Strand/BRC Group, LLC v. Board of Representatives ( 2022 )

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STRAND/BRC GROUP, LLC v. BOARD OF REPRESENTATIVES—DISSENT
D’AURIA, J., dissenting. In a state with 169 municipal-
ities, each legislatively created and with its own form
of governance, it should not be surprising that this court
often counsels against judicial interference in local leg-
islative decisions. See, e.g., Benenson v. Board of Repre-
sentatives, 223 Conn. 777, 784, 612 A.2d 50 (1992)
(‘‘[c]ourts will interfere with legislative decisions made
by municipalities only where the party seeking review
can characterize the legislative act as illegal, fraudulent,
or corrupt’’ (internal quotation marks omitted)). This
case illustrates well the importance of heeding our own
advice, which the court today does not. I respectfully
dissent.
The Planning Board of the City of Stamford is made
up of five mayoral appointees, nominated by the mayor
and approved by the Stamford Board of Representa-
tives. Stamford Charter §§ C6-00-2 and C6-00-3. In the
present case, the Planning Board approved amend-
ments to Stamford’s master plan of development, ‘‘the
general land use Plan for the physical development of
the City.’’ Stamford Charter § C6-30-3. The plaintiffs,
The Strand/BRC Group, LLC, 5-9 Woodland, LLC, Wood-
land Pacific, LLC, and Walter Wheeler Drive SPE, LLC,
owners of land in the city, proposed an amendment ‘‘to
modify their properties’ land use categories to allow
high-density residential development on the site of a
former recycling collection and disposal center.’’ The
Planning Board also submitted a proposed amendment
pertaining to nearby properties. The Planning Board
then conducted public hearings on both amendments
and approved them. Pursuant to § C6-30-7 of the Stam-
ford Charter (charter), a Stamford resident filed a pro-
test petition with the Planning Board, signed by adja-
cent property owners, objecting to the proposed
amendments. The Planning Board referred the petition
to the defendant, the Board of Representatives of the
City of Stamford. See Stamford Charter § C6-30-7.
The Board of Representatives is made up of forty
members elected by the city’s residents, two from each
of the city’s twenty voting districts. Stamford Charter
§§ C1-80-1 and C1-80-4. The charter provides that ‘‘[t]he
legislative power of the City [is] vested in the Board of
Representatives. No enumeration of powers contained
in this Charter shall be deemed to limit the legislative
power of the Board except as specifically provided in
this Charter.’’ Stamford Charter § C2-10-1. In the present
case, upon the Planning Board’s referral of the petition,
the Board of Representatives voted to reject the amend-
ments. To get their amendment reinstated, pursuant to
§ C6-30-20, the plaintiffs appealed to the trial court. The
plaintiffs claimed, among other things, that the Planning
Board never should have referred the petition to the
Board of Representatives without first determining
whether the petition was timely filed and contained
enough signatures for referral. The plaintiffs contend
that there were an insufficient number of signatures
because the Board of Representatives improperly com-
bined petition signatures for the two separate applica-
tions. The trial court sustained the appeal, nullifying
the Board of Representatives’ rejection of the plaintiff
developers’ proposed amendment to the master plan.
In affirming the judgment of the trial court, the major-
ity today strikes down the action of Stamford’s most
representative and authoritative legislative body: the
rejection of an amendment to the master plan proposed
by the plaintiff developers. The majority instead affirms
amendments approved by five Planning Board mem-
bers, passed to facilitate the development of a high
density residential development. The majority is able
to upend the political process in this way only by label-
ing as substantive that which is procedural and impos-
ing judicial standards on that which is legislative.
It is undisputed that, when approving or rejecting
proposed amendments to the city’s master plan, both
the Planning Board and the Board of Representatives
exercise legislative authority. This court has recognized
that, ‘‘in the planning and zoning context, [a] zoning
amendment is a change in the ordinance, enacted by
the legislative authority of a municipality.’’ (Emphasis
omitted; internal quotation marks omitted.) Stamford
Ridgeway Associates v. Board of Representatives, 214
Conn. 407, 425, 572 A.2d 951 (1990). Similarly, in a case
also involving Stamford’s charter, we indicated that,
‘‘[the] [B]oard [of Representatives], in reviewing the
action of the [city’s] zoning board, is called upon to
perform a legislative function.’’ Burke v. Board of Repre-
sentatives, 148 Conn. 33, 39, 166 A.2d 849 (1961). No
one contends that the Planning Board’s action is other
than legislative. ‘‘The plain language of [the charter
provision] leaves no room for any other construction.’’
Benenson v. Board of Representatives, supra, 223 Conn.
783. In exercising their respective authority related to
amending the master plan for the city, both the Planning
Board and the Board of Representatives are directed
to apply the same legislative standards. See Stamford
Charter §§ C6-30-3 and C6-30-7;1 see also Stamford
Ridgeway Associates v. Board of Representatives, supra,
432 (referring to standards guiding Board of Represen-
tatives as ‘‘typical legislative standards; viz., promotion
of health and the general welfare, provision for adequate
light and air, prevention of overcrowding, and avoid-
ance of undue population concentration’’ (internal quo-
tation marks omitted)).
I fully agree with the majority’s well reasoned analysis
and conclusion that, consistent with the charter’s lan-
guage, it is the Planning Board’s responsibility to deter-
mine whether a protest petition meets the provisions
for a referral to the Board of Representatives, namely,
whether the petition is signed by the prescribed number
of property owners in the subject area and filed with
the Planning Board within ten days after the official
publication of the Planning Board’s decision. See Stam-
ford Charter § C6-30-7. More particularly, I agree with
the majority that ‘‘the Board of Representatives lacks
the authority to assess the validity of a protest petition
after it has been duly referred by the Planning Board.’’
Also, like the majority, I find support for this conclu-
sion in our case law, most of it concerning the charter.
In Benenson, we interpreted an almost identical provi-
sion of the charter to hold that a protest petition brings
a matter before the Board of Representatives because
the plain language of the charter ‘‘does not provide
for the approval or rejection of the ‘petition’ itself.’’
Benenson v. Board of Representatives, supra, 223 Conn.
783. As the majority correctly acknowledges, the peti-
tion is ‘‘merely the vehicle’’ that brings the issue to the
Board of Representatives. (Internal quotation marks
omitted.) We have reiterated that the ‘‘question before
the [B]oard [of Representatives is] not the petition,
which indicate[s] the property owners’ objection to the
[master plan amendment], but whether the [master plan
amendment] should be approved.’’ Benenson v. Board
of Representatives, supra, 783. Decades before that
case, we explained that ‘‘[t]he manifest legislative intent
expressed in the Stamford charter is that the [B]oard
of [R]epresentatives, in considering an amendment to
the zoning map, shall review the legislative action of the
[city’s] zoning board on that board’s written findings,
recommendations and reasons. The question before the
[B]oard of [R]epresentatives is whether to approve or
to reject the amendment.’’ Burke v. Board of Represen-
tatives, supra, 148 Conn. 39.
Thus, the majority and I agree that, when a petition
is filed with the Planning Board, that board must review
it and determine if it warrants referral to the Board of
Representatives. Upon referral of the petition by the
Planning Board, the Board of Representatives may act
only on the merits of the proposed amendment, applying
the same legislative standards as the Planning Board.
In fact, the Planning Board did refer the petition to
the Board of Representatives, albeit with no record of
having reviewed and determined whether the petition
was timely or contained the number of signatures con-
templated by the charter for referral. The Board of
Representatives voted on the merits of the amendments
and rejected them, which the charter authorized it to do
upon referral from the Planning Board.
