Sheridan v. Planning Bd. of City of Stamford

Decision Date23 December 1969
CourtConnecticut Supreme Court
PartiesJohn M. SHERIDAN et al. v. PLANNING BOARD OF the CITY OF STAMFORD et al. Sylvia DOWLING et al. v. PLANNING BOARD OF the CITY OF STAMFORD et al. Richard S. CREEDON et al. v. BOARD OF REPRESENTATIVES OF the CITY OF STAMFORD et al. John B. DOWLING et al. v. ZONING BOARD OF the CITY OF STAMFORD et al.

Julius B. Kuriansky, Stamford, for appellants (plaintiffs in the fourth case) and for appellants-appellees (plaintiffs in first, second and third cases).

Melvin M. Dichter and Gordon R. Paterson, Stamford, for appellee (defendant Donahue in the fourth case) and for appellees-appellants (defendant Donahue and others in the first, second and third cases); with them also were Theodore Godlin, Asst. Corp. Counsel, and, on the brief, Paul D. Shapero, Corp. Counsel, for appellee (named defendant in fourth case) and for appellee-appellant (named defendant in the first, second and third cases).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

THIM, Associate Justice.

These four appeals were tried together in the Court of Common Pleas and arise from essentially one transaction. They all involve the same piece of property, and the factual basis of the four cases is sufficiently similar to permit their disposition in one opinion.

On July 13, 1965, Alphonsus J. Donahue, Jr., as trustee, entered into a contract to purchase a tract of land containing approximately 120 acres owned by C. Russell Feldmann and located in the city of Stamford. At the time of the contract the property was classified as 'Residential' on the Stamford master plan and zoning map, except for a small portion designated as 'Public and Semi-Public' on the master plan. It was Donahue's intention to obtain a change in the master plan and zoning map so that slighty more than half of the tract could be used for industrial purposes.

With the exception of certain propvisions contained in chapters 124 and 126 of the General Statutes, which are discussed elsewhere in this opinion, planning and zoning in Stamford are governed by 26 Spec.Laws 1228, No. 619, hereinafter referred to as the Stamford charter (1953), rather than by the General Statutes. Under § 552 of the Stamford charter, the zoning map may not be amended by the zoning board to permit any use which is contrary to the use established for the area in question by the master plan. 26 Spec.Laws 1234, No 619 § 552. Thus, since the Feldmann property was primarily classified as 'Residential' on the master plan, it was incumbent on Donahue to petition the planning board for a change in the master plan before applying to the zoning board for a change of zone. See Burke v. Board of Representatives, 148 Conn. 33, 35, 166 A.2d 849.

On February 17, 1966, Donahue applied to the planning board to make two changes in the master plan. The first change requested concerned the creation of an equivalent or component zoning district to be known as 'IP-D Industrial Park Designed District.' To bridge the gap between planning and zoning, the Stamford master plan provides as part of the legend which appears on the face of the map a column designated 'Equivalent or Component Zoning District.' This column is part of the definition of the land use category provided on the master plan. Prior to the application, one of the land use categories listed on the master plan was entitled 'Designed Commercial Districts or Industrial Parks.' The equivalent or component zoning district, however, was then limited to 'Designed Commercial' and 'Designed Industrial' without reference to 'Park.' These latter two districts had been adopted by the zoning board and incorporated into the zoning regulations. Donahue contended therefore that under § 553 of the Stamford charter (26 Spec.Laws 1236) the zoning regulations could not be amended until the master plan first provided for an equivalent or component zone which made specific reference to an 'Industrial Park.' The proposed change would provide a zoning counterpart to the planning use category on the master plan entitled 'Designed Commercial Districts or Industrial Parks.' The petition to create the new land use category was granted by the planning board on May 10, 1966, and is the subject of the plaintiffs' appeal in the Sheridan case.

The second change requested on February 17, 1966, petitioned the planning board to apply the new land use category specifically to the property in question on the master plan. On May 10, 1966, the planning board granted this latter portion of the application, to the extent of 65.7 acres, and this action is the subject of the plaintiffs' appeal in the Sylvia Dowling case.

