Langer v. Planning and Zoning Commission of Town of Westport

Decision Date27 July 1972
Citation313 A.2d 44,163 Conn. 453
CourtConnecticut Supreme Court

Bourke G. Spellacy, Hartford, with whom, on the brief, were Stuart N. Updike, Hartford, and Thomas G. Dennis, South Windsor, for appellants (plaintiffs).

Edgar T. See, Westport, for appellees (defendant Lester R. Giegerich and others) and Harry H. Hefferan, Jr., Norwalk, for the appellee (named defendant); with them, on the brief, was Jerry Davidoff, Westport, for appellees (defendant Robert T. Cassell and others).


LOISELLE, Associate Justice.

On April 15, 1969, the planning and zoning commission of the town of Westport amended the zoning regulations by creating a restricted professional office district, hereinafter referred to as RPOD. At the same time, the commission designated eleven lots located in the Imperial Avenue area as a RPOD zone. These lots covered about six acres of land and were south of and adjacent to the business and restricted business zone bordering the Boston Post Road. The commission created the zone and designated an area for its application with one hearing, a procedure which is not assigned as error and is not inconsistent with zoning regulations as long as the identity of the two actions remains separate. Sheridan v. Planning Board, 159 Conn. 1, 22, 266 A.2d 396; Norris v. Planning & Zoning Commission, 156 Conn. 592, 596, 244 A.2d 378. The regulations were amended to establish the new zone after a second public hearing, instigated by the commission to remedy the defective notice of a previous hearing on the matter. There is no attack on the propriety of the second hearing.

The plaintiff Chemical Research and Manufacturers, Inc., as titleholder, and the plaintiff, Walter Langer, in a representative capacity, own approximately twenty-five acres of land which abuts a portion of the newly created zone. They are aggrieved parties within the meaning of General Statutes §§ 8-9 and 8-8. Their appeal from the action of the commission to the Court of Common Pleas was dismissed and they have appealed from that judgment.

In establishing the RPOD, the planning and zoning commission indicated in the 'Purpose' of the regulation that it considered the desirability of establishing a zonal classification 'which would afford a reasonable and desirable transition between established business districts and residential areas. Large homes in older residential areas in the proximity of business districts tend to become economically depressed as the demand for other types and locations of single-family homes increases. The character of such areas is more residential than commercial and from other standpoints, this situation cannot lead to the wholesale conversion of these areas to commercial zones. Consequently, a transitional type of zone is required to conserve the value of such property while preserving the character of such areas from the standpoint of intensity of use and physical appearance. The Residential Professional Office District provides for such a transition.' The new regulations provide for limitations on use, setback, height, minimum floor area, ground coverage, parking, architectural design, site plan, signs, changes of use, expansion and reconstruction of buildings.

The plaintiffs claim that the RPOD regulations are invalid in two respects and that the entire RPOD regulation must fall because both of the invalid provisions are such an integral part of the whole regulation as to be inseparable from it. Permitted in the new zone are residential and professional offices with customary accessory structures and uses. Before any land or structure may be used for any permitted use, there must be an application to the planning and zoning commission for a special permit and a public hearing, held in accordance with General Statutes § 8-3. Section 4B.6 of the new zoning regulation provides: 'In such cases as approval of the Commission shall have been secured as hereinbefore set forth, nothing in these regulations shall be construed to require the further approval of the Commission for the substitution of other permitted professional office uses different from those stated in the application on which the approval was based, except: (1) No restricted professional office use shall be commenced before a certificate of change of use is obtained from the Zoning Enforcement Officer, certifying that the use and parking provisions conform to the regulations.'

