Olson v. Town of Avon

• Decision Date: 29 May 1956
• Court: Connecticut Supreme Court
• Parties: Waldimer OLSON et al. v. TOWN OF AVON et al. Supreme Court of Errors of Connecticut

Page 279

123 A.2d 279

143 Conn. 448

Waldimer OLSON et al. v. TOWN OF AVON et al.

Supreme Court of Errors of Connecticut.

May 29, 1956.

Charles J. Cole, Hartford, with whom, on the brief, was Clinton B. Townsend, Jr., Hartford, for plaintiffs.

Benjamin Hinman, Hartford, for defendants.

Before INGLIS, C. J. O'SULLIVAN, WYNNE and DALY, JJ., and SHEA, Superior Court Judge.

INGLIS, Chief Justice.

In this action the plaintiffs seek a declaratory judgment determining the validity of a provision in the Avon zoning regulations requiring approval by a town meeting of any amendment of the regulations before it can become effective. The case has been reserved for the advice of this court.

The stipulation for reservation sets forth the following facts: At a special town meeting of the town of Avon in March, 1939, it was voted that a zoning commission be established pursuant to the general law. Such a commission was appointed by the meeting, and a set of zoning regulations prepared in advance was adopted. Section 5 of the regulations provided: 'These regulations shall not be amended, changed or repealed until after a public hearing held by the Zoning Commission and approval by a majority vote at a town meeting.' Later, the zoning commission adopted the identical set of regulations that had been voted by the town meeting. In September, 1947, after the General Assembly at its 1947 session had revised the general law relating to zoning, a special town meeting of the town of Avon voted that the town adopt the provisions of No. 418 of the 1947 Public Acts, entitled 'An Act Amending the Zoning Enabling Act.' General Statutes, Sup.1947, c. 29. On February 9, 1948, the zoning commission held a hearing with respect to proposed amendments to the zoning regulations. On February 16, a town meeting voted to adopt the amended regulations which had been the subject of the hearing before the zoning commission, and then, on February 27, the zoning commission adopted them. The amended regulations so adopted contained as § 10 the following provision: 'These regulations shall not be amended, changed or repealed until after a public hearing held by the Zoning Commission and approval by a majority vote at a town meeting.'

By November 15, s955, the zoning commission in Avon, in some manner not set forth in the stipulation, had come to be known as the zoning and planning commission. On that day it held a hearing concerning a proposal to change the zone of two contiguous properties owned by the plaintiffs from residential and agricultural to industrial. On November 21, the zoning and planning commission unanimously approved the proposed change of zone but did not set the date upon which the change would become effective because it had become the practice not to set such a date until after a town meeting had approved the amendment. Pursuant to § 10 of the regulations, the change of zone adopted by the commission was referred to a town meeting held on December 14, 1955. At that meeting the action of the zoning and planing commission in approving the change of zone did not receive the approval of a majority vote.

The questions propounded by the reservation are (a) '[w]hether or not that requirement in said Section 10 of the Zoning Regulations for the Town of Avon specifying approval by a majority vote at a Town Meeting is a valid and binding condition precedent to an effective change of zone' and (b) '[w]hether or not the action of the Town Meeting of the Town of Avon held on December 14, 1955, in purporting to act as to said change of zone was a nullity, invalid and of no legal force and effect.' In passing, we call attention to the fact that these questions are not framed in the approved form. They are put in the alternative 'whether or not.' Thus they do not permit a Yes or No answer. Where possible, questions should be stated in such a way that they can be answered categorically. Barnes v. City of New Haven, 140 Conn. 8, 11, 98 A.2d 523; General Motors Corporation v. Mulquin, 134 Conn. 118, 132, 55 A.2d 732; Maltbie, Conn.App.Proc., p. 180, § 132.

The answer to the questions propounded depends upon a determination of what are the powers with reference to zoning that the legislature has vested in towns acting in town meetings and in zoning commissions, respectively. There is no doubt that in towns which are not consolidated towns and cities the power to decide whether the town will adopt zoning under the general law or, having adopted it, will abandon it rests in the voters of the town, to be exercised in a duly warned town meeting. Town of Madison v. Kimberley, 118 Conn. 6, 11, 169 A. 909. Whether a town meeting has the power to revoke or amend zoning regulations which have been enacted by a zoning commission after the town has adopted zoning under the general enabling act is, however, quite a different question.

In State ex rel. Bezzini v. Hines, 133 Conn. 592, 53 A.2d 299, we were faced with the question whether under the general enabling zoning act of 1925 it was competent for a town meeting to repeal in toto the zoning regulations. We said 133 Conn. at page 596, 53 A.2d at page 300: 'The act of 1925 gave to the zoning commission the power to make zoning regulations and to amend, change or repeal them from time to time, and prescribed certain limitations and procedures to be followed in taking such action; and such provisions have been ever since and still are contained in the zoning statutes. A reading of them leaves no doubt that it was the intent of the General Assembly to vest in a zoning commission the sole authority to make, amend or repeal regulations; and for that purpose the zoning commission became the legislative agency of the municipality. To admit that a town meeting could amend or repeal regulations duly made by the commission would be to recognize in it a power directly at variance with the legislative intent.' The zoning enabling statutes were rewritten in 1947. Sup.1947, c. 29. This general enabling act was incorporated in chapter 43 of the Revision of 1949. Many of the sections comprising this chapter have since been amended. The question now before us is whether, under the law as it now stands, what we said in the Bezzini case, supra, concerning the intention of the General Assembly still holds true.

Section 121i of the 1947 Supplement became § 836 of the General Statutes and is now without substantial change § 373d of the 1955 Cumulative Supplement. It provides that any municipality may, by vote of its legislative body, adopt zoning and 'exercise through a zoning commission' the powers granted under the general zoning law. The significant provision in this section is that the zoning powers of a town are to be exercised through its zoning commission. This, by implication, excludes the voters of the town in town meeting from exercising those powers. By § 122i of the 1947 Supplement, which became § 837 of the General Statutes and, as slightly amended on December 13, 1955, § N10 of the November, 1955, Supplement, it is the zoning commission and not the town meeting which is authorized to 'divide the municipality into districts' and to 'regulate the erection * * * or use of buildings or structures and the use of land.' Section 123i of the 1947 Supplement, which became § 838 of the General Statutes and is now § 375d of the 1955...