After the two changes were made by the planning board, as discussed above, the Feldmann tract could still not be used for industrial purposes since the Stamford planning board has no power to amend existing zone boundaries. Rosenberg v. Planning Board, 155 Conn. 636, 638, 236 A.2d 895. Thus, on June 1, 1966, Donahue applied to the zoning board to amend the zoning regulations so as to conform to the master plan by incorporating a new district called the 'IP-D Designed Industrial Park District.' On September 21, 1966, the zoning board granted the application, and its decision was referred to the board of representatives of the city of Stamford pursuant to § 553.2 of the Stamford charter. 26 Spec. Laws 1236, No. 619 § 553.2. On December 5, 1966, the board of representatives refused to reject the creation of the new district in the zoning regulations, thereby approving the action of the zoning board, and its approval is the baiss for the plaintiffs' appeal in the Creedon case.

The final step was to petition the zoning board to amend the zoning map to conform to the master plan by specifically applying the new classification to the property in question. On October 19, 1966, the zoning board granted such an application by changing approximately sixty-five acres of the Feldmann tract from 'One Family Residence District' to the 'IP-D Designed Industrial Park District,' and this action is the subject of the plaintiffs' appeal in the John Dowling case.

In addition to these four appeals there were cross appeals by the defendants in the cases of Sheridan, Sylvia Dowling and Creedon. These appeals, when relevant, will be discussed in later portions of this opinion.

I

Prior to argument before this court, the defendants, pursuant to § 697 of the Practice Book, filed a motion to dismiss the Sheridan and Sylvia Dowling appeals for lack of jurisdiction. Although no such motion was made to the Court of Common Pleas, the rule states that it may be made at any time. Maltbie, Conn.App. Proc. § 273. Failure to raise the motion before the trial court has no effect on our duty to order that court to dismiss the case if it appears that it too is without jurisdiction. Foss v. Foss, 105 Conn. 502, 512, 136 A. 98.

As discussed above, the Sheridan and Sylvia Dowling appeals are from actions taken by the Stamford planning board in amending the master plan. Under § 529 of the Stamford charter (26 Spec.Laws 1233, No. 619 § 529), appeals are permitted to the Court of Common Pleas from decisions affecting the master plan. See Josephson v. Planning Board, 151 Conn. 489, 199 A.2d 690, 10 A.L.R.3d 687. General Statutes § 8-30a, effective October 1, 1965, provides, however, that appeals from planning commissions and other final planning authorities of any municipality shall be governed by §§ 8-28 and 8-30 of the General Statutes. Furthermore, § 8-30a applies 'whether or not the charter of such municipality or the special act establishing planning in such municipality contains a provision giving a right of appeal from planning commissions, and any provision of any special act, inconsistent with the provisions of * * * (§§ 8-28 and 8-30), is repealed.' The intent of the legislture, as evidenced by the language of § 8-30a, was to unify the right of appeal from any planning board by limiting such right or rights to those provided by §§ 8-28 and 8-30. Since the rights of appeal of the plaintiffs in the Sheridan and Sylvia Dowling cases, if any, arose subsequent to the effective date of § 8-30a, they are to be tested by §§ 8-28 and 8-30 rather than by § 529 of the Stamford charter. 26 Spec.Laws 1233, No. 619 § 529.

Section 8-30 of the General Statutes permits appeals from actions of planning boards taken under § 8-29, which are limited to designation of certain municipal improvements such as plans of proposed highways and sidewalks, and assessments therefor. Authority to amend the master plan, however, is provided by § 8-23 of the General Statutes (§ 522.2 of the Stamford charter (26 Spec. Laws 1229, No. 619 § 522.2) in the instant appeals), and no broad right of appeal from such amendments is granted by § 8-30. If such appeals are permitted, they must be authorized by § 8-28.

Section 8-28 at first glance appears to give a right to appeal any official action of a planning board except those provided for under § 8-30. But a careful reading of the entire section, together with § 8-26, referred to therein, and the cases arising under the section, leads to the conclusion that the only action of a planning commission which is appealable under § 8-28 is the approval or denial of subdivision plans. Such a limited interpretation of § 8-28 is required in the context of the powers of planning boards. A master plan is controlling only as to municipal improvements, appealable under § 8-30, and as to the regulation of subdivisions of land, appealable under § 8-28. See Levinsky v. Zoning Commission, 144 Conn. 117, 123, 127 A.2d 822; 'The Connecticut Law of Zoning (Part A),' 41 Conn.B.J. 262, 267. The master plan does not control the zoning board in its enactment of zoning regulations but rather is merely advisory. Ibid.

Even under Stamford's charter, where the recommendation is more than advisory because the zoning board cannot amend the zoning...

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