Moscowitz v. Planning and Zoning Com'n of Town of Sherman

• Decision Date: 20 September 1988
• Docket Number: No. 6043,6043
• Court: Connecticut Court of Appeals
• Parties: Carole S. MOSCOWITZ v. PLANNING AND ZONING COMMISSION OF the TOWN OF SHERMAN.

Page 569

547 A.2d 569

16 Conn.App. 303

Carole S. MOSCOWITZ v. PLANNING AND ZONING COMMISSION OF the TOWN OF SHERMAN.

No. 6043.

Appellate Court of Connecticut.

Argued April 7, 1988.

Decided Sept. 20, 1988.

Jack Stock, with whom was Peter V. Gelderman, Westport, for appellant (defendant).

Francis G. Pennarola, Waterbury, for appellee (plaintiff).

Before BORDEN, SPALLONE and FOTI, JJ.

SPALLONE, Judge.

The defendant appeals from the judgment rendered by the trial court sustaining the plaintiff's administrative appeal, claiming the trial court erred (1) by failing to find that a notation on a subdivision map restricting further subdivisions was valid, (2) by failing to find that the notation was valid where no appeal had been taken from the imposition of the notation, and (3) by failing to find that the plaintiff was estopped from challenging the notation, having taken title to the subject property with full knowledge of the restriction. We find no error.

The following facts are pertinent to this appeal. In 1977, the defendant planning and zoning commission approved an application for subdivision submitted by Marianne E. Ward, the owner of the property at that time. The approval resulted in the subdivision of a 94 acre parcel of land into three parcels: parcel A was set out as 46.4 acres; parcel B was 36.2 acres; and parcel C was 2 acres. ¹ At this time, Ward included a notation on the subdivision map that "parcel B shall not be resubdivided into more than 2 parcels."

In 1979, Ward applied to the defendant for a resubdivision of parcel B into three lots: two lots of 14 acres each and an additional lot of 8.2 acres which was to be added to the previously created parcel A. When the defendant approved this application, it required that the subdivision map bear a notation that "Lots 1 and 2 shall not be resubdivided at any future time."

Ward subsequently conveyed the two 14 acre lots to the plaintiff. In March, 1985, the plaintiff applied to the defendant to resubdivide the 28 acres into six residential building lots. ² After a public hearing was held, the defendant denied the application. The defendant's stated reasons for its denial of the plaintiff's application was the existence of the restrictive notation on the 1979 subdivision map, and its determination that there had not been a "sufficient change in circumstances" to warrant removal of the restriction.

The plaintiff appealed to the Superior Court, contending that the map restriction was unenforceable and that the defendant had acted illegally, arbitrarily and in abuse of its discretion. The defendant countered with the argument that the imposition of the restrictive notation was no more than a "conditional approval" of the 1979 resubdivision application, that such conditional approvals have been found to be permissible under recent state case law, and that any challenge to the validity of the imposition of the condition should have been made in 1979. The trial court sustained the plaintiff's appeal, finding that the defendant's actions were beyond the power granted to it by General Statutes §§ 8-25 and 8-26, ³ and ordered that the case be remanded to the defendant for approval of the application if the plaintiff has met all of the relevant zoning and subdivision regulations. From this judgment, the defendant appeals.

I

We agree with the trial court's conclusion that the defendant did not have the authority in 1979 to impose a condition restricting future subdivisions and, therefore, that condition was void ab initio and could not provide sufficient grounds for the denial of the plaintiff's application.

It is axiomatic that " ' "[a]s a creature of the state, the ... [town ... whether acting itself or through its planning commission,] can exercise only such powers as are expressly granted to it, or such powers as are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation." Baker v. Norwalk, 152 Conn. 312, 314, 206 A.2d 428 [1965], and cases cited therein; Bredice v. Norwalk, 152 Conn. 287, 292, 206 A.2d 433 [1964]; State ex rel. Sloane v. Reidy, 152 Conn. 419, 423, 209 A.2d 674 [1965]. In other words, in order to determine whether the [condition] in question was within the authority of the commission to [impose], we do not search for a statutory prohibition against such an [action]; rather, we must search for statutory authority for the [action].' Avonside, Inc. v. Zoning & Planning Commission, 153 Conn. 232, 236, 215 A.2d 409 (1965); Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 19, 523 A.2d 467 (1987)." Builders Service Corporation v. Planning & Zoning Commission, 208 Conn. 267, 274-75, 545 A.2d 530 (1988).

