Rosnick v. Zoning Commission of Town of Southbury

Decision Date01 February 1977
Citation172 Conn. 306,374 A.2d 245
CourtConnecticut Supreme Court
PartiesFred B. ROSNICK v. ZONING COMMISSION OF the TOWN OF SOUTHBURY.

Frederick W. Krug, Waterbury, for appellant (plaintiff).

James H. W. Conklin II, Southbury, for appellee (defendant).

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

PER CURIAM.

This action was brought as a result of the adoption of an "Interim Development Regulation" by the zoning commission of the town of Southbury effective April 9, 1975. The amendment was made applicable to portions of, but not all of, the business districts in the town. By its terms, the amendment regulated those portions of the business districts to which it applied by prohibiting the granting of zoning permits for any additional use or any change of use of land or buildings, or alterations or construction of any buildings. The amendment was to expire on December 31, 1975, or upon earlier termination by the zoning commission.

The plaintiff is an aggrieved owner of property in a business district affected by the amendment. In this action, the plaintiff alleges that he is "appealing from a decision of the Zoning Commission of the Town of Southbury." The prayer for relief is as follows: "The plaintiff claims: 1. That the action of the defendant zoning commission be declared unlawful and unconstitutional. 2. That said section 1A, Interim Development Regulation adopted by the defendant be declared null and void as to the premises of the plaintiff described in the aforesaid complaint. 3. Such other relief as may be equitable and proper."

A question thus arises as to whether this case is an appeal from a decision of the zoning commission or an action for a declaratory judgment.

The case cannot be maintained as one for a declaratory judgment because the requirements of Practice Book § 309(d) have not been met. That section requires that all persons having an interest in the subject matter of the complaint be made parties or have reasonable notice of the action. The requirement is a jurisdictional one, not a mere procedural regulation. State ex rel. Kelman v. Schaffer, 161 Conn. 522, 527, 290 A.2d 327; Wenzel v. Danbury, 152 Conn. 675, 677, 211 A.2d 683; National Transportation Co. v. Toquet, 123 Conn. 468, 484, 196 A. 344.

All persons having property interests in the affected areas of the business districts in the town would have a direct interest in the subject matter of this action. National Transportation Co. v. Toquet, supra, 123 Conn. 484, 196 A. 344.

In his brief, the plaintiff states that he "at trial restricted his appeal to the single ground that the amendment violated the provisions of Section 8-2 of the General Statutes requiring the zoning regulations to be uniform for each class of buildings or use of land throughout each district." The plaintiff's brief is also restricted to this single ground. That, if proven, would make the decision "illegal," and warrant sustaining an appeal. The brief is not inconsistent with characterization of the case as an appeal.

In a similar situation, this court has held that "(t)he presence of the prayers (for an injunction and a declaratory judgment) in the application, however, did not convert the appeal into some other form of action. Willard v. West Hartford, 135 Conn. 303, 305, 63 A.2d 847; Kamerman v. LeRoy, 133 Conn. 232, 237, 50 A.2d 175." Fisher v. Board of Zoning Appeals, 142 Conn. 275, 278, 113 A.2d 587, 588. That being so, the application is to be treated as an appeal from a decision of the zoning commission.

Because the zoning regulation appealed from has expired we conclude that the appeal is moot. This court does not sit to advise on abstract principles. Kellems v. Brown, 163 Conn. 478, 496, 313 A.2d 53, appeal dismissed, 409 U.S. 1099, 93 S.Ct. 911, 34 L.Ed.2d 678. The effect of a decision sustaining the appeal would be to reverse the decision of the zoning commission adopting the regulation. 1 Sustaining the appeal does not entitle the appellant to an order directing the zoning authority to take action, unless as a matter of law there is only one conclusion the authority can reasonably reach. Bogue v. Zoning Board of Appeals, 165 Conn. 749, 345 A.2d 9; thus a decision of this court favorable to the appellant would entitle him only to the invalidation of a regulation which has already expired. In DelMastro v. Liquor Control Commission, 146 Conn. 740, 154 A.2d 241...

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21 cases
  • Stafford Higgins Industries, Inc. v. City of Norwalk
    • United States
    • Connecticut Supreme Court
    • July 21, 1998
    ...172 Conn. 156, 374 A.2d 159 [1976]; Zenga v. Zebrowski, 170 Conn. 55, 364 A.2d 213 [1975] ); see also Rosnick v. Zoning Commission, 172 Conn. 306, 307-308, 374 A.2d 245 (1977) (after concluding that action challenging zoning regulation could not be maintained as declaratory judgment action ......
  • R & R Pool & Patio v. Zoning Bd. of Appeals of the Town of Ridgefield
    • United States
    • Connecticut Supreme Court
    • August 14, 2001
    ...zoning commission's authority to enact special use permit that expired after two years mooted by repeal of limitation); Rosnick v. Zoning Commission, 172 Conn. 306, 308±n309, 374 A.2d 245 (1977) (expiration of zoning regulation mooted plaintiff's request for declaratory relief). Therefore, ......
  • Arnold Bernhard and Co., Inc. v. Planning and Zoning Com'n of Town of Westport
    • United States
    • Connecticut Supreme Court
    • August 7, 1984
    ...769 (1983); State Farm Life & Accident Assurance Co. v. Jackson, 188 Conn. 152, 156, 448 A.2d 832 (1982); Rosnick v. Zoning Commission, 172 Conn. 306, 308-10, 374 A.2d 245 (1977); Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 In Rosnick v. Zoning Commission, supra, we held that the expi......
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    • March 3, 1981
    ...Connecticut Foundry Co. v. International Ladies Garment Workers Union, supra, 177 Conn. 20-21, 411 A.2d 1; Rosnick v. Zoning Commission, 172 Conn. 306, 309, 374 A.2d 245 (1977); see Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515-16, 31 S.Ct. 279, 283-284,......
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