McCrann v. Town Plan and Zoning Commission of Town of Bloomfield

• Decision Date: 13 April 1971
• Citation: 282 A.2d 900,161 Conn. 65
• Court: Connecticut Supreme Court
• Parties: Donald J. McCRANN et al. v. TOWN PLAN AND ZONING COMMISSION OF the TOWN OF BLOOMFIELD et al.

Page 900

282 A.2d 900

161 Conn. 65

Donald J. McCRANN et al. v. TOWN PLAN AND ZONING COMMISSION OF the TOWN OF BLOOMFIELD et al.

Supreme Court of Connecticut.

April 13, 1971.

Peter J. Preisner, Hartford, for appellants (plaintiffs).

Richard Goodman, Hartford, for appellee (named defendant).

Arthur M. Nassau, Hartford, for appellees (defendant Interfaith Homes, Inc., and others).

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

RYAN, Associate Justice.

The redevelopment agency of the town of Bloomfield, hereinafter referred to as the Agency, made application to the town plan and zoning commission of the town of Bloomfield for site plan approval for forty-six units of housing for the elderly which was proposed to be constructed on a 2.2-acre site by Interfaith Homes, Inc., hereinafter referred to as Homes. The plans submitted provided for the construction of four separate buildings facing an access road twenty-six feet wide, which begins at Mountain Avenue and terminates in a parking lot with two buildings on each side of the road. Thirty-one parking spaces are provided. On July 24, 1969, the commission held a public hearing on the application and on September 11, 1969, the commission denied it. Thereafter, the Agency applied for approval of the application on the basis of changes in the plans and on October 9, 1969, the commission held a public hearing on this application. On October 23, 1969, the commission approved the site plan. The plaintiffs, who own land abutting the subject property, appealed to the Court of Common Pleas which dismissed the appeal and rendered judgment for the defendants. The plaintiffs have appealed to this court. They have made numerous assignments of error and claim, in substance, that the site plan violated the Bloomfield zoning regulations and that improper procedures used by the commission render its approval of the site plan void.

The plaintiffs urge that proper notice of the public hearing on the site plan application was not given. Section 210(B) of the zoning regulations requires that such an application be 'submitted to the Commission in the manner required for a change of zone' and that it include a site plan. Section 210(E) of the regulations provides that the commission 'shall hold a public hearing * * * with due notice as provided by the General Statutes of the State of Connecticut for a change in the Zoning Regulations.' Section 8-3 of the General Statutes provides the notice requirements for public hearings to consider changes in the zoning regulations. Advertisement in a newspaper is required to give notice of the time and place of the hearing, and there is a further proviso that 'a copy of * * * (the) proposed regulation or boundary shall be filed in the office of the town, city or borough clerk.' The plaintiffs do not claim that they failed to receive notice of the time and place of the hearing or that such notice was not properly advertised in a newspaper in accordance with the statute. They urge that the agency failed to file the site plan with the town clerk of Bloomfield, and that this was a jurisdictional defect which rendered the actions of the commission void. The parties have stipulated that the proposed site plan was filed with the commission and the building inspector prior to October 9, 1969, the date of the hearing, and that it was not filed with the town clerk.

Section 210(E) adopts the notice provisions for public hearings of § 8-3 of the General Statutes. The statute does not deal with site plans and there is nothing contained therein to indicate that site plans should be filed with the town clerk. The only requirement for filing documents with the town clerk under the provisions of § 8-3 is for a 'proposed regulation or boundary.' Since neither of these was involved in this hearing that portion of the statute was not applicable, nor was it the intention of § 210(E) of the regulations to require such a filing. The plaintiffs make no claim that they were unable to gain access to the site plan in time to contest its approval at the hearing on October 9, 1969. In fact, it is obvious from the manner in which the plaintiffs' attorney conducted himself at the hearing that he was thoroughly familiar with the site plan. The notice requirements of the zoning regulation were not violated.

