Furtney v. Simsbury Zoning Commission

• Decision Date: 14 July 1970
• Citation: 159 Conn. 585,271 A.2d 319
• Parties: L. Wayne FURTNEY et al. v. SIMSBURY ZONING COMMISSION et al.
• Court: Connecticut Supreme Court

Page 319

271 A.2d 319

159 Conn. 585

L. Wayne FURTNEY et al. v. SIMSBURY ZONING COMMISSION et al.

Supreme Court of Connecticut.

July 14, 1970.

Valentine J. Sacco, Hartford, for appellants (plaintiffs).

Peter B. Sullivan, Hartford, for appellee (named defendant).

Bertlen F. Turner, Simsbury, for appellee (defendant Fitzgerald).

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

RYAN, Associate Justice.

On August 15, 1966, the defendant James Fitzgerald applied to the zoning commission of the town of Simsbury for a change of zone for two parcels of land which, together, contained about 12.29 acres located on the easterly side of Bushy Hill Road and bounded in part by Stratton Brook Road on the north. Fitzgerald had an option to purchase this land. The requested change, from zone R-40 (single family residence zone) to zone B-3 (designed business development zone), was sought in order to build, pursuant to article 10 of the Simsbury zoning regulations, a shopping center with a total building area of 40,000 square feet and 404 parking spaces. A plot plan of the proposal was also submitted which gave the location and dimensions of buildings and the approximate distance from the nearest crossroad.

The application was referred to the town plan commission pursuant to § 8-3a of the General Statutes and the Simsbury zoning regulations, article 10 § A(2)(c), and on September 27, 1966, that body voted to recommend that the application be denied on the ground that the proposed change conflicted with the Simsbury comprehensive plan and with the present plan of development for Simsbuty; that Bushy Hill Road was inadequate to meet the projected traffic flow; and that the proposed location was not suitable for a decentralized neighborhood shopping center.

On October 24, 1966, a hearing was held before the defendant zoning commission, at which time the report of the town plan commission was read. The defendant Fitzgerald then presented evidence in support of his application, and the opponents of the proposal were given an opportunity to challenge this evidence, to introduce their own evidence, and to question thoroughly certain members of the defendant zoning commission concerning both the appointment of those members to the commission and the questions raised as to their qualifications to sit on this particular application.

On November 28, 1966, at its executive session, the zoning commission, by a two-thirds vote (4-2), granted the requested zone change and stated the following as its reasons: (1) The population of the town is expanding rapidly, and there is every indication that the trend will continue; present shopping facilities are inadequate, with the center of town being heavily congested during peak shopping periods. (2) Adequate expansion of existing facilities is not possible owing to terrain and limited space. (3) The location at Bushy Hill Road and Stratton Brook Road is near the geographic center of town and is served by two good highways, giving ready access from all areas. (4) Few properties will be directly affected, and the developer offers to provide an adequate buffer zone to protect them. (5) At the other side of Stratton Brook Road, the zoning is industrial and houses the powder magazines of the Ensign Bickford Company. Under the zoning regulations (art. 10), site plan approval by the zoning commission and review by the town plan commission are required before a building permit may be issued.

From the action of the zoning commission granting the change of zone, the plaintiffs appealed to the Court of Common Pleas. From the judgment of the trial court dismissing the appeal, the plaintiffs have appealed to this court.

In the trial court, the plaintiffs introduced evidence for the purpose of proving that certain members of the zoning commission was disqualified and should not have sat on the Fitzgerald application. The court made a limited finding on this issue and concluded that the challenged members of the commission were not disqualified. The plaintiffs assign error in this conclusion, in the failure of the court to find certain facts which were claimed to be admitted or undisputed, and in the finding by the court of certain facts without evidence. Of the numerous assignments of error concerning the finding, the plaintiffs have pursued only three in their brief. Assignments of error not pursued in the brief are deemed to be waived. Strimiska v. Yates, 158 Conn. 179, 181, 257 A.2d 814; Martin v. Kavanewsky, 157 Conn. 514, 516, 255 A.D.2d 619. As to the three assignments pursued in their brief, the plaintiffs have not established any failure on the part of the trial court to include in the finding any fact which was material and was admitted or undisputed. The trier is the judge of the credibility of witnesses. Banks v. Adelman, 144 Conn. 176, 179, 128 A.2d 534.

