Luery v. Zoning Bd. of City of Stamford

• Citation: 150 Conn. 136,187 A.2d 247
• Court: Supreme Court of Connecticut
• Decision Date: 20 November 1962
• Parties: Robert L. LUERY et al. v. ZONING BOARD OF the CITY OF STAMFORD et al. Supreme Court of Errors of Connecticut

Page 247

187 A.2d 247

150 Conn. 136

Robert L. LUERY et al. v. ZONING BOARD OF the CITY OF STAMFORD et al.

Supreme Court of Errors of Connecticut.

Nov. 20, 1962.

Julius B. Kuriansky, Stamford, for appellants-appellees (plaintiffs).

Maurice J. Buckley, Stamford, with whom, on the brief, was Paul C. Jamieson, Stamford, for appellee-appellant (defendant American Machine & Foundry Co.).

Isadore M. Mackler, Stamford, with whom were Theodore Godlin, Stamford, and, on the brief, Gerald Kolinsky, Stamford, for appellee-appellant (named defendant).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

MURPHY, Associate Justice.

On December 28, 1959, the zoning board of Stamford voted unanimously to change the zone of a thirty-nine-acre tract of land from an RA-1 one-family residence district to a C-D designed commercial district and also authorized the use of the land for a research and experimental laboratory. The plaintiffs appealed to the Court of Common Pleas, which held that the board had not acted illegally, arbitrarily or in abuse of its discretion and dismissed the appeal. Both the plaintiffs and the defendants have appealed from the judgment rendered for the defendants. In the view which we take of the case, it is unnecessary to discuss the defendants' appeal.

The property in question is now owned by the defendant American Machine and Foundry Company, herein called A.M.F. In 1957, a similar change of zone was made by the board on the application of A.M.F. and Hugh D. Catty, who then owned most, if not all, the property. Upon appeal, the action of the board was reversed by us because the change of zone and the use by A.M.F. would create undue traffic congestion and because traffic into the property was routed in violation of the zoning regulations. Gordon v. Zoning Board, 145 Conn. 597, 603, 145 A.2d 746. That appeal was decided on October 28, 1958.

The application for the change of zone in this case was filed on August 31, 1959. The Stamford zoning regulations, with amendments which became effective on March 5, 1957, provide for the creation of four types of designed districts. Stamford Zoning Regs. §§ 4(A), 8 (1959). No particular areas on the zoning map were laid out as designed districts. Under § 8 of the regulations, any area of land having a minimum acreage--the minimum in each case being dependent on the type of district to which the area is contiguous--can be converted into a designed district by the zoning board under the procedure prescribed for other zoning changes. The specific uses which are permitted in the various designed districts are set out in minute detail in the regulations, and other standards, requirements, restrictions and prohibitions are enumerated, so that strict compliance with the regulations is assured. The design, location, height and bulk of buildings, the provision for parking areas, and all uses of property in a designed district also require the approval of the board before a building permit can be issued.

The zoning map shows three areas which have been converted to C-D designed commercial districts. The one nearest to the A.M.F. tract is within 1000 feet of it and extends southerly from the Merritt Parkway for approximately half a mile on both sides of High Ridge Road. The A.M.F. tract is immediately south of the Merritt Parkway and lies east of Turn of River Road, which is the first street east of High Ridge Road. The tract is unimproved, uneven in terrain, irregular in shape and heavily wooded, with a swamp in the southerly part. It is unsuitable for one-family houses on single acres. The highest elevation is at the northeast corner. The grade descends to the west and south with marked variations in level. There are major outcroppings of rock and large boulders. The area nearest the parkway between Turn of River Road and the C-D district on High Ridge Road is undeveloped. The planning board of Stamford on December 18, 1956, designated the A.M.F. tract as a C-D designed commercial district on the master plan. The Stamford charter prevents the zoning board from changing the zoning map to permit, in any area, a use which is contrary to the general land use established for that area by by the master plan. Stamford Charter § 552; 26 Spec.Laws 1234. The action by the planning board was a necessary prerequisite to favorable action by the zoning board in this case. As the A.M.F. tract was already included in the master plan for the use for which the zone change was sought, nothing in § 8-3a of the General Statutes, effective October 1, 1959, would, even if that statute were applicable, have required the zoning board to refer the A.M.F. application to the planning board. See Chayt v. Maryland Jockey Club, 179 Md. 390, 394, 18 A.2d 856. The public hearing in this case was assigned for September 30, 1959, a date which antedated the effective date of the statute. It should be noted that under the Stamford charter (§ 552) unfavorable action by the planning board precludes action by the zoning board, whereas disapproval under the statute permits action by the zoning board but requires a vote of not less than two-thirds of all the members of the zoning board to adopt the change.

