Murach v. Planning and Zoning Com'n of City of New London

• Decision Date: 07 May 1985
• Citation: 491 A.2d 1058,196 Conn. 192
• Court: Connecticut Supreme Court
• Parties: Boleslaus J. MURACH, Jr., et al. v. PLANNING AND ZONING COMMISSION Of the CITY OF NEW LONDON et al.

Page 1058

491 A.2d 1058

196 Conn. 192

Boleslaus J. MURACH, Jr., et al. v. PLANNING AND ZONING COMMISSION Of the CITY OF NEW LONDON et al.

Supreme Court of Connecticut.

Argued Jan. 18, 1985.

Decided May 7, 1985.

Glenn M. Gordon, Norwich, for appellants (plaintiffs).

Jane W. Freeman, New London, for appellee (defendant Ectrav, Inc.).

Steven Spellman, New London, for appellee (defendant William E. Maloney).

Myron B. Bell, New London, for appellee (named defendant).

Before ARTHUR H. HEALEY, PARSKEY, SHEA, DANNEHY and HAMMER, JJ. ARTHUR H. HEALEY, Associate Justice.

This case is an appeal from a judgment of the trial court upholding a decision of the city of New London planning and zoning commission (hereinafter the commission) to approve a zone reclassification. The questions presented require us to construe portions of General Statutes § 8-19 ¹ as applied to General Statutes § 8-4a. ²

The trial court found the following facts. On June 1, 1982, the defendants William E. Maloney and Ectrav, Inc., applied to the commission for a zoning reclassification of a tract of land consisting of approximately five acres located north of interstate route 95 and east of Coleman Street, New London. The defendants' application requested that the commission reclassify a tract ³ from R-1 to C-1. ⁴ The defendants had proposed the construction of a two-story motel upon the tract.

The commission conducted public hearings on July 15 and August 5, 1982, regarding the defendants' application. ⁵ In addition, a "voting eligibility hearing" was held on August 19, 1982, in order to determine which members of the commission were qualified to vote on the requested zone reclassification. At the September 16, 1982, public voting session, the zone reclassification was unanimous, approved by all seven of its members who voted on the application. Under the commission's procedure, five members must vote in favor of a zone reclassification to approve such a request. ⁶

One of the commission's members, Arthur Nunes, was a paid employee of the city of New London's fire department. Nunes had not himself attended either of the two prior public hearings ⁷ but was present at the September 16 voting session. At that session Nunes and six other commission members were declared eligible to vote on the defendants' application. Upon the commission chairperson's request for a motion on the defendants' application, Nunes moved "that it be accepted under the usual procedure." The trial court specifically found that Nunes had "made no additional statements in an attempt to influence or sway the other members of the commission." Nunes was one of the seven who voted in favor of the reclassification.

The plaintiffs, who are either abutting property owners or owners of property in close proximity to the tract in question, ⁸ appealed the commission's decision to the trial court, which found that the reclassification was based on substantial evidence in the record and that it did not constitute spot zoning in violation of the comprehensive plan. The trial court further found that Nunes, as a paid member of the city of New London fire department, fell within the purview of § 8-19 and § 8-4a and thus was an illegally appointed member of the commission. His vote for approval of the zone reclassification was held "to be null and void," but the trial court nevertheless upheld the commission's decision on the ground that it did not violate § 8-19 and § 8-4a because, under commission rules, Nunes' vote was not necessary to pass the reclassification; there were still six valid votes in favor of the zone change and only five were needed.

On appeal the plaintiffs claim only that the trial court erred in: (1) concluding that a violation of § 8-19 and § 8-4a results only in the invalidation of the illegally appointed member's vote rather than invalidation of the commission's entire action in approving the zone reclassification; and (2) failing to find that the motion for approval of the zone change, made by an illegally appointed member, was not properly before the commission. In addition to refuting these claims, the defendants contend that the trial court erred in ruling that Nunes was holding a salaried municipal office within the meaning of § 8-19. ⁹ We find no error.

I

We address first whether Arthur Nunes, a paid member of the New London fire department, was prohibited by statute from membership on that municipality's planning and zoning commission. General Statutes § 8-19 provides in pertinent part that a "municipality may create by ordinance a planning commission, which shall consist of five members, who shall be electors of such municipality holding no salaried municipal office ...." (Emphasis added.) Under § 8-4a, the provisions of § 8-19 are applicable to planning and zoning commissions. Therefore, individuals holding "salaried municipal office" are expressly precluded by statute from membership on a local planning and zoning commission. The threshold issue in this appeal is thus whether a salaried member of the city of New London fire department holds a "salaried municipal office" within the purview of §§ 8-4a and 8-19.

