S.I.S. Enterprises, Inc. v. Zoning Board of Appeals

635 A.2d 835, 33 Conn. App. 281, 1993 Conn. App. LEXIS 475
CourtConnecticut Appellate Court
DecidedDecember 21, 1993
Docket11794
StatusPublished
Cited by5 cases

This text of 635 A.2d 835 (S.I.S. Enterprises, Inc. v. Zoning Board of Appeals) 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
S.I.S. Enterprises, Inc. v. Zoning Board of Appeals, 635 A.2d 835, 33 Conn. App. 281, 1993 Conn. App. LEXIS 475 (Colo. Ct. App. 1993).

Opinion

Freedman, J.

The plaintiffs, S.I.S. Enterprises, Inc., Socrates Diacosawas and Irene Diacosawas, appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant zoning board of appeals of the city of Bristol.1 The plaintiffs claim that the trial court improperly found that (1) there were a sufficient number of members of the board present when the decision was made on the plaintiffs’ application, (2) a zoning board of appeals may accept a proxy vote from an absent board member, (3) the board did not act illegally, arbitrarily or contrary to its own regulations and the provisions of the General Statutes in rendering its decision on the plaintiffs’ application. The plaintiffs further claim that the findings of the trial court were not supported by the record and that the plaintiffs’ application should be granted by default under the time provisions of General Statutes § 8-7d (a). We reverse the judgment of the trial court.2

[283]*283The following facts were found by the trial court. The plaintiffs are the owners of real property located in Bristol, part of which is in a single-family residential zone. On May 31, 1991, the plaintiffs applied to the defendant board to obtain a variance of the Bristol zoning regulations related to access to nonresidential parking through a residential zone, minimum number of parking spaces, size of the street yard, front yard parking, and the expansion of a nonconforming building by more than 25 percent. The plaintiffs’ application for a variance appeared on the board’s agenda seven times in a seven month period. The first time was a public hearing scheduled for July 10,1990. That hearing was continued at the request of the plaintiffs. At the second public hearing, held on September 4, 1990, the board heard testimony from the plaintiffs’ attorney, a neighboring landowner’s attorney, and six other area residents. One of the five board members then disqualified himself and, at the request of the plaintiffs’ attorney, the vote was postponed until another member, not present, could review the tape recording of the hearing.

At the third meeting of the board, held on October 2, 1990, the chairman explained that due to new appointments and additional disqualifications there were still only four members available to vote on the application. The board continued the matter to allow the chairman to meet with the corporation counsel for the city and the mayor. At the fourth meeting of the board, held on November 7,1990, the plaintiffs requested, and the board granted, a postponement until the Bristol zoning commission acted on a pending application for a special permit application. At the fifth meeting, held on January 2,1991, the matter was again postponed as the zoning commission had not yet acted on the special permit application. On February 4,1991, the sixth meeting of the board took place and the matter was again postponed because one board member was absent.

[284]*284The final meeting of the board was held on February 8, 1991, with three board members present, all of whom had participated in the public hearing. One board member who had participated in the public hearing was in a hospital. All other members and alternates had previously disqualified themselves. The hospitalized member sent to the meeting via a city official a sealed envelope containing his vote.3 The envelope had the following written on it: “If my position on this vote as contained herein is not acceptable to all parties in this matter by common consent, this envelope should be destroyed, unopened, by shredding.” Although the plaintiffs’ attorney and the attorney for an opponent to the application objected to its use, the board members present decided to use the vote contained in the envelope. The vote was taken, including that in the envelope, and the result was four to none to deny the application. The plaintiffs appealed the board’s decision to the trial court. The trial court dismissed the plaintiffs’ appeal and the appeal to this court followed.

General Statutes § 8-5 (a) provides in pertinent part that “[i]n each municipality having a zoning commission there shall be a zoning board of appeals consisting of five regular members and three alternate members, unless otherwise provided by special act. ...” There is no special act pertaining to the makeup of the zoning board of appeals of the city of Bristol. General Statutes § 8-5a sets forth the way in which the alternate members shall be chosen in the event of the absence of a regular member.4 In order [285]*285for the zoning board of appeals to vary the application of any zoning bylaw, ordinance, rule, or regulation, there must be the concurring vote of four members of such board. General Statutes § 8-7.

The trial court, relying on St. John’s R. C. Church v. Board of Adjustment or Appeals, 125 Conn. 714, 720, 8 A.2d 1 (1939), found that a quorum was all that was required for the board to act on the plaintiffs’ application. Since here the board was composed of five members, the trial court reasoned that the three members present were a majority and constituted a quorum. The St. John’s decision quoted Strain v. Mims, 123 Conn. 275, 281, 193 A. 754 (1937), in which our Supreme Court had stated that “ ‘[i]n the absence of legislative restriction, the general rule is that a committee or commission performing such functions as those exercised by the zoning commission in this case can take valid action at a meeting at which all members have proper notice and at which a majority are present.’ ” St. John’s R. C. Church v. Board of Adjustment or Appeals, supra. The board urges us to rely on Ghent v. Zoning Commission, 220 Conn. 584, 600 A.2d 1010 (1991), in which our Supreme Court again cited Strain with approval and quoted the same general rule regarding valid action at a meeting where there is a majority present. Such reliance, here, would be misplaced.

Here, unlike in St. John’s where there were four members of the board present and voting, and unlike in Ghent, where the action of the zoning commission was to amend the zoning regulations, which required the vote of only a majority of the commission, the plain-

[286]*286tiffs sought a variance of the zoning regulations, which could be granted only by the concurring vote of four members of the zoning board of appeals and could not be granted by a simple majority of a five member board. At the time of the St. John’s decision, the predecessor to General Statutes § 8-7, General Statutes (1930 Rev.) § 428, also required the concurring vote of four members of the zoning board of appeals to vary the zoning regulations. There, the court held that “[t]he action of the four members of the board present at the executive session complied with the provisions of [§ 428].” St. John’s R. C. Church v. Board of Adjustment or Appeals, supra. A vote taken with fewer than four members present and voting, however, would create the anomaly of allowing the board to vote under circumstances where it would be impossible to grant a variance even if all of the members present vote in favor of the variance.

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Bluebook (online)
635 A.2d 835, 33 Conn. App. 281, 1993 Conn. App. LEXIS 475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sis-enterprises-inc-v-zoning-board-of-appeals-connappct-1993.