondents, hereinafter called the defendants, to secure an order in the nature of a mandamus to compel the named defendant, who is town manager of Farmington, and the defendant McCann, who is the zoning enforcing officer and building inspector, to issue to them a permit for the erection of a business building upon premises owned by them. From a judgment for the plaintiffs the defendants have appealed.

In their first assignment of errors, the defendants claim that the trial court erred in refusing to find certain facts which they assert were undisputed and another fact which they maintain was substantially uncontradicted. In their second and third assignments, they allege that the court erred in finding certain facts which they claim were unsupported by the evidence. Since they have pursued only a part of one of these assignments of error in their brief, we treat the others as abandoned. Lockwood v. Wilson H. Lee Co., 144 Conn. 155, 160, 128 A.2d 330; Somers v. Hill, 143 Conn. 476, 480, 123 A.2d 468. The defendants' claim as to the challenged finding will be discussed hereinafter.

In their complaint, the plaintiffs alleged: On May 3, 1956, they owned, and still own, a parcel of land in Farmington. Prior to 1950, it had been zoned for business. During 1950, the town plan and zoning commission attempted to make a revision or of the zoning laws of the town and claimed to have rezoned the plaintiffs' land as residence. The commission, by reason of its failure to comply with the provisions of § 838 of the General Statutes, did not validly change the zone of the land, and it remained in a business zone. Prior to May 4, 1956, the plaintiffs applied to the defendant McCann for a permit to build a business building on their land and demanded the issuance of the permit forthwith. On May 4, 1956, McCann refused to issue the permit.

The return of the defendants contained four special defenses. In the first of these, they alleged that the 1950 zone changes had been in effect six years, and that substantial areas, including the plaintiffs' land, had been changed from one zone to another, or zones established; that a large number of inhabitants of the town had built houses relying upon the changes; and that the plaintiffs had made no effort to cite in adjacent property owners who would be adversely affected by the granting of the relief sought. In the second special defense, the defendants averred that the plaintiffs had failed to exhaust their administrative remedies because they had not appealed from the denial of their application for a building permit to the zoning board of appeals in accordance with the zoning regulations adopted April 27, 1950, or pressed to a conclusion an application for a change of zone which they had filed with the town plan and zoning commission.

In the third special defense, the defendants alleged that the plaintiffs acquired their property on April 7, 1954, and had actual and constructive knowledge of the existence of the zoning regulations; that they were guilty of laches in failing to prosecute this or a similar action to contest the validity of the 1950 zoning changes within a reasonable time after they acquired their property; that they came into court without clean hands; and that the town of Farmington would be prejudiced by the granting of the relief sought, in that the entire town would have to be rezoned and 'numerous complaints, applications and even lawsuits would be threatened,' all at great cost to the town and its inhabitants. In the fourth special defense, the defendants averred that the notices and the posting of maps which were promulgated and effected by the town plan and zoning commission in 1950 were substantially in compliance with the requirements of the statute and that the plaintiffs were not prejudiced by any of the alleged defects in the promulgation, the defects being merely procedural and ample notice having been furnished to interested parties, including the plaintiffs and their predecessors in title.

The plaintiffs denied the allegations contained in the special defenses. By alleging the facts stated in them, the defendants assumed the affirmative and had the burden of proving those facts. Mercer Electric Mfg. Co. v. Connecticut Electric Mfg. Co., 87 Conn. 691, 697, 89 A. 909; Curley v. Marzullo, 127 Conn. 354, 359, 17 A.2d 10.

The defendants have pursued in their brief the assignment of error in which they alleged that the court erred in finding that '[t]o grant the business building permit to the [plaintiffs] would not injure anyone.' By their special defenses they raised the issue of injury to others and, as just stated, assumed the burden of proving the facts alleged in those defenses. Consequently, they had the burden of proving the fact that to grant the permit would injure others. They do not claim to have offered any evidence to prove that fact. Instead, they appear to have relied upon the presumption that the trial court would take judicial notice of it. It was not a fact of which the court could take judicial notice. Moreover, nothing in the record indicates that the court was asked to do so. Matter which it is claimed the court should judicially notice should be called to its attention by the party seeking to take advantage of the matter so that, if there is ground upon which it may be contradicted or explained, the adverse party will be afforded an opportunity to do so. Nichols v. Nichols, 126 Conn. 614, 622, 13 A.2d 591; Goodhall v. Cox, 129 Conn. 79, 83, 26 A.2d 551. The court did not err in finding the challenged fact.

The defendants maintain that the validity of the 1950 zone changes cannot be determined in this mandamus action. We have no occasion in this case to consider this claim. By alleging in their special defenses that the 'zoning ordinances have been in effect for six years' and that the 'notices and map-postings which were promulgated and effected' by the town plan and zoning commission in 1950 'were substantially in compliance with the requirements' of the statute, and by averring in one of their assignments of error that the court erred in overruling their claim of law that the zone changes were valid and effective, they are estopped from claiming that the validity of the changes cannot be determined in this action. Maltbie, Conn.App.Proc. (2d Ed.) § 42.

The finding contains the following facts: On May 3, 1956, the plaintiffs owned a parcel of land in Farmington. They had acquired title to it in 1954. The named defendant was on May 3, 1956, the town manager of the town. The defendant McCann was the zoning enforcing officer and building inspector and had control of the issuance of building permits. Prior to 1950 the land owned by the plaintiffs was zoned for business. Sometime before May 4, 1956, the plaintiffs made application to the defendant McCann for a permit to build a business building on their land and demanded the issuance of the permit forthwith. On May 4, 1956, McCann denied the application for a permit and refused the demand for it on the ground that the plaintiffs' property had been zoned for residential use by virtue of the 1950 zoning changes. During 1950 the town plan and zoning commission attempted to make a revision of, or amendment to, the zoning laws of the town and claimed to have...