Hickey v. New London

153 Conn. 35 (1965)

PATRICIA A. HICKEY ET AL. v. CITY OF NEW LONDON ET AL.

Supreme Court of Connecticut.

Argued June 2, 1965.

Decided July 6, 1965.

KING, C. J., MURPHY, ALCORN, SHANNON and HOUSE, JS.

*36 Francis J. Pavetti, for the appellants (defendants Simon et al.).

Richard F. Corkey, with whom was Robert B. Hempstead, for the appellees (plaintiffs).

MURPHY, J.

On September 16, 1963, the council of the city of New London, in its capacity as the zoning authority for the municipality; 19 Spec. Laws 997; approved the application of the defendants Stanley Simon and Jack Mashkin to change from B residence to C residence the zonal classification of property fronting 251 feet on the north side of Willetts Avenue, having a depth of 300 feet, and on the west adjoining the New London-Waterford town line in order to permit the erection of an apartment building. The council also adopted an amendment to the building zone ordinance to make the change effective. The eleven plaintiffs are the owners of *37 one- or two-family houses in the immediate neigborhood who allege that they are aggrieved by the action of the council. Upon appeal, the Court of Common Pleas held them to be aggrieved and rendered judgment sustaining the appeal without filing a memorandum of decision stating the basis for its decision. Simon and Mashkin have appealed from the judgment below and specifically challenge the finding that the plaintiffs are aggrieved.

In Tyler v. Zoning Board of Appeals, 145 Conn. 655, 662, 145 A.2d 832, it was held that to be an aggrieved person entitled to take an appeal in a zoning case in which traffic in intoxicating liquor is not involved, one has to be found to be specially and injuriously affected in his property or other legal rights. We also stated that the appellant should allege in his complaint the respects in which he claims to be adversely affected by the decision from which the appeal was taken. Id., 663. The complaint in this case is deficient in that it alleges only that the plaintiffs are aggrieved as owners of real property in the immediate vicinity. Even if the trial court permitted the plaintiffs to introduce evidence to substantiate the allegations of ownership and proximity, such proof, without more, would not be sufficient to make the plaintiffs aggrieved persons under General Statutes § 8-8.

The burden of proving that at least one of the plaintiffs was an aggrieved person was on the plaintiffs. London v. Planning & Zoning Commission, 149 Conn. 282, 284, 179 A.2d 614; Langbein v. Planning Board, 145 Conn. 674, 676, 146 A.2d 412. The trial court filed a limited finding, which was restricted to the question of aggrievement. The named plaintiff was found to be the owner of land on the south side of Willetts Avenue a short distance up the *38 street from the property of Simon and Mashkin and almost directly across the street from the property of the plaintiff Thomas F. DiMaggio. The latter property adjoins the easterly boundary of property owned in trust by the plaintiff Josephine D. Canon which abuts the property of Simon and Mashkin. Reference to the copy of the assessor's map which was put in evidence by the plaintiffs shows that the Canon property has a frontage of fifty-five feet on the north side of Willetts Avenue and the DiMaggio property has a frontage of forty-five feet. The property of the named plaintiff does not appear on the map. The properties of all of the other plaintiffs are on Beckwith Street, which is about 200 feet east of the Simon-Mashkin property and runs north from Willetts Avenue. None of these properties adjoins the area for which the change of zone was granted. From these facts, the trial court concluded that all of the plaintiffs were aggrieved for the purposes of the appeal.

Whether a person is aggrieved is a question of fact for determination by the trial court; Bright v. Zoning Board of Appeals, 149 Conn. 698, 704, 183 A.2d 603; Fox v. Zoning Board of Appeals, 146 Conn. 665, 667, 154 A.2d 520; and the court's conclusion will not be disturbed upon appeal unless the subordinate facts do not support it. Molk v. Micklewright, 151 Conn. 606, 608, 201 A.2d 183; Schroder v. Battistoni, 151 Conn. 458, 461, 199 A.2d 10; Taylor v. Hamden Hall School, Inc., 149 Conn. 545, 552, 182 A.2d 615; Maltbie, Conn. App. Proc. § 166. There is no finding that any of the properties owned by the plaintiffs will be depreciated in value as a result of the change in zone or that otherwise any of the plaintiffs will be specially and injuriously affected in their property or other legal rights. *39 Consequently, the conclusion that the plaintiffs are aggrieved persons cannot stand.

There is error, the judgment is set aside and the case is remanded with direction to dismiss the appeal.

In this opinion the other judges concurred.