The majority’s reasoning focuses on the Board of
Representatives’ lack of authority to pass on the peti-
tion’s validity, not on the Planning Board’s failure to
pass on the petition’s validity and its resulting referral
of the petition. The majority repeats several times that
the Board of Representatives had no authority to deter-
mine the petition’s validity, including whether it con-
tained sufficient signatures. We know this even if the
Planning Board did not. Both the charter’s language
and our case law make this clear. See Stamford Charter
§ C6-30-7; see also Benenson v. Board of Representa-
tives, supra, 223 Conn. 783; Burke v. Board of Represen-
tatives, supra, 148 Conn. 35–36. But this does not neces-
sarily address what happens when the Planning Board
erroneously refers a petition to the Board of Represen-
tatives. Does the Board of Representatives then lack
the authority to pass on the proposed amendment? If
the Board of Representatives has no authority to review
or pass on the petition’s validity, is it for a court to
go back and scrutinize whether the referral from one
legislative body to another was proper and, if not, to
void any subsequent legislative action?
The majority’s answers to these questions are ‘‘yes’’
and ‘‘yes.’’ The majority claims that the Board of Repre-
sentatives lacks authority to pass on these amendments
because the charter’s signature provision ‘‘confers a
limited authority on the Board of Representatives,
which may be exercised only if a sufficient percentage
of the owners of private property within a defined geo-
graphic area . . . sign and timely file a protest petition
with the Planning Board.’’ (Emphasis omitted.) I part
company with the majority here because, in my view,
it is acting like a court reviewing executive action or
a ruling of a lower court rather than a court reviewing
legislative action, over which its appropriate scrutiny
is much more limited. See, e.g., Benenson v. Board of
Representatives, supra, 223 Conn. 784. And, in voiding
the Board of Representatives’ subsequent action, the
majority appoints itself as a municipal signature counter,
which, the majority claims, correctly in my view, the char-
ter delegates to the Planning Board.
The majority is careful not to employ terms such as
‘‘jurisdiction’’ or ‘‘aggrievement’’ in its analysis. These
concepts have no obvious place in a court’s review of
such layers of legislative action. But the majority’s use
of terms such as ‘‘substantive,’’ ‘‘condition precedent,’’
‘‘void,’’ and ‘‘invalid,’’ is a dead giveaway: the majority
cannot disengage from its reflexive judicial role, a role
in which, before acting, a body must examine its own
jurisdiction and the jurisdiction of the body that came
before it. In this world, the majority is constrained to
find the exercise of legislative authority by the Board
of Representatives on the merits of the amendment
tainted by the earlier, improper exercise of authority
of the Planning Board, as determined by a court after
the Board of Representatives has acted. An examination
of forums in which these jurisdictional concepts are
appropriately applied, and scrutiny of the scant author-
ity the majority cites for its conclusion, exposes the
majority’s jurisdictional reasoning as faulty.
For example, with the exception of actions challeng-
ing an unconstitutional statute or a state officer’s actions
in excess of statutory authority; Horton v. Meskill, 172
Conn. 615, 624, 376 A.2d 359 (1977); a court reviews
action by state executive officials only pursuant to legis-
lative authorization, which—because it implicates the
state’s sovereign immunity from suit—is strictly con-
strued. See, e.g., Envirotest Systems Corp. v. Commis-
sioner of Motor Vehicles, 293 Conn. 382, 388, 978 A.2d
49 (2009) (statutes in derogation of sovereign immunity
should be strictly construed). In a direct action against
an executive official, the plaintiff must identify a statute
that explicitly or by necessary implication compels a
conclusion that the legislature intended to waive the
state’s sovereign immunity from suit. Id. Similarly,
under the Uniform Administrative Procedure Act, Gen-
eral Statutes § 4-166 et seq., ‘‘aggrieved’’ persons who
have ‘‘exhausted all administrative remedies available
within the agency’’ may appeal from a ‘‘final decision’’
within forty-five days to the Superior Court. General
Statutes § 4-183 (a) and (c). Given that § 4-183 consti-
tutes a waiver of sovereign immunity; Republican Party
of Connecticut v. Merrill, 307 Conn. 470, 488 n.20, 55
A.3d 251 (2012); these requirements are considered
jurisdictional, and, without strict compliance with each,
the Superior Court lacks jurisdiction over the case. See,
e.g., Summit Hydropower Partnership v. Commis-
sioner of Environmental Protection, 226 Conn. 792,
812, 629 A.2d 367 (1993) (no jurisdiction for lack of
contested case and final decision); Fletcher v. Plan-
ning & Zoning Commission, 158 Conn. 497, 502, 508,
264 A.2d 566 (1969) (no jurisdiction for lack of
aggrievement); see also Piteau v. Board of Education,
300 Conn. 667, 690, 15 A.3d 1067 (2011) (no jurisdiction
for failure to exhaust administrative remedies). If a trial
court rules on the merits of such an action and orders
relief against a state agency or official without examin-
ing its jurisdiction, and this court or the Appellate Court
determines that the trial court lacked jurisdiction, the
appellate court will reverse the judgment of the lower
court and the relief ordered. See, e.g., Stepney, LLC
v. Fairfield, 263 Conn. 558, 571, 821 A.2d 725 (2003)
(remanding case with direction to dismiss for lack of
jurisdiction because of failure to exhaust administrative
remedies); Summit Hydropower Partnership v. Com-
missioner of Environmental Protection, supra, 812
(remanding case with direction to dismiss appeal for
lack of jurisdiction when there was no contested case
and therefore no final decision); Fletcher v. Planning &
Zoning Commission, supra, 508 (remanding case with
direction to dismiss appeal for lack of jurisdiction when
plaintiff failed to establish aggrievement).
Similarly, with some common-law exceptions, an
appellate court may review trial court rulings only by
legislative delegation and authority. ‘‘Under General
Statutes §§ 52-263 and 51-197a, the ‘statutory right to
appeal is limited to appeals by aggrieved parties from
final judgments.’ ’’ Halladay v. Commissioner of Cor-
rection, 340 Conn. 52, 57, 262 A.3d 823 (2021); see also
id. (‘‘[b]ecause our jurisdiction over appeals . . . is
prescribed by statute, we must always determine the
threshold question of whether the appeal is taken from
a final judgment before considering the merits of the
claim’’ (internal quotation marks omitted)); cf. State v.
Skipwith, 326 Conn. 512, 521, 165 A.3d 1211 (2017)
(explaining that writ of error is common-law remedy
that ‘‘exists independent[ly] of [any] statutory authori-
zation’’ (internal quotation marks omitted)). As was the
case in the previously discussed example concerning
a trial court’s review of state executive action, this court
will reverse the judgment of the Appellate Court if we
determine that the Appellate Court lacked jurisdiction;
see, e.g., Redding Life Care, LLC v. Redding, 331 Conn.
711, 744, 207 A.3d 493 (2019) (remanding case to Appel-
late Court to dismiss writ of error for lack of jurisdiction
because discovery order was not final judgment); and
we will dismiss appeals before our own court if we
determine that we do not have jurisdiction. See, e.g.,
Ambroise v. William Raveis Real Estate, Inc., 226 Conn.
757, 767, 628 A.2d 1303 (1993) (dismissing appeal for
lack of jurisdiction because of failure to timely appeal
pursuant to General Statutes § 52-278l).
These jurisdictional concepts are foreign to the legis-
lative process and to a court’s review of that process.
