160 Conn. 397 | Conn. | 1971
The following facts are pertinent to this appeal. In 1934, the town of Warren adopted zoning pursuant to the provisions of chapter 29 of the Revision of 1930, now chapter 124 of the General Statutes. In 1959, by ordinance, the town was divided into two zones, one north and the other
On October 30, 1964, Joseph Kavanewsky, hereinafter referred to as the plaintiff, entered into a contract to purchase certain properties, which included land located at Arrow Point, in the south zone of the town. Prior to October 30, 1964, and until January 29,1965, § 2 (10) of the zoning regulations as to the south zone provided that: “No dwelling shall be erected on any lot having an area less than one acre, minimum width of lot is to be 100 feet, unless topographical or other conditions render these measurements unreasonable.” At a public hearing held on January 12,1965, a map for a subdivision of land on Arrow Point, “plans show 49 lots of 1 acre with 100' road frontage”, was submitted by the plaintiff to the Warren zoning and planning commission, hereinafter referred to as the commission. Prior to this submission, the plaintiff had expended $5367 for engineering expense related to the preparation of maps. The minutes of this hearing disclose that the map was neither acted on nor accepted but do state that “ [I]t was agreed that no proposal by Mr. Kavanewsky for less acreage per building lot would be acceptable by the commission.” The minutes also stated that a request had been made to the soil conservation office for a
On January 30, 1965, the deed conveying the properties which were subject to the contract of October 30, 1964, was delivered to the plaintiff, and on February 3, 1965, the deed was recorded in the Warren land records. On October 27, 1965, the plaintiff filed three applications for building permits with the commission for three lots shown as numbers 21, 22 and 23 on his submitted plans. These applications requested permission to build on lots containing less than two acres and having less than a 200-
The plaintiff claims that the action of the commission, and the sustaining of it by the defendant, in increasing the minimum lot size to two acres was arbitrary, illegal and in abuse of the discretion vested in it. This claim is predicated on the plaintiff’s contention that the change in upgrading was made “without any change in conditions and without any reasons for said change other than the vote of persons attending the public hearing.” No such claim was made in the court below or in the plaintiff’s claims of law as required by Practice Book § 619. He does assign error, however, in the conclusions reached by the court, (1) that the zoning regulations in effect when the plaintiff acquired title and at the time the applications were filed and acted on required a minimum of two acres and a 200-foot frontage on a town road, and (2) that the defendant did not act arbitrarily, illegally and in abuse of its discretion but acted correctly on the applications as it was required to do in accordance with § 2 (10) of
The commission, acting in its legislative capacity
The minutes of the hearing of January 25, 1965, disclose that various members of the commission
Pursuant to the requirement of General Statutes § 8-3 the commission stated upon its record as its reason for upgrading the lot area requirements from one to two acres as being “made in demand of the people to keep Warren a rural community with open spaces and keep undesirable businesses out.” We agree, as the plaintiff argues in his brief, that the reason given by the commission is not in accordance with the requirements of § 8-2 as recited in footnote 1.
A zoning authority is endowed with a wide and liberal discretion. Bartram v. Zoning Commission, 136 Conn. 89, 96, 68 A.2d 308. When the commission, however, has not acted fairly, with proper motives and upon valid reasons, this discretion is to be overruled. Mallory v. West Hartford, 138 Conn. 497, 505, 86 A.2d 668. The most generous reading of the commission’s reason for the upgrading of the zone area fails to show any compliance with
There is error, the judgment is set aside and the case is remanded with direction to render judgment directing the defendant to reverse its earlier decision in which it sustained the commission’s action denying the three applications for building permits.
In this opinion the other judges concurred.
Section 8-2 provides that regulations of a zoning commission as to the use of land “shall be made in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate adequate provision for transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality.”
Connecticut Begister and Manual, p. 520 (1965).