Pecora v. Zoning Commission of Town of Trumbull

• Decision Date: 17 July 1958
• Citation: 145 Conn. 435,144 A.2d 48
• Court: Connecticut Supreme Court
• Parties: Ferdinand H. PECORA et al. v. ZONING COMMISSION OF The TOWN OF TRUMBULL et al. Supreme Court of Errors of Connecticut

Page 48

144 A.2d 48

145 Conn. 435

Ferdinand H. PECORA et al. v. ZONING COMMISSION OF The TOWN OF TRUMBULL et al.

Supreme Court of Errors of Connecticut.

July 17, 1958.

John T. Fitzpatrick, Fairfield, for appellants (plaintiffs).

Frederick F. Ehrsam, Bridgeport, with whom was Nicholas T. Giangrasso, Bridgeport, for appellees (defendants Frouge).

Aaron A. Levine, Bridgeport, for appellee (named defendant).

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

KING, Associate Justice.

This is an appeal from the action of the zoning commission of Trumbull in changing a tract of about sixty acres from a residence A to a commercial B-C zone, thereby authorizing its use for a regional shopping center. Zoning in Trumbull exists under the provisions of chapter 43 of the General Statutes as amended. Trumbull Zoning Regs., p. 1 (1953).

In August, 1955, pursuant to the recommendations of a group of professional planning experts retained by the town for the purpose, a master plan of development for the entire town was adopted by it. Whether this master plan was ever actually adopted as a comprehensive plan by the zoning commission does not clearly appear from the finding. See Levinsky v. Zoning Commission, 144 Conn. 117, 122, 127 A.2d 822. The zone changes necessary to put it into effect, at least in the area involved in this appeal, had not been made. However, as we view the case the result is not changed if it is assumed that the master plan was in fact a comprehensive plan, and it will hereafter be referred to as such. This plan recommended that the sixty-acre tract in question, with the exception of a small strip along Ox Brook hereinafter to be noted, be rezoned from residence to large scale business and light industry. The plan provided for small shopping centers, embracing an aggregate of thirty acres, at four other locations in the town. The sixty-acre tract is about midway between Main Street and Madison Avenue, its most easterly boundary being about 1200 feet west of Main Street and its most westerly boundary about 1100 feet east of Madison Avenue. Its northerly boundary is the Merritt Parkway and its southerly and westerly boundaries are Ox Brook.

Prior to October 3, 1955, Thomas, John and Jack Frouge, hereinafter referred to as the Frouges, who with the zoning commission, are defendants in this appeal, filed a petition for a zone change of the sixty acres. They owned the entire tract and also additional contiguous land. On October 3, the commission informally discussed the petition at an executive session and decided to ask the Frouges to appear and explain it more fully, 'particularly with the thought of land use, residences, etc.' The next day, one of the Frouges appeared and explained their petition in more detail. They at that time had in mind a regional shopping center of about forty-three acres. At an executive session on January 10, 1956, the Frouges presented a drawing of the proposed shopping center and were then requested to present a formal petition giving more specific information. This was done, and the petition was considered at an executive session on January 31, 1956. It was decided that the commission would view the premises the following Sunday morning. At an executive session on February 7, 1956, the commission decided that a green belt, supplemented, where necessary, by plaintings so as to be of a minimum width of fifty feet, should surround the area and that the public hearing should be held during the week of February 26. The public hearing was held on February 28, and there was considerable opposition, but at an executive session on March 1 the zone change was adopted effective March 10, 1956. It is from this action that the present appeal is taken.

While the minutes of the executive sessions and of the public hearing were quite full, there was no stenographic transcription or mechanical recording of the public hearing. Consequently, the court admitted evidence on this appeal and, with counsel, itself viewed the premises. General Statutes, Cum.Sup.1955, §§ 379d, 381d; Nov. 1955 Supp., § N11; Village Builders, Inc. v. Town Plan & Zoning Commission, 145 Conn. 218, 221, 140 A.2d 477. The plaintiffs in oral argument abandoned their attempts to secure additions to the finding.

