Tyler v. Board of Zoning Appeals of Town of Woodbridge

• Decision Date: 24 June 1958
• Court: Connecticut Supreme Court
• Parties: Morris TYLER et al. v. BOARD OF ZONING APPEALS OF The TOWN OF WOODBRIDGE et al. Supreme Court of Errors of Connecticut

Page 832

145 A.2d 832

145 Conn. 655

Morris TYLER et al. v. BOARD OF ZONING APPEALS OF The TOWN OF WOODBRIDGE et al.

Supreme Court of Errors of Connecticut.

Decided June 24, 1958.

Reargued Oct. 7, 1958.

Amended Opinion Nov. 6, 1958.

Curtiss K. Thompson, New Haven, with whom, on the brief, was Joseph J. Mager, New Haven, for appellants-plaintiffs.

T. Holmes Bracken, New Haven, for appellees-defendants Beardmore.

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

MELLITZ, Associate Justice.

The defendants are Donald and Amelia Beardmore, who own a parcel of land in a residential zone in the town of Woodbridge, and the board of zoning appeals, which granted them a variance, on the ground of practical difficulties and unnecessary hardship, to allow the continued location of their house closer to the street than is permitted under the applicable zoning ordinance. None of the property owners in the vicinity objected, but an appeal from the granting of the variance was taken to the Court of Common Pleas by the members of the zoning commission of the town and by an individual member of the commission who is a taxpayer and lives about five miles from the property. The court concluded that the board did not act illegally in granting the variance.

We have decided to review a ruling in the court below involving its jurisdiction to entertain the appeal, although the ruling is not presented by a bill of exceptions or cross appeal, since the matter is dispositive of, and fatal to, the maintenance of the appeal. The defendants contended that the plaintiffs were not aggrieved persons and that the court had no jurisdiction of the appeal. The court ruled that the individual plaintiff had a direct interest in the enforcement and preservation of the zoning ordinances and was therefore entitled to maintain the appeal. The court did not rule as to the status of the zoning commission as an appellant, but it noted that Rommell v. Walsh, 127 Conn. 16, 19, 15 A.2d 6, sanctioned an appeal by a zoning authority. We may consider an error apparent on the record though not specifically assigned when the public character of the case and its importance not only to the parties but to the public are deemed sufficient to warrant such a course. Columbus Industrial Bank v. Miller, 125 Conn. 313, 315, 6 A.2d 42; State v. Gannon, 75 Conn. 206, 218, 52 A. 727; Maltbie, Conn.App.Proc., p. 207. Appeals from the actions of zoning authorities are being brought with increasing frequency, and in a mounting number the statutory provisions prescribing the requirements as to parties entitled to appeal are being ignored. We deem it advisable, therefore, to review the decision of the court on the jurisdictional question raised by the defendants.

Section 379d of the 1955 Cumulative Supplement to the General Statutes provides for an appeal from the doings of a zoning board of appeals by any person 'aggrieved by any decision of said board, or any officer, department, board or bureau of any municipality, charged with the enforcement of any order, requirement or decision of said board.' The plaintiffs here are the zoning commission of the town and an individual who lives five miles from the property involved in the appeal. The individual plaintiff is a resident and taxpayer of the town. No other facts are alleged or found to show him to be aggrieved by the action of the board. The question is whether either the individual plaintiff or the zoning commission is entitled to maintain this appeal.

Section 12 of the zoning ordinance of Woodbridge provides specifically that the regulations shall be enforced by the selectmen or their duly authorized agent. They are required to appoint an inspector to be their agent in the enforcement of the zoning provisions. Woodbridge Zoning Ordinance, p. 48 (1954). Section 1 of the zoning ordinance prescribes the duties of the enforcement officer. It is clear that the zoning commission as such has no function in the enforcement of the requirements of the zoning board of appeals and no status under § 379d to appeal a decision of the board. We have recognized that there is a public interest involved in many appeals which should be represented before the court. In most such situations, the board or officer having the responsibility of making the decision is entrusted with the duty of protecting that public interest. Maltbie, Conn.App.Proc., p. 311. Accordingly, we held in Rommell v. Walsh, 127 Conn. 16, 23, 15 A.2d 6, that a zoning board of appeals may be made a party defendant in an appeal taken from an order it has made and, where the trial court has overruled the board's decision, may prosecute an appeal to this court to protect the public interest involved. The decision recognizes that, apart from the provision in § 379d for action by an enforcement officer to protect the public interest, there may be occasion for a board whose ruling is in question to intervene, itself, to protect the public interest. The municipality concerned is always entitled to represent such interests by participating as a party to an appeal. Town of Milford v. Commissioner of Motor Vehicles, 139 Conn. 677, 681, 96 A.2d 806; Keating v. Patterson, 132 Conn. 210, 212 note, 43 A.2d 659; Maltbie, Conn.App.Proc., § 266. Since the Rommell decision, supra, it has become common practice for a zoning board of appeals to prosecute an appeal to this court where a trial court has overruled a decision of the board. Benson v. Zoning Board of Appeals, 129 Conn. 280, 27 A.2d 389; Del Buono v. Board of Zoning Appeals, 143 Conn. 673, 124 A.2d 915. Appeals have similarly been taken by zoning commissions where a decision of a commission has been reversed. Bartram v. Zoning Commission, 136 Conn. 89, 68 A.2d 308; Couch v. Zoning Commission, 141 Conn. 349, 106 A.2d 173. There is no sanction, however, in the Rommell decision, supra, for a zoning commission to take an appeal where a ruling or order of its own is not in issue.

This brings us to the question whether the individual plaintiff, who lives five miles from the property involved, may maintain an appeal as an aggrieved person merely because he is a resident and taxpayer of the town. It was very early held that the word 'aggrieved' as used in the statute governing probate appeals applied only to those who could show some pecuniary interest which the decree appealed from would in some way injuriously affect. Norton's Appeal, 46 Conn. 527, 528. Similarly, in construing the statute giving a right of appeal to persons aggrieved by a decision or order of railroad commissioners, it was held that one was aggrieved within the meaning of that statute when his property rights were injuriously affected by a judgment or order. Norton v. Shore Line Electric Ry. Co., 84 Conn. 24, 33, 78 A. 587; Stevens v. Connecticut Co., 86 Conn. 36, 41, 84 A. 361.

In Beard's Appeal, 64 Conn. 526, 533, 30 A. 775, we had occasion to consider the meaning of the term in the statute giving a right of appeal from the decision of county commissioners granting a license for the sale of intoxicating liquors. After noting that in probate appeals a direct pecuniary interest in the matter in controversy was required, the opinion points out that if the same construction had been intended in the statute dealing with liquor licenses the right of appeal would have been restricted to those having some interest in real property in the vicinity of the place where the liquors were to be sold. The opinion points out that every owner of property taxed in a town has an interest in the prosperity and good order of that town and that the expense of police and criminal proceedings in its local tribunals depends in large part upon the number of saloons and barrooms and the character of those who keep them. If liquor licenses are granted indiscriminately, the burden on the taxpayer is increased. Therefore, every taxpayer has a pecuniary interest, although it may be in common with every other citizen of the town, in promoting the welfare of the community. For these reasons he is not bound to show an interest peculiar to himself...