STRAND/BRC GROUP, LLC v. BOARD OF REPRESENTATIVES
Connecticut Supreme Court
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STRAND/BRC GROUP, LLC v. BOARD OF REPRESENTATIVES—DISSENT
D‘AURIA, J., dissenting. In a state with 169 municipalities, each legislatively created and with its own form of governance, it should not be surprising that this court often counsels against judicial interference in local legislative decisions. See, e.g., Benenson v. Board of Representatives, 223 Conn. 777, 784, 612 A.2d 50 (1992) (“[c]ourts will interfere with legislative decisions made by municipalities only where the party seeking review can characterize the legislative act as illegal, fraudulent, or corrupt” (internal quotation marks omitted)). This case illustrates well the importance
The Planning Board of the City of Stamford is made up of five mayoral appointees,
The Board of Representatives is made up of forty members elected by the city‘s residents, two from each of the city‘s twenty voting districts.
In affirming the judgment of the trial court, the majority today strikes down the action of Stamford‘s most representative and authoritative legislative body: the rejection of an amendment to the master plan proposed by the plaintiff developers. The majority instead affirms amendments approved by five Planning Board members, passed to facilitate the development of a high density residential development. The majority is able to upend the political process in this way only by labeling as substantive that which is procedural and imposing judicial standards on that which is legislative.
It is undisputed that, when approving or rejecting proposed amendments to the city‘s master plan, both the Planning Board and the Board of Representatives exercise legislative authority. This court has recognized that, “in the planning and zoning context, [a] zoning amendment is a change in the ordinance, enacted by the legislative authority of a municipality.” (Emphasis omitted; internal quotation marks omitted.) Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 425, 572 A.2d 951 (1990). Similarly, in a case also involving Stamford‘s charter, we indicated that, “[the] [B]oard [of Representatives], in reviewing the action of the [city‘s] zoning board, is called upon to perform a legislative function.” Burke v. Board of Representatives, 148 Conn. 33, 39, 166 A.2d 849 (1961). No one contends that the Planning Board‘s action is other than legislative. “The plain language of [the charter provision] leaves no room for any other construction.” Benenson v. Board of Representatives, supra, 223 Conn. 783. In exercising their respective authority related to amending the master plan for the city, both the Planning Board and the Board of Representatives are directed to apply the same legislative standards. See
I fully agree with the majority‘s well reasoned analysis and conclusion that, consistent with the charter‘s language, it is the Planning Board‘s responsibility to determine whether a protest petition meets the provisions for a referral to the Board of Representatives, namely, whether the petition is signed by the prescribed number of property owners in the subject area and filed with the Planning Board within ten days after the official publication of the Planning Board‘s decision. See
Also, like the majority, I find support for this conclusion in our case law, most of it concerning the charter. In Benenson, we interpreted an almost identical provision of the charter to hold that a protest petition brings a matter before the Board of Representatives because the plain language of the charter “does not provide for the approval or rejection of the ‘petition’ itself.” Benenson v. Board of Representatives, supra, 223 Conn. 783. As the majority correctly acknowledges, the petition is “merely the vehicle” that brings the issue to the Board of Representatives. (Internal quotation marks omitted.) We have reiterated that the “question before the [B]oard [of Representatives is] not the petition, which indicate[s] the property owners’ objection to the [master plan amendment], but whether the [master plan amendment] should be approved.” Benenson v. Board of Representatives, supra, 783. Decades before that case, we explained that “[t]he manifest legislative intent expressed in the Stamford charter is that the [B]oard of [R]epresentatives, in considering an amendment to the zoning map, shall review the legislative action of the [city‘s] zoning board on that board‘s written findings, recommendations and reasons. The question before the [B]oard of [R]epresentatives is whether to approve or to reject the amendment.” Burke v. Board of Representatives, supra, 148 Conn. 39.
