Gentry v. City of Norwalk

• Decision Date: 02 July 1985
• Court: Connecticut Supreme Court
• Parties: Herbert C. GENTRY, et al. v. CITY OF NORWALK, et al.

Page 1206

494 A.2d 1206

196 Conn. 596

Herbert C. GENTRY, et al. v. CITY OF NORWALK, et al.

Supreme Court of Connecticut.

Argued March 12, 1985.

Decided July 2, 1985.

Frank W. Murphy, Norwalk, for appellants (plaintiffs).

James V. Minor, Deputy Corp. Counsel, New Haven, for appellees (defendants city of Norwalk, Mary O. Keegan and Norwalk Historic Dist. Study Group).

James A. Fulton, Norwalk, for appellee (defendant First Taxing Dist. of City of Norwalk).

Thomas M. Conroy, Hamden, for appellee (defendant Ulla A. Driscoll).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and SANTANIELLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

This action in which the plaintiffs sought injunctive and declaratory judgment relief was generated by efforts in 1981 to establish an historic district pursuant to Chapter 97a of the General Statutes in the defendant city of Norwalk. The plaintiffs opposed the creation of the proposed historic district. ¹

The proposed historic district, which was to be known as the Norwalk Green Historic District (district), encompassed thirteen parcels of land in the vicinity of the Norwalk Green. ² One of these parcels, located at 7-9 Park Street, was occupied by the Park Towers Condominium (PTC), a sixty-seven unit condominium. ³ On January 27, 1981, the common council of the legislative body of Norwalk, after its receipt of the report of the Historic District Study Committee (study committee), voted to approve a resolution authorizing balloting for the establishment of the proposed district. On February 23, 1981, ballots were issued by the defendant Mary Keegan, town clerk of Norwalk, and March 23, 1981, was set as the deadline for submitting them. For that ballot the votes to be exercised were allotted as follows: each property owner of record was assigned one full vote except where joint ownership appeared of record, such joint owners were given a fractional vote. According to the record, each PTC condominium unit owner was given 1/67 of a full vote. When the ballots cast were counted, the statutorily required 75 percent affirmative vote ⁴ of the owners voting necessary to approve the establishment of the proposed district was not attained.

On May 27, 1981, the common council adopted a resolution authorizing the study committee to hold another public hearing for a new referendum at which each PTC unit owner was assigned one full vote. After a public hearing on August 20, 1981, the study committee recommended another balloting to the common council. That legislative body, at its meeting on September 8, 1981, directed that a new referendum be held on October 9, 1981, in accordance with its resolution of May 27, 1981, assigning sixty-seven votes, one to each of the PTC condominium owners. ⁵ In that referendum, the PTC unit owners who returned their ballots cast fifty-six full votes. After the ballots were counted, Keegan certified that the vote was sixty-two in favor of establishing the proposed district and five against.

After a trial on the merits, the trial court held that General Statutes § 7-147b(g) ⁶ required that each PTC unit owner was entitled to one full vote. Having so declared, it denied the plaintiffs any injunctive relief. Thus, the necessary 75 percent approval for the establishment of the proposed district was obtained and the historic district was thereafter established. The plaintiffs appealed.

On appeal, the plaintiffs claim that the trial court erred in: (1) determining that each owner of a condominium unit was entitled to one full vote in the historic district referendum; and (2) refusing to enjoin the defendant Norwalk town clerk from certifying the ballots cast in the October 9, 1981 historic district referendum. We find error.

On appeal, the plaintiffs argue that, with regard to allocation of voting rights for the purpose of the establishment of the proposed historic district, a consistent reading and interpretation of the historic district statutes, particularly § 7-147b, and of the condominium statute, requires the conclusion that each unit owner in PTC be allocated 1/67 of a vote. In looking to the condominium statutes, they argue that their "common thread" is "to define the real property interest of the condominium unit owner, as the unit itself, which is clearly part of a building, and 'an undivided interest in the common elements specified' " and that, therefore, "it is clear that the ownership of each condominium unit owner in the real property, is the same as the ownership of a tenant in common, in that in addition to the unit the persons' [sic] ownership includes 'an undivided interest in the common elements specified.' " ⁷ The statutory scheme, they claim, clearly shows an intent to limit each parcel of land to one full vote regardless of size, value or improvements. The council's second resolution, in effect, established two separate voting classifications of tenants in common, they argue, "one for condominium unit owners, and one for everyone else." Giving each unit owner one full vote makes the statutory scheme "irrational" because, they continue, the statutory scheme "is to give each property one vote, divided into its various proportionate shares depending upon the nature of the ownership." Because the council's May 27, 1981 resolution did not follow this "one parcel, one vote" interpretation of the plaintiffs, the council, they claim, directed "an illegal method of voting, which should be declared invalid and permanently enjoined."

