RK Development Corp. v. City of Norwalk

• Decision Date: 23 April 1968
• Citation: 242 A.2d 781,156 Conn. 369
• Parties: RK DEVELOPMENT CORPORATION v. CITY OF NORWALK et al.
• Court: Connecticut Supreme Court

Page 781

242 A.2d 781

156 Conn. 369

RK DEVELOPMENT CORPORATION v. CITY OF NORWALK et al.

Supreme Court of Connecticut.

April 23, 1968.

Edward J. Zamm, Special Counsel, So. Norwalk, with whom, on the brief, was Thomas A. Flaherty, Corp. Counsel, for appellant-appellee (defendant).

Emanuel Margolis, Stamford, for appellee-appellant (plaintiff).

Before ALCORN, HOUSE, THIM, RYAN and COVELLO, JJ.

RYAN, Associate Justice.

The plaintiff, the owner of a tract of land, 4.641 acres in area, in area, located in a B residence zone in the city of Norwalk, filed with the planning commission of the city an application for approval of its plan for a planned residential development to be constructed on its land. The proposed development is a permitted use under the building zone regulations in a B residence zone. The planning commission reviewed the plan over a period of several months, held two public hearings, and, on December 22, 1965, approved the plan. It was then transmitted to the common council on January 6, 1966. On January 11, 1966, the common council referred the plan to its committee on public works. On February 24, 1966, the public works committee at a special meeting of the common council recommended to the council that the application be denied. The motion to deny the plaintiff's application was approved by the council. The plaintiff appealed to the Court of Common Pleas, alleging that Thomas G. Hannon, a member of the common council, was a participant in and an active leader among persons in the neighborhood opposing the plaintiff's plan, that he testified in opposition thereto before the planning commission, that the pertinent regulations did not require approval of the plan by the council and that, in any event, its action was unlawful, arbitrary, and in abuse of its discretion. The trial court in its memorandum of decision found that the council, in considering the plaintiff's application, was acting as a legislative body and for that reason its action could not be reversed unless it was manifestly and palpably incorrect, and that the procedures of the planning commission and that of the council were correct. The court, however, concluded that Hannon, an elected legislative official, had, through his wife, a financial interest in land adjoining that of the plaintiff and that his efforts before the planning commission to defeat the plaintiff's application conflicted with his duty as a councilman. The appeal was sustained for this reason. The defendant then appealed to this court, and the plaintiff filed a cross appeal.

The defendant assigns error in the court's conclusion that the activities of councilman Hannon conflicted with his public duty and urges that, although Hannon openly opposed the plaintiff's application before the planning commission, worked actively with his political constituents in the ward which he represented in the council, and had a financial interest, through his wife, in real estate adjoining that of the plaintiff, his conduct as a member of the council, a legislative body, was entirely proper. The finding of the trial court indicates that Hannon attended the common council meeting at which the disapproval was voted but did not take part in the vote on the matter in question, that he in fact removed himself from within the council rail and was present in the gallery during the vote, and that he did not discuss the plaintiff's application with any member of his political group in the council. The defendant's claim is predicated on the court's conclusion that the common council was acting in a legislative capacity. The instant case was decided by the trial court prior to our decision in the recent case of J & M Realty Co. v. City of Norwalk, 156 Conn. --, 239 A.2d 534, wherein we held that the common council of the city of Norwalk, in passing upon an application for subdivision approval, was performing the function of a planning commission and acted in an administrative, rather than a legislative, capacity. The council was performing the same function in the instant case and was, of course, acting administratively.

Section 8-21 of the General Statutes (Rev. to 1966) provides, in part, as follows: 'No member of any planning commission and no member of any municipal agency exercising the powers of any planning commission, whether existing under the general statutes or under any special act, shall appear for or represent any person * * * in any matter pending before the planning * * * commission * * * or agency exercising the powers of any such commission or board in the same municipality, whether or not he is a member of the commission hearing such matter.' 'Although applications for subdivision approval must first be presented to the planning commission, the power of final approval lies only with the common council. The primary function of the planning commission is to examine and screen all subdivision applications and report its recommendations to the common council. * * * It is quite apparent that the authority of the planning commission is secondary to that of the common council, which has the ultimate power of approval or disapproval of all subdivision applications.' J & M Realty Co. v. City of Norwalk, supra, 239 A.2d 536. Hannon, a member of the common council, an agency which in this instance was exercising the powers of a planning commission, appeared before the planning commission on behalf of his wife and other constituents in the area in opposition to the plaintiff's plan. Although the planning commission is an entity separate in membership and authority from the common council, it is an arm of the council and performs important preliminary work and makes recommendations on all plans submitted to it which must ultimately be passed on by the council. For this reason, Hannon's activities were within the prohibition of the statute. There is nothing in the record before us to indicate that Hannon exerted any improper influence on his associates in the council, and we impute no such influence to him by our decision in this case. The trial court, however, has expressly found that he put himself on record at the hearing before the planning commission with full knowledge that his stated opposition would later be transmitted by the commission to the council. 'The evil lies not in influence improperly exercised but rather in the creation of a situation tending to weaken public confidence and to undermine the sense of security of individual rights which the property owner must feel assured will always exist in the exercise of zoning power.' Daly v. Town Plan & Zoning Commission, 150 Conn. 495, 500, 191 A.2d 250; see Kovalik v. Planning & Zoning Commission, 155 Conn. 497, 498, 234 A.2d 838; Josephson v. Planning Board, 151 Conn. 489, 493, 199 A.2d 690, 10 A.L.R.3d 687; Lake Garda Improvement Assn. v. Town Plan & Zoning Commission, 151 Conn. 476, 480, 199 A.2d 162; Luery v. Zoning Board, 150 Conn. 136, 147, 187 A.2d 247;...