Campion v. Board of Aldermen

• Decision Date: 09 November 2004
• Docket Number: (AC 24360).
• Citation: 85 Conn. App. 820,859 A.2d 586
• Court: Connecticut Court of Appeals
• Parties: SUSAN C. CAMPION ET AL. v. BOARD OF ALDERMEN OF THE CITY OF NEW HAVEN ET AL.

85 Conn. App. 820

859 A.2d 586

SUSAN C. CAMPION ET AL. v. BOARD OF ALDERMEN OF THE CITY OF NEW HAVEN ET AL.

(AC 24360).

Appellate Court of Connecticut.

Argued March 30, 2004.

Officially released November 9, 2004.

Lavery, C. J., and Schaller and Peters, Js.

John M. Gesmonde, for the appellants (plaintiffs).

Barbara M. Schellenberg, with whom were Frank S. Marcucci and, on the brief, Austin K. Wolf, for the appellee (defendant Anthony DelMonaco Family Limited Partnership et al.).

Philip R. Pastore III, deputy corporation counsel, for the appellee (named defendant et al.).

Opinion

LAVERY, C. J.

The plaintiffs¹ appeal from the judgment of the trial court dismissing their appeal from the decision by the defendant board of aldermen of the city of New Haven² to approve an application for a planned development district.³ The dispositive issue in this appeal is whether any enabling authority exists for § 65 of the New Haven zoning ordinance, which provides for the creation of the planned development district approved by the board of aldermen.⁴ We conclude that there is no such enabling authority and, accordingly, reverse the judgment of the trial court.

A detailed recitation of the facts and procedural history is necessary for our resolution of the plaintiffs' appeal. The defendants Antonio DelMonaco and Anna DelMonaco owned approximately 1.727 acres in New Haven, designated as 208 Cove Street.⁵ At that site, they operated a catering facility known as Anthony's Oceanview, Inc., as a preexisting nonconforming use. Over the course of several years, the defendant Anthony DelMonaco Family Limited Partnership (partnership) purchased several abutting properties. Those abutting properties, located at 30 and 36-50 Morris Cove Road, and 1, 5 and 7 Bristol Place, totaled approximately 2.35 acres.

In an application dated April 16, 2001, the partnership requested the creation of a planned development district that would consolidate all six parcels. The size of the planned development district would be 4.04 acres and would be carved out of the surrounding RS-2 zoning district.⁶ In the application, the partnership proposed a two phase plan for the implementation of the planned development district. During the first phase, certain structures, including the Cove Manor Convalescent Nursing Home (convalescent home), a preexisting, non-conforming use, and three residential structures would be demolished. Furthermore, enlargements and renovations to the catering facility would be completed, including the construction of a new parking facility and a garden reception area. During the second phase, a new residence would be constructed for the DelMonaco family.

The decision to apply for the planned development district originated from a prior request filed by the partnership for a special exception for permission to expand parking at the catering facility by using the convalescent home parking lot. During that time, the New Haven zoning board of appeals found that the convalescent home had not been abandoned and denied the special exception application. The partnership appealed the matter to the Superior Court. By way of a stipulation dated December 15, 2000, the partnership and the zoning board of appeals reached an agreement. The stipulation granted the catering business permission to use the convalescent home's parking lot on a temporary basis and required the partnership to apply for the creation of a planned development district. The proposed planned development district, if approved, would result in the creation of a new zoning district and an amendment to the zoning map.

The New Haven city plan commission (commission)⁷ held public hearings on the partnership's application on June 13 and July 25, 2001. The plans for the planned development district, as submitted by the partnership, included a structure to enclose the garden at the catering facility and the reconfiguration of the existing parking lot. The capacity of the catering facility would be increased from 299 persons to 470 persons with the addition of a garden pavilion. Additionally, nearly 100 new parking spaces would be created.

