Holt-Lock, Inc. v. Zoning and Planning Commission of Town of Granby, HORT-LOC

Citation286 A.2d 299,161 Conn. 182
Decision Date11 May 1971
Docket NumberINC,HORT-LOC
Parties, 2 ERC 1597 v. ZONING AND PLANNING COMMISSION OF the TOWN OF GRANBY.
CourtSupreme Court of Connecticut

Bertlen F. Turner, Simsbury, for appellant (plaintiff).

Charles W. Page, Hartford, with whom was Ernest A. Inglis, Jr., Hartford, for appellee (defendant).

Before HOUSE, COTTER, THIM, RYAN and SHAPIRO, JJ.

SHAPIRO, Associate Justice.

The plaintiff, Holt-Lock, Inc., the owner of ninety-two acres of land in the town of Granby, made application to the defendant zoning and planning commission for a special permit under § 9.4 of the Granby zoning regulations to remove sand and gravel from approximately sixty acres of its land. A public hearing on the application was held on February 13, 1968, and the defendant commission denied the application on April 23, 1968. An appeal was taken from the commission's action to the Court of Common Pleas. The court heard evidence on the issue of aggrievement, on the issue of the disqualification of a commission member, and on the question of the defendant commission receiving evidence subsequent to its public hearing on the plaintiff's application. The court decided the remaining questions raised in the plaintiff's appeal solely on the record returned by the defendant commission. The court found the issue of aggrievement in the plaintiff's favor. The other issues were found for the defendant and the court dismissed the appeal. From the judgment rendered the plaintiff has appealed.

Various assignments of error, relating to claims that the court found certain facts without evidence and to a claimed erroneous ruling on evidence, which the plaintiff has not pursued in its brief are treated as abandoned. Martin v. Kavanewsky, 157 Conn. 514, 516, 255 A.2d 619; Katz v. Brandon, 156 Conn. 521, 524, 245 A.2d 579.

The plaintiff claims error in the trial court's refusal to find certain facts which it claims are admitted or undisputed. The plaintiff cannot prevail on this issue since the additions it requests involve facts which are immaterial or are neither admitted nor undisputed. Practice Book § 628(a); Greenwich Contracting Co. v. Bonwit Construction Co., 156 Conn. 123, 128, 239 A.2d 519; Maltbie, Conn.App.Proc. § 158.

The second claim of the plaintiff is essentially that the court erred in concluding that the commission had not received evidence subsequent to the public hearing of February 13, 1968, that would render the commission's action illegal. The plaintiff by this claim of error seeks to have this court apply the following rule articulated in Parish of St. Andrew's Protestant Episcopal Church v. Zoning Board of Appeals, 155 Conn. 350, 358, 232 A.2d 916, 921: 'The board could not properly consider correspondence submitted after the public hearing without providing the necessary safeguards guaranteed to the applicants and the public. This means a fair opportunity to cross-examine witnesses, to inspect documents presented and to offer evidence in explanation or rebuttal. Wadell v. Board of Zoning Appeals, 136 Conn. 1, 9, 68 A.2d 152. Not to do so would deny the applicants the right to be fully apprised of the facts upon which the board is asked to act. Parsons v. Board of Zoning Appeals, 140 Conn. 290, 293, 99 A.2d 149; Wunder v. Macomber, 34 Misc.2d 281, 290, 228 N.Y.S.2d 552; 2 Rathkopf, Law of Zoning and Planning,[161 Conn. 185] p. 44-2.' The correspondence which the plaintiff claims should bring into operation the above stated rule consists of a letter dated April 18, 1968, from the secretary of the Granby board of education and reports which were submitted at the request of the defendant commission by Technical Planning Associates subsequent to February 13, 1968. Under the facts of this case, as recited below, the rule does not apply.

