Arnold Bernhard and Co., Inc. v. Planning and Zoning Com'n of Town of Westport

Decision Date07 August 1984
Citation194 Conn. 152,479 A.2d 801
CourtConnecticut Supreme Court

Alan R. Spirer, Westport, with whom, on the brief, was Evelyn Leka, Trumbull, for appellant (defendant).

Joseph M. Brophy, Westport, with whom, on the brief, were Marylouise S. Black, West Redding, and John G. Betar, Jr., Bridgeport, for appellee (plaintiff).


PETERS, Associate Justice.

The principal issue on this appeal is whether the town of Westport is authorized by statute to enact a zoning moratorium. The plaintiff, Arnold Bernhard and Company, Inc., appealed from the decision of the defendant, Westport planning and zoning commission (commission), imposing a nine month moratorium on the acceptance and granting of applications for business development within a fourteen acre section of the Westport business district in which the plaintiff owns a piece of property. The plaintiff sought declaratory and injunctive relief to invalidate the moratorium, and to direct the commission to approve the plaintiff's site plan and to issue the necessary permits for construction of the plaintiff's proposed office building. 1 The trial court, Jacobson, J., sustained the plaintiff's zoning appeal and ordered the commission to act on the plaintiff's application in accordance with the zoning regulations in effect prior to the moratorium. Upon the granting of certification, the commission has appealed to this court from the judgment sustaining the plaintiff's zoning appeal.

The relevant facts are undisputed. The plaintiff owns a parcel of land in Westport in an area that had been zoned as a business district. In September, 1973, the commission approved the plaintiff's site plan for the construction of an office building on the property, subject to several conditions. The plaintiff did not comply with all of the conditions then imposed, and did not construct the office building. On July 13, 1978, almost five years after the plaintiff's site plan had been approved, the commission, after due notice and a proper hearing, enacted an amendment to its regulations, effective July 20, 1978, providing for a nine month moratorium on business development in a portion of the business district encompassing the plaintiff's property. 2 The plaintiff appealed from the adoption of the regulation on August 8, 1978.

While the zoning appeal was pending, on April 20, 1979, the defendant commission proposed a zoning amendment for the moratorium district which, if applied to the plaintiff's property, would prevent approval of the proposed site plan. The proposed amendment rezoned a portion of the moratorium area as a corporate park in which office buildings would be limited to 20,000 square feet. The plaintiff's site plan proposed a building of 45,000 square feet. After the plaintiff unsuccessfully attempted to enjoin the enactment of the zoning amendment pending the resolution of the validity of the moratorium or until it received a zone permit, the more restrictive zoning regulation took effect on November 5, 1979. 3

In its zoning appeal, the plaintiff claimed that: (1) the zoning enabling statutes conferred no authority on the commission to enact a moratorium; (2) the application of the moratorium to only a small portion of the business district violated the statutory requirement that regulations be uniform within each district; and (3) the imposition of the moratorium confiscated its property. The trial court, Jacobson, J., sustained the appeal on the first ground, holding that the commission lacked any statutory authority to enact the challenged regulation. Accordingly, the court ordered the commission to consider the plaintiff's application under the less restrictive regulations that were in effect at the time the revised application was submitted. The trial court did not address the other grounds on which the plaintiff claimed the moratorium invalid.

On appeal to this court the commission claims that General Statutes § 8-2 4 does authorize the imposition of a zoning moratorium for a reasonable period to protect the planning process. The commission claims further that even if the moratorium were invalid, the trial court erred in granting the plaintiff relief because (1) the expiration of the moratorium rendered the case moot; and (2) the plaintiff's appeal from the decision to adopt the moratorium was an inappropriate procedural vehicle for considering the commission's action with respect to the plaintiff's later filed zoning application. Because we agree that the commission was statutorily empowered to adopt a moratorium, we find error in the judgment sustaining the plaintiff's zoning appeal. Accordingly, we remand the case to the trial court for further proceedings concerning the remaining issues raised in the plaintiff's appeal.


We must first address the commission's claim that the expiration of the moratorium on April 30, 1979, has rendered the case moot. "It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow." CEUI v. CSEA, 183 Conn. 235, 246, 439 A.2d 321 (1981); Accurate Forging Corporation v. UAW Local No. 1017, 189 Conn. 24, 26, 453 A.2d 769 (1983); State Farm Life & Accident Assurance Co. v. Jackson, 188 Conn. 152, 156, 448 A.2d 832 (1982); Rosnick v. Zoning Commission, 172 Conn. 306, 308-10, 374 A.2d 245 (1977); Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944).

In Rosnick v. Zoning Commission, supra, we held that the expiration of a similar zoning moratorium had rendered moot the plaintiff's appeal, which challenged the validity of the moratorium. This case differs from Rosnick because in that case no application was then pending before the zoning commission, while in this case the plaintiff submitted an application for site plan review during the moratorium period. In the absence of the moratorium, the plaintiff would have been entitled to a decision on its application within sixty-five days or the application would have been approved as a matter of law. General Statutes §§ 8-3(g), 8-7d(b); see Vartuli v. Sotire, 192 Conn. 353, 358-59, 472 A.2d 336 (1984). The commission may not defeat that statutory right by imposing an invalid moratorium.

The plaintiff submitted its revised application on April 12, 1979, and the sixty-five day period lapsed on June 16, 1979. The plaintiff's property was not rezoned to prohibit the proposed office building until November 5, 1979. A judgment invalidating the moratorium would therefore entitle the plaintiff to have its application considered in accordance with the zoning regulations that were in effect when the decision should have been made. 5 The trial court concluded correctly that the case was not moot.


The commission's principal claim is that the trial court erred in concluding that the moratorium was unauthorized by statute. It is well established that the town of Westport and its agency, the defendant planning and zoning commission, may "exercise only such powers as are expressly granted to [the town], or such powers as are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation." Baker v. Norwalk, 152 Conn. 312, 314, 206 A.2d 428 (1965); Board of Police Commissioners v. White, 171 Conn. 553, 559, 370 A.2d 1070 (1976); Langer v. Planning & Zoning Commission, 163 Conn. 453, 457-58, 313 A.2d 44 (1972); Avonside, Inc. v. Zoning & Planning Commission, 153 Conn. 232, 236, 215 A.2d 409 (1965). General Statutes § 8-2 6 delegates broad authority to municipalities to enact local zoning regulations. That statute provides in part that a "zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land.... Such regulations shall be made in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality."

The trial court held that the powers granted by § 8-2 do not encompass the adoption of a moratorium. The court noted that while the statute expressly authorizes, inter alia, the creation of zones, the regulation of lot size and the prescription of building height and area as mechanisms for land control, it is silent about land planning through the temporary suspension of development. The court reasoned that because the temporary cessation of growth was not a land management technique within the contemplation of the legislature which enacted the statute in 1949, the imposition of a moratorium could not be among the powers necessarily implied by the statutory grant. We believe that the trial court read the statute too narrowly.

As the trial court recognized, the purpose of the Westport moratorium was to stop the rapid expansion of business uses for a limited time in order to enable the defendant commission to...

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