Burgarella v. Planning and Zoning Commission of Town of West Haven
| Decision Date | 12 December 1967 |
| Docket Number | No. 76316,76316 |
| Citation | 240 A.2d 211,27 Conn.Supp. 400 |
| Court | Connecticut Court of Common Pleas |
| Parties | Mary BURGARELLA et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF WEST HAVEN et al. |
Leonard A. Schine, Bridgeport, for plaintiffs.
John W. Kline, New Haven, for named defendant.
Philbin, Donahue & Votto, West Haven, for defendant Dimenstein, trustee.
This is an appeal from the action of the defendant planning and zoning commission of West Haven, herein referred to as the commission, in granting the application of the defendant Morton Dimenstein, trustee, for a change of zonal classification from residence B to business on property including that of Paul Schlenter et al., located at 255-275 Saw Mill Road in West Haven, so that the trustee can erect thereon a gasoline service station and a restaurant. The land encompassed in the change included four single-family dwellings owned by four different owners on Saw Mill Road and Gretta Street and contained approximately 65,000 square feet.
By stipulation of the parties, one of the plaintiffs, Joseph W. McLaughlin, is an aggrieved person, entitling him to maintain this appeal, and it is so found by the court.
On February 2, 1967, during the pendency of the appeal, the commission repealed the building zone regulations and map which were in effect when the commission acted upon the application, and in lieu thereof it enacted a zoning resolution and comprehensive zoning map, including the subject premises, effective March 1, 1967. No appeal was taken by the plaintiff from that action. The present regulations now permit the defendant Morton Dimenstein, trustee, to utilize the property under consideration for the proposed uses.
Upon these facts, the defendants strenuously claim that the issues raised by the appeal have become moot since the regulations upon which the commission acted are no longer in effect. The specific question for determination then is whether or not the court should decide this appeal on the basis of the regualtions which were repealed or on those which are presently in effect.
An exhaustive research of our Supreme Court Decisions, both by counsel and the court, fails to reveal that this precise question has ever been decided in Connecticut. In other jurisdictions, the majority rule appears to be that the law in effect when a judgment by the court is made is controlling as opposed to that in effect when the proceedings were instituted before the commission or when the commission entered its decision upon the application. See 8A McQuillin, Municipal Corporations (Rev.1965) § 25.338. In 2 Metzenbaum, Zoning (2d Ed.), p. 1202, it is stated: 'It is the general rule that: (a) It is the zoning law or ordinance in effect at the time of the decision of a court-upon a zoning matter-which governs.' In Caputo v. Board...
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