text:
    Town of North Haven v. Planning and Zoning Commission of the Town of Hamden et al.
    (14234)
    Peters, C. J., Shea, Glass, Covello and Borden, Js.
    Argued September 25
    decision released December 10, 1991

      Steven R. Rolnick, for the appellants (named defendant et al.).

      Bourke G. Spellacy, with whom were Karen P. Blado and, on the brief, Alyce L. Raboy, for the appellants (defendant Homart Development Company et al.).

      Robert K. Ciulla, with whom was Charles R. Andres, for the appellee (plaintiff).
   Borden, J.

The dispositive issue of this appeal is whether proposed amendments to the Hamden zoning regulations considered by the named defendant, the Hamden planning and zoning commission (commission), “concern[ed] [a] project” within the meaning of General Statutes § 8-3h so that the commission was required to give the plaintiff, the adjoining town of North Haven, notice of the proposed amendments pursuant to that statute. The defendants appeal from the judgment of the trial court sustaining the plaintiffs zoning appeal that challenged the decision of the commission. We reverse the judgment.

The relevant facts are as follows. In July, 1988, Pellegrino, Homart and Fusco/Gottlieb filed an application with the commission to amend the Hamden zoning regulations for all fifteen Business B-2 and CDD-1 districts located in Hamden. The application sought five amendments that are pertinent here: (1) an increase in the permissible gross floor area of a shopping center from 250,000 square feet to 784,000 square feet; (2) the exclusion of enclosed interior walkways from the definition of gross floor area; (3) the aggregation of lots within a shopping center for certain area, yard and frontage requirements; (4) the fulfilling of nonresidential front landscaping requirements by substituting such landscaping in other locations; and (5) the exclusion of underground or covered parking spaces from the computation of the required landscaping area and the number of trees. The stated purpose of these proposed amendments was to “permit existing zoning regulations to be more compatible with the development of a Shopping Center.”

The application, however, did not seek approval for any particular mall or refer to any particular site, nor did it include any site plans or traffic or drainage information. The application did not seek a change of zone with respect to any specific parcel or parcels of property. The Hamden zoning regulations require a special permit for the construction of a mall or shopping center. Hamden Zoning Regs. § 512.3. The commission referred the application to its planning section, which, after a meeting, recommended approval of the five, amendments.

It is undisputed, however, that the commission was aware that the applicants sought the amendments to enable them to develop a commercial shopping mall, known as Hamden Court, on a thirty-three acre site located at the corner of Dixwell Avenue and Skiff Street (site). The town planner, who acted as the clerk of the commission, knew that these amendments were necessary before the applicants could obtain a special permit for the mall they intended to propose later. At the meeting of the planning section referred to above, Pellegrino had stated that the owners wanted to demolish the existing buildings on the site and construct Ham-den Court. In a letter dated September 29,1988, to the residents of Hamden, Homart had stated, inter alia, that it was “proposing to build Hamden Court Shopping Center at the intersection of Dixwell Avenue and Skiff Street,” and that “[i]n order to develop Hamden Court as proposed by Homart Development Co. and Fusco/Gottlieb Associates, zoning ordinance changes are essential.” Furthermore, in 1987, Homart had filed an application for certain other amendments to the zoning regulations in order to permit it to build a larger mall on the site. The commission had denied that application.

Following the receipt of the recommendation of the planning section, the commission held public hearings regarding the application on November 10, December 1, and December 8,1988. At no time either before the hearings or during the proceedings did the commission provide written notice of this application to the town clerk of North Haven. At a special meeting of the commission on January 5,1989, the commission voted three to two to adopt the five amendments to the zoning regulations.

The plaintiff appealed to the Superior Court. The court preliminarily found that the plaintiff was classically aggrieved and, therefore, had standing to raise noncompliance with § 8-3h as an issue. The court next concluded that § 8-3h applied in this case because the proposed amendments “concerned a project,” namely, the Hamden Court mall, and because a significant portion of the traffic to and from the mall would use the plaintiffs streets. Therefore, the court concluded, the plaintiff was entitled to notice pursuant to § 8-3h. Finally, the court concluded that the failure of the commission to give such notice to the plaintiff deprived the commission of subject matter jurisdiction and, therefore, rendered the commission’s action void.

The defendants claim that: (1) the proposed amendments did not concern a project within the meaning of § 8-3h and, therefore, the commission was not required to give notice to the plaintiff; (2) § 8-3h does not apply in this case because the traffic created by the Hamden Court mall will not use the plaintiff’s streets to enter and exit the site; (3) the court relied on evidence outside the record; (4) the court erroneously placed the burden of proof on the defendants; (5) the plaintiff had actual notice of the hearing and, therefore, waived its right to statutory notice; (6) § 8-3h notice is not a prerequisite for subject matter jurisdiction; and (7) the plaintiff is not aggrieved by the proposed amendments and, therefore, does not have standing to raise noncompliance with § 8-3h. We agree with the defendants’ first claim and, therefore, reverse the judgment.

The defendants’ first claim is that the trial court improperly interpreted § 8-3h when it concluded that the statute applied to the proposed amendments that were before the commission. The defendants argue that § 8-3h should be interpreted as requiring notice to be given to an adjoining municipality only when an application, petition, request or plan proposes on its face a specific project, rather than when it proposes general amendments to zoning regulations that are not confined to one specific site or project. The plaintiff argues, however, that § 8-3h does apply to general zoning amendments and that, in this case, the proposed amendments concerned a project within the meaning of § 8-3h. We agree with the defendants.

Construction of a statute is a question of law for the court. Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991). “ ‘We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 572, 522 A.2d 763 (1987) ....’” Lauer v. Zoning Commission, 220 Conn. 455, 459-60, 600 A.2d 310 (1991); Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, 202 Conn. 583, 589, 522 A.2d 771 (1987).

We first examine the language of § 8-3h. The statute requires, in pertinent part, that a zoning commission “notify the clerk of any adjoining municipality of the pendency of any application, petition, request or plan concerning any project on any site in which . . . (2) a significant portion of the traffic to the completed project on the site will use streets within the adjoining municipality to enter or exit the site . . . (Emphasis added.) Section 8-3h specifically refers to applications concerning a “project.” Since our zoning statutes do not define the word “project,” we must give the word its plain and ordinary meaning. Bolt Technology Corporation v. Commissioner of Revenue Services, 213 Conn. 220, 228, 567 A.2d 371 (1989); Carlson v. Kozlowski, 172 Conn. 263, 266, 374 A.2d 207 (1977). When a statute does not define a term, “it is appropriate to look to the common understanding expressed in the law and in dictionaries.” Bolt Technology Corporation v. Commissioner of Revenue Services, supra.

Webster’s Third New International Dictionary defines the word “project” as a “specific plan or design.” Other sections of the General Statutes similarly define “project” in relation to a particular building, structure or facility. The proposed amendments in this case are, on their face, project-neutral. They do not apply to one specific site. Instead, they apply to all fifteen Business B-2 and CDD-1 districts in Ham-den. Further, the proposed amendments, on their face, do not contain any reference to a specific plan or design. The application contained no site plan, traffic studies or blueprints for any particular site or structure, and only proposed certain general dimensional amendments for certain zoning districts. In light of the plain meaning of the statute, we conclude that the legislature intended § 8-3h notice to be given only when the application, petition, request or plan submitted to the commission relates, on its face, to a specific project, and did not intend such notice to apply to a case like this, in which the application on its face proposes zoning regulation amendments that are of general applicability.

This conclusion is bolstered by an examination of the legislative history of § 8-3h. Section 8-3h was enacted after a dispute between the town of West Hartford and the town of Bloomfield over a specific development project. Without giving notice to the adjoining town of West Hartford, Bloomfield's planning and zoning commission had approved a site-specific subdivision project, known as the Cordon Drive development, that had a significant drainage impact on the adjoining town of West Hartford. See 30 H.R. Proc., Pt. 16, 1987 Sess., p. 6026, remarks of Representative Richard Blumenthal. Thus, the legislative origin of § 8-3h was a dispute over a specific project, not a proposal for amendments to municipal regulations of general applicability.