As a starting point for our analysis, we equate the phrase "municipal office" with "public office." "in construing a statute, common sense must be used...." Kron v. Thelen, 178 Conn. 189, 192, 423 A.2d 857 (1979). Obviously, one who holds municipal office is a public officer of that municipality. A public office is a position in a governmental system created, or at least recognized, by applicable law to which position "certain permanent duties are assigned, either by the law itself or by regulations adopted under the law by an agency created by it and acting in pursuance of it." 3 McQuillan, The Law of Municipal Corporations (3d Ed.Rev.1982) § 12.29, p. 149; Kelly v. Bridgeport, 111 Conn. 667, 670, 151 A. 268 (1930). We have said that a public office "is a trust conferred by public authority for a public purpose, and involving the exercise of the powers and duties of some portion of the sovereign power." (Citations omitted.) State ex rel. Stage v. Mackie, 82 Conn. 398, 401, 74 A. 759 (1909). As the legislature has not defined the phrase in question here, ¹⁰ it is appropriate to examine our decisional law, however sparse, pertinent to the issue.

On three occasions this court has addressed, either directly or indirectly, the question whether in a particular context a member of a municipal fire department was a public officer. We have considered the question to be one of fact. ¹¹ A person employed as a "tillerman of a ladder carriage" in the city fire department, under contract conditioned upon "good behavior" at a fixed annual salary, was held to fall within the state constitutional prohibition against the increase in salary of " 'any public officer, employee, agent or servant.' " Wright v. Hartford, 50 Conn. 546, 547 (1883). In McDonald v. New Haven, 94 Conn. 403, 109 A. 176 (1920), we held that a member of a municipal fire department, regularly appointed under a city charter, was a "governmental officer" and thus was not an "employee" within the meaning of the then existing workers' compensation statute. ¹² This "mutually exclusive" rationale articulated in McDonald, as well as earlier in both Sibley v. State, 89 Conn. 682, 685, 96 A. 161 (1915), and State ex rel. Stage v. Mackie, supra, 82 Conn. 401, 74 A.2d 759, was undercut in State ex rel. Sloane v. Reidy, 152 Conn. 419, 209 A.2d 674 (1965). We stated in Reidy that "[a]lthough policemen and firemen may be public officers for certain purposes, they are employees ..." for municipal civil service purposes. Id., 426.

We have said that "[t]he essential characteristics of a 'public office' are (1) an authority conferred by law, (2) a fixed tenure of office, and (3) the power to exercise some portion of the sovereign functions of government. Kelly v. Bridgeport, 111 Conn. 667, 671, 151 A. 268 [1930]; Mechem, Public Officers § 1." Spring v. Constantino, 168 Conn. 563, 568-69, 362 A.2d 871 (1975); Housing Authority v. Dorsey, 164 Conn. 247, 251, 320 A.2d 820, cert. denied, 414 U.S. 1043, 94 S.Ct. 548, 38 L.Ed.2d 335 (1973); see also Tremp v. Patten, 132 Conn. 120, 124-25, 42 A.2d 834 (1945); 63A Am.Jur.2d, Public Officers and Employees § 5 (1984). "An individual so invested is a public officer." Housing Authority v. Dorsey, supra 164 Conn. 251, 320 A.2d 820. Under this rule we analyze the question presented.

The General Assembly has empowered Connecticut municipalities to establish local fire departments. General Statutes § 7-301. The city of New London has done so. See New London, Connecticut Charter Laws § 3 and Code of Ordinances § 15-25 (1977). Members of a municipal fire department "are members of a regularly organized governmental department." McDonald v. New Haven, supra, 94 Conn. 417, 109 A. 176. The position held by Nunes had been created by ordinance § 15-25, ¹³ "and, assuming that the [city] council acted within the powers conferred upon it by the city charter, the office was one created by law." Kelly v. Bridgeport, supra, 111 Conn. 671, 151 A. 268. "Public office embraces the idea of tenure and duration" and this view rests on the continuing and permanent nature of the office; the duration of office need not be for a fixed period to constitute a public office. 63A Am.Jur.2d, Public Officers and Employees § 6 (1984). In this regard, a member of the New London fire department holds office "during good behavior" and cannot "be removed except for cause by the city manager after hearing." New London, Connecticut Charter Laws § 73a (Code of Ordinances 1977). See also McDonald v. New Haven, supra, 94 Conn. 417, 109 A. 176. Nor can we say that a member of the New London fire department does not in part or in some fashion exercise the sovereign function. The powers of that municipality are defined to include the following: "[T]o organize, maintain and regulate a fire...