Richards v. Planning and Zoning Commission of Town of Wilton

Decision Date09 March 1976
Citation365 A.2d 1130,170 Conn. 318
CourtConnecticut Supreme Court
PartiesFrederic M. RICHARDS et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF WILTON.

Robert A. Fuller, Wilton, for appellants (defendants).

Thomas T. Adams, Wilton, with whom, on the brief, were Julian A. Gregory and Ralph E. Slater, Wilton, for appellees (plaintiffs).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

BOGDANSKI, Associate Justice.

The defendant Wilton planning and zoning commission approved the application of the defendant Wilton board of education for a special permit 'to allow the storage of school buses, construction of a maintenance facility, installation of fuel storage tanks and pumps and other related features' on six acres of land which is part of a tract owned by the town of Wilton. The plaintiffs, owners of land located in the immediate vicinity of the proposed site, appealed that decision to the Court of Common Pleas, which sustained the appeal on the ground that because the board of education was not a proper applicant, the commission lacked jurisdiction to approve the application. After our grant of certification, the defendants appealed to this court, assigning error in the court's conclusions.

The material facts, as disclosed by the record submitted pursuant to § 647 of the Practice Book, are not in dispute. The Wilton zoning regulations allow a 'public school use' and a 'Town of Wilton municipal use' in residential zones, provided a special permit is first obtained from the commission. In 1961, the commission granted a special permit to the Wilton high school building committee to use certain land owned by the town of Wilton 'for school purposes.' On August 1, 1973, the board of education applied for a special permit seeking to use one of two alternative sites, both of which were located in a residence 2A zone, for the proposed school bus facility. One site was owned by the state of Connecticut. The other, owned by the town of Wilton, was part of a tract devoted to school purposes pursuant to the permit issued in 1961. A school building is located on the southern portion of that property, but the westerly portion, where the proposed site is located, has remained partially wooded.

On August 13, 1973, a public hearing on the application was held. At the hearing the commission apparently considered the application as one for a 'Town of Wilton municipal use.' Upon finding that the proposed use would serve a necessary community need, that traffic in the area would not be significantly increased, that the size of the location would present sufficient flexibility for maximum protection of adjoining property owners, and that the proposed use fulfilled all the conditions of the zoning regulations, the commission approved the application.

From that decision, the plaintiffs appealed to the Court of Common Pleas, alleging that the commission acted illegally in several respects. The board intervened as a party defendant. The court found that the board was neither the owner of the site nor the authorized agent of the town with respect to it; that the proposed use was 'municipal'; that the duties of the board of education as outlined in § 10-220 of the General Statutes were thus irrelevant to the resolution of the issues; and that the board therefore lacked the legal interest required to qualify as an applicant for a special permit. The appeal was sustained on the ground that the commission lacked jurisdiction to consider the board's application.

In this appeal, the defendants' primary contention is that the board did indeed possess the requisite interest to qualify as an applicant. They argue that in cases involving private parties, where the zoning regulations did not specifically require an 'owner' of property to make application for a permit or variance, this court has allowed nonowners to apply so long as they were able to demonstrate a substantial interest in the property; that the Wilton zoning regulations do not specifically require that the owner apply for a special permit; that the board of education's interest and rights in the proposed site were substantial; and that, therefore, the court erred in concluding that the commission lacked jurisdiction.

The plaintiffs argue that the commission considered the proposed use to be a 'municipal use'; that the board's interest in property owned by the town extends only to 'school uses'; that the board, as an agent of the state, has no interest in a 'Town of Wilton municipal use'; that the Wilton code contains an ordinance which grants control of the subject property to a parks, recreation and conservation commission; and that even if the construction of the bus facility could be considered to be a 'school purpose,' effectuation of that purpose would require approval of both the town as a school district, and of the parks, recreation and conservation commission.

The issue, then, is whether the Wilton board of education, although not the title-holder to the property, possesses a sufficient interest in it and in the granting of the special permit to constitute the legal interest required to make the present application.