Furthermore, every example given by the members of the General Assembly who discussed the application of § 8-3h pertained to a specific construction project and not to general amendments to zoning regulations. For example, Representative Miles S. Rapoport noted that “[t]he bill simply requires that in a development project that is close enough to a neighboring town . . . the neighboring town, will be notified . . . ."(Emphasis added.) 30 H.R. Proc., Pt. 16, 1987 Sess., p. 6031, remarks of Representative Miles S. Rapoport. Senator Kevin B. Sullivan remarked that § 8-3h would apply when there are “impacts . . . from a commercial business type of development or from a very large subdivision . . . .” (Emphasis added.) Conn. Joint Standing Committee Hearings, Planning and Development, Pt. 3, 1987 Sess., p. 689, remarks of Senator Kevin B. Sullivan. Senator Sullivan also discussed the applicability of § 8-3h to a situation in which “[tjhree office buildings were to be added to the West Farms Mall.” Id., p. 694. Representative Naomi K. Cohen discussed a number of specific projects that may trigger § 8-3h, stating that: “It is very interesting . . . and by no means is this a complete list . . . but, there is a project called Covers Commons in East Windsor and Enfield which would have been [ajffected by this language. In Southington and Cheshire, there is the Appleberry Mall. . . . [I]n Marion and Wallingford, there is the Midway Business Park ... in Orange and Derby, there is a shopping center.” Id., p. 701, remarks of Representative Naomi K. Cohen. None of these comments discussed the applicability of § 8-3h in the context of general zoning amendments. They suggest, on the contrary, that § 8-3h notice is required only when an actual development proposal is before a zoning commission.

The plaintiff contends, however, that § 8-3h should be given a broader interpretation. It argues that general amendments to zoning regulations may, in some cases, concern a project and that in this case they do because the proposed amendments were designed for the construction of the Hamden Court mall to be located on a specific site. In support of its position, the plaintiff notes that the legislature included the use of a “petition,” as well as an “application,” “request” or “plan” as a medium for triggering the notice requirement of § 8-3h. See footnote 1, supra. The plaintiff argues that the legislature uses the word “petition” when referring to proposals to amend zoning regulations, but uses the word “application” when referring to proposals for special permits, special exceptions and variances. Therefore, the plaintiff claims, by specifically including the word “petition” in § 8-3h, the legislature intended that proposed general amendments to zoning regulations would be covered by § 8-3h where those amendments are in fact aimed at or motivated by a specific project. We are not persuaded by this argument.

Statutory words should be interpreted in the context in which they appear. Nichols v. Warren, 209 Conn. 191, 197, 550 A.2d 309 (1988). The use of the word “petition,” when viewed in the context of the entire section, does not support the conclusion that § 8-3h was meant to apply to an application, petition, request or plan for general amendments to zoning regulations that is not, on its face, confined to a specific project. Section 8-3h requires notice when an “application, petition, request or plan concernjs] any project on any site . . . .” (Emphasis added.) The word “project” is used in the same subsection with the word “petition.” A project is ordinarily proposed by a site-specific or structure-specific request, such as a request for a special permit, variance or special exception, and not by general zoning amendments. When such a proposal is considered, a commission ordinarily would have access to the kind of information on which § 8-3h focuses. For example, a special permit application in Hamden must include a map of the property, signed by an engineer or architect, illustrating the existing and proposed developments on the property. The map must include the location of all existing and proposed buildings and the location of all entrances to and exits from the property. See Hamden Zoning Regs. §§ 820 through 843.8.

Furthermore, contrary to the plaintiffs position, when referring to proposals to amend zoning regulations the legislature does not use the word “petition” exclusively. It is true that General Statutes § 8-3 (c) refers to changing a zoning regulation by means of a petition. Section 8-3 (d), however, provides that if notice of that zoning change is not published by the commission, the “applicant or petitioner” may provide such notice. (Emphasis added.) Because, in the context of zoning regulations, the legislature has used the words “petition” and “application” interchangeably, we conclude that it did so in enacting § 8-3h.

Furthermore, § 8-3h requires a commission, within seven days of receipt of an application, petition, request or plan concerning a project, to make certain detailed factual determinations regarding the specific location of a project, and regarding the traffic, drainage and water runoff resulting therefrom. When a commission receives a proposal for general amendments to the zoning regulations that, on its face, is not confined to anyone project, those factual determinations would be very difficult to make, especially within the required seven day period, because such a proposal would not ordinarily include site specific information. The plaintiffs interpretation of § 8-3h would require the commission to look behind the face of the application and inquire into the motives of the applicants in submitting the proposed zoning amendments. We recognize that in this case the applicants, like most private applicants, were motivated by their own economic interests, namely, to build the Hamden Court mall if the proposed amendments were adopted. We do not believe, however, that § 8-3h requires a commission to look behind facially project-neutral proposed zoning regulation amendments in order to discern the specific facts regarding the underlying project that motivated the applicants. See Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 547, 600 A.2d 757 (1991) (motivation of applicant should not limit scope of zoning commission’s consideration of application more narrowly than appropriate under General Statutes § 8-2); Caserta v. Zoning Board of Appeals, 219 Conn. 352, 361-62, 593 A.2d 118 (1991) (motive of applicant irrelevant to jurisdiction of administrative agency).

The judgment is reversed and the case is remanded with direction to render judgment dismissing the plaintiff’s appeal.

In this opinion the other justices concurred.

       General Statutes § 8-3h provides: “notice to adjoining municipalities. The zoning commission of any municipality shall notify the clerk of any adjoining municipality of the pendency of any application, petition, request or plan concerning any project on any site in which: (1) Any portion of the property affected by a decision of such zoning commission is within five hundred feet of the boundary of the adjoining municipality; (2) a significant portion of the traffic to the completed project on the site will use streets within the adjoining municipality to enter or exit the site; (3) a significant portion of the sewer or water drainage from the project on the site will flow through and significantly impact the drainage or sewerage system within the adjoining municipality; or (4) water runoff from the improved site will impact streets or other municipal or private property within the adjoining municipality. Such notice shall be made by certified mail, return receipt requested, and shall be mailed within seven days of the date of receipt of the application, petition, request or plan. No hearing may be conducted on any application, petition, request or plan unless the adjoining municipality has received the notice required under this section. Such adjoining municipality may, through a representative, appear and be heard at any hearing on any such application, petition, request or plan.” (Emphasis added.)
      The trial court also concluded that the defendants had not complied with General Statutes § 8-26f. The language of § 8-26f is identical to § 8-3h except that § 8-26f applies to a town’s planning commission. See General Statutes § 8-26f. Therefore, our holding in this case also applies to § 8-26f.

       The defendants in this appeal are the commission, Bernard A. Pellegrino, Homart Development Company (Homart), and Fusco/Gottlieb Associates (Fusco/Gottlieb). Homart and Fusco/Gottlieb filed an application with the commission for the amendments to the zoning regulations. Also named as defendants in the trial court were the Hamden town clerk, and the chairman and clerk of the commission, who are not involved in this appeal. We refer herein to the defendants Pellegrino, Homart and Fusco/Gottlieb as the applicants.

       The Appellate Court granted certification to appeal from the judgment of the trial court and we transferred the appeal to this court pursuant to Practice Book § 4023.

       A Business B-2 district is a business district, and a CDD-1 district is a controlled development district. Hamden Zoning Regs. § 301.

       All five amendments were adopted by the commission. A sixth amendment to the regulations was rejected by the commission and is not involved in this appeal.

       This case was tried and argued on appeal simultaneously with Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 600 A.2d 757 (1991).

       We have recently held that the notice required by General Statutes § 8-3h is not a prerequisite for a zoning commission’s subject matter jurisdiction. See Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991).

       Since we conclude that the proposed amendments did not concern a project within the meaning of General Statutes § 8-3h, we need not consider the defendants’ other claims.

       See, e.g., General Statutes § 8-39 (i)(“ ‘Housing project’ means any work or undertaking ... (2) to provide decent, safe and sanitary urban or rural dwellings . . . .”) (emphasis added); General Statutes § 8-119e (b) (“ ‘Congregate housing project’ means the planning of the buildings and improvements ... the construction ... of the improvements or all other work performed in connection with a congregate housing program.”) (emphasis added); General Statutes § 10-282 (c) (“ ‘School building project’ . . . means (1) the construction . . . of a building . . . and (4) the lease of a facility . . . .”) (emphasis added); General Statutes § 10-289 (“ ‘school building project’ means (1) the construction . . . of a building to be used for public school purposes . . . .”) (emphasis added); General Statutes § 13a-175p (3) (“ ‘Eligible bridge project’ means the removal, replacement, reconstruction, rehabilitation or improvement of an eligible bridge . . . .”) (emphasis added).