‘‘[C]ourts cannot pass upon the regularity of legislative
proceedings, at least in the absence of a violation of
some constitutional restriction.’’ State v. Sitka, 11 Conn.
App. 342, 346, 527 A.2d 265 (1987), citing State v. Sav-
ings Bank of New London, 79 Conn. 141, 152, 64 A. 5(1906). We have since the nineteenth century held that
‘‘[c]ourts will interfere with legislative decisions made
by municipalities only where the party seeking review
can characterize the legislative act as illegal, fraudulent,
or corrupt. . . . When such bodies are acting within
the limits of the powers conferred upon them, and in
due form of law, the right of courts to supervise, review
or restrain is exceedingly limited.’’ (Internal quotation
marks omitted.) Benenson v. Board of Representatives,
supra, 223 Conn. 784; Whitney v. New Haven, 58 Conn.
450, 457, 20 A. 666 (1890). ‘‘Difference in opinion or
judgment is never a sufficient ground for interference.’’
Whitney v. New Haven, supra, 457. This includes a
difference in opinion about how the petition signatures
should or should not be counted. The majority cites this
line of cases—which limits judicial review of legislative
action and distinguishes legislative action from adminis-
trative or quasi-judicial action of municipal actors—as
well as our precedents distinguishing mandatory statu-
tory provisions from directory provisions, but does not
engage with or follow their reasoning. These cases
make this point clearly.
For example, in LaTorre v. Hartford, 167 Conn. 1,
3–6, 355 A.2d 101 (1974), two city councilmen were
financially associated with an insurance company that
sought to widen a road to build an office building. Pursu-
ant to Hartford’s city charter, the Court of Common
Council was authorized to ‘‘lay out, construct, recon-
struct, alter . . . streets’’ and to ‘‘open and widen
streets . . . .’’ (Citation omitted; internal quotation
marks omitted.) Id., 4. Notwithstanding the trial court’s
own determination that the councilmen should have
been disqualified, this court held that the council’s vote
to pass the ordinance widening the street was not
invalid. See id., 9. The court noted that, when, as in
that case, ‘‘the municipal authorities act in accordance
with formal requirements, courts will interfere only
where fraud, corruption, improper motives or influ-
ences, plain disregard of duty, gross abuse of power,
or violation of law, enter into or characterize the action
taken.’’ (Internal quotation marks omitted.) Id., 9, quot-
ing Whitney v. New Haven, supra, 58 Conn. 457. We
reasoned that, because ‘‘the [C]ourt of [C]ommon [C]oun-
cil was acting in a proper legislative capacity in adopting
the ordinance to widen [the road]; that the ordinance
was enacted for a public purpose; that none of the
councilmen acted out of improper motives or permitted
any consideration to intrude into the deliberations and
actions other than what in [their] sound judgment was
in the best interest of the city; and that there was no
bad faith, clear abuse of power or plain disregard of
duty by the [C]ourt of [C]ommon [C]ouncil in enacting
the [road] widening ordinance,’’ the trial court erred in
vacating the council’s enactment based on the coun-
cilmen’s connection to the company. LaTorre v. Hart-
ford, supra, 9. We so concluded based on ‘‘due regard
for the legislative magistracy and . . . a reluctance to
involve the courts in political controversies, and in the
review and revision of many, if not all, major controver-
sial decisions of the legislative or executive authorities
of a municipality . . . .’’ Id., 8.
In contrast, in Mills v. Town Plan & Zoning Commis-
sion, 145 Conn. 237, 140 A.2d 871 (1958), overruled in
part on other grounds by Mott’s Realty Corp. v. Town
Plan & Zoning Commission, 152 Conn. 535, 209 A.2d
179 (1965), we sustained an appeal challenging a plan
and zoning commission’s change in both the town’s
comprehensive plan and a zoning designation. In that
case, the commission unanimously denied an applica-
tion to rezone land from agricultural to a more commer-
cial designation to allow the construction of a shopping
center, reasoning that the land was subject to flooding
and that there already was adequate land in the area
already zoned for business. Id., 239. The applicants reap-
plied for a change in the comprehensive plan and a
zone change several weeks later, and the commission
granted the application by a split vote. Id., 239–40. As
the court explained, ‘‘[a]fter the denial of the first appli-
cation and prior to the filing of the second, the members
of the commission and the applicants met privately and
agreed upon conditions under which a new application
would be considered.’’ Id., 241. The court held that
this opened to judicial scrutiny the propriety of the
commission’s decision to approve the change in the
comprehensive plan and the zone change, despite the
reluctance of courts to interfere with the actions of
legislative bodies, because ‘‘a court can grant relief
where the local authority has acted illegally or arbi-
trarily and has clearly abused the discretion vested in
it.’’ Id., 242. In the present case, the Board of Represen-
tatives’ vote on the merits of the amendments cannot
reasonably be considered ‘‘illegal’’ conduct that will
overcome our high threshold for judicial review of legis-
lative actions, just because the Planning Board failed
to validate the petition before referring it. Nor is it the
same kind of administrative or quasi-judicial action that
warrants judicial scrutiny in accordance with these
principles. See, e.g., Low v. Madison, 135 Conn. 1, 9,
60 A.2d 774 (1948) (invalidating zoning commission’s
approval of zone change for commission member’s wife
due to conflict of interest because ‘‘administration of
power of that nature, whether it be denominated legisla-
tive or quasi-judicial, demands the highest public confi-
dence,’’ despite courts’ reluctance to inquire into
motives of enacting body); see also LaTorre v. Hartford,
supra, 167 Conn. 8 (‘‘[t]his court has consistently
applied the standards enunciated in Low . . . to zoning
boards and commissions, and to public officials acting
in administrative or quasi-judicial capacities’’). In
determining whether the Board of Representatives’
action is illegal or arbitrary, the pertinent question is
whether the signature provision is mandatory or direc-
tory. Unless and until the signature provision is deemed
mandatory, which, as I will discuss, is not, any exercise
of authority by the Board of Representatives without
sufficient signatures is not illegal, arbitrary, or without
due form of law in the way our case law has articulated.
‘‘In construing a [municipal] charter, the rules of stat-
utory construction generally apply. . . . In arriving at
the intention of the framers of the charter the whole
and every part of the instrument must be taken and
compared together. In other words, effect should be
given, if possible, to every section, paragraph, sentence,
clause and word in the instrument and related laws.’’
(Internal quotation marks omitted.) Cook-Littman v.
Board of Selectmen, 328 Conn. 758, 768, 184 A.3d 253(2018). ‘‘The test to be applied in determining whether
a statute is mandatory or directory is whether the pre-
scribed mode of action is the essence of the thing to
be accomplished, or in other words, whether it relates
to a matter of substance or a matter of convenience.
. . . If it is a matter of substance, the statutory provi-
sion is mandatory. If, however, the legislative provision
is designed to secure order, system and dispatch in
the proceedings, it is generally held to be directory,
especially where the requirement is stated in affirmative
terms unaccompanied by negative words.’’ (Internal
quotation marks omitted.) Lostritto v. Community
Action Agency of New Haven, Inc., 269 Conn. 10, 19,
848 A.2d 418 (2004); see also Winslow v. Zoning Board,
143 Conn. 381, 387–88, 122 A.2d 789 (1956) (Board of
Representatives was able to amend ordinance despite
failure to comply with sixty day requirement in charter).
