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Masone v. Zoning Board

Supreme Court of Connecticut
Jul 11, 1961
172 A.2d 891 (Conn. 1961)

Summary

In Masone v. Zoning Board, 148 Conn. 551, 555, 172 A.2d 891 (1961), we declared that C-556 of the charter "clearly indicates a choice of two different procedures.

Summary of this case from Weinstein v. Zoning Board

Opinion

Under the Stamford charter, a review of the action of the zoning board in amending the zoning map may be had by appeal to the court or by petition of objection. If a petition of objection is filed, the matter is referred to the board of representatives for action by it under the standards prescribed for the zoning board. An appeal to the court may then be taken from the action of the board of representatives. Each of these two methods of review is complete in itself and inconsistent with the other. A party to a successful petition before the board of representatives cannot, after a reversal by the court of the action of the board of representatives, seek a second hearing of the matter by taking a direct appeal from the action of the zoning board. After the zoning board had approved an amendment of the zoning map as it affected property of the defendant W, the board of representatives, on the petition of the plaintiffs, rejected the amendment. An appeal to the court resulted in a reinstatement of the decision of the zoning board. The plaintiffs then took the present appeal from the zoning board. Held: 1. The plaintiffs, having elected to proceed by petition, could not appeal directly to the court. 2. For this reason, as well as because the appeal was not taken within twenty days from the time the zoning board acted, as the charter required, the trial court lacked jurisdiction to entertain the appeal.

Argued June 9, 1961

Decided July 11, 1961

Appeal from the action of the defendant board in granting a change of zone, brought to the Court of Common Pleas in Fairfield County and tried to the court, Wall, J.; judgment dismissing the appeal for lack of jurisdiction, from which the plaintiffs appealed to this court. No error.

Joseph J. Tooher, Jr., for the appellants (plaintiffs).

Donald F. Zezima, with whom were Ronald M. Schwartz and, on the brief, John C. Macrides, for the appellee (defendant Bracchi).

Mildred Weil, for the appellees (defendants Calve et al.).

Theodore Godlin, assistant corporation counsel, with whom, on the brief, was Isadore M. Mackler, corporation counsel, for the appellee (named defendant).


The plaintiffs have appealed from a judgment of the Court of Common Pleas dismissing their appeal to that court from a decision of the zoning board of Stamford. Prior to the dates hereinafter mentioned, a zoning map for the city of Stamford had been adopted and was in effect. On February 26, 1959, the zoning board approved an application of the defendant Emilie Woldan for an amendment to the zoning map as it affected premises owned by her. Stamford Charter 552.1; 26 Spec. Laws 1235. Official notice of the board's decision was given on March 3, 1959. Stamford Charter 555.1; 26 Spec. Laws 1237. On March 23, 1959, the plaintiffs having filed a petition of objection with the zoning board as provided for in the charter, the matter was referred to the board of representatives, the legislative body of the city. Stamford Charter 552.2; 26 Spec. Laws 1235; see Burke v. Board of Representatives, 148 Conn. 33, 36, 166 A.2d 849. On May 4, 1959, the board of representatives rejected the amendment. On May 18, the defendant Emilie Woldan appealed from the decision of the board of representatives to the Court of Common Pleas. Stamford Charter 556; 26 Spec. Laws 1238. The court sustained the appeal on February 23, 1960. Woldan v. Stamford, 22 Conn. Sup. 164, 164 A.2d 306. This had the effect of reinstating the decision of the zoning board. On March 10, 1960, the plaintiffs filed the present appeal from the original decision of the zoning board on February 23, 1959. The trial court dismissed the appeal for lack of jurisdiction.

Appeals from zoning authorities exist only under statutory authority. Bardes v. Zoning Board, 141 Conn. 317, 318, 106 A.2d 160; Long v. Zoning Commission, 133 Conn. 248, 252, 50 A.2d 172. Whenever a lack of jurisdiction to entertain a particular proceeding comes to a court's notice, the court can dismiss the proceeding upon its own motion. Marcil v. A. H. Merriman Sons, Inc., 115 Conn. 678, 682, 163 A. 411; Palmer v. Reeves, 120 Conn. 405, 409, 182 A. 138; McGee v. Dunnigan, 138 Conn. 263, 268, 83 A.2d 491; see Tyler v. Board of Zoning Appeals, 145 Conn. 655, 662, 145 A.2d 832. The Stamford charter provides two different procedures for the review of the action of the zoning board in amending the zoning map. The owners of 20 per cent or more of the property in the area included in the change, or within 500 feet of the borders of this area, may file with the zoning board, within ten days after the official publication of the board's decision, a petition objecting to the proposed amendment; thereafter, the amendment is referred to the board of representatives for its action. Stamford Charter 552.2; 26 Spec. Laws 1235; see Burke v. Board of Representatives, supra, 35. An appeal lies to the Court of Common Pleas from the action of the board of representatives if the appeal is taken within fifteen days of that action. Stamford Charter 556; 26 Spec. Laws 1238. An appeal from the action of the zoning board may be taken within twenty days directly to the Court of Common Pleas. Stamford Charter 556; 26 Spec. Laws 1238; see Burke v. Board of Representatives, supra, 36.