       The plaintiff claims that a discerning observer would have understood that the application concerned a project because the applicants responded “Yes” to the question, on the application form, “Any previous petition for the same location?” This response, however, did not necessarily refer to the prior special permit application to build the Hamden Court mall, but referred to the applicant’s prior proposal in 1987 to amend the Business B-2 and CDD-1 zones in Hamden. Therefore, this response was correct because the “same location” was the Business B-2 and CDD-1 zones and not the site of the contemplated Hamden Court mall. Furthermore, under the heading, “Property Owners of Subject Change,” on the application, was the legend, “N/A.” Also, the stated purpose of the application was: “To permit existing zoning regulations to be more compatible with the development of a Shopping Center.” Thus, we reject the plaintiff’s argument that the application on its face referred to a specific project.

       Conn. Joint Standing Committee Hearings, Planning and Development, Pt. 3, 1987 Sess., p. 721, remarks of the mayor of West Hartford, Christopher F. Droney. Although we ordinarily review a statute’s legislative history in light of discussions conducted on the floor of the Senate or House of Representatives, we have also considered discussions before joint standing committees when discerning legislative intent. See Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 695 n.10, 595 A.2d 313 (1991); State v. Magnano, 204 Conn. 259, 273-74 n.8, 528 A.2d 760 (1987).

       We need not decide at this time whether a request for a zone change regarding a specific site or sites would be covered by General Statutes § 8-3h.

       The plaintiff claims that at the special permit stage the commission would have no discretion to deny the special permit application if it conforms to the Hamden regulations. This claim has no merit under the circumstances of this case. Sections 512.3 and 572.2 of the Hamden zoning regulations require, in Business B-2 and CDD-1 districts respectively, special permits for shopping centers and stores containing more than 20,000 square feet of floor area. Moreover, § 826 of the regulations provides that, in passing on a special permit application, the commission “shall give consideration to, but not be limited by” such factors as: the health, welfare and safety of the public and the immediate neighborhood; compliance with the town’s plan of development; the location, size, nature and intensity of the project; the safety and intensity of traffic generated by the project; the scale of the proposed structure; the harmony of the site design with the general area and adjacent properties; and compliance with the zoning regulations. Furthermore, § 827 gives the commission the power to impose “reasonable conditions and safeguards related to the factors set forth in Section 826.” Under these circumstances, the commission has wide discretion to deny a special permit application.

       General Statutes § 8-3 (c) states in pertinent part: “All petitions requesting a change in the regulations . . . shall be submitted in writing and in a form prescribed by the commission and shall be considered at a public hearing within the period of time permitted under section 8-7d.” (Emphasis added.)

       General Statutes § 8-3 (d) states in pertinent part: “Zoning regulations ... or changes therein shall become effective at such time as is fixed by the zoning commission, provided . . . notice of the decision of such commission shall have been published in a newspaper .... In any case in which such notice is not published . . . any applicant or petitioner may provide for the publication of such notice within ten days thereafter.” (Emphasis added.)

       Indeed, the form supplied to the applicant by the Hamden zoning commission for the proposed amendment in this case uses both the term “application” and the term “petition.”


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    C. R. Klewin, Inc. v. Flagship Properties, Inc., et al.
    (14322)
    Peters, C. J., Shea, Glass, Covello and Berdon, Js.
    Argued October 1
    decision released December 10, 1991

      Daniel S. Blinn, with whom, on the brief, was Louis R. Pepe, for the appellant (plaintiff).

      A. Susan Peck, with whom was Hope C. Seeley, for the appellees (defendants).
   Peters, C. J.

The sole question before us in this certified appeal is whether the provision of the statute of frauds, General Statutes § 52-550 (a) (5), requiring a writing for an “agreement that is not to be performed within one year from the making thereof,” renders unenforceable an oral contract that fails to specify explicitly the time for performance when performance of that contract within one year of its making is exceedingly unlikely. This case comes to this court upon our grant of an application for certification from the United States Court of Appeals for the Second Circuit pursuant to General Statutes § 51-199a. C. R. Klewin, Inc. v. Flagship Properties, Inc., 936 F.2d 684 (2d Cir. 1991).

The Second Circuit has provided us with the following facts. See id., 685-86. The plaintiff, C. R. Klewin, Inc. (Klewin), is a Connecticut based corporation that provides general construction contracting and construction management services. The defendants, Flagship Properties and DKM Properties (collectively Flagship), are engaged in the business of real estate development; although located outside Connecticut, they do business together in Connecticut under the trade name Conn-Tech.

Flagship became the developer of a major project (ConnTech Project) in Mansfield, near the University of Connecticut’s main campus. The master plan for the project included the construction of twenty industrial buildings, a 280 room hotel and convention center, and housing for 592 graduate students and professors. The estimated total cost of the project was $120 million.

In March, 1986, Flagship representatives held a dinner meeting with Klewin representatives. Flagship was considering whether to engage Klewin to serve as construction manager on the ConnTech Project. During the discussions, Klewin advised that its fee would be 4 percent of the cost of construction plus 4 percent for its overhead and profit. This fee structure was, however, subject to change depending on when different phases of the project were to be constructed. The meeting ended with Flagship’s representative shaking hands with Klewin’s agent and saying, “You’ve got the job. We’ve got a deal.” No other specific terms or conditions were conclusively established at trial. The parties publicized the fact that an agreement had been reached and held a press conference, which was videotaped. Additionally, they ceremoniously signed, without filling in any of the blanks, an American Institute of Architects Standard Form of Agreement between Owner and Construction Manager.

Construction began May 4,1987, on the first phase of the ConnTech Project, called Celeron Square. The parties entered into a written agreement regarding the construction of this one part of the project. Construction was fully completed by the middle of October, 1987. By that time, because Flagship had become dissatisfied with Klewin’s work, it began negotiating with other contractors for the job as construction manager on the next stage of the ConnTech Project. In March, 1988, Flagship contracted with another contractor to perform the sitework for Celeron Square II, the next phase of the project.

After having been replaced as construction manager, Klewin filed suit in the United States District Court for the District of Connecticut, claiming (1) breach of an oral contract to perform as construction manager on all phases of the project; (2) quantum meruit recovery for services performed in anticipation of future stages of the project; and (3) detrimental reliance on Flagship’s promise to pay for preconstruction services. Flagship moved for summary judgment, claiming, inter alia, that enforcement of the alleged oral contract was barred by the statute of frauds. The district court granted summary judgment, reasoning that (1) “the contract was not of an indefinite duration or open-ended” because full performance would take place when all phases of the ConnTech Project were completed, and (2) the contract “as a matter of law” could not possibly have been performed within one year. In drawing this second conclusion, the court focused on the sheer scope of the project and Klewin’s own admission that the entire project was intended to be constructed in three to ten years.

Klewin appealed to the United States Court of Appeals for the Second Circuit. The Court of Appeals held that “the issues presented involve substantial legal questions for which there is no clear precedent under the decisions of the Connecticut Supreme Court”; id., 686; and certified to this court the following questions:

“A. Whether under the Connecticut Statute of Frauds, Conn. Gen. Stat. § 52-550 (a) (5), an oral contract that fails to specify explicitly the time for performance is a contract of ‘indefinite duration,’ as that term has been used in the applicable Connecticut precedent, and therefore outside of the Statute’s proscriptions?

“B. Whether an oral contract is unenforceable when the method of performance called for by the contract contemplates performance to be completed over a period of time that exceeds one year, yet the contract itself does not explicitly negate the possibility of performance within one year?” Id., 685. We answer “yes” to the first question, and “no” to the second.

I

The Connecticut statute of frauds has its origins in a 1677 English statute entitled “An Act for the prevention of Fraud and Perjuries.” See 6 W. Holdsworth, A History of English Law (1927) pp. 379-84. The statute appears to have been enacted in response to developments in the common law arising out of the advent of the writ of assumpsit, which changed the general rule precluding enforcement of oral promises in the King’s courts. Thereafter, perjury and the subornation of perjury became a widespread and serious problem. Furthermore, because juries at that time decided cases on their own personal knowledge of the facts, rather than on the evidence introduced at trial, a requirement, in specified transactions, of “some memorandum or note ... in writing, and signed by the party to be charged” placed a limitation on the uncontrolled discretion of the jury. See 2 A. Corbin, Contracts (1950) § 275, pp. 2-3; 6 W. Holdsworth, supra, pp. 387-89; An Act for Prevention of Fraud and Perjuries, 29 Car. 2, c. 3, § 4 (1677), quoted in J. Perillo, “The Statute of Frauds in the Light of the Functions and Dysfunctions of Form,” 43 Fordham L. Rev. 39, 39 n.2 (1974). Although the British Parliament repealed most provisions of the statute, including the one-year provision, in 1954; see The Law Reform (Enforcement of Contracts) Act, 2 & 3 Eliz. 2, c. 34 (1954); the statute nonetheless remains the law virtually everywhere in the United States.