In particular, we have followed ‘‘applicable tenets of
statutory construction . . . to ascribe significance to
the absence’’ of legislative consequences in concluding
that procedural requirements are directory and not
mandatory. Leo Fedus & Sons Construction Co. v. Zon-
ing Board of Appeals, 225 Conn. 432, 441, 623 A.2d 1007(1993). ‘‘In Koepke v. Zoning Board of Appeals, 223
Conn. 171, 177, 610 A.2d 1301 (1992), we determined
that because the Coventry [Z]oning [B]oard of [A]ppeals
had failed to publish adequate notice of a hearing, the
hearing and subsequent revocation of the plaintiff’s per-
mit were invalid. We then addressed the consequences
that flow from a zoning board’s invalid hearing and
subsequent ruling on an appeal from a decision of a
zoning enforcement officer. Id. On that issue we stated:
While the board’s failure to give proper notice of its
public hearing nullified its subsequent actions, that
default had no further automatic consequences. Even
if a failure to give proper notice were deemed the equiv-
alent of a failure to take timely action within the time
constraints of [General Statutes] § 8-7, that statute,
contrary to General Statutes §§ 8-3 (g) or 8-26, does
not make inaction tantamount to approval either of
the challenged zoning permit or of the challenged
appeal. . . . Id., 178–79.’’ (Citation omitted; emphasis
in original; internal quotation marks omitted.) Leo
Fedus & Sons Construction Co. v. Zoning Board of
Appeals, supra, 442–43.
In so concluding, we relied on Donohue v. Zoning
Board of Appeals, 155 Conn. 550, 235 A.2d 643 (1967),
in which we held that a statute providing that ‘‘[the
zoning] board shall decide such appeal within sixty days
after the hearing’’ was directory, and not mandatory,
and, therefore, the board’s decision, rendered after
more than sixty days, was not void. (Internal quotation
marks omitted.) Id., 554. ‘‘In determining whether a
statute is mandatory or merely directory, the most satis-
factory and conclusive test is whether the prescribed
mode of action is of the essence of the thing to be
accomplished or, in other words, whether it relates to
matter of substance or matter of convenience.’’ Id. We
concluded that the provision was directory, and, there-
fore, the board’s decision was not void because (1) the
provision related to procedure, (2) the language was
affirmative in character and intended to encourage
timely decisions by the board, (3) the statute contained
nothing that ‘‘expressly invalidate[d] a belated decision
or [that] inferentially [made] compliance therewith a
condition precedent,’’ (4) the provision was ‘‘not of the
essence of the thing to be accomplished,’’ and (5) there
was no time limitation, ‘‘the nonobservance of which
render[ed] the board’s decision voidable.’’ Id., 554–55.
Likewise, in the present case, the better reading of
§ C6-30-7 of the charter, more consistent with our case
law, is that it is directory and procedural, not manda-
tory, substantive, or containing a ‘‘condition precedent’’
to the Board of Representatives’ lawful exercise of legis-
lative power. Section C6-30-7 provides in relevant part
that, ‘‘[i]f twenty (20) percent or more of the owners
of the privately-owned land in the area included in any
proposed amendment to the Master Plan, or the owners
of twenty (20) percent or more of the privately-owned
land located within five hundred (500) feet of the bor-
ders of such area, file a signed petition with the Planning
Board within ten days after the official publication of
the decision thereon, objecting to the proposed amend-
ment, then said decision shall have no force or effect
but the matter shall be referred by the Planning Board
to the Board of Representatives within twenty days
after such official publication, together with written
findings, recommendations and reasons. The Board of
Representatives shall approve or reject such proposed
amendment . . . . When acting upon such matters the
Board of Representatives shall be guided by the same
standards as are prescribed for the Planning Board in
Section C6-30-3 of this Charter. The failure of the Board
of Representatives either to approve or reject said
amendment within the above time limit shall be
deemed as approval of the Planning Board’s decision.’’
(Emphasis added.) This provision ‘‘is stated in affirma-
tive terms unaccompanied by negative words.’’ (Inter-
nal quotation marks omitted.) Lostritto v. Community
Action Agency of New Haven, Inc., supra, 269 Conn.
19. With its time period (ten days) and signature provi-
sion (20 percent or more), § C6-30-7 provides for conve-
nience and dispatch. The provision relates to procedure;
it begins the process by which an amendment can be
referred to the Board of Representatives by preventing
the decision from going into ‘‘force or effect’’ and direct-
ing the Planning Board to refer the matter with ‘‘written
findings, recommendations and reasons.’’ Stamford Char-
ter § C6-30-7. The language is affirmative and intended
to encourage and facilitate timely review by the Board
of Representatives of ‘‘matters’’ about which affected
residents feel strongly because it signals to the Board of
Representatives that there is a matter affecting enough
residents to warrant review. The charter then gives the
Board of Representatives the power to vote down or to
approve the amendment when referred. The signature
provision, therefore, is not one of substance but one
of convenience to ensure the orderly review of amend-
ments by the Board of Representatives.
The best evidence that this provision is directory is
that the charter prescribes no consequence for the Plan-
ning Board’s referral of a petition that contains an insuf-
ficient number of signatures and does not expressly,
or even impliedly, invalidate a decision by the Board
of Representatives for the same insufficiency. See Stam-
ford Charter § C6-30-7. ‘‘ ‘A reliable guide in determining
whether a statutory provision is . . . mandatory is
whether the provision is accompanied by language that
expressly invalidates any action taken after noncompli-
ance with the provision.’ . . . By contrast, where a
statute by its terms imposes some other specific pen-
alty, it is reasonable to assume that the legislature con-
templated that there would be instances of noncompli-
ance and did not intend to invalidate such actions. . . .
[The] ‘lack of a penalty provision or invalidation of an
action as a consequence for failure to comply with the
statutory directive is a significant indication that the
statute is directory.’ ’’ (Citations omitted.) Electrical
Contractors, Inc. v. Ins. Co. of the State of Pennsylva-
nia, 314 Conn. 749, 759–60, 104 A.3d 713 (2014). If the
drafters had intended to bar the Board of Representa-
tives from reviewing an amendment on account of an
insufficient number of signatures on the petition, it
could have included a consequence in the provision, as
it did in § C6-30-7. See Leo Fedus & Sons Construction
Co. v. Zoning Board of Appeals, supra, 225 Conn. 442(because other statutory provisions expressly provide
for automatic approval, ‘‘it can be inferred that had the
legislature intended that the failure of a zoning board of
appeals to hold a hearing within sixty-five days results
in automatic approval, the legislature would have so
provided’’). Indeed, the very same provision contains
a mandated outcome for the Board of Representatives’
failure either to approve or reject an amendment within
a certain time, namely, it ‘‘shall be deemed as approval
of the Planning Board’s decision.’’ Stamford Charter
§ C6-30-7. Had the drafters used similar, outcome deter-
minative language in § C6-30-7, the majority’s assertion
that sufficient signatures are a ‘‘condition precedent’’
to the Board of Representatives’ exercise of authority,
and that any exercise of authority is ‘‘void’’ without
those signatures, might hold some weight.2
The majority makes my point for me with its discus-
sion of cases in which we have determined that a time
limitation is mandatory, as contrasted with its catalog
of cases in which we have held such provisions to be
directory. In the cases cited in which we have held
that a time limitation is mandatory, there has been an
accompanying approval clause, attaching a conse-
quence to a legislative body’s failure to act on a decision
within a certain time period. See, e.g., Vartuli v. Sotire,
192 Conn. 353, 362, 472 A.2d 336 (1984) (legislature
‘‘expressly made approval of a coastal development
plan mandatory upon failure to disapprove an applica-
tion within the specified time period,’’ in part, because
of automatic approval clause in accompanying statute),
overruled by Leo Fedus & Sons Construction Co. v.
