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Weinstein v. Zoning Bd. of City of Stamford

Supreme Court of Connecticut

April 3, 1990

Morris WEINSTEIN
v.
ZONING BOARD OF THE CITY OF STAMFORD.

Argued Dec. 7, 1989.

Page 349

Isadore M. Mackler, Stamford for appellant (plaintiff).

James V. Minor, Asst. Corp. Counsel, with whom, on the brief, was Mary E. Sommer, Stamford, for appellee (defendant).

Before ARTHUR H. HEALEY, SHEA, GLASS, COVELLO and HULL, JJ.

[214 Conn. 401] SHEA, Associate Justice.

The plaintiff, Morris Weinstein, appealed to the Superior Court from the action of the defendant zoning board of Stamford in changing the zoning classification of his property from commercial to multi-family residential. [1] After a joint trial of this and four other related cases, the court dismissed this appeal, as well as a similar appeal that had been taken directly from the zoning board, for lack of subject matter jurisdiction. The court concluded that the Stamford charter does not authorize an appeal directly to the court when other property owners, who have been affected by the same action of the zoning board, have petitioned for referral of the matter to the board of representatives, the legislative body of the city of Stamford. In the three remaining cases, appeals had been taken from the board of representatives following a referral to that body of the zoning amendments approved by the zoning board. The trial court's remand of those cases for further proceedings Before the board of representatives is the subject of additional appeals pending in this court.

For the purpose of this appeal, the facts, which are undisputed, may be summarized briefly. On March 11, 1985, as part of an extensive rezoning of the city of Stamford, the zoning board, after a public hearing, approved eight applications for zone changes that the board itself had proposed. One of the applications, pertaining to the "Downtown/Bull's Head" neighborhood, included a change of zone for the plaintiff's property at 480 Bedford Street from C-L, a limited business zone allowing certain commercial and residential buildings, to R-H, a high density residential district of varying dwelling unit density, depending upon the size of the lot. The area encompassed in this application extended [214 Conn. 402] approximately two miles from north to south and varied between one half mile and one mile from east to west. It included many properties located in different zones and devoted to diverse uses.

Several other owners of properties included in the "Downtown/Bull's Head" rezoning proposal filed petitions concerning the zoning classifications of their properties that the zoning board had approved, and, pursuant to the Stamford charter, the board of representatives acted upon their objections to the proposed zone changes as applied to their properties. Three of those owners appealed from the determinations made by the board of representatives and those appeals were consolidated for trial with the appeal of the plaintiff, which had been taken directly from the zoning board.

In dismissing the plaintiff's appeal from the zoning board, the trial court concluded that the petitions filed by the three other property owners, whose appeals from the board of representatives were tried as companion cases, had resulted in depriving the amendments approved by the zoning board of any "force and effect," until the board of representatives had either approved or rejected those amendments, as § C-552.2 [2] of the [214 Conn. 403] Stamford charter expressly provides.

Page 350

Relying also on § C-556 [3] of the charter, which excepts from the right to appeal from the zoning board "those situations where a decision of the Zoning Board is referred to the Board of Representatives" and also creates a right to appeal from decisions of the latter board, the court decided that it had no jurisdiction over the subject matter of the plaintiff's appeal. Because General Statutes § 8-10 [4] [214 Conn. 404] provides for a uniform right of appeal that supersedes any conflicting charter provisions on which the court may have relied, we find error and remand the case for further proceedings.

General Statutes § 8-8 prescribes the procedure for appealing from decisions of a zoning board of appeals. General Statutes § 8-9 allows appeals from zoning commissions and planning and zoning commissions to be taken to the Superior Court "in the manner provided in section 8-8." Section 8-10 declares that these provisions "shall apply to appeals from zoning boards of appeals, zoning commissions or other final zoning authority of any municipality whether or not such municipality has adopted the provisions of this chapter and whether or not the charter of such municipality or the special act establishing zoning in such municipality contains a provision giving a right of appeal from zoning boards of appeals or zoning commissions and any provision of any special act, inconsistent with the provisions of said sections, is repealed."

The defendant zoning board does not contest the force of § 8-10 in overriding

Page 351

any inconsistent provisions of the Stamford charter, but maintains that the statute is inapplicable to the plaintiff's appeal because the "final zoning authority" in Stamford is the board of representatives once a petition is filed by opponents of a proposed amendment to the zoning map pursuant to § C-552.2 of the charter. It is true that, for a person who has filed a petition referring an amendment adopted by the zoning board to the board of representatives for approval or rejection, the "final zoning authority" is that body and not the zoning board. In Masone v. Zoning Board, 148 Conn. 551, 555, 172 A.2d 891 (1961), we declared that § C-556 of the charter "clearly indicates a choice of two different procedures." "Furthermore, the choice provided by the charter lies between remedies each of which is complete in itself [214 Conn. 405] and inconsistent with the other." Masone v. Zoning Board, supra, at 556, 172 A.2d 891. Accordingly, we held that a party to a successful petition to the board of representatives could not, on reversal of the decision of the board of representatives by the court, pursue the alternative remedy of a direct appeal to the court. Id. Implicitly this court in Masone, by sanctioning the "choice" of a direct appeal from the zoning board, recognized that the Stamford zoning board was the "final zoning authority" when a person chose to appeal directly to court rather than pursue the alternative of a referral to the board of representatives.

Furthermore, § 8-10 refers to a zoning board of appeals and a zoning commission as in pari materia with a "final zoning authority" of a municipality. The Stamford zoning board performs the same functions as a zoning commission created pursuant to General Statutes § 8-1 and exercises an authority parallel to that given a zoning commission by General Statutes § 8-2 to enact and amend zoning regulations, subject to the possibility of a timely referral to the board of representatives. Indeed, this court has previously noted the similarity between the Stamford zoning board and a zoning commission established under the General Statutes by remarking that, "[o]nce a zoning commission has adopted zoning regulations ... the municipality is powerless to amend them.... The legislative intent expressed in the Stamford charter modifies this principle by enabling the board of representatives to approve or reject any amendment by the zoning board to the zoning map or regulations, if proper and timely objection is made." (Citation ommitted.) Burke v. Board of Representatives, 148 Conn. 33, 43, 166 A.2d 849 (1961).

The defendant zoning board also relies upon our decision in Conto v. Zoning Commission, 186 Conn. 106, 115-18, 439 A.2d 441 (1982), in which we declared that [214 Conn. 406] § 8-10 did not conflict with town zoning regulations providing for an appeal from its zoning commission, which had acted in an administrative capacity by granting a permit to use a building as a restaurant, to the board of zoning appeals, another administrative agency of the town. We held that § 8-10 did not excuse the failure of an opponent of the application for the permit to exhaust the administrative remedy established by the ...


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