Thus, the majority and I agree that, when a petition is filed with the Planning Board, that board must review it and determine if it warrants referral to the Board of Representatives. Upon referral of the petition by the Planning Board, the Board of Representatives may act only on the merits of the proposed amendment, applying the same legislative standards as the Planning Board. In fact, the Planning Board did refer the petition to the Board of Representatives, albeit with no record of
The majority‘s reasoning focuses on the Board of Representatives’ lack of authority to pass on the petition‘s validity, not on the Planning Board‘s failure to pass on the petition‘s validity and its resulting referral of the petition. The majority repeats several times that the Board of Representatives had no authority to determine the petition‘s validity, including whether it contained sufficient signatures. We know this even if the Planning Board did not. Both the charter‘s language and our case law make this clear. See
The majority‘s answers to these questions are “yes” and “yes.” The majority claims that the Board of Representatives lacks authority to pass on these amendments because the charter‘s signature provision “confers a limited authority on the Board of Representatives, which may be exercised only if a sufficient percentage of the owners of private property within a defined geographic area . . . sign and timely file a protest petition with the Planning Board.” (Emphasis omitted.) I part company with the majority here because, in my view, it is acting like a court reviewing executive action or a ruling of a lower court rather than a court reviewing legislative action, over which its appropriate scrutiny is much more limited. See, e.g., Benenson v. Board of Representatives, supra, 223 Conn. 784. And, in voiding the Board of Representatives’ subsequent action, the majority appoints itself as a municipal signature counter, which, the majority claims, correctly in my view, the charter delegates to the Planning Board.
The majority is careful not to employ terms such as “jurisdiction” or “aggrievement” in its analysis. These concepts have no obvious place in a court‘s review of such layers of legislative action. But the majority‘s use of terms such as “substantive,” “condition precedent,” “void,” and “invalid,” is a dead giveaway: the majority cannot disengage from its reflexive judicial role, a role in which, before acting, a body must examine its own jurisdiction and the jurisdiction of the body that came before it. In this world, the majority is constrained to find the exercise of legislative authority by the Board of Representatives on the merits of the amendment tainted by the earlier, improper exercise of authority of the Planning Board, as determined by a court after the Board of Representatives has acted. An examination of forums in which these jurisdictional concepts are appropriately applied, and scrutiny of the scant authority the majority cites for its conclusion, exposes the majority‘s jurisdictional reasoning as faulty.
For example, with the exception of actions challenging an unconstitutional statute or a state officer‘s actions in excess of
Similarly, with some common-law exceptions, an appellate court may review trial court rulings only by legislative delegation and authority. “Under
These jurisdictional concepts are foreign to the legislative process and to a court‘s review of that process. “[C]ourts cannot pass upon the regularity of legislative proceedings, at least in the absence of a violation of some constitutional restriction.” State v. Sitka, 11 Conn. App. 342, 346, 527 A.2d 265 (1987), citing State v. Savings Bank of New London, 79 Conn. 141, 152, 64 A. 5 (1906). We have since the nineteenth century held that “[c]ourts will interfere with legislative decisions made by municipalities only where the party seeking review can characterize the legislative act as illegal, fraudulent, or corrupt. . . . When such bodies are acting within the limits of the powers conferred upon them, and in due form of law, the right of courts to supervise, review or restrain is exceedingly limited.” (Internal quotation marks omitted.) Benenson v. Board of Representatives, supra, 223 Conn. 784; Whitney v. New Haven, 58 Conn. 450, 457, 20 A. 666 (1890). “Difference in opinion or judgment is never a sufficient ground for interference.” Whitney v. New Haven, supra, 457. This includes a difference in opinion about how the petition signatures should or should not be counted. The majority cites this line of cases—which limits judicial review of legislative action and distinguishes legislative action from administrative or quasi-judicial action of municipal actors—as well as our precedents distinguishing mandatory statutory provisions from directory provisions, but does not engage with or follow their reasoning. These cases make this point clearly.
