Campion v. Bd. of Aldermen - 278 Conn. 500, 899 A.2d 542 (2006)

Rule:

1925 Conn. Spec. Acts 490, § 1, provides the New Haven Board of Aldermen with the broad power to divide the city of New Haven into districts of such number, shape, and area as may be best suited to carry out the provisions of the act. Additionally, the act requires that the zoning regulations shall be uniform for each class of buildings or structures throughout any district and that regulations in one or more districts may differ from those in another district. Furthermore, 1925 Conn. Spec. Acts 490, § 5, provides that the regulations imposed and the districts created under the provisions of this act may be changed or altered from time to time by ordinance, but no such change or alteration shall be made until the proposed change shall have been referred to the zoning commission for a hearing, and the commission has reported to said board of aldermen its recommendations in the matter.

Facts:

The DelMonacos owned approximately 1.727 acres in New Haven, designated as 208 Cove Street. Over the course of several years, the DelMonaco partnership purchased several abutting properties, totaling approximately 2.35 acres. In an application dated April 16, 2001, the DelMonaco partnership requested the creation of a planned development district that would consolidate all six parcels. The size of the planned development district would be 4.04 acres and would be carved out of the surrounding RS-2 zoning district. In the application, the DelMonaco partnership proposed a two phase plan for the implementation of the planned development district. During the first phase, certain structures, including the Cove Manor Convalescent Nursing Home (convalescent home), a preexisting, nonconforming use, and three residential structures would be demolished. Furthermore, enlargements and renovations to the catering facility would be completed, including the construction of a new parking facility and a garden reception area. During the second phase, a new residence would be constructed for the DelMonaco family. The decision to apply for the planned development district originated from a prior request filed by the DelMonaco partnership for a special exception for permission to expand parking at the catering facility by using the convalescent home parking lot. During that time, the New Haven zoning board of appeals found that the convalescent home had not been abandoned and denied the special exception application. The DelMonaco partnership appealed the matter to the Superior Court. By way of a stipulation dated December 15, 2000, the DelMonaco partnership and the zoning board of appeals reached an agreement. The stipulation granted the catering business permission to use the convalescent home's parking lot on a temporary basis and required the DelMonaco]partnership to apply for the creation of a planned development district. The proposed planned development district, if approved, would result in the creation of a new zoning district and an amendment to the zoning map. The New Haven plan commission (hereinafter “commission”) held public hearings on the application, and thereafter approved the application and imposed certain conditions, including a limitation of the size of the new building, the number of parking spaces, the hours of operation and project phasing. The commission forwarded its report and approval to the board of aldermen. The board of aldermen approved, but substantially amended the conditions of approval for the planned development district. By approving the DelMonaco partnership's application subject to the previously identified conditions, the board of aldermen created a new zoning district that amended the New Haven zoning ordinance, as well as the zoning map, to designate the combined parcels of property as a planned development district. The plaintiffs appealed from the board of aldermen's decision to the trial court, which dismissed the plaintiffs' appeal. The Appellate Court reversed the judgment of the trial court.

Issue:

Is there any enabling authority that exists for § 65 of the New Haven zoning ordinance, which provides for the creation of planned development districts?

Answer:

Yes.

Conclusion:

The language of § 5 of the 1925 Special Act is particularly instructive. Section 5 of the 1925 Special Act provides in relevant part: "The regulations imposed and the districts created under the provisions of this act may be changed or altered from time to time by ordinance, but no such change or alteration shall be made until the proposed change shall have been referred to the zoning commission for a hearing. Said commission shall, upon receipt from the board of aldermen of such proposed change, give notice and proceed with a hearing in the same manner as is herein provided and shall report to said board of aldermen its recommendations in the matter, within thirty days after receipt by it of the proposal for a change. Thereafter the board of aldermen may, by ordinance adopted in the usual manner, make the proposed change. . . ." Additionally, if the community affected by the proposed amendment objects in writing in a timely manner by filing a protest petition, § 5 of the 1925 Special Act provides that "such amendment or repeal shall not be adopted unless recommended by the zoning commission or unless three-fourths of the members of the board of aldermen shall vote in favor of such amendment or repeal." In the face of a protest petition from the local community, therefore, the 1925 Special Act prohibits the board of aldermen from acting on a proposed amendment until it has received the commission's recommendation, but also gives the board of aldermen the power to override, by a supermajority vote, an unfavorable commission recommendation. Furthermore, § 65.D.2 of the New Haven zoning ordinance provides that "[i]f such application [for a planned development district] and General Plans are approved by the Board of Aldermen, following a favorable recommendation by the City Plan Commission . . . such approval shall be construed to amend this ordinance . . . ." The Court does not construe § 65.D.2 as mandating that the board of aldermen approve all applications that receive a favorable recommendation from the commission, nor does it read the ordinance as preventing the board of aldermen from modifying the conditions of the commission's recommendation as part of its final decision. Indeed, that is precisely what occurred in this case. Moreover, in light of the override power contained in § 5 of the 1925 Special Act, § 65.D.2 of the New Haven zoning ordinance does not designate the commission as the agency with final decision-making power. We construe § 65.D.2, therefore, as merely acknowledging that the 1925 Special Act establishes the commission as the agency that must make a recommendation prior to the board of aldermen's final decision on an application for a new zone or zone amendment.

The plaintiff's argument that § 65 improperly delegates the power of the New Haven board of zoning appeals is equally without merit. Section 6 of the 1925 Special Act provides the board of zoning appeals with the authority to hear and decide appeals from "any order, requirement or decision made by the administrative official charged with the enforcement of any ordinance adopted pursuant to the provisions of this act . . . ." Section 6 further provides that "[s]aid board of zoning appeals may also hear and act upon any other matters for which provision is made in the ordinance." Pursuant to this language, § 61.B of the New Haven zoning ordinance describes the board of zoning appeal's role as follows: "The Board of Zoning Appeals hears and decides cases in which it is claimed either that some ruling of the zoning enforcement officer was in error, or that special circumstances require a variance from the strict terms of the ordinance, or that certain privileges are justified as special exceptions." Thus, pursuant to the 1925 Special Act and § 61.B of the New Haven zoning ordinance, § 65.D assigns certain responsibilities to the board of zoning appeals, and other responsibilities directly to the board of aldermen. Specifically, § 65.D.1 of the New Haven zoning ordinance requires that the board of zoning appeals act on each application for a planned development unit--as opposed to a planned development district-because an application for a planned development unit is considered an application for a special exception under the ordinance. Conversely, § 65.D.2 of the New Haven zoning ordinance requires that the board of aldermen review an application for a planned development district because such an application involves a proposed amendment to the zoning ordinance and the creation of a new zone, which as a legislative act is the board of aldermen's responsibility. Consequently, § 65 of the New Haven zoning ordinance is construed as delegating separate authority to the board of aldermen and the board of zoning appeals just as is contemplated by the 1925 Special Act. In short, it never was anticipated that the board of zoning appeals would hear and decide the merits of planned development district applications. The 1925 Special Act provides the board of aldermen with the authority to amend a zoning ordinance, and a planned development district does not implicate a special exception or a variance, which, pursuant to § 61.B of the New Haven zoning ordinance, are the two subject matters that are the domain of the board of zoning appeals.