Dana-Robin Corp. v. Common Council of City of Danbury

• Decision Date: 26 March 1974
• Docket Number: DANA-ROBIN
• Citation: 166 Conn. 207,348 A.2d 560
• Court: Connecticut Supreme Court
• Parties: CORPORATION v. COMMON COUNCIL OF the CITY OF DANBURY et al.

Page 560

348 A.2d 560

166 Conn. 207

DANA-ROBIN CORPORATION v. COMMON COUNCIL OF the CITY OF DANBURY et al.

Supreme Court of Connecticut.

March 26, 1974.

W. Bradley Morehouse, Bridgeport, for appellant (plaintiff).

Robert N. Talarico, Danbury, for appelles (defendants).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

MacDONALD, Associate Justice.

The plaintiff, Dana-Robin Corporation, appealed to the Court of Common Pleas from the action of the defendant the common council of the city of Danbury in denying its petitions for zone changes and design approval. From the judgment dismissing the appeal, and after our grant of certification, the plaintiff has appealed to this court. The plaintiff's assignments of error, consisting primarily of challenges to the finding and conclusions of the court and its overruling of the plaintiff's claims of law, are directed for the most part at claimed procedural irregularities at both the planning commission and common council levels. The plaintiff maintains that an adverse report of the planning commission on its proposed apartment complex was improper and illegal due to the participation therein of members who should have been disqualified because of conflict of interest, dual office holding, and the unlawful participation of a new member. It further maintains that the actions of the common council in refusing to replace two members who had disqualified themselves and in allowing the mayor of the city to moderate a meeting of the council tainted its decision to such an extent as to render it invalid.

The record and the finding, which is not subject to material correction, ¹ reveal the following general facts: In 1970, the plaintiff owned a fifty-five-acre tract of land zoned for single-family residences located 'approximately two to four miles' from the Western Connecticut State College campus in Danbury, Connecticut. After preliminary discussions with Danbury officials and the planning commission, the plaintiff developed a plan for the construction of a 963-unit housing project on this land, consisting of four ten-story towers and terrace apartments, together with recreational and commercial facilities. The development, to be called St. George Terrace, was designed to appeal to relatively high and middle income residents, rather than to college students.

On April 1, 1970, the plaintiff submitted three petitions to the common council, which also serves as the Danbury zoning commission. General Statutes § 8-1. The first sought an amendment to the zoning regulations to establish a new residential classification designated PA-40, which would permit high-density multiple housing. The second sought to have fifty of the fifty-five acres zoned PA-40 and the remaining five acres zoned commercial. The third petition requested specific approval to erect St. George Terrace on the plaintiff's property.

As required by General Statutes § 8-3a, the common council referred the petitions to the planning commission for an advisory report. On June 17, 1970, the planning commission voted to disapprove the petitions. Upon disapproval of a zoning proposal by the planning commission, a two-thirds vote of all the members of the common council is required to adopt the proposal. General Statutes § 8-3a; Hahn v. Zoning Commission, 162 Conn. 210, 293 A.2d 9. Absent a planning commission disapproval, a simple majority vote would be sufficient for adoption. After the planning commission's action, the common council appointed a five-man committee to hold a public hearing on the petitions as permitted by General Statutes § 8-3. This hearing was held on July 13, 1970, and the committee voted four to one for approval. On September 1, 1970, the common council met to act on the petitions. Of the twenty-one members of the council, twenty were present but two disqualified themselves, and the vote was ten to eight in favor of the petitions. The moderator ruled that because two-thirds of the council's membership failed to vote in favor of the proposals, they had not been approved. On appeal to the Court of Common Pleas, the council's action was sustained.

The plaintiff first contends that the vote of disapproval by the planning commission was invalid because two of its members should have disqualified themselves because of a conflict of interest, as required by General Statutes § 8-21; that because of the invalidity of the planning commission's adverse report, only a simple majority vote of the common council was required for approval of its three petitions, and that since a majority vote was obtained by the plaintiff at the meeting on September 1, 1970, the petitions were actually approved.

