Opinion
No. DBD CV 05-4004496.
January 5, 2007.
MEMORANDUM OF DECISION
I STATEMENT OF APPEAL
The plaintiff, Worldwide Properties, LLC, appeals from a decision of the defendant, the Brookfield zoning commission, in which the defendant failed to acknowledge the plaintiff's protest under General Statutes § 8-3(b) regarding a zone change and subsequently voted to change the zone of the plaintiff's property from restricted industrial/commercial district IR/C-80/40 to residence district R-40.
II BACKGROUND
The plaintiff owns property, a parcel just under three acres, located at 49 Candlewood Lake Road in Brookfield. (Plaintiff's exhibits 2 5.) Prior to June 2, 2003, the zone of this property was residence district R-40. (Return of Record [ROR], Item 2, resolution of the commission; Item 21, pp. 6-7.) Lowe's Companies, Inc. applied for a change of zone on January 3, 2003, as part of to Companies, Inc. home center on the property. (ROR, Item 27.) The Brookfield zoning commission held a public hearing on the proposed change of zone from residence district R-40 to restricted industrial/commercial district IR/C-80/40 on March 6, 2003. (ROR, Item 2, minutes of commission special meeting.)
The commission approved a site plan for the Lowe's project on September 25, 2003, with the condition that the Candlewood Lake end of the property be dedicated to open space after the life tenant died. (ROR, Item 21, pp. 7-8; Item 29, ¶ 11.)
After the Lowe's project fell through, and after the life tenant died, the property was listed for sale as industrial/commercial property by a real estate broker for the estate of the life tenant. (ROR, Item 21, p. 26.) The plaintiff entered into a purchase contract for the property on April 22, 2005, with an amendment dated June 22, 2005. (Plaintiff's exhibit 1.)
At a regular meeting of the zoning commission held on June 9, 2005, the commission discussed its intent to change the zone back to residence district R-40. (ROR, Item 4, p. 4, ¶ 5.) On June 14, 2005, the commission submitted an application to itself for a zone change from restricted industrial/commercial district IR/C-80/40 to residence district R-40. (ROR, Item 2, application for zone change.) At a special meeting held on June 14, 2005, the commission voted to schedule a hearing on the proposed zone change for July 1, 2005. (ROR, Item 6.) The only land to be affected by the proposed change of zone was the property at issue, 49 Candlewood Road. (ROR, Item 2, application for zone change.)
On June 30, 2005, the plaintiff filed an application for the development of an office and retail building on the property under the restricted industrial/commercial district IRC-80/40 zoning requirements, which were still applicable to the property at that time. (ROR, Item 2, resolution of commission; Item 14; Item 21, pp. 30 36.) The plaintiff filed a letter with the defendant dated July 1, 2005, formally protesting the zone change under § 8-3(b). (ROR, Item 24.)
The letter is date stamped June 23, 2005 and entered as item 24 in the return of record. The plaintiff notes in its brief that it recalls that items 24 and 25 were stapled together and submitted personally by the plaintiff's attorney at the July 1, 2005 hearing. The plaintiff claims that the June 23, 2005 date stamp should be ignored. (Plaintiff's brief, p. 5 n. 1.)
At a special meeting of the commission held on July 1, 2005, the plaintiff's letter protesting the zoning change under General Statutes § 8-3(b) was read into the record. (ROR, Item 21, p. 4-5.) The plaintiff also stated its protest on the hearing record. (ROR, Item 21 pp. 1, 3-5; Item 24; Item 25.) At the time the protest petition was filed, the plaintiff was the contract purchaser of the property. (Plaintiff's exhibit 1; ROR, Item 21 p. 5, 12.) The public hearing began at 10:00 a.m.; (ROR, Item 21, p. 1); and ended at 11:00 a.m. (ROR, Item 21, p. 45.) The plaintiff became record title holder of the property at 12:20 p.m. of the same day, when the deed was recorded in the Brookfield land records. (Plaintiff's exhibit 2.) On August 25, 2005, the commission voted unanimously to deny the plaintiff's property design review, based on the lack of the required information. (ROR, Item 37, p. 6.) Subsequently, the commission voted three to two to approve the change of zone for the property back to residence district R-40 from restricted industrial/commercial district IR/C-80/40. (ROR, Item 37, p. 6.) The record contains no indication that in its decision to change the zone of the plaintiff's property, the commission considered either the plaintiff's protest of the zone change or the possible implication of the requirement under § 8-3(b) for a two-thirds majority vote of its members.
