Warren v. Borawski

• Court: Connecticut Supreme Court
• Writing for the Court: JENNINGS, Judge.
• Citation: Warren v. Borawski, 130 Conn. 676, 37 A.2d 364 (Conn. 1944)
• Decision Date: 06 April 1944
• Parties: WARREN v. BORAWSKI et al.

130 Conn. 676

37 A.2d 364

WARREN v. BORAWSKI et al.

Supreme Court of Errors of Connecticut.

April 6, 1944.

Appeal from Superior Court, Hartford County; Inglis, Judge.

Action by Mary E. Warren against Anna Borawski and others for a decree adjudging null and void an amendment to the zoning ordinances of the City of New Britain as adopted by the common council and for other relief. Trial by the court resulted in a judgment for defendants, and plaintiff appeals.

No error.

Cyril F. Gaffney, of New Britain, for appellant.

William F. Mangan, of New Britain, for appellee Borawski.

Harold J. Eisenberg, Corp. Counsel, of New Britain, for appellees.

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

JENNINGS, Judge.

Section 14 of the zoning ordinances of the city of New Britain, printed in the footnote ¹ , provides for a three-fourths vote of the common council under the circumstances therein described and the question to be determined is whether those circumstances existed in this case.

On the 16th day of July, 1941, a petition was introduced into the common council for an extension of the present business ‘A’ zone on both sides of Burritt Street. It was referred to the board of adjustment. The board, with at least five members voting favorably, as required by the ordinance, voted to deny the petition as presented but to recommend to the common council the granting of a substantial part thereof. Thereafter petitions of protest were filed with the city clerk against this recommendation. On December 17, 1941, the common council consisted of thirty members and at its meeting on that day the recommendation of the board of adjustment was accepted, nineteen members voting in favor of and eight against the recommendation. Persons who were admittedly ‘owners' of 143,230 square feet of the area within 500 feet of the property involved in the proposed action filed protests, but the number of square feet represented by these owners was less than the 20 per cent required, 150,149 square feet.

A protest was also filed by Sophie T. Bukowski and Celia Bukowski, executrices of the estate of Mary Bukowski. This estate had in its name 16,200 square feet of land. Mary Ferrante, tenant in common of an undivided one-half interest in a lot on Burritt Street having an area of 21,360 square feet, also filed a protest.

As appears by the finding, the vote in question was passed by less than three-fourths of the council membership. The plaintiff's first claim is based on the provision of the ordinance to the effect that a three-fourths vote is necessary if a report adverse to a change proposed by the council is rendered by the board of adjustment. It is the clear meaning of the ordinance that the three-fourths vote is required only to override a recommendation of the board. When a recommendation of the board is accepted by the council a majority vote of the latter is all that is necessary. This was the situation here.

The plaintiff also claims that a three-fourths vote was necessary because of the protests filed. The trial court did not give effect to the protests because it concluded that the owners of 20 per cent of the affected territory had not signed. If it was in error in holding ineffective the protests of either the executrices or the tenant in common referred to above, the protest would fulfill the requirements of the ordinance and the vote of the council would be void.

The word ‘owner’ has no fixed meaning but must be interpreted in its context and according to the circumstances in which it is used. Camp v. Rogers, 44 Conn. 291, 298; Brown v. New Haven Taxicab Co., 92 Conn. 252, 254, 102 A. 573; Warren v. Lower Salt Creek Drainage District, 316 Ill. 345, 347, 147 N.E. 248; Kilduff v. Boston Elevated R. Co., 247 Mass. 453, 142 N.E. 98; American Woolen Co. v. Town Council of North Smithfield, 29 R.I. 93, 69 A. 293, 16 Ann.Cas. 1227; Notes, 2 A.L.R. 778, 95 A.L.R. 1085. Courtshave not agreed in the application of the meaning of the word, even when due allowance is made for the differing phraseology of the statutes involved and the circumstances under consideration. As to a tenant in common, it has been held that he is an owner in the sense that he can sign a protest for all owners. Los Angeles Lighting Co. v. Los Angeles, 106 Cal. 156, 160, 39 P. 535. See, to the same effect, Chan v. South Omaha, 85 Neb. 434, 438, 123 N.W. 464, 133 Am.St.Rep. 670; Allen v. Portland (petition for improvement), 35 Or. 420, 446, 58 P. 509.

On the other hand, in holding that one tenant in common could not sign a petition for an improvement, the court, in Newton v. Emporium Borough, 225 Pa. 17, 21, 73 A. 984, 985, said: ‘The position of the appellee in regard to this matter [that the part of the frontage proportionate to the interest of a signing tenant in common should be counted] cannot be sustained upon any theory either of law or common sense. The law requires the petition [for street paving] to be signed by the owners of the property. This means by all of the owners in any given piece of property. To hold otherwise would be to hold that, if all the property on any block were owned by tenants in common, the holder of an undivided 1/100th interest in the same might cause the block to be paved and the lien, therefore, to attach to the property, although the owners of the other 99/100ths interest were opposed to it. The position that the proportionate part...