60 A.2d 774 | Conn. | 1948
In this action, the plaintiffs sought an injunction against any use of certain lands in the town of Madison owned by Max Fabricant and Aldene Day Fisher except in accordance with the zoning regulations of the town applicable to a residence district, and, by amendment, a judgment declaring that a purported amendment to the zoning regulations placing the lands in question in a business district was invalid. From a judgment for the defendants and declaring the amendment valid, the plaintiffs have appealed. The question decisive of the appeal is: Was the amendment validly adopted? The facts found relevant to this issue are not attacked, but we add thereto one fact requested by the plaintiffs.
With the addition noted, it appears that on June 26, 1947, the zoning commission of the town of Madison gave notice of a public hearing, called for July 8, 1947, on the application of Aldene Day Fisher to have a certain area, including her property, changed to a business zone from a residence zone, which it had been *3
since the original adoption of zoning in the town in 1934. The zoning commission of the town of Madison consisted of five members, one of whom was George Fisher, husband of the applicant. She and her husband had, for several years, occupied as a home a dwelling house situated on land immediately west of the land involved in the application. The hearing upon Mrs. Fisher's application was held as scheduled on July 8, 1947, and her husband sat as a member of the zoning commission. Objection to the application was made at the hearing by occupants of adjoining properties, and thereafter, on July 15, 1947, property owners of 20 per cent or more of the area of the lots directly opposite the property described in the application filed a written protest with the zoning commission. The trial court has found, and counsel conceded in argument, that because of the protest the application could be granted only by unanimous vote of the zoning commission. General Statutes, Cum. Sup. 1939, 132e Strain v. Mims,
A principal claim by the plaintiffs is that, since the application could not be granted unless all members of *4 the zoning commission voted in favor of it, the fact that the applicant's husband participated in the vote rendered it invalid. The defendants contend that Mr. Fisher was not disqualified by the relationship which existed and, furthermore, that the duty imposed upon him gave him no choice but to vote in a situation requiring unanimity. The claim that Mr. Fisher had a duty to vote does not require discussion. His wife's property had been in a residence zone some thirteen years. She could have deferred her application until her husband was no longer a member of the zoning commission. If greater urgency existed he could have resigned.
The question of controlling importance is that of his disqualification to act. Much of the defendants' argument is based upon the premise that only pecuniary interest, direct or indirect, is sufficient to constitute a disqualifying cause. Upon that basis the parties take issue as to whether or not the relationship of husband and wife is such that the husband could be said to have a pecuniary interest in the wife's application in this case. Pecuniary interest lies at the foundation of many of the reported decisions. Buffington Wheel Co. v. Burnham,
Whatever the reasons assigned in other jurisdictions for finding disqualification or lack of it in public officers in other than judicial positions, we have not adopted personal pecuniary interest as the conclusive test. In situations in which the interest was shown to be pecuniary we have held it to disqualify. Woodbridge v. Raymond, Kirby 279; Barker v. Wales, 1 Root 265; Lyon v. Lyon, 2 Root 203; Fairbanks' Case, 2 Root 386; Gallup v. Tracy,
To avoid impairing confidence in legal tribunals, we have discountenanced a statutory committee's employment of the surveyor and agent of one of the parties to locate a disputed boundary. Carney v. Wilkinson,
We may properly take into account the motives which influence and control human action; Howe v. Raymond,
If we were to confine ourselves to the rationale of the decisions of other jurisdictions cited, we should find ourselves analyzing Mr. Fisher's possible financial interest in his wife's application, as imposed by the marriage relation and involving the obligation of support and related matters; and we might further find it material to decide whether we could and should judicially notice the not uncommon practice of recording one's property in one's wife's name. These considerations, however, we consider it unnecessary to discuss in the view we take of the case. We consider the controlling element of the situation presented not as a question of Mr. Fisher's own interest in this application through his wife but rather as a question of his interest in behalf of his wife as opposed to his public duty as a member of the zoning commission. The question becomes primarily one of public policy. The modification of zoning regulations partakes of the nature of a legislative proceeding; Greenwich Gas Co. v. Tuthill,
The record before us presents not only a possible implication of disqualification but indicates the actual presence of one of the evils to be avoided. It appears from the finding that, by reason of the relationship which existed, Mrs. Fisher had, in effect, a private hearing before the zoning commission. Mr. Fisher, as her husband, was in possession of information regarding her contemplated use of the property not available to others and not disclosed at the public hearing. At the executive session of the zoning commission he assumed the dual role of public officer, as a member of the commission, and agent or advocate of his wife's private interest in the application before the commission. After concluding his role as advocate, he assumed his role as public official and, by his vote, made it possible to secure the relief he had advocated. The persuasiveness of his argument in influencing his associates is unknown and need not be known. The evil lies in its presence to any degree. Property owners and spectators before a zoning commission are likely to measure the acts of men by the common business standard. However fair these proceedings may, in actuality, *10
have been, it would be difficult if not impossible to satisfy the opponents of this application that they had received a fair and impartial hearing. It matters not whether we view the facts here presented from the standpoint of the interests of citizens for whose security and protection this agency of the state exists, of the preservation of confidence in the purity of the administration of public affairs, or of the honor and character of a public officer as a public servant the conclusion in any event inevitably follows that public policy cannot tolerate these proceedings. Goodyear v. Brown,
The action of the zoning commission taken under the circumstances disclosed was laid open to misinterpretation and suspicion by the action of Mr. Fisher. He could not, with propriety, vote upon his wife's application, and, since the change of zone purportedly made depended upon his participation, the action of the zoning commission was invalid. Since our conclusion upon this question is decisive of the appeal, it is unnecessary to discuss any other claim made by the plaintiffs.
There is error, the judgment is set aside and the case is remanded with direction to enter judgment in accordance with this opinion.
In this opinion the other judges concurred.