For example, in LaTorre v. Hartford, 167 Conn. 1, 3-6, 355 A.2d 101 (1974), two city councilmen were financially associated with an insurance company that sought to widen a road to build an office building. Pursuant to Hartford‘s city charter, the Court of Common Council was authorized to “lay out, construct, reconstruct, alter . . . streets” and to “open and widen streets . . . .” (Citation omitted; internal quotation marks omitted.) Id., 4. Notwithstanding the trial court‘s own determination that the councilmen should have been disqualified, this court held that the council‘s vote to pass the ordinance widening the street was not invalid. See id., 9. The court noted that, when, as in that case, “the municipal authorities act in accordance with formal requirements, courts will interfere only where fraud, corruption, improper motives or influences, plain disregard of duty, gross abuse of power, or violation of law, enter into or characterize the action taken.” (Internal quotation marks omitted.) Id., 9, quoting Whitney v. New Haven, supra, 58 Conn. 457. We reasoned that, because “the [C]ourt of [C]ommon [C]ouncil was acting in a proper legislative capacity in adopting the ordinance to widen [the road]; that the ordinance was enacted for a public purpose; that none of the councilmen acted out of improper motives or permitted any consideration to intrude into the deliberations and actions other than what in [their] sound judgment was in the best interest of the city; and that there was no bad faith, clear abuse of power or plain disregard of duty by the [C]ourt of [C]ommon [C]ouncil in enacting the [road] widening ordinance,” the trial court erred
In contrast, in Mills v. Town Plan & Zoning Commission, 145 Conn. 237, 140 A.2d 871 (1958), overruled in part on other grounds by Mott‘s Realty Corp. v. Town Plan & Zoning Commission, 152 Conn. 535, 209 A.2d 179 (1965), we sustained an appeal challenging a plan and zoning commission‘s change in both the town‘s comprehensive plan and a zoning designation. In that case, the commission unanimously denied an application to rezone land from agricultural to a more commercial designation to allow the construction of a shopping center, reasoning that the land was subject to flooding and that there already was adequate land in the area already zoned for business. Id., 239. The applicants reapplied for a change in the comprehensive plan and a zone change several weeks later, and the commission granted the application by a split vote. Id., 239-40. As the court explained, “[a]fter the denial of the first application and prior to the filing of the second, the members of the commission and the applicants met privately and agreed upon conditions under which a new application would be considered.” Id., 241. The court held that this opened to judicial scrutiny the propriety of the commission‘s decision to approve the change in the comprehensive plan and the zone change, despite the reluctance of courts to interfere with the actions of legislative bodies, because “a court can grant relief where the local authority has acted illegally or arbitrarily and has clearly abused the discretion vested in it.” Id., 242. In the present case, the Board of Representatives’ vote on the merits of the amendments cannot reasonably be considered “illegal” conduct that will overcome our high threshold for judicial review of legislative actions, just because the Planning Board failed to validate the petition before referring it. Nor is it the same kind of administrative or quasi-judicial action that warrants judicial scrutiny in accordance with these principles. See, e.g., Low v. Madison, 135 Conn. 1, 9, 60 A.2d 774 (1948) (invalidating zoning commission‘s approval of zone change for commission member‘s wife due to conflict of interest because “administration of power of that nature, whether it be denominated legislative or quasi-judicial, demands the highest public confidence,” despite courts’ reluctance to inquire into motives of enacting body); see also LaTorre v. Hartford, supra, 167 Conn. 8 (“[t]his court has consistently applied the standards enunciated in Low to zoning boards and commissions, and to public officials acting in administrative or quasi-judicial capacities“). In determining whether the Board of Representatives’ action is illegal or arbitrary, the pertinent question is whether the signature provision is mandatory or directory. Unless and until the signature provision is deemed mandatory, which, as I will discuss, is not, any exercise of authority by the Board of Representatives without sufficient signatures is not illegal, arbitrary, or without due form of law in the way our case law has articulated.
