First Hartford Realty Corp. v. Plan and Zoning Commission of Town of Bloomfield

• Decision Date: 14 December 1973
• Citation: 165 Conn. 533,338 A.2d 490
• Court: Connecticut Supreme Court
• Parties: FIRST HARTFORD REALTY CORPORATION v. PLAN AND ZONING COMMISSION OF the TOWN OF BLOOMFIELD.

Page 490

338 A.2d 490

165 Conn. 533

FIRST HARTFORD REALTY CORPORATION v. PLAN AND ZONING COMMISSION OF the TOWN OF BLOOMFIELD.

Supreme Court of Connecticut.

Dec. 14, 1973.

S. Frank D'Ercole, Hartford, for appellant (defendant).

Milton Sorokin, Hartford, with whom was Alexander A. Goldfarb, Hartford, for appellee (plaintiff).

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

BOGDANSKI, Associate Justice.

The defendant, the plan and zoning commission of the town of Bloomfield, acting on its own motion, changed the zone classification of a forty-acre parcel of land owned by the plaintiff, First Hartford Realty Corporation, from business B-2 to residence R-15. From this action First Hartford appealed to the Court of Common Pleas, which sustained the appeal. From the judgment rendered thereon, the commission has appealed to this court and Frist Hartford has filed a cross appeal.

The commission, in its appeal, and First Hartford, in its cross appeal, have assigned error in the refusal by the court to find certain material facts claimed to be admitted or undisputed, and in the finding of various facts without evidence. Since they have not been briefed, all but two of these assignments are treated as abandoned. State v. Grayton, 163 Conn. 104, 109, 302 A.2d 246; Maltbie, Conn.App.Proc. § 327. In the view that we take of this case, the two assignments of error which have been briefed are not material and we need not consider them. Practice Book § 628(c); Branford Sewer Authority v. Williams, 159 Conn. 421, 425, 270 A.2d 546. The remaining assignments of error challenge the conclusions reached by the court and its rulings on claims of law.

This appeal concerns a forty-acre tract of land located at the southwest corner of Wintonbury Avenue and Blue Hills Avenue in the town of Bloomfield. On June 14, 1956, the commission approved the application of a prior owner for a change of zone of this property from R-15 residential to B-2 business in order to permit the development of a shopping center. Ownership of the property has changed twice since the zone change, and since 1961 the tract has been owned by First Hartford, which purchased it for $428,000. The projected shopping center, however, has never been built.

In January, 1965, the commission adopted a new plan of development for the town of Bloomfield. This plan, the subject of a public hearing on October 1, 1964, depicted the plaintiff's forty-acre tract as residential. The explanation given for this classification was that the new map was designed to reflect the actual use and not the official zoning status of the land, and depicted this land as residential because there was then no commercial structure on it. It was further explained that the plan of development did not contain updated commercial development policies for land such as First Hartford's and that the plan would be amended by a commercial study soon to be completed.

The expected commercial study was published in July, 1965. It concluded that land zoned for commercial use in Bloomfield was greatly in excess of need and recommended that First Hartford's forty-acre tract be rezoned to residential. The commercial study was never formally incorporated into the plan of development.

On November 18, 1965, the commission held a public hearing to consider some of the recommendations of the commercial study, including the rezoning of property of First Hartford. First Hartford filed a written protest and offered testimony and evidence in opposition to the change. At the hearing the attorney for First Hartford told the commission that its property was subject to a flood plain easement, a concededly erroneous statement. Because of this representation the commission sought and obtained additional information after the hearing regarding the existence of a flood plain easement. The commission also relied on a letter from the town assessor already in tis files concerning the valuation of the parcel if zoned R-15. This letter had not been introduced at the public hearing.

