Stiles v. Town Council of Town of West Hartford

• Decision Date: 03 March 1970
• Citation: 159 Conn. 212,268 A.2d 395
• Parties: George R. STILES et al. v. TOWN COUNCIL OF the TOWN OF WEST HARTFORD et al. David CHOZICK et al. v. TOWN COUNCIL OF the TOWN OF WEST HARTFORD et al.
• Court: Connecticut Supreme Court

Page 395

268 A.2d 395

159 Conn. 212

George R. STILES et al. v. TOWN COUNCIL OF the TOWN OF WEST HARTFORD et al.

David CHOZICK et al. v. TOWN COUNCIL OF the TOWN OF WEST HARTFORD et al.

Supreme Court of Connecticut.

March 3, 1970.

Frederick U. Conard, Jr., Hartford, with whom were Theodore M. Space, Hartford, and, on the brief, Daniel P. Brown, Jr., Hartford, for appellant (defendant Vetrano) in each case.

Valentine J. Sacco, Hartford, for appellees (plaintiffs in the second case), and David M. Barry, Hartford, for appellees (plaintiffs in the first case).

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

RYAN, Associate Justice.

The parties to both of these appeals have stipulated that a single record of the proceedings appealed from, including the exhibits properly a part of the record, may be incorporated by reference in each case in the return of the town council and that both appeals may be heard together by this court.

On January 3, 1966, the defendant Joseph P. Vetrano, doing business as West Farms Mall Associates, submitted to the town council of West Hartford a petition requesting a change of zone for a thirty-acre tract of land, which was owned by him and was located on the southerly side of Old South Road and the westerly side of New Britain Avenue, from a business 1 district zone and a residence A district zone, to a '2-Acre Section 17.1.24 Special Development District' zone. Attached to the petition was a proposed ordinance and a development plan which would effectuate the change. The petition contained four copies of a map showing the proposed change in the boundaries of the zoning map as required under § 12.1.0 of the West Hartford ordinances (1961). The plans and specifications filed with the petition contained a table of land usage showing that the proposed mall shopping center will occupy thirty acres in the town of West Hartford, eighty-one acres in the town of Farmington and .065 acres in the town of Newington, a total of slightly more than 111 acres. An identical development plan was submitted to the town plan and zoning commission of Farmington at about the same time. The owner's petition was introduced at a regular meeting of the West Hartford town council on January 11, 1966, and at that time the council assigned it for public hearing on February 15, 1966. The council then referred the petition to the capitol region planning agency in pursuance of § 8-3b of the General Statutes (Rev. to 1966) and to the town plan and zoning commission as required by the West Hartford town charter and the zoning regulations.

On February 15, 1966, a public hearing was held by the town council. A report of the land use committee of the capitol region planning agency was read to the council. The report found that a shopping center of the size proposed was not consistent with the regional plan, would be detrimental to other existing and planned, commercial development in the capitol region and neighboring areas, and would have an adverse effect on the general economy. It recommended that the zoning changes be limited to a size consistent with a subregional center as shown on the regional plan. Extensive testimony of experts and others was heard in behalf of the owner, and the opponents presented witnesses including experts in opposition to the petition. The hearing ended in the early morning hours of February 16, 1966.

On February 28, 1966, the town plan and zoning commission filed a report recommending approval of the owner's petition, subject to a number of conditions. These conditions were accepted by the owner by letter of May 23, 1966.

In the town of Farmigton the owner's petition to the town plan and zoning commission

In the town of Farmington the owner's 1966, the owner, Vetrano, hereinafter referred to as the defendant, submitted a revised petition reducing the size of the area in Farmington from eighty-one to fifty-six acres. The effect of this revision reduced the mall area from 111 acres to eighty-six acres. There was no change in the area of the portion of the mall located in the town of West Hartford. On May 23, 1966, the town plan and zoning commission of Farmington approved the defendant's application for a change of zone to permit the construction of the mall in the town of Farmington.

On May 26, 1966, the West Hartford town council held a special meeting to consider the defendant's application for the change of zone of his thirty acres in West Hartford. After considerable discussion the defendant's petition was adopted subject to twnety conditions which were imposed by the council and accepted by the defendant.

From the action of the West Hartford town council in adopting an ordinance changing the zone as to thirty acres of the defendant's land to a special development district zone under § 17.1.24 of the zoning regulations, the plaintiffs in both cases appealed to the Court of Common Pleas.

