Town of Darien v. Webb

• Decision Date: 25 October 1932
• Court: Connecticut Supreme Court
• Parties: TOWN OF DARIEN et al. v. WEBB et al.

162 A. 690

115 Conn. 581

TOWN OF DARIEN et al. v. WEBB et al.

Supreme Court of Errors of Connecticut.

October 25, 1932

Appeal from Superior Court, Fairfield County; Frederick M. Peasley Judge.

Action brought by the Town of Darien and others for an injunction restraining C. Pond Webb and others from using certain premises for business purposes, brought to the superior court and tried to the court. Judgment rendered for the plaintiffs and appeal by the defendants.

No error

Joseph L. Melvin, of Stamford, for appellants.

Raymond E. Hackett, of Stamford, for appellees.

HINMAN, J.

The defendant Webb is the owner of premises in Darien consisting of a lot on which is a wooden building. The lower floor of this building consists of one large room with two annexes, one fitted with bathroom fixtures and the other for kitchen purposes. The second floor originally consisted of one large room with no toilet facilities, but before the period here involved the owner had made alterations for the purpose of making the house habitable as a residence, including the installation of a bathroom and the placing of partitions on the second floor. The property is seasonal in nature and is fitted and equipped for summer occupancy only. It is located in the midst of a beautiful residential section and there is no other store or place of business within three quarters of a mile.

On December 10, 1925, the town adopted zoning regulations placing these premises in an A Residence Zone. These regulations contain a provision (section II) that: " In a residence zone, subject to the provisions of Section V, no building or premises shall be used and no building shall be erected or altered which is arranged, intended, or designed to be used except for one or more of the following uses." The uses specified do not include any hereinafter mentioned except residential. Section V provides that: " Any non-conforming use existing at the time of the passage of these regulations may be continued and any existing building designed, arranged, intended for, or devoted to a non-conforming use may be reconstructed and structurally altered, and the non-conforming use therein changed subject to the following regulations: a. The total cost of structural alterations made in such building shall in no case exceed fifty per cent of its assessed value, nor shall the building be enlarged unless the use therein is changed to a conforming use. b. No non-conforming use shall be extended at the expense of a conforming use. c. In a residential zone, no building or premises devoted to a use permitted in a business zone shall be changed into a use excluded from a business zone."

On the date of the adoption of these regulations the building in question was rented and used for a restaurant and tea room, and continued to be so used until about February 1, 1927. Thereafter the premises were idle until about July 1, 1927, when they were rented to a Mrs. Fauntleroy, who used them as a summer residence until about September 1st, and again from June to October, 1928. From September, 1927, to June, 1928, Webb permitted Mrs. Fauntleroy to keep her furniture and household equipment in the premises free of charge. From October 1, 1928, the premises were vacant until September 20, 1929, from which date until March 30, 1930, they were rented to a firm of contractors, who used the building as a business office and for storage of materials for work on a bridge being constructed nearby. The property was again idle from March 20, 1930, to May 15, 1930, when it was leased to the defendant Vickers, who used the building as a restaurant and tea room until the latter part of October, 1930. In September, 1931, Webb leased the premises to a Mr. Donahue for use partly for residential purposes and partly for the conduct of a general store or merchandising business. As the defendant Vickers, who was in possession at the time of service in this action, vacated the premises before judgment, we refer hereafter only to Webb as defendant.

The record indicates that the single decisive question upon the trial was whether the uses to which the property was devoted subsequent to December 10, 1925, constituted a continuance of a nonconforming use within the meaning of section V of the regulations so as to entitle the defendant to the benefit of the exception, created by that section, to the general prohibition, under section II, of use for business purposes in a residence zone. The plaintiffs claimed on the trial that as the building has since been used for a substantial period of time for residential purposes-a conforming use-the resumption by the defendant of use thereof for business is not within the terms of section V, and the trial court so held. Determination of this appeal depends upon whether the provision of section V, that a " non-conforming use existing at the time of the passage of [the] regulations may be continued," is satisfied by the facts found as to the subsequent uses of the defendant's building.

The main claim of the appellant is that the regulations contain no provisions as to how or under what circumstances the right to a nonconforming use existing at the time of passage is terminated, as by devotion of the premises to a conforming use, and that the right is not lost but remains available for exercise by resumption unless and until the building is so altered as to be no longer adapted to nonconforming uses. We agree that sanction for deprivation of the right must be afforded by and found in the terms of the regulations construed strictly but fairly. Reading the pertinent provisions of section II and section V together, as we must,...