General Statutes § 8-3(b) provides in relevant part: "If a protest against a proposed change is filed at or before a hearing with the zoning commission, signed by the owners of twenty per cent or more of the area of the lots included in such proposed change or of the lots within five hundred feet in all directions of the property included in the proposed change, such change shall not be adopted except by a vote of two-thirds of all the members of the commission."
III JURISDICTION
General Statutes § 8-8 governs an appeal taken from a zoning board of appeals. "A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created." (Internal quotation marks omitted.) Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989).
A Aggrievement
"[P]leading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal . . . It is [therefore] fundamental that in order to have standing to bring an administrative appeal, a person must be aggrieved." (Citation omitted; internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 537-38, 833 A.2d 883 (2003). "Aggrievement presents a question of fact for the trial court and the party alleging aggrievement bears the burden of proving it." Id., 538-39.
"Two broad yet distinct categories of aggrievement exist, classical and statutory . . . Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest. Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest . . .
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Moutinho v. Planning Zoning Commission, 278 Conn. 660, 665, 899 A.2d 26 (2006).
Section 8-8(a)(1) provides in relevant part: "In the case of a decision by a zoning commission . . . 'aggrieved person' includes any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board."
In its complaint, the plaintiff does not specifically allege that it is classically or statutorily aggrieved, but alleges the following facts relevant to aggrievement. First, it alleges that it "is the owner of property in the Town of Brookfield having an address of 49 Candlewood Lake Road . . ." (Revised complaint, ¶ 1). Next, it alleges that it "is aggrieved by the action of the Defendant in purportedly approving the change of zone [of the subject property] to R40." (Revised complaint, ¶ 16.) The plaintiff also alleges that in reliance on representation by town officials made to the plaintiff and to its real estate broker that the zone of the property would not be changed, the plaintiff "caused plans to be prepared for construction of a mixed retail/office building on the Property" and that the commission changed the zone and denied the plaintiff's "application for special permit — design review for its mixed retail/office building." (Revised complaint, ¶¶ 5, 13 14.)
At the hearing of November 1, 2006, the plaintiff provided the court with a copy of the contract of sale dated April 22, 2005, and an amendment to the contract of sale dated June 22, 2005, as evidence of its status as contract purchaser at the time of the hearing on the zone change application. Also at the hearing, the plaintiff submitted a copy of an executor's deed dated July 1, 2005, as evidence of its current status as owner of the property.
"An equitable owner of property under a conditional contract to purchase is also generally considered a 'person aggrieved' and is thus entitled to appeal from denial of relief. It has been held that a conditional vendee stands in the same position as a legal owner in seeking a variance for the same purpose. The fact that such an individual is a conditional purchaser is a matter to be considered, but it does not bar his right to a variance." 8 P. Rohan E. Kelly, Zoning Land Use Controls (4th Ed. 2006) § 51.02[2]).
Based on the evidence adduced at trial, the court finds that the plaintiff is classically aggrieved. The plaintiff has demonstrated that at all times relevant to this appeal, it has had an ownership interest in the property that is the subject of the commission's decision and that its interest has been adversely affected by the zone change.
