Strain v. Mims
| Decision Date | 27 July 1937 |
| Citation | 123 Conn. 275,193 A. 754 |
| Court | Connecticut Supreme Court |
| Parties | STRAIN et al. v. MIMS et al. |
Appeal from Superior Court, Fairfield County; Edward J. Quinlan Judge.
Action by William Strain and others against Stewart L. Mims and others for a declaratory judgment determining whether there was on certain dates any legally constituted town plan commission in Greenwich, and other questions, and for an injunction. Judgment in part for the plaintiffs and in part for the defendants, and appeal by all parties. Error upon plaintiffs' appeal, and case remanded, with direction.
Joseph L. Melvin, of Stamford, for plaintiffs.
William C. Strong, of Greenwich, for defendants Jessie S Foot et al.
A. Amasa Miller, of New York City, and Trenholm H. Marshall, of Greenwich, for defendants Jessie S. Foot et al.
Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN, JJ.
The plaintiffs have, since 1915, conducted a general neighborhood store on property at the southeast corner of the intersection of Round Hill road and Old Mill road in Greenwich, known as the " Four Corners," in a building upon premises which at first they leased but which in 1923 they purchased. When, in 1926, the town adopted a comprehensive zoning ordinance, the land at all four corners of the intersection to a certain depth was placed in a No. 1 business zone, which permitted the continued use of the plaintiffs' premises for a general store and, if permitted by the board of appeals, for a gas filling station. On or about June 19, 1933, the plaintiffs, under the name of the Round Hill Service Station, applied to the zoning board of appeals for approval of the premises as a site for two gasoline pumps. On July 28, 1933, certain owners of property situated at or in the vicinity of the intersection of the two roads made application to the zoning commission to rezone the property at that point which was classed as a No. 1 business zone so that it would become an a residence zone. This would have the effect of making the use of the plaintiffs' premises for store purposes a nonconforming use and automatically prevent the grant of the application for the establishment of a gas filling station there. The defendants, owning more than 20 percent. of the area of the land included in the proposed change, filed a written protest against it with the zoning commission. On October 20, 1933, after proper notice, a public hearing was held upon the application to change the zoning of the property, and on October 30, 1933, without further notice or hearing, the commission passed a vote that the property at the intersection theretofore zoned for business should be re-zoned as an A residence zone.
The plaintiffs then brought this action seeking a declaratory judgment determining whether or not the vote making the change was valid. They claimed that it was invalid because of certain procedural faults in the method of its adoption and because the action of the commission was arbitrary, unreasonable, in abuse of its discretion and deprived the plaintiffs of their property without due process of law. The trial court concluded that the vote was not adopted in compliance with the procedure established by law and was therefore invalid but that, if it had been legally adopted, it would not have been arbitrary, confiscatory, or unconstitutional. Both parties have appealed, the defendants from the portion of the judgment holding that the vote was not validly adopted, and the plaintiffs from the portion which held that, if it had been validly adopted, it would not have been arbitrary, confiscatory, or unconstitutional. As we hold that there was error upon the plaintiffs' appeal and that judgment declaring that the vote making the change was invalid must be entered, altogether apart from any question as to the procedure followed in its adoption, it is not necessary to decide the questions raised on the defendants' appeal; but, because they involve certain procedural matters of general application under the statutes concerning zoning, we shall point out certain considerations affecting them.
The zoning regulations of the town provide that the regulations or zone boundaries may be amended, changed, or repealed by the zoning commission subject to the provisions of chapter 242 of the Public Acts of 1925, which, so far as material to the issues in this case, is now incorporated in section 425 of the General Statutes. It is therein provided that no zoning regulations or boundaries shall become effective until after a public hearing upon certain specified notice has been held by the zoning authority or by a committee thereof consisting of at least five members, and that, if a protest is filed by the owners of a certain percentage of the property affected or in the immediate vicinity, no change in such regulations or boundaries once established shall become effective " except by unanimous vote of the zoning authority if such zoning authority is a zoning commission, or a vote of three-fourths of all the members of any other such zoning authority," and that the provisions concerning notice and hearing, above referred to, shall apply to any proposals for such a change. It is not questioned that the protest filed by the plaintiffs was sufficient to require a hearing after notice, or that the hearing held was upon proper notice.
At that hearing only four of the five persons then acting as the zoning commission of the town were present. After the conclusion of the public hearing, there was some discussion of the proposed change, but, no action having been taken, the finding, not attacked in this regard, states that the meeting then adjourned without day. At the meeting on October 30th, all those purporting to be members of the zoning commission were present and the change was unanimously voted. The conclusions of the trial court upon this phase of the case, briefly summarized, were that under the statute no change in a zoning regulation or boundary could become effective unless adopted by the unanimous vote of all members of the zoning commission; that it was also impliedly required by the statute that all members should be present at the public hearing; and that the adjournment of the meeting on October 20th without day terminated the right of the commission to act further in the matter.
As the plaintiffs point out, zoning authorities are vested with power the exercise of which may very greatly diminish the market value of the property of individuals, without compensation being made to them. State v. Hillman, 110 Conn. 92, 147 A. 294. That is illustrated in the case before us by the fact that the change in zoning of the plaintiffs' premises would reduce their value from about $35,000 to about $10,000, even allowing for the continuance of the store as a nonconforming use. Particularly with respect to changes in zoning affecting specific property there is always present the danger that special interests may secure private benefit under the cloak of public welfare. St. Patrick's Church Corp. v. Daniels, 113 Conn. 132, 137, 154 A. 343. Most zoning ordinances throw particular safeguards about the making of changes after an ordinance of general application to a community has been adopted, which are intended to assure that the matter has been fully and fairly considered and is truly dictated by the public interests. Statutory requirements fixing the manner in which such changes shall be made should, in case of doubt, be construed with a view to accomplish this design and to give just protection to the rights of individual property owners; and those requirements should not be readily relaxed. Perkins v. Colebrook, 68 Conn. 113, 35 A. 772. Even though, as the defendants claim was the situation here, no other result would have been reached had all the requirements which the court found applicable been met, yet any departure from the established methods of procedure is fraught with danger.
In the absence of legislative restriction, the general rule is that a committee or commission performing such functions as those exercised by the zoning commission in this case can take valid action at a meeting of which all members have proper notice and at which a majority are present. Congress Bank & Trust Co. v. Brockett, 111 Conn. 490, 492, 150 A. 742; Dunn v. Flynn, 107 Conn. 272, 274, 140 A. 204; Smith v. New Haven, 59 Conn. 203, 211, 22 A. 146; Wilson v. Waltersville School District, 46 Conn. 400, 407. Where it is required that particular action can be taken only by unanimous vote, it is generally held, if there is no further restriction, that it is sufficient if all those at a meeting duly called, constituting a quorum, vote in favor of it. See 2 McQuillin, Municipal Corporations (2d Ed.) § 626; 19 R. C. L. p. 890.
In the situation before us, the Legislature has made a specific requirement that changes in zoning regulations or boundaries become effective only " by unanimous vote of the zoning authority if such zoning authority is a zoning commission," as was the case here. The defendants claim that it was not the intent of the Legislature to alter the general rule, and that, if all members of a commission present at a meeting duly called and constituting a majority vote in favor of a change in the regulations or boundaries that is sufficient. To construe the statute in this way would mean that a change could be made by the vote of a mere majority of zoning commission, whereas the statute is specific that, if the zoning authority is not a zoning commission, a vote of three-fourths of all members is required. Indeed, the latter requirement strongly suggests that, when the Legislature required the unanimous vote of a zoning commission, it had in mind all its members. We...
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