“In construing a [municipal] charter, the rules of statutory construction generally apply. . . . In arriving at the intention of the framers of the charter the whole and every part of the instrument must be taken and compared together. In other words,
In particular, we have followed “applicable tenets of statutory construction . . . to ascribe significance to the absence” of legislative consequences in concluding that procedural requirements are directory and not mandatory. Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 441, 623 A.2d 1007 (1993). “In Koepke v. Zoning Board of Appeals, 223 Conn. 171, 177, 610 A.2d 1301 (1992), we determined that because the Coventry [Z]oning [B]oard of [A]ppeals had failed to publish adequate notice of a hearing, the hearing and subsequent revocation of the plaintiff‘s permit were invalid. We then addressed the consequences that flow from a zoning board‘s invalid hearing and subsequent ruling on an appeal from a decision of a zoning enforcement officer. Id. On that issue we stated: While the board‘s failure to give proper notice of its public hearing nullified its subsequent actions, that default had no further automatic consequences. Even if a failure to give proper notice were deemed the equivalent of a failure to take timely action within the time constraints of [
In so concluding, we relied on Donohue v. Zoning Board of Appeals, 155 Conn. 550, 235 A.2d 643 (1967), in which we held that a statute providing that “[the zoning] board shall decide such appeal within sixty days after the hearing” was directory, and not mandatory, and, therefore, the board‘s decision, rendered after more than sixty days, was not void. (Internal quotation marks omitted.) Id., 554. “In determining whether a statute is mandatory or merely directory, the most satisfactory and conclusive test is whether the prescribed mode of action is of the essence of the thing to be accomplished or, in other words, whether it relates to matter of substance or matter of convenience.” Id. We concluded that the provision was directory, and, therefore, the board‘s decision was not void because (1) the provision related to procedure, (2) the language was affirmative in character and intended to encourage timely decisions by the board, (3) the statute contained nothing that “expressly invalidate[d] a belated decision or [that] inferentially [made] compliance therewith a condition precedent,” (4) the provision was “not of the essence of the
Likewise, in the present case, the better reading of
The best evidence that this provision is directory is that the charter prescribes no consequence for the Plan-ning Board‘s referral of a petition that contains an insufficient number of signatures and does not expressly, or even impliedly, invalidate a decision by the Board of Representatives for the same insufficiency. See
The majority makes my point for me with its discussion of cases in which we have determined that a time limitation is mandatory, as contrasted with its catalog of cases in which we have held such provisions to be directory. In the cases cited in which we have held that a time limitation is mandatory, there has been an accompanying approval clause, attaching a consequence to a legislative body‘s failure to act on a decision within a certain time period. See, e.g., Vartuli v. Sotire, 192 Conn. 353, 362, 472 A.2d 336 (1984) (legislature “expressly made approval of a coastal development plan mandatory upon failure to disapprove an application within the specified time period,” in part, because of automatic approval clause in accompanying statute), overruled by Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 623 A.2d 1007 (1993); Viking Construction Co. v. Planning Commission, 181 Conn. 243, 246, 435 A.2d 29 (1980) (requirement to act on subdivision application within time limits was mandatory because “[f]ailure [of] the commission to act within this time frame results in the approval of the subdivision application by operation of law“).
Nonetheless, the majority insists that “a valid protest petition is a condition precedent to the authority of the [B]oard of [R]epresentatives to vote on the merits of an amendment,” and only by voiding the Board of Representatives’ action on the amendment is the charter given its “intended and obvious meaning . . . .” (Emphasis added.) In an exercise of circular self-definition, the majority opines that the Board of Representatives “acted on a proposed amendment that was not properly before it due to the legal defect in the protest petition” and that the signature threshold is a “condition precedent to the Board of Representatives’ authority to vote on the merits of an amendment” that is the “‘essence‘” of the provision. The majority contends that the provision was “crafted to achieve a manifestly substantive purpose,” which, it asserts without citation, is to limit the Board of Representatives’ authority “to situations in which a protest petition is signed by a significant percentage of the persons most affected by the amendment . . . .” (Emphasis omitted.) In particular, the majority cites no cases and provides no legal analysis as to how a court determines that a provision prescribing a legislative process is “substantive” or a “condition precedent . . . .”3
In Stamford Ridgeway Associates, the Zoning Board of the City of Stamford approved a comprehensive zoning plan for the city, consisting of eight separate applications that covered “large sections of the city of Stamford and included areas for which various zone changes were proposed, as well as other areas that were to remain unchanged.” Stamford Ridgeway Associates v. Board of Representatives, supra, 214 Conn. 409. The plaintiffs, local property owners adversely affected by some of the zone changes proposed in the eighth application, filed protest petitions requesting referral to the Board of Representatives to challenge the zone changes. Id., 409-10. Pursuant to the charter, the Zoning Board referred “its findings, recommendations and reasons in connection with its action in approving” the application to the Board of Representatives. Id., 411. The Board of Representatives took no action on the plaintiffs’ petitions, which constituted an affirmance of the Zoning Board‘s decision. Id. The plaintiffs appealed to the Superior Court, which, after a trial, sustained the appeal and reversed the action of the Board of Representatives, holding that, under the charter, the Board of Representatives could act only on the entire application as a whole, and not piecemeal, because the Zoning Board had adopted the changes as a “single package.” Id., 419. The trial court further held that its decision was without prejudice to the Board of Representatives’ determination whether there was “a sufficient number of petitioners [seeking] a hearing treating the matter as a whole.” (Internal quotation marks omitted.) Id., 420.
