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Stamford Ridgeway Associates v. Board of Representatives of City of Stamford

Supreme Court of Connecticut

April 3, 1990

STAMFORD RIDGEWAY ASSOCIATES
v.
BOARD OF REPRESENTATIVES OF the CITY OF STAMFORD. Edward BENENSON
v.
BOARD OF REPRESENTATIVES OF the CITY OF STAMFORD. BULL'S HEAD MEDICAL ASSOCIATES
v.
BOARD OF REPRESENTATIVES OF the CITY OF STAMFORD.

Argued Dec. 7, 1989.

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[Copyrighted Material Omitted]

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[214 Conn. 408] Howard C. Kaplan, with whom, on the brief, was Edward M. Kweskin, Stamford, for appellants (Stamford Ridgeway Associates and Edward Benenson).

Michael J. Cacace, with whom was Mary Margaret Pitt, Stamford, for appellants (Bull's Head Medical Associates and John Fiorito).

Frank W. Murphy, with whom, was Barbara L. Coughlan, Norwalk, for appellee (defendant in each case).

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

[214 Conn. 409] ARTHUR H. HEALEY, Associate Justice.

The principal issue that we decide in these appeals is whether § C-552.2 [1] of the Stamford charter permits the board of representatives to vote on separate zone changes contained in one zoning application or whether the board of representatives must act on the entire application. The trial court held that the board was required to act unitarily on the entire application and remanded the case to the board to sustain or overrule the zone changes as a whole. We find error and remand for further proceedings.

On March 11, 1985, the zoning board of the city of Stamford approved a comprehensive rezoning plan for large areas of the city, on a neighborhood basis, that was to become effective March 26, 1985. The rezoning consisted of eight separate applications brought by the zoning board to itself. Each application covered large sections of the city of Stamford and included areas for which various zone changes were proposed, as well as other areas that were to remain unchanged. Application No. 84-053, which is involved in these appeals, was [214 Conn. 410] the eighth application initiated by the zoning board as part of its comprehensive rezoning plan, proposed to rezone various areas in the Downtown/Bull's Head area. This application affected a large area of Stamford extending approximately two miles from north to south and approximately one mile from east to west. This application also included a number of zoning districts that were not changed and a number of districts that were changed. In some instances, changed districts on this application were separated from other changed districts by areas of land unaffected by any change. The central business district as shown on this application remained unchanged. In addition, the proposed changes affected such land uses as commercial, single family residential and multifamily residential.

The plaintiffs in these appeals are all owners of property located in the Downtown/Bull's Head neighborhood who were adversely affected by the proposed rezoning. [2] Pursuant to § C-552.2 of the Stamford

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charter, [214 Conn. 411] the plaintiffs each filed separate petitions with the zoning board challenging the zoning board's proposed plan to rezone their respective areas and requesting that the matter be referred to the board of representatives. The chairman of the zoning board, acting in accordance with § C-552.2, by letter dated March 29, 1985, referred its findings, recommendations and reasons in connection with its action in approving, as modified, application No. 84-053, to the board of representatives (board).

The board of representatives, which consists of forty elected members, received sixteen petitions; several of the petitions pertained to zone changes within application No. 84-053. On May 2, 1985, the board held a public hearing concerning the various petitions filed. On May 6, 1985, the board voted on thirteen of the sixteen petitions. It rejected seven of the petitions, approved three and took no action on three. The board took no action on three of the petitions because of the lack of majority votes of the entire membership of the board needed on each petition to reject the proposed zone changes. These three petitions involved Bull's Head Medical Associates (Bull's Head), Stamford Ridgeway Associates (Ridgeway) and Benenson. [3] The effect of "no action" by the board constituted an affirmance of the changes proposed by the zoning board. The only successful petitioner Before the board in these appeals was John Fiorito; the board of representatives sustained his appeal and returned his property to a C-L zone (limited business district).

Prior to considering any of the matters raised in the petitions referred to the board of representatives by [214 Conn. 412] the zoning board, however, the president of the board of representatives, Sandra Goldstein, engaged independent counsel, Attorney Robert A. Fuller, to analyze and render an opinion concerning several questions with respect to the petitions filed. [4] Fuller was asked,

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inter alia, to render an opinion on how the 20 percent requirement in § C-552.2 is computed to determine whether the petitions filed were valid. Section C-552.2 provides in part: "[I]f twenty percent or more of the owners of the privately-owned land in the area included in any proposed amendment to the Zoning Map, or if the owners of twenty percent or more of the privately-owned land located within five hundred feet of the borders of [214 Conn. 413] such area, file a signed petition with the Zoning Board, within ten days after the official publication of the decision thereon, objecting to the proposed amendment, said decision shall have no force or effect but the matter shall be referred by the Zoning Board to the Board of Representatives within twenty days after such official publication, together with written findings, recommendations and reasons." In a letter dated April 22, 1985, Fuller stated that prior to "setting forth how the twenty percent computation is made, it is important to determine what land area it encompasses." In interpreting the language "a proposed amendment to the Zoning Map," in § C-552.2 of the charter, Fuller opined "that each separate zone change or amendment (even though combined with other amendments in one application) may be referred from the Zoning Board to the Board of Representatives if a proper petition is filed. Each zoning amendment may cover more than one property and includes all contiguous properties for which the same changes were made, as shown on the various zoning maps which were part of the applications and decisions of the Zoning Board."

