Summary
In Shulman v. Zoning Board of Appeals, 143 Conn. 182, 120 A.2d 550 (1956), the defendant board in 1948 granted an extension of a non-conforming use. A nearby property owner, claiming to be aggrieved, appealed.
Summary of this case from Fong v. Planning Zoning Board of AppealsOpinion
The appeal from the action of the defendant board in granting H permission to extend a nonconforming use of his premises was not served on H. Since he was an indispensable party, the trial court should have cited him in before passing on the appeal. Although the judgment dismissed the appeal and thereby sustained H's right, the Supreme Court would not, more than seven years after the board acted, examine the correctness of the judgment until H was cited into the case and given an opportunity to be heard.
Argued January 4, 1956
Decided January 27, 1956
Appeal from the action of the defendant in granting an application for permission to extend a nonconforming use, brought to the Court of Common Pleas in Hartford County and tried to the court, Sidor, J.; judgment dismissing the appeal, from which the plaintiff appealed to this court. Error; further proceedings.
Joseph L. Shulman, for the appellant (plaintiff).
Frank A. Murphy, with whom, on the brief, were John J. Kenny and Alexander A. Goldfarb, for the appellee (defendant).
On September 14, 1948, the defendant board held a public hearing upon an application previously filed with it by Edward C. Humphrey. As set forth in the application, Humphrey was requesting the board to grant him permission under the zoning ordinance to extend a nonconforming use of premises which he then owned. Directly after the hearing, the board went into executive session and unanimously voted to approve the application. The plaintiff, a nearby property owner, claiming to be aggrieved, appealed from that action of the board and summoned it to appear before the Court of Common Pleas on the first Tuesday of November, 1948. Although the issues were soon closed by the board's answer, the matter lay dormant for six years. Finally the case was heard, and judgment dismissing the appeal was rendered on March 21, 1955. The plaintiff has appealed from the judgment.
We note at the outset that the appeal from the board was not served on Humphrey. He was not only a proper party but also an indispensable one, since a right granted to him by the board was being challenged. Devaney v. Board of Zoning Appeals, 132 Conn. 218, 220, 43 A.2d 304. The court should have cited him in as a party defendant before passing on the merit of the appeal. While it is true that the court's decision did not attempt to destroy his right but rather to support it, we are reluctant, after the passage of over seven years since permission to extend the nonconforming use was granted, to examine the correctness of the court's judgment until Humphrey has been cited into the case and been given an opportunity to be heard. See Kuehne v. Town Council, 136 Conn. 452, 462, 72 A.2d 474.