B Timeliness and Service of Process
General Statutes § 8-8(b) provides in relevant part: "any person aggrieved by any decision of a board . . . may take an appeal to the superior court for the judicial district in which the municipality is located. The appeal shall be commenced by service of process . . . within fifteen days from the date that notice of the decision was published as required by the general statutes. The appeal shall be returned to court in the same manner and within the same period of time as prescribed for civil actions brought to that court." General Statutes § 8-8(f) provides: "(2) For any appeal taken on or after October 1, 2004, process shall be served in accordance with subdivision (5) of subsection (b) of section 52-57. Such service shall be for the purpose of providing legal notice of the appeal to the board and shall not thereby make the clerk of the municipality or the chairman or clerk of the board a necessary party to the appeal." General Statutes § 52-57(b) provides in relevant part that: "Process in civil actions shall be served . . . (5) against a board, commission, department, or agency of a town . . . upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency . . ."
Notice of the commission's decision to approve the zone change was published in the News-Times of Danbury on August 31, 2005. (ROR, Item 38.) The appeal was commenced by service of two copies of process on the town clerk of Brookfield, Joan Locke, on September 15, 2005. Accordingly, the court finds that the appeal is timely and that service was proper.
IV SCOPE OF REVIEW
In deciding whether to approve the proposed zone change, the commission acted in a legislative, as opposed to an administrative, capacity. See West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 505-06 n. 10, 636 A.2d 1342 (1994) ("In voting to deny the plaintiff's requested zone change of the subject property, the defendant exercised a legislative function . . . as distinguished from an administrative one").
Our appellate courts "have often articulated the proper, limited scope of judicial review of a decision of a local zoning commission . . . [T]he commission, acting in a legislative capacity, [has] broad authority to adopt the amendments . . . In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision reached . . . Acting in such legislative capacity, the local board is free to amend its regulations whenever time, experience, and responsible planning for contemporary or future conditions reasonably indicate the need for a change . . . 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 . . . This legislative discretion is wide and liberal, and must not be disturbed by the courts unless the party aggrieved by that decision establishes that the commission acted arbitrarily or illegally . . . Zoning must be sufficiently flexible to meet the demands of increased population and evolutionary changes in such fields as architecture, transportation, and redevelopment . . . The responsibility for meeting these demands rests, under our law, with the reasoned discretion of each municipality acting through its duly authorized zoning commission. Courts will not interfere with these local legislative decisions unless the action taken is clearly contrary to law or in abuse of discretion." (Internal quotation marks omitted.) Blakeman v. Planning Zoning Commission, 82 Conn.App. 632, 644-45, 846 A.2d 950, cert. denied, 270 Conn. 905, 853 A.2d 521 (2004), quoting Protect Hamden/North Haven from Excessive Traffic Pollution, Inc. v. Planning Zoning Commission, 220 Conn. 527, 542-44, 600 A.2d 757 (1991).
V DISCUSSION
The plaintiff appeals the commission's decision to change the zone on the ground that the commission's action was illegal, arbitrary, and an abuse of discretion, in that (1) the reasons for the zone change from R-40 to IR/C-80/40 more than two years earlier still apply to use of the property and (2) the vote of the commission was insufficient to carry the resolution to change the zone in light of the plaintiff's protest petition. In its brief in support of this appeal, the plaintiff first argues that at the time of the public hearing on the zone change application, the plaintiff was the contract purchaser of the subject property, which the law considers to be the owner under the doctrine of equitable conversion. Consequently, it maintains, the decision to approve the zone change by a vote of three to two was a nullity because that does not meet the two-thirds majority requirement of § 8-3(b). It further contends that the original 2003 zone change from residence district R-40 to restricted industrial/commercial district IR/C-80/40 could not be conditioned on the implementation of the Lowe's project of 2003, because Connecticut law does not allow for contract zoning or conditional zoning. Finally, the plaintiff maintains that there has not been a change of circumstances sufficient to justify a return of the property to a residential zone. CT Page 340
A Whether the Commission's Vote to Approve the Zone Change by a Vote of Three to Two Was Sufficient Despite the Plaintiff's Protest Petition
The plaintiff argues that its status as a contract purchaser at the time of the hearing, and as owner of the property at the time of the defendant's vote to change the zone on August 25, 2005, supports the validity of its protest petition under § 8-3(b) and renders the vote of three to two ineffective because it did not meet the requirement of a two-thirds majority vote to change the zone of the property when a protest petition has been filed. (Plaintiff's brief pp. 8-9.)The commission counters that the three to two vote was sufficient because as a contract purchaser, the plaintiff was not an "owner" as required by § 8-3(b), and therefore could not enter a valid protest petition. The defendant argues that with no valid protest petition, the two-thirds voting requirement of § 8-3(b) does not apply, and the simple majority vote of the commission in changing the zone was appropriate and effective. The commission further argues that the protest petition of the plaintiff was invalid without the signatures of the all sellers of the property. In this case, the commission asserts that in addition to the plaintiff, the seller and record title holder of the property, the estate of Barbara Willis, had to sign the protest petition in order for the petition to be effective and to require a two-thirds vote to change the zoning. (Defendant's brief, p. 6.)