Modern scholarly commentary has found much to criticize about the continued viability of the statute of frauds. The statute has been found wanting because it serves none of its purported functions very well; see J. Perillo, supra; and because it permits or compels economically wasteful behavior; seeM. Braunstein, “Remedy, Reason, and the Statute of Frauds: A Critical Economic Analysis,” 1989 Utah L. Rev. 383. It is, however, the one-year provision that is at issue in this case that has caused the greatest puzzlement among commentators. As Professor Farnsworth observes, “of all the provisions of the statute, it is the most difficult to rationalize.

“If the one-year provision is based on the tendency of memory to fail and of evidence to go stale with the passage of time, it is ill-contrived because the one-year period does not run from the making of the contract to the proof of the making, but from the making of the contract to the completion of performance. If an oral contract that cannot be performed within a year is broken the day after its making, the provision applies though the terms of the contract are fresh in the minds of the parties. But if an oral contract that can be performed within a year is broken and suit is not brought until nearly six years (the usual statute of limitations for contract actions) after the breach, the provision does not apply, even though the terms of the contract are no longer fresh in the minds of the parties.

“If the one-year provision is an attempt to separate significant contracts of long duration, for which writings should be required, from less significant contracts of short duration, for which writings are unnecessary, it is equally ill-contrived because the one-year period does not run from the commencement of performance to the completion of performance, but from the making of the contract to the completion of performance. If an oral contract to work for one day, 13 months from now, is broken, the provision applies, even though the duration of performance is only one day. But if an oral contract to work for a year beginning today is broken, the provision does not apply, even though the duration of performance is a full year.” 2 E. Farnsworth, Contracts (2d Ed. 1990) § 6.4, pp. 110-11; see also Goldstick v. ICM Realty, 788 F.2d 456, 464 (7th Cir. 1986); D & N Boening, Inc. v. Kirsch Beverages, Inc., 63 N.Y.2d 449, 454, 472 N.E.2d 992, 483 N.Y.S.2d 164 (1984); 1 Restatement (Second), Contracts (1979) § 130, comment a; J. Calamari & J. Perillo, Contracts (3d Ed. 1987) § 19-18, p. 807.

Historians have had difficulty accounting for the original inclusion of the one-year provision. Some years after the statute’s enactment, one English judge stated that “the design of the statute was, not to trust to the memory of witnesses for a longer time than one year.” Smith v. Westall, 1 Ld. Raym. 316, 317, 91 Eng. Rep. 1106, 1107 (1697). That explanation is, however, unpersuasive, since, as Farnsworth notes, the language of the statute is ill suited to this purpose. One eminent historian suggested that because such contracts are continuing contracts, it might be very difficult to give evidence of their formation, inasmuch as the rules of evidence of that time prohibited testimony by the parties to an action or any person who had an interest in the litigation. 6 W. Holdsworth, supra, p. 392. That argument, however, proves too much, since it would apply equally to all oral contracts regardless of the duration of their performance. The most extensive recent study of the history of English contract law offers plausible explanations for all of the other provisions, but acknowledges that this one is “curious.” A. Simpson, A History of the Common Law of Contract (1975) p. 612. More recently, it has been suggested that the provision “may have been intended to prevent oral perjury in actions of assumpsit against customers who had forgotten the details of their purchases.” P. Hamburger, “The Conveyancing Purposes of the Statute of Frauds,” 27 Am. J. Leg. Hist. 354, 376 n.85 (1983).

In any case, the one-year provision no longer seems to serve any purpose very well, and today its only remaining effect is arbitrarily to forestall the adjudication of possibly meritorious claims. For this reason, the courts have for many years looked on the provision with disfavor, and have sought constructions that limited its application. See, e.g., Landes Construction Co. v. Royal Bank of Canada, 833 F.2d 1365, 1370 (9th Cir. 1987) (noting policy of California courts “of restricting the application of the statute to those situations precisely covered by its language”); Cunningham v. Healthco, Inc., 824 F.2d 1448, 1455 (5th Cir. 1987) (one-year provision does not apply if the contract “conceivably” can be performed within one year); Hodge v. Evans Financial Corporation, 823 F.2d 559, 561 (D.C. Cir. 1987) (statute of frauds “has long been construed narrowly and literally”); Goldstick v. ICM Realty, supra, 464 (“Courts tend to take the concept of ‘capable of full performance’ quite literally . . . because they find the one-year limitation irksome.”).

II

Our case law in Connecticut, like that in other jurisdictions, has taken a narrow view of the one-year provision of the statute of frauds now codified as § 52-550 (a) (5). In Russell v. Slade, 12 Conn. 455, 460 (1838), this court held that “it has been repeatedly adjudged, that unless it appear from the agreement itself, that it is not to be performed within a year, the statute does not apply. . . . The statute of frauds plainly means an agreement not to be performed within the space of a year, and expressly and specifically so agreed. A contingency is not within it; nor any case that depends upon contingency. It does not extend to cases where the thing only may be performed within the year.” (Emphases in original; citation and internal quotation marks omitted.)

A few years later, in Clark v. Pendleton, 20 Conn. 495, 508 (1850), the statute was held not to apply to a contract that was to be performed following a voyage that both parties expected to take one and one-half years. “It is not alleged in any form, that it was made with reference to, or that its performance was to depend on the termination of a voyage which would necessarily occupy that time. It is only alleged, that it was expected by the parties, that the defendant would be absent for the period of eighteen months. But this expectation, which was only an opinion or belief of the parties, and the mental result of their private thoughts, constituted no part of the agreement itself; nor was it connected with it, so as to explain or give a construction to it, although it naturally would, and probably did, form one of the motives which induced them to make the agreement. The thing thus anticipated did not enter into the contract, as one of its terms; and according to it, as stated, the defendant, whenever he should have returned, after having embarked on the voyage, whether before or after the time during which it was thus expected to continue, would be under an obligation to perform his contract with the plaintiff. As it does not therefore appear, by its terms, as stated, that it was not to be performed within a year from the time when it was made, it is not within the statute.” (Emphases added.)

In this century, in Appleby v. Noble, 101 Conn. 54, 57, 124 A. 717 (1924), this court held that “ ‘[a] contract is not within this clause of the statute unless its terms are so drawn that it cannot by any possibility be performed fully within one year.’ ” (Emphasis added.) In Burkle v. Superflow Mfg. Co., 137 Conn. 488, 492-93, 78 A.2d 698 (1951), we delineated the line that separates contracts that are within the one-year provision from those that are excluded from it. “Where the time for performance is definitely fixed at more than one year, the contract is, of course, within the statute. . . . If no time is definitely fixed but full performance may occur within one year through the happening of a contingency upon which the contract depends, it is not within the statute.” (Emphases added; citations omitted.)

More recently, in Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 197, 520 A.2d 208 (1987), we stated that “ ‘[u]nder the prevailing interpretation, the enforceability of a contract under the one-year provision does not turn on the actual course of subsequent events, nor on the expectations of the parties as to the probabilities. Contracts of uncertain duration are simply excluded; the provision covers only those contracts whose performance cannot possibly be completed within a year.’ (Emphasis added.) 1 Restatement (Second), Contracts, [§ 130, comment a] . . . .”

In light of this unbroken line of authority, the legislature’s decision repeatedly to reenact the provision in language virtually identical to that of the 1677 statute suggests legislative approval of the restrictive interpretation that this court has given to the one-year provision. “[T]he action of the General Assembly in re-enacting the statute, including the clause in question ... is presumed to have been done in the light of those decisions.” Turner v. Scanlon, 146 Conn. 149, 156, 148 A.2d 334 (1959); see also Ralston Purina Co. v. Board of Tax Review, 203 Conn. 425, 439-40, 525 A.2d 91 (1987).

Ill

Bearing this history in mind, we turn to the questions certified to us by the federal court. Our case law makes no distinction, with respect to exclusion from the statute of frauds, between contracts of uncertain or indefinite duration and contracts that contain no express terms defining the time for performance. The two certified questions therefore raise only one substantive issue. That issue can be framed as follows: in the exclusion from the statute of frauds of all contracts except those “whose performance cannot possibly be completed within a year”; (emphasis omitted) Finley v. Aetna Life & Casualty Co., supra, 197; what meaning should be attributed to the word “possibly”? One construction of “possibly” would encompass only contracts whose completion within a year would be inconsistent with the express terms of the contract. An alternate construction would include as well contracts such as the one involved in this case, in which, while no time period is expressly specified, it is (as the district court found) realistically impossible for performance to be completed within a year. We now hold that the former and not the latter is the correct interpretation. “The critical test . . . is whether‘by its terms’ the agreement is not to be performed within a year,” so that the statute will not apply where “the alleged agreement contain[s] [no] provision which directly or indirectly regulated the time for performance.” Freedman v. Chemical Construction Corporation, 43 N.Y.2d 260, 265, 372 N.E.2d 12, 401 N.Y.S.2d 176 (1977). “It is the law of this state, as it is elsewhere, that a contract is not within this clause of the statute unless its terms are so drawn that it cannot by any possibility be performed fully within one year.” (Emphasis added.) Burkle v. Superflow Mfg. Co., supra, 492.

