Country Lands, Inc. v. Swinnerton
| Decision Date | 18 July 1963 |
| Court | Connecticut Supreme Court |
| Parties | COUNTRY LANDS, INC., et al. v. Arthur SWINNERTON, Zoning Enforcement Officer of the City of Stamford. Supreme Court of Errors of Connecticut |
Isadore M. Mackler, Stamford, with whom, on the brief, were Theodore Godlin and Gerald K. Kolinsky, Stamford, for appellant (defendant).
Sidney Vogel, Norwalk, with whom was Gordon R. Paterson, Stamford, for appellees (plaintiffs).
Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.
The plaintiffs, County Lands, Inc., and Sawmill-Wildwood Lands, Inc., brought this action in the Superior Court for a declaratory judgment and an injunction against Arthur Swinnerton, zoning enforcement officer of the city of Stamford.
The allegations of the complaint, which contains seven counts, can be stated in brief as follows: The plaintiff corporations were organized to develop real estate for residential use. On June 5, 1957, the defendant, acting pursuant to § 5(C)(2) of the Stamford zoning regulations, granted Country Lands, Inc., a permit to create, by the excavation and removal of earth materials, three ponds on its lands, which bordered the Mianus River in Stamford. The earth materials were to be used, in part, for the plaintiffs' development operations. The pertinent portion of § 5(C)(2) provides: 'Excavations and the removal of excavated materials shall be permitted in any zone * * * where they are clearly incidental to the improvement of property.' On May 6, 1960, Country Lands, after securing the approval of the flood control and planning boards, applied to the defendant, pursuant to § 5(C)(2), for a permit to excavate and remove earth materials to create a lake on the same site. On June 9, the defendant refused the permit. He stated as his reasons that the operation was of such a magnitude that it appeared to be more of a commercial gravel operation than one 'clearly incidental' to the improvement of property and that many complaints had been made by people in the vicinity. He threatened arrest under General Statutes § 8-12 if there should be any excavating or removing of materials after August 5, 1960. In reliance on the permit granted in 1957, Country Lands had contracted for the creation of the three ponds. These contracts contained time limitations and depended on the contractor's ability to dispose of the excavated materials. The plaintiffs would suffer irreparable injury if the work were to be stopped and the threats of arrest carried out. Country Lands would face continuous harassment by the threatened arrest of its officers and contractors if it were to test, by due course of law, the validity of the defendant's threats and orders. It had no adequate remedy at law.
On these allegations, the plaintiffs claimed in the first, third and fourth counts that § 5(C)(2) of the zoning regulations, as construed and administered by the defendant, violated constitutional guarantees; in the second and sixth counts, that the regulation was invalid because it had not been enacted legally; and in the fifth count, that the defendant's refusal to exercise his discretion was erroneous and improper because the proposed excavation was incidental to property improvement. In the seventh count, the plaintiffs incorporated certain allegations of the other counts and added the allegation that there was a bona fide and substantial question in dispute which required settlement between the parties, an essential allegation to its claim for a declaratory judgment. Practice Book § 277(b). The trial court found the issues for the defendant on all counts but the fifth. On this count, the court rendered judgment for the plaintiffs and ordered the defendant to issue the permit for which the plaintiffs had applied. The defendant has appealed. The plaintiffs filed a cross appeal, but they have not pursued it, and we consider it abandoned. Dempsey v. Tynan, 143 Conn. 202, 205, 120 A.2d 700.
The defendant makes two basic claims of error as to the judgment on the fifth count: (1) The failure of the plaintiffs to exhaust the administrative remedy provided by General Statutes § 8-6(1) precluded them from seeking, as they did in the fifth count, a judicial review of the defendant's denial of their application. (2) Exclusive jurisdiction for a judicial review of the defendant's action was vested in the Court of Common Pleas. The trial court made no finding, and none was necessary because the record is adequate to furnish the basis for a review of the errors claimed. Practice Book § 385; Gault v. Bacon, 142 Conn. 200, 201, 113 A.2d 145; Maltbie, Conn.App.Proc., p. 155; see Dochelli v. Dochelli, 125 Conn. 465, 466 n., 3 A.2d 666. The judgment finding the issues for the defendant on all counts but the fifth raises a question as to how the court viewed the case. It found the issues for the defendant on the seventh count, the only one containing the allegations essential to an action for a declaratory judgment. Because of this finding by the court on the seventh count, the claim for a declaratory judgment is removed from further consideration on this appeal. The finding is tantamount to a conclusion that the plaintiffs failed to establish a right to a declaratory judgment. Holt v. Wissinger, 145 Conn. 106, 113, 139 A.2d 353. The fifth count, on which the judgment for the plaintiffs rests, raises only the issue whether the defendant could properly refuse the permit.
The court, in its memorandum of decision, stated in effect that the fifth count called for the court to exercise its equity powers by enjoining the enforcement of the defendant's order and cited as authority Smith v. F. W. Woolworth Co., 142 Conn. 88, 93, 111 A.2d 552. That case is inapposite. There, a lack of due notice had vitiated the legality of the requisite public hearing, and consequently the zoning authority lacked the jurisdiction to take the action which the plaintiff was challenging. Here, the plaintiffs make no such claim of jurisdictional invalidity. They are, in effect, seeking a review of the defendant's action. It appears from the complaint that they chose the present procedure in lieu of 'testing by due course of law [that is, by an appeal] the validity of the defendant's threats and orders.'
The Stamford city charter provides for a zoning appeals board which has the powers conferred by General Statutes §§ 8-5 to 8-13, inclusive, on zoning boards of appeal. Stamford Charter § 560; 28 Spec.Laws, p. 367; Burke v. Board of Representatives, 148 Conn. 33, 36, 166 A.2d 849. Under § 8-6(1) of the General Statutes, the board is vested with the power to 'hear and decide appeals where it is...
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United Oil Co. v. Urban Redevelopment Commission of City of Stamford
...is 'tantamount to a conclusion that the plaintiffs failed to establish a right to a declaratory judgment.' Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 31, 193 A.2d 483, 485; Holt v. Wissinger, supra, 145 Conn. 113, 139 A.2d 353. It is apparent from the memorandum of decision, however, ......
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Cummings v. Tripp, 12947
...157 Conn. 548, 553-54, 254 A.2d 898 (1969), a case also cited in Reynolds, we quoted the following from Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 33, 193 A.2d 483 (1963): "We have frequently held that when a party has a statutory right of appeal from the decision of an administrative......
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Bauer v. Waste Management of Connecticut, Inc.
...he may not instead bring an independent action to test the very issue which the appeal was designed to test. Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 33, 193 A.2d 483 (1963)." Powers v. Ulichny, 185 Conn. 145, 147, 440 A.2d 885 (1981). Waste Management would have us extend this prin......
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Murphy v. New Milford Zoning Com'n
...administrative relief and to give the reviewing court the benefit of the local board's judgment. Country Lands, Inc. v. Swinnerton, 151 Conn. 27, 33-34, 193 A.2d 483, 486 (1963) (citations omitted). Until this variance and appeals process is exhausted and a final, definitive decision from l......