Although the issue as framed is one of first impression, this court has occasion to consider questions concerning the standing of private parties to apply for special permits and variances. Where zoning ordinances have not specifically required owners to apply or to authorize the application, this court has sustained the issuance of permits to persons who were not owners but who did have substantial interests in the subject property. In Shulman v. Zoning Board of Appeals, 154 Conn. 426, 431, 226 A.2d 380, 382, we recognized that '(t)he general rule, which applies in the absence of a specific provision to the contrary, is that one who has contracted to purchase property has standing to apply for a special exception or a variance governing its use.' See note, 89 A.L.R.2d 663, 669 § 4. In Loew v. Falsey, 144 Conn. 67, 73, 74, 127 A.2d 67, 70, the New Haven building code required that the application for a building permit contain the full names of the owners of the subject premises. The owner was E. M. Loew, Inc., but the application simply designated the owner as E. M. Loew. In sustaining the issuance of the permit, the court stated: 'While the corporation may have held the legal title to the premises, E. M. Loew owned and controlled the corporation. He was the beneficial owner. By analogy, an equitable owner may properly apply for a variance under zoning regulations.' In Nielsen v. Board of Zoning Appeals, 129 Conn. 285, 27 A.2d 392, and more recently in Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 46, 364 A.2d 194 we implicitly recognized the right of certain lessees of property to apply for a permit or variance, and that recognition is in accord with the general rule. See note, 89 A.L.R.2d 663, 677 § 5. Also worthy of note is Antenucci v. Hartford Roman Catholic Diocesan Corporation, 142 Conn. 349, 355, 114 A.2d 216, where the defendant alone applied for a certificate allowing the 'extension of an existing cemetery,' although the property on which the existing cemetery was located was owned by two other corporations in addition to the defendant. The defendant, however, was in possession of the property. In upholding the standing of the defendant to apply for the certificate, this court stated that except in a contest with one who has true title, the party in possession is regarded by the law as the owner.

Other jurisdictions have recognized the right of one holding an option to buy to apply for a variance; see, e.g., Smith v. Selligman, 270 Ky. 69, 109 S.W.2d 14; In re Zoning Variance of Gillen, 21 Ohio Misc. 84, 255...

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23 cases
  • Gladysz v. Planning & Zoning Commission
    • United States
    • Connecticut Supreme Court
    • May 22, 2001
    ...zoning commission must have a sufficient interest in the subject property to have standing to apply; Richards v. Planning & Zoning Commission, 170 Conn. 318, 321-22, 365 A.2d 1130 (1976); and, here, the plaintiffs claimed that the partnership lacked such an interest. The trial court, McWeen......
  • Michel v. Planning and Zoning Com'n of Town of Monroe, 10766
    • United States
    • Connecticut Court of Appeals
    • September 17, 1992
    ...and special exception permit. The principles governing nonowner standing in zoning cases are set forth in Richards v. Planning & Zoning Commission, 170 Conn. 318, 365 A.2d 1130 (1976). The critical inquiry is whether the applicant is "a real party in interest with respect to the subject pro......
  • Groton Open Space Ass'n, Inc. v. Town of Groton Planning Commission, No. 124625 (CT 9/14/2004)
    • United States
    • Connecticut Supreme Court
    • September 14, 2004
    ...of permits to persons who were not owners but who did have substantial interests in the property." Richards v. Planning & Zoning Commission, 170 Conn. 318, 321-22, 365 A.2d 1130 (1976). The application at issue in Richards concerned a variance and not a subdivision. The Appellate Court, how......
  • Murphy v. Zoning Board of City of Stamford
    • United States
    • Connecticut Superior Court
    • November 16, 2016
    ... ... Goldfeld v. Planning ... & Zoning Commission , 3 Conn.App. 172, 486 A.2d ... commission. Richards v. Planning & Zoning ... Commission , 170 Conn. 318, ... ...
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