Zoning Board of Appeals, 225 Conn. 432, 623 A.2d 1007(1993); Viking Construction Co. v. Planning Commis-
sion, 181 Conn. 243, 246, 435 A.2d 29 (1980) (require-
ment to act on subdivision application within time limits
was mandatory because ‘‘[f]ailure [of] the commission
to act within this time frame results in the approval
of the subdivision application by operation of law’’).
Section C6-30-7 is an example of such a provision: the
Board of Representatives’ failure either to approve or
reject the amendment after two regularly scheduled
meetings shall be deemed an approval of the Planning
Board’s decision. In contrast, as I indicated previously,
and as in the line of cases the majority cites in which
a time limitation is directory, the charter imposes no
consequence on the Board of Representatives for taking
action on a proposed amendment that arrived pursuant
to a petition containing an insufficient number of signa-
tures because the Board of Representatives has no
authority or responsibility to scrutinize the petition but
has authority to rule on the proposed amendment. See
United Illuminating Co. v. New Haven, 240 Conn. 422,
466, 692 A.2d 742 (1997) (requirement to provide notice
of assessment within thirty days of hearing was held
to be directory, in part because ‘‘there is no language
expressly invalidating a defective notice’’); Katz v. Com-
missioner of Revenue Services, 234 Conn. 614, 617,
662 A.2d 762 (1995) (‘‘[a] reliable guide in determining
whether a statutory provision is directory or mandatory
is whether the provision is accompanied by language
that expressly invalidates any action taken after non-
compliance with the provision’’); State v. Tedesco, 175
Conn. 279, 285, 397 A.2d 1352 (1978) (Compliance with
a time limitation in an agency’s regulations was held
to be directory because it is ‘‘always within the discre-
tion of a court or an administrative agency to relax
or modify its procedural rules adopted for the orderly
transaction of business before it when in a given case
the ends of justice require it. The action of either in
such a case is not reviewable except upon a showing
of substantial prejudice to the complaining party.’’
(Internal quotation marks omitted.)); Broadriver, Inc.
v. Stamford, 158 Conn. 522, 530, 265 A.2d 75 (1969)
(ninety day requirement to file return of notice was
held to be directory because, in part, ‘‘[t]he statute
contains nothing to invalidate a belated title transfer
or which inferentially makes compliance with the time
requirement a condition precedent’’), cert. denied, 398
U.S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970); see
also Meadowbrook Center, Inc. v. Buchman, 328 Conn.
586, 597, 181 A.3d 550 (2018) (‘‘[T]he language of Prac-
tice Book § 11-21 does not specifically invalidate or
otherwise penalize motions filed beyond the thirty day
deadline. ‘This lack of a penalty provision or invalida-
tion of an action as a consequence for failure to comply
with the statutory directive is a significant indication
that the statute is directory.’ ’’); Electrical Contractors,
Inc. v. Ins. Co. of the State of Pennsylvania, supra, 314
Conn. 761–62 (observing that our appellate courts have
concluded that ‘‘statutory deadlines are directory where
there is no express legislative guidance to the contrary
and no indication that the legislature intended the dead-
line to be jurisdictional’’ by distinguishing cases in
which statute provided consequence for failure to act
within certain time and cases in which statute did not).
Nonetheless, the majority insists that ‘‘a valid protest
petition is a condition precedent to the authority of the
[B]oard of [R]epresentatives to vote on the merits of
an amendment,’’ and only by voiding the Board of Rep-
resentatives’ action on the amendment is the charter
given its ‘‘intended and obvious meaning . . . .’’
(Emphasis added.) In an exercise of circular self-defini-
tion, the majority opines that the Board of Representa-
tives ‘‘acted on a proposed amendment that was not
properly before it due to the legal defect in the protest
petition’’ and that the signature threshold is a ‘‘condition
precedent to the Board of Representatives’ authority
to vote on the merits of an amendment’’ that is the
‘‘ ‘essence’ ’’ of the provision. The majority contends
that the provision was ‘‘crafted to achieve a manifestly
substantive purpose,’’ which, it asserts without citation,
is to limit the Board of Representatives’ authority ‘‘to
situations in which a protest petition is signed by a
significant percentage of the persons most affected by
the amendment . . . .’’ (Emphasis omitted.) In particu-
lar, the majority cites no cases and provides no legal
analysis as to how a court determines that a provision
prescribing a legislative process is ‘‘substantive’’ or a
‘‘condition precedent . . . .’’3
The best the majority can muster for support is Stam-
ford Ridgeway Associates, which the majority claims
stands for the proposition that the signature provision
is a ‘‘substantive provision of the charter intended to
ensure that review by the Board of Representatives is
triggered if, and only if, there is a sufficient number of
owners of private land with interests directly affected
by the proposed amendment.’’ The case says no such
thing, and simply calling that proposition ‘‘[i]nherent’’
in the holding of Stamford Ridgeway Associates does
not strengthen the majority’s conclusion. To understand
why the majority is mistaken about this precedent
requires an understanding of the precise proposal under
consideration at the local level in that case.
In Stamford Ridgeway Associates, the Zoning Board
of the City of Stamford approved a comprehensive zon-
ing plan for the city, consisting of eight separate applica-
tions that 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.’’ Stamford Ridgeway Associates v. Board
of Representatives, supra, 214 Conn. 409. The plaintiffs,
local property owners adversely affected by some of
the zone changes proposed in the eighth application,
filed protest petitions requesting referral to the Board
of Representatives to challenge the zone changes. Id.,409–10. Pursuant to the charter, the Zoning Board
referred ‘‘its findings, recommendations and reasons in
connection with its action in approving’’ the application
to the Board of Representatives. Id., 411. The Board of
Representatives took no action on the plaintiffs’ peti-
tions, which constituted an affirmance of the Zoning
Board’s decision. Id. The plaintiffs appealed to the Supe-
rior Court, which, after a trial, sustained the appeal and
reversed the action of the Board of Representatives,
holding that, under the charter, the Board of Represen-
tatives could act only on the entire application as a
whole, and not piecemeal, because the Zoning Board
had adopted the changes as a ‘‘ ‘single package.’ ’’ Id.,
419. The trial court further held that its decision was
without prejudice to the Board of Representatives’
determination whether there was ‘‘a sufficient number
of petitioners [seeking] a hearing treating the matter as
a whole.’’ (Internal quotation marks omitted.) Id., 420.
This court rejected the trial court’s conclusion that
the Board of Representatives could not act on separate
amendments. See id., 422. Looking to the charter, we
determined that the language, ‘‘[20] percent or more
of the owners of the privately-owned land in the area
included in any proposed amendment to the [z]oning
[m]ap,’’ meant that the 20 percent threshold is measured
by the areas to be changed or rezoned, and not the
entire application. (Emphasis omitted; internal quota-
tion marks omitted.) Id., 424; see also id., 424–26. To
hold otherwise could make it impossible to obtain
enough signatures to meet the 20 percent threshold
because unaffected property owners, or those happy
with the amendment as it pertains to them, might be
reluctant to sign the petition, thereby enabling a munici-
pality ‘‘to [e]nsure passage of a highly objectionable
zoning amendment by simply combining it with another
large, unobjectionable amendment. A statute must not
be construed in a manner that would permit its purpose
to be defeated.’’ (Internal quotation marks omitted.) Id.,
426. This court then rejected a broad reading of the
phrase ‘‘any proposed amendment’’ to mean all amend-
ments contained in an application because doing so
‘‘would limit the right of property owners to petition
the [B]oard of [R]epresentatives and would be in con-
travention of the legislative intent and purpose of [a
former provision of the charter] § C-552.2 [which is
essentially the same as § C6-30-7] to provide landown-
ers a right to appeal to the board. It would require
a petitioner to obtain signatures of 20 percent of the
property owners included in all of the amendments or
zone changes encompassed in one application.’’
