Town of Westport v. City of Norwalk

• Decision Date: 20 August 1974
• Citation: 355 A.2d 25,167 Conn. 151
• Parties: TOWN OF WESTPORT et al. v. CITY OF NORWALK et al.
• Court: Connecticut Supreme Court

Page 25

355 A.2d 25

167 Conn. 151

TOWN OF WESTPORT et al. v. CITY OF NORWALK et al.

Supreme Court of Connecticut.

Aug. 20, 1974.

Grove W. Stoddard, Bridgeport, with whom, on the brief, was John S. Barton, Bridgeport, for appellants (plaintiff John G. Akin and others).

Stanley P. Atwood, Town Atty., Westwood, for appellant (named plaintiff).

Melvin J. Silverman, Norwalk, for appellee (defendant Flower Estates at Cranbury, Inc.); with him, on the brief, was Arthur J. Goldblatt, Corp. Counsel, Norwalk, for appellee (defendant planning and zoning commission of the city of Norwalk).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ. SHAPIRO, Associate Justice.

In June of 1972, the defendant Flower Estates at Cranbury, Inc., (hereinafter called Flower Estates) made application to the planning and zoning commission of the city of Norwalk (hereinafter called the commission) for approval of a plan for a fifty-lot subdivision of a thirty-acre tract of unimproved land. The land, situated entirely in Norwalk, is bounded on the west by Wolfpit Avenue, on the north by Partrick Avenue and on the east by Cranbury Road; Cranbury Road forms a boundary between Norwalk and Westport. The plaintiffs comprise the town of Westport, the Norwalk-Westport Cranbury Association, Inc., and various property owners in the area and vicinity of the proposed subdivision. On September 6, 1972, the commission approved the plan. The plaintiffs appealed to the Court of Common Pleas where the appeal was dismissed. Upon the granting of their petition for certification, the plaintiffs appealed to this court.

The plaintiffs, in their brief, have abandoned their first assignment of error relating to a ruling on evidence. They assign error in the overruling by the court of various claims of law and in the claim that the court erred in employing improper standards of review to test the action taken by the commission with respect to the Flower Estates subdivision. We will discuss this last claim first.

In their brief, the plaintiffs argue that the standards of judicial review as applied by the court 'to this subdivision appeal were standards properly employed only in zoning cases where the central issue is the proper use of discretion by the zoning agency' and that the use of this standard by the court 'never permitted it to reach the central issue of a subdivision case which is, did the application comply' with the subdivision regulations of the city of Norwalk.

The trial court, in its memorandum of decision, recited that this is an appeal from the planning and zoning commission of the city of Norwalk 'approving a subdivision plan for a tract of unimproved land' and that 'the basic ground for said appeal is that the board acted illegally, unreasonably, arbitrarily and in abuse of its discretion, as more fully set forth in said plaintiffs' appeal.' In their appeal, the plaintiffs allege that they are aggrieved by the action of the commission in approving the subdivision in that the approval is in violation of § 3.01 ¹ of the subdivision regulations and will result in increased flood damage to their properties; and in that such approval is in violation of § 3.07 ² of the subdivision regulations and will adversely affect traffic, fire protection and general safety in the area of the plaintiffs' properties. Nowhere in their appeal do the plaintiffs allege that 'the board acted illegally, unreasonably, arbitrarily and in abuse of its discretion.'

In February, 1968, at the time of this court's decision in J & M Realty Co. v. Norwalk, 156 Conn. 185, 239 A.2d 534, planning in the city of Norwalk was governed by special act and not by the general statutes. At that time, approval of plans for a subdivision was required by the Norwalk planning commission in the first instance and then by the Norwalk common council. By special acts, in 1947 and 1955, a city planning commission was established in Norwalk. J & M Realty Co., supra 188, 239 A.2d 534. By amendment to the charter of the city of Norwalk (1970), § 1-368.1, effective January 1, 1971, the planning commission was granted 'the powers and duties granted to and imposed on planning commissions under Chapter 126 of the Connecticut General Statutes, which are not inconsistent with the duties and powers set forth in said Charter.' By virtue of a further charter amendment, § 1-368.2, provision was made whereby the common council was authorized to consolidate the planning and zoning commissions. By adoption on July 13, 1971, § 116-13 of the Code of the City of Norwalk provided that pursuant to authority under § 1-368.2 the planning commission was designated as the planning and zoning commission. By adoption of § 116-14, that commission was granted all the powers and made subject to all of the duties of zoning commissions under provisions of chapter 124 of the General Statutes, ³ together with all powers and duties imposed upon the planning commission under the city character and all powers and duties granted to and imposed upon planning commissions under chapter 126 of the General Statutes, ⁴ not inconsistent with those set forth in the charter.