"Compliance with the statutory procedure [is] a prerequisite to any valid and effective change in zonal boundaries." (Internal quotation marks omitted.) Timber Trails Corporation v. Planning Zoning Commission, 222 Conn. 374, 378, 610 A.2d 617 (1992). "[W]hen [an] agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference . . . [I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law." (Internal quotation marks omitted.) Cunningham v. Planning Zoning Commission, 90 Conn.App. 273, 279, 876 A.2d 1257, cert. denied, 276 Conn. 915, 888 A.2d 83 (2005).
General Statutes § 8-3(b), which governs the establishment and changing of zoning regulations, provides in relevant part: "Such regulations and boundaries shall be established, changed or repealed only by a majority vote of all the members of the zoning commission, except as otherwise provided in this chapter . . . If a protest against a proposed change is filed at or before a hearing with the zoning commission, signed by the owners of twenty per cent or more of the area of the lots included in such proposed change or of the lots within five hundred feet in all directions of the property included in the proposed change, such change shall not be adopted except by a vote of two-thirds of all the members of the commission." (Emphasis added.)
The record reflects that the plaintiff presented written notice of its protest of the zone change at the commission's hearing of July 1, 2005, which was read into the record at the hearing. (ROR, Item 21 pp. 4-5; Item 24.) Additional written and oral notice of the plaintiff's protest of the zone change was presented at the hearing of July 1, 2005. (ROR, Item 21 pp. 1, 4-5; Item 25.) The plaintiff states that the executor's deed conveying title of the property to the plaintiff was filed at 12:20 p.m. July 1, 2005, eighty minutes after the close of the commission's hearing on the zone change. (Plaintiff's brief pp. 5-6; plaintiff's exhibit 2.) The record further shows that the defendant changed the zone of the property from restricted industrial/commercial district IR/C-80/40 to residence district R-40 by a vote of three to two on August 25, 2005. (ROR, Item 37 p. 6.)
In issuing its decision to change the zone following the three to two vote, the commission implicitly determined that the plaintiff's protest petition was invalid because the plaintiff was merely a contract purchaser and not an "owner," such as the term is used in General Statutes § 8-3(b). Consequently, the meaning of the word "owner" as used in § 8-3(b) is determinative of the validity of both the plaintiff's protest petition and the commission's vote to change the zone. If the word "owner" also includes a contract purchaser, the vote of three to two would not be sufficient under the statute and the zone change would be invalid. If a contract purchaser is not an owner, then the majority vote would be sufficient and the zone change would be valid.
"When construing a statute, [the court's] fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, [the court seeks] to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case . . ." AvalonBay Communities, Inc. v. Zoning Commission, 280 Conn. 405, 413, 908 A.2d 1033, 908 A.2d 1089 (2006). "Where the words of a statute fail to indicate clearly whether the provision applies in certain circumstances, it must be construed by this court." (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Zoning Commission, 87 Conn.App. 537, 547, 867 A.2d 37 (2005).