Flagship contends, to the contrary, that the possibility to which this court referred in Burkle must be a reasonable possibility rather than a theoretical possibility. It is true that in Burkle this court rejected the argument that “since all the members of a partnership [that was a party to the contract] may possibly die within a year, the contract is not within the statute.” We noted that “[n]o case has come to our attention where the rule that the possibility of death within a year removes a contract from the statute has been extended to apply to the possibility of the death of more than one individual.” Id., 494. In Burkle, however, we merely refused to extend further yet another of the rules by which the effect of the provision has been limited. Burkle did not purport to change the well established rule of narrow construction of the underlying one-year provision.

Most other jurisdictions follow a similar rule requiring an express contractual provision specifying that performance will extend for more than one year. Only “[a] few jurisdictions, contrary to the great weight of authority . . . hold that the intention of the parties may put their oral agreement within the operation of the Statute.” 3 S. Williston, Contracts (3d Ed. W. Jaeger 1960) § 495, pp. 584-85. In “the leading case on this section of the Statute”; id., p. 578; the Supreme Court of the United States undertook an extensive survey of the case law up to that time and concluded that “[i]t. . . appears to have been the settled construction of this clause of the statute in England, before the Declaration of Independence, that an oral agreement which, according to the intention of the parties, as shown by the terms of the contract, might be fully performed within a year from the time it was made, was not within the statute, although the time of its performance was uncertain, and might probably extend, and be expected by the parties to extend, and did in fact extend, beyond the year. The several States of the Union, in reenacting this provision of the statute of frauds in its original words, must be taken to have adopted the known and settled construction which it had received by judicial decisions in England.” (Emphasis added.) Warner v. Texas & Pacific R. Co., 164 U.S. 418 422-23, 17 S. Ct. 147, 41 L. Ed. 495 (1896). The agreement at issue was one in which a lumbermill agreed to provide grading and ties and the railway agreed to construct rails and a switch and maintain the switch as long as the lumbermill needed it for shipping purposes. Although the land adjoining the lumbermill contained enough lumber to run a mill for thirty years, and the lumbermill used the switch for thirteen years, the court held that the contract was not within the statute. “The parties may well have expected that the contract would continue in force for more than one year; it may have been very improbable that it would not do so; and it did in fact continue in force for a much longer time. But they made no stipulation which in terms, or by reasonable inference, required that result. The question is not what the probable, or expected, or actual performance of the contract was; but whether the contract, according to the reasonable interpretation of its terms, required that it should not be performed within the year.” (Emphasis added.) Id., 434; see also Walker v. Johnson, 96 U.S. 424, 427, 24 L. Ed. 834 (1877); McPherson v. Cox, 96 U.S. 404, 416-17, 24 L. Ed. 746 (1877).

Because the one-year provision “is an anachronism in modern life . . . we are not disposed to expand its destructive force.” Farmer v. Arabian American Oil Co., 277 F.2d 46, 51 (2d Cir. 1960). When a contract contains no express terms about the time for performance, no sound reason of policy commends judicial pursuit of a collateral inquiry into whether, at the time of the making of the contract, it was realistically possible that performance of the contract would be completed within a year. Such a collateral inquiry would not only expand the “destructive force” of the statute by extending it to contracts not plainly within its terms, but would also inevitably waste judicial resources on the resolution of an issue that has nothing to do with the merits of the case or the attainment of a just outcome. See 2 A. Corbin, supra, § 275, p. 14 (the statute “has been in part the cause of an immense amount of litigation as to whether a promise is within the statute or can by any remote possibility be taken out of it. This latter fact is fully evidenced by the space necessary to be devoted to the subject in this volume and by the vast number of cases to be cited”).

We therefore hold that an oral contract that does not say, in express terms, that performance is to have a specific duration beyond one year is, as a matter of law, the functional equivalent of a contract of indefinite duration for the purposes of the statute of frauds. Like a contract of indefinite duration, such a contract is enforceable because it is outside the proscriptive force of the statute regardless of how long completion of performance will actually take.

The first certified question is answered “yes.” The second certified question is answered “no.”

No costs will be taxed in this court to either party.

In this opinion the other justices concurred.

       General Statutes § 52-550 provides in pertinent part: “(a) No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged . . . (5) upon any agreement that is not to be performed within one year from the making thereof . . . .”

       General Statutes § 51-199a provides in pertinent part: “(b) The supreme court may answer questions of law certified to it by the Supreme Court of the United States, a court of appeals of the United States or a United States district court when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.
      “(c) This section may be invoked by an order of any of the courts referred to in subsection (b) of this section upon the court’s own motion or upon the motion of any party to the cause.
      “(d) A certification order shall set forth: (1) The questions of law to be answered; and (2) a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose.”

       These certified questions do not involve the question, which these facts raise, of whether the alleged oral contract was too vague to be enforceable. See Dunham v. Dunham, 204 Conn. 303, 313, 528 A.2d 1123 (1987).

       Flagship objected to our acceptance of the first question as framed by the Second Circuit, arguing that Connecticut case law does not require that all contracts be for a definite duration in order for the statute of frauds to apply. It cited Burkle v. Superflow Mfg. Co., 137 Conn. 488, 493, 78 A.2d 698 (1951), in which we said that the contract was “for an indefinite and indeterminable time in the future,” yet held it within the statute of frauds. Flagship proposed that the following two questions be substituted for the first:
      “1. Whether under the Connecticut Statute of Frauds, Conn. Gen. Stat. § 52-550 (a) (5), an oral contract that fails to specify explicitly the time for performance but would end upon completion of the Project, is a contract of ‘indefinite duration’?
      “2. Whether under the Connecticut Statute of Frauds, Conn. Gen. Stat. § 52-550 (a) (5), all oral contracts of indefinite duration are outside of the Statute’s proscriptions or only those oral contracts of indefinite duration for personal services?”
      We overruled the objection and accepted the questions as framed by the Second Circuit. It will, however, be clear from our opinion that the answer to the first of the questions proposed by Flagship is “yes.” The answer to the second of these questions is that all oral contracts of indefinite duration, whether or not for personal services, are excluded. In Burkle, the defendant agreed to supply plumbing equipment to the plaintiffs and to deliver within thirty days all orders procured by them. Such a contract, we held, “ ‘is presumably intended to be permanent and perpetual in the obligation it imposes.’ ” Id., 496. Notwithstanding the opinion’s use of the word “indefinite,” a perpetual contract is not the same as an indefinite contract.

       “The one-year provision has been omitted in North Carolina and Pennsylvania.” 2 E. Farnsworth, Contracts (2d Ed. 1990) § 6.4, p. 110 n.5.

       Even the statute’s most notable defender chose not to mention the one-year provision when he contended that the statute is “in essence better adapted to our needs than when it was first passed.” K. Llewellyn, “What Price Contract? An Essay in Perspective,” 40 Yale L.J. 704, 747 (1931).

         The language of the original English statute was nearly identical to that of the provision we are now considering, including “any agreement that is not to be performed within the space of one year from the making thereof.” An Act for Prevention of Frauds and Perjuries, 29 Car. 2, c. 3, § 4 (5) (1677), quoted in J. Perillo, “The Statute of Frauds in the Light of the Functions and Dysfunctions of Form,” 43 Fordham L. Rev. 39, 39 n.2 (1974).

       In this case, one of the issues before the Second Circuit was whether there was a genuine issue of material fact as to whether the oral agreement could have been performed within a year.

