D'Addario v. Planning & Zoning Commission

593 A.2d 511, 25 Conn. App. 137, 1991 Conn. App. LEXIS 222
CourtConnecticut Appellate Court
DecidedJune 25, 1991
Docket6854
StatusPublished
Cited by24 cases

This text of 593 A.2d 511 (D'Addario v. Planning & Zoning Commission) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D'Addario v. Planning & Zoning Commission, 593 A.2d 511, 25 Conn. App. 137, 1991 Conn. App. LEXIS 222 (Colo. Ct. App. 1991).

Opinion

Dupont, C. J.

The plaintiffs in these two cases brought administrative appeals to the trial court from a 1985 zone change enacted by the defendant planning and zoning commission of the town of Darien (commission).1 The trial court sustained the plaintiffs’ appeals, holding that the action of the commission in rezoning a certain area from commercial to residential amounted to a taking of properties without just compensation in violation of both the state and federal constitutions.2 Upon certification from this court, the commission appealed.

The dispositive issue in this appeal is whether the trial court properly determined that a taking had occurred as a result of the commission’s rezoning.

Certain facts are pertinent to the resolution of this issue. The zone change involved a total area of 19.2 acres. The D’Addario parcel contains 9.8 acres, and the Duhaime parcel, which is contiguous to it, contains 3.72 acres. The remaining 5.6 acres involved in the change [139]*139consist of a portion of the Connecticut Turnpike (turnpike) and a portion of the main line of the Metro North Railroad (railroad). The plaintiffs’ parcels are located between the turnpike and the railroad and are surrounded by commercial uses including a gravel pit, a highway service area and maintenance yard, a shopping center and a commuter parking lot. The Duhaime parcel is subject to an easement leading to the D’Addario parcel from Hollow Tree Ridge Road. This easement presently provides the only legal access to the D’Addario parcel.

The D’Addario land is bounded by another parcel of land, consisting of twenty-two acres. The twenty-two acre parcel was not subject to the 1985 zone change, and is not the subject of this appeal. It has always been zoned R-l/2 permitting single family residences on one-half acre lots, but has been used for gravel mining for over fifty years.

Prior to 1967, both of the plaintiffs’ parcels were zoned R-l/2. In 1967, the commission, with the promotion of commercial development as its goal, rezoned both parcels as a Designed Office and Research zone (DOR-5) allowing executive and administrative corporate office uses as well as research and design laboratories.

In 1984, the commission extensively revised the town’s plan of development in an effort to preserve the residential character of the town. The revised plan reflected a shift in policy toward limiting commercial development. The commission expressed concern about the growth of office space in Darien and in particular noted that the D’Addario and Duhaime parcels, as zoned, could generate significant amounts of traffic which could have an adverse impact on neighboring residential areas.

[140]*140In 1985, the commission, on its own initiative, moved to adopt the zone change that is the subject of this appeal. The change was adopted and the D’Addario and Duhaime parcels were rezoned from DOR-5 to R-l/2. The commission claimed that the rezoning was necessary to make the parcels consistent with the recent changes in the town’s plan of development. At a public hearing on the proposed rezoning, a zoning enforcement officer and an assistant planner made brief presentations in favor of rezoning the parcels while the plaintiffs, on the other hand, presented substantial evidence against the proposed zone change. An expert witness testified that if the D’Addario parcel were zoned residential, only three to four lots could be developed unless a variance could be obtained to allow thirteen building lots. The monetary difference between a development of thirteen residential lots and an office building was estimated to be more than $3 million. The same expert testified that if the Duhaime parcel were used for residential purposes, rather than commercial purposes, the difference in value would be more than $1 million. All of the plaintiffs’ expert witnesses testified that it was not economically feasible to use the properties for residential development because of their location next to the turnpike and railroad.

The plaintiffs appealed to the trial court and presented evidence, some of which had been introduced at the public hearing. In addition, they introduced evidence on the issues of aggrievement and confiscation.3 [141]*141The trial court concluded that the rezoning from DOR-5 to R-l/2 amounted to a taking, and therefore rendered judgments invalidating the zone change and sustaining the plaintiffs’ appeals.4 We affirm those judgments.

We must first decide, as a threshold question, whether the plaintiffs may attack the constitutionality of the zone change, as it affects them, in an administrative appeal. The general rule as stated in Florentine v. Darien, 142 Conn. 415, 115 A.2d 328 (1955), and as reiterated in Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 552 A.2d 796 (1989), is that a party “cannot seek the relief provided in an ordinance or statute and later in the same proceeding raise the question of its constitutionality.” Florentine v. Darien, supra, 428. There are instances, however, when the rule does not apply. It is not applicable when the legislature has provided otherwise. Cioffoletti v. Planning & Zoning Commission, supra, 550. It also does not apply when the party challenging the constitutionality of the particular regulation or ordinance does not seek relief pursuant to either. Chevron Oil Co. v. Zoning Board [142]*142of Appeals, 170 Conn. 146, 365 A.2d 387 (1976); Bartlett v. Zoning Commission, 161 Conn. 24, 282 A.2d 907 (1971); Troiano v. Zoning Commission, 155 Conn. 265, 231 A.2d 536 (1967); DeForest & Hotchkiss Co. v. Planning & Zoning Commission, 152 Conn. 262, 269-70 n.1, 205 A.2d 774 (1964). In the present case, as in Chevron Oil Co., Bartlett and Troiano, the plaintiffs seek no relief under the zoning regulation that is the subject of these appeals, and, therefore, may question whether the zone change, as applied to them, is a taking of their properties.

“All property is held subject to the right of government to regulate its use in the exercise of the police power, so that it shall not be injurious to the rights of the community, or so that it may promote its health, morals, safety and welfare. The power of regulation by government is not unlimited; it cannot ... be imposed unless it bears a rational relation to the subjects which fall fairly within the police power and unless the means used are not within constitutional inhibitions. The means used will fall within these inhibitions whenever they are destructive, confiscatory, or so unreasonable as to be arbitrary.” State v. Hillman, 110 Conn. 92, 105, 147 A. 294 (1929).

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Bluebook (online)
593 A.2d 511, 25 Conn. App. 137, 1991 Conn. App. LEXIS 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daddario-v-planning-zoning-commission-connappct-1991.