"As we have noted in other settings, the meaning of the term 'owner' can rarely be ascertained in a vacuum, devoid of all statutory or legislative context. The word 'owner' has no fixed meaning but must be interpreted in its context and according to the circumstances in which it is used . . . Courts have not agreed in the application of the meaning of the word, even when due allowance is made for the differing phraseology of the statutes involved and the circumstances under consideration . . . The term 'owner' is one of general application and includes one having an interest other than the full legal and beneficial title . . . The word owner is one of flexible meaning, and it varies from an absolute proprietary interest to a mere possessory right . . . The term is broad enough to cover a tenant for years, a tenant for life and a remainderman . . .
"In order to determine the meaning of the term 'owner' . . . [the court] must consider the history and purpose of the statute as well as any legislative history that may illuminate the intent of the legislature in choosing that particular word." (Citations omitted; internal quotation marks omitted.) M.R. Wachob Co. v. MBM Partnership, 232 Conn. 645, 658, 656 A.2d 1036 (1995).
"[T]he purpose of [the procedural requirements of § 8-3(a)] is fairly and sufficiently to apprise those who may be affected by the proposed action of the nature and character of the proposed action so as to enable them to prepare intelligently for the hearing." (Internal quotation marks omitted.) Bridgeport v. Plan Zoning Commission, 277 Conn. 268, 276, 890 A.2d 540 (2006). "Section 8-3 of the General Statutes sets forth the procedure by which the regulations enacted pursuant to § 8-2 may be enforced, amended or changed." Veseskis v. Bristol Zoning Commission, 168 Conn. 358, 360, 362 A.2d 538 (1975).
Under § 8-2, "[i]t is the function of the commission, in its legislative capacity, to regulate the actual use of land." Cole v. Planning Zoning Commission, 40 Conn.App. 501, 507, 671 A.2d 844 (1996). See also Harris v. Zoning Commission, 259 Conn. 402, 415-17, 788 A.2d 1239 (2002).
The statute itself does not define the term "owner," nor does it appear that our appellate courts have done so in regard to this statute. The legislative history is silent as to the meaning intended by the term "owner" in § 8-3(b). The Brookfield zoning regulations similarly lack any definition of who constitutes an owner for the purposes of a protest petition, or for any other purpose. (ROR, Item 39.) In other contexts, the term "owner" has been interpreted to include contract purchasers of property. "[A]bsent a specific provision to the contrary [in the zoning regulations], one who has contracted to purchase property has standing to apply for a special exception or a variance governing its use." 8 P. Rohan E. Kelly, Zoning Land Use Controls (4th Ed. 2006) § 51.02[2]. In the context of aggrievement determinations, courts of this state have held that the interest of a contract purchaser is sufficiently analogous to that of an owner to support a finding of classical aggrievement. Fletcher v. Planning Zoning Commission, CT Page 343 158 Conn. 497, 502-03, 264 A.2d 566 (1969) (upholding trial court's conclusion "that the plaintiff was aggrieved by the [decision] in that as the record owner, as trustee, of the eighty-three-acre tract and a contract purchaser of a lot within the tract whose right to purchase was conditioned on a change of zone, he had a specific, personal and legal interest in the subject matter of the commission's decision and was specially and injuriously affected in his property or other legal rights by the decision appealed from"); AvalonBay Communities, Inc. v. Planning Zoning Commission, Superior Court, judicial district of New Britain, Docket No. CV 00 0500917 (September 6, 2001, Munro, J.) (finding aggrievement based on the status of the plaintiff as contract purchaser of the subject property); see also Duchess of Monroe, Inc. v. Planning Zoning Commission, Superior Court, judicial district of Fairfield, Docket No CV 98 0352474 (March 2, 2001, Mottolese, J.) ("[i]t has long been held that a contract purchaser has a sufficient interest to qualify as an owner for purposes of aggrievement), citing Primerica v. Planning Zoning Commission, 211 Conn. 85, 92-95, 558 A.2d 646 (1989). Although these findings were made in the context of classical aggrievement rather than statutory aggrievement pursuant to § 8-8, these decisions have consistently found that a person with a contractual interest in property has the same interest as that of an owner.