In making this determination, Fuller rejected two other possible interpretations: "(1) That the right to petition refers to the entire area included in each zoning application acted upon by the Zoning Board; and (2) That the twenty percent applies to all of the zone changes contained within each application." (Emphasis omitted.) Fuller stated that "these interpretations, the first more than the second, lead to bizarre and irrational results, and frustrate the purpose of the charter provision. Section 552.2 is designed to give the right to appeal to the Board of Representatives if enough persons affected by a zoning amendment request reconsideration by the Board of Representatives." Fuller further stated: "Once the area of each zoning amendment is established, there are two computations that must [214 Conn. 414] be made to determine whether each petition is sufficient. Section 552.2 allows either: (1) twenty percent or more of the property owners in the area included in the zone change; or (2) twenty percent or more of the owners of land within five hundred feet of the zone change to file the protest petition." On the basis of this opinion, the board of representatives voted on the petitions. [5]

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[214 Conn. 415] Ridgeway, Bull's Head and Benenson appealed the action of the board of representatives to the Superior [214 Conn. 416] Court. The plaintiffs alleged in their complaints, inter alia, that the voting procedure used by the board was [214 Conn. 417] illegal in that it prevented the petitioners from obtaining the affirmative majority vote of the board and the [214 Conn. 418] interpretation of the voting results by the board ignored the precedent set in Schlesinger v. Board of Representatives,[214 Conn. 419] I Superior Court, judicial district of Stamford, Docket No. CV-77-0019744-L (December 9, 1980). The plaintiffs' cases were consolidated for trial. [6] Trial began on October 21, 1987, and occupied several days. On November 12, 1987, Fiorito moved to be made a party defendant to Ridgeway's appeal. The trial court denied Fiorito's motion on November 24, 1987.

On November 10, 1988, the trial court filed its memorandum of decision. The court, without addressing the merits of the plaintiffs' claims, sustained their appeals and reversed the action of the board of representatives in toto and remanded the matter to the board of representatives to sustain or overrule the proposed zone changes as a whole. The court stated that, although the changes adopted in application No. 84-053 were numerous and detailed, the zoning board adopted them as a "single package." The court further held that the Stamford charter did not permit the board of representatives to act "piecemeal" on each zone change within [214 Conn. 420] the one application (No. 84-053). Rather, it said that the board must reject or accept the entire application No. 84-053 as a whole because "[w]ere it otherwise, the board, by sustaining or overturning the action of the [zoning board] as to one area or another would be usurping the [zoning board's] fundamental role." The trial court, having said that "the adoption of the zoning changes [by the zoning board] was unitary," stated that the board of representatives could not vote on the application "piecemeal" because it would fragment what the zoning board had done as a whole "with the result of a patchwork design in what was intended [by the zoning board] as a seamless whole." The court further held that its decision was without prejudice to "the right of the Board to determine whether a sufficient number of petitioners sought a hearing treating the matter as a whole."

The plaintiffs moved to open, vacate and modify the judgments of the trial court. In a memorandum of decision filed March 6, 1989, the court reiterated its prior decision and denied the plaintiffs' motions. From these judgments and the court's memorandum of decision filed November 10, 1988,the

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plaintiffs appealed to the Appellate Court. In addition, Fiorito appealed the court's denial of his motion to be made a party defendant. Pursuant to Practice Book § 4023, we transferred the cases to this court.

It will be useful to review the charter provisions relevant to this decision. The Stamford charter gives to the planning board the power to "prepare, adopt and amend" a master plan for the city. Stamford Charter §§ C-520, C-522.1, C-522.2. It gives the zoning board the authority, after the effective date of the master plan, to amend the zoning map from time to time provided such amendment is not contrary to the general land use established for such area by the master plan. Stamford Charter § C-552. When the zoning map is [214 Conn. 421] amended by the zoning board, "twenty percent or more of the owners of the privately-owned land in the area included in any proposed amendment to the Zoning Map, or if the owners of twenty percent or more of the privately-owned land located within five hundred feet of the borders of such area ... objecting to the proposed amendment" may file a petition with the zoning board within ten days after the proposed amendment has been published. Stamford Charter § C-522.2. Specifically, as to that, we have said: "In that event, the amendment is without effect and the zoning board must refer the matter to the ...


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