Bombero v. Planning and Zoning Com'n of Town of Trumbull

• Decision Date: 09 January 1996
• Docket Number: No. 13780,13780
• Citation: 669 A.2d 598,40 Conn.App. 75
• Court: Connecticut Court of Appeals
• Parties: Stephen C. BOMBERO v. PLANNING AND ZONING COMMISSION OF the TOWN OF TRUMBULL.

Page 598

669 A.2d 598

40 Conn.App. 75

Stephen C. BOMBERO v. PLANNING AND ZONING COMMISSION OF the TOWN OF TRUMBULL.

No. 13780.

Appellate Court of Connecticut.

Argued Sept. 27, 1995.

Decided Jan. 9, 1996.

Barbara F. Green, Bridgeport, for the appellant (plaintiff).

Burton S. Yaffie, Trumbull, for the appellee (defendant).

Before DUPONT, C.J., and LANDAU and SCHALLER, JJ.

DUPONT, Chief Judge.

The plaintiff appeals from a declaratory judgment in which the trial court refused to grant declaratory relief because it concluded that there was no actual controversy between the parties. The plaintiff claims that the trial court improperly concluded that he was not entitled to seek declaratory relief. We agree with the plaintiff and conclude that the plaintiff has shown the requisite degree of uncertainty as to his rights as a property owner, sufficient to entitle him to seek declaratory relief.

Certain facts and procedural history are relevant to this appeal. The plaintiff brought this declaratory judgment action, challenging the constitutionality of an amended Trumbull subdivision regulation. ¹ It is the second action brought by the plaintiff involving the same regulation. In the earlier action, the plaintiff and nine other individuals appealed from the enactment of the amendment to the Superior Court, claiming, among other things, that the amendment was impermissibly vague. The trial court sustained the plaintiff's appeal and issued a ruling that "the regulation is ... void for vagueness." The trial court in a subsequent written memorandum of decision stated that the "regulation lacks standards sufficient to guide the commission and to enable those affected to know their rights and obligations."

Upon our granting of a petition for certification, the defendant planning and zoning commission of the town of Trumbull (commission) appealed to this court. That appeal was transferred to our Supreme Court pursuant to Practice Book § 4023. Our Supreme Court held that "where, as here, the plaintiff mounts a general attack on the legislative enactment of a regulation, primarily based on constitutional vagueness grounds, and combines therewith nonconstitutional grounds for the regulation's invalidity, he must do so by a declaratory judgment action rather than by an appeal from the enactment. Thus, the plaintiffs in this case should have brought a declaratory judgment action in order to raise their challenges to the facial invalidity of the regulation." Bombero v. Planning & Zoning Commission, 218 Conn. 737, 745-46, 591 A.2d 390 (1991). Accordingly, the plaintiff then brought the present declaratory judgment action.

Following a hearing and testimony, the trial court denied the plaintiff's request for declaratory relief and held that "there is no actual controversy between the parties as required by Connecticut Practice Book § 390(a) and (b) and that there is no sufficient practical need for the declaratory judgment which the plaintiff seeks."

In this appeal, the plaintiff claims that (1) the trial court improperly held that the plaintiff is not entitled to seek declaratory relief, (2) the regulation adopted by the commission implicates the provisions of both article first, § 8, of the constitution of Connecticut and the fourteenth amendment to the United States constitution because the language of the regulation is vague and ambiguous, (3) the action taken by the commission in enacting the regulation is outside the scope of the authority vested in it by the provisions of General Statutes § 8-25, (4) the action taken by the commission in enacting the regulation constitutes a taking of the plaintiff's land without just compensation and is in violation of article first, § 11, of the constitution of Connecticut as well as the fourteenth amendment to the United States constitution. With the exception of the first claim, all of these claims were made in the first action involving the same amendment to the subdivision regulation.

The purpose of a declaratory judgment action, as authorized by General Statutes § 52-29 ² and Practice Book § 390, ³ is to "secure an adjudication of rights where there is a substantial question in dispute or a substantial uncertainty of legal relations between the parties." Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 613, 508 A.2d 743 (1986). Section 52-29(a) permits the Superior Court to "declare rights and other legal relations." Similarly, Practice Book § 390(a) authorizes a court to render a declaratory judgment if a plaintiff has a legal interest "by reason of danger of loss or of uncertainty as to his rights or other jural relations...." (Emphasis added.) "The provision [of Practice Book § 390] that there must be an issue in dispute or an uncertainty of legal relations which requires settlement between the parties means no more than that there must appear a sufficient practical need for the determination of the matter." Larkin v. Bontatibus, 145 Conn. 570, 575, 145 A.2d 133 (1958).

