Double I Ltd. Partnership v. Plan and Zoning Com'n of Town of Glastonbury, 13903

Citation218 Conn. 65,588 A.2d 624
Decision Date19 March 1991
Docket NumberNo. 13903,13903
CourtSupreme Court of Connecticut
PartiesDOUBLE I LIMITED PARTNERSHIP, et al. v. PLAN AND ZONING COMMISSION OF the TOWN OF GLASTONBURY, et al.

Kathleen Eldergill, Manchester, for appellants-appellees (plaintiffs).

William S. Rogers, with whom were Arthur S. Wells and, on the brief, Mark V. Connolly, Hartford, for appellee-appellant (named defendant).

Before PETERS, C.J., and CALLAHAN, COVELLO, HULL and BORDEN, JJ.

CALLAHAN, Associate Justice.

The named defendant, the town of Glastonbury plan and zoning commission (commission), granted a special permit to the defendant Whit Osgood authorizing the construction of a single family dwelling on a ten acre rear lot. 1 The plaintiffs, Double I Limited Partnership (Double I) and its two general partners, Bruce S. Beck and Daniel Guachione, own property adjacent to Osgood's rear lot and other property within 100 feet of the lot. They appealed the commission's decision to the Superior Court. The Superior Court rejected the plaintiffs' claims that the commission's approval of the rear lot was improper and that the notice provisions of General Statutes § 8-3c(b) violated the plaintiffs' due process rights, and it therefore dismissed the appeal. We affirm the judgment of the trial court.

The material facts are not in dispute. Pursuant to § 6.8 of the zoning regulations of the town of Glastonbury, 2 Osgood applied to the commission for a special permit that would allow him to build a single family home on a rear lot. The lot is located on the easterly side of a portion of Dayton Road that the town of Glastonbury has designated as an abandoned road. The plaintiffs Beck and Guachione own land abutting the westerly side of this same portion of Dayton Road, while the plaintiff Double I owns land within 100 feet of Osgood's rear lot.

Osgood's application stated that he would construct a twenty foot wide paved driveway over the abandoned road to provide access to the lot. The driveway would extend from his lot to the public portion of Dayton Road, a distance of approximately 750 feet. One portion of the abandoned road that would become part of the driveway travels over approximately fifty feet of land owned by the plaintiffs. The construction of the driveway would affect few other property owners.

The commission approved the application for a special permit at a public hearing held on December 6, 1988. The commission had published notice of the hearing in a local newspaper in full compliance with the provisions of General Statutes § 8-3c(b) and § 14.5 of the Glastonbury zoning regulations, 3 but the plaintiffs did not receive actual notice. 4 The plaintiffs did not attend the hearing, but they appealed the commission's ruling to the Superior Court after the commission published notice of its decision as required by § 8-3c(b).

In their appeal of the commission's decision to grant the special permit, the plaintiffs claimed that: (1) the board's action was arbitrary, illegal, and an abuse of discretion because the proposed dwelling was not within 1000 feet of the public portion of Dayton Road 5 and because Osgood did not own a "fee interest in a right-of-way" providing access to his lot as required by § 6.8.4(e) of the Glastonbury zoning regulations; and (2) the notice provisions of § 8-3c(b), as applied to the plaintiffs, denied them due process of law.

The trial court dismissed the plaintiffs' appeal and also denied the defendants' motions for sanctions against the plaintiffs for alleged bad faith pleading and harassing litigation tactics. The plaintiffs filed a petition for certification to appeal and the defendants filed a petition for certification to cross appeal. The Appellate Court granted both petitions and we transferred the matter to this court pursuant to Practice Book § 4023. On appeal, the plaintiffs raise the same two claims they argued before the trial court, while the named defendant in its cross appeal claims that the trial court improperly denied its motions for sanctions.

