Burke v. Board of Representatives of City of Stamford

• Decision Date: 03 January 1961
• Citation: 166 A.2d 849,148 Conn. 33
• Court: Connecticut Supreme Court
• Parties: Francis X. BURKE v. BOARD OF REPRESENTATIVES OF the CITY OF STAMFORD. Alfred F. DE CARLO v. BOARD OF REPRESENTATIVES OF the CITY OF STAMFORD. Supreme Court of Errors of Connecticut

Page 849

166 A.2d 849

148 Conn. 33

Francis X. BURKE v. BOARD OF REPRESENTATIVES OF the CITY OF STAMFORD.

Alfred F. DE CARLO v. BOARD OF REPRESENTATIVES OF the CITY OF STAMFORD.

Supreme Court of Errors of Connecticut.

Jan. 3, 1961.

Isadore M. Mackler, Stamford, with whom was Theodore Godlin, Stamford, for appellant (defendant) Bd. of Representatives of City of Stamford.

John M. Hanrahan, Stamford, with whom were Richard W. Martin, Stamford, and, on the brief, Richard H. Fitzmaurice, Stamford, for appellee (plaintiff) Burke.

Maurice J. Buckley, Stamford, for appellee (plaintiff) DeCarlo.

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ and SHEA, JJ.

BALDWIN, Chief Justice.

The defendant has appealed from judgments of the Court of Common Pleas overruling the action of the defendant in rejecting an amendment of the zoning map of Stamford after the amendment was adopted by the zoning board. The plaintiffs own premises located within the area changed by the amendment.

For a better understanding of the issues involved, a review of the charter and statutory provisions relating to zoning in Stamford is necessary. The charter gives to a planning board the power to 'prepare, adopt and amend' a master plan for the city. Stamford Charter §§ 520, 522.1, 522.2; 26 Spec.Laws 1228, 1229. It gives to a zoning board the power to adopt zoning regulations and to divide the city into 'districts of such number, shape and area as may be best suited' to carry out the general welfare purposes stated in the charter. Stamford Charter § 550; 26 Spec.Laws 1234. The charter also confers on the zoning board the power, after the effective date of the master plan, to amend the zoning map, but not in such a way as to permit a use 'which is contrary to the general land use established for [the] area by the master plan.' § 552; 26 Spec.Laws 1234. When the zoning map is amended, the owners of 20 per cent or more of the privately owned land in the area changed or the owners of 20 per cent or more of the privately owned land within 500 feet of the borders of the area may file a petition with the zoning board objecting to the amendment. § 552.2; 26 Spec.Laws 1235. In that event, the amendment is without effect and the zoning board must refer the matter to the defendant, the board of representatives of the city, along with the zoning board's 'written findings, recommendations and reasons' for the change. Ibid. The board of representatives then acts to approve or reject the amendment. Ibid. The charter states that any decision on the matter by the board of representatives must be by the affirmative vote of a majority of the entire membership of the board. § 556.1; 26 Spec.Laws 1238. The board of representatives is composed of two members elected from each of the twenty voting districts into which the city is divided. § 115; 25 Spec.Laws 417. The legislative power of the city is specifically vested in the board of representatives. § 200; 25 Spec.Laws 418. It should be noted that the charter also provides for a zoning appeals board which has the powers conferred by §§ 8-5 to 8-8 of the General Statutes on zoning boards of appeal, except so far as those sections are inconsistent with specific provisions of the charter. Stamford Charter § 560; 27 Spec.Laws 367. Section 8-8 of the General Statutes provides for an appeal from a zoning board of appeals to the Court of Common Pleas. An appeal can be taken also from the Stamford zoning board to the Court of Common Pleas except where the action of that board has been referred, by reason of the filing of a petition of objection, to the board of representatives. § 556; 26 Spec.Laws 1238; see General Statutes §§ 8-9, 8-10. Furthermore, any person claiming to be aggrieved by the action of the board of representatives may appeal to the Court of Common Pleas. Stamford Charter § 556; 26 Spec.Laws 1238.

Plaintiffs Francis X. Burke and Alfred F. DeCarlo owned adjoining parcels of land on the easterly side of Newfield Street in Stamford. On September 3, 1957, on their application, he planning board amended the master plan of the city by changing the land use category for an area which included their land from R-7 1/2 (one-family residence district) to C-N (neighborhood business district). Stamford Charter, § 522.2; 26 Spec.Laws 1229. On May 7, 1958, the zoning board adopted a like amendment of the zoning map by a three to two vote. On May 12, official notice of this decision was given. Stamford Charter § 555.1; 26 Spec.Laws 1237. On May 22, a petition objecting to the change was filed with the zoning board. On May 27, the zoning board referred the matter to the board of representatives and transmitted the petition of objection, forty-one copies of excerpts from the minutes of the meeting of the zoning board on May 7, forty-one copies of the transcript of the hearing it had held, and a map showing the amendment. The board of representatives committed the matter to a committee composed of ten of its members. Neither the committee nor the board of representatives gave any notices of hearings or held any hearings, although DeCarlo requested them. The board of representatives received letters of objection to the amendment which the plaintiffs had no opportunity to see or refute. On July 7, 1958, the board of representatives rejected the amendment. The plaintiffs appealed from this action to the Court of Common Pleas. That court sustained the appeals, as has been pointed out, and the defendant has appealed from the judgments.

