Cristofaro v. Planning & Zoning Commission , 11 Conn. App. 260 ( 1987 )

Hull, J.

The defendant Burlington planning and zoning commission (commission) denied the plaintiffs application for a three lot subdivision of his property on the ground that the proposed lots failed to meet the requirement of its subdivision regulations that all lots proposed for subdivision measure at least one acre.¹ The plaintiff appealed to the Superior Court, where the commission’s action was upheld and the appeal dismissed. Certification to appeal to this court was subsequently granted. The plaintiffs sole claim of error is that a planning and zoning commission, acting in its capacity as a planning commission, has no authority to enact and apply a subdivision regulation which requires a larger minimum lot size than that set by the applicable zoning regulations.

The following facts are not in dispute.² The plaintiff, Thomas V. Cristofaro, is the owner of property on West Chippen Road in Burlington, Connecticut. At the time of the plaintiffs application to the commission for subdivision approval, the property was zoned “residential A.”³ On August 10, 1983, the commission conducted a public hearing on the plaintiffs application. At the conclusion of the public hearing, the commission disapproved the application. It referred to § 4-08B of the subdivision regulations in support of its decision. That section provides that “Regardless of the minimum area requirement of any Zoning District, in any application for Subdivision where both public water supply and public sewage systems are not available, the minimum Net Lot Area requirement, after all Natural Resource Characteristic reductions have been applied, shall not be less than one full acre.” Despite the fact that each of the proposed subdivision lots met the 30,000 square foot requirement of the zoning ordinance, the commission denied the plaintiffs application because it did not have public sewer and water and did not meet the lot area requirements of the subdivision regulations.

The commission claims that the plaintiff cannot now challenge the validity of the subdivision regulations because he earlier sought to avail himself of those very regulations.⁴ See Bierman v. Planning & Zoning Commission, 185 Conn. 135, 139, 440 A.2d 882 (1981). We agree.

In Bierman, our Supreme Court stated that “[t]he rule extant under our zoning cases is that a party who sought to avail himself of a zoning ordinance by making an application thereunder is precluded in the same proceeding from raising the question of its constitutionality.” (Citations omitted.) Id., 139. The validity or constitutionality of an ordinance or regulation should be challenged in a declaratory judgment action.

The rationale behind this rule was discussed in Bierman in the context of distinguishing between challenging an entire regulation or ordinance and challenging its application to a specific party. In Bierman, the validity of certain zoning regulations was challenged as being unconstitutional per se. In refusing to decide the merits of the plaintiffs claim after the plaintiff had attempted to avail himself of the very regulations in question, the court stated: “To permit the attack as here, and to invalidate the challenged regulations as here, could seriously affect the rights of other property owners in the community, as well as undercut local governmental zoning authority. Our rules of practice provide means by which the broad constitutional attack . . . may be undertaken and determined with sufficient safeguards to permit notice to and intervention by all interested persons. See General Statutes § 52-29; Practice Book § 388 through 394.” Id., 140.

Echo Four v. Hill, 3 Conn. App. 118, 485 A.2d 926 (1985), is also controlling in this situation. In that case, the trial court held that certain portions of the Darien zoning regulations were invalid. We reversed, stating that the trial court lacked jurisdiction to render judgment as such because reasonable notice to all interested parties had not been given. We stated: “The requirement of notice to interested parties [in a land-use case] is based upon practical considerations of fundamental fairness. In National Transportation Co. v. Toquet, 123 Conn. 468, 196 A. 344 (1937), the court stated: ‘ “To hold the [zoning] regulations invalid would necessarily create confusion in the town [and] injure property interests . . . .” ’Id., 477, quoting Coombs v. Larson, 112 Conn. 236, 246, 152 A. 297 (1930).” Echo Four v. Hill, supra, 123. Echo Four and Bierman are distinguishable from the present situation in two ways: first, the two cases concern zoning ordinances and not subdivision regulations; second, the cases discuss constitutionality of ordinances and not their validity, as is challenged here. We do not consider these distinctions to be relevant.

The general applicability that makes public notice mandatory in zoning matters is present in this case because the subdivision regulations are applied generally to the entire municipality. Further, we can discern no valid reason why the logic of Bierman and Echo Four should not apply to this situation merely because the validity of enacting the regulations, and not their constitutionality, is challenged. A determination by this court that the Burlington subdivision regulations concerning required lot size are invalid could have as serious an effect on other property owners and local land use bodies as would a determination that a zoning regulation was unconstitutional. Such challenges are properly the subject for independent declaratory proceedings. See also Aaron v. Conservation Commission, 178 Conn. 173, 178-80, 422 A.2d 290 (1979); Florentine v. Darien, 142 Conn. 415, 428-29, 115 A.2d 328 (1955); Strain v. Zoning Board of Appeals, 137 Conn. 36, 40, 74 A.2d 462 (1950). We therefore decline to address the plaintiffs claim.

There is no error.

In this opinion Spallone, J., concurred.

1 Although two scrivener’s omissions were also mentioned in the decision, the parties do not dispute that the decision’s gravamen was the failure to meet the lot area requirement.

2 On May 3,1985, the parties jointly filed a stipulation of facts with the trial court. The facts as stated herein are taken largely from that stipulation.

3 Section 4.4 of the Burlington zoning regulations provides in relevant part that “every lot and building in a Residential District shall comply with the following requirements for the applicable District: . . . Minimum Lot Area, sq. ft. Residential A 30,000.00.”

4 The plaintiff claims that we should not consider the commission’s argument since it was not raised in a cross appeal or in a preliminary statement of issues. Practice Book § 4013 provides that an appellee’s failure to cross appeal or identify an issue in a preliminary statement of issues will preclude review of the issue if the appellant is prejudiced by the appellee’s failure to follow the Practice Book provision. See State v. McIver, 201 Conn. 559, 568 n.3, 518 A.2d 1368 (1986); State v. Harris, 10 Conn. App. 217, 231-32 n.2, 522 A.2d 323 (1987). In the present case, we do not find that there would be prejudice to the plaintiff as he had an adequate opportunity to address the issue in his reply brief.