The court's finding of facts, which must stand, and the evidence printed in the appendix to the defendant's brief, reveal that the letter of April 18, 1968, was neither accepted by the defendant commission nor considered by it. The findings of fact, which must stand, with respect to the reports from Technical Planning Associates are: (1) Technical Planning Associates were consultants to the defendant commission, not opponents of the plaintiff's application. (2) The material requested of Technical Planning Associates was not evidence for or against the application beyond what the commission had from its own knowledge or adduced at the public hearing on February 13, 1968. (3) The consideration of the reports was solely to aid the defendant commission in determining what conditions it might impose on the granting of the plaintiff's application if it did grant it.

We turn to the plaintiff's claim that the court erred in concluding that the denial of its application by the defendant commission did not amount to a confiscation of its property without due process of law. The court found the plaintiff's property was flood plain land. The plaintiff essentially argues in its brief that it has exhausted its administrative remedies and that the application to its property of the Granby zoning regulations dealing with flood plain land constitutes the taking of property without compensation and without due process of law in violation of the fifth and fourteenth amendments to the constitution of the United States and in violation of § 11 of article first of the Connecticut constitution.

The plaintiff has prematurely raised the constitutional issue it here seeks to have determined, and we therefore do not consider it. The plaintiff has overlooked § 4.9 of the Granby zoning regulations which provides: 'In flood plain land, no building shall be constructed, and no land shall be filled or paved except as a special exception by the Board of Appeals, with due consideration to the effects of such building, fill, or pavement on potential flood conditions affecting the particular premises or other premises.' It is apparent from the language of this ordinance that a building may be constructed and land may be filled or paved on obtaining a special exception from the board of appeals. Until this remedy has been exhausted, it cannot be said that the plaintiff has been denied the reasonable use of its property. See Vartelas v. Water Resources Commission, 146 Conn. 650, 655-656, 153 A.2d 822; see also Florentine v. Town of Darien, 142 Conn. 415, 428, 115 A.2d 328.

The plaintiff claims that John Burns, a member of the defendant commission, was disqualified to sit on said commission and hence the commission's denial of its application was illegal.

The following facts, as found by the court, are not in dispute. Burns was a member of the Granby conservation commission and its secretary, as well as being a member of the Granby zoning and planning commission. One of the purposes of the conservation commission was to preserve flood plain land in the town of Granby. Prior to the public hearing of February 13, 1968, the conservation commission met on at least two occasions to discuss the implication of the plaintiff's application. Burns was present at these meetings and took part in the discussions. As a result of these meetings, a letter, dated February 9, 1968, from the conservation commission was presented to the defendant commission at its public hearing on February 13, 1968. 1 No formal request was made by the defendant commission for a report from the conservation commission. Burns was aware of the contents of the letter prior to the public hearing and was in sympathy with the feelings expressed in it. Charles Katan, a member of the conservation commission, who was present at both of its meetings, was of the opinion that Burns was in general agreement with the letter. Prior to February 13, 1968, Burns had considered the application from a conservation point of view. The trial court specifically found that Burns had not prejudged the plaintiff's application for a sand and gravel permit.

Following the decision of this court in Low v. Madison, 135 Conn. 1, 60 A.2d 774, which defined the standards demanded of a member of a zoning body, the General Assembly adopted in 1951 what is now § 8-11 of the General Statutes. Section 8-11 provides in part: 'No member of any zoning commission * * * shall participate in the hearing or decision of the * * * commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense.' In this case, there is no claim that Burns had a pecuniary interest. As we stated in Anderson v. Zoning Commission, 157 Conn. 285, 290, 253 A.2d 16, 20, a personal interest is 'a personal bias or prejudice which imperils the open-mindedness and sense of fairness which a zoning official in our state is required to possess.' Our decisions have repeatedly emphasized that '(n)eutrality and impartiality of members are essential to the fair and proper operation of * * * (zoning) authorities.' Lake Garda Improvement Assn. v. Town Plan & Zoning Commission, 151 Conn. 476, 480, 199 A.2d 162, 163; see Stocker v. City of Waterbury, 154 Conn. 446, 453, 226 A.2d 514; Josephson v. Planning Board, 151 Conn. 489, 493, 199 A.2d 690; Daly v. Town Plan & Zoning Commission, 150 Conn. 495, 500, 191 A.2d 250.

'The decision as to whether a particular interest is sufficient to disqualify...

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