Mills v. Town Plan and Zoning Commission of Town of Windsor

• Decision Date: 15 April 1958
• Citation: 140 A.2d 871,145 Conn. 237
• Court: Connecticut Supreme Court
• Parties: Marguerite E. MILLS et al. v. TOWN PLAN AND ZONING COMMISSION OF The TOWN OF WINDSOR et al. Supreme Court of Errors of Connecticut

Page 871

140 A.2d 871

145 Conn. 237

Marguerite E. MILLS et al. v. TOWN PLAN AND ZONING COMMISSION OF The TOWN OF WINDSOR et al.

Supreme Court of Errors of Connecticut.

April 15, 1958.

Frank J. Monchun, Hartford, with whom were Harry Cooper, Hartford, and William E. O'Connor, Windsor, for appellant (named defendant) and with whom, on the brief, was Francis Barberio, New Haven, for appellant-defendant Fusco-Amatruda Co.

Merriam Davis, Hartford, with whom was Roger Wolcott Davis, Hartford, for appellee (named plaintiff).

Ralph C. Nixon, Hartford, for appellees-plaintiffs The Park Regional Corp. and Stanley B. Loucks.

Before WYNNE, C. J., and BALDWIN, DALY, KING and MURPHY, JJ.

MURPHY, Associate Justice.

The plaintiffs appealed to the Court of Common Pleas from the action of the defendant town plan and zoning commission in granting a change in the comprehensive plan of development of the town of Windsor and a change of zone of certain property from agriculture to business 2. From the judgment of the trial court sustaining the appeal, the defendants have appealed to this court. Two questions only are involved in the determination of this appeal. First: Are the plaintiffs 'aggrieved' so as to be entitled to appeal? Second: Did the commission have the legal right to change the plan and the zone within a comparatively short time after it had denied a similar application?

Christensen Brothers and Jepsen, a partnership, is the owner of nineteen acres of land on the northeast corner of Windsor Avenue and South Meadow Road, five acres of which, abutting Windsor Avenue, are zoned for business. The remaining fourteen acres are in an agricultural zone. On March 7, 1956, the commission by a unanimous vote denied an application to change the comprehensive plan and to change the zone of these fourteen acres from agriculture to B-2 to permit the establishment of a local shopping center. The principal reasons, among others, given by the commission for this action were that the major portion of the land is subject to flooding and had been flooded on three occasions, the latest in 1955, and that the land in the area already zoned for business is adequate. On March 29, 1956, the owners filed another application for a change in the comprehensive plan and a change in zone from agriculture to B-2. The only difference between this application and the one denied on March 7 is the recital that the change sought was to 'regional shopping area or center (B II).' The zoning regulations make no provision for such a classification. Windsor Zoning Regs., § 1.02 (1956). The commission, by a vote of three to two, granted the application on May 9, 1956. The plaintiffs thereupon took an appeal to the Court of Common Pleas.

There are three plaintiffs, Marguerite E. Mills, Stanley B. Loucks and The Park Regional Corporation. All are property owners in the town. Miss Mills and Loucks are residents also. None of their property is located in the immediate vicinity of Windsor Avenue and South Meadow Road. Both Miss Mills and the corporation, of which Loucks is an officer and stockholder, have unsuccessfully sought to have their respective properties zoned as business 2 to accommodate shopping centers. Mills v. Town Plan and Zoning Commission, 144 Conn. 493, 134 A.2d 250; Park Regional Corporation v. Town Plan and Zoning Commission, 144 Conn. 677, 136 A.2d 785. Their appeals were pending in this court at the time the instant case was being tried in the lower court.

Section 379d of the 1955 Cumulative Supplement, together with § 381d and § N11 (Nov. 1955 Sup.), gives to '[a]ny person or persons * * * aggrieved' the right to appeal from any decision of the commission. The only facts found by the trial court upon which it could have concluded that the plaintiffs were aggrieved were that they were residents and owners of real property. That they anticipated that they might be competitors in the sense that at the time of trial they were hopeful of favorable action upon their appeals would not be sufficient. Benson v. Zoning Board of Appeals, 129 Conn. 280, 284, 27 A.2d 389. Nor can they claim to be 'persons * * * aggrieved' by virtue of being owners of property in the immediate vicinity, since the court has found that their properties are not nearby. Farr v. Zoning Board of Appeals, 139 Conn. 577, 583, 95 A.2d 792. It must be borne in mind, however, that the commission changed not only the zone of the Christensen Brothers and Jepsen property but the comprehensive plan of development in a manner affecting not only that property but also the respective properties of the plaintiffs. '[A] comprehensive plan means a general plan to control and direct the use and development of property in a municipality or a large part of it by dividing it into...