One of the plaintiffs' claims is that there would be an increase in traffic in a large regional shopping center as distinguished from the four small shopping centers proposed in the comprehensive plan, and that therefore there is a violation of § N10 of the November, 1955, Supplement, providing that the regulations of a zoning commission shall, inter alia, 'be made in accordance with a comprehensive plan and * * * be designed to lessen congestion in the streets.' The comprehensive plan recommended large scale business and light industrial uses in the area in question. The rezoning as actually adopted authorized a higher and more restricted use. There is nothing to indicate that a regional shopping center, where traffic might be expected to be fairly constant throughout the day, would create more 'congestion in the streets' than would factories which might spring up in a light industrial zone, since operatives in factories would go to and from work almost en masse at substantially the same hours. It is not the over-all volume of daily traffic, but 'congestion in the streets,' that is, density of traffic, which is referred to in the statute. See Service Realty Corporation v. Planning & Zoning Board of Appeals, 141 Conn. 632, 638, 109 A.2d 256. Furthermore, literally, under the claim of the plaintiffs as to traffic, a residence area could seldom, if ever, be changed to a business or industrial use, regardless of the recommendations in a comprehensive plan, since almost necessarily there would be a resultant increase in street traffic in the immediate area. The over-all actions of the zoning commission must conform to the mandates of the statute. But these do not apply to every detail of the commission's actions. The construction claimed by the plaintiffs would render the statute unworkable. An intent to enact an unworkable statute is not to be imputed to the General Assembly unless the statutory language expressly requires it. City of Bridgeport v. Stratford, 142 Conn. 634, 644, 116 A.2d 508.

Another claim of the plaintiffs is that the commission attached to the land in question certain special and additional requirements, not applicable in other commercial B-C zones in Trumbull, thereby violating the portion of § N10 providing that '[a]ll * * * regulations shall be uniform for each class or kind of buildings or structures throughout each district, but the regulations in one district may differ from those in another district.' The additional requirements here included the green belt of a minimum width of 50 feet, that no building be within 150 feet of the westerly boundary, which is Ox Brook, and that there be strict compliance with the drainage requirements of the town engineer. This last requirement was obviously motivated by the fact that the southern portion of the area is marshy. There is nothing to indicate that these additional requirements in any way injured the plaintiffs or that they were aggrieved by them. See Mills v. Town Plan & Zoning Commission, 145 Conn. 237, 240, 140 A.2d 871. If anyone was entitled to complain, it would be the Frouges. That aside, the regulations which under the statute are required to be uniform are those affecting 'buildings or structures,' while the requirements imposed here affected the land itself. The requirement as to the 150-foot building line really affected the land use rather than any building or structure.

The plaintiffs make a further claim that these requirements were beyond the power of the commission to establish under the zoning ordinance of Trumbull because they fell within the exclusive jurisdiction of the zoning board of appeals. Trumbull Zoning Regs., art. 6, § 1(c) (1953). If we assume that the provision referred to gives to the board of appeals the power to make such requirements as are involved here, there is nothing to show that the grant of power is exclusive with that body. The plaintiffs also claim that the requirements are unenforceable. As far as enforcement is concerned, the rezoning of the property does not, ipso facto, authorize its use. A building cannot be erected without a building permit; id., art. 5, § 2(a); nor be occupied without a certificate of occupancy. Id., art. 5, § 3(a). Appeals from the refusal to grant a building permit are taken to the board of appeals. Id., art. 6, § 1(a). This board is also granted the usual limited power to authorize variances and grant exceptions. Id., art. 6, §§ 1(b), (c)(d). We cannot find that there is any inability on the part of the zoning officials to enforce compliance with the requirements in question.

Nor do we find any merit in the claim of 'spot zoning.' The comprehensive plan had already recommended a change of zone in substantially the area involved. The change as adopted was to a use higher than that recommended and was otherwise in harmony with the comprehensive plan. The adoption of a comprehensive plan does not require exact compliance on the part of the zoning commission with every detail of the plan, nor have we ever so held. What is required is that the zoning regulations be in harmony with the comprehensive plan. Guerriero v. Galasso, 144 Conn. 600, 607, 136 A.2d 497. As the trial court pointed out, the substitution of Ox Brook for the slightly different artificial boundary suggested in the comprehensive plan was an obvious improvement. The commission stated on its record four reasons for its action in rezoning. These were: (1) The zone change was in substantial conformity with the comprehensive plan; (2) it provided a necessary facility (shopping center) for the general welfare of the town; (3) it was the most appropriate use of the land; (4) the area as rezoned...