       We recognize, as Flagship observed at oral argument, that comment a to § 130 ol the Restatement (Second) of Contracts (1979), upon which we relied in Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 197, 520 A.2d 208 (1987), includes an illustration that is inconsistent with the result that we are reaching today. Contrary to illustration 3 (which is drawn from Warner v. Texas & Pacific R. Co., 164 U.S. 418, 17 S. Ct. 147, 41 L. Ed. 495 (1896), the facts of which are summarized in the text above), which supports our bolding, illustration 4 states: “A orally promises B to sell him five crops of potatoes to be grown on a specified farm in Minnesota, and B promises to pay a stated price on delivery. The contract is within the Statute of Frauds. It is impossible in Minnesota for five crops of potatoes to mature in one year.” The illustration is adapted from illustration 11 to § 198 of the Restatement (First) of Contracts (1928), which does not include case citations. The Restatement (Second) supports the illustration by citing Adams v. Big Three Industries, Inc., 549 S.W.2d 411 (Tex. Civ. App. 1977). The Adams court held that “when no time for performance has been specified, a ‘reasonable time’ will be implied, and what is a reasonable time must be determined from all the circumstances, the situation of the parties, and the subject matter of the contract. . . . Where an agreement, by its terms or the nature of the performance required, cannot be performed within one year, it necessarily comes within the purview of the statute. . . . If, as here, the contract is not a written one and depends upon disputed facts, the determination of what constitutes a reasonable time is a question of fact.” (Citations omitted.) Id., 414-15. In our view, illustration 3 more closely represents the law of this state.


author: Shea, J.

text:
    Donald J. Ghent et al. v. Zoning Commission of the City of Waterbury
    (14199)
    Shea, Callahan, Glass, Covello and Berdon, Js.

      Argued September 27
    decision released December 17, 1991

      Robert E. Ghent, for the appellants (named plaintiff et al.).

      Vincent J. Flynn, assistant corporation counsel, for the appellee (defendant).
   Shea, J.

The plaintiffs have appealed from the action of the defendant zoning commission of the city of Waterbury in amending several sections of the Waterbury zoning ordinance, the effect of which is to prohibit multiple family dwellings in certain commercial zones. The trial court upheld the commission’s decision and accordingly dismissed the appeal. After the Appellate Court had granted the plaintiffs’ petition for certification for review pursuant to General Statutes § 8-8 (o), we transferred the appeal to this court pursuant to Practice Book § 4023.

The principal issue raised by the plaintiffs is whether the amendments adopted by the zoning commission are invalid because of the involvement of the mayor of Waterbury, Joseph Santopietro, in the amendment process. The plaintiffs also attack the amendments substantively as violating the standards for zoning regulations established by General Statutes § 8-2. We affirm the judgment dismissing the appeal.

There is no dispute about the facts. On September 16, 1987, Santopietro, as mayor of the city of Waterbury, submitted an application to the zoning commission for amendments to several sections of the zoning ordinance for the purpose of prohibiting multiple family dwellings in the Commercial Arterial (CA) and Commercial General (CG) districts and also eliminating such a use as a special conditional use in the CA zone. Pursuant to the Waterbury charter, the application was referred to the city plan commission for initial consideration and recommendation.

A public hearing on the proposed amendments was held by the city plan commission on November 9,1987. By virtue of a charter provision making the mayor “chairman, ex-officio” of such authorities as the city plan commission, the mayor presided as chairman of the meeting. After the conclusion of the public hearing, the commission voted unanimously to approve the proposed amendments. The mayor did not vote at this meeting, nor does the charter authorize a vote for him, except to break a tie.

The zoning commission held a public hearing on the proposed amendments on December 16,1987, at which an attorney appeared on behalf of the mayor and spoke in favor of the amendments. The commission did not vote on the proposal until February 17,1988, when the commission members attending voted unanimously to adopt the amendments, deferring their effective date for six months.

The plaintiffs, as owners of property within the areas affected by the amendments, appealed to the Superior Court from the action of the zoning commission in adopting the amendments. The trial court rejected the numerous claims of irregularity raised by the plaintiffs and rendered judgment dismissing the appeal.

I

The plaintiffs claim that the mayor’s involvement in the process of adopting the amendments to the zoning ordinance, as their sponsor, as the presiding officer at the public hearing before the city plan commission and, through the appearance of his attorney, as their principal advocate at the public hearing before the zoning commission, tainted their adoption to such a degree as to require their invalidation.

A

First, the plaintiffs claim that the mayor violated the doctrine of separation of powers, under which, as provided by our state constitution, “[t]he powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.” Conn. Const., art. II. The constitutional provision applies to the state and not to municipalities, which are governed by charters and other statutes enacted by the legislature. Furthermore, another provision of our state constitution, which requires the governor to “give to the general assembly, information of the state of the government, and recommend to their consideration such measures as he shall deem expedient”; Conn. Const., art. IV, § 11; indicates that the framers of our constitution did not regard the separation of powers principle as compartmentalizing the branches of government so rigidly as to prevent a chief executive officer from proposing modifications of existing laws to a legislative body.

We take judicial notice of the uniform practice in this country of mayors and other chief executives, especially when popularly elected, to become the principal proponents for legislative change. The plaintiffs cite no authority even questioning this practice. This court has expressed the view that “[a] mayor as the chief executive officer of the town was in duty bound to express to the public and to local administrative boards what he believed to be in the best interests of the community.” Schwartz v. Hamden, 168 Conn. 8, 16, 357 A.2d 488 (1975); see 3 E. McQuillin, Municipal Corporations (3d Ed. Rev.) § 12.43. We conclude that, even if the separation of powers principle were applicable to the mayor of Waterbury, it would not have been violated by his proposing amendments to the zoning regulations.

B

The plaintiffs next advance the more conventional argument that the mayor exceeded the scope of the powers of his office as delineated in the Waterbury charter. “Public officers . . . can only act within the scope of the powers and duties which the law prescribes for them.” Rogers v. County Commissioners, 141 Conn. 426, 429, 106 A.2d 757 (1954); 63A Am. Jur. 2d § 300. The plaintiffs argue that there is no charter provision or other source of authority that would sanction the conduct of the mayor as the petitioner and principal advocate for a zoning amendment.

In rejecting this ultra vires claim, the trial court relied on two provisions of the charter: (1) § 2101, which designates the mayor as the “chief executive officer of the city” and makes him “chairman, ex-officio” of such agencies as the city plan commission and the zoning commission; and (2) subparagraph (a) thereof, which prescribes, in addition to his obligation “[t]o cause the laws and ordinances to be executed and enforced,” a further duty of the mayoralty “to conserve the peace within the city and to be responsible for the good order and efficient government of the city.” We agree that these sections of the charter provide sufficient authority for the mayor to have acted as a proponent of changes in zoning regulations.

The evident purpose of making the mayor chairman ex officio of various boards and commissions in the city pursuant to § 2101 is to allow him to have some input into the work of these agencies. Section 2103, furthermore, grants to the mayor, when he acts as chairman, “the power to preside at any meeting which he shall attend, to have a voice without a vote, except that he shall have the power to vote in order to break a tie at any such meeting.” In providing the mayor with a “voice,” the charter contemplates that the mayor is to act as an advocate, not simply as a presiding officer. Despite problems that may arise for a mayor attempting to perform both roles simultaneously, it is abundantly clear that the mayor is authorized to express his views on the various issues coming before these agencies in carrying out his general obligation “to be responsible for the good order and efficient government of the city” as prescribed by § 2101 (a).

The advocacy role, which we construe the “voice” provision of the charter to confer upon the mayor, must be deemed to include the authority to propose legislative changes because of the duty imposed on the mayor by § 2101 (a) “to be responsible for the good order and efficient government of the city.” Zoning regulations may be regarded as a significant factor in advancing these objectives. Furthermore, we are not aware of any restraint upon the ability of any person to petition the zoning commission for amendments to the text of regulations that apply throughout the city. The plaintiffs suggest that there exists a requirement of standing in the form of having an interest, such as ownership of property, in the area to be affected by a proposed amendment. We have indicated that there is a “necessary interest which a nonowner must possess in order to have standing to apply for a special permit or a variance.” Richards v. Planning & Zoning Commission, 170 Conn. 318, 323, 365 A.2d 1130 (1976). We are not inclined, however, to impose such a requirement for changes in the text of zoning regulations that apply generally throughout the city. Section 7.31-1 of the Waterbury zoning ordinance, which prescribes the requirements for filing an application for a zoning regulation amendment, contains no restriction based upon the interest of a petitioner. Section 7.33, by contrast, requires that petitioners for amendments to the zoning map be owners of property seeking a change of zone for their own property or their agents.

We conclude that the plaintiffs’ ultra vires claim is without merit.