On February 10, 1966, the commission changed the zoning classification of the land from B-2 business to R-15 residential for the following assigned reasons: '(1) the original zone change was adopted as the result of a specific petition for a shopping center in 1956; since nine years have gone by since the zone change, the very condition for which the zone change was granted has changed. (2) The Commission now for the first time has a comprehensive Commercial Study, completed in the summer of 1965, designating the amount of land needed in commercial zoning in Bloomfield. This study recommends that this parcel of land be rezoned to a residential use. (3) There is now a church directly across the street from this location which did not exist in 1965. Immediately adjacent to this location is a school, the Wintonbury Elementary School, which did not exist. A convalescent home is being constructed in the area. In addition to Christ the King Church, two additional churches, one a synagogue, have been located in this area. These are major changes in land usage within the area. (4) Sewers were not available at the time of the original zone change. Metropolitan district sewers are now available for residential uses. (5) A major factor which was a strong part of the Commission's decision was the concern for the public safety due to increased traffic and the problems that are the outgrow (sic) of this traffic on Blue Hills Avenue and on both Wintonbury Avenues. (6) A major shopping center located at this point is in direct conflict with the Regional Plan. Since 1956 the Wilson Shopping Center has been constructed and Bloomfield center has been enlarged. (7) The contour of this particular land under discussion is very nicely laid out for a subdivision. The Commission finds that there are no flowage easements covering this property and it is suitable for R-15 development. (8) This decision is in conformity with the Comprehensive Plan of the Town.'

From this action First Hartford appealed to the Court of Common Pleas, which took additional evidence to supplement the record. The plaintiff was permitted to introduce evidence bearing on the issue of confiscation, the value of the land if zoned residential, and the danger of flooding, the level of the water table, drainage problems and soil conditions. First Hartford also challenged the action of the commission on the ground that it was improperly based upon the post-hearing evidence which First Hartford had not had the opportunity to rebut.

The court also heard evidence on the claim raised by the commission that the confiscation issue had been abandoned by stipulation of the parties. The court found the following facts: The original complaint, dated February 24, 1966, did include an allegation of confiscation. In March, 1966, the commission filed a 'Motion to Erase for Want of Jurisdiction of the Subject Matter' alleging that the plaintiff had failed to sign the writ of summons. The parties thereafter entered into a stipulation on May 6, 1966, in which, the court found, the parties 'agreed to waive all technical, procedural and other defects not germane to the issue of whether or not the Bloomfield Town Plan and Zoning Commission had sufficient grounds to effect a change of zone from Commercial to Residential.' At the same time, with the consent of the commission, First Hartford filed a 'Motion for a Substituted Complaint' and on May 9, 1966, amended its complaint, deleting, inter alia, the allegation of confiscation. Five years later, however, First Hartford again amended its complaint and reinserted the allegation of confiscation.

The trial court concluded that the reception and use by the commission of the post-hearing evidence was illegal, but found that this illegality had been waived at trial by counsel for First Hartford; that the stipulation of May 6, 1966, had been 'entered into for the purpose of obtaining a waiver of the defendant's claim of a jurisdictional defect in return and as consideration for deletion by the plaintiff of certain allegations from the complaint, including that of confiscation'; and that the zone change 'was not confiscatory in that it did not deprive the plaintiff of the use of its property for any reasonable purpose.' But the court nonetheless concluded that the rezoning 'was not a reasonable regulation under the police power,' was not justified by 'any new or changed conditions,' 'was arbitrary, illegal and in abuse of its discretion,' 'was not in accord with the comprehensive plan' and had 'no reasonable basis in the record.'

In this court the commission contends that the trial court erred in concluding that the zone change could not be sustained on the record before it and that the reception of post-hearing evidence was illegal. In the cross appeal, First Hartford asserts that the court erred in concluding that the stipulation barred it from raising the issue of confiscation, that the zone change was not confiscatory and that it had waived the illegality of the reception of the post-hearing evidence.

The conclusions of the trial court as to the stipulation are tested by the finding. Barnini v. Sun Oil Co., 161 Conn. 59, 63, 283 A.2d 217. The court's conclusion that by the terms of the stipulation of May 6, 1966, First Hartford agreed not to press its allegation of confiscation in exchange for the withdrawal by the commission of its claim of a procedural defect, is reasonably supported by the finding summarized above. Once a known right is waived, 'the waiver cannot be withdrawn even if subsequent events prove the right waived to have been more valuable than had been anticipated.' Jenkins v. Indemnity Ins. Co. of North America, 152 Conn. 249, 258-259, 205 A.2d 780, 785. Since we agree with the trial court on the effect of the stipulation, we need not review its conclusion that the zone change was not confiscatory.

In rezoning the...