Dooley v. Town Plan and Zoning Commission of Town of Fairfield

• Citation: 154 Conn. 470,226 A.2d 509
• Court: Supreme Court of Connecticut
• Decision Date: 25 January 1967
• Parties: Edward W. DOOLEY v. TOWN PLAN AND ZONING COMMISSION OF the TOWN OF FAIRFIELD et al.

Page 509

226 A.2d 509

154 Conn. 470

Edward W. DOOLEY v. TOWN PLAN AND ZONING COMMISSION OF the TOWN OF FAIRFIELD et al.

Supreme Court of Connecticut.

Jan. 25, 1967.

Howard A. Sackett, Fairfield, for appellant-appellee (plaintiff).

John J. Darcy, Fairfield, for appellee-appellant (named defendant).

W. Bradley Morehouse, Bridgeport, for appellee-appellant (defendant Tarinelli).

Before KING, C.J., and ALCORN, HOUSE, COTTER and RYAN, JJ.

COTTER, Associate Justice.

The plaintiff, the owner of property in a residence zone immediately adjacent to the land in question, appealed to the Court of Common Pleas from the action of the defendant town plan and zoning commission, which, on the application of the defendant Donald Tarinelli, changed the zone of Tarinelli's property from a residence B district to a designed residence district No. 1, hereinafter sometimes referred to as DRD-1. The plaintiff and the defendants have both appealed from the judgment of the Court of Common Pleas sustaining the commission's action.

The property covered by the change of zone consists of approximately 12.34 acres in Southport in the town of Fairfield. It has a frontage, on the north, of 1040 feet more or less on Mill Hill Terrace and drops downhill in a southerly direction to Kings Highway West, which bounds it on the south for a distance of approximately 155 feet.

The defendant's appeal challenges the court's finding that the plaintiff is aggrieved. Since, for reasons hereinafter pointed out, the commission's decision was correct, it is unnecessary to consider the plaintiff's standing to attack it.

The gravamen of the plaintiff's claim in this court is that the action of the commission was violative of the comprehensive plan, constituted spot zoning, and was illegal, arbitrary and in abuse of the discretion vested in it. Pursuant to the town charter and, presumably acting under General Statutes § 8-23 as a planning commission, the plan and zoning commission in 1961 adopted what it termed a comprehensive plan 'to serve as a guide to the future growth, improvement, and development of the Town of Fairfield.' It also recognized at the time 'the necessity for regularly reviewing, updating and revising' such a plan 'in the changing conditions and unforeseen needs' of the town. There is a difference in the functions of a zoning commission and the functions of a planning commission even though, as in Fairfield, these functions may be exercised by a single commission as provided for under General Statutes § 8-4a. See Ferndale Dairy, Inc. v. Zoning Commission, 148 Conn. 172, 176, 169 A.2d 268. 'Its duties in each category are separate yet related.' Purtill v. Town Plan & Zoning Commission, 146 Conn. 570, 571, 153 A.2d 441, 443. The 1961 plan of development is properly called a master plan. Mott's Realty Corporation v. Town Plan & Zoning Commission, 152 Conn. 535, 538, 209 A.2d 179.

Under the general law, the master plan does not control the zoning commission in its enactment of zoning regulations. The master plan, in its designation of appropriate uses for various areas in a town, is merely advisory. Faubel v. Zoning Commission, 154 Conn. 202, 207, 224 A.2d 538. 'In the last analysis, therefore, the comprehensive plan in accordance with which zoning regulations are to be adopted is such a plan as the zoning commission devises.' Levinsky v. Zoning Commission, 144 Conn. 117, 123, 127 A.2d 822, 826. In the original plan of development of 1961, the planning commission recommended that the land in question be placed in the zone category of 'designed light industrial.' At the time of the hearing, however, this land was classified in a residence B zone.

Zoning regulations for Fairfield were first adopted in 1925 and have, since then, from time to time, been amended or revised. These regulations were formulated in accordance with a comprehensive plan which was in existence when the master plan of land use was adopted in 1961. The comprehensive plan is to be found in the zoning regulations themselves, which are primarily concerned with the use of property. Lebanon v. Woods, 153 Conn. 182, 188, 215 A.2d 112; see General Statutes § 8-2. Such a plan has been described as one which requires the zoning commission to shoulder the burden of 'adopting the ordinance or amendment only after study and consideration of all the elements involved.' 1 Rathkopf, Law of Zoning and Planning, p. 9-1. The commission, in exercising its power to adopt zoning regulations, acts as a legislative body. Hills v. Zoning Commission, 139 Conn. 603, 608, 96 A.2d 212.

A residence B district, in which the property in question was zoned at the time of the public hearing, permits the construction of one-family houses on lots having a minimum area of 600 square feet or the construction of two-family houses on lots having a minimum area of 9000 square feet. A designed residence district No. 1 zone permits the construction of so-called garden apartments, or row houses, in addition to the uses allowed in the former zone. Actually, the commission had already granted approval for a subdivision of the property comprising forty-four lots for two-family houses. This approval was preliminary and would have become final only on the developer's satisfying a number of conditions customarily attached to preliminary approvals.

The commission conducted a full public hearing, at which large number or exhibits, including maps and 117 color transparencies or photographs, wer eintroduced. From these the commission had before it evidence that the property consisted of 12.34 acres of hilly, rocky, heavily wooded and undeveloped land, and that many of the houses in the surrounding area were 'modest bungalow type single and two-family houses.' The commission also had before it a statement of a realtor that a change to a DRD-1 zone would permit the property to be developed in a more desirable manner from the standpoint of construction economics and design since the high cost of site work required to clear trees and ledge would be less and there would be opportunities 'to cluster the proposed town houses or garden apartments in carefully designed units.' The plaintiff describes the property in question as a classic example of 'marginal land' left behind during a long period of one-family residential development. The evidence also shows that the property is in close proximity to the Boston Post Road and the Connecticut Turnpike. Both the eastbound and westbound exits and entrances of the Connecticut Turnpike are within a short distance of the property, which lies approximately three-quarters of a mile from the Westfair Shopping Center, on the Post Road to the west, and half a mile from the Southport Village Shopping Center, south of the Post Road. To the south of the parcel, on Kings Highway West and the Post Road, is a combination of business and industrial uses. An automobile body shop, for...