C

The plaintiffs next claim that the presence of the mayor as presiding officer at the public hearing held by the city plan commission on his zoning amendment proposals violated the provision of General Statutes § 8-21 that “[n]o member of any planning commission . . . shall appear for or represent any person, firm or corporation or other entity in any matter pending before the planning or zoning commission . . . whether or not he is a member of the commission hearing such matter.” They do not claim that the mayor’s conduct of the meeting was other than impartial, that he had any personal financial interest in the amendments, or that he represented anyone other than the city. Since the Waterbury charter provides no vote for the mayor as an ex officio member of the commission, he did not vote on his own proposals, which the commission approved unanimously.

In Lurie v. Planning & Zoning Commission, 160 Conn. 295, 310-11, 278 A.2d 799 (1971), we commented with respect to § 8-21 that “it may well be doubted that the [statute was] intended to apply to an appearance by the chief executive official of the community.” We concluded, however, that it was unnecessary to decide that question, “since the plaintiffs raised no objection at the hearing to [the official’s] appearance.” Id., 311. Although this precedent would support a similar disposition of the plaintiffs’ claim on the ground of waiver for failure to object timely to the mayor’s acting as chairman of the public hearing, the resolution of the issue is of public importance because such officials should not be unnecessarily inhibited from appearing at public hearings in order to represent governmental or community interests.

If the plaintiffs’ position were sound that the provision of § 8-21 relied upon precluded the appearance at a public hearing of a mayor, representing solely the interests of the city, simply because he is an ex officio member of the commission involved, that statute would also appear to disqualify the other commission members, who presumably represent the same interests by virtue of their appointment. Such a result, of course, would be absurd. As the charter provision for a “voice” implies, the mayor should have an opportunity to be heard with respect to the interests of the city upon significant matters affecting the welfare of its residents that come before such agencies as the city plan commission. We resolve the doubt expressed in Lurie as to the applicability of the statute to a chief executive official appearing as the representative of the municipality at a public hearing before a commission of which he is an ex officio member, when it is exercising a legislative function, by holding that this statutory provision does not apply. Accordingly, we reject the plaintiffs’ claim to the contrary.

D

The plaintiffs also claim a violation of the provision of § 8-21 that “[n]o member of any planning commission shall participate in the hearing or decision of the commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense.” They do not claim that the mayor had any pecuniary interest or stood to gain financially from the adoption of the amendments he had proposed. They maintain, however, that the mayor had a “personal” interest in the sense that, as sponsor of the proposals, his self-interest in their adoption as a basis for advancing his political ambitions precluded impartial consideration of the amendments solely on their merits.

In Low v. Madison, 135 Conn. 1, 60 A.2d 774 (1948), this court rejected the notion that only a pecuniary interest would disqualify a member of a zoning commission from voting on an application for a zone change. We held that the vote by a commission member on the application of his wife was invalid because of his personal interest arising from such a relationship. “Anything which tends to weaken [public] confidence and to undermine the sense of security for individual rights which the citizen is entitled to feel is against public policy. In view of the natural sentiment of the family and the self-interest inherent in human nature, to countenance the action of [the commissioner] in this case would be to open the door to temptations upon which we need not enlarge.” Id., 9. The statutory predecessor of § 8-21, adopted in 1951, endorsed our decision in Low by adopting as a standard for disqualification the existence of an interest “in a personal or financial sense.”

In applying the statutory standard of personal interest, we have observed that “[l]ocal governments would . . . be seriously handicapped if any conceivable interest, no matter how remote and speculative, would require the disqualification of a zoning official.” Anderson v. Zoning Commission, 157 Conn. 285, 291, 253 A.2d 16 (1968). We have concluded that a zoning and planning commission member was not necessarily disqualified from voting upon an excavation permit application because of his membership on the town conservation commission and his presence and participation at its meetings, when the application had been discussed. Holt-Lock, Inc. v. Zoning & Planning Commission, 161 Conn. 182, 186-90, 286 A.2d 299 (1971). “The law does not require that members of zoning commissions must have no opinion concerning the proper development of their communities. It would be strange, indeed, if this were true.” Furtney v. Zoning Commission, 159 Conn. 585, 594, 271 A.2d 319 (1970).

We do not believe that, in requiring that commission members have no personal interest in matters coming before them, § 8-21 demands that their motivation in serving in such a capacity be solely and absolutely altruistic. Few people would be found to meet that standard. That the mayor’s involvement in the amendment proceedings may have stemmed from a desire for personal or political aggrandizement would not indicate that he was tainted by the kind of personal interest proscribed by § 8-21. The plaintiffs’ novel claim to the contrary is virtually frivolous. Their claim that the mayor was biased because of his sponsorship of the amendments and thus had a personal interest is similarly lacking in merit. The Waterbury zoning commission is empowered to amend the zoning regulations on its own motion, although the prescribed procedure for a referral to the city plan commission and public hearings must be followed. When the zoning commission acts to propose an amendment formulated by the commission, all of its members could be said to be similarly biased as sponsors of the proposal and, therefore, disqualified from voting on it. Such an inconceivable consequence compels the conclusion that sponsorship of a legislative proposal is not the kind of personal interest the statute was intended to preclude.

II

In addition to the mayor’s participation in the amendment process as a basis for invalidation, the plaintiffs claim that the amendments are flawed by two other procedural irregularities: (1) the involvement of the Waterbury legal department as legal adviser to the commission while it also allegedly represented the mayor’s interest in the proposal; and (2) the failure to fill a vacancy in the membership of the commission in order to provide a full complement of five commissioners, as provided by the charter and by General Statutes § 8-1.

A

The evidentiary basis for the claim of impropriety against the office of the corporation counsel is a letter addressed to the plaintiffs’ attorney and signed by assistant corporation counsel Vincent Flynn, who represents the defendant in this appeal. The letter indicates that the mayor requested Flynn to respond to a letter of the plaintiff Ghent, written approximately one month after the plan commission hearing and objecting to the mayor’s participation therein and his sponsorship of the zoning amendments, largely on the ground that the mayor had exceeded his authority. The letter rejected these contentions, but also indicated that Flynn had discussed the matter with the chairman of the zoning commission. At a subsequent public hearing on February 10, 1988, the chairman, in responding to the concern of another commissioner over the plaintiffs’ procedural claims, stated that the mayor’s proposal “is on solid legal ground and the Corporation Counsel has attested to that fact.”

On the basis of these facts, the plaintiffs claim that the office of the corporation counsel was representing the interests of both the mayor and the zoning commission, thus committing an impropriety tending to undermine public confidence. There is little substance to this claim. The corporation counsel is not the attorney for either the mayor or the commission, but is a legal officer appointed to protect the city’s legal interests. See 3 E. McQuillin, Municipal Corporations (3d Ed. Rev.) § 12.52. The evidence indicates no conflict between the mayor and the commission concerning the zoning amendments. It was the duty of the corporation counsel to advise the commission concerning the procedural irregularities claimed by the plaintiffs and also the mayor as an ex officio member thereof. There was nothing improper in the performance of both of these functions by the office of the corporation counsel. We have held that a municipal agency is entitled to legal advice in performing its duties. Spero v. Zoning Board of Appeals, 217 Conn. 435, 444-45, 586 A.2d 590 (1991). The plaintiffs’ further claim that the advice given by the corporation counsel’s office to the zoning commission with respect to the claimed procedural irregularities amounted to an ex parte communication on behalf of the mayor is wholly unsupported by the evidence.

B

Section 3001 of the Waterbury charter provides that the zoning commission “shall consist of five resident electors of this city” in conformity with the provision of § 8-1 (a) for “not less than five nor more than nine members.” During the period when the zoning amendments were under consideration, only four commissioners were serving because of the failure to fill a vacancy on the commission. At the February 17,1988 meeting of the commission, at which the amendments were adopted, one of the four members of the commission was absent. The three remaining commissioners voted unanimously to approve the amendments.

The plaintiffs claim that the existence of a vacancy on the commission, bringing its membership below the number specified in the charter as well as the minimum provided in § 8-1, resulted in the invalidation of the action of the three members of the commission who voted to approve the amendments.

“In the absence of legislative restriction, the general rule is that a committee or commission performing such functions as those exercised by the zoning commission in this case can take valid action at a meeting of which all members have proper notice and at which a majority are present.” Strain v. Mims, 123 Conn. 275, 281, 193 A. 754 (1937). “Words purporting to give a joint authority to several persons shall be construed as giving authority to a majority of them.” General Statutes § 1-1 (h). “[Although vacancies occur by death or resignation, if a majority survives or remains there is a sufficient number to constitute a quorum, otherwise, there is not.” 4E. McQuillin, supra, § 13.30. Applying these principles to the case before us, we conclude that the amendments were legally adopted by the unanimous vote of the three commissioners who attended the meeting, despite the failure to fill the vacancy on the commission.