'In exercising its function of approving or disapproving a subdivision plan, the planning board acts in an administrative capacity. In passing upon a plan, its action is controlled by the regulations adopted for its guidance. It has no discretion or choice but to approve a subdivision which conforms to the regulations.' Langbein v. Planning Board, 145 Conn. 674, 679, 146 A.2d 412, 414; Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 674, 236 A.2d 917. 'Zoning, on the other hand, is concerned with the use of property.' Purtill v. Town Plan & Zoning Commission, 146 Conn. 570, 572, 153 A.2d 441, 443. In voting a change of zone of an area, a zoning commission exercises a legislative function. See Burke V. Board of Representatives, 148 Conn. 33, 38, 166 A.2d 849; Kutcher v. Town Planning Commission, 138 Conn. 705, 709, 88 A.2d 538.

Here, the trial court in its memorandum of decision regarding the commission's action used language appropriate to an appeal from a zoning commission. However, the effect of its decision is that, in view of the plaintiffs' appeal, the court, in its judgment, found the issues for the defendants and dismissed the appeal. The case was presented in the court below on the record of the proceedings before the commission. The only testimony in the record-that relating to a witness called on behalf of the plaintiffs-is not now before us, since a ruling thereon having been assigned as error was abandoned by the plaintiff. The court limited its finding to the issue of aggrievement.

The plaintiffs, while arguing that they have been denied adequate judicial relief because their appeal was treated by the court as one taken from a zoning commission rather than one taken from a planning commission, nevertheless request us to review the record and determine the appeal on its merits. This we will do, while pointing out that a review of the record of the commission which was before the trial court and our determination of the remaining issues assigned as error, for the reasons enumerated below, lead us to the conclusion that the trial court was correct when it dismissed the appeal. 'Simply because the trial judge relied on the wrong theory does not render the judgment erroneous. A correct decision can be sustained although it may have been placed on the wrong grounds. Emerick v. Monaco & Sons Motor Sales, Inc., 145 Conn. 101, 106, 139 A.2d 156.' Powers v. Common Council, 154 Conn. 156, 161, 222 A.2d 337, 339; Maltbie, Conn.App.Proc. § 36.

The plaintiffs make the claim that the approval by the commission of the subdivision plan was illegal in that it violated § 3.01 of the subdivision regulations. The plaintiffs contend that upon the evidence before the commission, it could not reasonably have come to any other conclusion than that the subdivision might aggravate the flood hazard and therefore the commission was required to disapprove the application. The burden was on the plaintiffs to prove that the action of the board was illegal. Blakeman v. Planning Commission, 152 Conn. 303, 306, 206 A.2d 425. Before a planning commission can exercise any control over the planning of a subdivision, regulations must be adopted for its guidance. J & M Realty Co. v. Norwalk, 156 Conn. 185, 191, 239 A.2d 534; South East Prop. Owners & Residents Ass'n v. City Plan Commission, 156 Conn. 587, 590, 244 A.2d 394; Langbein v. Planning Board, 145 Conn. 674, 679, 149 A.2d 412. '(I)n passing on subdivision plans, the council is to be controlled by the regulations which it has adopted.' J & M Realty Co. v. Norwalk, supra, 156 Conn. 191, 239 A.2d 537; see South East Prop. Owners & Residents Ass'n v. City Plan Commission, supra, 156 Conn. 591, 244 A.2d 394; North Rollingwood Property Owners Ass'n v. City Plan Commission, 152 Conn. 518, 521, 209 A.2d 177; Langbein v. Planning Board, supra, 145 Conn. 679, 146 A.2d 412; Beach v. Planning & Zoning Commission, 141 Conn. 79, 83, 103 A.2d 814. If the subdivision plan conforms to the existing regulations the council 'has no discretion or choice but to approve a subdivision . . ..' Langbein v. Planning Board, supra, 145 Conn. 679, 146 A.2d 414; see South East Prop. Owners & Residents Ass'n v. City Plan Commission, supra, 156 Conn. 591, 244 A.2d 394; Beach v. Planning & Zoning Commission, supra, 141 Conn. 84, 103 A.2d 814. Conversely, if the subdivision plan does not conform to the regulation the plan must be disapproved. South East Prop. Owners & Residents Ass'n v. City Plan Commission, supra, 156 Conn. 591, 244 A.2d 394; Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 675, 236 A.2d 917.

Regulations concerned with subdivisions in Norwalk had been adopted pursuant to 25 Spec.Laws 303, No. 214, § 5. One such regulation was Norwalk subdivision regulation § 3.01,...