The plaintiffs contend that this provision is an illegal delegation of authority to the enforcement officer. The provision amounts to an administrative directive that a change from one permitted use to another permitted use will require a zoning permit. There is no delegation of any additional authority to the enforcement officer. The regulations set out the precise circumstances under which he must issue a certificate of change of use. If an application conforms to the standards set forth in the regulations, the enforcement officer has no discretion and must issue the certificate. It is clearly a ministerial function and not an unlawful delegation of authority as the plaintiffs claim. Rocchi v. Zoning Board of Appeals, 157 Conn. 106, 113, 248 A.2d 922; State ex rel. Eastern Color Printing Co. v. Jenks, 150 Conn. 444, 451, 190 A.2d 591; State ex rel. Board of Education of City of Bridgeport v. D'Aulisa, 133 Conn. 414, 423, 52 A.2d 636; 8A McQuillin, Municipal Corporations (3d Ed. Rev.) § 25.255.

Section 4B.8 of the RPOD regulations provides, in the first section (§ 4B.8.1), for the permitted professional uses; in the second section (§ 4B. 8.2), for residential uses; and in the third section (§ 4B.8.3), for accessory uses and structures. The fourth section (§ 4B.8.4) provides that: 'The Planning and Zoning Commission, on written request from the applicant, may modify, vary, waive or accept other uses as set forth in the above paragraph in harmony with the general purpose and intent of these Regulations, where the effect thereof is arbitrary, or where a literal enforcement of the Regulations would result in practical difficulties not required to accomplish the purpose of a professional office district, so that substantial justice will be done and the general purpose and intent of these Regulations will be accomplished.' The plaintiffs claim that § 4B.8.4 is invalid in that it violates General Statutes § 8-6 which vests the power to vary the application of zoning ordinances exclusively in a board of appeals.

An examination of the provisions of chapter 124 of the General Statutes, especially § 8-2, concerning the power conferred on the defendant planning and zoning commission, and § 8-6, concerning the powers of boards of appeal, can lead only to the conclusion that the power to vary the ordinance to accommodate practical difficulties and do substantial justice lies exclusively in a board of appeals. In connection with zoning ordinances, it is a cardinal principle of construction that provisions and amendments must be enacted pursuant to the zoning enabling statute. Lurie v. Planning & Zoning Commission, 160 Conn.295, 319, 278 A.2d 799; Clark v. Town Council, 145 Conn. 476, 482, 144 A.2d 327; Eden v. Town Plan & Zoning Commission, 139 Conn. 59, 63, 89 A.2d 746; Bishop v. Board of Zoning Appeals, 133 Conn. 614, 619, 53 A.2d 659; 1 Yokley, Zoning Law and Practice (3d Ed.) § 5-4. Once the board of appeals is provided for in the zoning ordinance, its powers stem directly from the statute; Nelson v. Donaldson, 255 Ala. 76, 79, 50 So.2d 244; Duffcon Concrete Products, Inc. v. Cresskill, 1 N.J. 509, 515, 64 A.2d 347; and its powers are not subject to restriction by provisions contained in the ordinance or amendments thereto. Farnsworth v. Windsor, 150 Conn. 484, 487, 190 A.2d 915; Kimball v. Court of Common Council, 148 Conn. 97, 102, 167 A.2d 706; Shelton v. City of Shelton, 111 Conn. 433, 439, 150 A. 811; 8A McQuillin, op. cit. § 25.232.

The defendants claim that, as the power to vary is limited to uses only, there is no infringement on the powers of the board of appeals. Prior to 1959, § 8-2 and its predecessors did not include the use of land within its provisions. After Pecora v. Zoning Commission, 145 Conn. 435, 144 A.2d 48, however, § 8-2 was amended to include the use of land. This amendment intended to provide that the regulations for the use of land, like the regulations for each class of buildings or structures, be uniform. Summ v. Zoning Commission, 150 Conn. 79, 86, 186 A.2d 160, overruled in part on other grounds, Sheridan v. Planning Board, 159 Conn. 1, 13, 266 A.2d 396. Because § 4B.8.4 allows the commission to vary uses on an application-to-application basis to a degree that they are different from those uniformly allowed under § 4B.8.1, § 4B.8.4 is beyond the scope of the planning and zoning commission's authority and is, therefore, invalid and void.

The plaintiffs argue that, if either § 4B.6 or § 4B.8.4 is invalid, all of the regulations concerning the restricted professional office district must fall because the invalid section is so connected and essential to...

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