Pursuant to General Statutes § 1-1(a), "[i]n the absence of a statutory definition, words and phrases in a particular statute are to be construed their common usage . . . To ascertain that usage, we look to the dictionary definition of the term." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 837, 905 A.2d 70 (2006). Black's Law Dictionary (8th Ed. 2004) defines owner as: "One who has the right to possess, use, and convey something; a person in whom one or more interests are vested." Equitable or beneficial owner is defined as: "[o]ne recognized in equity as the owner of something because use and title belong to that person, even though legal title may belong to someone else; esp., one for whom property is held in trust." Id. Ownership is defined as: "The bundle of rights allowing one to use, manage, and even enjoy property, including the right to convey it to others. Ownership implies the right to possess a thing, regardless of any actual or constructive control." Id.
General Statutes § 1-1(a) provides: "In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly."
Additionally, "[u]nder the doctrine of equitable conversion . . . the purchaser of land under an executory contract is regarded as the owner, subject to the vendor's lien for the unpaid purchase price, and the vendor holds the legal title in trust for the purchaser . . . The vendor's interest thereafter in equity is in the unpaid purchase price, and is treated as personalty . . . while the purchaser's interest is in the land and is treated as realty." (Citations omitted; internal quotation marks omitted.) Francis T. Zappone Co. v. Mark, 197 Conn. 264, 267, 497 A.2d 32 (1985).
At the time of the zoning change hearing of July 1, 2005, the record reflects that the plaintiff was the contract purchaser. (Plaintiff's exhibit 1.) The plaintiff's attorney entered the plaintiff's protest petition at the July 1, 2005 hearing on the zoning change, initially stating, "I'm representing the landowner, and I'd like to order a protest." (ROR, Item 21, p. 1.) In his subsequent statement, the plaintiff's attorney informed the defendant: "I'm representing the owner of this property, who is actually purchasing it as we speak." (ROR, Item 21, p. 3.) Thus the record reflects that the commission had ample notice at the time of the July 1, 2005 hearing that the plaintiff was not only the contract purchaser of the property but also would be "the owner of the property, within a matter of minutes." (ROR, Item 21, p. 27.)
Despite this notice, the record contains no indication that prior to the vote to change the zone of the subject property, the commission considered the issue of the meaning of the term "owner" in § 8-3(b) or the implications of the protest petition filed by the plaintiff. The minutes noted that "the intent of the change was to keep the area residential, and that the change, per the Planning Commission, is in keeping with the Plan of Development." (ROR, Item 37 p. 6 ¶ 4.b.) Concern was expressed "regarding the Commission's ability to sustain an appeal," but there was no indication as to the basis for that concern. (ROR, Item 37 p. 6, ¶ 4.b.)
Where a two-thirds vote of a five-member commission is mandated, it is clear that three votes in favor is insufficient to fulfill the requirement. "[T]wo-thirds of all the members of the zoning commission means just what it says and the statute cannot be construed to mean two-thirds of the members who are present and voting. This decision is in accord with the overwhelming weight of authority from other jurisdictions." (Internal quotation marks omitted.) Hahn v. Zoning Commission, 162 Conn. 210, 213, 293 A.2d 9 (1972) (three affirmative votes [of a five-member zoning commission] were insufficient to constitute valid approval of the plaintiffs' application where a two-thirds vote was required). See Carr v. Bridgewater, 224 Conn. 44, 47-48, 616 A.2d 257 (1992) (three of five members of zoning commission voting together did not constitute a required two-thirds vote).
As the contract purchaser at the time of the hearing on the zone change, the plaintiff was an "owner" as that term is used in § 8-3(b) and, therefore, was entitled to file a protest petition against the zone change. In light of the plaintiff's valid protest petition, a two-thirds majority vote was necessary to pass the zone change pursuant to § 8-3(b). Therefore, the vote of the commission to change the zone of the property did not meet the two-thirds vote requirement under § 8-3(b) and is invalid, and the plaintiff's appeal is sustained. Consequently, the remaining grounds for the plaintiff's appeal need not be addressed.
VI CONCLUSION CT Page 345
For the foregoing reasons, the appeal of the plaintiff is sustained.