Zoning Commission of Town of New Canaan v. New Canaan Bldg. Co.
Decision Date | 03 February 1959 |
Citation | 148 A.2d 330,146 Conn. 170 |
Court | Connecticut Supreme Court |
Parties | ZONING COMMISSION OF TOWN OF NEW CANAAN v. NEW CANAAN BUILDING CO., Inc., et al. Supreme Court of Errors of Connecticut |
Charles R. Covert, Bridgeport, with whom was Raymond W. Beckwith, Bridgeport, for the appellants (defendants).
John N. Cole, Stamford, for the appellee (plaintiff).
Before DALY, C. J., and BALDWIN, KING, MURPHY and MELLITZ, JJ. MELLITZ, Associate Justice.
This is an appeal from a judgment enjoining the erection of an apartment house on premises in New Canaan owned by the defendants Lester B. Gale and Mary R. Gale and contracted to be sold by them to the named defendant, hereinafter referred to as the corporation. With such corrections as are warranted, the facts found are as follows: On June 30, 1941, zoning regulations were adopted in the town of New Canaan establishing an apartment house zone. The Gale property was located in this zone. In May, 1956, the defendant J. Elliott Smith, principal party in interest in the corporation and acting for it, negotiated for the purchase of the Gale property. He was then building an apartment house nearby, having started it the previous year. On May 18, he commenced negotiations with the federal housing administration for mortgage financing on an apartment building to be constructed on the Gale property. On July 6, a contract for the sale of the property to the corporation was entered into, and a payment of $3550 was made on the purchase price. On July 12, a surveying organization began a survey of the property. Smith sent an application to the federal housing administration on July 16 for mortgage financing, together with a filing fee of $396. On August 10, the corporation applied for a foundation permit, which was issued on August 30. Stakes were driven on September 5 for the location of the foundation of the south wing of the building. The corporation applied on September 7 for a building permit, and one was issued on September 10 on payment of a filing and zoning fee of $242.
On September 6 and 13, 1956, the New Canaan zoning commission caused notice to be published of a public hearing to be held on September 20 to consider a petition, filed by a group of neighboring property owners, to change a small tract, including the Gale property, from an apartment house zone to a B residence zone. On September 17, attorneys for the corporation wrote the commission urging that the petition be denied on the ground that zoning 'should be comprehensive for the Town as a whole and not localized as a result of pressure group petitions.' They gave notice that the corporation claimed the right to proceed with construction of the apartment house irrespective of action upon the petition by the commission. The public hearing was held on September 20, and the commission rejected the petition on October 12. In its minutes, the commission expressed the opinion that any action taken by it would be too late to prevent the erection of the apartment house under the outstanding permits and that to change the zone would not accomplish the purpose of the residents in the area to stop the building of the apartment house. On November 21, the commission voted to abolish the apartment house zone effective December 1, and it placed all the areas then located in that zone in an adjacent B residence zone as of that date. No physical change of conditions had occurred in the subject area between October 12 and November 21. On December 26, the zoning enforcement officer and building inspector wrote the corporation that it had the right to erect the apartment house even though the zone had been changed. The corporation on December 28 made a further payment of $5325 on the purchase price of the property.
On January 30, 1957, the commission received a letter from a resident in the neighborhood stating that construction of the apartment building would be detrimental to the neighborhood and that the change of zone had the effect of voiding the building permits which did not conform to the new zone. The commission sought and obtained a legal opinion on the subject. Thereafter, by letter dated February 11, 1957, the zoning enforcement officer, at the direction of the commission chairman, wrote the corporation revoking the permits issued to it for failure to comply with § 14.6 of the zoning regulations. This section provides, in effect, that construction of a building shall not be affected by an amendment of the regulations if the foundation has been started at the effective date of the amendment. The letter was received by the corporation on February 14. On February 13, machinery was in use digging footings, and concrete was being poured for them in an excavation twenty-four by thirty feet, and four feet deep. At a meeting of the commission on February 19, the revocation of the permits was approved and it was voted to institute injunction proceedings to halt construction. In addition to the sums paid on the purchase price of the Gale property and for permit fees and mortgage financing, payments were made or obligations incurred, between May 18, 1956, and February 13, 1957, for architectural renderings, $75; for staking the foundation and surveying, $561; for architectural services, $5812.66; and for legal services, $1419. Smith spent the major portion of his working time in preliminaries essential to the physical erection of the building.
On these facts, the trial court concluded that construction of the proposed apartment building became illegal after December 1, 1956, the effective date of the zone change, and enjoined the defendants from proceeding further. The court based its ruling on the holdings in Fitzgerald v. Merard Holding Co., 110 Conn. 130, 147 A. 513, 54 A.L.R. 361, and Graham Corporation v. Board of Zoning Appeals, 140 Conn. 1, 97 A.2d 564, and the failure of the defendants to bring themselves within the saving provisions of § 14.6 of the regulations. The authorities upon which the court rested its decision are clearly distinguishable on their facts from the situation found here. In the Fitzgerald case, supra, no permit authorizing construction was ever issued. The named defendant contracted for a site in a residential zone...
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