Ill

The plaintiffs’ substantive attack on the zoning amendments is based on their contention that they do not “reasonably serve the public health, safety and welfare” and thus violate the requirement of General Statutes § 8-2 that zoning regulations “shall be made in accordance with a comprehensive plan and shall be designed . . . to promote health and the general welfare.” It is undisputed that the effect of the zoning amendments was to eliminate multiple family dwelling uses from those permitted in CG and CA zones.

The plaintiffs have not attacked the findings of the trial court, based on the record of the hearing before the zoning commission, that the amendments were “intended to restrict further residential development in both the CA and CG zones”; that concern was expressed that, “because of the incursion of condominiums in these zones . . . little land remained for future commercial development”; and that the amendments were proposed “[i]n order to preserve the land for its intended purpose.” In urging his fellow commissioners to approve the proposal, the chairman referred to it as a “visionary one; one that restores predictability and orderliness to our comprehensive plan and one that anticipates future commercial land needs.”

The plaintiffs complain that the elimination of multiple family dwelling uses in these zones is inconsistent with the preservation of other kindred uses permitted therein, such as hotels, motels, parks, playgrounds, libraries, community centers, hospitals, and public housing. For a court reviewing the action of a zoning commission in its legislative capacity, however, perfect harmony in zoning classifications is not the applicable criterion. “[E]very line drawn by a legislature leaves some out that might well have been included.” Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974).

We have applied a two-fold test to the action of a zoning commission: “(1) The zone change must be in accord with a comprehensive plan . . . and (2) it must be reasonably related to the normal police power purposes enumerated in [General Statutes] § 8-2 . . . .” First Hartford Realty Corporation v. Plan & Zoning Commission, 165 Conn. 533, 541, 338 A.2d 490 (1973). There is no indication in the record that the elimination of multiple dwelling uses in the two zones affected was designed to advance the interests of any particular individuals or enhance the value of certain parcels of land. The concerns mentioned by the chairman of the commission relating to the scarcity of land for commercial development within those zones involve the broad community welfare. At least in this sense, the requirement that zoning amendments be in accordance with a comprehensive plan has been satisfied, irrespective of the wisdom of the legislative judgment exercised.

With respect to the fulfillment of any of the purposes for which zoning regulations may be adopted as set forth in § 8-2, the most pertinent provisions of the statute are those declaring that such regulations “shall be designed ... to promote health and the general welfare” and “shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to . . . encouraging the most appropriate use of land throughout [the] municipality.” It is the rare case in which the legislative judgment of what is beneficial to the community can be superseded by that of the judiciary. The plaintiffs rely, however, on Corthouts v. Newington, 140 Conn. 284, 99 A.2d 112 (1953), in which a zoning amendment prohibiting residential uses in an industrial zone as applied to the plaintiffs land was held unconstitutional because it deprived him of any reasonable use of his land and was confiscatory. That case is readily distinguishable, however, because no similar claim of confiscation has been raised in this court. See Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 549-52, 552 A.2d 796 (1989). The plaintiffs have not contested in brief or at oral argument the conclusion of the trial court that no evidence had been presented in support of their claim of confiscation, in contrast to the situation in Corthouts. After reviewing the discussion of the amendments at the public hearing, we conclude that the zoning commission did not exceed its legislative authority in deciding that by “encouraging the most appropriate use of land throughout the municipality” the amendments are reasonably related to the advancement of the public welfare. General Statutes §8-2.

The judgment is affirmed.

In this opinion the other justices concurred.

       The plaintiffs are Donald J. Ghent, Joseph Gunterman, Gertrude T. Bergen, and 450 Meriden Road Corporation. The trial court found Ghent and Gunterman to be aggrieved because each of them owned land within the zones affected by the amendments. See General Statutes § 8-8. No aggrievement was found with respect to the other two plaintiffs. Only Ghent and Gunterman have appealed to this court and they are referred to hereinafter as the plaintiffs.

       Section 2101 of the Waterbury charter provides in part: “The mayor shall be the chief executive officer of the city. He shall have been a legal voter and resident of the city for the five years immediately preceding his election and shall reside in the city during his term of office. The mayor shall be chairman of the board of finance with a voice and a vote. The mayor shall be chairman, ex-officio, as hereinafter defined, of all other boards or commissions or authorities, except the board of tax review, the board of zoning appeals, the civil service commission or any other board whose sole duties are those of reviewing or appeal. The boards or commissions or authorities shall elect from their numbers one who will act as presiding officer in the absence of the mayor. The position and duties of the mayor in relation to each of the aforesaid boards or commissions or authorities shall be effective, any provision of the Charter to the contrary notwithstanding, except that the provisions of the Charter pertaining to the mayor’s powers and duties in connection with the board of aldermen shall not be amended by this section.
      “It shall further be the duty of the mayor:
      “(a) To cause the laws and ordinances to be executed and enforced and to conserve the peace within the city and to be responsible for the good order and efficient government of the city.”

       Section 2103 of the Waterbury charter provides: “The powers and duties of the mayor acting as chairman ex-officio, as hereinbefore provided, shall include the power to preside at any meeting which he shall attend, to have a voice without a vote, except that he shall have the power to vote in order to break a tie at any such meeting. Unless specifically empowered by each particular board or commission or authority, the mayor shall have no power to appoint committees of such bodies, nor to arrange the agenda of the meetings of any such bodies, nor to exercise other plenary powers of a chairman. The mayor’s attendance at any meeting shall be counted for the determination of the existence of a quorum at any such meeting. This amendment shall take effect on January 1, 1968.”

       Appendix B, § 7.31-1 of the Waterbury zoning ordinance provides: “application. An original and six (6) copies of an application for an amendment to the zoning ordinance must be made to the zoning commission, in letter form, and submitted to the city clerk together with the cost of advertising same which shall be borne by the petitioner.”

       Appendix B, § 7.33 of the Waterbury zoning ordinance provides: “amendment to zoning map. Any property owner within the City of Waterbury, or his assigned agent, may petition for an amendment to the zoning map, for his own property, subject to the following conditions

       General Statutes § 8-21 provides: “No member of any planning commission and no member of any municipal agency exercising the powers of any planning commission, whether existing under the general statutes or under any special act, shall appear for or represent any person, firm or corporation or other entity in any matter pending before the planning or zoning commission or zoning board of appeals or agency exercising the powers of any such commission or board in the same municipality, whether or not he is a member of the commission hearing such matter. No member of any planning commission shall participate in the hearing or decision of the commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense. In the event of such disqualification, such fact shall be entered on the records of the commission and, unless otherwise provided by special act, replacement shall be made from alternate members pursuant to the provisions of section 8-19a, of an alternate to act as a member of such commission in the hearing and determination of the particular matter or matters in which the disqualification arose.”

       Section 3001 of the Waterbury charter provides in part: “Pursuant to Title 8, section 1, of the General Statutes, the zoning commission of the City of Waterbury shall consist of five resident electors of this city, one of whom shall be an alderman, and not more than three of whom shall be members of the same political party. They shall be nominated by the mayor for election by the board of aldermen. The five members of said commission first elected, as provided above, shall be for terms, as follows: One member for a term ending December 31,1967; one member for a term ending December 31,1968; one member for a term ending December 31,1969; one member for a term ending December 31,1970; and the aldermanic member for a term which coincides with his term on the board of aldermen. Subsequent elections shall be terms of four years, with the exception of the aldermanic member, who shall serve during his term on the board of aldermen. Vacancies shall be filled as provided above for the unexpired period of the term. The members of this commission shall elect from among their members a chairman and a secretary. ...”

       General Statutes § 8-1 (a) provides in relevant part: “Any municipality may, by vote of its legislative body, adopt the provisions of this chapter and exercise through a zoning commission the powers granted hereunder. On and after July 1, 1974, in each municipality, except as otherwise provided by special act or charter provision adopted under chapter 99, the zoning commission shall consist of not less than five nor more than nine members, with minority representation as determined under section 9-167a, who shall be electors of such municipality. The number of such members and the method of selection and removal for cause and terms of office shall be determined by ordinance . . . .”

       General Statutes § 8-2 provides in pertinent part: “Such zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land. All such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district, but the regulations in one district may differ from those in another district, and may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, whichever commission or board the regulations may, notwithstanding any special act to the contrary, designate, subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values. Such regulations shall be made in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality. Such regulations shall also encourage the development of housing opportunities for all citizens of the municipality consistent with soil types, terrain and infrastructure capacity.” (Emphasis added.)