Bell v. Planning and Zoning Commission of Town of Westport
| Citation | 173 Conn. 223,377 A.2d 299 |
| Court | Supreme Court of Connecticut |
| Decision Date | 28 June 1977 |
| Parties | Samuel F. BELL, Trustee v. PLANNING AND ZONING COMMISSION OF the TOWN OF WESTPORT. |
Alan H. Senie, Westport, with whom were J. Peter LaChance, Westport, and, on the brief, Jack Stock, Westport, for appellant (plaintiff).
Keith D. Dunnigan, Bridgeport, for appellee (defendant).
Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.
This is an appeal from the denial of an application for a special permit for the construction of a multifamily dwelling project in the town of Westport. The Court of Common Pleas rendered judgment dismissing the appeal. From that judgment and on the granting of certification, the plaintiff appealed to this court, assigning error in the conclusions reached by the court.
On June 25, 1975, the plaintiff filed an application with the defendant commission for a special permit for the construction of a multifamily dwelling project for the elderly pursuant to the provisions of amendment 80 1 of the Westport zoning regulations. The commission refused to assign the application for a hearing. As a result of that refusal, the plaintiff instituted a mandamus action. Thereafter, a stipulation was reached wherein the commission agreed to give the plaintiff a hearing on the application. On September 4, 1975, the commission held a hearing and, on October 2, 1975 denied the application.
One of the reasons given for the denial of the application was that the commission "hereby deems . . . (the) application for a Special Permit, dated June 25, 1975, to construct 60 multifamily units to be inconsistent with the provisions of Zoning Amendment No. 80 and to be improperly submitted to this Commission."
In dismissing the appeal, the trial court concluded that "(s)ince the provisions of amendment 80 are limited to applications filed by the Westport Housing Authority for the benefit of low and moderate income persons within the category enumerated, the plaintiff's application was a nullity and this court is without jurisdiction to determine the appeal."
The dispositive issue, then, is whether zoning amendment 80 limits the construction of multifamily dwellings for the elderly to the Westport Housing Authority.
Wilson v. West Haven, 142 Conn. 646, 654, 116 A.2d 420, 424.
Zoning amendment No. 80 constitutes an addition to section 15-2 of the Westport zoning regulations, which sets forth the permissible uses of property located within residential districts. The amendment establishes elderly housing projects as a permitted use if constructed in compliance with certain conditions. An examination of the amendment reveals that it consists of a two-paragraph preamble and seventeen specific standards, conditions and safeguards.
The first paragraph of the preamble sets out the three purposes of the section: to promote the general welfare by providing appropriate housing for the elderly, "to assure housing facilities specially adapted for elderly persons as a public use," and to allow construction of housing for the elderly "subject to securing a Special Permit as provided in Chapter 38 of these regulations and in accordance with the appropriate standards, conditions and safeguards . . . ."
The second paragraph of the preamble expresses the purpose to "afford the opportunity to the Westport Housing Authority to provide 'Housing for Elderly Persons (emphasis added)' " and sets forth the additional requirements the authority must comply with if such housing is to be a municipal use. Not only must the authority secure a special permit subject to chapter 38 and the seventeen provisions, it must also secure the permit "subject to the provisions of paragraphs a, b, c, d, e, f, & g in Section 15-2-D-(1)."
The language of the amendment is clear and unambiguous. There is no language in the amendment limiting construction of elderly housing to the Westport Housing Authority. Indeed, in view of the establishment of two methods of obtaining the necessary special permit, the second method being applicable only to the authority, we conclude that amendment 80, as adopted, does not limit the issuance of such permits to the Westport Housing Authority.
There is error, the judgment is set aside and the case is remanded to be proceeded with according to law.
Section 15-2 Uses
O. Elderly Housing
The purpose of this Section of the regulations is to promote the public health, safety and general welfare of the community by providing decent, safe and sanitary housing units for elderly persons at reasonable rents, to assure housing facilities specially adapted for elderly persons as a public use in the public interest, and to allow multiple-family housing for elderly persons within the Town of Westport subject to securing a Special Permit as provided in Chapter 38 of these regulations and in accordance with the appropriate standards, conditions and safeguards as hereinafter specified.
In order to afford the opportunity to the Westport Housing Authority to provide 'Housing for Elderly Persons' under Sec. 8-112a, et seq. of the Connecticut General Statutes, housing for the elderly shall be permitted as a municipal use subject to securing a Special Permit, pursuant to Chapter 38, herein, subject to the provisions of paragraphs a, b, c, d, e, f, & g in Section 15-2-D-(1), and subject to the following additional standards, conditions and safeguards:
(1) Permitted Uses. Construction of residential dwelling units for the elderly under this Section shall be permitted for detached dwellings, semi-detached dwellings and attached dwellings such as garden apartments and town houses, but not for hotels, motels, rooming, boarding & lodging houses or tourist homes, each dwelling unit shall have one (1) or two (2) bedrooms....
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