(Emphasis added.) Id., 428. ‘‘A narrow interpretation
of ‘any’ in the phrase ‘in any proposed amendment’ of
§ C-552.2 would not only effectuate the ultimate charter
purpose giving the right to landowners to protest pro-
posed zone changes but it is the only reasonable and
rational construction of § C-552.2.’’ Id., 430.
Thus, the discussion in Stamford Ridgeway Associ-
ates makes clear that the signature provision is not an
aggrievement, condition precedent, or limitation provi-
sion.4 Rather, it protects affected nearby landowners5
by empowering them to obtain greater review by the
Board of Representatives, not less, and nothing in our
discussion in that case suggested that the purpose of
the provision was to place a jurisdictional condition
(‘‘if, and only if,’’ to use the majority’s language) on
the Board of Representatives’ authority. See id., 426. It
cannot, therefore, be said that the signature provision is
a matter of substance or that the full legislative scheme
evinces an intent to impose a mandatory requirement.6
The more faithful reading of the holding in Stamford
Ridgeway Associates is that the purpose of the charter
provision is to facilitate referral to the Board of Repre-
sentatives.
Although I agree that the Board of Representatives
cannot ‘‘act in contravention of charter provisions
expressly limiting that authority to specified condi-
tions,’’ the only express limits that the charter provides
for the Board of Representatives is that it act on an
amendment within a certain time period and that it
be guided by typical zoning standards. The signature
provision may be an express limit on the Planning
Board, but that does not mean that the subsequent
exercise of legislative authority by the Board of Repre-
sentatives is likewise constrained.7 The majority’s
attempt to make it so falters on the same grounds as
its endeavor to imbue the signature provision as a ‘‘sub-
stantive’’ provision or ‘‘condition precedent . . . .’’
Further, although the majority relies heavily on Burke
v. Board of Representatives, supra, 148 Conn. 33, that
case supports my thesis precisely.8 In that case, the
Board of Representatives ‘‘failed to follow the charter
requirements for the adoption of either an ordinance
or a resolution.’’ Id., 41. Although we explained that,
when ‘‘the charter . . . provides that action of the leg-
islative body shall be by ordinance or resolution, it must
act in the manner prescribed’’; in that case, the charter
did ‘‘not require that the [B]oard of [R]epresentatives
shall act only by ordinance or resolution. [The charter]
empowers the board to adopt and amend its own rules
of order. . . . This the board could do in the area where
the charter does not specifically provide otherwise.
. . . The claim that the action of the [B]oard of [R]epre-
sentatives was invalid because of its failure to follow
the rules prescribed by the charter for the adoption of
ordinances or resolutions therefore [fails].’’ (Citations
omitted.) Id., 42–43. We then rejected the claim that
the zoning board’s work was thwarted if the Board of
Representatives could act without notice and a hearing,
holding that ‘‘[a]ny claimed defect in the zoning law
and procedures adopted for the city of Stamford is a
matter for legislative consideration. Courts cannot read
into statutes, by the process of interpretation, provi-
sions for notice and a full hearing which are not
expressed in them. . . . Courts must apply statutes as
they find them, whether or not they think that the stat-
utes might be improved by the inclusion of other or
additional provisions.’’ (Citations omitted.) Id., 43. Like-
wise, the majority may not read into the charter a limita-
tion on the Board of Representatives’ exercise of
authority that is not present.
Trained as lawyers and operating as we do in a judi-
cial forum, it is understandably difficult for judicial
officers to keep our hands off the legislative process
and to try not to make regular that which is irregular.
As a court, we are drawn to consider a signature provi-
sion like the one in the present case to be akin to
an ‘‘aggrievement’’ requirement. That is familiar to us.
Without explicitly saying so, that is how the majority
treats it. But measured against our cases, and particu-
larly as applied to the legislative arena, it is not.
For example, if the protest petition had been filed
one day late and the Planning Board still referred it to
the Board of Representatives, there is no doubt that,
under our previously discussed cases, we would con-
clude that the timeliness provision is not a condition
precedent or a mandatory requirement. The Planning
Board’s referral would not be void; nor would the Board
of Representatives’ action upon referral.9 Similarly,
there is no evidence that the drafters of the charter
intended the signature provision, found only words
away from the ten day provision, to be a strict jurisdic-
tional or aggrievement requirement, let alone a condi-
tion precedent, and we should resist the temptation to
impose judicial order on a process that is not orderly.
Not all legislative errors warrant judicial intervention
and management. ‘‘Absent a clear showing of fraud,
illegality, or corruption, courts will not intervene in
the legislative process.’’ Northeast Electronics Corp. v.
Royal Associates, 184 Conn. 589, 593, 440 A.2d 239(1981). The discretion of a legislative body, because of
its constituted role as formulator of public policy, is
much broader than that of an administrative board,
which serves a quasi-judicial function. Tillman v. Plan-
ning & Zoning Commission, 341 Conn. 117, 128, 266
A.3d 792 (2021). Any dissatisfaction with the Board of
Representatives’ exercise of authority in rejecting the
amendment is remedied by engaging in the political
process. See, e.g., Schieffelin & Co. v. Dept. of Liquor
Control, 194 Conn. 165, 185, 479 A.2d 1191 (1984);
Northeast Electronics Corp. v. Royal Associates, supra,
593.
The judiciary, unlike the elected representatives of
Stamford, is uniquely unequipped to delve into the local
legislative arena. In fact, we very recently stated that,
‘‘[i]n traditional zoning appeals, the scope of judicial
review depends on whether the zoning commission has
acted in its legislative or administrative capacity. . . .
Zoning must be sufficiently flexible to meet the demands
of increased population and evolutionary changes in
such fields as architecture, transportation, and redevel-
opment. . . . The responsibility for meeting these
demands rests, under our law, with the reasoned discre-
tion of each municipality acting through its duly author-
ized zoning commission.’’ (Internal quotation marks
omitted.) Tillman v. Planning & Zoning Commission,
supra, 341 Conn. 127–28. Courts afford ‘‘zoning authori-
ties 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. . . .
Courts, therefore, must not disturb the decision of a
zoning commission unless the party aggrieved by that
decision establishes that the commission acted arbi-
trarily or illegally.’’ (Citation omitted; internal quotation
marks omitted.) First Hartford Realty Corp. v. Plan &
Zoning Commission, 165 Conn. 533, 540–41, 338 A.2d
490 (1973). Inasmuch as the Board of Representatives,
under the charter, undertakes the same legislative func-
tion and applies the same standards as a zoning board
or a planning board, we should afford the same defer-
ence in this matter.
Because of the majority’s determination to supervise
the regularity of local legislative processes, I am con-
cerned that this court will necessarily inject itself into
local legislative disputes in innumerable municipalities.
In the present case, for example, what is at stake is
whether there should be an amendment to the master
plan for the city of Stamford. This is a classic political
matter for the city and its duly elected local representa-
tives to consider. Although the framers might have
determined, for reasons of convenience or dispatch, to
put the onus to protest an amendment on those who
own land nearby through the signature provision, as I
have established, this provision cannot be understood
as a jurisdictional barrier. After all, amending the master
plan impacts all aspects of city governance and city life:
traffic, tax base, schools, residential and commercial
development, changes in population density, and envi-
ronmental concerns.
