Wadell v. Bd. Of Zoning Appeals Of City Of New Haven

CourtSupreme Court of Connecticut
Writing for the CourtMALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.
Citation136 Conn. 1,68 A.2d 152
PartiesWADELL et al. v. BOARD OF ZONING APPEALS OF CITY OF NEW HAVEN et al.
Decision Date09 August 1949

136 Conn. 1
68 A.2d 152

WADELL et al.
v.
BOARD OF ZONING APPEALS OF CITY OF NEW HAVEN et al.

Supreme Court of Errors of Connecticut.

Aug. 9, 1949.


Appeal from Court of Common Pleas, New Haven County; Pickett, Judge.

Proceeding before the Board of Zoning Appeals of the City of New Haven on an application for the grant of a variation from a zoning ordinance. The appeal of Carl H. Wadell, and others, from the action of the board in granting permission to erect a parochial school was brought to the court of common pleas and tried to the court. From a judgment dismissing the appeal, Carl H. Wadell, and others, appeal to the Supreme Court of Errors.

No error.

BROWN, J., dissenting.

68 A.2d 153

Robert J. Woodruff, New Haven, with whom was Arthur Klein, New Haven, for the appellants (plaintiffs).

Joseph M. Brandon, New Haven, with whom, on the brief, was David E. FitzGerald, Jr., New Haven, for the appellee (defendant St. Aedan's Church Corporation).

Alfred F. Celentano, assistant corporation counsel, New Haven, with whom, on the brief, were George DiCenzo, Corporation Counsel, and William L. Beers, Assistant Corporation Counsel, New Haven, appeared for the appellee (defendant board).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

MALTBIE, Chief Justice.

The plaintiffs appealed to the Court of Common Pleas from the grant of a variation under the zoning ordinance of New Haven, and from a judgment for the defendant board in that court have appealed to this court. The undisputed facts show this general situation: St. Aedan's Church owns a tract of land in a residence zone in the city on which stand a church and a rectory. It desires to erect a school on the property, a permitted use in the zone. The ordinance, however, contains a provision that in such zones, in case of a building other than a residence, there shall be side yards at least twenty feet in width, if, as is the situation with regard to the proposed school, the building is not over forty feet in height. New Haven Zoning Ordinance § 1024. The ordinance also contains a provision: ‘Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of any provision of this Ordinance, or where the effect of the application of the Ordinance is arbitrary, the Board of Zoning Appeals shall have power in a specific case to vary any such provision in harmony with its general purpose and intent so that the public health, safety and general welfare may be secured and substantial justice done.’ § 1033(7). The southerly side of the school, if erected as proposed, would encroach upon the twenty-foot side yard required by the ordinance. The board granted a variation which would permit this encroachment.

We find some difficulty in dealing with the issues in this case because of the way it is presented to us. Section 429 of the 1930 Revision of the General Statutes, in effect when the appeal to the court was taken and heard, Rev.1949, § 844, contained this provision concerning appeals to the courts from zoning boards: ‘The court, upon such appeal, shall review the proceedings of said board and, if, upon the hearing upon such appeal, it shall appear to the court that testimony is necessary for the equitable disposition of the appeal, it may take evidence’ or refer the matter to a referee or committee. Where, as occurred in this case, the board states the reasons for its decision and there is available a transcript of the evidence before it, both constitute the ‘proceedings' before the board, and the conclusions reached may be reviewed to determine whether they find reasonable support in the evidence. If the trial court hears testimony, it should find any additional facts proven before it material to the just disposition of the appeal; but its finding should be confined to facts established by the evidence offered to it. In such a case the finding should contain by quotation or reference the reasons for the decision of the board as stated by it, and, if necessary to determine the issues, the testimony offered before it, and a statement of such additional facts as are proven by the evidence offered in court. In this case the trial court made a rather lengthy finding, much of which has no basis other than the transcript of the testimony taken before the board. As, however, we have before us the statement of the board as to its reasons for granting the variation, and the transcript of the testimony before it, and can from the finding ascertain the additional

68 A.2d 154

facts found by the trial court, we can determine the essential issues.

The property of the church is bounded northerly by Fountain Street, easterly by Alden Avenue and westerly by McKinley Avenue, and the church stands at the corner of McKinley Avenue and Fountain Street and fronts on the latter. The rectory is on the corner of Fountain and Alden. The property is bounded on the south, for a distance of about 156 feet from McKinley Avenue, by the land of the plaintiff Wadell on which stands his house. The school, if erected as planned, would be about 75 feet across the front, which would be towards McKinley Avenue; it would be about 110 feet long from east to west; the northerly end would be within about six feet of the rear of the church, and the southerly end would average about nine feet from the boundary between the church property and that of Wadell.

