Lurie v. Planning and Zoning Commission of Town of Westport

• Decision Date: 20 January 1971
• Citation: 160 Conn. 295,278 A.2d 799
• Court: Connecticut Supreme Court
• Parties: , 49 A.L.R.3d 476 David R. LURIE et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF WESTPORT et al.

Page 799

278 A.2d 799

160 Conn. 295, 49 A.L.R.3d 476

David R. LURIE et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF WESTPORT et al.

Supreme Court of Connecticut.

Jan 20, 1971.

Albert L. Coles, Bridgeport, with whom, on the brief, were James J. O'Connell and David O. Chittick, Bridgeport, for appellants (plaintiffs).

Hereward Wake, with whom were Edwin K. Dimes, Westport, and, on the brief, Edgar T. See, Westport, for appellee (defendant Famous Artists Schools, Inc.).

Joseph F. McKeon, Jr., with whom was John W. Boyd, Westport, for appellee (named defendant).

Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPRIO, JJ.

HOUSE, Associate Justice.

This is an appeal from a judgment of the Court of Common Pleas which dismissed the appeal of the plaintiffs from unanimous decisions of the planning and zoning commission of the town of Westport which had voted (a) to amend the Westport town plan of development to designate an area of sixty-two acres as a design development district under the Westport zoning regulations; (b) to rezone that area from AAA residence zone to design development district #4-AAA and (c) to issue a special permit for the use of the area for the layout and construction of office buildings and accessory buildings and structures for the conduct of the business of Famous Artists Schools, Inc., and its subsidiary or affiliated companies.

The plaintiffs have claimed and briefed four assignments of error, on the basis of which they assert that the judgment of the Court of Common Pleas should be reversed. We will consider them in the order in which they have been presented in the brief of the plaintiffs.

The first claim of error is predicated upon the assertion that the action of the defendant commission in granting a special permit to Famous Artists Schools, Inc., hereinafter referred to as F.A.S., was invalid because the commission imposed conditions which were beyond its power to impose. In granting the special permit the commission laid down in meticulous detail specific conditions to the granting of the permit. The majority of these conditions pertain to such on-site matters as size and location of construction, parking facilities, buffer areas, screening and landscaping, entrance roads, lighting and utility installation. The imposition of these conditions is not attacked. In addition to these on-site conditions, however, the commission also made issuance of the permit subject to certain off-site changes, improvements and conditions. These included: (1) the improvement of Partrick Road, a town highway, by widening it in a specified 500-foot area from a two-lane to a three-lane highway with specified evergreen plantings along the right of way. The commission in imposing this condition stated its belief that 'it is reasonable and equitable to require F.A.S. to participate in the roadway improvement to an amount of at least 50% of the cost and to be solely responsible for the provision of the required trees along the road sides'; (2) that F.A.S. regrade an embankment adjacent to Newtown Turnpike to provide additional sight distance and relocate a section of the turnpike in accordance with identified detailed specifications submitted by Harvey B. Boutwell, an engineer, and as approved by the town engineer; (3) that during specified hours F.A.S. provide three traffic guards to direct traffic, that right turns from the access road to Partrick Road or left turns from Partrick Road to the access road be prohibited and '(a) sign to such effect shall be requested from the Westport Traffic Authority and the prohibition shall be policed by the Westport Police Department'; (4) that all finished graded areas shall be planted and seeded; (5) that F.A.S. construct a school bus parking area at a defined location on the west edge of Newtown Turnpike on town property; (6) that traffic signs be installed at specific locations; (7) that a performance bond in the amount of $30,000 be submitted to guarantee the off-site improvements mentioned in conditions 1, 2 and 5; and (8) that a maintenance bond in the amount of $5000 be provided to guarantee the upkeep of the required plantings and the cleanliness of the property. It is the claim of the plaintiffs that these enumerated imposed conditions 'were patently unauthorized and invalid' because the commission 'had no authority to decree the expenditure of public money for the improvement of Partrick Road, * * * nor could it impose on F.A.S. * * * one-half of the cost of the road improvement. * * * It had no power to order F.A.S. to improve Newtown Turnpike * * * was not empowered to assume the role of traffic authority * * * not empowered to establish traffic patterns on Partick Road, to establish street sign locations * * * to order the Westport Traffic authority to provide a sign * * * nor could it assume the jurisdiction of the Westport Board of Education by requiring F.A.S. to construct a school bus parking area at a point selected by the commission.'

