Avonside, Inc. v. Zoning and Planning Commission of Town of Avon

• Decision Date: 09 December 1965
• Citation: 153 Conn. 232,215 A.2d 409
• Parties: AVONSIDE, INC., et al. v. ZONING AND PLANNING COMMISSION OF the TOWN OF AVON. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 409

215 A.2d 409

153 Conn. 232

AVONSIDE, INC., et al. v. ZONING AND PLANNING COMMISSION OF the TOWN OF AVON.

Supreme Court of Errors of Connecticut.

Dec. 9, 1965.

Robert C. Hunt, Jr., Hartford, for appellant (defendant).

Robert B. August, Simsbury, for appellees (plaintiffs).

Before KING, C. J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.

KING, Chief Justice.

This is an action brought by two real estate developers, the named plaintiff in the first count and the plaintiff Tamara Farms, Inc., in the second count, against the zoning and planning commission of the town of Avon, hereinafter referred to as the commission. A declaratory judgment was sought determining the validity of § 5.30.4 of the subdivision regulations of the town of Avon. The plaintiffs also sought an order for the repayment of the amount exacted from each plaintiff pursuant to the terms of the regulation and paid by each plaintiff under protest. Except for the amount of money sought to be recovered, each count is substantially identical.

Section 5.30.4 of the subdivision regulations, hereinafter referred to as the regulation, was adopted April 25, 1959, and required, inter alia, that a developer pay a stated percentage of the cost of constructing streets and making the other public improvements set forth in his subdivision plan. The percentage was fixed at 1 1/2 percent of the cost of those improvements if they did not exceed $100,000, and at $1500 plus 1 percent of the cost of such improvements if they were in excess of $100,000. There is no claim of any invalidity in the procedure followed in adopting the subdivision regulation if it lay within the power of the commission to adopt it at all.

Purporting to act under the authority of the terms of the regulation, the commission, after approval of the subdivision plan and as a condition of granting permission to make the improvements called for in it, required the named plaintiff to pay, and under protest it did pay, $669 and required the plaintiff Tamara Farms, Inc., to pay, and under protest it did pay, $584.04. There seems to be no claim by anyone that these payments were not exacted in conformity with the terms of the regulation. But it is the claim of each plaintiff that the regulation purporting to require the payment exacted was beyond the authority of the commission to enact and that the payment made under protest should be returned.

Besides the foregoing charge the commission required each plaintiff to pay a further charge of $25, in accordance with the authority granted in § 8-26 of the General Statutes, as amended by No. 679, § 6, of the 1959 Public Acts. No complaint is made of the commission's exaction of this $25 charge. When the regulation was enacted in April, 1959, § 8-26 contained no provision authorizing the commission to make any charge with respect to subdivision plans. The 1959 amendment added what is now (except for a 1963 amendment which is immaterial to the present controversy) the second sentence of § 8-26, which reads as follows: 'The commission may charge fees for the processing of subdivision applications and inspection of subdivision improvements, the minimum fee to be twenty-five dollars for each application and the maximum to be two dollars for each lot within the planned subdivision.' The quoted amendment was effective when the payment of each charge was exacted from each plaintiff.

The commission claims that the charge made under the regulation was to cover 'reasonable costs incurred by the town in the supervision of the installation of streets and utilities in * * * [an approved] subdivision'. In other words, it is the commission's claim that the statutory charge of $25 covers the 'processing of subdivision applications and inspection of subdivision improvements' and that no other or additional charge is exacted for such matters, but that the charge purportedly authorized in the regulation is for engineering services rendered by personnel employed for that particular purpose in supervising the actual installation of streets and utilities as authorized in an approved subdivision plan. This claim does make it clear that the charge exacted under the regulation does not purport to cover, and in fact does not cover, the matters for which the $25 charge was authorized by § 8-26.

'As a creature of the state, the * * * [town of Avon, whether acting itself or through its planning commission,] can exercise only such powers as are expressly granted to it, 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, 430, and cases cited therein; Bredice v. Norwalk, 152 Conn. 287, 292, 206 A.2d 433; State ex rel. Sloane v. Reidy, 152 Conn. 419, 423, 209 A.2d 674. In other words, in order to determine whether the regulation in question was within the authority of the commission to enact, we do not search for a statutory prohibition against such an enactment; rather, we must search for statutory authority for the enactment.

The commission at one point in its brief seems to have recognized the foregoing rule of law. In its brief, however, it referred generally to title 8 of the General Statutes, embracing over 160 sections, and finally designated §§ 8-25, 8-27 and 8-29 as supporting its claim of statutory authority. We now turn to an examination of these enumerated sections.

The commission's brief places some reliance on two provisions of § 8-25. One of these provisions empowers the planning commission to accept a bond in lieu of demanding actual completion of the improvements embraced in a subdivision plan before final approval thereof. The other provision authorizes the commission to enact regulations to save the town harmless, by assessments or other charges against the property owners within the subdivision, if the town should proceed to make, at its own expense, the improvements embraced in the subdivision plan. Obviously there is nothing here warranting or even lending support to the claim that the commission has any express or implied authority to levy the protested charge on these plaintiffs. Indeed, there is no claim that the town has made any improvements at its own expense or contemplates any such action.

Section 8-27 authorizes the enactment of ordinances by the town to prohibit or regulate the issuance of permits for the erection of buildings on lots abutting unaccepted streets. The irrelevancy of this section to this controversy is too obvious to merit discussion.

Section 8-29, inter alia, authorizes the planning commission to prepare and file plans recommending the locating or relocation of highways, streets or...