407 A.2d 191 | Conn. Super. Ct. | 1979
The plaintiffs appealed to the Superior Court for the judicial district of Waterbury from an unfavorable decision of the zoning commission of the borough of Naugatuck granting the defendants a change in zoning from I-2 (industrial) to R-15 (residential, 15,000 square feet minimum). This appeal is taken pursuant to §
The subject property is a parcel approximately thirty-two acres in size located on the south side of Rubber Avenue Extension in the borough of Naugatuck. The property is located approximately 325 feet from the boundary of the town of Middlebury on Rubber Avenue. The parcel was originally zoned I-2 and is surrounded exclusively by property which is also zoned I-2. The plaintiffs are aggrieved property owners owning property located within a radius of 100 feet of the subject property.
On November 30, 1978, Ralph and Susan Bavier, owners of the subject property, petitioned the Naugatuck zoning commission for a zone change for that parcel from I-2 to R-15. The Baviers had previously entered into a contract to sell the property to the defendant Henry A. Kogut, a local real estate developer, who plans to construct residential homes on a series of lots of 15,000 square feet to be carved out of the Baviers' property.
The Naugatuck planning commission unanimously disapproved the proposed zone change in a letter to the zoning commission dated January 9, 1979. The zoning commission held a public hearing on the proposed zone change on January 23, 1979, and, notwithstanding the unfavorable planning commission report, granted the zone change to R-15 at its March 13, 1979 meeting. It is an undisputed and stipulated fact that the defendant zoning commission failed to notify the central Naugatuck valley regional planning agency of the proposed zone change. Consequently, the regional agency was not represented at either the January 23 or the March 13 meetings, and a report on the regional ramifications of the change was not prepared by them. Although the plaintiffs opposed a change to R-15, they would not have been opposed to an R-30 classification, and failing that, a return to I-2. *249
After the proposed zone change was adopted, the plaintiffs brought this action in a complaint dated April 5, 1979. They claimed that the zoning commission's action violated §
The plaintiffs, in their prayer for relief, asked for a temporary and permanent restraining order and/or injunction against the zoning commission to prevent the implementation of the zone change. They also requested that the commission's decision be modified to rezone the property as R-30, and they filed the appropriate appeal bond in the amount of $250. A temporary injunction was issued on April 5, 1979.
Henry A. Kogut who, as explained above, had contracted with the Baviers to purchase the property in question was not originally included as a defendant. Accordingly, on April 19, 1979, he moved to be made a party defendant to the action, and on April 23, 1979, he was joined as a party along with additional plaintiffs. The amended complaint also alleged that the commission's approval of the zone change violated the plaintiffs' rights to due process and equal protection of the law. *250
Finally, on April 30, 1979, the plaintiffs again amended their complaint alleging, inter alia, that the zoning commission violated §
Since this action is appellate in nature the court may, in its discretion, decide the case based solely on the record before it. Accordingly, during the May 29, 1979 hearing before this court, the plaintiffs' motion of April 30, 1979, to hear additional evidence under §
Although the plaintiffs set forth in their complaint, as amended, several bases for overturning the March 13, 1979 decision of the zoning commission, this appeal will turn on the resolution of one issue. That issue is whether the §
The following facts are not in dispute. The Naugatuck zoning commission had before it a petition by the Baviers to rezone a particular parcel of land. This parcel was approximately 325 feet from the Middlebury town line. A public hearing was held on the proposal. The zoning commission failed to notify the central Naugatuck valley regional planning agency of the proposal or hearing. The proposed change was adopted at a subsequent meeting. In addition, it was stipulated that both Naugatuck and Middlebury were members of this particular regional planning agency.
The pertinent part of §
The defendants' contention is that, since §
In holding that the failure to comply with the statute did not invalidate the action of the board, the Connecticut Supreme Court commented: "The statutory provision is couched in affirmative terms and not negative. It prescribes what shall be done by the board but it does not in terms make invalid their action upon failure to comply with the statute. While it is the duty of boards of appeal to comply with the statute, it is true `that neither negative nor prohibitive language appears in the Act, and that there is nothing contained in it which is naturally expressive of an intention to make compliance a condition precedent to action, or to thereby create a limitation of power.' [Citation omitted.] Failure to comply with the statute did not invalidate the action of the board." Nielsen v. Board of Appealson Zoning, supra, 287.
Although the language of the statute appears unequivocal, later cases have had the effect of impliedly overruling Nielsen. For example, in Gross
v. Planning Zoning Board of Appeals,
The language of the local zoning ordinance inGross, pertaining to the requirement of a written finding, was set in less compelling terms than the comparable wording in Nielsen. Yet the Supreme Court, notwithstanding Nielsen, found the statutory requirement in Gross to be mandatory, not directory.
Having found the defendants' reliance on Nielsen
to be misplaced in light of later cases, the court now moves to an analysis of the language of the statute which is the subject of this appeal. Section
Help in best determining the intent of the legislature when it enacted §
On March 22, 1961, a public hearing was held by the committee on state development during which House Bill No. 2521 was discussed. Representative Wallace of Simsbury, who introduced the original bill in the house, remarked: "HB-2521 merely defines that wherever any proposed change of zone is going to take place within 500 feet of a town's border that before such action is initiated by theLocal Zoning Board that this information is passedalong to the Regional Planning Agency which these *255 towns are part of. . . . [I]t permits the Regional Planning Agency to look at the proposed change as it effects the entire complex of the town of which this is a part of and then make its report back to the community. . . . I would think that the local communities would be appreciative of this because this is a broader look at the whole problem." (Emphasis added.) Transcript of public hearing of the state development committee, March 22, 1961, p. 165.
During the house proceedings concerning House Bill No. 2521 held on May 2, 1961, the following colloquy took place:
"MR. DREYFAUS OF WESTPORT: The purpose of this bill is to establish a mechanism whereby Regional Planning Agencies can provide a report on a proposed establishment of a commercial or industrial zone within 500 feet of the boundary of a municipality or of the change therein. . . .
THE SPEAKER: Will you remark further? The gentleman from Glastonbury.
MR. SCOVILLE OF GLASTONBURY: Mr. Speaker, through you I would like to ask the gentleman who just reported out that bill, if this procedure is necessary. It would seem now that member towns of a Regional Planning Agency have the services of that agency available and in the event of a zone change, the zoning authority of the community would be able to go to the Capitol Regional Planning Agency, for example, if it were in this area, and seek their advice and consult with them on the problem.
THE SPEAKER: Would the gentleman from Westport care to answer the gentleman from Glastonbury?
MR. DREYFAUS OF WESTPORT: I think the answer is that they can do this, but this requires them to do it. [Emphasis added.] *256
MR. SCOVILLE OF GLASTONBURY: Right. [Emphasis added.]" 9 H.R. Proc., Pt. 3, 1961 Sess., pp. 3174-75.
The fact that the notice requirement of §
Thus it appears both from the language and legislative history of §
In view of all of the factors enumerated herein, it is held that the failure of the Naugatuck zoning commission to notify the central Naugatuck valley regional planning agency of the proposed zone change of the Bavier property created a defect in the commission's jurisdiction over the matter, rendering the zone change ineffectual.
Section
Accordingly, it is ordered that: (1) Judgment may be entered sustaining the appeal and vacating the decision of the zoning commission of March 13, 1979, which rezoned the Bavier property from I-2 to R-15. (2) Costs shall be allowed against the Naugatuck zoning commission in favor of the named plaintiffs.