Town of Guilford v. Landon

• Decision Date: 03 February 1959
• Citation: 148 A.2d 551,146 Conn. 178
• Court: Connecticut Supreme Court
• Parties: TOWN OF GUILFORD v. Horton H. LANDON et al. Supreme Court of Errors of Connecticut

Page 551

148 A.2d 551

146 Conn. 178

TOWN OF GUILFORD v. Horton H. LANDON et al.

Supreme Court of Errors of Connecticut.

Feb. 3, 1959.

T. Holmes Bracken, New Haven, for appellants (defendants).

Dennis N. Garvey, New Haven, with whom, on the brief, was Lewis E. Caplan, New Haven, for appellee (plaintiff).

Before DALY, C. J., and BALDWIN, KING, MURPHY and MELLITZ, JJ.

BALDWIN, Associate Justice.

The defendants have appealed from a judgment enjoining the use of their premises for a lumber business in violation of the zoning regulations of Guilford. The appeal raises the questions whether (1) the action was brought by a proper party, (2) there has been an extension of a nonconforming use in violation of the zoning regulations, (3) the alterations made in the premises by the defendants required a building permit and a certificate of occupancy, and (4) the defendants were properly enjoined from carrying on their business.

We shall consider first whether the action was brought by a proper party. The writ and summons named as party plaintiff 'the Town of Guilford, a municipal corporation * * * acting herein through its Town Planning and Zoning Commission and the Enforcement Officer thereof.' The defendants pleaded in abatement and alleged in substance that the town had no legal right to bring an action through others, that the commission and the enforcement officer had no legal right to sue on behalf of the town, and that the action should have been brought by the town, or by the individuals comprising the commission, or by the person who was the enforcement officer. The real party in interest is the town. There is a definite public interest to be protected in the enforcement of zoning regulations, and the town as a party could properly represent that interest. Rommell v. Walsh, 127 Conn. 16, 21, 15 A.2d 6; Keating v. Patterson, 132 Conn. 210, 212 note, 43 A.2d 659; Town of Milford v. Commissioner of Motor Vehicles, 139 Conn. 677, 681, 96 A.2d 806; Tyler v. Board of Zoning Appeals, 145 Conn. 655, 658, 145 A.2d 832; Maltbie, Conn.App.Proc., §§ 246, 266; 2 Metzenbaum, Zoning (2d Ed.) p. 1028. This is so despite the fact that the regulations make the agent of the commission the enforcement officer. Town of Lexington v. Bean, 272 Mass. 547, 554, 172 N.E. 867. While the present writ states that the commission and the enforcement officer are acting for the town, the complaint describes the town as the plaintiff. As pointed out in Rommell v. Walsh, and Keating v. Patterson, supra, our practice has permitted actions enforcing the regulations of boards and commissions to be brought by them, and it has been customary to name the individual members as constituting such agencies. Under our Practice Act and rules, however, the courts overlook mere technicalities when no substantial rights of the parties are affected. Dunn's Appeal, 81 Conn. 127, 131, 70 A. 703; Practice Book, § 471. The trial court properly overruled the plea in abatement.

The defendants claim error in numerous paragraphs of the finding. No corrections are warranted and no discussion is necessary save as to one finding with which we will deal later in this opinion. The facts can be stated briefly: The defendants owned property in a residence B zone wherein commercial uses are prohibited. Guilford Zoning & Subdiv. Regs., § 3(C) (1953, as amended). Their property included acreage, a dwelling house and, some distance therefrom, an old barn. For over thirty years the named defendant had carried on a lumber business on this property. He had operated a movable sawmill both on and off the premises and had stored on, and sold from, the premises logs and finished lumber for flooring, framing, roofing, siding, doors and windows. In May, 1956, pursuant to regulations, the defendants applied for a building permit and submitted a proposed certificate of occupancy. Id. § 2(C), (E). The permit and the certificate were refused by the enforcement officer on the ground that the defendants were seeking to extend a nonconforming use. Id. §§ 2(B), 8(C). The defendants appealed, unsuccessfully, to the board of zoning appeals. The board, however, voted to allow the continued nonconforming use of the premises as that use obtained prior to the adoption of the regulations and, upon the filing by the defendants of a certificate of occupancy modified to accord to such use, to grant a certificate of occupancy. Thereupon the defendants filed another proposed certificate of occupancy, but it was refused because it did not conform to the limitations imposed by the board. Thereafter, without securing a building permit, the defendants installed new sliding doors in place of the old double barn doors, a concrete floor in the barn, eight windows and a side door, electric wiring, storage tanks for gas heating, and a telephone, partitioned off an area for an office within the barn, and erected a sign over the doorway reading 'Landon Lumber Company.' They also offered for sale, in addition to what they had previously offered, hardwood, building hardware, cement, nails, roll roofing, composition shingles, and builders' tape. No certificate of occupancy has ever been issued.

The trial court concluded that the work done on the barn constituted structural alterations requiring a permit, that the proposed use was an illegal extension of a nonconforming use, and that the defendants had wilfully violated the zoning regulations. Judgment was ordered enjoining them from using the barn and from doing business on their property.

There can be no question that the use made by the defendants of their property became nonconforming upon the adoption of the zoning regulations. Guilford Zoning & Subdiv. Regs., §§ 1, 8 (1953, as amended). If the...