DocketNumber: No. 29 88 88
Citation Numbers: 1992 Conn. Super. Ct. 211
Judges: RIEFBERG, JUDGE
Filed Date: 1/31/1992
Status: Non-Precedential
Modified Date: 4/18/2021
The subject lot is owned by the plaintiff, Thomas Goosman, and is located at 292-300 South Main Street (Route 25) in the Town of Newtown. (Return of Record ("ROR") #13, Copy of Field Card, 292-300 South Main Street, in Newtown, Connecticut assessor's office, dated April, 1979.) The plaintiff made an application to change the zone of the property from residential to commercial on November 18, 1988. (ROR #14, Letter from Robert H. Hall to Commission, dated November 18, 1988.) A duly noticed public hearing at which the plaintiff's application was heard was commenced on January 5, 1989. (ROR #2, Minutes of Regular Meeting, dated January 5, 1989; ROR #14, Legal Notice, Commission to Newtown Bee, December 19, 1988; Certificates of Publication, Newtown Bee, dated December 23, 1988 and December 30, 1988.)
At that hearing, the plaintiff submitted a map purporting to show an existing business zone abutting the northern boundary of the plaintiff's property. (ROR #2; ROR #16, Map prepared for Thomas Goosman by David L. Ryan, Land Surveyor, dated March 24, 1987.) The Commission, by a unanimous vote, granted the plaintiff's application for zone change on January 19, 1989. (ROR #3, Minutes of Regular Meeting, dated January 19, 1989.) The Commission did not state a formal reason for its action. (ROR #3 ; ROR #14, Letter from Commission to Robert H. Hall, dated January 23, 1989.) Notice of the Commission's granting of the plaintiff's application was duly published on January 27, 1989. (ROR #14, Legal Notice, Commission to Newtown Bee, dated January 23, 1989; ROR 314, Certificate of Publication, dated January 27, 1989.)
During the Commission's public hearing on February 8, 1989, on a different application at which a proposed subdivision of the property directly to the north of the subject property was discussed, it was discovered that the map submitted by the plaintiff in support of his zone change was in error. (ROR #14, Letter from Robert H. Hall to Commission, dated February 21, 1989.) The map submitted by the Estate of F. Francis D'Addario, the owner of the property involved in the proposed subdivision, showed that the business zone line did not abut the northern boundary of the plaintiff's property, but was located instead approximately two hundred feet to the north of that boundary. (ROR #14, Letter from Robert H. Hall to Commission, dated February 21, 1989.) On March 16, 1989, the Commission voted to bring its own application to change the zoning classification of the subject property from business back to residential, due to CT Page 213 the erroneous information presented at the hearing on the plaintiff's original application. (ROR #4, Minutes of Regular Meeting, dated March 16, 1991.)
A duly noticed public hearing was commenced on May 18, 1989, at which the Commission's application was considered. (ROR #4, Minutes of Regular Meeting, dated May 18, 1989; ROR #11, Legal Notice, Commission to Newtown Bee, dated May 1, 1989; ROR #6, Certificate of Publication, dated May 5, 1989; ROR #7, Certificate of Publication, dated May 12, 1989.) At the hearing, the plaintiff presented a letter alleged to be a protest to the Commission's proposed action from W. Kenneth Albrecht, General Counsel for the Estate of F. Francis D'Addario. (ROR #12, Letter from W. Kenneth Albrecht to Commission, dated May 18, 1991.) Land Surveyors David Ryan and Otto Eckert, who prepared the map that the plaintiff presented, testified that the map was indeed incorrect and explained that the error occurred because the town's current zoning map was unclear (ROR #12.) The plaintiff's attorney suggested to the Commission that a business zone would still reflect the appropriate use for the property, and the proper solution would not be to change the zoning classification of the plaintiff's property back to residential, but rather to re-zone the intervening parcel on the north to business. (ROR #12.)
On June 15, 1989, the Commission voted to approve its own application by a
Pursuant to General Statutes, Sec.
The hearing before this court took place on September 27, 1991 and October 8, 1991. At said hearing, this court heard this appeal as well as its companion case, Goosman v. Newtown Planning and Zoning Commission, No. CV90-301945 S, an appeal which arose out of a subsequent application to the Commission by the plaintiff involving the same property.
At the hearing, the court (Riefberg, J.) found that the plaintiff was aggrieved. See Bossert Corporation v. Norwalk,
"[A] local zoning authority, in enacting or amending its regulations, acts in a legislative rather than an administrative capacity." (Emphasis in original.) Parks v. Planning Zoning Commission,
The plaintiff's first claim is that the vote taken to change the zone of the subject property was insufficient because the letter from W. Kenneth Albrecht presented at the June 15, 1989 public hearing was a protest to the proposed zone change under General Statutes, Sec.
In the letter, Attorney Albrecht states that he is writing on behalf of the estate "in support of the zone change from R-1 to B-2 which was recently given to Thomas Goosman," and that the estate "would prefer to see that property zoned general business B-2." (ROR #12.) In a recent Superior Court decision construing General Statutes, Sec.
The court having found that the letter is not a protest, it need not consider whether the general counsel to the estate, Attorney Albrecht, can be considered an owner under the statute.
The plaintiff's second claim is that the Commission acted illegally, arbitrarily, and in abuse of its discretion because the existing circumstances did not require the zone of the subject property to be changed to residential. His argument is that the error in the map does not change the fact that a business zone reflects the proper use for the property, and that the proper solution is to re-zone the intervening parcel to business.
While the Commission did not formally state the CT Page 216 reasons for its action, "there is no requirement that a zoning commission state the reasons for its denial. . . ." Calandro v. Zoning Commission,
The letter presented to the Commission by the plaintiff's counsel during the May 18, 1989 public hearing is not a protest under the terms of General Statutes, Sec.
Accordingly, this appeal is dismissed.
MORTON I. RIEFBERG, JUDGE