Fenn v. Planning & Zoning Commission

589 A.2d 3, 24 Conn. App. 430, 1991 Conn. App. LEXIS 116
CourtConnecticut Appellate Court
DecidedApril 16, 1991
Docket9276
StatusPublished
Cited by17 cases

This text of 589 A.2d 3 (Fenn 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
Fenn v. Planning & Zoning Commission, 589 A.2d 3, 24 Conn. App. 430, 1991 Conn. App. LEXIS 116 (Colo. Ct. App. 1991).

Opinion

Norcott, J.

This is an appeal from the judgment of the trial court sustaining an appeal by the plaintiff property owner, Edward Fenn, from the action of the defendant Seymour planning and zoning commission denying him a change of zone. The commission and the defendant neighboring property owners have joined in the present appeal, claiming, in essence, that the trial court exceeded its authority and wrongfully substituted its opinion for that of the commission.

The facts necessary to the understanding of this case are not in dispute. This appeal arises out of the commission’s denial, for the second time, of a petition to change the designation of a .678 acre parcel of land located on a residentially zoned street, designated R-15, to a multidwelling townhouse zone, R-TH. This piece of land adjoins a twenty-five acre parcel that is zoned R-TH on which townhouses may be built.

In 1975, the commission designated a large tract of land located on Bank Street1 in Seymour as a townhouse district. The tract was mushroom shaped with [432]*432twenty-five acres landlocked except for a stem shaped parcel 130 feet wide fronting Bank Street, which provided an obvious access to the larger tract. Initially, a single family owned this entire tract.

In 1985, the subsequent owners of this property sold a major portion of the parcel fronting Main Street to commercial developers; they contracted to sell the rest to the plaintiff for townhouse development. The contract for the sale of this property included a large 24.5 acre parcel zoned R-TH and the .678 acre lot which is the subject of the present appeal, zoned R-15 and located along a residential street, Woodside Avenue. The sale did not include the 130 foot lot fronting Bank Street.

In 1986, upon application by the owners of the 130 foot parcel fronting Bank Street, a 100 foot section of this land was rezoned from “Townhouse District” to “Commercial District.” The owner immediately sold this 100 foot piece to a commercial group for the construction of a commercial building. The owner retained the remaining thirty foot wide parcel, together with a twenty foot wide easement, which still provided direct access to the larger twenty-five acre tract.

At this time, the owner and Fenn applied to the planning and zoning commission for a change of zone to R-TH for the residentially zoned .678 acre parcel. Their intent was to use the property as an access to the larger twenty-five acre parcel. The commission denied the application reasoning that to grant it (1) would create “spot zoning” and (2) would not be in conformance with the residential character of Woodside Avenue. Fenn did not appeal. Subsequently, Fenn submitted a townhouse site plan for the construction of 120 townhouse units to the Seymour zoning board of appeals. The site plan reflected that access to the twenty-five acre lot would be via a road over the .678 acre piece of prop[433]*433erty. The board approved the site plan along with several variances. On appeal from the board’s order, the trial court upheld the variances but sustained the appeal and declared the site plan approval a nullity because the site plan included land that was not zoned R-TH.2 Thereafter, in June, 1988, Fenn finalized the purchase of the twenty-five acre parcel of land but did not purchase the portion of land that was still zoned residential and opened onto Bank Street.

On August 26,1988, Fenn again applied to the planning and zoning commission seeking a zone change to R-TH for the .678 acre parcel which he sought once again to use as an access to the twenty-five acre lot.3 After holding extensive hearings on November 10 and December 15, 1988, and taking a walking tour of the site, the commission denied the application because of (1) its previous denial of a similar request on the basis of nonconformity to the residential character of Wood-side Avenue and the lack of a subsequent change in the residential character, and (2) its interpretation of § 12.2 (A) of the Seymour zoning regulations. From that decision, Fenn appealed to the trial court which sustained the appeal, concluding that “the [commission] should not have applied the restrictive ‘change of condition’ rule to its vote. It should have considered the whole picture in acting in its legislative capacity. Its failure to do so was arbitrary, illegal and an abuse of its discretion.” The court also concluded that, since the .678 acre parcel was going to be used only for access and not for townhouse development, § 12.2 (A) did not [434]*434apply to it.4 The defendants appeal from the decision of the trial court.

The defendants rest their appeal on their claims that the trial court (1) substituted its judgment for that of the commission, and (2) wrongfully sought and found an unexpressed intent in § 12.2 of the zoning regulations that is clear and unambiguous on its face. We agree.

The standards governing judicial review in zoning appeals are well settled. A court cannot substitute its judgment for the liberal discretion accorded to local zoning authorities in the exercise of their prescribed legislative powers. Burnham v. Planning & Zoning Commission, 189 Conn. 261, 266, 455 A.2d 339 (1983). On appeal, the court may disturb that decision only where the local authority has acted illegally or arbitrarily or has abused its discretion. Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 573, 538 A.2d 1039 (1988). “The courts allow zoning authorities this discretion in determining the public need and the means of meeting it, because the local authority lives close to the circumstances and conditions which create the problem and shape the solution. Stiles v. Town Council, 159 Conn. 212, 219, 268 A.2d 395 (1970).” Burnham v. Planning & Zoning Commission, supra. When a trial court reviews a decision made by an administrative body in its legislative capacity, the court must not retry the case. “Conclusions reached by the [435]*435commission must be upheld by the trial court if they are reasonably supported by the record.” Burnham v. Planning & Zoning Commission, supra, 265. Applying these standards to the present case, we conclude that the trial court improperly determined that the commission’s decision was illegal, arbitrary and an abuse of its discretion.

The commission first denied Fenn’s application for a zone change for the .678 acre parcel in 1986, deciding that to grant the change would be to allow impermissible spot zoning. See Kimball v. Court of Common Council, 148 Conn. 97, 101, 167 A.2d 706 (1961). In 1988, upon reapplication by Fenn for the same zone change, the commission found that there had been no substantial change in the circumstances present when it had denied Fenn’s application in 1986. Specifically, the commission found that no substantial change had occurred in the residential character of the area and that the concerns it had raised in 1986 remained viable.

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Bluebook (online)
589 A.2d 3, 24 Conn. App. 430, 1991 Conn. App. LEXIS 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fenn-v-planning-zoning-commission-connappct-1991.