Statutes and rules relating to the remedy of declaratory judgments are given a liberal construction to effectuate their purposes. Connecticut Savings Bank v. First National Bank & Trust Co., 133 Conn. 403, 409, 51 A.2d 907 (1947). "One great purpose is to enable parties to have their differences authoritatively settled in advance of any claimed invasion of rights, that they may guide their actions accordingly and often may be able to keep them within lawful bounds, and so avoid the expense, bitterness of feeling and disturbance of the orderly pursuits of life which are so often the incidents of law suits. Fully to carry out the purposes intended to be served by such judgments, it is sometimes necessary to determine rights which will arise or become complete only in the contingency of some future happening. Even if the right claimed ... is a contingent one, its present determination may well serve a very real practical need of the parties for guidance in their future conduct. A construction of our statute and rules which would exclude from the field of their operation the determination of rights, powers, privileges and immunities which are contingent upon the happening or not happening of some future event would hamper their useful operation." (Emphasis added.) Sigal v. Wise, 114 Conn. 297, 301-302, 158 A. 891 (1932).

Our Supreme Court has recognized that its "cases have not always been consistent in requiring a declaratory judgment action as the method by which to challenge the validity of zoning or planning regulations. Compare Bottone v. Westport, 209 Conn. 652, 553 A.2d 576 (1989), Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 523 A.2d 467 (1987), Aunt Hack Ridge Estates, Inc. v. Planning Commission, 160 Conn. 109, 273 A.2d 880 (1970), Calve Bros. Co. v. Norwalk, 143 Conn. 609, 124 A.2d 881 (1956), Gohld Realty Co. v. Hartford, 141 Conn. 135, 104 A.2d 365 (1954), Cristofaro v. Planning & Zoning Commission, [11 Conn.App. 260, 527 A.2d 255, cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987) ] (declaratory judgment actions), with Carofano v. Bridgeport, 196 Conn. 623, 495 A.2d 1011 (1985) (injunction), New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 384 A.2d 337 (1974) (injunction), Sonn v. Planning Commission, 172 Conn. 156, 374 A.2d 159 (1976) (appeal), Zenga v. Zebrowski, 170 Conn. 55, 364 A.2d 213 (1975) (appeal)." Bombero v. Planning & Zoning Commission, supra, 218 Conn., at 744, 591 A.2d 390. Although the Supreme Court did not reconcile these cases, it did make clear that a declaratory judgment, rather than a statutory appeal, was the correct means of obtaining relief for the plaintiff in this case because he had made both constitutional and unconstitutional claims, which he could not do in a statutory appeal. Id., at 745, 591 A.2d 390.

In spite of the acknowledged variance to be found among the holdings of cases where declaratory relief has been sought, certain principles and recurrent factors have emerged. A plaintiff should have a legal or equitable interest in the controversy. See Steeneck v. University of Bridgeport, 235 Conn. 572, 579, 668 A.2d 688 (1995); Lipson v. Bennett, 148 Conn. 385, 389, 171 A.2d 83 (1961); Board of Education v. Board of Finance, 127 Conn. 345, 347-48, 16 A.2d 601 (1940). A plaintiff should need an authoritative settlement of that interest so that he may avoid the expense of future litigation or action. Sigal v. Wise, supra, 114 Conn., at 301, 158 A. 891. The trial court should consider equitable principles in determining the rights of the parties. Middlebury v. Steinmann, 189 Conn. 710, 715, 458 A.2d 393 (1983). A declaratory judgment action may be used to determine the constitutionality of a particular statute or regulation. St. John's Roman Catholic Church Corp. v. Darien, 149 Conn. 712, 718, 184 A.2d 42 (1962) (action for declaratory judgment determining constitutionality of municipal zoning regulations governing location of parochial schools); Karen v. East Haddam, 146 Conn. 720, 155 A.2d 921 (1959) (action for declaratory judgment determining constitutionality of local ordinance governing licensing of trailer and mobile home parks); Cyphers v. Allyn, 142 Conn. 699, 118 A.2d 318 (1955) (action for declaratory judgment determining constitutionality of act governing licensing of real estate brokers and salesmen).

In land use cases, a plaintiff who has applied to an administrative agency for a permit, variance, subdivision or similar relief, cannot attack the constitutionality of the provision governing the issuance of that relief when appealing from that agency's decision. Bierman v. Westport Planning & Zoning Commission, 185 Conn. 135, 139, 440 A.2d 882 (1981) (appeal from denial of site plan application); J & M Realty Co. v. Norwalk, 156 Conn. 185, 191, 239 A.2d 534 (1968) (subdivision appeal); Strain v. Zoning Board of Appeals, 137 Conn. 36, 38-39, 74 A.2d 462 (1950) (application to build garage). A plaintiff...