The reasons stated in the records of the board for granting the encroachment were: The school would conform in architecture, materials and workmanship to the church building and would not detract from the appearance of buildings on McKinley Avenue and in the neighborhood; pupils would not use the main entrance to the building but would enter in the rear by a walk from McKinley Avenue; the play yard would front on Alden Avenue, which would be better than to have it on McKinley Avenue; it is quite necessary for the welfare of the pupils to have larger rooms, in keeping with modern requirements for schools; the building as planned would cost about $250,000 and it would be a hardship to compel the church to construct the building with rooms twenty-four feet in size; there are tall trees along the boundary between the church property and that of Wadell which shut off the light to the latter; and there is a driveway to his property along the boundary, so that there will be considerable space between his home and the school. These findings all have substantial support in the testimony offered before the board. In addition, there was uncontradicted evidence that the front of the school would be forty feet back from the street line on McKinley Avenue, in...

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39 practice notes
  • Florentine v. Town of Darien
    • United States
    • Supreme Court of Connecticut
    • June 7, 1955
    ...Conn. 452, 455, 85 A.2d 904; Talmadge v. Board of Zoning Appeals, 141 Conn. 639, 642, 109 A.2d 253; see Wadell v. Board of Zoning Appeals, 136 Conn. 1, 7, 68 A.2d 152; Hertzsch v. Zoning Board of Appeals, 137 Conn. 599, 603, 79 A.2d In considering the constitutionality of the regulation con......
  • People ex rel. Klaeren v. Village of Lisle, No. 2-99-1256.
    • United States
    • United States Appellate Court of Illinois
    • October 13, 2000
    ...by cross-examination.'" E & E Hauling 77 Ill.App.3d at 1022, 33 Ill.Dec. 536, 396 N.E.2d 1260, quoting Wadell v. Board of Zoning Appeals, 136 Conn. 1, 8-9, 68 A.2d 152, 155-56 (1949). The reviewing court concluded that the denial of a right of cross-examination to an adjoining landowner ren......
  • Maine Clean Fuels, Inc., In re
    • United States
    • Supreme Judicial Court of Maine (US)
    • October 17, 1973
    ...A.,2d 673, 677-678 (1953); In Re Shenandoah Suburban Bus Lines, 355 Pa. 521, 50 A.2d 301, 305 (1947); Wadell v. Board of Zoning Appeals, 136 Conn. 1, 68 A.2d 152, 155-156 However, there are instances where, under the particular circumstances of the Page 747 case, courts have held that even ......
  • Fairwindct, Inc. v. Conn. Siting Council, Nos. 19090
    • United States
    • Supreme Court of Connecticut
    • September 23, 2014
    ...Riese letters, because [their] due process right consisted of the right to cross-examin[ation]. See [Wadell v. Board of Zoning Appeals, 136 Conn. 1, 8, 68 A.2d 152 (1949) ] (‘[c]ross-examination is the greatest aid to the ascertainment of the truth which the advocate possesses')....” (Citat......
  • Request a trial to view additional results
39 cases
  • Florentine v. Town of Darien
    • United States
    • Supreme Court of Connecticut
    • June 7, 1955
    ...Conn. 452, 455, 85 A.2d 904; Talmadge v. Board of Zoning Appeals, 141 Conn. 639, 642, 109 A.2d 253; see Wadell v. Board of Zoning Appeals, 136 Conn. 1, 7, 68 A.2d 152; Hertzsch v. Zoning Board of Appeals, 137 Conn. 599, 603, 79 A.2d In considering the constitutionality of the regulation con......
  • People ex rel. Klaeren v. Village of Lisle, No. 2-99-1256.
    • United States
    • United States Appellate Court of Illinois
    • October 13, 2000
    ...by cross-examination.'" E & E Hauling 77 Ill.App.3d at 1022, 33 Ill.Dec. 536, 396 N.E.2d 1260, quoting Wadell v. Board of Zoning Appeals, 136 Conn. 1, 8-9, 68 A.2d 152, 155-56 (1949). The reviewing court concluded that the denial of a right of cross-examination to an adjoining landowner ren......
  • Maine Clean Fuels, Inc., In re
    • United States
    • Supreme Judicial Court of Maine (US)
    • October 17, 1973
    ...A.,2d 673, 677-678 (1953); In Re Shenandoah Suburban Bus Lines, 355 Pa. 521, 50 A.2d 301, 305 (1947); Wadell v. Board of Zoning Appeals, 136 Conn. 1, 68 A.2d 152, 155-156 However, there are instances where, under the particular circumstances of the Page 747 case, courts have held that even ......
  • Fairwindct, Inc. v. Conn. Siting Council, Nos. 19090
    • United States
    • Supreme Court of Connecticut
    • September 23, 2014
    ...Riese letters, because [their] due process right consisted of the right to cross-examin[ation]. See [Wadell v. Board of Zoning Appeals, 136 Conn. 1, 8, 68 A.2d 152 (1949) ] (‘[c]ross-examination is the greatest aid to the ascertainment of the truth which the advocate possesses')....” (Citat......
  • Request a trial to view additional results

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