The plaintiffs urge that the plot of land consisting of 2.2 acres was improperly zoned B-3 by the defendant commission on July 15, 1968, and that a B-3 use should not be permitted on it. Section 8-9 of the General Statutes provides that appeals from a planning and zoning commission may be taken in the manner provided in § 8-8. Section 8-8 authorizes appeals to be taken within fifteen days from the date when notice of the decision of the commission is published. The plaintiffs seek to avoid the fifteen-day limitation period for appeals by invoking the rule applied in Hutchison v. Board of Zoning Appeals, 138 Conn. 247, 252, 83 A.2d 201. In that case a planning board changed the zoning boundary without giving proper notice of the hearing. We held that this constituted a jurisdictional defect and rendered the action of the board void. In the present case there is nothing to indicate a jurisdictional defect in the action of the commission. No appeal was taken by the plaintiffs within the statutory period pursuant to §§ 8-8 and 8-9. They have not standing to attack in the present appeal the validity of the commission's action in 1968.

The plaintiffs assign error in the conclusion of the trial court that the site plan was not a subdivision. It is their position that this permitted the Agency and Homes to ignore the subdivision regulations, thereby avoiding requirements which the proposed project would be unable to meet. Subdivision is defined in § 8-18 of the General Statutes. ¹ On analysis of the statute, it is clear and unambiguous language requires: (1) the division of a tract or parcel of land into three or more parts or lots, and (2) for the purpose, whether immediate or future, of sale or building development. The site in question was created by combining tow lots to make one parcel of 2.2 acres. There was no division of a tract into three or more parts or lots and in the absence of this statutory requirement there was no subdivision. The conclusion of the trial court was correct.

The plaintiffs urge that the action of the commission was in violation of the zoning regulations in many respects. They claim that the site plan does not provide the requisite number of parking spaces in accordance with the regulations; that it provides for the construction of buildings with less than the rear-yard requirements of the regulations; that it fails to make adequate provision for the disposition of surface and flood waters; that it fails to provide for appropriate traffic circulation and access; and that it fails to provide adequate safeguards to adjacent properties. In applying their zoning regulations to a particular situation, the commission is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal. Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560, 236 A.2d 96; Connecticut Sand & Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442, 190 A.2d 594. This court cannot substitute its discretion for the discretion enjoyed by the commission. Belknap v. Zoning Board of Appeals, 155 Conn. 380, 384, 232 A.2d 922; Zieky v. Town Plan & Zoning Commission, 151 Conn. 265, 267, 196 A.2d 758. When reviewing the actions of the commission to determine if its findings complied with the Standards set out in the regulations, we are not compelled to indulge in a microscopic search for technical infirmities. Parish of St. Andrew's Protestant Episcopal Church v. Zoning Board of Appeals, 155 Conn. 350, 357, 232 A.2d 916; Silver Lane Pickle Co. v. Zoning Board of Appeals, 143 Conn. 316, 319, 122 A.2d 218. The determination of what the public interest requires is within the discretion of the commission. Wade v. Town Plan & Zoning Commission, 145 Conn. 592, 595, 145 A.2d 597; Winslow v. Zoning Board of Stamford, 143 Conn. 381, 391, 122 A.2d 789. It is only where the local zoning authority has acted arbitrarily or illegally and thus abused the discretion vested in it that the courts can grant relief on appeal. Stiles v. Town Council of West Hartford, 159 Conn. 212, 219, 268 A.2d 395.

The site plan provides thirty-one parking spaces for forty-six dwelling units. Section 407(3) of the regulations requires one parking space for each dwelling unit for buildings used for residence. Section 407(8) allows a modification of this rule if the commission finds that the 'proposed use is of such peculiar nature that the requirements for parking do not conform to the intent of the regulations and would clearly not require the parking spaces proposed.' The commission heard evidence to the effect that thirty-one parking spaces would be more than adequate under both the F.H.A. requirements for housing for the elderly and the regulations of the state department of community affairs for housing. The finding of the commission that this type of housing does not require the same number of parking spaces normally required for residential housing, its modification of the parking rules and its acceptance of the proposed number of parking spaces in the site plan as adequate, were not unreasonable. In the minutes of the executive session of the commission there is a finding that '(i)t was generally agreed that there are more than sufficient parking spaces for the project.' The claim of the plaintiffs that this finding lacked the specificity required by the regulations cannot be sustained.

Under the provisions of § 210(C) of the regulations a ten-foot side yard and a twenty-foot rear yard are required. The building nearest the plaintiffs' property complies with the side-yard requirement. The...