Of course, the court’s reservations—and my own—
about wading into local legislative matters would be
completely misplaced if vested rights were at stake in
this dispute. But they are not. No one argues that they
are. ‘‘To be vested, a right must have become [for exam-
ple] a title, legal or equitable, to the present or future
enjoyment of property, or to the present or future . . .
enforcement of a demand, or a legal exemption from
a demand made by another. . . . A right is not vested
unless it amounts to something more than a mere expec-
tation of future benefit or interest founded upon an
anticipated continuance of the existing general laws.’’
(Citation omitted; internal quotation marks omitted.)
Hayes Family Ltd. Partnership v. Planning & Zoning
Commission, 98 Conn. App. 213, 233, 907 A.2d 1235(2006), cert. denied, 281 Conn. 903, 916 A.2d 44 (2007);
see also Aspetuck Valley Country Club, Inc. v. Weston,
292 Conn. 817, 834, 975 A.2d 1241 (2009). For example,
we have rejected a claim that a validating act was uncon-
stitutional because the plaintiffs had no vested right
to sue on the basis of procedural defects in the state
environmental protection commissioner’s preparation
of an environmental impact statement. See Manchester
Environmental Coalition v. Stockton, 184 Conn. 51,
71–72, 441 A.2d 68 (1981), overruled in part on other
grounds by Waterbury v. Washington, 260 Conn. 506,
800 A.2d 1102 (2002). We explained that the plaintiffs
did not ‘‘allege that the commissioner lacked authority,
but rather that he attempted to exercise his authority
in an unauthorized fashion. ‘The law is well established
in this state that invalidity which comes about in this
manner may be cured retrospectively by appropriate
legislation.’ ’’ Manchester Environmental Coalition v.
Stockton, supra, 71–72.
In the zoning context, ‘‘[a] landowner does not have
a vested right in the existing classification of his land.
On the contrary, the enabling acts which authorize the
enactment of zoning ordinances provide for the amend-
ment of such ordinances. A landowner’s right to estab-
lish a particular use can be summarily terminated by
an amendment which reclassifies his land and outlaws
the use in question. . . . A landowner does not obtain
a vested right in what has subsequently become a non-
conforming use by filing a plan or by applying for a
construction permit. . . . Even the issuance of a build-
ing permit does not necessarily create a vested right
unless the building is substantially under construction
before zoning regulations are amended.’’ (Citations
omitted; internal quotation marks omitted.) Marmah,
Inc. v. Greenwich, 176 Conn. 116, 120–21, 405 A.2d 63(1978). The Appellate Court has held that, although a
plaintiff may have vested rights in a property, generally,
a plaintiff does not have ‘‘vested rights in the configura-
tion of that property as it sought to reconfigure it, nor
could it have acquired such vested rights without seek-
ing approval of its proposed reconfiguration in accor-
dance with established protocol and procedures.’’ Stones
Trail, LLC v. Weston, 174 Conn. App. 715, 742, 166 A.3d
832, cert. dismissed, 327 Conn. 926, 171 A.3d 59 (2017),
and cert. denied, 327 Conn. 926, 171 A.3d 60 (2017).
Further, ‘‘[n]o one has a vested right in any given
mode of procedure . . . and so long as a substantial
and efficient remedy remains or is provided due process
of law is not denied by a legislative change.’’ (Citations
omitted.) Crane v. Hahlo, 258 U.S. 142, 147, 42 S. Ct.
214, 66 L. Ed. 514 (1922); see also Vernon v. Cassadaga
Valley Central School District, 49 F.3d 886, 890 (2d Cir.
1995). The failure of the petition to contain sufficient
signatures does not therefore vest in the plaintiffs any
rights in the successful passage of their amendment. It
cannot be said that the plaintiffs have no remedy avail-
able to them if they cannot void the Board of Represen-
tatives’ vote due to an insufficient number of signatures.
There are at least two potential avenues, one of which
the plaintiffs pursued: (1) challenging the Board of Rep-
resentatives’ vote on the merits as not applying the
appropriate legislative standard provided by the char-
ter, or (2) engaging in the legislative process, such as
reapplying for an amendment, gathering additional
political support, or asking the Board of Representa-
tives to reconsider. I am unaware of anything that pre-
vented the plaintiffs from pursuing this latter remedy
in the years since this litigation began or anything pre-
venting them from pursuing it now. I submit that that
is a far superior remedy than a court undoing the action
of the city’s representative body.
I recognize that the majority is not taking the action
it is today based on a theory of vested rights. It is
doing so based on far less justification. To the majority,
because the five person Planning Board adopted the
plaintiffs’ amendment and, based on our count and no
one else’s, the petition contained an insufficient number
of signatures, the Board of Representatives had no busi-
ness taking action on that amendment. And the majority
is here to correct that. I simply disagree that that is—
or should be—a court’s role, and I believe our prece-
dents agree.
My disagreement is further supported by the fact
that the United States Court of Appeals for the Second
Circuit has rejected a remarkably similar challenge to
a town planning board’s enactment of zoning ordi-
nances. In Orange Lake Associates, Inc. v. Kirkpatrick,
21 F.3d 1214, 1224 (2d Cir. 1994), the Second Circuit
held that a developer’s due process rights were not
violated when the town board of Newburgh, New York,
enacted zoning ordinances to implement a new master
plan for Newburgh. The Second Circuit agreed that the
developer had ‘‘no vested right to approval of its plans
for the project’’ and that there was nothing to indicate
that the developer’s claimed procedural defects
affected the decisions of the town board or Newburgh’s
planning board. Id. Likewise, here, the plaintiffs have
no vested right in the approval of their proposed amend-
ment, as nothing currently before this court suggests
that the insufficient signatures affected the Board of
Representatives’ decisions on the merits of the amend-
ment, given that the trial court bifurcated the trial to
address the jurisdictional issue first. If the law were
otherwise, the judiciary would be invited regularly to
intervene in routine legislative proceedings, in contra-
vention of our settled role. Vested rights provide a clear
delineation so that courts do not get involved in the
kind of policymaking that is better left to more represen-
tative bodies elected to conduct the work of local law-
making.
Because I would conclude that any erroneous referral
of the petition by the Planning Board does not vitiate
the action of the Board of Representatives, I would
reverse the trial court’s judgment and remand the case
to that court for additional proceedings on whether the
Board of Representatives acted arbitrarily, illegally, or
in a manner that was inconsistent with the guiding
zoning standards when voting on the merits of the pro-
posed amendment. I therefore respectfully dissent.
1
Section C6-30-3 of the charter guides the Planning Board when it acts
on the master plan. Section C6-30-3 provides: ‘‘The Master Plan shall be the
general land use Plan for the physical development of the City. The Plan
shall show the division of Stamford into land use categories such as, but
not restricted to, the following:
‘‘1. Residential—single family plots one acre or more.
‘‘2. Residential—single family plots less than one acre.
‘‘3. Residential—multi-family—low density.
‘‘4. Residential—multi-family—medium density.
‘‘5. Commercial—local or neighborhood business.
‘‘6. Commercial—general business.
‘‘7. Industrial.
