EMJ CORPORATION v. Zoning Board of Appeals

154 Conn. 667 (1967)

E. M. J. CORPORATION
v.
ZONING BOARD OF APPEALS OF THE TOWN OF NORWALK ET AL.

Supreme Court of Connecticut.

Argued February 15, 1967. Decided March 30, 1967.

KING, C. J., ALCORN, HOUSE, THIM and RYAN, JS.

Paul C. Jamieson, for the appellants (defendants Johnson et al.), with whom, on the brief, was

Thomas A. Flaherty, corporation counsel, for the appellant (named defendant).

Robert A. Slavitt, with whom, on the brief, was Abraham D. Slavitt, for the appellee (plaintiff).

ALCORN, J.

The plaintiff appealed to the Court of Common Pleas from a decision of the defendant zoning board of appeals ordering the Norwalk building inspector to rescind a building permit which he had issued to the plaintiff. The court sustained the appeal, and the board and a number of individual defendant property owners have taken this appeal. Their claims on appeal are that the court erred "[i]n interpreting the rules of procedure and zoning ordinances of the Town of Norwalk so as to permit the extension of a less restricted use to the street line on which the plaintiff's entire lot fronts" and "[i]n determining that the action of the defendant Board ... was illegal, arbitrary, and in abuse of the discretion vested in it."

The record returned by the board to the trial court, as required by § 647 of the Practice Book, did not include a copy of the Norwalk rules of procedure and zoning ordinances. No zoning map was included, and the plot plan which was submitted bore no apparent relation to the permit in issue.

The trial court decided the case on the record of the proceedings before the board and filed a memorandum of decision. The memorandum of decision is not a part of the record of the case before us. Maltbie, Conn. App. Proc. § 152, p. 188. Nor can the statements in it be given the effect of findings of fact. Wagner v. Zoning Board of Appeals, 153 Conn. 713, 714, 216 A.2d 182; Putterman v. Miller, 133 Conn. 70, 73, 48 A.2d 235. We do not take judicial notice of zoning ordinances. Manafort Bros., Inc. v. Kerrigan, 154 Conn. 112, 115, 222 A.2d 218; Martin v. Board of Zoning Appeals, 145 Conn. 735, 736, 143 A.2d 450; Kiska v. Skrensky, 145 Conn. 28, 32, 138 A.2d 523. The defendants have filed no appendix to their brief to supplement the printed record; Practice Book §§ 647, 719; and we find nothing in the briefs establishing agreement as to what sections of the ordinance are relevant to the controversy or what the actual language of those sections is. Consequently, none of the pertinent provisions of the Norwalk zoning regulations are before us on the record in this case. Practice Book § 647.

The burden is on the appellants to establish harmful error if they are to prevail on this appeal. Pilon v. Yard, 147 Conn. 720, 722, 158 A.2d 738; Abramson v. Zoning Board of Appeals, 143 Conn. 211, 214, 120 A.2d 827. The record before us does not furnish the means for a review of the errors claimed. Nielson v. Zoning Commission, 149 Conn. 410, 413, 180 A.2d 754.

There is no error.

In this opinion the other judges concurred.