Fletcher v. Planning and Zoning Commission of Town of Greenwich

Citation264 A.2d 566,158 Conn. 497
CourtSupreme Court of Connecticut
Decision Date25 November 1969
PartiesHarold G. FLETCHER v. PLANNING AND ZONING COMMISSION OF the TOWN OF GREENWICH et al.

A. William Mottolese, Greenwich, with whom, on the brief, was Stewart H. Jones, Greenwich, for appellant (named defendant).

Frederick L. Comley, Bridgeport, for appellants (defendant John Carrott and others).

Francis X. Lennon, Jr., Greenwich, with whom was Frederick W. Fawcett, for appellee (plaintiff).

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

ALCORN, Associate Justice.

This zoning appeal appears to have arisen out of the plaintiff's status as the contract purchaser of a building lot in a tract of land which the Rosenstiel Foundation, an Ohio corporation authorized to do business in Connecticut, planned to subdivide into moderate priced homesites for a propective association of homeowners of which the plaintiff was the president.

The plaintiff owns a home on East Elm Street in Greenwich which is in an R-7 zone. On March 10, 1965, the Rosenstiel Foundation, hereinafter called the Foundation, owned an eighty-three-acre tract of land in Greenwich in an RA-4 zone about eight miles distant from the plaintiff's home. The RA-4 zone allowed separate dwelling units on lots of four acres or more, and the R-7 zone required an area of 7000 square feet.

On March 10, 1965, the Foundation contracted to sell to the plaintiff a lot designated as number 101 within the eighty- three-acre tract for the price of $965. The preamble to the contract recited that it was the seller's purpose to provide attractive building sites within the means of Greenwich citizens who now find it impossible to build in Greenwich; that the plaintiff wished to acquire the lot solely for a home for himself and his family; that the purpose could be accomplished only if the property was rezoned; and that to accomplish this end the plaintiff would join with others in seeking a change of zone and would appeal an unfavorable decision. It was agreed that the contract was not assignable without the approval of the Foundation and that the lot would be conveyed subject to zoning restrictions, taxes, restrictions imposed on all lots in the proposed subdivision, easements, and a share of the development and maintenance costs. The contract would be null and void if a change of zone was not granted.

On June 8, 1965, the plaintiff applied to the Greenwich planning and zoning commission for an amendment to the zoning regulations which would create two new zone categories in the Greenwich zoning regulations to be designated R-20W and RA-1W permitting respective minimum lot sizes of 20,000 square feet and one acre provided a water supply was furnished by other means than individual wells on each lot, or, in the alternative, for any amendment which would permit selective rezoning of lower density areas if water was supplied from an outside source. The application did not seek the zone change for the eighty-three-acre tract and was made on the basis of the plaintiff's ownership of his East Elm Street property as permitted by the zoning regulations.

On July 8, 1965, another application, which was signed by the plaintiff along with 120 other individuals and the Foundation, was made to the Greenwich planning and zoning commission to rezone the southerly portion of the eighty-three-acre tract to an RA-1W or an RA-1 zone and the remainder to an R-20W or an R-20 zone. The applicants were stated to be 'owners of and contract purchasers of' the eighty-three-acre tract, and their application recited that the zone changes sought were intended to be the same as the zone categories requested in the plaintiff's application of June 8, 1965.

On February 25, 1966, the Foundation deeded the eighty-three-acre tract to the plaintiff, as trustee, and the deed was recorded in the Greenwich land records. On February 28, 1966, the plaintiff, as trustee, and the Foundation entered into a contract concerning the land so conveyed which provided that the plaintiff, as trustee, accepted the title subject to outstanding contracts of sale; that all incidents of ownership other than legal title were to remain in the Foundation, which would retain the obligation for all expenses of upkeep, municipal charges and taxes; that the trustee could contract for the sale of lots within the tract to purchasers approved by the Foundation; that the terms of the contract of sale previously made with the plaintiff on March 10, 1965, were incorporated by reference; and that, if the eighty-three acres were not rezoned in accordance with the plaintiff's application, the plaintiff would quitclaim the land to the Foundation. The contract which the plaintiff, as trustee, was empowered to make with purchasers was identical in terms with his own March 10, 1965, contract.