On September 19, 2001, the commission approved the application and imposed certain conditions, including a limitation of the size of the new building, the number of parking spaces, the hours of operation and project phasing. The commission forwarded its report and approval to the board of aldermen.⁸ On February 19, 2002, the board of aldermen substantially amended the conditions of approval for the planned development district. Specifically, the board of aldermen made the following amendments: (1) no change to the size of the catering facility was permitted at that time; (2) the number of parking spaces was limited to 199; (3) the maximum occupancy was limited to 299 persons; (4) separate functions in the garden area were prohibited; (5) the 0.67 acres for the DelMonaco family residence was excluded from the planned development district; (6) the permitted hours of operation were established; (7) a five year moratorium was placed on expansion, improvement or modification within the district; and (8) the board of aldermen reserved the right to extend and to review the five year moratorium.

The plaintiffs appealed from the board of aldermen's decision to the Superior Court, which dismissed the appeal. The court first determined that the board of aldermen had acted in a legislative capacity because the approval of the district created a new zone.⁹ The court then rejected the plaintiffs' claims that the approval of the district violated the provisions of the special act by which the city of New Haven exercises its zoning powers. Specifically, the plaintiffs had argued that § 65 of the zoning ordinance delegated powers to the board of aldermen and to the New Haven zoning board of appeals in a manner not authorized by the 1925 special act that amended the 1921 legislation granting zoning authority to the city of New Haven. The court noted that a planned development district is neither a variance nor a special exception and, therefore, not a matter for the New Haven zoning board of appeals.¹⁰ The court concluded that § 5 of No. 490 of the 1925 Special Acts; 19 Spec. Acts 1006, No. 490 (1925) (Spec. Acts No. 490); authorized the board of aldermen, on a favorable recommendation by the commission, to change or to alter the zoning districts. The court observed that the commission favorably recommended the planned development district and that the board of aldermen had examined the commission's report critically, requiring substantial amendments to it before final approval. Thus, the court found that the creation of the planned development district did not violate the terms of the 1925 special act.

The court also rejected the plaintiffs' claims that the approval of the planned development district violated the uniformity requirement found in § 1 of the 1925 special act or that the approval constituted spot zoning. Specifically, the court noted that the 1925 special act's uniformity requirement requires only intradistrict uniformity, not uniformity with neighboring districts and that the approval resulted in a new zoning district, designated as a planned development district. The court denied the spot zoning claim on the grounds that the new planned development district eliminated the convalescent home, a nonconforming use, and was in accordance with the city's comprehensive plan.

The court also did not accept the plaintiffs' claim that § 65 of the zoning ordinance was vague and therefore illegal. The court noted that specific standards are required for the approval of a new planned development district, including a traffic analysis, the submission of a general plan, various public hearings and the submission of a detailed plan. Last, the court determined that substantial evidence supported the board of aldermen's decision. Subsequent to the court's dismissal of their appeal, the plaintiffs appealed to this court. Additional facts will be set forth as necessary.

I

At the outset, a review of the history of the zoning powers unique to the city of New Haven provides necessary background for our discussion. "Municipalities in Connecticut may exercise zoning power either by adopting the provisions of chapter 124 of the General Statutes, §§ 8-1 through 8-13a, or by enacting a municipal charter authorized by a special act of the legislature." Smith v. Zoning Board of Appeals, 227 Conn. 71, 81 n.7, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S. Ct. 1190, 127 L. Ed. 2d 540 (1994); see also T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) pp. 39-41. "The power to adopt and administer zoning regulations was conferred by the General Assembly for the first time in this state in 1921 by special act applicable only to the city of New Haven. 18 Spec. Laws 1045.. . . In spite of this early legislation bestowing broad zoning powers upon municipalities, many cities and towns have sought and obtained zoning powers by special enactments of the General Assembly applicable only to them. Consequently, two bodies of legislation pertaining to zoning have developed over the years: the one, contained in the General Statutes; the other, conferred by special act and relevant only to the particular city or town in whose behalf the legislation was adopted. These two bodies of statute law differ in many respects, including the right to, and the procedure for, an appeal to the courts from a decision of a local zoning agency." (Citations omitted.) Sullivan v. Town Council, 143 Conn. 280, 282-83, 121 A.2d 630 (1956).

In 1925, the General Assembly amended the 1921 special act applicable to the city of New Haven. See Spec. Acts No. 490. That act has not been amended by the General Assembly and presently remains as the operative legislation.¹¹ Section 1 of the 1925 special act authorizes the board of aldermen to divide the city into various zoning districts....