The decision of the case turns upon an interpretation of 556 of the charter. This section contains two sentences. The second sentence provides for an appeal to the Court of Common Pleas from the action of the board of representatives. The first sentence provides for a direct appeal to that court from the action of the zoning board. The language, "Except in those situations where a decision of the zoning board is referred to the board of representatives for action . . ., any person aggrieved by any such decision may appeal . . . to the court of common pleas," clearly indicates a choice of two different procedures. An appeal from the action of the zoning board to the Court of Common Pleas can be taken "except" in those situations where the decision of that board is referred to the board of representatives. The board of representatives, when acting upon a petition of objection, must be "guided by the same standards as are prescribed for the zoning board" in the charter. Stamford Charter 552.3, 550; 26 Spec. Laws 1235, 1234.

"[Spec. Acts 1953, No. 619] Sec. 556. APPEALS. Except in those situations where a decision of the zoning board is referred to the board of representatives for action pursuant to section 552.2, 552.3 or 553.2 of this act, any person aggrieved by any such decision may appeal therefrom, within twenty days of the official publication of such decision, to the court of common pleas for the County of Fairfield. Any person aggrieved by a decision of the board of representatives or by a failure of that board to decide a matter referred to it within the prescribed time pursuant to section 552.2, 552.3 or 553.2 of this act may appeal therefrom within fifteen days of such decision or such expiration of prescribed time, whichever first occurs, to the court of common pleas for the county of Fairfield."

That there is an appeal to the Court of Common Pleas from the action of the board of representatives as well as from the action of the zoning board manifests an intention that each of the procedures is to be complete in itself and exclusive of the other. Legislative provisions, like the one before us, fixing a relatively short time for instituting a review of the decision of an administrative agency by the courts, are necessarily designed to secure, in the public interest, a speedy determination. Carbone v. Zoning Board of Appeals, 126 Conn. 602, 607, 13 A.2d 462. This design would be thwarted if the parties claiming to be aggrieved by the action of the zoning board could pursue the method of review provided for in 552.2 to a finality and then take up the method provided for in 556. The legislature could not have intended that a party to a successful petition to the board of representatives could, on reversal of the decision of the board of representatives by the court, seek a second hearing of the matter by then taking a direct appeal to the court. Courts must assume that the legislature intended a reasonable and rational result and must, when possible, construe statutes accordingly. Bridgeport v. Stratford, 142 Conn. 634, 644, 116 A.2d 508, and cases cited. Furthermore, the choice provided by the charter lies between remedies each of which is complete in itself and inconsistent with the other. See National Transportation Co. v. Toquet, 123 Conn. 468, 479, 196 A. 344; Manning v. State, 123 Conn. 504, 515, 196 A. 777. No claim is made, and none could be made successfully, that these plaintiffs were unaware of their right to appeal from the action of the zoning board directly to the Court of Common Pleas. See National Transportation Co. v. Toquet, supra; Masterton v. Lenox Realty Co., 127 Conn. 25, 30, 15 A.2d 11. Nor is any claim made that the relief which they sought in the procedure they adopted was necessarily unavailable to them. National Transportation Co. v. Toquet, supra; Masterton v. Lenox Realty Co., supra; Samasko v. Davis, 135 Conn. 377, 382, 64 A.2d 682.

We conclude that the Court of Common Pleas lacked jurisdiction to entertain the plaintiffs' appeal for two reasons: (1) The plaintiffs, having elected to proceed under 552.2 of the charter for a review of the decision of the zoning board by the board of representatives, cannot also appeal under 556 directly to the Court of Common Pleas from that decision; (2) the appeal of the plaintiffs, had they elected the latter course, should have been taken within the twenty days provided for by 556.


Summaries of

Masone v. Zoning Board

Supreme Court of Connecticut
Jul 11, 1961
172 A.2d 891 (Conn. 1961)

In Masone v. Zoning Board, 148 Conn. 551, 555, 172 A.2d 891 (1961), we declared that C-556 of the charter "clearly indicates a choice of two different procedures.

Summary of this case from Weinstein v. Zoning Board
Case details for

Masone v. Zoning Board

Case Details

Full title:AUGUSTO MASONE ET AL. v. ZONING BOARD OF THE CITY OF STAMFORD ET AL

Court:Supreme Court of Connecticut

Date published: Jul 11, 1961

Citations

172 A.2d 891 (Conn. 1961)
172 A.2d 891

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