Twenty-four owners of property in the general neighborhood took the present appeal to the Court of Common Pleas. Only four of them satisfied the court that they were aggrieved by the action of the board and were proper parties to pursue the appeal. Although the defendants challenge this conclusion, there was sufficient evidence, if believed by the trier, to sustain it. It was a question of fact for the court to determine. Fox v. Zoning Board of Appeals, 146 Conn. 665, 667, 154 A.2d 520.

Subsequent to the action of the zoning board on April 29, 1957, in granting the application in the Gordon case, supra, to change the zone, but prior to the determination of the appeal therein, the legislature enacted a special act, effective May 28, 1957, directing the highway commissioner to improve and widen High Ridge Road south of the Merritt Parkway. 28 Spec.Laws 538. The road, a state-aid highway, had not been widened prior to the favorable action by the board on the present application. In Gordon, the inadequacy of the interchange at the parkway--and of the adjacent roads--for handling additional traffic was pointed out. When the board heard the present application, representatives of the highway department testified that the interchanges for both eastbound and westbound traffic on the parkway had been redesigned and were to be relocated, improved and enlarged as the result of traffic studies made in 1955. Contracts for this work as well as a contract for the widening of High Ridge Road to make it four instead of two lanes had been executed, and the work was to be started about November 15, 1959, and finished in July, 1960. These proposed alterations, which would make the traffic pattern entirely different from that which existed in Gordon, were included among the reasons given by the board for its approval of the change of zone. Especially in view of the fact that contracts to carry out the proposed alterations had actually been made when the board acted, there is no merit to the contention of the plaintiffs that the board should not have given any consideration to the alterations. They had been completed and were in operation when this case was tried below. At the conclusion of the trial, the court, with counsel, viewed the A.M.F. tract and the area immediately surrounding it. Because of the extensive changes which had been made since the board acted, the plaintiffs objected to the court's consideration of any factors which would be disclosed by the viewing, unless their consideration was restricted to the question of aggrievement. As the alterations to be made in the roadways and interchanges were included among the reasons given by the board for its action, the court did not abuse its discretion in refusing to restrict the scope of its view of the area as requested. See Dickson v. Yale University, 141 Conn. 250, 256, 105 A.2d 463.

Basically, the principal objections of the plaintiffs to the change of zone can be compressed into three categories. They claim that there has been no substantial change in conditions in the area since the adoption of the current zoning map in 1951, that the change in zone is not in accordance with the comprehensive plan, and that the change in zone constitutes spot zoning. The evidence on which the plaintiffs rely to substantiate their first contention was not such that it had to be accepted by the board. It is stated on the face of the zoning map included in the return of the board to the trial court that the map was adopted in November, 1951, and included all amendments and revisions as of August 23, 1956. While it is true that the A.M.F. tract is still in the primitive state it was in, in 1951, we do not subscribe to the plaintiffs' view that the board is precluded from taking into consideration changes which have occurred in the general neighborhood, though not in the particular property involved. Ball v. Town Plan & Zoning Commission, 146 Conn. 397, 400, 151 A.2d 327. Since 1951, the nearby C-D...