This court rejected the trial court‘s conclusion that the Board of Representatives could not act on separate amendments. See id., 422. Looking to the charter, we determined that the language, “[20] percent or more of the owners of the privately-owned land in the area included
Thus, the discussion in Stamford Ridgeway Associates makes clear that the signature provision is not an aggrievement, condition precedent, or limitation provision.4 Rather, it protects affected nearby landowners5 by empowering them to obtain greater review by the Board of Representatives, not less, and nothing in our discussion in that case suggested that
Although I agree that the Board of Representatives cannot “act in contravention of charter provisions expressly limiting that authority to specified conditions,” the only express limits that the charter provides for the Board of Representatives is that it act on an amendment within a certain time period and that it be guided by typical zoning standards. The signature provision may be an express limit on the Planning Board, but that does not mean that the subsequent exercise of legislative authority by the Board of Representatives is likewise constrained.7 The majority‘s attempt to make it so falters on the same grounds as its endeavor to imbue the signature provision as a “substantive” provision or “condition precedent . . . .”
Further, although the majority relies heavily on Burke v. Board of Representatives, supra, 148 Conn. 33, that case supports my thesis precisely.8
Trained as lawyers and operating as we do in a judicial forum, it is understandably difficult for judicial officers to keep our hands off the legislative process and to try not to make regular that which is irregular. As a court, we are drawn to consider a signature provision like the one in the present case to be akin to an “aggrievement” requirement. That is familiar to us. Without explicitly saying so, that is how the majority treats it. But measured against our cases, and particularly as applied to the legislative arena, it is not.
For example, if the protest petition had been filed one day late and the Planning Board still referred it to the Board of Representatives, there is no doubt that, under our previously discussed cases, we would conclude that the timeliness provision is not a condition precedent or a mandatory requirement. The Planning Board‘s referral would not be void; nor would the Board of Representatives’ action upon referral.9 Similarly, there is no evidence that the drafters of the charter intended the signature provision, found only words away from the ten day provision, to be a strict jurisdictional or aggrievement requirement, let alone a condition precedent, and we should resist the temptation to impose judicial order on a process that is not orderly. Not all legislative errors warrant judicial intervention and management. “Absent a clear showing of fraud, illegality, or corruption, courts will not intervene in the legislative process.” Northeast Electronics Corp. v. Royal Associates, 184 Conn. 589, 593, 440 A.2d 239 (1981). The discretion of a legislative
The judiciary, unlike the elected representatives of Stamford, is uniquely unequipped to delve into the local legislative arena. In fact, we very recently stated that, “[i]n traditional zoning appeals, the scope of judicial review depends on whether the zoning commission has acted in its legislative or administrative capacity. . . . Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment. . . . The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission.” (Internal quotation marks omitted.) Tillman v. Planning & Zoning Commission, supra, 341 Conn. 127-28. Courts afford “zoning authorities this discretion in determining the public need and the means of meeting it, because the local authority lives close to the circumstances and conditions which create the problem and shape the solution. . . . Courts, therefore, must not disturb the decision of a zoning commission unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally.” (Citation omitted; internal quotation marks omitted.) First Hartford Realty Corp. v. Plan & Zoning Commission, 165 Conn. 533, 540-41, 338 A.2d 490 (1973). Inasmuch as the Board of Representatives, under the charter, undertakes the same legislative function and applies the same standards as a zoning board or a planning board, we should afford the same deference in this matter.
Because of the majority‘s determination to supervise the regularity of local legislative processes, I am concerned that this court will necessarily inject itself into local legislative disputes in innumerable municipalities. In the present case, for example, what is at stake is whether there should be an amendment to the master plan for the city of Stamford. This is a classic political matter for the city and its duly elected local representatives to consider. Although the framers might have determined, for reasons of convenience or dispatch, to put the onus to protest an amendment on those who own land nearby through the signature provision, as I have established, this provision cannot be understood as a jurisdictional barrier. After all, amending the master plan impacts all aspects of city governance and city life: traffic, tax base, schools, residential and commercial development, changes in population density, and environmental concerns.