On the same date, February 28, 1966, the two rezoning applications which had been made on June 8, 1965, and July 8, 1965, came on for public hearing before the Greenwich planning and zoning commission. The hearing was an extended one and continued during seven separate sessions held by the commission between February 28 and March 14, 1966. The five members of the commission participated in all sessions. About four months after the conclusion of the hearing, the commission unanimously denied both applications on July 18, 1966.

On July 12, 1966, the plaintiff, as trustee, executed a quitclaim deed reconveying the eighty-three-acre tract to the Foundation. This deed was neither delivered nor recorded.

The plaintiff alone appealed from the decision of the commission to the Court of Common Pleas, which concluded that the plaintiff was aggrieved and that the failure of three members of the commission to disqualify themselves invalidated the decision of the commission, so that the appeal should be sustained. Judgment was rendered accordingly. The Greenwich planning and zoning commission has appealed from that judgment, and individual intervening parties have also appealed. The appeals challenge the court's conclusions that the plaintiff was aggrieved and that the commission's decision was invalidated by the disqualification of three members who participated in it.

A person does not become aggrieved until the zoning authority has acted, and the question of aggrievement is a jurisdictional one for the court. I. R. Stich Associates, Inc. v. Town Council of Town of West Hartford, 155 Conn. 1, 3, 229 A.2d 545. To be entitled to an appeal, the plaintiff was required to allege and prove that he was aggrieved by the decision of the commission. I. R. Stich Associates, Inc. v. Town Council, supra. The required a showing that he 'had a specific, personal and legal interest in the subject matter of the decision as distinguished from a general interest such as is the concern of all members of the community and that * * * (he was) specially and injuriously affected in * * * (his) property or other legal rights.' Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 660, 211 A.2d 687, 689. There must be 'a specific, personal and legal interest in the subject matter of the decision.' Tyler v. Board of Zoning Appeals,145 Conn. 655, 662, 145 A.2d 832, 836.

The plaintiff's appeal was couched in two counts attacking the denial of his individual application of June 8, 1965, and the application of July 8, 1965, in which he was joined by other applicants. The court reached a general conclusion that the plaintiff was aggrieved by the action of the commission in denying both appeals. With respect to the application of June 8, 1965, the court concluded that, under the zoning regulations, the plaintiff had the right, as a property owner, to apply to the commission for a change of zone and that, as a property owner entitled to make such an application, he was aggrieved by the denial of the application. It is clear from what we have just said that the mere denial of an application does not establish aggrievement. The court's conclusion to the contrary was erroneous, and consequently the plaintiff's appeal, so far as it relates to the June 8, 1965, application, should have been dismissed on the ground that the plaintiff had failed to establish aggrievement. Krejpcio v. Zoning Board of Appeals, supra.

The court also concluded, however, that the plaintiff was aggrieved by the denial of the July 8, 1965, application in that, as the record owner, as trustee, of the eighty-three-acre tract and a contract purchaser of a lot within the tract whose right to purchase was conditioned on a change of zone, he had a specific, personal and legal interest in the subject matter of the commissison's decision and was specially and injuriously affected in his property or other legal rights by the decision appealed from. The plaintiff's appeal, as amended, alleged that he was the record owner of the property, as trustee, and the contract purchaser of a parcel within the property. From the evidence produced, the court found, as subordinate facts, that the plaintiff offered no evidence of financial loss, individually or as trustee, and no evidence of special injury by the denial of the July 8, 1965, application. At the same time, the court found the plaintiff's relation to, and interest in, the eighty-three-acre tract to be as we have already related. No correction of the court's finding of subordinate facts is required.

The plaintiff's status as a person aggrieved by the decision appealed from was a question of fact for the court to determine. Josephson v. Planning Board of City of Stamford, 151 Conn. 489, 492, 199 A.2d 690, 10 A.L.R.3d 687; Luery v. Zoning Board of City of Stamford, 150 Conn. 136, 140, 187 A.2d 247. The conclusion reached by the court cannot be disturbed on appeal unless the subordinate facts found do not support it. ...

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