Akin v. City of Norwalk

• Decision Date: 11 May 1972
• Citation: 163 Conn. 68,301 A.2d 258
• Parties: John G. AKIN et al. v. CITY OF NORWALK et al.
• Court: Connecticut Supreme Court

Page 258

301 A.2d 258

163 Conn. 68

John G. AKIN et al. v. CITY OF NORWALK et al.

Supreme Court of Connecticut.

May 11, 1972.

The appellees filed motions for reargument which were denied.

John S. Barton, Bridgeport, with whom was Gove W. Stoddard, Bridgeport, for appellants (named plaintiff and others).

Stanley P. Atwood, Westport, for appellant (plaintiff town of Westport).

Melvin J. Silverman, Norwalk, with whom, on the brief, was George J. Lepofsky, Norwalk, for appellee (defendant Flower Estates of Cranbury, Inc.); also on the brief was Leonard S. Herman, Corporation Counsel, for the appellee (named defendant).

Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and FITZ GERALD, JJ.

HOUSE, Chief Justice.

The plaintiffs have appealed from a judgment of the Court of Common Pleas dismissing their appeal from the action of the defendant town council of the city of Norwalk approving a subdivision plan for a tract of unimproved land. The plaintiffs are individual landowners in the immediate vicinity of the proposed subdivision, the Norwalk-Westport Cranbury Association, Inc., a Connecticut nonstock corporation whose members include property owners in Norwalk and Westport, and the town of Westport. The defendants are the city of Norwalk, its common council, and Flower Estates of Cranbury, Inc., a Connecticut, corporation.

On September 6, 1968, the defendant Flower Estates of Cranbury, Inc., hereinafter referred to as Flower Estates, submitted to the planning commission of Norwalk an application for approval of a preliminary subdivision plan. The land in question is unimproved and consists of approximately thirty acres. It is located entirely in Norwalk and is contiguous to the town of Westport. On the east the tract bounds on Cranbury Road, a highway between the city of Norwalk and the town of Westport. It is bounded on the north by Partrick Avenue, on the west by Wolfpit Avenue and on the south by privately owned property. On May 7, 1969, the planning commission approved the subdivision plan and referred it to the defendant common council which, acting in its capacity as the final planning authority of the city of Norwalk, unanimously approved the subdivision on May 14, 1969. Thereafter, the plaintiffs appealed to the Court of Common Pleas which tried the case on the record, allowing testimony only on the question of aggrievement. The trial court made a finding of facts, concluded that the plaintiffs were aggrieved persons and rendered judgment on October 30, 1970, dismissing the appeal. From this judgment the plaintiffs have appealed to this court.

The first issue confronting us is aggrievement. As noted above, the trial court received evidence with respect to the issue of aggrievement and from that evidence concluded that the plaintiffs were in fact aggrieved and, therefore, entitled to appeal. The defendants contend that the court erred in so holding and that as a result this court is without the requisite jurisdiction to hear the appeal.

In general, this court will not entertain issues raised by an appellee unless the appellee has filed an assignment of errors and a cross appeal. Practice Book § 607; Rizzo v. Price, 162 Conn. 504, 512, 294 A.2d 541; DiSesa v. Hickey, 160 Conn. 250, 262, 278 A.2d 785; Peterson v. Norwalk, 150 Conn. 366, 382, 190 A.2d 33. As stated in DiSesa v. Hickey, supra, 263, 278 A.2d at 792: 'Practice Book § 619 requires the trial court to set forth in its finding such facts as may be 'necessary to present the questions which the appellant desires reviewed.' The court is not expected much less required, to speculate as to what issues the appellees might also wish to have reviewed incident to the appellant's appeal. Practice Book § 623 permitting the assignment of errors by an appellee is limited to assignments 'directed to the finding of any fact or refusal to find any fact.' The assignment of error by the appellees here is directed not to a finding of fact but to a conclusion of law. . . . (A)n appellant in such circumstances is not adequately protected by the right to file a reply brief since the finding is designed to present to this court the facts necessary to test the issues raised by the appeal as taken and an appellant in submitting his draft finding cannot be expected to incorporate in that draft finding facts adequate to test the unknown claims of an appellee. Nor would the appellant in preparing his assignment of errors have the opportunity to contest any improper findings relating to the appellee's then undisclosed claims of error.' While proper appellate procedure has not been followed by the defendant-appellees, an analysis of the record reveals that there is no merit to the claim even if it had been properly presented, there being ample evidence before the court on which it could justifiably conclude that the plaintiffs were indeed aggrieved parties and entitled to appeal the common council's decision.

While the plaintiffs have assigned several errors, the error which we find to be dispositive of the appeal concerns notice. The plaintiffs contend that the action of the common council in approving the subdivision plan is invalid since notice of the decision was not published pursuant to § 8-28 of the General Statutes requiring that '(n)otice of all official actions of a planning commission shall be published . . . within ten days after such action has been taken.' On May 14, 1969, the common council approved the subdivision plan but did not publish notice of its action until August 14, 1969, well beyond the tenday period prescribed by § 8-28. In the intervening time, the plaintiffs, on May 28, appealed from the action taken by the council on May 14, an appeal which the lower court determined was timely. ¹ The determination of whether the failure to publish the decision within ten days of the decision invalidates the action of the council depends on whether the requirement is categorized as directory, as the court implied, or, as the plaintiffs contend, mandatory. "It is, of course, difficult to lay down a general rule to determine in all cases when the provisions of a statute are merely directory, and when mandatory or imperative; but, of all the rules mentioned, the test most satisfactory and conclusive 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 material or immaterial-to matter of convenience or of substance.' . . . In the determination . . . as to whether or not a provision . . . is of the essence of the thing to be accomplished . . . significance is to be attached to the nature of the act . . . the language and form in which the provision is couched.' Spencer's Appeal, 78 Conn. 301, 303, 61 A. 1010, 1011; see State ex rel. Barnard v. Ambrogio, 162 Conn. 491, 501, 294 A.2d 529; Walker v. Jankura, 162 Conn. 482, 488, 294 A.2d 536; Broadriver, Inc. v. Stamford, 158 Conn. 522, 529, 265 A.2d 75; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 145 v. Shapiro, 138 Conn. 57, 68, 82...