Anderson v. Zoning Commission of City of Norwalk

• Decision Date: 17 December 1968
• Court: Connecticut Supreme Court
• Parties: Milton R. ANDERSON et al. v. ZONING COMMISSION OF the CITY OF NORWALK et al.

Page 16

253 A.2d 16

157 Conn. 285

Milton R. ANDERSON et al. v. ZONING COMMISSION OF the CITY OF NORWALK et al.

Supreme Court of Connecticut.

Dec. 17, 1968.

George J. Malinsky, Georgetown, with whom, on the brief, was Robert N. Grosby, Norwalk, for appellants (plaintiffs).

Robert B. Devine, Norwalk, for appellees (defendants Gregory).

No appearance for appellee (named defendant).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

THIM, Associate Justice.

The defendant zoning commission extended a business zone to include about one acre of land which had previously been within a residential zone. The plaintiffs, who are property owners and residents in the neighborhood, have taken the present appeal from a judgment dismissing their appeal in the Court of Common Pleas.

I

The plaintiffs claim that the trial court committed error by concluding that two members of the zoning commission, A. Peter Lomaglio and Lawrence Bottone, were not disqualified from participating in the hearing and the decision on the application for a change of zone. We do not agree with this claim for reasons hereinafter stated.

On September 22, 1966, Henry P. Gregory, Edward O. Gregory, and David W. Gregory applied to the zoning commission for a zonal change of a one-acre tract from residence A to business 1. The land was situated between Newtown Avenue and Chestnut Hill Road in Norwalk and was adjacent to other land owned by the Gregorys and on which they operated a business known as the Gregory Store. A public hearing was held on May 5, 1966, and the application was unanimously approved on June 15, 1966.

Several weeks before the public hearing, the chairman of the five-member zoning commission, R. Richard Gregory (hereinafter referred to as the chairman), disqualified himself from participating in the commission's deliberations realting to the Gregorys' application because he lived about one-half mile from the property in question and because some of his friends would oppose the application while others would support it. The chairman was not related to the applicants, and the trial court concluded that he had no direct or indirect interest of either a personal or financial nature in the Gregorys' store or in their land.

Shortly before the hearing on the Gregorys' application was scheduled to begin, one of the members of the commission informed the other members that he would be unable to attend the hearing. Owing to the lateness of this notification, the commission members were unsuccessful in securing an alternate. The chairman, who had already disqualified himself, suggested Lomaglio as a possible alternate. Lomaglio was chosen by the remaining members of the commission, and he served as an alternate member of the commission in all proceedings relating to the Gregorys' application for a change of zone. Lomaglio was employed in the mortgage department of the Merchants Bank and Trust Company, and the chairman of the commission was employed as the secretary of the same bank. Lomaglio did not, however, work in the chairman's department, and he was in no way controlled by him. At the time he suggested Lomaglio as an alternate, the chairman had announced his intention to leave the Merchants Bank and Trust Company and to become associated with another bank.

A second member of the commission, who participated in the application for a change of zone, was Bottone. Bottone was the vice-president of Thomas J. Riordan, Inc., and owned 45 percent of the common stock of that corporation. The Riordan corporation was engaged in the business of constructing commercial, industrial and residential buildings. The law firm of Devine and Vallerie had been representing the Riordan corporation since its inception in 1958. This firm, however, never represented Bottone. This same law firm also represented the Gregorys in their application for a change of zone.

The plaintiffs contend that Lomaglio's and Bottone's participation in the commission's consideration of the application for a change of zone violated § 8-11 of the General Statutes, which provides in pertinent part: 'No member of any zoning commission or board and no member of any zoning board of appeals shall participate in the hearing or decision of the board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense. In the event of such disqualification, such facts shall be entered on the records of the commission or board and the remaining members of the commission or board * * * shall choose an elector to act as a member of such commission or board in the hearing and determination of the particular matter or matters in which the disqualification arose.'

It is a well-established principle in our state that a zoning official may not use his official power to further his own interests. This principle has its origin in the common law; Low v. Town of Madison, 135 Conn. 1, 5, 60 A.2d 774; and has been declared to be the public policy of our state in at least two statutory enactments. General Statutes §§ 8-11, 8-21. The reason for the establishment of this principle is obvious: a man cannot serve two masters at the same time and the public interest should not be entrusted to an official who has a pecuniary, personal or private interest which is or may be in conflict with the public interest. Genkinger v. City of New Castle, 368 Pa. 547, 552, 84 A.2d 303. A public official owes an undivided duty to the public whom he serves, and he is not permitted to place himself in a position which would subject him to conflicting duties or expose him to the temptation of acting in any manner other than in the best interest of the public. 43 Am.Jur., Public Officers, § 266.

Section 8-11 of the General Statutes requires a member of a zoning commission or zoning board of appeals to disqualify himself when the decision of the zoning authority could enure to his pecuniary benefit. This principle has been applied in such cases as Josephson v. Planning Board, 151 Conn. 489, 494, 199 A.2d 690, 10 A.L.R.3d 687; Lake Garda Improvement Assn. v. Town Plan & Zoning Commission, 151 Conn. 476, 480, 199 A.2d 162, and Mills v. Town Plan & Zoning Commission, 144 Conn. 493, 134 A.2d 250. Section 8-11 also forbids a member of a zoning commission or board of appeals from participating in any matter in which he has a personal interest in the outcome. Daly v. Town Plan & Zoning Commission, 150 Conn. 495, 500, 191 A.2d 250. A personal interest is either an interest in the subject matter or a relationship with the parties before the zoning authority impairing the impartiality expected to characterize each member of the zoning authority. A personal interest can take the form of favoritism toward one party or hostility toward the opposing party; it is a personal bias or prejudice which imperils the openmindedness and sense of fairness which a zoning official in our state is required to possess.

Local governments would, however, be seriously handicapped if any conceivable interest, no matter how remote and speculative, would require the disqualification of a zoning official. If this were so, it would not only discourage but might even prevent capable men and women from serving as members of the various zoning authorities. Of course, cour...