Of course, the court‘s reservations—and my own—about wading into local legislative matters would be completely misplaced if vested rights were at stake in this dispute. But they are not. No one argues that they are. “To be vested, a right must have become [for example] a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from a demand made by another. . . . A right is not vested unless it amounts to something more than a mere expectation of future benefit or interest founded upon an anticipated continuance
In the zoning context, “[a] landowner does not have a vested right in the existing classification of his land. On the contrary, the enabling acts which authorize the enactment of zoning ordinances provide for the amendment of such ordinances. A landowner‘s right to establish a particular use can be summarily terminated by an amendment which reclassifies his land and outlaws the use in question. . . . A landowner does not obtain a vested right in what has subsequently become a nonconforming use by filing a plan or by applying for a construction permit. . . . Even the issuance of a building permit does not necessarily create a vested right unless the building is substantially under construction before zoning regulations are amended.” (Citations omitted; internal quotation marks omitted.) Marmah, Inc. v. Greenwich, 176 Conn. 116, 120-21, 405 A.2d 63 (1978). The Appellate Court has held that, although a plaintiff may have vested rights in a property, generally, a plaintiff does not have “vested rights in the configuration of that property as it sought to reconfigure it, nor could it have acquired such vested rights without seeking approval of its proposed reconfiguration in accordance with established protocol and procedures.” Stones Trail, LLC v. Weston, 174 Conn. App. 715, 742, 166 A.3d 832, cert. dismissed, 327 Conn. 926, 171 A.3d 59 (2017), and cert. denied, 327 Conn. 926, 171 A.3d 60 (2017).
Further, “[n]o one has a vested right in any given mode of procedure . . . and so long as a substantial and efficient remedy remains or is provided due process of law is not denied by a legislative change.” (Citations omitted.) Crane v. Hahlo, 258 U.S. 142, 147, 42 S. Ct. 214, 66 L. Ed. 514 (1922); see also Vernon v. Cassadaga Valley Central School District, 49 F.3d 886, 890 (2d Cir. 1995). The failure of the petition to contain sufficient signatures does not therefore vest in the plaintiffs any rights in the successful passage of their amendment. It cannot be said that the plaintiffs have no remedy available to them if they cannot void the Board of Representatives’ vote due to an insufficient number of signatures. There are at least two potential avenues, one of which the plaintiffs pursued: (1) challenging the Board of Representatives’ vote on the merits as not applying the appropriate legislative standard provided by the charter, or (2) engaging in the legislative process, such as reapplying for an amendment, gathering additional political support, or asking the Board of Representatives to reconsider. I am unaware of anything that
I recognize that the majority is not taking the action it is today based on a theory of vested rights. It is doing so based on far less justification. To the majority, because the five person Planning Board adopted the plaintiffs’ amendment and, based on our count and no one else‘s, the petition contained an insufficient number of signatures, the Board of Representatives had no business taking action on that amendment. And the majority is here to correct that. I simply disagree that that is—or should be—a court‘s role, and I believe our precedents agree.
My disagreement is further supported by the fact that the United States Court of Appeals for the Second Circuit has rejected a remarkably similar challenge to a town planning board‘s enactment of zoning ordinances. In Orange Lake Associates, Inc. v. Kirkpatrick, 21 F.3d 1214, 1224 (2d Cir. 1994), the Second Circuit held that a developer‘s due process rights were not violated when the town board of Newburgh, New York, enacted zoning ordinances to implement a new master plan for Newburgh. The Second Circuit agreed that the developer had “no vested right to approval of its plans for the project” and that there was nothing to indicate that the developer‘s claimed procedural defects affected the decisions of the town board or Newburgh‘s planning board. Id. Likewise, here, the plaintiffs have no vested right in the approval of their proposed amendment, as nothing currently before this court suggests that the insufficient signatures affected the Board of Representatives’ decisions on the merits of the amendment, given that the trial court bifurcated the trial to address the jurisdictional issue first. If the law were otherwise, the judiciary would be invited regularly to intervene in routine legislative proceedings, in contravention of our settled role. Vested rights provide a clear delineation so that courts do not get involved in the kind of policymaking that is better left to more represen-tative bodies elected to conduct the work of local lawmaking.
Because I would conclude that any erroneous referral of the petition by the Planning Board does not vitiate the action of the Board of Representatives, I would reverse the trial court‘s judgment and remand the case to that court for additional proceedings on whether the Board of Representatives acted arbitrarily, illegally, or in a manner that was inconsistent with the guiding zoning standards when voting on the merits of the proposed amendment. I therefore respectfully dissent.
D‘AURIA, J.