One of the challenged members of the planning commission, Vincent DeFlumeri, and his mother and sister were the sole stockholders of two real estate corporations which owned and rented residential properties in Danbury. One of those corporations, Ridge Realty Corporation, owned Beaver Brook Hall, an off-campus dormitory for students who could not obtain rooms on campus. Beaver Brook Hall was located about seven-tenths of a mile from the campus. It contained forty rooms and could house eighty-one students. In 1970, however, Beaver Brook Hall was not fully occupied.

The court found that only a few of the students at Western Connecticut State College have automobiles and that only alternative housing located near the campus would make it difficult to keep Beaver Brook Hall fully occupied. As previously noted, the plaintiff's property was found to be two to four miles away from the campus, and the project was found to be designed to appeal to relatively high and middle income residents and not to college students. The court also found that neither the plaintiff nor its expert witnesses ever indicated to either the planning commission or the common council that St. George Terrace would be occupied by or was planned for use by students. While some of these findings were challenged, the evidence printed in the defendant's appendix adequately supports them. The court concluded that DeFlumeri's financial interest in Beaver Brook Hall 'did not disqualify him from sitting as a member of the Planning Commission since . . . (his) interests were too remote or speculative financially . . . (and not) such as to create a personal bias or prejudice.'

General Statutes § 8-21 provides, in relevant part: 'No member of any planning commission shall participate in the hearing or decision of the commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense.' 'An 'interest' has been defined as having a share or concern in some project or affair, as being involved, as liable to be affected or prejudiced, as having self-interest, and as being the opposite of disinterest.' Housing Authority v. Dorsey, 164 Conn. 247, 252, 320 A.2d 820.

Public office is a trust conferred by public authority for a public purpose. The status of each member of the planning commission forbids him from placing himself in a position where private interests might conflict with his public duty. It is the policy of the law to keep the official so far from temptation as to ensure his unselfish devotion to the public interest. The question becomes one of public policy. The modification of zoning regulations must command the highest public confidence, since zoning restrictions limit a person's free use of his real estate for the public good. We repeatedly have held that anything which tends to weaken public confidence is against public policy. Kovalik v. Planning & Zoning Commission, 155 Conn. 497, 498, 234 A.2d 838; Daly v. Town Plan & Zoning Commission,150 Conn. 495, 499-500, 191 A.2d 250; Mills v. Town Plan & Zoning Commission, 144 Conn. 493, 498, 499, 134 A.2d 250; Low v. Madison, 135 Conn. 1, 8, 60 A.2d 774. The test is not whether personal interest does conflict, but whether it reasonably might conflict. Josephson v. Planning Board, 151 Conn. 489, 493-495, 199 A.2d 690. If a zoning authority member fails to disqualify himself despite a conflict of interest, the action of the authority in which he participates is invalid. Kovalik v. Planning & Zoning Commission, supra, 155 Conn. 499, 234 A.2d 838.

We also have pointed out, however, that '(t)he decision as to whether a particular interest is sufficient to disqualify is necessarily a factual one and depends on the circumstances of the particular case.' Anderson v. Zoning Commission, 157 Conn. 285, 291, 253 A.2d 16, 20. In subjecting those circumstances to careful scrutiny, courts must exercise a degree of caution. 'Local governments would . . . be seriously handicapped if any conceivable interest, no matter how remote and speculative, would require the disqualification of a zoning official.' Anderson v. Zoning Commission, supra. Here, the trial court heard the evidence presented and made the 'factual' conclusion that DeFlumeri's interest was too 'speculative' to require a disqualification. Since the findings relevant to that determination are supported by the evidence and in themselves amply support this conclusion, we see no reason to interfere with it.

The plaintiff also assigned error in the court's refusal to admit a housing preference survey taken of forty-four Beaver Brook Hall residents, comparing Beaver Brook Hall with the proposed St. George Terrace. The survey was carried out by a resident of Beaver Brook Hall who was a freshman student at Western Connecticut State College. The survey was offered on the issue of possible competition between Beaver Brook Hall and St. George Terrace. While the survey 'appears relevant for the purpose for which it was offered, inquiry on these lines must of necessity be subject to logical limitation and it rests in the sound discretion of the trial court to determine when matter, although probative, by reason of remoteness, cumulative nature, or other cause so lacks...