We begin our analysis with General Statutes § 8-26 which, inter alia, authorizes a municipal planning commission to consider and act upon proposed subdivision applications. Simply stated, "[n]othing in the subdivision approval statute, § 8-26, allows for the imposition of conditions upon the planning and zoning commission's approval of a subdivision plan; the statute merely provides for the commission to 'approve, modify and approve, or disapprove' a subdivision application." Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 592, 409 A.2d 1029 (1979). ⁴ A planning commission, therefore, is only authorized to take one of three courses of action when considering a subdivision application: it can approve the application exactly as it was submitted; it can make changes to the application to ensure compliance with the subdivision regulations and compatibility with the municipality's comprehensive plan, and then approve the application as so modified; or it can disapprove the application outright. Any other action taken by a planning commission necessarily falls outside the statutory delegation of powers contained in the enabling act and cannot stand. Carpenter v. Planning & Zoning Commission, supra, 596, 409 A.2d 1029, citing Wine v. Council of City of Los Angeles, 177 Cal.App.2d 157, 2 Cal.Rptr. 94 (1960); State ex rel. Strother v. Chase, 42 Mo.App. 343 (1890); Midtown Properties, Inc. v. Township of Madison, 68 N.J.Super. 197, 172 A.2d 40 (1961); see also 4 R. Anderson, American Law of Zoning (3d Ed.) § 25.18, pp. 319, 323; 3 A. & D. Rathkopf, Law of Zoning and Planning § 42.07[b] n. 65; 7 P. Rohan, Zoning and Land Use Controls § 45.01; T. Tondro, Connecticut Land Use Regulation § IV-B-3, p. 110; 2 E. Yokley, Zoning Law and Practice (3d Ed.) § 12.7, p. 48.

The defendant attempts to justify its actions by referring us to cases where "conditional approvals" ⁵ have been imposed by planning commissions and upheld by the courts. See, e.g., Whittaker v. Zoning Board of Appeals, 179 Conn. 650, 427 A.2d 1346 (1980); Carpenter v. Planning & Zoning Commission, supra; Nicoli v. Planning & Zoning Commission, 171 Conn. 89, 368 A.2d 24 (1976); Crescent Development Corporation v. Planning Commission, 148 Conn. 145, 168 A.2d 547 (1961); Langbein v. Planning Board, 145 Conn. 674, 146 A.2d 412 (1958).

Of the cases relied on by the defendant, however, only two concern the review of subdivision plans; Nicoli and Crescent Development; both of which are clearly distinguishable from the case now before us. First, the defendant is incorrect in its statement that these cases upheld the imposition of conditional subdivision approvals. In Crescent Development Corporation v. Planning Commission, supra, where a planning board had approved a subdivision application "subject to" changes in the proposed roads and accessways, our Supreme Court noted that "the practical effect of the defendant's action was to approve the plan after modifying it." Id., 148 Conn. at 148, 168 A.2d 547. The court noted that the power to modify was given by statute; General Statutes § 8-26; and concluded that both the New Canaan subdivision regulations and General Statutes § 8-25 supported the commission's actions. Id., 149, 152-53, 168 A.2d 547. In Nicoli v. Planning & Zoning Commission, supra, our Supreme Court was presented with a factual scenario almost identical to that in Crescent Development. Again, relying on the provisions regarding traffic safety and adequate thoroughfares contained in both § 8-25 and the municipality's subdivision regulations, the court found sufficient authority for the modifications ordered by the planning commission. ⁶

Lest we be accused of being more concerned with semantics than substance, we must note that it is the nature of the underlying action taken by the planning commission that will determine its legality, not whether it is phrased in terms of a "modification" or "conditional approval." The commissions in Crescent Development and Nicoli were found to possess the authority to require alterations in the planned road layouts submitted to them on the basis of their legitimate concerns with traffic flow. In contrast, the imposition of the restrictive notation by the defendant in this case is neither a "modification," within the generally understood meaning of that term, nor does it bear a rational relationship to the enumerated health, safety and public welfare considerations set forth in General Statutes § 8-25. ⁷

We conclude that a blanket prohibition on future subdivisions, without reference to a relevant provision in either the local subdivision regulations or the enabling statutes, is an impermissible expansion of the powers wielded by a planning commission. ⁸ As an administrative body, a municipal planning commission performs ministerial functions. T. Tondro, supra, IV-B-3, p. 113. "If the plan submitted conforms to [the] regulations, the council has no discretion or choice but to approve it." (Citations omitted.) RK Development Corporation v. Norwalk, 156 Conn. 369, 375-76, 242 A.2d 781 (1968). By placing the restrictive notation on the 1979 map, the commission empowered itself to deny any future applications even if the future applications fully complied with the regulations. ...