The questions raised by these appeals can be grouped into two categories: (1) Did the board of representatives act arbitrarily and illegally in failing to give notice and to provide a hearing before taking action to reject the amendment? (2) Did the board act arbitrarily and illegally in committing the matter to a committee and thereafter taking action on the recommendation of that committee without complying with the provisions of the charter concerning the presentation and adoption of ordinances and resolutions? See Stamford Charter § 204.1; 26 Spec.Laws k938.

The decision of these appeals turns largely upon the question whether the board of representatives, in passing on the amendment to the zoning map, was acting in a legislative capacity. The charter is silent as to whether the board, in considering an amendment to the zoning map after a petition of objection has been filed, shall give notice of a hearing to the parties concerned, shall hold a hearing at which testimony may be given and statements made in support of, or in opposition to, the amendment, shall keep any record of the proceedings of the board, or shall make a finding. The only specific directions contained in the charter are that the written findings, recommendations and reasons of the zoning board must be before the board of representatives and that the board of representatives shall be guided in its action 'by the same standards as are prescribed for the zoning board in section 550' of the charter. Stamford Charter § 552.2; 26 Spec.Laws 1235. Ordinarily, zoning authorities act in either a legislative or an administrative capacity. Florentine v. Town of Darien, 142 Conn. 415, 431, 115 A.2d 328. In the case cited, we pointed out that the function of creating zones and adopting zoning regulations is essentially the function of a zoning or planning commission. This function is essentially legislative. McCormick v. Stratford Planning & Zoning Commission, 146 Conn. 380, 382, 151 A.2d 347; State ex rel. Bezzini v. Hines, 133 Conn. 592, 597, 53 A.2d 299; Kutcher v. Town Planning Commission, 138 Conn. 705, 709, 88 A.2d 538, and cases cited; Plumb v. Board of Zoning Appeals, 141 Conn. 595, 599, 108 A.2d 899; Service Realty Corporation v. Planning & Zoning Board of Appeals, 141 Conn. 632, 635, 109 A.2d 256; DeMars v. Zoning Commission, 142 Conn. 580, 584, 115 A.2d 653; Finch v. Montanari, 143 Conn. 542, 545, 124 A.2d 214; Wade v. Town Plan & Zoning Commission, 145 Conn. 592, 596, 145 A.2d 597; 8 McQuillin, Municipal Corporations (3d Ed. Rev.) § 25.227.

The manifest legislative intent expressed in the Stamford charter is that the board of representatives, in considering an amendment to the zoning map, shall review the legislative action of the zoning board on that board's written findings, recommendations and reasons. The question before the board of representatives is whether to approve or to reject the amendment. That board, in reviewing the action of the zoning board, is called upon to perform a legislative function. That this is so is fortified by the fact that the charter, in defining the powers of the zoning appeals board, in effect confines that board to the review of orders made by zoning enforcement officers; to the consideration of, and action upon, matters, including special exceptions, upon which the board of appeals is required to pass under the terms of particular zoning law, ordinance or regulation; and to the granting of variances in the application of the zoning ordinance or regulations in a manner to avoid a hardship in a particular case. Stamford Charter § 560; 28 Spec.Laws 367; General Statutes, § 8-6. These are the usual administrative functions entrusted to a zoning board of appeals. Florentine v. Town of Darien, supra, 142 Conn. 425, 115 A.2d 333 and authorities cited; 8 McQillin, op. cit. § 25.228; Metzenbaum, Law of Zoning, p. 699.

If the legislature had intended that the board of representatives should conduct a hearing de novo instead of a simple review of the action of the zoning board, the legislature could have so stated. But it has not expressed such an intent. It has made no specific provisions for notice and hearing by the board of representatives, and we cannot write such provisions into the charter by judicial fiat. Loew v. Falsey, 144 Conn. 67, 72, 127 A.2d 67; Bailey v. Mars, 138 Conn. 593, 598, 87 A.2d 388; Mad River Co. v. Town of Wolcott, 137 Conn. 680, 688, 81 A.2d 119. True, the...