The short answer to these claims is that the defendant planning and zoning commission did none of these things and had no authority to order the town or any agency of the town to do any of them. The broad powers possessed by the commission acting under the authority of §§ 8-2, 8-3, 8-23 and 8-24 of the General Statutes and the Westport zoning regulations do not include any such powers or authority nor did the commission purport to exercise such power and authority. Section 8-2 expressly provides that 'certain classes or kinds of buildings, structures or use of land' may be permitted only after obtaining a special permit from the commission 'subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values.' The Westport zoning regulations, pursuant to this statutory authority, provide for design development districts and for their use upon the issuance of a special permit 'subject to appropriate conditions and safeguards'. The regulations permit the issuance of a certificate of occupancy in a design development district only after the requirements of the permit have been completed and a determination has been made by the commission that the conditions of approval have been met.

It would unduly lengthen this opinion to include even a summary of the findings made by the defendant commission upon which it predicated its decision conditionally to issue the design development district use permit in this case and the meticulous detail in which it prescribed all of the many conditions to which the issuance of the permit was made subject. It is precisely this specificity of condition which distinguishes this case from those upon which the plaintiffs chiefly rely. Farina v. Zoning Board of Appeals, 157 Conn. 420, 422, 254 A.2d 492, concerned the powers of the Trumbull board of appeals, which board granted a special exception for a housing complex subject to the condition that a street 'shall be widened at the direction of the town traffic commission so as to be suitable and adequate to handle the traffic generated by the housing project.' As the majority opinion in that case noted (p. 423, 254 A.2d p. 494): 'It is apparent that the condition imposed by board of appeals delegated to the town traffic commission the duty of determining the extent of the traffic increase owing to the proposed housing development and what corrective measures, if any, would be required in order to accommodate this increased traffic.' This court held that '(t)he board of appeals cannot, however, delegate the duty of making this determination to the town traffic commission.' In the present case there was no such delegation of the duty of making a determination. From the evidence presented to it the commission itself properly determined exactly what off-site highway and traffic changes were desirable in the interests of public safety and then made the effectuation of those specific changes a condition of the special permit.

Similarly, in Parish of St. Andrew's Protestant Episcopal Church v. Zoning Board of Appeals, 155 Conn. 350, 232 A.2d 916, which was also a case involving an exception granted by a board of appeals, the board granted an exception subject to a condition that the applicant convey a strip of land to the city but also reserved an option to revoke approval if the applicant failed to comply with the requirement. This court held (p. 353, 232 A.2d p. 919) that '(t)he conditions under which an exception is permitted must be found in the regulations themselves and cannot be altered', that the Stamford zoning regulations governing the granting of exceptions by the board of appeals did not permit such a decision (p. 354, 232 A.2d p. 919), and that '(s)o much of the decision as imposed the condition and reserved the right to revoke the permission is void and of no force.'

In Brustein v. Zoning Commission, 151 Conn. 101, 105, 193 A.2d 523, 525, the Bridgeport zoning commission granted an application for a change of zone to permit the erection of an apartment house but because of the need to widen the highway to relieve traffic congestion it specified that the change would become effective only when the owner and developer of the tract granted an easement for highway purposes over a portion of the tract adjoining the highway. Although the easement was later granted this court held that the action of the commission could not be sustained since the mere execution of the instrument granting the easement to the city without an actual widening of the traveled portion of the highway did not, and could not, solve the traffic problem and '(s)o long as traffic congestion remains a major problem, the change of zone should not be granted.'

As we have noted, the present case involving a permit for the use of a design development district granted by a planning and zoning commission differs from these cases in the material respect that the commission...