On the other hand, the defendants argue that allocating a full vote to each condominium unit owner is not only directed by the plain language of § 7-147b(g) of the historic district statute, but also "is consistent with the legislative intent to award the voting franchise to real property taxpayers." That statute does not, they claim, grant a fractional vote to a tenant in common in land but rather grants a fractional vote to a "tenant in common of any freehold interest" in land, and the statute thus illuminates the fallacy of the plaintiffs' claim that the " 'entire parcel' " at 7-9 Park "is a freehold interest." (Emphasis added.) Rather, the defendants maintain that there are sixty-seven separate freeholds at 7-9 Park Street because each unit and its undivided interest in the common elements may be conveyed by "an indefeasible title in fee simple absolute," citing General Statutes § 47-72. Therefore, because " 'property is a creature and creation of the law' " there are, say the defendants, "67 freeholds now located at 7-9 Park Street, not one, and each unit owner possesses his freehold outright, not in common with his fellow unit owners."

Over 200 years ago, Lord Mansfield said: "As the usages of society alter, the law must adapt itself to the various situations of mankind." Barwell v. Brooks, 3 Doug. 371, 373 (1784). This venerable aphorism is appropriate in the resolution of the issues in this appeal. In considering the nature of a condominium unit owner's interests as it relates to a vote on the establishment of an historic district in which the condominium is located, we keep in mind that, although both relevant statutes are relatively recent in our jurisprudence, each one contains centuries old terms. Some of these terms, tenant in common, freehold interest, joint tenant, property and improvements have been defined by these statutes, while others presumably retain their common law meanings. The historic district statutes; General Statutes §§ 7-147a through 7-147k; were first enacted in this state in 1961, and the condominium act; General Statutes §§ 47-68a through 47-90c; was enacted in 1963.

Over the past fifty years all fifty states and hundreds of municipalities have enacted laws to encourage or require the preservation of buildings and areas with historic or aesthetic importance. Penn. Central Transportation Co. v. New York, 438 U.S. 104, 107, 98 S.Ct. 2646, 2650, 57 L.Ed.2d 631, reh. denied, 439 U.S. 883, 99 S.Ct. 226, 58 L.Ed.2d 198 (1978). Such legislation has been precipitated by two concerns: first, "in recent years, large numbers of historic structures, landmarks and areas have been destroyed without adequate consideration of either the values represented therein or the possibility of preserving the destroyed properties for use in economically productive ways"; and, second, "a widely shared belief that structures with special historic, cultural, or architectural significance enhance the quality of life for all." Id., at 108, 98 S.Ct. at 2651; see Maher v. New Orleans, 516 F.2d 1051 (5th Cir.1975), cert. denied, 426 U.S. 905, 96 S.Ct. 2225, 48 L.Ed.2d 830 (1976); Figarsky v. Historic District Commission, 171 Conn. 198, 368 A.2d 163 (1976); 2 Anderson, American Law of Zoning (2d Ed.1976) §§ 9.68-9.75. In upholding New York City's landmarks preservation law in Penn Central, the United States Supreme Court stated that "[l]egislation designed to promote the general welfare commonly burdens some more than others." Penn Central Transportation Co. v. New York, supra, 438 U.S. at 133, 98 S.Ct. at 2664.

In its statutory context the condominium is of relatively recent origin ⁸ offering, as it does, a means of shelter affording some of the benefits of property ownership without some of its burdens. The defendants in this case recognize that condominium ownership interests are "unique," and the plaintiffs concede that these interests "do not fall neatly within any of the categories" stated in the historic district voting provision. See General Statutes § 7-147b(g). This fairly sets the tone. The intermixture of the historic district and condominium statutes on this specific issue of vote allocation generates relevant considerations which, on analysis, do not precisely mesh or accurately fit any analytical mold. Given the argued tension between these two statutes, our construction, which involves seeking legislative purpose, strives for the application of common sense to achieve a...