Lupinacci v. Planning and Zoning Commission of Town of Darien

• Decision Date: 25 May 1966
• Court: Connecticut Supreme Court
• Parties: Charles A. LUPINACCI et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF DARIEN (two cases).

Page 274

220 A.2d 274

153 Conn. 694

Charles A. LUPINACCI et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF DARIEN (two cases).

Supreme Court of Connecticut.

May 25, 1966.

Irving S. Ribicoff, Hartford, with whom were Louise H. Hunt, Hartford, and, on the brief, Walton Clark, Jr., Darien, and Mildred Weil, Stamford, for appellants (plaintiffs).

Warren W. Eginton, Stamford, with whom, on the brief, were Edward R. McPherson, Jr., and P. Hurley Bogardus, Jr., Stamford, for appellee (defendant).

Before KING, C.J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.

HOUSE, Associate Justice.

Two appeals by the plaintiffs have been combined for hearing in this court in accordance with § 606 of the Practice Book. Both arise from efforts of the plaintiffs to obtain a change in the zonal classification of a portion of their property in Darien from a residence R-1/2 zone to a planned retail business zone. They attempted to accomplish this change by separate simultaneous applications to the defendant, the planning and zoning commission of Darien, hereinafter referred to as the commission. One was an application to amend the plan of development to include the preposed change in zone; the other was for a specific change in the zonal classification of the property.

A full 'simultaneous' hearing on both application was held by the commission. Since two members of the commonission were absent, it was stipulated that the four members present should hear and decide the merits of the applications. In executive session, after the hearings, the four members split evenly, two in favor of granting the requested change and two opposed. This failure to grant the applications amounted to a denial of them. Hall v. Planning & Zoning Board, 153 Conn. 574, 576, 219 A.2d 445. On the pleadings in the Court of Common Pleas, the commission admitted that it had denied the applications. The plaintiffs in their appeals alleged that the denial was illegal, arbitrary, unreasonable and in abuse of the commission's discretion and that it constituted a denial to the plaintiff of due process of law and of their state and federal constitutional rights. The Court of Common Pleas dismissed the appeals.

In such circumstances, since the plaintiffs attacked the legality and reasonabless plaintiffs attacked the legality and reasonableness rested with them, and in considering the appeals, we examine the record before the commission to determine whether it supports the commission's failure to approve the applications. Hall v. Planning & Zoning Board, supra.

The property for which the change of zone is requested consists of 2.47 acres of a four-acre tract of undeveloped land lying in a still larger triangular area between the Connecticut Turnpike, the Boston Post Road and the New York, New Haven and Hartford Railroad. On two sides the subject property is bounded by highways which separate it from business zones, on a third side it is bounded by a business zone, and on the fourth side it is bounded by the larger residential zone of which it is a part. Over the years, since zoning was inaugurated in Darien in 1925, there has been a gradual but definite encroachment of business into the area, and the effect of granting either of the plaintiffs' applications would be to continue this trend and further increase the business zone at the expense of the adjoining residential area.

The record demonstrates that the commission in considering the plaintiffs' applications gave 'full and careful consideration * * * to the overall welfare of the community as a whole, considering all the factors involved.' In the formal notice of the denial of the applications, it noted that the requested change of zone 'would not be in compliance with the Plan of Development' and expressly solicited from the plaintiffs 'alternate proposals for the general neighborhood.' This is of particular significance, since a granting of the plaintiffs' desired change of zone from residence R-1/2 to planned retail business would downgrade the zonal classification five steps, passing over the less restrictive residential area requirements of two other residential classifications and three zones in the category of designed office and research. Darien Zoning Regs. §§ 300, 320 (1964).

The commission may have reasonably concluded that public interest required that the land in question remain residential or be reclassified in any one of the zones between residence R-1/2 and planned business as a proper dividing area between the business zone and the remaining adjoining residential area. At the time of the hearing, the commission was working on a new master plan of development, and one ground of objection voiced at the hearing was that no action to change the zone should be taken until this new plan had been developed.

Also, there is nothing in the record to support the plaintiff's claim that...