The plaintiffs assign error in the refusal of the trial court to conclude that commission members Jonathan Eno, Jr., and John J. Pivko, Jr., were disqualified to sit as members of the commission in the instant case. The trial court heard evidence concerning the plaintiffs' claim and in a limited finding found the following facts: Between August and November, 1966, Eno was a member of the defendant commission and an officer of the Simsbury Bank and Trust Company, which was the only commercial bank in the towns of Simsbury and Avon. When the defendant Fitzgerald opened a food store in Avon in February, 1957, he borrowed $15,000 from the Simsbury Bank and Trust Company. This loan was repaid by him in three years. When he opened his store he lived in Granby, and the same bank held a mortgage on his home. In 1959 he purchased a home in Simsbury and assumed the mortgage on the house which was held by a different bank. In 1966 he moved to another house in Simsbury, and his home was subject to a mortgage held by the Simsbury Bank and Trust Company. Approximately 90 percent of the commercial banking in connection with Fitzgerald's store is conducted with the Simsbury Bank and Trust Company, where he and his wife have a joint checking account. Fitzgerald has been in the bank and its branch office in Avon only four times a year during the time he has done business with it. He has never seen Eno in the bank or talked to him on the telephone. He and Eno have known each other for about twenty years, but not socially. He addresses him as 'Mr. Eno' and does not call him by his first name. Eno has been to Fitzgerald's store to make a purchase six times in a period of eleven years. They are members of the same golf club.

In 1967, when Eno was in the hospital following a heart attack, Fitzgerald sent him a basket of fruit. If his application for a change of zone were granted, Fitzgerald intended to erect a shopping center on the property and to open another food store there. He did not intend to finance the construction of the shopping center through a loan from the Simsbury Bank and Trust Company. He expected to arrange his financing with an insurance company. He probably would continue to do his commercial banking with the Simsbury Bank and Trust Company. Eno knew that Fitzgerald did his commercial banking with the Simsbury Bank and Trust Company, that the bank held a mortgage on his home, and that he had filed the application for a change of zone. In 1963, Eno had joined with David C. Mahoney, Jr., and Butler W. Andrus in looking into the possibility of changing the zone of the property concerned in the instant case and was in accord with his associates that it would be a suitable place for a business or a shopping center. Eno had not made up his mind on Fitzgerald's application before the hearing and had no reason or expectation to believe that the Simsbury Bank and Trust Company would be involved in the financing of the proposed shopping center. The chairman of the defendant commission had discussed the possibility of disqualification with Eno prior to the hearing of Fitzgerald's application and believed that Eno had disqualified himself, although Eno had not said yes or no definitely. Eno finally told the chairman of the commission that he would not disqualify himself from sitting on the defendant Fitzgerald's application but would disqualify himself from sitting on an application involving the airport which was to be heard on the same day.

As to John J. Pivko, Jr., the trial court found that Pivko had been called by the secretary of the defendant commission to sit as an alternate sometime in 1962 or 1963. He sat as such an alternate fifteen to twenty times. He was also asked to sit as an alternate on the defendant Fitzgerald's application. He was not sworn in as an alternate either before or on the night of the hearing on Fitzgerald's application. He sat on Fitzgerald's application, heard the evidence presented, and voted on the matter.

From these facts the trial court concluded that Eno was not disqualified to sit on the matter and had not prejudged it, and the Pivko was disqualified to sit on the case.

'Following the decision of this court in Low v. Town of Madison, 135 Conn. 1, 60 A.2d 774, which defined the standards demanded of a member of a zoning body, the General Assembly, in 1951, adopted what is now § 8-11 of the General Statutes.' Fletcher v. Planning & Zoning Commission, 158 Conn. 497, 506, 264 A.2d 566. This section provides in pertinent part that '(n)o member of any zoning commission or board and no member of any zoning board of appeals shall participate in the hearing or decision of the board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense.'

The obvious purpose of this statute is to create public confidence in the administration of zoning. This court has had repeated occasion to reaffirm the principle, laid down in Low v. Madison, supra, that public policy requires that members of such public boards cannot be permitted...