In the Court of Common Pleas extensive testimony was presented solely on the disputed issue of the aggrievement of the plaintiffs. The trial court found that six of the plaintiffs in the first case and one plaintiff in the second case were aggrieved by the action of the town council. The court concluded that the action of the town council was arbitrary, illegal, and in abuse of its discretion for the following reasons: (1) No adequate storm drainage plan was advanced. (2) Since a revised plan had been filed and approved in the town of Farmington, of which the West Hartford town council was informed, the defendant was required by good faith and the zoning law to resubmit his application and change of plan in West Hartford, and the council should have required a resubmission. (3) The proposed zone change should have been filed under § 17.1.24A, relating to a five-acre special development district, of the zoning regulations instead of pursuant to § 17.1.24, relating to a two-acre special development district. (4) The zone change was not in accordance with the comprehensive plan. (5) The council failed to make a specific finding that in its judgment subdivided land within 250 feet of the proposed subdivision was fully safeguarded and that the development plan was consistent with the public welfare. (6) The zoning change will cause traffic congestion which will be contrary to public safety and welfare. (7) A change in circumstances of the neighborhood is required to justify the zone change to a retail use, and no such change was shown. (8) The proposed West Farms Mall would be economically detrimental to other commercial developments not only in West Hartford but in the entire capitol region. The appeal was sustained, and the defendant has appealed to this court. The West Hartford town council has not appealed from the judgment of the Court of Common Pleas.

The defendant assigns error in the conclusions of the trial court and in the overruling of his claims of law. He does not, in this appeal, contest the standing of the plaintiffs as aggrieved persons. It should be noted at the outset that the evidence presented in the Court of Common Pleas was unusually extensive. Under § 8-8 of the General Statutes (Rev. to 1966), no evidence was admissible except on the issue of aggrievement unless it was essential for the equitable disposition of the appeal. Troiano v. Zoning Commission 155 Conn. 265, 268, 231 A.2d 536; Kyser v. Zoning Board of Appeals, 155 Conn. 236, 245, 230 A.2d 595; Young v. Town Planning & Zoning Commission, 151 Conn. 235, 241, 196 A.2d 427; Tarasovic v. Zoning Commission, 147 Conn. 65, 70, 157 A.2d 103. There is no indication in the record that any evidence was admitted except for the purpose of determining the question of aggrievement of the plaintiffs. 'Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons. Zieky v. Town Plan & Zoning Commission, 151 Conn. 265, 267, 196 A.2d 758; Abramson v. Zoning Board of Appeals, 143 Conn. 211, 214, 120 A.2d 827; Tarasovic v. Zoning Commission, 147 Conn. 65, 71, 157 A.2d 103.' Willard v. Zoning Board of Appeals, 152 Conn. 247, 248, 206 A.2d 110. 'In an appeal from a zoning board of appeals or a zoning commission, any portion of the record before the board or commission which was returned to the trial court but was not included in the printed record shall, if a party desires to present it to us, be printed only in an appendix to the brief. Practice Book §§ 647, 716, 721, see § 719; Miklus v. Zoning Board of Appeals, * * * (154 Conn. 399, 400, 225 A.2d 637); Faubel v. Zoning Commission, 154 Conn. 202, 208, 224 A.2d 538.' Ruggles v. Town Plan & Zoning Commission, 154 Conn. 711, 712, 226 A.2d 108.

A number of the claims alleged by the plaintiffs and sustained by the trial court concerned the desirability of the change of zone. 'The courts do not and should not substitute their judgment for that of the local authority.' Hall v. Planning & Zoning Board, 153 Conn. 574, 577, 219 A.2d 445. So long as it appears that an honest judgment has been reasonably and fairly exercised by the zoning authority after a full hearing, courts should be cautious about disturbing its decision. Kutcher v. Town Planning Commission, 138 Conn. 705, 710, 88 A.2d 538. Courts cannot substitute their judgment for the wide and liberal discretion vested in the local zoning authority when it is acting within its prescribed legislative powers. Summ v. Zoning Commission, 150 Conn. 79, 89, 186 A.2d 160; DeMeo v. Zoning Commission,148 Conn. 68, 75, 167 A.2d 454; Tarasovic v. Zoning Commission, supra, 147 Conn. 71, 157 A.2d 103. The courts allow zoning authorities this discretion in determining the public need and the means of meeting it, because the local authority lives close to the circumstances and conditions which create the problem and shape the solution. See Wade v. Town Plan & Zoning Commission,145 Conn. 592, 595, 145 A.2d 597. It is only where the local zoning...