‘‘The land use categories indicated on the Master Plan shall be defined
by the Planning Board and made a part of such Plan. The Plan shall also
show the Board’s recommendation for the following: streets, sewers, bridges,
parkways, and other public ways; airports, parks, playgrounds and other
public grounds; the general location, relocation and improvement of schools
and other public buildings; the general location and extent of public utilities
and terminals, whether publicly or privately-owned, for water, light, power,
transit, and other purposes; the extent and location of public housing and
neighborhood development projects. Such other recommendations may be
made by the said Board and included in the Plan as will, in its judgment,
be beneficial to the City. Such Plan shall be based on studies of physical,
social, economic, and governmental conditions and trends and shall be
designed to promote with the greatest efficiency and economy, the coordi-
nated development of the City and the general welfare, health and safety
of its people.’’
Section C6-30-7 of the charter provides in relevant part that, when acting
on a proposal to approve or reject an amendment to the master plan, ‘‘the
Board of Representatives shall be guided by the same standards as are
prescribed for the Planning Board in Section C6-30-3 of this Charter. . . .’’
2
For example, the charter contains much clearer language in another
provision denying the Board of Representatives authority over highways
without Planning Board approval. See Stamford Charter § 214-40 (‘‘[T]he
Board of Representatives is empowered, whenever in its opinion public
health, safety, welfare, convenience or necessity require[s], to lay out, alter,
extend, enlarge, exchange or discontinue any highway or the grade of any
highway,’’ but ‘‘[s]aid powers granted to the Board of Representatives shall
not be exercised without the approval of the Planning Board, the Board of
Finance and the Mayor’’).
3
Usually, a court assesses whether a legislative act is ‘‘substantive,’’ as
opposed to ‘‘procedural,’’ when determining whether the act applies prospec-
tively or retroactively. See, e.g., D’Eramo v. Smith, 273 Conn. 610, 620–21, 872
A.2d 408 (2005) (‘‘Whether to apply a statute retroactively or prospectively
depends upon the intent of the legislature in enacting the statute. . . . While
there is no precise definition of either [substantive or procedural law], it is
generally agreed that a substantive law creates, defines and regulates rights
while a procedural law prescribes the methods of enforcing such rights or
obtaining redress.’’ (Citations omitted; footnote omitted; internal quotation
marks omitted.)). Whether a provision constitutes a ‘‘ ‘condition precedent’ ’’
implicates the same ‘‘mandatory’’ or ‘‘directory’’ analysis this dissenting
opinion undertakes in the text. Leo Fedus & Sons Construction Co. v. Zoning
Board of Appeals, supra, 225 Conn. 440, quoting Donohue v. Zoning Board
of Appeals, supra, 155 Conn. 554; see also Leo Fedus & Sons Construction
Co. v. Zoning Board of Appeals, supra, 440 (‘‘in support of our conclusion
. . . the ‘statute contains nothing which expressly invalidates a belated
decision or which inferentially makes compliance therewith a condition
precedent’ ’’).
4
Although Stamford Ridgeway Associates refers to a landowner’s ‘‘right
to appeal’’ to the Board of Representatives, the charter provision at issue
before us, § C6-30-7, does not use this language, and the language it does
use is not similar to that used when an aggrieved party has a ‘‘right to
appeal’’ to a higher tribunal. The charter instead provides that a protest
petition leads to a ‘‘referr[al] by the Planning Board to the Board of Represen-
tatives,’’ with the Planning Board’s decision having no force and effect.
Stamford Charter § C6-30-7. Where the charter’s drafters sought to provide
a ‘‘right to appeal’’ in the sense we in the judiciary understand it, they did
so. See Stamford Charter § C6-30-20.
5
The flaw in the majority’s syllogism is demonstrated by the illogical
suggestion that those landowners within the area described by the charter
are ‘‘most affected,’’ or are the only ones ‘‘directly affected,’’ by the passage
or defeat of an amendment to the master plan or the zoning regulation.
Many such proposals are just as likely to affect directly the interests of
innumerable Stamford residents on issues of economics, environment, and
population density, to name a few. But Stamford Ridgeway Associates
concludes that the ability to petition the Board of Representatives is not
thwarted by the inclusion of additional area, not affected by a proposed
amendment, in an application. See Stamford Ridgeway Associates v. Board
of Representatives, supra, 214 Conn. 426. So, although the charter ‘‘very
clearly does not provide all Stamford residents with a right to protest’’;
(emphasis added); as the majority states, the charter is similarly very clear
that, once an amendment has been referred, erroneously or not, the Board
of Representatives’ authority to approve or reject an amendment is not
limited to consideration of only the interests of the residents who protested.
6
The majority’s reliance on Stamford Ridgeway Associates continues
with its suggestion that we have previously held that ‘‘sufficient signatures
are needed for [the] Board of Representatives to reconsider’’ an amendment.
It was not this court that said that, however. Rather, that came from an
opinion by Attorney Robert A. Fuller, whom the president of the Board
of Representatives hired to review the matter. See Stamford Ridgeway
Associates v. Board of Representatives, supra, 214 Conn. 412–13. And,
although the majority may contend that this court relied on Fuller’s opinion
to hold that the Board of Representatives could vote on separate zone
changes contained in one application, nowhere in Stamford Ridgeway Asso-
ciates did this court conclude that the Board of Representatives’ authority
to vote on amendments is circumscribed by insufficient signatures. Indeed,
the words, ‘‘if there are sufficient signatures,’’ do not follow the Stamford
Ridgeway Associates quotation, as the majority suggests in footnote 11 of
its opinion. If such a phrase did appear, that would provide the majority
some traction for its assertion that a valid petition is a ‘‘condition precedent’’
to the exercise of the Board of Representatives’ authority. Instead, the words
‘‘sufficient’’ or ‘‘enough’’ appear only in quotations of Fuller’s written advice
or the trial court’s memorandum of decision in Stamford Ridgeway Associ-
ates, not in this court’s analysis or conclusion. See Stamford Ridgeway
Associates v. Board of Representatives, supra, 414, 417 n.5, 420, 426, 429.
7
The majority’s citation to Woldan v. Stamford, 22 Conn. Supp. 164, 167,
164 A.2d 306 (1960), to support the proposition that a ‘‘matter was not
properly before the [B]oard of [R]epresentatives’’ because the petition in
that case did not contain enough signatures as required by the charter is
unpersuasive, as this court has never so held. As I demonstrated, the pur-
ported invalidity of the petition has no bearing on the subsequent exercise
of legislative authority by the Board of Representatives.
8
Also, the majority cites Burke to indicate that a referral occurs only
‘‘ ‘[i]n th[e] event’ ’’ that a petition meets the signature provision. First, Burke
only restates the charter provisions at issue, and does so incorrectly and
without further analysis, as the relevant charter provision does not contain
the phrase, ‘‘in the event.’’ See generally Stamford Charter § C6-30-7. Second,
Burke pertained to whether the Board of Representatives had failed to give
notice and to provide a hearing, and could relegate review of the amendment
at issue to a committee; the suggestion that Burke stands for the proposition
that a referral occurs only ‘‘ ‘[i]n th[e] event’ ’’ that the petition contains
sufficient signatures is dictum at best. See Burke v. Board of Representatives,
supra, 148 Conn. 35.
9
The same would be true if the Planning Board had rejected the plaintiffs’
application, the plaintiffs petitioned for referral to the Board of Representa-
tives pursuant to § C6-30-8, the Planning Board erroneously referred the
petition before validating the signatures, and the Board of Representatives
approved the plaintiffs’ proposed amendment. In my view, the Board of
Representatives’ action could not be undone by a court because of a sup-
posed erroneous referral.