I

The plaintiffs' first claim is that the commission erred in granting the special permit because Osgood's application did not satisfy the requirements of § 6.8.4(e) of the Glastonbury zoning regulations. Section 6.8.4(e), which sets forth one of the criteria that must be satisfied before the commission can authorize construction on a rear lot, provides that "[t]he owner(s) of each rear lot or lots shall own the fee interest in a right-of-way at least 20 feet wide; provided, however, that the Commission may, in its discretion, waive the requirement of fee ownership, as long as property over which said right-of-way passes shall have frontage on a Town road in excess of 20 feet over the minimum frontage required in the underlying zone or shall be property to which frontage requirements are not applicable." (Emphasis added.) The plaintiffs contend that the only reasonable interpretation of the phrase, "fee interest in a right-of-way," is one that requires the applicant for a special permit for rear lot construction to have fee simple title, as opposed to a mere easement, to a strip of land at least twenty feet in width that extends from the rear lot to a public road.

General Statutes § 13a-55 6 provides a right-of-way over an abandoned roadway for owners of property abutting the abandoned road. The defendants assert, and the trial court implicitly concluded, that the reference in § 6.8.4(e) to a "fee interest in a right-of-way" is ambiguous and that the commission could reasonably have interpreted the regulation to mean that Osgood's indefeasible statutory right-of-way under § 13a-55 satisfied the requirements of § 6.8.4(e). 7 We agree.

When ruling upon an application for a special permit, a planning and zoning board acts in an administrative capacity. A.P. & W. Holding Corporation v. Planning & Zoning Board, 167 Conn. 182, 184-85, 355 A.2d 91 (1974); Farina v. Zoning Board of Appeals, 157 Conn. 420, 422, 254 A.2d 492 (1969). "Generally, it is the function of a zoning board or commission to decide 'within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The trial court had to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. Pascale v. Board of Zoning Appeals, 150 Conn. 113, 116, 117, 186 A.2d 377 [1962]; Stern v. Board of Zoning Appeals, 140 Conn. 241, 244, 99 A.2d 130 [1953]. In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal. Connecticut Sand & Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442, 190 A.2d 594 [1963].' " Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988).

The ultimate issue is whether the trial court was correct in ruling that the commission's decision to grant the special permit was not arbitrary, illegal or an abuse of its discretion. Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 654, 427 A.2d 1346 (1980); Bogue v. Zoning Board of Appeals, 165 Conn. 749, 752, 345 A.2d 9 (1974). If, in granting the special permit, the commission construed § 6.8.4(e) beyond the fair import of its language, then the commission acted in an arbitrary and illegal manner. Spero v. Zoning Board of Appeals, 217 Conn. 435, 441, 586 A.2d 590 (1991); Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 490-91, 547 A.2d 528 (1988). The rules of statutory construction apply to the interpretation of local regulations. See Schwartz v. Planning & Zoning Commission, supra, 208 Conn. at 153, 543 A.2d 1339. We look first to the language of the regulation to determine the intent of the enacting body. Spero v. Zoning Board of Appeals, supra. If the language of the regulation is ambiguous, the court can look to its purpose as an aid in construing it. Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., 217 Conn. 361, 364, 585 A.2d 1210 (1991); Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 405, 528 A.2d 805 (1987).

As a threshold matter, we note that the commission did not explicitly state its reasons for concluding that § 6.8.4(e) was satisfied. 8 It is well established, however that if the commission fails to state clearly the reasons for its decision, the trial court, and this court on appeal, must search the record to find a basis for the commission's decision. Parks v. Planning & Zoning Commission, 178 Conn. 657, 661-62, 425 A.2d 100 (1979); A.P. & W. Holding Corporation v. Planning & Zoning Board, supra, 167 Conn. at 186-87, 355 A.2d 91. During the hearing, the defendant Osgood referred to his rights to access his property and improve the right-of-way under the abandoned road statute, § 13a-55, and we conclude that those rights provide an adequate basis for the commission's action.

Section 13a-55 provides in pertinent part that "[p]roperty owners bounding a discontinued or abandoned highway ... shall have a right-of-way over such discontinued or abandoned highway to the nearest or most accessible highway...." In Luf v. Southbury, 188 Conn. 336, 344, 449 A.2d 1001 (1982), we stated that under § 13a-55 owners of property abutting an abandoned road have an easement of access over the abandoned road to the public highway and also have the right to improve the existing roadbed. 9 We also noted that owners of land abutting a highway, including both abandoned and public highways, have a fee interest in the land under the road to the midpoint of the highway. Id., at 341-45, 449 A.2d 1001. The plaintiffs claim that § 13a-55 does not provide an adequate basis for the commission's decision because the language of § 6.8.4(e) unambiguously...

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