Opinion
The trial court concluded, upon the facts, that the plaintiffs failed to sustain the burden of proving that the ordinance changing the zone of the named defendant's property from residence to business was invalid, unreasonable, confiscatory or arbitrary. It also concluded that the zoning authority had not acted arbitrarily, unreasonably or in abuse of discretion. The plaintiffs failed to print an appendix of evidence and made no claim in their brief that a material fact was found without evidence. The defendants were thus relieved of the need of printing evidence to support the finding. Without the evidence, the findings of subordinate facts could not be corrected, and since they supported the conclusions, those conclusions could not be disturbed.
Argued October 7, 1960
Decided November 15, 1960
Action for a judgment declaring unconstitutional an ordinance changing the Zone of property of the named defendant from residence to business, for an injunction restraining the named defendant from making a business use of the property and restraining the defendants city of Hartford et al. from allowing such a use to be made, and for damages, brought to the Court of Common Pleas in Hartford County and tried to the court, Wall, J.; judgment for damages only, as against the named defendant, and appeal by the plaintiffs. No error.
Sebastian J. Russo, for the appellants (plaintiffs).
Joseph J. Burns, assistant corporation counsel, for the appellees (defendants city of Hartford et al.).
David M. Shea, with whom, on the brief, was Alfred F. Wechsler, for the appellee (named defendant).
The plaintiffs are the owners of residential premises on the south side of Alden Street in Hartford. Their property, hereinafter called the Kielb property, is located in a C-1 residence Zone which permits multi-family dwellings, boarding-houses, rooming houses and other buildings of a non-residential character. Hartford Zoning Ordinance 42-7 (1947). On the east and west sides of the property there are two driveways, each ten feet wide; they extend from Alden Street southerly into the named defendant's property, which, with these two access driveways, was zoned for business in 1945. Prior to that time, this Weinberg property had been a nonconforming use in a residential Zone. There are four large buildings on it, and it covers a rather extensive area. It is landlocked except for three driveways from Alden Street, including the two heretofore mentioned. The third driveway is in a residential zone. The property has been devoted to business and commercial uses for at least fifty years. The block in which the Kielb and Weinberg properties are located lies west of Wethersfield Avenue. Most of the Wethersfield Avenue frontage of the block, including the area adjoining the Weinberg property on the east, is zoned for business. A supermarket and gasoline station are located there. The property on the northwest corner of Alden Street and Wethersfield Avenue is similarly Zoned. It is occupied by a large restaurant and night club. The plaintiffs' complaint, dated February 5, 1958, alleged that the change of zone of the Weinberg property was unconstitutional and illegal in that it was the result of unreasonable and arbitrary action by the Hartford Zoning authority. The plaintiffs sought to enjoin the named defendant and those in privity with it from using the premises for business purposes, and to enjoin the city of Hartford and its zoning enforcement officer from allowing the property to be used for business. They also sought damages, claiming that the two driveways, by reason of their condition and the use to which they were put, constituted a nuisance. There is no appeal from the portion of the judgment disposing of this feature of the case. We are concerned only with the zoning aspect.
The plaintiffs assign error in the refusal of the trial court to include in its finding fourteen paragraphs of the draft finding which they claim set forth admitted or undisputed facts. They have failed, however, to file an appendix of evidence to support this claim. Practice Book 447. They also attack five paragraphs of the finding as containing facts found without evidence. Where a party claims that the trial court found a material fact without evidence, he may either state that claim in his brief and print no evidence or he may print all relevant evidence. Practice Book 447. The plaintiffs did neither. Their failure to comply with the rule relieved the defendants of the need of printing such evidence as supported the finding of the court. Maltbie, Conn. App. Proc. 330. Finally, the plaintiffs attack all of the material conclusions. Conclusions must be tested by the subordinate facts in the finding. Monick v. Greenwich, 144 Conn. 608, 611, 136 A.2d 501; Vitale v. Gargiulo, 144 Conn. 359, 364, 131 A.2d 830. Since the conclusions here are supported by the finding as made and no corrections in the finding are possible without the evidence, the conclusions must stand. The fundamental conclusions were that the zoning authority had not acted arbitrarily, unreasonably or in abuse of discretion and that the plaintiffs had failed to sustain the burden of proving that the Zoning ordinance in question was invalid, unreasonable, confiscatory or arbitrary. No other result could be justified by the record before us.