202 A.2d 837 | Conn. Super. Ct. | 1964
The above entitled matter purports to be an appeal from the defendant zoning board of appeals of the town of Waterford. Paragraph 1 of the complaint therein states: "On March 14, 1963, one Donald D. Deedy applied to . . . [that] Board . . . for an order reversing an order of the Building Inspector of said Town that a certain lot of land . . . was being used by said . . . Deedy in violation of the zoning ordinances of the Town, the claim of . . . Deedy being that his use thereof was a valid, nonconforming use." The complaint further goes on to say that the board "granted said application" and that the plaintiffs, who are two adjoining landowners of the lot in question, are aggrieved by the decision of the board. To this, the defendants Deedy filed a plea in abatement, the ground thereof being that the plaintiffs have not taken this appeal "within fifteen days from the date when such decision was rendered" as provided in §
Despite the language used in the complaint, the matter heard before the defendant zoning board of appeals was not an appeal from the action of the zoning and building inspector. It is completely apparent from the transcript of the hearing before the board and the other material in the file that all concerned were confused themselves as to the nature *277
of what they were doing. The application of the zoning board of appeals of the town of Waterford ([a] of the return) is the starting point of this analysis. It is a mimeographed form addressed to the board which offers the applicant three alternative claims to the board with a direction to strike out those which are not appropriate. This was not done, which is not helpful on the true nature of this proceeding. Where the application requests the applicant to indicate the order or decision complained of or the appropriate section of the zoning regulations, there is an irrelevant reference to §
What the board thought it was acting on and purported to act upon appears from the transcript. At the start of the hearing before the defendant board of appeals, the chairman, Miss Rose, asked a member of the board, Mr. Phillips, to explain why the case was before them. The response is decisive: ". . . he [Donald Deedy] is not appealing from the decision of the building inspector, and he is not appealing from any section of the zoning ordinance; it is my interpretation this is more or less for clarification . . . ." Later, Phillips said again, "He is not appealing from any section of the zoning ordinance . . . . Well, I would take that to mean that Mr. Deedy, of course, is claiming a nonconforming right here." It is apparent that this *278 view was acquiesced in by the defendant Deedy through his attorney in responding to Phillips' statement of the issue. The transcript is replete with references indicating that it was the understanding of all those present, including these plaintiffs, that what was transpiring was a discussion of whether or not Deedy had a nonconforming use in this particular lot. The town counsel made an unsuccessful attempt to get the issue stated. At one point Deedy's attorney said, "So the question is, does Mr. Deedy have a nonconforming use on his property at 113 Old Colchester Road? I would say to frame the issue as succinctly as I can."
The powers and duties of a board of appeals are set forth in §
It thus appears that what the board was asked to do and what it purported to do was to pass upon whether or not the Deedys had a valid nonconforming use and, if so, the extent thereof. This issue, however, was not presented to the board in any manner cognizable under the act or the regulations. It may be noted passim that a proper cease and desist order from the building inspector and an appeal therefrom might have placed it before the board, but this was not done. Absent the exercise of one of its statutory powers, the board was acting gratuitously. "The application . . . [by Deedy to the board of appeals] was not within its jurisdiction and should have been denied. . . . [S]ince in our view there was no application before the . . . [board] or before the court on which any order or judgment . . . could be based . . . the case is . . . [ordered returned] to the . . . [board of appeals] with direction to deny the application."